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DEFENDANT DRIVER’S DEPOSITION TESTIMONY, WHICH CONTRADICTED THE ACCIDENT REPORT AND MV-104 FORM, DID NOT RAISE A QUESTION OF FACT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant driver’s testimony in a deposition, which contradicted the accident report and the MV-104 form, did not create a question of fact and plaintiff’s motion for summary judgment in this traffic accident case should have been granted. The accident report and MV-104 form indicated defendant driver was in the process of making a left turn when plaintiff, who was in the oncoming lane, collided with defendant. In the deposition, defendant testified he had not yet started to turn when the accident happened:

Pursuant to Vehicle and Traffic Law § 1141, the operator of a vehicle intending to turn left within an intersection must yield the right-of-way to any oncoming vehicle which is within the intersection or so close to it as to constitute an immediate hazard … . A violation of this statute constitutes negligence per se … . The operator of an oncoming vehicle with the right-of-way is entitled to assume that the opposing operator will yield in compliance with the Vehicle and Traffic Law … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that the defendant driver violated Vehicle and Traffic Law § 1141 when he made a left turn directly into the path of the plaintiff’s scooter when it was not reasonably safe to do so, and that this violation was the sole proximate cause of the accident … . In opposition to the motion, the defendants failed to raise a triable issue of fact. The defendant driver testified at his deposition that, at the time of the occurrence, his taxi had not entered the intersection, was stopped, and was facing straight ahead. This testimony reflects a belated attempt to avoid the consequences of his earlier admissions in the police accident report and the MV-104 accident report that he was in the process of making a left turn, by raising a feigned issue of fact which was insufficient to defeat the motion … . In particular, the MV-104 form, which was prepared and signed by the defendant, expressly stated that the defendant was proceeding to make a left turn onto eastbound Park Avenue when the collision occurred. Lebron v Mensah, 2018 NY Slip Op 03521, Second Dept 5-16-18

​NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT DRIVER’S DEPOSITION TESTIMONY, WHICH CONTRADICTED THE ACCIDENT REPORT AND MV-104 FORM, DID NOT RAISE A QUESTION OF FACT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (DEFENDANT DRIVER’S DEPOSITION TESTIMONY, WHICH CONTRADICTED THE ACCIDENT REPORT AND MV-104 FORM, DID NOT RAISE A QUESTION OF FACT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (ILLEGAL LEFT TURN, DEFENDANT DRIVER’S DEPOSITION TESTIMONY, WHICH CONTRADICTED THE ACCIDENT REPORT AND MV-104 FORM, DID NOT RAISE A QUESTION OF FACT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (TRAFFIC ACCIDENTS, SUMMARY JUDGMENT, DEFENDANT DRIVER’S DEPOSITION TESTIMONY, WHICH CONTRADICTED THE ACCIDENT REPORT AND MV-104 FORM, DID NOT RAISE A QUESTION OF FACT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SUMMARY JUDGMENT (TRAFFIC ACCIDENTS, DEFENDANT DRIVER’S DEPOSITION TESTIMONY, WHICH CONTRADICTED THE ACCIDENT REPORT AND MV-104 FORM, DID NOT RAISE A QUESTION OF FACT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined the out-of-possession landlord (Bagga) was properly granted summary judgment in this slip and fall case:

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell at the entrance of a grocery store operated by the defendant 63-28 99th St. Farm Ltd., located on premises owned by the defendant Dasshan S. Bagga. …

“An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct'” … . Here, where the complaint sounds in common-law negligence and the plaintiff does not allege the violation of a statute, Bagga demonstrated his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him by establishing that he was an out-of-possession landlord who was not bound by contract or course of conduct to maintain the premises… . The mere reservation of a right to reenter the premises to make repairs does not impose an obligation on the landlord to maintain the premises … . Fuzaylova v 63-28 99th St. Farm Ltd., 2018 NY Slip Op 03506, Second Dept 5-16-18

​NEGLIGENCE (LANDLORD-TENANT, SLIP AND FALL, OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT))/LANDLORD-TENANT (SLIP AND FALL, OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT))/OUT-OF-POSSESSION LANDLORD (SLIP AND FALL, OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT,  OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT))

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GROSS NEGLIGENCE CAUSE OF ACTION AND DEMAND FOR PUNITIVE DAMAGES IN THIS OIL-CONTAMINATION-REMEDIATION ACTION SHOULD NOT HAVE BEEN DISMISSED, CAUSES OF ACTION IN AMENDED COMPLAINT RELATED BACK TO THE ALLEGATIONS IN THE ORIGINAL COMPLAINT AND WERE NOT TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ gross negligence cause of action and demand for punitive damages should not have been dismissed. Plaintiffs alleged the defendant insurer (State Farm) and the defendant engineering firm (H2M) were grossly negligent in supervising the remediation of oil contamination on plaintiffs’ property. The Second Department noted that the causes of action in the amended complaint related back to the allegations in the original complaint and were not, therefore time-barred:

The Supreme Court should not have granted those branches of State Farm’s and H2M’s motions which were to dismiss the cause of action alleging gross negligence insofar as asserted against each of them. As the original complaint gave notice of the transactions or occurrences to be proven as to the gross negligence causes of action, those causes of action related back to the date of timely filing of the original complaint … .

The amended complaint stated a viable gross negligence cause of action as against State Farm and H2M. Gross negligence “differs in kind, not only degree, from claims of ordinary negligence” … . “To constitute gross negligence, a party’s conduct must smack[ ] of intentional wrongdoing’ or evince[ ] a reckless indifference to the rights of others'”… .. Generally, the question of gross negligence is a matter to be determined by the trier of fact… .

The allegations, inter alia, that State Farm and H2M greatly exacerbated the existing damage to the property by causing the spread of the existing contamination and by directing the backfilling of areas of the property after leaving in place significant existing contamination are sufficient to support a gross negligence cause of action … . Bennett v State Farm Fire & Cas. Co., 2018 NY Slip Op 03499, Second Dept 5-16-18

​NEGLIGENCE (GROSS NEGLIGENCE CAUSE OF ACTION AND DEMAND FOR PUNITIVE DAMAGES IN THIS OIL-CONTAMINATION-REMEDIATION ACTION SHOULD NOT HAVE BEEN DISMISSED, CAUSES OF ACTION IN AMENDED COMPLAINT RELATED BACK TO THE ALLEGATIONS IN THE ORIGINAL COMPLAINT AND WERE NOT TIME-BARRED (SECOND DEPT))/CIVIL PROCEDURE (RELATION BACK, GROSS NEGLIGENCE CAUSE OF ACTION AND DEMAND FOR PUNITIVE DAMAGES IN THIS OIL-CONTAMINATION-REMEDIATION ACTION SHOULD NOT HAVE BEEN DISMISSED, CAUSES OF ACTION IN AMENDED COMPLAINT RELATED BACK TO THE ALLEGATIONS IN THE ORIGINAL COMPLAINT AND WERE NOT TIME-BARRED (SECOND DEPT))/INSURANCE LAW (GROSS NEGLIGENCE CAUSE OF ACTION AND DEMAND FOR PUNITIVE DAMAGES IN THIS OIL-CONTAMINATION-REMEDIATION ACTION SHOULD NOT HAVE BEEN DISMISSED, CAUSES OF ACTION IN AMENDED COMPLAINT RELATED BACK TO THE ALLEGATIONS IN THE ORIGINAL COMPLAINT AND WERE NOT TIME-BARRED (SECOND DEPT))/ENVIRONMENTAL LAW (GROSS NEGLIGENCE CAUSE OF ACTION AND DEMAND FOR PUNITIVE DAMAGES IN THIS OIL-CONTAMINATION-REMEDIATION ACTION SHOULD NOT HAVE BEEN DISMISSED, CAUSES OF ACTION IN AMENDED COMPLAINT RELATED BACK TO THE ALLEGATIONS IN THE ORIGINAL COMPLAINT AND WERE NOT TIME-BARRED (SECOND DEPT))/RELATION BACK (AMENDED COMPLAINT, GROSS NEGLIGENCE CAUSE OF ACTION AND DEMAND FOR PUNITIVE DAMAGES IN THIS OIL-CONTAMINATION-REMEDIATION ACTION SHOULD NOT HAVE BEEN DISMISSED, CAUSES OF ACTION IN AMENDED COMPLAINT RELATED BACK TO THE ALLEGATIONS IN THE ORIGINAL COMPLAINT AND WERE NOT TIME-BARRED (SECOND DEPT))

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QUESTION OF FACT WHETHER A SAFETY DEVICE WAS REQUIRED UNDER LABOR LAW 240 (1) IN THIS FALLING OBJECT CASE, QUESTION OF FACT WHETHER A HARD HAT THAT COULD BE WORN WITH A WELDING SHIELD WAS REQUIRED UNDER LABOR LAW 241 (6) (SECOND DEPT).

The Second Department determined there was a question of fact whether a safety device was necessary in this falling object case (Labor Law 240 (1)), and there was a question of fact whether plaintiff should have been supplied with a hard hat that could be worn with a welding shield (Labor Law 241 (6)). Plaintiff had used a scissors lift to raise a part up 16 feet to where it was welded just enough to hold it in place so further welding could be done (tack welds). The scissors lift was lowered, the tack welds broke and the part fell and struck plaintiff:

… [N]either the plaintiffs nor the defendants established their prima facie entitlement to judgment as a matter of law with respect to the Labor Law § 240(1) cause of action. The parties’ submissions raised triable issues of fact as to whether the defendants were obligated to provide appropriate safety devices of the kind enumerated in Labor Law § 240(1) to secure the flange and whether the flange fell due to the absence or inadequacy of an enumerated safety device… . … [A]safety manager … testified … that “[d]epending on . . . what the operation is,” “[s]lings, chokers [can be] used to . . . hold [a flange] in place” until it is permanently welded to the pipe. While it is true that no safety device such as a sling was provided, the injured plaintiff testified at his deposition that two tack welds should have been sufficient to secure the flange. Significantly, the plaintiffs’ expert … opined that “the two tack welds should have been sufficient to hold the flange until the job was completed, unless the tack welds were defective.” Under these circumstances, a triable issue of fact exists as to whether “[t]his was . . . a situation where a hoisting or securing device of the kind enumerated in [Labor Law § 240(1)] would have been necessary or even expected” … . Contrary to the defendants’ contention, the tack welds do not constitute a safety device within the meaning of Labor Law § 240(1) … . Carlton v City of New York, 2018 NY Slip Op 03500, Second Dept 5-16-18

​LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER A SAFETY DEVICE WAS REQUIRED UNDER LABOR LAW 240 (1) IN THIS FALLING OBJECT CASE, QUESTION OF FACT WHETHER A HARD HAT THAT COULD BE WORN WITH A WELDING SHIELD WAS REQUIRED UNDER LABOR LAW 241 (6) (SECOND DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER A SAFETY DEVICE WAS REQUIRED UNDER LABOR LAW 240 (1) IN THIS FALLING OBJECT CASE, QUESTION OF FACT WHETHER A HARD HAT THAT COULD BE WORN WITH A WELDING SHIELD WAS REQUIRED UNDER LABOR LAW 241 (6) (SECOND DEPT))

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TENANT’S INSURANCE POLICY NAMED THE OWNER OF THE BUILDING AS AN ADDITIONAL INSURED, PLAINTIFF FELL ON A STAIRCASE IN AN AREA NOT LEASED TO THE TENANT, PLAINTIFF COULD NOT RECOVER UNDER THE ADDITIONAL INSURED PROVISION OF THE TENANT’S POLICY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s injury from a fall on a staircase was not covered by the “additional insured” provision of the subject policy. Yeshiva leased property in a building owned by Beth Medrash. Beth Medrash was listed as an additional insured in Yeshiva’s insurance policy. The staircase where plaintiff fell was not leased by Yeshiva:

The additional insured provision named Beth Medrash as an additional insured “only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to [the Yeshiva].” The phrase “arising out of” requires “only that there be some causal relationship between the injury and the risk for which coverage is provided” … . “An insurer does not wish to be liable for losses arising from risks associated with . . . premises for which the insurer has not evaluated the risk and received a premium” … . Moreover, “unambiguous provisions of an insurance contract must be given their plain and ordinary meaning”… . The interpretation of policy language is a question of law for the court … .

On his motion for summary judgment, the plaintiff failed to establish, prima facie, that the policy provided coverage to Beth Medrash as an additional insured for his injury. It is undisputed that the Yeshiva did not lease the staircase the plaintiff was descending when he fell, and that the plaintiff was not a student or invitee of the Yeshiva at the time of the accident. Therefore, there was no causal relationship between the plaintiff’s injury and the risk for which coverage was provided … . Consequently, the plaintiff’s injury was not a bargained-for risK … . Lissauer v GuideOne Specialty Mut. Ins., 2018 NY Slip Op 03522, Second Dept 5-16-18

​INSURANCE LAW (TENANT’S INSURANCE POLICY NAMED THE OWNER OF THE BUILDING AS AN ADDITIONAL INSURED, PLAINTIFF FELL ON A STAIRCASE IN AN AREA NOT LEASED TO THE TENANT, PLAINTIFF COULD NOT RECOVER UNDER THE ADDITIONAL INSURED PROVISION OF THE TENANT’S POLICY (SECOND DEPT))/LANDLORD-TENANT (INSURANCE LAW, TENANT’S INSURANCE POLICY NAMED THE OWNER OF THE BUILDING AS AN ADDITIONAL INSURED, PLAINTIFF FELL ON A STAIRCASE IN AN AREA NOT LEASED TO THE TENANT, PLAINTIFF COULD NOT RECOVER UNDER THE ADDITIONAL INSURED PROVISION OF THE TENANT’S POLICY (SECOND DEPT))/ADDITIONAL INSURED (LANDLORD-TENANT, TENANT’S INSURANCE POLICY NAMED THE OWNER OF THE BUILDING AS AN ADDITIONAL INSURED, PLAINTIFF FELL ON A STAIRCASE IN AN AREA NOT LEASED TO THE TENANT, PLAINTIFF COULD NOT RECOVER UNDER THE ADDITIONAL INSURED PROVISION OF THE TENANT’S POLICY (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT, INSURANCE LAW, TENANT’S INSURANCE POLICY NAMED THE OWNER OF THE BUILDING AS AN ADDITIONAL INSURED, PLAINTIFF FELL ON A STAIRCASE IN AN AREA NOT LEASED TO THE TENANT, PLAINTIFF COULD NOT RECOVER UNDER THE ADDITIONAL INSURED PROVISION OF THE TENANT’S POLICY (SECOND DEPT))

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RECOVERY FROM THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION FOR INJURY BY AN UNKNOWN DRIVER DEPENDS ON WHETHER THE INJURY IS THE RESULT OF AN ACCIDENT OR INTENTIONAL CONDUCT, NO RECOVERY FOR INJURY RESULTING FROM INTENTIONAL CONDUCT (SECOND DEPT).

The Second Department determined Supreme Court correctly ordered a framed issue hearing on the issue whether the injury to plaintiff bicyclist was caused by an “accident” or “intentional conduct” within the meaning of Article 52 of the Insurance Law. Plaintiff got into an argument with a driver and was then struck by the driver’s car. The driver’s identity is not known so plaintiff sought recovery from the Motor Vehicle Accident Indemnification Corporation (MVAIC). The Second Department held that the issue was not controlled by the recent Court of Appeals decision which found that an intentional act by a driver could be seen as an “accident” from the perspective of the injured person. In that Court of Appeals case (State Farm Mut Auto Ins Co v Langan, 16 NY3d 349) the injured person was seeking recovery from the insurer under the injured person’s own policy. Here the plaintiff was seeking recovery from the MVAIC and there can be no recovery from the MVAIC for injury resulting from intentional conduct:

Article 52 of the Insurance Law (“motor vehicle accident indemnification act”) seeks to provide “for the payment of loss on account of injury to or death of persons who, through no fault of their own, were involved in motor vehicle accidents caused by” vehicles that, for a variety of reasons, are not covered by insurance (Insurance Law § 5201[b]). Article 52 does not, however, cover incidents that are the result of intentional conduct by a tortfeasor, because those incidents are not caused “by accident” … . …

The Court of Appeals [in Langan] held that where recovery was sought from the insurer under the insured’s own policy, the determination of whether the incident constituted an “accident” was to be viewed from the perspective of the innocent insured, rather than of the tortfeasor: “the intentional assault of an innocent insured is an accident within the meaning of his or her own policy. The occurrence at issue was clearly an accident from the insured’s point of view” … . The Court distinguished McCarthy v Motor Veh. Acc. Indem. Corp. (16 AD2d at 41), where recovery was sought from a state fund administered by the MVAIC… . Here, as in McCarthy, the petitioner seeks to recover from the state fund administered by the MVAIC, and not from an insurer under an insurance policy as in Langan. Castillo v Motor Veh. Acc. Indem. Corp., 2018 NY Slip Op 03502, Second Dept 5-16-18

​INSURANCE LAW (RECOVERY FROM THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION FOR INJURY BY AN UNKNOWN DRIVER DEPENDS ON WHETHER THE INJURY IS THE RESULT OF AN ACCIDENT OR INTENTIONAL CONDUCT, NO RECOVERY FOR INJURY RESULTING FROM INTENTIONAL CONDUCT (SECOND DEPT))/MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION  (RECOVERY FROM THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION FOR INJURY BY AN UNKNOWN DRIVER DEPENDS ON WHETHER THE INJURY IS THE RESULT OF AN ACCIDENT OR INTENTIONAL CONDUCT, NO RECOVERY FOR INJURY RESULTING FROM INTENTIONAL CONDUCT (SECOND DEPT))/ACCIDENT (INSURANCE LAW, RECOVERY FROM THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION FOR INJURY BY AN UNKNOWN DRIVER DEPENDS ON WHETHER THE INJURY IS THE RESULT OF AN ACCIDENT OR INTENTIONAL CONDUCT, NO RECOVERY FOR INJURY RESULTING FROM INTENTIONAL CONDUCT (SECOND DEPT))/INTENTIONAL CONDUCT  (INSURANCE LAW, RECOVERY FROM THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION FOR INJURY BY AN UNKNOWN DRIVER DEPENDS ON WHETHER THE INJURY IS THE RESULT OF AN ACCIDENT OR INTENTIONAL CONDUCT, NO RECOVERY FOR INJURY RESULTING FROM INTENTIONAL CONDUCT (SECOND DEPT))/TRAFFIC ACCIDENTS (INSURANCE LAW, RECOVERY FROM THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION FOR INJURY BY AN UNKNOWN DRIVER DEPENDS ON WHETHER THE INJURY IS THE RESULT OF AN ACCIDENT OR INTENTIONAL CONDUCT, NO RECOVERY FOR INJURY RESULTING FROM INTENTIONAL CONDUCT (SECOND DEPT))/BICYCLISTS (TRAFFIC ACCIDENTS, INSURANCE LAW, RECOVERY FROM THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION FOR INJURY BY AN UNKNOWN DRIVER DEPENDS ON WHETHER THE INJURY IS THE RESULT OF AN ACCIDENT OR INTENTIONAL CONDUCT, NO RECOVERY FOR INJURY RESULTING FROM INTENTIONAL CONDUCT (SECOND DEPT))

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FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure complaint should not have been dismissed on the ground that the bank had not taken proceedings for the entry of a default judgment within a year of defendants’ default. It was enough that the bank took preliminary steps toward obtaining a default judgment within the year:

CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” “It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c)” … . “Rather, it is enough that the plaintiff timely takes the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference’ to establish that it initiated proceedings for entry of a judgment within one year of the default’ for the purposes of satisfying CPLR 3215(c)” … . Here, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference … within one year of the defendants’ default and, thus, did not abandon the action … . Deutsche Bank Natl. Trust Co. v Delisser, 2018 NY Slip Op 03504, Second Dept 5-16-18

​FORECLOSURE (DEFAULT, FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT))/CIVIL PROCEDURE (DEFAULT, FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT))/CPLR 3315 (DEFAULT, FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT))/DEFAULT (CIVIL PROCEDURE, FORECLOSURE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF BANK TOOK PRELIMINARY STEPS TOWARD OBTAINING A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT (SECOND DEPT))

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IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT).

The Second department, reversing (modifying) Supreme Court in a divorce action, determined that the judge properly corrected a mistake in the judgment of divorce, but improperly made a change in the judgment based on new evidence:

… [T]he Supreme Court, sua sponte, directed the parties to appear … . … [T]he defendant and his counsel appeared, but the plaintiff failed to appear. The court expressed its concern about a letter it had received indicating that the defendant had failed to disclose a variable supplemental pension plan. The court further noted that the third decretal paragraph of the judgment did not reflect the intent expressed in the court’s underlying decision, inasmuch as the judgment failed to provide that changes in the value of the retirement assets since the commencement of the action were to be shared equally. An amended judgment was entered thereafter modifying so much of the third decretal paragraph of the original judgment as was necessary to conform the judgment to the underlying decision, and modifying the fourth decretal paragraph of the original judgment to include a reference to the previously undisclosed variable supplemental pension plan. The defendant appeals from the amended judgment.

The Supreme Court had the authority to modify the third decretal paragraph of the original judgment, given the discrepancy between the terms of that decretal paragraph and the underlying decision. “A judgment . . . must conform strictly to the court’s decision. Where there is an inconsistency between a judgment . . . and the decision upon which it is based, the decision controls” …

However, the Supreme Court was without authority, sua sponte, to modify the fourth decretal paragraph of the original judgment to add a reference to the variable supplemental pension plan, as this was a substantive modification based on new evidence that had not previously been submitted to the court. Such a modification goes beyond the court’s inherent authority to correct a “mistake, defect or irregularity” in the original judgment “not affecting a substantial right of a party” … . Mascia v Mascia, 2018 NY Slip Op 03523, Second Dept 5-16-18

​FAMILY LAW (JUDGMENTS, IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT))/JUDGMENTS ( IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT))/JUDGES (IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT))

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AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the award of attorney’s fees and expert witness fees in this divorce action was an abuse of discretion:

In a matrimonial action, an award of counsel fees is a matter committed to the sound discretion of the trial court … . However, court rules impose certain requirements upon attorneys who represent clients in domestic relations matters … . These rules were designed to address abuses in the practice of matrimonial law and to protect the public, and the failure to substantially comply with the rules will preclude an attorney’s recovery of a fee from his or her client …  or from the adversary spouse … . A showing of substantial compliance must be made on a prima facie basis as part of the moving party’s papers … .

Here, the evidence proffered by the defendant in support of that branch of her motion which was for an award of counsel fees for work performed by Glynn demonstrates that Glynn failed to substantially comply with the rules requiring periodic billing statements at least every 60 days … . Accordingly, the Supreme Court erred in granting that branch of the defendant’s motion which pertains to Glynn’s counsel’s fees. …

“The award of expert witness fees in a matrimonial action is left to the sound discretion of the trial court, and should be made upon a detailed showing of the services to be rendered and the estimated time involved”… . “Absent affidavits from the expert witnesses at issue, the Supreme Court lacks a sufficient basis to grant a motion for the award of such fees” …  Here, the defendant failed to submit such expert affidavits. Greco v Greco, 2018 NY Slip Op 03509, Second Dept 5-16-18

​FAMILY LAW (DIVORCE, ATTORNEY’S FEES, EXPERT WITNESS FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))/ATTORNEYS (DIVORCE, ATTORNEY’S FEES, EXPERT WITNESS FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))/ATTORNEYS FEES (DIVORCE, EXPERT WITNESS FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))/EXPERT WITNESSES (DIVORCE, ATTORNEY’S FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))

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DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined, despite the termination of mother’s parental rights, grandmother had standing to seek visitation with the child and visitation by the grandmother was in the bests interests of the child:

A biological grandparent may seek visitation with a child even after parental rights have been terminated or the child has been freed for adoption … . Where a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must undertake a two-part inquiry … . First, the court must determine if the grandparent has standing to petition for visitation based on the death of a parent or equitable circumstances . Where the court concludes that the grandparent has established standing, the court must then determine whether visitation with the grandparent is in the best interests of the child … . In determining whether equitable circumstances confer standing, the court must examine all relevant facts … . “[A]n essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship” … . A grandparent must establish an existing relationship or sufficient efforts to establish one that have been unjustifiably frustrated by the parent … .

Here, the evidence demonstrated that the maternal grandmother developed a relationship with the child early on in her life and thereafter made repeated efforts to continue that relationship … . Accordingly, the Family Court’s determination that the grandmother lacked standing to seek visitation was not supported by a sound and substantial basis in the record. Moreover, visitation with the grandmother would be in the child’s best interests. The grandmother had consistent visitation with the child until the DSS ceased allowing such visitation in November 2014. By all accounts, the grandmother’s visitations conducted separately from the mother’s visitations were positive, and the attorney for the child in the Family Court took the position that the child’s best interests would be served by visitation with the grandmother conditioned on the requirement that the mother not be present for the visitation … . Matter of Weiss v Weiss, 2018 NY Slip Op 03532, Second Dept 5-16-18

​FAMILY LAW (VISITATION, GRANDMOTHER, DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT))/VISITATION (FAMILY LAW, GRANDMOTHER, DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT))/GRANDPARENTS (FAMILY LAW, VISITATION, DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT))

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