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THE JUDGE SHOULD NOT HAVE DENIED THE MOTION TO DISMISS THE ARTICLE 78 PETITION/COMPLAINT AND THEN CONSIDERED THE MERITS OF THE PETITION/COMPLAINT WITHOUT ALLOWING RESPONDENT TO INTERPOSE AN ANSWER; THE JUDGE SHOULD NOT HAVE DISMISSED THE PETITION/COMPLAINT ON GROUNDS NOT ADDRESSED BY THE UNDERLYING ADMINSTRATIVE RULING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge could not deny the motion to dismiss the Article 78 petition/complaint and then consider the merits and dismiss the petition/complaint before allowing the respondent to interpose an answer. In addition, the court did not have the authority to consider issues not addressed by the underlying administrative ruling. The action was brought by an owner of shares in a cooperative (petitioner) against the co-op board (respondent) which denied petitioner’s application to convert an office to a residential unit:

… Supreme Court erred by considering the merits of the petition/complaint and, in effect, denying the petition/complaint and dismissing the proceeding/action, after it denied the co-op’s motion, inter alia, pursuant to CPLR 3211(a) to dismiss the petition/complaint. In a CPLR article 78 proceeding, if a motion to dismiss the petition is denied, “the court shall permit the respondent to answer” … . Here, the court should not have decided the merits of the petition seeking relief under CPLR article 78, as the co-op had not yet filed an answer … , and it cannot be said, on this record, “that the facts are so fully presented in the parties’ papers that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer” … .

Moreover, under all the circumstances, including that issue had not been joined and that branch of the co-op’s motion which pursuant to CPLR 3211(a) to dismiss the petition/complaint was not converted into a motion for summary judgment, there was no basis for the Supreme Court, in effect, to dismiss the proceeding/action after concluding that the co-op was not entitled to dismissal of the petition/complaint pursuant CPLR 3211(a) … .

Further, it has “long been the rule that judicial review of an administrative determination is limited to the grounds presented by the agency at the time of its determination” … . A reviewing court is “powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” … . Here, when the Supreme Court, in effect, affirmed the board’s denial of the application, the court improperly “surmise[d] or [*3]speculate[d] as to how or why” the board reached its determination and improperly relied on grounds not mentioned in the denial letter … . Matter of 195 N. Vil. Ave., LLC v 195 Apts., Inc., 2024 NY Slip Op 06037, Second Dept 12-4-24

Practice Point: Once a judge denies a motion to dismiss a petition/complaint, the merits of the petition/complaint should not be considered before the respondent interposes an answer.

Practice Point: A judge reviewing an administrative ruling cannot decide the merits on grounds not addressed by the administrative ruling.

 

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CPLR 3216 IS A FORGIVING STATUTE WHICH ALLOWS BUT DOES NOT REQUIRE DISMISSAL OF THE COMPLAINT FOR FAILURE TO COMPLY WITH A 90-DAY NOTICE; HERE PLAINTIFFS PRESENTED AN ADEQUATE EXCUSE AND DEMONSTRATED THE ACTION HAS MERIT; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint should not have been dismissed on “neglect to proceed” grounds after plaintiffs’ failure to comply with the 90-day notice:

“CPLR 3216 is an extremely forgiving statute which never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … . In opposition to a motion to dismiss pursuant to CPLR 3216, a plaintiff may still avoid dismissal if he or she demonstrates “a justifiable excuse for the failure to timely abide by the 90-day demand, as well as the existence of a potentially meritorious cause of action” … . “Thus, even when all of the statutory preconditions are met, including plaintiff’s failure to comply with the 90-day requirement, plaintiff has yet another opportunity to salvage the action simply by opposing the motion to dismiss with a justifiable excuse” and proof of a potentially meritorious cause of action … .

Here, the plaintiffs’ belief that the action remained stayed in the absence of some affirmative act by the Supreme Court, although erroneous, constituted a justifiable excuse under the circumstances for their failure to respond to the defendant’s 90-day notice. Notably, the 90-day notice was sent only three months after the stay had been lifted, and the record does not otherwise contain evidence of a pattern of persistent neglect or delay in prosecuting the action or an intent to abandon the action … . Furthermore, the plaintiffs established the existence of a potentially meritorious cause of action sounding in strict products liability … . Holness v Gigglesworld Corp., 2024 NY Slip Op 06031, Second Dept 12-4-24

Practice Point: CPLR 3216 is a forgiving statute which allows but does not require the dismissal of a complaint for failure to comply with a 90-day notice. Here plaintiffs presented an adequate excuse and demonstrated a meritorious cause of action. The complaint should not have been dismissed.

 

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PLAINTIFF DID NOT PROVE DEFENDANT OWNER OF DEFENDANT CORPORATION WAS PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT BY SUBSTITUTE SERVICE; EVEN PROPER SUBSTITUTE SERVICE WOULD NOT BE SUFFICIENT TO ACQUIRE PERSONAL JURISDICTION OVER A CORPORATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant owner of defendant corporation (Tatiana Batin) and the corporation (Godess … Spa …) were not properly served with the summons and complaint in this action alleging an employee of defendant corporation sexually abused plaintiff during a massage:

… [P]laintiff failed to demonstrate by a preponderance of the evidence that Batin was properly served with the summons and complaint pursuant to CPLR 308(2). The hearing evidence established that the address at which Batin was purportedly served pursuant to CPLR 308(2) was neither her actual dwelling place nor her usual place of abode as of the purported date of service … . Contrary to the Supreme Court’s determination, “‘[e]ven if a defendant eventually acquires actual notice of the lawsuit, actual notice alone will not sustain the service or subject a person to the court’s jurisdiction when there has not been compliance with prescribed conditions of service'” … .

… [P]laintiff failed to demonstrate by a preponderance of the evidence that Goddess was properly served pursuant to CPLR 311(a)(1), which required delivery of the summons and complaint to “an officer, director, managing or general agent, or . . . any other agent authorized . . . to receive service.” “Personal service on a corporation must be made to one of the persons authorized by the statute to accept service, and an attempt to serve such person by substitute service pursuant to CPLR 308(2) or (4) will be insufficient to acquire jurisdiction over the corporation” … . Here, even assuming, arguendo, that Batin had been properly served pursuant to CPLR 308(2), substituted service upon her pursuant to CPLR 308(2) would be insufficient to acquire personal jurisdiction over Goddess, as CPLR 311(a)(1) requires personal service directly upon a corporate representative … . Flatow v Goddess Sanctuary & Spa Corp., 2024 NY Slip Op 06029, Second Dept 12-4-24

Practice Point: At the hearing plaintiff did not prove defendant owner of defendant corporation was properly served with the summons and complaint by substitute service.

Practice Point: Personal jurisdiction over a corporation cannot be acquired by substitute service.

 

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THE COURT SHOULD NOT HAVE DELEGATED TO MOTHER ITS AUTHORITY TO SET A VISITATION SCHEDULE FOR FATHER; FORENSIC MENTAL HEALTH EVALUATIONS AND COUNSELING MAY BE APPROPRIATE WHERE, AS HERE, A CHILD REFUSES VISITATION WITH A PARENT (FIRST DEPT).

The First Department, reversing Family Court, determined the court improperly delegated to mother the authority to control father’s visitation with the child. The First Department noted that forensic mental health examinations may be appropriate where, as here,  a child refuses to visit with a parent:

Here, Family Court’s order that the father have visitation as agreed between the parties in consultation with the child is an impermissible delegation of its authority to the mother and child, and essentially causes the father to have no visitation at all. Furthermore, despite the father’s lack of sensitivity to the child … we cannot find on this record that there was a showing adequate to justify terminating the father’s contact with the child; that is, that any form of contact under all circumstances would be harmful to the child’s welfare.

We note that Family Court may order forensic mental health evaluations where a visitation petition is pending and where doing so will facilitate the court’s determination (Family Court Act § 251[A]; 22 NYCRR 202.18). “[T]he value of forensic evaluations of the parents and children has long been recognized,” including when a child refuses to visit with a parent … . We further note that a court may place restrictions on visitation that promote the child’s best interests and are not unduly restrictive, including ordering therapeutic or other kinds of supervised visitation … . The court may also make directives as to the amount and type of contact a parent has with the child between visits. Finally, a court may direct a parent to attend counseling as a component of a visitation plan, where doing so promotes the child’s best interests … . Matter of Michael B. v Patricia S., 2024 NY Slip Op 06005, First Dept 12-3-24

Practice Point: Family Court cannot not delegate to a parent its authority to set the other parent’s visitation schedule.

Practice Point: Where a child refuses to visit with a parent, the court may order forensic mental health evaluations and counseling.

 

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ALTHOUGH THE GUARANTEES REQUIRED THAT THE TENANT SURRENDER THE PREMISES IN THE CONDITION DESCRIBED BY THE LEASE, THE GUARANTEES DID NOT INCORPORATE THE LEASE OR EXPRESSLY REQUIRE COMPLIANCE WITH THE SURRENDER TERMS OF THE LEASE; THEREFORE THE TENANT’S FAILURE TO COMPLY WITH THE SURRENDER TERMS OF THE LEASE DID NOT TRIGGER THE GUARANTORS’ OBLIGATIONS (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the language of the guarantees controlled and the guarantors were relieved of responsibility for the tenant’s rent payments when the tenant surrendered the property in compliance with the terms of the guarantees. Although the guarantees referred to surrendering the premises in the condition required by the lease, the guarantees did not incorporate the lease or expressly require compliance with the surrender terms of the lease. Therefore the tenant’s failure to comply with the surrender terms of the lease did not trigger any obligation on the part of the guarantors:

… [T]he guarantees expressly limit defendants’ liability to the terms contained therein, which, as relevant here, only require that tenant surrender the premises in compliance with the surrender provisions set forth in the guarantees. While the guarantees mandated tenant surrender the premises in the condition required by the terms of the lease, they do not incorporate the terms of the underlying lease by reference … or expressly require that tenant’s surrender of the premises be performed pursuant to the terms of the lease … .

Therefore, while tenant was required to obtain written consent of the surrender from plaintiff under the lease, the motion court improperly determined that tenant’s failure to do so precluded the guarantors’ avoidance of liability for unpaid rent after tenant’s surrender … . ROC-Lafayette Assoc., LLC v Sturm, 2024 NY Slip Op 06016, Frist Dept 12-3-24

Practice Point: The language of a guarantee is strictly construed. Here the guarantees required surrender of the premises in the condition described by the lease but did not incorporate the lease or expressly require compliance with the surrender terms of the lease. Therefore the tenant’s failure to comply with the surrender terms of the lease did not trigger the guarantors’ responsibility for the tenant’s rent payments. The tenant had fully complied with the surrender terms in the guarantees.

 

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THERE IS NO NOTICE OF CLAIM REQUIREMENT FOR A TORT ACTION AGAINST A CHARTER SCHOOL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a plaintiff is not required to serve a notice of claim for a tort action against a charter school. Here the infant plaintiff was injured on the playground of a charter school (Evergreen) and Supreme Court dismissed the case because no notice of claim had been served on the school:

… [A]s explained in this Court’s recent opinion and order in A.P. v John W. Lavelle Preparatory Charter Sch. (228 AD3d 138), Education Law § 3813(2) and General Municipal Law § 50-e do not require service of a notice of claim prior to commencement of a tort action against a charter school … . Accordingly, the defendants were not entitled to summary judgment dismissing the complaint insofar as asserted against Evergreen based upon the plaintiffs’ failure to serve Evergreen with a notice of claim … . L.R. v Evergreen Charter Sch., 2024 NY Slip Op 05998, Second Dept 11-27-24

Practice Point: A plaintiff bringing a tort action against a charter school is not required to serve a notice of claim.

 

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A COURT’S POWER TO SEARCH THE RECORD AND AWARD SUMMARY JUDGMENT TO A NONMOVING PARTY IS LIMITED TO THE CAUSES OF ACTION OR ISSUES IN THE MOTIONS BEFORE IT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that a court’s power to search the record and award summary judgment to a nonmoving party is constrained by the causes of action or issues raised in the motions before it:

Although the court has the authority to search the record and grant summary judgment to a nonmoving party (see CPLR 3212[b] …), the “power to search the record and afford a nonmoving party summary relief is not . . . boundless” … . Thus, “a court may search the record and grant summary judgment in favor of a nonmoving party only with respect to a cause of action or issue that is the subject of the motions before the court” … . Here, the court improperly considered an issue that was not the subject of the motion before it … . Mejia v 69 Mamaroneck Rd. Corp., 2024 NY Slip Op 05974, Second Dept 11-27-24

Practice Point: A court cannot search the record and award summary judgment to a nonmoving party on a cause of action or an issue not raised in the motions before it.​

 

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NO APPEAL LIES FROM COUNTY COURT’S DISMISSAL WITHOUT PREJUDICE OF DEFENDANT’S APPLICATION FOR RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA). ​

The Third Department, in a full-fledged opinion by Justice Powers, affirming County Court, determined no appeal lies from the dismissal-without-prejudice of defendant’s application for resentencing under the Domestic Violence Survivors Justice Act (DVSJA):

… [County Court] dismissed the application without prejudice finding that, although she met the step one eligibility criteria for an alternative sentence, “there [was] no [corroborating] evidence nor even allegations presented that [d]efendant was, at the time of the offense, a victim of domestic violence subjected to substantial abuse inflicted by a member of her family or household” as required by CPL 440.47 (2) (c) … . * * *

Where, as here, the Legislature specifically provides for appealability of certain orders but not others, “an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” … . “[S]ince the Legislature failed to provide for an appeal from the [dismissal] of an application for resentencing pursuant to [Penal Law § 60.12 and CPL 440.47 (2) (c)], no appeal was intended” … . “Where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” … . Here, the Legislature intended a different result as to the appealability of orders dismissing without prejudice under step one or step two and an order denying an application on the merits after a hearing under step three, and this Court must give effect to that intention … . Had an appeal from a dismissal without prejudice been intended under step one or step two of the DVSJA, “the [L]egislature could easily have so stated” … . Rather, the language utilized by the Legislature — specifically that dismissal is without prejudice — mandates that the appropriate remedy in this situation is for a defendant to file a new application satisfying the evidentiary requirements of CPL 440.47. Thus, as “[a]ppeals in criminal cases are strictly limited to those authorized by statute,” this appeal is not properly before this Court and must be dismissed … . People v Melissa OO., 2024 NY Slip Op 05920, Third Dept 11-27-24

Practice Point: Criminal appeals are creatures of statutes. Here the DVSJA did not provide for an appeal of the dismissal-without-prejudice of defendant’s application for resentencing. County Court dismissed the application because defendant did not submit evidence she was a victim of domestic abuse.​

 

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ALTHOUGH THE ALLEGATION PLAINTIFF STOPPED SUDDENLY DOES NOT REBUT THE PRESUMPTION THE REAR DRIVER WAS NEGLIGENT IN A REAR-END COLLISION, THE REAR-DRIVER’S ALLEGATION THE PLAINTIFF STOPPED SUDDENLY FOR NO APPARENT REASON CREATES A QUESTION OF FACT ON THE ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants’ claim that plaintiff stopped suddenly for no apparent reason supported defendant’s comparative-negligence affirmative defense in this rear-end collision case:

The Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment dismissing the defendants’ affirmative defense alleging comparative negligence. In support of his motion, the plaintiff submitted his affidavit, in which he averred that his vehicle, after having been stopped at an intersection for approximately 20 to 30 seconds, was struck in the rear by the defendants’ vehicle. Thus, the plaintiff established, prima facie, that he was not at fault in the happening of the accident … . In opposition, however, the defendants raised a triable issue of fact as to whether the plaintiff was comparatively at fault in the happening of the accident because he stopped suddenly for no apparent reason … . Martinez v Colonna, 2024 NY Slip Op 05971, Second Dept 11-27-24

Practice Point: In a rear-end collision, defendant’s allegation plaintiff stopped suddenly does not rebut the presumption defendant was negligent. But defendant’s allegation plaintiff stopped suddenly for no apparent reason raises a question of fact in support of defendant’s comparative-negligence affirmative defense.

 

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SUPREME COURT ERRONEOUSLY IGNORED AN ARTIFICIAL MONUMENT DESCRIBED IN A DEED WHEN ATTEMPTING TO RESOLVE A BOUNDARY DISPUTE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the court, when attempting to resolve a boundary dispute, erred in ignoring an artificial monument, a railroad right-of-way, which was described in a deed:

Here, plaintiffs’ deed includes the only deed call to a natural landmark, as it places the southeast corner of plaintiffs’ property at “a willow tree on the bank of the creek.” Haley and Glasser [the parties’ surveyors] agreed that neither the willow tree nor its former location could be ascertained; similarly, the stake and stones called for in the deed at that location could not be found. Glasser also posited that, as creeks meander over time, the modern location of “the bank of the creek” provided no information as to the appropriate location of the southeast corner, so he disregarded that deed call. Glasser then opted to draw plaintiffs’ property to comport with the exact metes and bounds called for in plaintiffs’ deed, and Supreme Court adopted such methodology and accepted the resulting boundary. Even crediting Glasser’s methodology and his assertions about the meandering creek, as Supreme Court did here, Glasser also admitted that the deed call to the former railroad right-of-way reflects an artificial monument, and that he disregarded such deed call. In adopting Glasser’s methodology and accepting the resulting boundary, the court erred as a matter of law, as it focused on the courses and distances in the deed, in contravention of the long-established hierarchy giving preference to deed calls to artificial monuments … . As Supreme Court failed to consider the railroad right-of-way, we exercise our broad powers to review the record on appeal and make the appropriate determinations. Zwack v Hunt, 2024 NY Slip Op 05926, Third Dept 11-27-24

Practice Point: If an artificial monument, here a railroad right-of-way, is described in a deed, it cannot be ignored in attempting to locate boundaries.

 

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