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A DEFENDANT IN A FORECLOSURE ACTION WHICH HAS “FAILED TO APPEAR” IS NOT ENTITLED TO NOTICE OF A MOTION TO CONFIRM A REFEREE’S REPORT, NOTWITHSTANDING DICTA IN PRIOR 2ND DEPARTMENT RULINGS; A DETAILED AND COMPREHENSIVE DISCUSSION OF THE NOTICE REQUIREMENTS WHERE A DEFENDANT IN A FORECLOSURE ACTION HAS DEFAULTED (SECOND DEPT).

The Second Department, in a comprehensive discussion of the requirements for seeking a default judgment, including the meaning of “failure to appear,” determined the party which failed to appear in this foreclosure action was not entitled to notice of a motion to confirm a referee’s report. The extensive and detailed explanation of the applicable law was deemed necessary to clear up dicta in Second Department decisions which indicated such notice was required:

CPLR 3215(g)(1) applies “whenever application is made to the court or to the clerk.” By its plain language, it merely requires the plaintiff to provide “notice of the time and place of the application” for a default judgment … , which application must be held in a location authorized by CPLR 3215(e), and supported by, among other things, “proof of . . . the amount due” … . … [T]he purpose of the notice is to provide a defaulted defendant with the “opportunity to challenge the amount of damages sought by the plaintiffs” … . Contrary to [defendant’s] contention, CPLR 3215(g)(1) does not, once triggered, require a plaintiff to provide five days’ notice of every subsequent motion or application in the action … .

The 2017 motion was not an “application” for a default judgment within the meaning of CPLR 3215(b). Rather, the 2017 motion sought confirmation of the referee’s report and entry of a judgment of foreclosure and sale, relief predicated on CPLR 4403 … . Since the 2017 motion was not an “application” within the meaning of CPLR 3215(b), the notice specified in CPLR 3215(g)(1) was inapplicable to the 2017 motion, and notice of that motion was instead governed by the general notice provisions applicable to all motions (see CPLR 2103[e]). As already observed, that section merely requires that notice be served on “every other party who has appeared” … . Since, at the time of the 2017 motion, [defendant’s predecessor] still had not made any appearance in the action, it was not, without more, entitled to notice of that motion … . 21st Mtge. Corp. v Raghu, 2021 NY Slip Op 05016, Second Dept 9-22-21

 

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THE FINDING BY THE BOARD OF ZONING APPEALS WAS NEVER FILED AS REQUIRED BY THE GENERAL CITY LAW; THEREFORE THE 60-DAY TIME LIMIT FOR CONTESTING THE RULING NEVER STARTED TO RUN (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the 60-day statute of limitation for contesting a ruling of the board of zoning appeals (BZA) never started to run because the ZBA’s finding was never filed:

General City Law § 81-a (5) (a) imposes an affirmative duty on administrative officials charged with the enforcement of a local zoning law or ordinance in mandating that “[e]ach order, requirement, decision, interpretation or determination . . . shall be filed. . . within five business days from the day it is rendered, and shall be a public record” … . General City Law § 81-a (5) (b) states that “[a]n appeal shall be taken within [60] days after the filingof any order, requirement, decision, interpretation or determination of the administrative official, by filing with such administrative official and with the board of appeals a notice of appeal, specifying the grounds thereof and the relief sought” (… see Code of the City of Ithaca § 325-40 [B] [1] [e]). Upon review of the record, it is impossible to ascertain exactly when the Planning Board determined that variances were not necessary. However, it is undisputed that no determination of such finding was ever filed. As General City Law § 81-a (5) (b) plainly provides that the time period for commencing a review proceeding is to be measured from the filing, and there was no filing, the time period for the administrative appeal never began to run … . Matter of Grout v Visum Dev. Group LLC, 2021 NY Slip Op 04997, Third Dept 9-16-21

 

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GARAGEKEEPER’S LIEN DECLARED NULL AND VOID UNDER THE DOCTRINE OF LACHES (THIRD DEPT).

The Third Department determined that the garagekeeper’s lien action was properly declared null and void under the doctrine of laches. The respondent did not start the Lien Law action for six months, during which storage charges of $55-a-day were accruing:

“A garagekeeper’s lien is authorized by Lien Law § 184 (1) and the purpose of this statute is to provide the repair shop with security for the labor and material it expends which enhance the value of the vehicle” … . “The statute is in derogation of common law and thus is strictly construed” … . “Laches is defined as an equitable bar, based on a lengthy neglect or omission to assert a right and the resulting prejudice to an adverse party” … . We are unpersuaded by respondent’s claim that the doctrine of laches is inapplicable to the circumstances of this case as the claim is purely statutory and does not lie in equity. Petitioner, by posting a $15,000 bond as collateral for respondent’s claim, has attempted in good faith to discharge the lien. We note that this action to enforce the lien is equitable, not legal, in nature … . … [I]t is clear from the record that petitioner was unaware of the existence of the lien until more than six months after storage charges began to accrue, and it was prejudiced by respondent’s assertion of such claim after such a prolonged period of delay. “It is well settled that where neglect in promptly asserting a claim for relief causes prejudice to one’s adversary, such neglect operates as a bar to a remedy and is a basis for asserting the defense of laches” … . Matter of Santander Consumer USA, Inc. v Steve Jayz Automotive Inc., 2021 NY Slip Op 04998, Third Dept 9-16-21

 

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THE LABOR-LAW CONSTRUCTION-ACCIDENT ACTION WAS PRECLUDED BY THE RESULT OF THE PRIOR WORKERS’ COMPENSATION HEARING UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL; THE MOTION TO AMEND THE ANSWER TO ADD THE COLLATERAL ESTOPPEL DEFENSE WAS PROPERLY GRANTED, EVEN THOUGH THE MOTION WAS MADE AFTER THE NOTE OF ISSUE WAS FILED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, determined the Labor Law 240(1), 241(6) and 200 action was precluded by the doctrine of collateral estoppel based upon the result of a Workers’ Compensation hearing. Plaintiff alleged a hoist at a construction site malfunctioned causing knee injuries. Plaintiff was represented by an attorney at the Workers’ Compensation hearing and witnesses were cross-examined. The Administrative Law Judge (ALJ) concluded that the incident (hoist malfunction) never occurred. In addition, the Second Department held that the motion to amend the answer to add the collateral estoppel defense, made after the note of issue was filed, was properly granted. Plaintiff could not have been surprised by the defense and suffered no prejudice from the late amendment:

Determinations rendered by quasi-judicial administrative agencies may qualify for collateral estoppel effect  so long as the requirements of the doctrine [identity of issues and a full and fair opportunity to contest the controlling decision] are satisfied. Determinations of the Workers’ Compensation Board are potentially within the scope of the doctrine … . * * *

… [T]he defendants met their burden of establishing, prima facie, their entitlement to judgment as a matter of law on the ground that the plaintiff’s action was barred by the doctrine of collateral estoppel. The ALJ’s findings, as affirmed by the Workers’ Compensation Board, established as a matter of fact that the accident claimed by the plaintiff did not occur, or did not occur in the described manner as would cause injury. That finding is material and, in fact, pivotal, to the core viability of any personal injury action that the plaintiff could pursue in a court at law regarding the same incident … . Lennon v 56th & Park(NY) Owner, LLC, 2021 NY Slip Op 04972, Second Dept 9-15-21

 

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GENERALLY, TO VACATE A JUDGMENT BY CONFESSION, A PLENARY ACTION, NOT A MOTION TO VACATE, MUST BE BROUGHT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, in order to vacate a judgment by confession, a plenary action must be commenced. Here the motion to vacate was not the proper vehicle:

“Generally, a person seeking to vacate a judgment entered upon the filing of an affidavit of confession of judgment must commence a separate plenary action for that relief” … . Here, the grounds for vacatur relied upon by the defendant do not fall within an exception to that general rule … . Accordingly, the Supreme Court should have denied the defendant’s motion without prejudice to his right to commence a plenary action to vacate the judgment by confession. Funding Metrics, LLC v D & V Hospitality, Inc., 2021 NY Slip Op 04964, Second Dept 9-15-21

 

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THE NOTICE OF APPEAL WAS TIMELY SERVED BUT WAS NOT TIMELY FILED WITH THE CLERK OF THE COURT; THE 3RD DEPARTMENT DISMISSED THE APPEAL; THE APPELLATE COURT HAS THE DISCRETION TO ALLOW A LATE FILING; MATTER REMITTED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined that, although the pro se inmate-petitioner did not timely file the notice of appeal, the notice was timely served and the Third Department could have exercised discretion to allow a late filing. The matter was remitted because the Third Department’s decision was silent about the reasons for dismissing the appeal:

… [P]etitioner argues that the Appellate Division should have applied a pro se inmate “mailbox rule” to deem the notice of appeal timely filed upon delivery to prison authorities for forwarding to the appropriate court.

CPLR 5515 (1) provides that an appeal is taken when, in addition to being duly served, the notice of appeal is “fil[ed] . . . in the office where the judgment or order of the court of original instance is entered.” The CPLR further clarifies that “papers required to be filed shall be filed with the clerk of the court in which the action is triable” (CPLR 2102 [a]). Thus, by its express terms, the CPLR indicates that filing occurs when the clerk’s office receives the notice of appeal. Indeed, “filing” has long been understood to occur only upon actual receipt by the appropriate court clerk … . A “mailbox rule” for filing would also contravene the clear distinctions between filing and service drawn by the legislature inasmuch as the CPLR directs that, unlike filing, “service by mail shall be complete upon mailing” (CPLR 2103 [b] [2]). .. * * *

… [T]he legislature has given courts the authority to excuse untimely filing under certain circumstances. CPLR 5520 provides that, “[i]f an appellant either serves or files a timely notice of appeal . . . , but neglects through mistake or excusable neglect to do another required act within the time limited, the court from or to which the appeal is taken . . . may grant an extension of time for curing the omission” (CPLR 5520 [a]). Matter of Miller v Annucci, 2021 NY Slip Op 04954, CtApp 9-9-21

 

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THE DOCTRINE OF LACHES DID NOT APPLY TO DEFENDANT’S MOTION TO AMEND THE DRO TO SPECIFY PLAINTIFF WAS NOT ENTITLED TO A SHARE OF DEFENDANT’S DISABILITY RETIREMENT BENEFITS; THE TWO-JUSTICE DISSENT WOULD HAVE APPLIED THE LACHES DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the doctrine of laches did not apply and defendant could recoup a lump sum disability retirement payment made to plaintiff. Plaintiff and defendant were divorced and a stipulation provided plaintiff would receive her marital share of defendant’s retirement benefits under the New York State and Local Retirement System (NYSLRS). A Domestic Relations Order (DRO) was filed in 2010. In 2011 the NYSLRS approved the DRO with respect to ordinary retirement but was silent on disability retirement. In 2019 the NYSLRS approved defendant’s 2016 disability retirement application and a retroactive lump sum payment was made to defendant and plaintiff. In 2019 defendant moved to amend the DRO to specify plaintiff was not entitled to the disability retirement benefits. Supreme Court denied the motion applying the doctrine of laches. The dissent apparently agreed the laches doctrine was properly applied:

“Laches is defined as such neglect or omission to assert a right as, taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity . . . The essential element of this equitable defense is delay prejudicial to the opposing party” … . “The mere lapse of time, without a showing of prejudice, will not sustain a defense of laches” … .

Here, the court found that defendant should have sought to amend the DRO in 2011, after receiving the letter from NYSLRS. But at that time, defendant was not eligible for and had not applied for a disability retirement. When his disability retirement application was approved in February 2019 and defendant became aware that plaintiff’s distribution would accordingly increase, he promptly moved to amend the DRO. Moreover, even if there was a delay here, plaintiff utterly failed to make a showing of prejudice … . Taberski v Taberski, 2021 NY Slip Op 04804, Fourth Dept 8-26-21

 

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A SCHOOL FACULTY MEMBER WHO YELLED “BE QUIET” INTO A MICROPHONE, THE LOUDNESS OF WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S CHILD, DID NOT BREACH A DUTY OWED TO THE STUDENT; THE SCHOOL DISTRICT’S MOTION FOR A DIRECTED VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant school district was entitled to a directed verdict in this action which alleged plaintiff’s daughter was injured when a faculty member used a microphone to tell the students to be quiet. It was alleged loudness of the command caused injury:

In order to prevail on a negligence claim, ” ‘a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom’ “… . On appeal, defendant disputes the element of breach only. To that end, the standard to which defendant and its employees are held is “that degree of care which a reasonable [parent] of ordinary prudence would exercise under the circumstances, commensurate with the apparent risk involved” … . Further, “[w]hen a duty exists, nonliability in a particular case may be justified on the basis that an injury is not foreseeable” … .

Although the proof at trial reflected that a school faculty member had “yelled” two words into a microphone and “was really loud” in doing so, there was no proof presented that those words were spoken in a manner or at a volume that was unreasonable, foreseeably unsafe, or in violation of any applicable standard of care. In other words, “[w]ithout knowing what is ‘too loud’,” “there [was] no standard of care by which a jury could determine on the evidence presented that defendant[] had breached a duty owed to plaintiff”… . Because there was no “rational process by which the [jury] could base a finding in favor of [plaintiff]” on the element of breach, we conclude that the court erred in denying defendant’s motion for a directed verdict … . Joni C. v Cheektowaga-Sloan Union Free Sch. Dist., 2021 NY Slip Op 04859, Fourth Dept 8-26-21

 

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NO NOTICE OF CLAIM WAS REQUIRED IN THIS NUISANCE, TRESPASS AND INVERSE TAKING ACTION AGAINST A VILLAGE BECAUSE MONEY DAMAGES WERE INCIDENTAL TO THE DEMAND FOR INJUNCTIVE RELIEF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a General Municipal Law notice of claim was not required in this action for nuisance, trespass, inverse taking and injunctive relief against a village. The village had installed drainage pipes in the roadway near plaintiff’s property and then repaved the road. Plaintiff alleged water runoff from the roadway flooded his property caused the foundation to collapse. Because the action was essentially for money. No notice of claim was necessary because the money damages were deemed incidental to the demand for injunctive relief. The court noted that a trespass and a taking may be pled in the alternative:

“[I]t is well settled that a notice of claim is not required for an action brought in equity against a municipality where the demand for money damages is incidental and subordinate to the requested injunctive relief” … . Viewing the amended complaint in the light most favorable to plaintiff … , we conclude that the four remaining causes of action alleged continuing harm and primarily sought equitable relief … .

… “[T]he coincidental character of the money damages sought is ‘truly ancillary to an injunction suit, i.e., there is a continuing wrong presenting a genuine case for the exercise of the equitable powers of the court’ ” … . …

Although “[a]n entry cannot be both a trespass and a taking” … , the issue here is the sufficiency of the pleading, and plaintiff sufficiently pleaded both causes of action, albeit in the alternative. Friscia v Village of Geneseo, 2021 NY Slip Op 04793, Fourth Dept 8-26-21

 

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PLAINTIFFS RAISED A QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE RENDERED THE LEGAL MALPRACTICE ACTION TIMELY; REFERENCE TO THE “ENFORCEMENT” OF THE LOAN DOCUMENTS INDICATED THE POSSIBILITY OF REPRESENTATION AFTER THE DATE OF THE LOAN TRANSACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs raised a question of fact whether the continuous representation doctrine rendered the legal malpractice action timely:

The continuous representation doctrine tolls the limitations period “where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” … , and ” ‘where the continuing representation pertains specifically to [that] matter’ ” … . Here, plaintiffs submitted communication between the Florida attorney and defendants in which the Florida attorney indicated that defendants’ role as New York counsel included “enforcement” of the 2014 loan transaction documents. … [W]e conclude that questions of fact exist regarding the extent of defendants’ representation of plaintiffs and, more specifically, whether “enforcement” of the loan documents contemplated a continued representation until the loan was paid in full and the transaction completed. Ray-Roseman v Lippes Mathias Wexler Friedman, LLP, 2021 NY Slip Op 04841,, Fourth Dept 8-26-21

 

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