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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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PLAINTIFF WAS DIRECTED TO LIFT A HEAVY BOX MANUALLY; THE FACT THAT A FORKLIFT WAS AVAILABLE WAS NOT DETERMINATIVE; A WORKER IS EXPECTED TO FOLLOW ORDERS; PLAINTIFFS’ MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS LABOR LAW 240(1) ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion to set aside the defense verdict in this Labor Law 240(1) action should have been granted. The Labor Law 240(1) claim was reinstated and judgment in favor of plaintiffs was granted. Apparently plaintiff was injured when lifting a heavy box after the stage manager directed him to do so. The fact that a forklift was available would only raise an issue of comparative negligence which will not defeat a Labor Law 240(1) claim:

… [A]lthough defendants established that there was an available safety device, i.e., a forklift, and that plaintiff knew that it was available and that he was expected to use it, plaintiffs established that the stage manager instructed plaintiff and his coworkers to lift the box manually. Regardless of whether that stage manager was plaintiff’s actual supervisor, plaintiff was under no obligation to demand safer methods for moving the box … . To expect plaintiff to refuse the stage manager’s demands “overlooks the realities of construction work” … .

“When faced with an . . . instruction to use an inadequate device [or no device at all], many workers would be understandably reticent to object for fear of jeopardizing their employment and their livelihoods” … . Finocchi v Live Nation Inc., 2022 NY Slip Op 02680, Fourth Dept 4-22-22

​Practice Point: Plaintiff was directed to lift a heavy box manually. A worker is expected to follow directions. The fact that a forklift was available was therefore not determinative. Plaintiffs’ motion to set aside the defense verdict in this Labor Law 240(1) action should have been granted.

 

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THE STATUTE OF LIMITATIONS IN THIS FORECLOSURE ACTION STARTED ANEW WHEN DEFENDANT MADE A PARTIAL PAYMENT; DEFENDANT WAIVED THE LACK OF STANDING DEFENSE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the statute of limitations in the foreclosure action had been restarted by partial payment and defendants had waived the argument that the plaintiff did not have standing:

The partial payment exception “requires proof that ‘there was a payment of a portion of an admitted debt, made and accepted as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder’ “… . “If the exception is established, the statute of limitations begins to run anew from the date of the partial payment” … . * * *

“Having failed to interpose an answer which asserted the defense [of lack of standing] or to file a timely pre-answer motion raising that defense,” [defendant] waived his contention on his cross appeal that plaintiff lacked standing to commence the action … . Citibank, N.A. v Gifford, 2022 NY Slip Op 02650, Fourth Dept 4-22-22​

Practice Point: Partial payment of a debt after the statute of limitations has run may start the statute running anew. Failure to raise the lack of standing defense in the answer or a motion to dismiss waives it.

 

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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION IN THIS A-FRAME LADDER-FALL CASE; ALTHOUGH NO DEPOSITIONS HAD BEEN TAKEN, THE DEFENDANT FAILED TO SHOW THE SUMMARY JUDGMENT MOTION WAS PREMATURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this A-frame ladder-fall case. The court noted that the motion for summary judgment was not premature, even though no depositions had been taken:

Plaintiff established prima facie that PPC is liable under Labor Law § 240(1) through plaintiff and his coworker’s affidavits that the unstable eight-foot A-frame ladder, which was missing rubber feet, shifted, causing him to fall … . It was undisputed that PPC was the owner of the property. Plaintiff also established that his work of retrofitting light fixtures was covered under § 240(1) and did not constitute mere maintenance … .

We reject PPC’s argument that plaintiff’s motion was premature (CPLR 3212[f]). The fact that no depositions have been taken does not preclude summary judgment in plaintiff’s favor, as PPC failed to show that discovery might lead to facts that would support its opposition to the motion … . PPC also failed to show that facts essential to its opposition were within plaintiff’s exclusive knowledge … . Its argument that deposition testimony might further illuminate issues raised by the affidavits is unavailing. “The mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion” … . Laporta v PPC Commercial, LLC, 2022 NY Slip Op 02624, First Dept 4-21-22

Practice Point: In order for a pre-discovery summary judgment motion to be deemed premature, the opposing party must show discovery might lead to facts which would support opposition to the motion (not the case here).

 

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ALTHOUGH THE RPAPL 1304 FORECLOSURE NOTICE, TO BE VALID, MUST ACCURATELY STATE THE DEFAULT AMOUNT AND THE LENGTH OF TIME THE BORROWER HAS BEEN IN DEFAULT, THERE WAS NO SHOWING HERE THE STATED AMOUNT WAS INACCURATE; THE BANK DID NOT DEMONSTRATE IT WAS IN POSSESSION OF THE NOTE AT THE TIME THE ACTION WAS COMMENCED AND THEREFORE DID NOT DEMONSTRATE STANDING TO FORECLOSE; THE EVIDENCE OF A MERGER SUBMITTED IN REPLY COULD NOT BE CONSIDERED ON THE STANDING ISSUE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, determined the notice of foreclosure required by RPAPL 1304, which, to be valid, must state the default amount and length of time the borrower has been in default, was not shown to be inaccurate. But the plaintiff bank did not demonstrate standing to foreclose. The evidence that the bank’s standing was based on a merger with the holder of the note was not submitted until the reply, and therefore should not have been considered:

Where an RPAPL 1304 notice fails to reflect information mandated by the statute, including but not limited to the duration and an amount of the default, the statute will not have been strictly complied with and the notice will not be valid … . …

… [T]here is no reason for us to conclude at this juncture that the $64,862.12 default sum set forth in the plaintiff’s RPAPL 1304 notice reflects any actual error. The second paragraph of the plaintiff’s 30-day notice explains that the $64,862.12 amount claimed to be due includes principal, interest, escrow payments, and late charges, which would necessarily raise the gross amount due to a sum that exceeds the amount of the missed principal. * * *

… [T]he plaintiff failed to establish, prima facie, that it had standing to commence the action. The plaintiff is not the original lender. The subject note, though attached to the complaint, bears no indorsement. And further, the plaintiff failed to produce evidence in admissible form as part of its prima facie case that the note was assigned to it prior to the date of commencement of the action … . …

The certificate of merger showing that ESB-LI merged into the plaintiff does not demonstrate that the plaintiff is the holder of the subject note. It was submitted to the Supreme Court for the first time in the plaintiff’s reply papers, and therefore, could not be considered as part of the plaintiff’s initial prima facie proof of standing … . Emigrant Bank v Cohen, 2022 NY Slip Op 02532, Second Dept 4-20-22

Practice Point: To be valid, the RPAPL 1304 notice of foreclosure must accurately state the amount of the default and the length of time the borrower has been in default (there was no showing the amount was inaccurate here). If the bank does not demonstrate it was holding the note at the time the foreclosure was commenced in its moving papers, it has not demonstrated standing to foreclose. Evidence of standing submitted in reply papers should not be considered.

 

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ALTHOUGH THE SECOND ORDER TO SHOW CAUSE SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM WAS FILED TWO DAYS AFTER THE ONE-YEAR-NINETY-DAY LIMITATIONS PERIOD, THE STATUTE OF LIMITATIONS WAS TOLLED FOR THREE DAYS BETWEEN THE FILING AND THE DENIAL OF THE FIRST ORDER TO SHOW CAUSE; THE MEDICAL RECORDS PROVIDED THE MUNICIPALITY WITH NOTICE OF THE ESSENTAL FACTS OF THE CLAIM; THE MOTION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion seeking leave to file a late notice of claim was timely and should have been granted. Although the second order to show cause was submitted two days beyond the one year-and-90-day deadline for suing a municipality. the statute of limitations was tolled for three days between the filing of the first order to show cause and the denial of that first motion:

Since the time to serve a notice of claim upon a public corporation cannot be extended beyond the time limited for commencement of an action against that party … , the court lacks authority to grant a motion for leave to serve a late notice of claim made more than one year and 90 days after the cause of action accrued, unless the statute of limitations has been tolled … . “CPLR 204(a) tolls the statute of limitations while a motion to serve a late notice of claim is pending” … . Where “a court declines to sign an initial order to show cause for leave to serve a late notice of claim on procedural grounds, but a subsequent application for the same relief is granted, the period of time in which the earlier application [was] pending [is also] excluded from the limitations period” … . …

… [T]he medical records provided the defendants with actual knowledge of the essential facts constituting the plaintiff’s claim. The records evinced that a stroke code was called shortly after the plaintiff’s presentation to the hospital, that, based on an assessment of her condition, it was decided that a tissue plasminogen activator was not needed, and that it was later determined that the plaintiff had suffered a stroke but that it was too late to administer that drug.

The plaintiff further made an initial showing that the defendants would not suffer any prejudice by the delay in serving the notice of claim, and the defendants failed to rebut the showing with particularized indicia of prejudice … .

Finally, where, as here, there is actual knowledge and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim … . Ahmed v New York City Health & Hosp. Corp., 2022 NY Slip Op 02521, Second Dept 4-20-22

Practice Point: The one-year-ninety-day statute of limitations for suing a municipality is tolled for the time between submitting an order to show cause seeking leave to file a late notice of claim and the judge’s refusal to sign the order to show cause. Here, although the second order to show cause seeking leave to file a late notice was submitted two days after the one-year-ninety-day statute had run, it was timely because of the three-day toll between the filing and denial of first order to show cause. Here the medical records sufficiently notified the municipality of the essential facts of the claim, the municipality did not demonstrate prejudice and there was no need for a reasonable excuse because there was actual knowledge and no prejudice.

 

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