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PLAINTIFF, A FLORIDA RESIDENT, ALLEGEDLY WAS ABUSED BY A PRIEST IN FLORIDA IN 1983 AND 1984; PLAINTIFF SUED THE DIOCESE OF BROOKLYN BECAUSE THE PRIEST WHO ALLEGEDLY ABUSED HIM WAS TRANSFERRED FROM BROOKLYN TO FLORIDA, ALLEGEDLY BECAUSE OF SEXUAL MISCONDUCT WITH CHILDREN; THE CHILD VICTIMS ACT DOES NOT APPLY TO THE NONRESIDENT PLAINTIFF AND THE BORROWING STATUTE DOES APPLY; THEREFORE FLORIDA’S FOUR-YEAR STATUTE OF LIMITATIONS RENDERED PLAINTIFF’S ACTION TIME-BARRED (SECOND DEPT). ​

The Second Department, in a full-fledged opinion, in a matter of first impression, by Justice Christopher, determined the New York Child Victims Act, CPLR 214-g, is not available to nonresident plaintiffs where the alleged acts of abuse occurred outside New York. CPLR 214-g extends the statute of limitations to allow lawsuits by plaintiffs who were children at the time of the abuse. The Second Department further determined CPLR 214-g does not preclude the application of the borrowing statute, CPLR 202. Here the plaintiff, a Florida resident, alleged the acts of abuse were committed in Florida in 1983 and 1984 by Father William Authenrieth. Plaintiff alleged Father Authenrieth was transferred from the Diocese of Brooklyn to the Florida Diocese of Orlando (Florida) in 1973 because of his sexual misconduct with children. Hence the suit by the Florida plaintiff against the Diocese of Brooklyn. Because CPLR 214-g does not apply and CPLR 202, the borrowing statute, requires the application of Florida’s four-year statute of limitations, plaintiff’s suit is time-barred:

… [U]nder the circumstances of this case, CPLR 214-g does not apply extraterritorially, where the plaintiff is a nonresident, and the alleged acts of sexual abuse were perpetrated by a nonresident outside of New York … . * * *

… [U]nder these circumstances the borrowing statute would apply, and since the plaintiff’s action is time-barred in Florida, it would also be time-barred in New York, unless, as argued by the plaintiff, CPLR 214-g precludes the application of CPLR 202. … We answer that question in the negative. Therefore, even if CPLR 214-g applied extraterritorially, the plaintiff’s action would be dismissed as time-barred pursuant to CPLR 202. S.H. v Diocese of Brooklyn, 2022 NY Slip Op 02982, Second Dept 5-4-22

Practice Point: The Child Victims Act, which extends the statute of limitations for plaintiffs who were abused as children, does not apply to this Florida plaintiff who was allegedly abused in Florida. Plaintiff sued the Diocese of Brooklyn under the theory that the priest who abused him in Florida in 1983 and 1984 was transferred to Florida from Brooklyn, allegedly because of sexual misconduct with children. New York’s borrowing statute applied rendering the action time-barred under Florida’s four-year statute of limitations.

 

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TO FACILITATE APPELLATE REVIEW THE JUDGE WHO AWARDED PLAINTIFFS SUMMARY JUDGMENT, ATTORNEY’S FEES AND COSTS SHOULD HAVE WRITTEN A DECISION EXPLAINING THE BURDENS OF PROOF AND REASONING; ISSUING ORDERS WITHOUT AN EXPLANATORY DECISION IS AN “UNACCEPTABLE PRACTICE;” PLAINTIFFS DID NOT SHOW THEIR INTERPRETATION OF THE CONTRACT WAS THE ONLY REASONABLE ONE; THE FRAUDULENT MISREPRESENTATION CAUSE OF ACTION CANNOT BE BASED UPON AN ALLEGED INTENT TO BREACH THE CONTRACT AND WAS NOT SUFFICIENTLY PLED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) to facilitate appellate review, the court should have written a decision explaining the burdens of proof and its reasoning in granting plaintiffs summary judgment and awarding attorney’s fees and costs; (2)  the plaintiffs did not demonstrate the contract was unambiguous and therefore were not entitled to summary judgment on the breach of contract claims; and (3) summary judgment should not have been awarded on plaintiffs’ fraudulent misrepresentation cause of action. A fraudulent misrepresentation cause of action cannot be based upon an alleged intent to breach a contract:

Although the court granted plaintiffs’ motion insofar as it sought summary judgment, it failed to address the burdens of proof or any specific cause of action. In addition, the court awarded costs and attorneys’ fees without providing the basis therefor. As noted, this case involved a motion for summary judgment and for costs, attorneys’ fees, and sanctions, and the court chose not to write. This is an unacceptable practice … .. To maximize effective appellate review, we must remind our colleagues in the trial courts to provide their reasoning instead of simply issuing orders.  …

… [P]laintiffs did not meet their initial burden on those parts of the motion seeking summary judgment … inasmuch as plaintiffs failed to submit sufficient evidence to establish that their interpretation of the relevant contracts is the only reasonable interpretation thereof. …

… “[F]ar from being collateral to the contract, the purported misrepresentation was directly related to a specific provision of the contract” … .. In addition, CPLR 3016 (b) provides that, “[w]here a cause of action . . . is based upon . . . fraud, the circumstances constituting the wrong shall be stated in detail,” and we conclude that the cause of action here failed to satisfy that requirement … . Wilsey v 7203 Rawson Rd., LLC, 2022 NY Slip Op 02905, Fourth Dept 4-29-22

Practice Point: Here not only was the judge wrong to award plaintiffs summary judgment, attorney’s fees and costs on the breach of contract and fraudulent misrepresentation causes of act, but the judge made appellate review difficult by issuing orders without a decision explaining the burdens of proof and reasoning, characterized as an “unacceptable practice” by the Fourth Department.

 

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PLAINTIFFS HAD STANDING TO CHALLENGE THE TRUST SET UP BY DECEDENT; PLAINITIFFS DID NOT STATE A CAUSE OF ACTION FOR FRAUD BECAUSE IT WAS ALLEGED THE DECEDENT (A THIRD PARTY), NOT THE PLAINTIFFS, RELIED ON THE ALLEGEDLY FALSE STATEMENT; THE COMPLAINT STATED A CAUSE OF ACTION ALLEGING DEFENDANTS EXERCISED UNDUE INFLUENCE OVER THE DECEDENT WHICH AFFECTED THE DECEDENT’S ESTATE-RELATED DECISIONS (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined: (1) the complaint did not state a cause of action for fraud because it was alleged a third-party (the decedent), not plaintiffs, relied upon the alleged false statement; (2) the complaint stated a cause of action for “undue influence” on the decedent by the defendants; and (3), the plaintiffs had standing to challenge the validity of the trust set up by the decedent. It was alleged that the decedent made decisions about the disposition of his assets based upon the false assertion that his daughter-in-law killed his son:

Here, as the grandchildren were given specific bequests in decedent’s … last will and testament, and the instrument creating the trust … reserved to decedent a limited power of appointment to name his grandchildren as possible beneficiaries of trust assets upon his death, the grandchildren are interested persons within the meaning of the SCPA, so plaintiffs have capacity to challenge the validity of the trust … . …

… [P]laintiffs cannot state a cause of action for fraud because the Court of Appeals has expressly declined “to extend the reliance element of fraud to include a claim based on the reliance of a third party” … . … As to plaintiffs’ cause of action asserting undue influence, plaintiffs’ broadly-stated theory is that, upon the death of the deceased son, the previously absent defendants drove a wedge between the daughter-in-law and decedent, took control of decedent’s caretaking as he aged and grew infirm and then moved him into defendants’ home where decedent created the trust and conveyed into it his assets to benefit defendants and the son upon his death. … [A]ffording the plaintiffs the benefit of every favorable inference … , we find that such allegations are enough to assert a cause of action for undue influence … . Constantine v Lutz, 2022 NY Slip Op 02842, Third Dept 4-28-22

Practice Point: To state a cause of action for fraud, it must be alleged the plaintiff(s), not a third party (the decedent in this case), relied on the alleged false statement. Here plaintiffs alleged the decedent made estate-related decisions based upon the false statement that his daughter-in-law killed his son. Because of the absence of the “reliance” element of fraud, that cause of action was properly dismissed.

 

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THE APPELLATE DIVISION INITIALLY REVERSED SUPREME COURT AND HELD PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) LADDER-FALL CASE; THERE WAS A DEFENSE VERDICT AFTER TRIAL; THE ORDER DENYING SUMMARY JUDGMENT IS NOT APPEALABLE TO THE COURT OF APPEALS (CT APP).

The Court of Appeals determined the Appellate Division order denying summary judgment in this Labor Law 240(1) ladder-fall case did not “affect the final judgment” after trial. Therefore the order was not appealable to the Court of Appeals:

The 2018 Appellate Division order may be reviewed on appeal from a final paper only if, pursuant to CPLR 5501 (a), the nonfinal order “necessarily affects” the final judgment. “It is difficult to distill a rule of general applicability regarding the ‘necessarily affects’ requirement” … and “[w]e have never attempted, and we do not now attempt, a generally applicable definition” … . That said, to determine whether a nonfinal order “necessarily affects” the final judgment, in cases where the prior order “str[uck] at the foundation on which the final judgment was predicated” we have inquired whether “reversal would inescapably have led to a vacatur of the judgment” … . This is not such a case. In other cases, we have asked whether the nonfinal order “necessarily removed [a] legal issue from the case” so that “there was no further opportunity during the litigation to raise the question decided by the prior non-final order” … .

In resolving plaintiff’s summary judgment motion, the Appellate Division held that factual questions existed as to whether a statutory violation occurred and as to proximate cause, or more specifically as to whether plaintiff’s own acts or omissions were the sole proximate cause of the accident … . That nonfinal order did not remove any issues from the case. Rather, the question of proximate cause and liability was left undecided. The parties had further opportunity to litigate those issues and in fact did so during the jury trial. Bonczar v American Multi-Cinema, Inc., 2022 NY Slip Op 02835, CtApp 4-28-22

Practice Point: A nonfinal order is not appealable to the Court of Appeals unless it “affects the final judgment.” If questions of fact remain after the nonfinal order is issued, the order does not “affect the final judgment” and is not appealable. Here the nonfinal order was the Appellate Division’s denial of plaintiff’s summary judgment motion. The order left open factual questions resolved at trial. Therefore the order did not “affect the final judgment.”

 

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THE CURRENT GOVERNOR AND LIEUTENANT GOVERNOR, AS WELL AS FORMER GOVERNOR CUOMO, ARE NECESSARY PARTIES IN THIS SUIT PURSUANT TO THE STATE FINANCE LAW CHALLENGING THE CONSTITUTIONALITY OF THE SALARY INCREASES FOR THOSE PARTIES (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the action under the State Finance Law challenging the constitutionality of the salary increases for governor and lieutenant governor should have included the current Governor and Lieutenant Governor, as well as former Governor Cuomo, as necessary parties:

CPLR 1001 (a) provides that “[p]ersons . . . who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants.” When such a person “has not been made a party and is subject to the jurisdiction of the court, the court shall order him [or her] summoned” … . This requirement protects the right to due process by providing such a person the opportunity to be heard before his or her interests are adversely affected … .

… [T]he interests of the Governor and Lieutenant Governor are not necessarily being represented or protected by defendant and his counsel — the Attorney General, who would also typically represent those other state officials … ;. We cannot determine whether the Governor and Lieutenant Governor will necessarily support and integrate defendant’s argument that the resolution is constitutional; indeed, they may argue against its constitutionality, to establish precedent that would prevent a potential future intra-term diminution of their salaries. Accordingly, and as the Governor and Lieutenant Governor are subject to its jurisdiction, Supreme Court should have granted defendant’s request that those officers be joined as necessary parties and ordered them summoned (see CPLR 1001 [b] …). Arrigo v DiNapoli, 2022 NY Slip Op 02845, Third Dept 4-28-22

Practice Point: Pursuant to CPLR 1001, parties within the jurisdiction of the court must be added as necessary parties if the ultimate ruling could have an adverse effect on them.

 

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THE BANK DID NOT OFFER A REASONABLE EXCUSE FOR FAILURE TO TAKE PROCEEDINGS FOR A DEFAULT JUDGMENT WITHIN A YEAR AND DID NOT SUBMIT AN ADEQUATE LOST NOTE AFFIDAVIT; THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED; THE ACTION IS DEEMED ABANDONED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not submit sufficient evidence to support a late motion for default judgment against the borrower. The bank did not offer a reasonable excuse for failure to take proceedings for a default judgment within a year, and did not submit a sufficient lost note affidavit. The Second Department deemed the action abandoned pursuant to CPLR 3215:

… [T]he plaintiff failed to proffer a reasonable excuse for its failure to take proceedings for the entry of a judgment within one year after the action was released from the foreclosure settlement part … .

Further, a plaintiff moving for leave to enter default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant’s failure to answer or appear … . Pursuant to UCC 3-804, “[t]he owner of an instrument which is lost, whether by destruction, theft or otherwise, may maintain an action in his [or her] own name and recover from any party liable thereon upon due proof of his [or her] ownership, the facts which prevent his [or her] production of the instrument and its terms.” Here, the plaintiff failed to set forth the facts that prevented the production of the original note … . The lost note affidavit submitted by the plaintiff in support of its motion, inter alia, for leave to enter a default judgment did not identify who conducted the search for the lost note or explain when or how the note was lost … . LaSalle Bank N.A. v Carlton, 2022 NY Slip Op 02785, Second Dept 4-27-22

Practice Point: If the bank does not present an adequate excuse for failing to take proceedings for a default judgment in a foreclosure action within one year, the action will be deemed abandoned pursuant to CPLR 3215.

 

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THE SCHOOL PRINCIPAL HAD THE AUTHORITY TO MAKE A PROBABLE CAUSE DETERMINATION IN THIS DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A TENURED TEACHER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the NYC Department of Education’s (DOE’s) motion to dismiss the petition to vacate the arbitrator’s award should have been granted. The arbitrator determined the petitioner, a tenured teacher, was properly charged with incompetence, misconduct and neglect of duty and termination the teacher’s employment was appropriate. The teacher petitioner argued unsuccessfully that the initial probable cause determination must be made by the school board, not, as was the case here, the school principal:

… [T]he absence of a vote on probable cause by the “employing board” (Education Law § 3020-a[2]), did not deprive the hearing officer of the jurisdictional authority to hear and determine the underlying disciplinary charges. Rather, … the Chancellor was vested with the authority “[t]o exercise all of the duties and responsibilities of the employing board as set forth in [Education Law § 3020-a]” … , and with the authority to “delegate the exercise of all such duties and responsibilities” … . Matter of Cardinale v New York City Dept. of Educ., 2022 NY Slip Op 02791, Second Dept 4-27-22

Practice Point: In New York City, a school principal has the authority to determine whether there is probable cause to charge a tenured teacher with, for example, incompetence, misconduct and neglect of duty.

 

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THE VENUE DESIGNATION IN THE NURSING HOME ADMISSION AGREEMENT, SIGNED BY PLAINTIFF’S DECEDENT’S WIFE, WAS NOT ENFORCEABLE BY THE NURSING HOME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the nursing home admission agreement, signed by plaintiff’s decedent’s wife (Anderson), was not a sufficient basis for changing the venue of this action against the nursing home from plaintiff’s residence, Bronx County, to the venue designated in the admission agreement, Westchester County. The decision is comprehensive and addresses several substantive issues (agency, rights of non-signatories, for example) not summarized here:

Although the defendant submitted a copy of the admission agreement, it did not provide an affidavit from anyone who signed the agreement, who was present when it was signed, or who otherwise claimed to have personal knowledge of that agreement. The admission agreement was not signed by the plaintiff or the decedent, and it did not identify or include the names of the plaintiff or the decedent anywhere on that document. * * *

An admission agreement may be enforced against an individual where it was properly executed by that individual’s “designated representative” … . As relevant here, “[d]esignated representative shall mean the individual or individuals designated in accordance with [10 NYCRR 415.2(f)] to receive information and to assist and/or act in behalf of a particular resident to the extent permitted by State law” … . The subdivision lists three ways in which a designation may occur … .

As the plaintiff correctly contends, the defendant failed to establish that Anderson was properly designated in any of the three ways authorized by applicable law … . Sherrod v Mount Sinai St. Luke’s, 2022 NY Slip Op 02826, Second Dept 4-27-22

Practice Point: In this case, the venue designation in the nursing home admission agreement, signed by plaintiff’s decedent’s wife, could not be enforced by the nursing home.

 

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PLAINTIFF’S STATE AND CITY HUMAN RIGHTS LAW CAUSES OF ACTION PROPERLY DISMISSED PURSUANT TO THE DOCTRINE OF COLLATERAL ESTOPPEL; THE IDENTICAL CLAIMS UNDER FEDERAL LAW WERE DISMISSED IN FEDERAL COURT ON SUMMARY JUDGMENT; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, over a two-justice dissent, determined plaintiff was collaterally estopped from asserting her NYC Human Rights Law causes of act after the dismissal of identical claims made under federal law in federal court. The First Department acknowledged the NYC Human Rights Law causes of action must be analyzed separately and independently from the federal and state human rights law causes of action, but held that collateral estoppel was proper under the facts:

In light of the particular express facts that the federal courts found were conclusively demonstrated by the record on the summary judgment motions before the district court; the nature of the allegations underlying plaintiff’s State and City Human Rights Law claims in this action and the manner in which plaintiff has litigated those claims; and the relevant collateral estoppel case law … , we conclude that, even affording the City Human Rights Law claims the liberal analysis to which they are entitled, plaintiff’s claims under both the State and City Human Rights Laws were properly dismissed under the doctrine of collateral estoppel … . …

In concluding that plaintiff failed to allege discriminatory intent, the motion court correctly held that collateral estoppel applied to facts identical to those necessarily found by the district court to be undisputed when it granted summary judgment dismissing plaintiff’s federal employment discrimination claims ..  …

… [I]n dismissing the discrimination and hostile work environment claims against NYU, the motion court correctly relied on the district court’s finding that defendants Joseph Thometz and Eve Meltzer (the individual defendants) were not supervisors or managers, and thus that [defendant] NYU, as plaintiff’s employer, was not strictly liable for their conduct … . …

… [T]he federal courts found that NYU provided a legitimate, nonretaliatory reason for plaintiff’s termination: plaintiff breached a protective order issued by the district court by sending unsolicited emails to a potential witness in the federal action. Moreover, the federal courts found that plaintiff failed to present evidence that NYU’s reason was pretextual. … . Russell v New York Univ., 2022 NY Slip Op 02765, First Dept 4-26-22

​Practice Point: Although NYC Human Rights Law violations must be analyzed separately and independently from federal and state law violations, here the dismissal of the federal claims in federal court required the dismissal of the state and city claims pursuant to the doctrine of collateral estoppel.

 

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PLAINTIFF AND DEFENDANT WERE HUNTING TURKEY WHEN DEFENDANT SHOT PLAINTIFF; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON LIABILITY SHOULD HAVE BEEN GRANTED, NOTWITHSTANDING POSSIBLE COMPARATIVE-NEGLIGENCE ISSUES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this hunting accident case should have been granted. Defendant, like the plaintiff, was hunting turkey when he shot plaintiff and his friend. Defendant subsequently pled guilty to attempted assault:

We agree with plaintiffs that they established as a matter of law that defendant was negligent by failing to exercise the degree of care that a reasonable person “of ordinary prudence would exercise under the circumstances, commensurate with the known dangers and risks reasonably to be foreseen” … , and that defendant failed to raise an issue of fact in response. We also agree with plaintiffs that triable issues of fact regarding plaintiff’s comparative negligence do not preclude an award of summary judgment in plaintiffs’ favor on the issue of defendant’s negligence … . Pachan v Brown, 2022 NY Slip Op 02684, Fourth Dept 4-22-22

Practice Point: Comparative negligence is no longer a bar to summary judgment on liability. Comparative negligence is relevant only to damages.

 

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