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COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT).

The Second Department determined the plaintiffs had stated causes of action against the sellers (the Lyubarskys) of a condominium for fraudulently concealing mold and water damage in the condominium and in the common areas. The complaint also alleged plaintiffs’ attorney committed malpractice in representing them in the purchase. The court explained the how the doctrine of caveat emptor (buyer beware) relates to the allegations in the complaint:

“New York adheres to the doctrine of caveat emptor and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller which constitutes active concealment”… . “If however, some conduct (i.e., more than mere silence) on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the property”… . “To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller’s agents thwarted the plaintiff’s efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor” … .

Here, accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference… , the complaint sufficiently states a cause of action to recover damages for fraud on the theory that the Lyubarskys actively concealed defects throughout the common areas of the condominium building. The complaint alleges that the Lyubarskys took several steps to hide the existence of leaks and mold damage including, inter alia, claiming that they had lost the key to the storage area in the cellar which was assigned to the subject condominium, and removing and replacing damaged sheetrock from the cellar and the parking area. These allegations, if true, might have thwarted the plaintiff’s efforts to fulfill her responsibilities imposed by the doctrine of caveat emptor with respect to the common areas of the building … . Razdolskaya v Lyubarsky, 2018 NY Slip Op 02817, Second Dept 4-25-18

​REAL ESTATE (COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/FRAUD (REAL ESTATE, COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/CAVEAT EMPTOR  (REAL ESTATE, COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/NEGLIGENCE (ATTORNEYS, REAL ESTATE, COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/LEGAL MALPRACTICE (REAL ESTATE,  COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))/ATTORNEYS (REAL ESTATE, MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION AGAINST THE SELLERS OF A CONDOMINIUM FOR FRAUDULENTLY CONCEALING MOLD AND WATER DAMAGE IN THE CONDOMINIUM AND COMMON AREAS, THE COMPLAINT ALSO STATED A MALPRACTICE CAUSE OF ACTION AGAINST THE BUYERS’ ATTORNEY (SECOND DEPT))

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INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined the incident reports concerning plaintiff’s injury when he was struck by a chain link fence he was installing did not provide the city with notice of the essential elements of his negligence and Labor Law claims. Therefore the petition for leave to file a late notice of claim was properly denied:

… [T]he incident reports … were insufficient to provide the respondents with actual knowledge of the essential facts underlying the petitioner’s claim. These reports merely indicated that the petitioner injured his shoulder when the temporary chain link fence was blown over by the wind or came down on him as he was working on the fence. The reports made no reference to the claims listed in the proposed notice of claim, inter alia, that the respondents were negligent in allowing a dangerous condition to exist, in failing to provide protective and safety devices, and in failing to properly secure or hoist the fence, and violated certain sections of the Labor Law and unspecified sections of the Industrial Code … .

Furthermore, the petitioner failed to proffer any excuse for the failure to serve a timely notice of claim … . Moreover, the petitioner presented no “evidence or plausible argument” that his delay in serving a notice of claim did not substantially prejudice the respondents in defending on the merits … . Matter of Wilson v City of New York, 2018 NY Slip Op 02794, Second Dept 4-25-18

​MUNICIPAL LAW (NOTICE OF CLAIM, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NEGLIGENCE, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW,  INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/LABOR LAW-CONSTRUCTION LAW (MUNICIPAL LAW, NOTICE OF CLAIM, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/ACCIDENT REPORTS (MUNICIPAL LAW, NOTICE OF CLAIM, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/INCIDENT REPORTS (MUNICIPAL LAW, NOTICE OF CLAIM, INCIDENT REPORTS DID NOT PROVIDE THE CITY WITH NOTICE OF THE ESSENTIAL FACTS OF PLAINTIFF’S NEGLIGENCE AND LABOR LAW CLAIMS, PETITION TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

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PLAINTIFF FELL FROM A LADDER WHEN A TIRE STORED ON THE ROOF OF A SHED FELL AND STRUCK THE LADDER, THE TIRE WAS NOT BEING HOISTED AND DID NOT NEED TO BE SECURED FOR THE PURPOSES OF PLAINTIFF’S WORK, THE ACCIDENT THEREFORE WAS NOT COVERED UNDER LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the criteria for a “falling object” case under Labor Law 240(1) had not been met. Tires were stored on the roof of a shed. As plaintiff was climbing a ladder to the roof of the shed, a tire struck the ladder and plaintiff fell. Because the tire was not being hoisted and did not need to be secured, Labor Law 240(1) did not apply to the facts:

“To prevail on a cause of action pursuant to section 240(1) [of the Labor Law] in a falling object case, the injured worker must demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” … . “This requires a showing that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking” … . “Labor Law § 240(1) does not apply in situations in which a hoisting or securing device of the type enumerated in the statute would not be necessary or expected'”… .

Here, the evidence adduced at trial, viewed in the light most favorable to the plaintiff, demonstrated that the tires were not materials that were being hoisted or secured for the purposes of the undertaking, nor was it expected, under the circumstances of this case, that the tires would require securing for the purposes of the undertaking at the time one or more tires fell … . Therefore, “the special protection’ of Labor Law § 240(1) was not implicated” … . Ruiz v Ford, 2018 NY Slip Op 02820, Second Dept 4-25-18

​LABOR LAW-CONSTRUCTION LAW (PLAINTIFF FELL FROM A LADDER WHEN A TIRE STORED ON THE ROOF OF A SHED FELL AND STRUCK THE LADDER, THE TIRE WAS NOT BEING HOISTED AND DID NOT NEED TO BE SECURED FOR THE PURPOSES OF PLAINTIFF’S WORK, THE ACCIDENT THEREFORE WAS NOT COVERED UNDER LABOR LAW 240(1) (SECOND DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF FELL FROM A LADDER WHEN A TIRE STORED ON THE ROOF OF A SHED FELL AND STRUCK THE LADDER, THE TIRE WAS NOT BEING HOISTED AND DID NOT NEED TO BE SECURED FOR THE PURPOSES OF PLAINTIFF’S WORK, THE ACCIDENT THEREFORE WAS NOT COVERED UNDER LABOR LAW 240(1) (SECOND DEPT))

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INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted because the proof of compliance with the Real Property Actions and Proceedings Law (RPAPL) 90 day notice mailing requirements was insufficient:

Proof of the requisite mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure … .

Here, in moving for summary judgment, the plaintiff failed to submit an affidavit of service or other proof of mailing by the post office establishing that it properly served [defendant] pursuant to RPAPL 1304. The unsubstantiated and conclusory statement of a vice president of the plaintiff that a 90-day pre-foreclosure notice “was forwarded by regular and certified mail” to [defendant] “in full compliance with all requirements of RPAPL § 1304” was insufficient to establish that the notice was actually mailed to [defendant] by first-class and certified mail … . Wells Fargo Bank, NA v Mandrin, 2018 NY Slip Op 02826, Second Dept 4-25-18

​FORECLOSURE (INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, 90 DAY NOTICE,  INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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WILLFULNESS IS NOT AN ELEMENT OF CIVIL CONTEMPT, MOTHER’S MOTION TO FIND FATHER IN CIVIL CONTEMPT FOR VIOLATIONS OF ORDERS CONCERNING CONTACT WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to find father in civil contempt for violation of orders concerning contact with the children should have been granted. The court need not find the violations were willful:

To prevail on a motion to hold a party in civil contempt pursuant to Judiciary Law § 753(A)(3), the movant must establish by clear and convincing evidence (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate, (2) the appearance, with reasonable certainty, that the order was disobeyed, (3) that the party to be held in contempt had knowledge of the court’s order, and (4) prejudice to the right of a party to the litigation … . Prejudice is shown where the party’s actions “were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party” … . In order for contempt sanctions to be imposed pursuant to Judiciary Law § 753(A), “willfulness” need not be shown … . Once the movant makes the required showing, the burden shifts to the alleged contemnor to refute that showing, or to offer evidence of a defense such as an inability to comply with the order … .

Here, the hearing record established that the father violated unequivocal mandates of the Family Court, of which he was aware, by removing the children from school and vacationing with them for a one-week period in 2015 without timely notice to the mother, failing to facilitate daily phone contact between the mother and the children during that period, and failing to complete the required parenting training. The record further demonstrates that the mother was prejudiced by those actions. Contrary to the determination of the court, a finding of willfulness was not required to establish the father’s civil contempt. Matter of Mendoza-Pautrat v Razdan, 2018 NY Slip Op 02790, Second Dept 4-25-18

​FAMILY LAW (CIVIL CONTEMPT, WILLFULNESS IS NOT AN ELEMENT OF CIVIL CONTEMPT, MOTHER’S MOTION TO FIND FATHER IN CIVIL CONTEMPT FOR VIOLATIONS OF ORDERS CONCERNING CONTACT WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL CONTEMPT (FAMILY LAW, WILLFULNESS IS NOT AN ELEMENT OF CIVIL CONTEMPT, MOTHER’S MOTION TO FIND FATHER IN CIVIL CONTEMPT FOR VIOLATIONS OF ORDERS CONCERNING CONTACT WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CIVIL CONTEMPT, FAMILY LAW,  WILLFULNESS IS NOT AN ELEMENT OF CIVIL CONTEMPT, MOTHER’S MOTION TO FIND FATHER IN CIVIL CONTEMPT FOR VIOLATIONS OF ORDERS CONCERNING CONTACT WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge deprived defendant of a fair trial by asking questions of witnesses and interrupting cross-examination:

The principle restraining the court’s discretion is that a trial judge’s “function is to protect the record, not to make it” (… . Indeed, when the trial judge interjects often and indulges in an extended questioning of witnesses, even where those questions would be proper if they came from trial counsel, the trial judge’s participation presents significant risks of prejudicial unfairness … . Accordingly, while a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on “the function or appearance of an advocate” … .

Here, the Supreme Court interjected itself into the questioning of witnesses more than 50 times, asking more than 400 questions. The court elicited step-by-step details from several officers regarding their observations and actions during their apprehension of the defendant. In addition, the court elicited and assisted in developing facts damaging to the defense on direct examination of the People’s witnesses, bolstering the witnesses’ credibility. The court also interrupted cross-examination and generally created the impression that it was an advocate on behalf of the People. People v Hinds, 2018 NY Slip Op 02804, Second Dept 4-25-18

​CRIMINAL LAW (JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT))/JUDGES (CRIMINAL LAW, JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT))

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JUDGE DID NOT RULE ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, APPEAL HELD IN ABEYANCE, MATTER REMITTED FOR APPOINTMENT OF NEW COUNSEL AND A RULING ON THE MOTION (SECOND DEPT).

The Second Department held the appeal in abeyance because the defendant’s pro se motion to withdraw his plea was not ruled on. The matter was sent back for a ruling after defendant was assigned new counsel:

… [T]he County Court erred in failing to consider the defendant’s oral pro se application at the resentence proceeding to withdraw his plea of guilty. There is no indication in the record that the court ruled on the defendant’s motion. The court neither granted nor denied it on the record before us. As CPL 470.15(1) serves as a legislative restriction on this Court’s power to review issues not ruled upon by the trial court … , the court’s failure to rule on the motion precludes our review of the issue raised by the defendant’s appeal … . Accordingly, the matter must be remitted … for further proceedings on the defendant’s motion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and thereafter a report to this Court on the motion and whether the defendant established his entitlement to withdrawal of his plea of guilty. People v Rovinsky, 2018 NY Slip Op 02814, Second Dept 4-25-18

CRIMINAL LAW (PLEA, WITHDRAWAL OF, JUDGE DID NOT RULE ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, APPEAL HELD IN ABEYANCE, MATTER REMITTED FOR APPOINTMENT OF NEW COUNSEL AND A RULING ON THE MOTION (SECOND DEPT))/APPEALS (CRIMINAL LAW, FAILURE TO RULE, JUDGE DID NOT RULE ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, APPEAL HELD IN ABEYANCE, MATTER REMITTED FOR APPOINTMENT OF NEW COUNSEL AND A RULING ON THE MOTION (SECOND DEPT))/PLEA, MOTION TO WITHDRAW (CRIMINAL LAW, APPEALS, JUDGE DID NOT RULE ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, APPEAL HELD IN ABEYANCE, MATTER REMITTED FOR APPOINTMENT OF NEW COUNSEL AND A RULING ON THE MOTION (SECOND DEPT))

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JUDGE DID NOT MAKE IT CLEAR THAT DEFENDANT’S SENTENCE INCLUDED A PERIOD OF POSTRELEASE SUPERVISION, PLEA VACATED AND MATTER REMITTED (SECOND DEPT).

The Second Department, vacating defendant’s plea, determined the judge did not make clear the sentence included a period of postrelease supervision:

A trial court has the constitutional duty to advise a defendant, before pleading guilty, of the direct consequences of a plea of guilty, including any period of postrelease supervision… . Although the court is not required to engage in any particular litany when allocuting the defendant, the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant… . Here, the record does not make clear that at the time the defendant entered his plea, he was aware that the terms of the County Court’s promised sentence included a period of postrelease supervision … . Accordingly, the judgment must be reversed, the plea vacated, and the matter remitted… . People v James, 2018 NY Slip Op 02805, Second Dept 4-25-18

​CRIMINAL LAW (SENTENCING, JUDGE DID NOT MAKE IT CLEAR THAT DEFENDANT’S SENTENCE INCLUDED A PERIOD OF POSTRELEASE SUPERVISION, PLEA VACATED AND MATTER REMITTED (SECOND DEPT))/SENTENCING (POSTRELEASE SUPERVISION, JUDGE DID NOT MAKE IT CLEAR THAT DEFENDANT’S SENTENCE INCLUDED A PERIOD OF POSTRELEASE SUPERVISION, PLEA VACATED AND MATTER REMITTED (SECOND DEPT))/POSTRELEASE SUPERVISION (SENTENCING,  JUDGE DID NOT MAKE IT CLEAR THAT DEFENDANT’S SENTENCE INCLUDED A PERIOD OF POSTRELEASE SUPERVISION, PLEA VACATED AND MATTER REMITTED (SECOND DEPT))

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AN ACTION AGAINST A NOT FOR PROFIT CORPORATION FOR BREACH OF A FIDUCIARY DUTY MUST ALLEGE THE FAILURE TO ACT IN GOOD FAITH ON BEHALF OF THE CORPORATION OR ITS MEMBERS, NOT, AS HERE, THE FAILURE TO ACT IN A MEMBER’S PERSONAL BEST INTEREST (SECOND DEPT).

The Second Department noted that an action against a not for profit corporation (here a yacht club) for breach of a fiduciary duty must allege the failure to act in good faith on behalf of the corporation or its members, not the failure to act in good faith in a member’s (plaintiff’s) personal best interest. The board had excluded plaintiff’s domestic partner, who was not a member, from the club:

The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct … . The directors of a not-for-profit corporation like the Club “have the fiduciary obligation to act on behalf of the corporation in good faith and with reasonable care so as to protect and advance its interests” … . Here, however, the complaint did not allege that the Club defendants failed to act in good faith on behalf of the Club or its members’ collective interests, but merely alleged that they failed to act in [plaintiff’s] personal best interest … . Accordingly, the complaint did not state a cause of action to recover damages for breach of fiduciary duty. Nachbar v Cornwall Yacht Club, 2018 NY Slip Op 02795, Second Dept 4-25-18

​CORPORATION LAW (AN ACTION AGAINST A NOT FOR PROFIT CORPORATION FOR BREACH OF A FIDUCIARY DUTY MUST ALLEGE THE FAILURE TO ACT IN GOOD FAITH ON BEHALF OF THE CORPORATION OR ITS MEMBERS, NOT, AS HERE, THE FAILURE TO ACT IN A MEMBER’S PERSONAL BEST INTEREST (SECOND DEPT))/NOT FOR PROFIT CORPORATION (AN ACTION AGAINST A NOT FOR PROFIT CORPORATION FOR BREACH OF A FIDUCIARY DUTY MUST ALLEGE THE FAILURE TO ACT IN GOOD FAITH ON BEHALF OF THE CORPORATION OR ITS MEMBERS, NOT, AS HERE, THE FAILURE TO ACT IN A MEMBER’S PERSONAL BEST INTEREST (SECOND DEPT))/YACHT CLUB (CORPORATION LAW, AN ACTION AGAINST A NOT FOR PROFIT CORPORATION FOR BREACH OF A FIDUCIARY DUTY MUST ALLEGE THE FAILURE TO ACT IN GOOD FAITH ON BEHALF OF THE CORPORATION OR ITS MEMBERS, NOT, AS HERE, THE FAILURE TO ACT IN A MEMBER’S PERSONAL BEST INTEREST (SECOND DEPT)/FIDUCIARY DUTY (CORPORATION LAW, AN ACTION AGAINST A NOT FOR PROFIT CORPORATION FOR BREACH OF A FIDUCIARY DUTY MUST ALLEGE THE FAILURE TO ACT IN GOOD FAITH ON BEHALF OF THE CORPORATION OR ITS MEMBERS, NOT, AS HERE, THE FAILURE TO ACT IN A MEMBER’S PERSONAL BEST INTEREST (SECOND DEPT))

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AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion to defend an action pursuant to CPLR 317 should not have been granted. The affidavit alleging defendant moved its office and failed to notify the secretary of state of the move (and therefore did not receive the summons) was deemed insufficient:

CPLR 317 provides that a person served with a summons, other than by personal delivery to him or her, who does not appear, may be allowed to defend the action within one year after he or she obtains knowledge of entry of the judgment upon a finding of the court that he or she did not personally receive notice of the summons in time to defend and has a potentially meritorious defense … . “The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317” … . Here, the defendant Grand Slam Ventures, LLC (hereinafter Grand Slam), failed to establish that it did not personally receive notice of the summons in time to defend the action. The affidavit of Grand Slam’s managing member averring that Grand Slam moved its office to an unspecified address in 2010, five years before the action was commenced, and failed to update its address on file with the Secretary of State, was not sufficiently detailed or substantiated to establish lack of actual notice of the action … . Moran v Grand Slam Ventures, LLC, 2018 NY Slip Op 02776, Second Dept 4-25-18

​CIVIL PROCEDURE (SERVICE OF PROCESS, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))/SERVICE OF PROCESS (CPLR 317, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))/CPLR 317 (SERVICE OF PROCESS, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))/EVIDENCE (SERVICE OF PROCESS, CPLR 317, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))

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