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THE INFANCY TOLL OF THE STATUTE OF LIMITATIONS IN CPLR 208 APPLIES TO A WRONGFUL DEATH ACTION WHERE THE SOLE DISTUBUTEES ARE INFANTS; THE TOLL, HOWEVER, DOES NOT APPLY TO A RELATED ASSAULT AND BATTERY ACTION WHICH IS PERSONAL TO THE DECEDENT (FRIST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined the infancy toll of the statute of limitations in CPLR 208 applies where the unmarried father of two children dies intestate. The statute of limitations for the ensuing wrongful death action is tolled until the appointment of a guardian of the children’s property. Father was involved in an altercation with a defendant, suffered fatal injuries and died later that day, September 6, 2012. Plaintiffs, the mothers of the two children, were each appointed guardians of the property of their children in 2015. That is when the statute began running on the wrongful death action, rendering the 2016 complaint timely. A wrongful death action directly compensates the distributees, here the children. The assault and battery action, by contrast, is personal to the decedent. Therefore the infancy toll does not apply to the assault and battery cause of action. The First Department explicitly overruled a decision relied upon by the defendants, Ortiz v Hertz Corp., 212 AD2d 374 (1st Dept 1995). (The opinion is comprehensive and can not be fairly summarized here.):

Today we clarify that Ortiz is not good law, because it was based on an incorrect application and interpretation of Hernandez. Therefore, pursuant to the precedent established in Hernandez [78 NY2d 687] … we hold that when the sole distributees of a decedent’s estate are infants, the toll of CPLR 208 applies to a wrongful death claim “until the earliest moment there is a personal representative or potential personal representative who can bring the action whether by appointment of a guardian [of the property of the infant distributee] or majority of [a] distributee, whichever occurs first” … . Machado v Gulf Oil, L.P., 2021 NY Slip Op 01849, First Dept 3-25-21

 

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ALTHOUGH THE COMPLAINT WAS DEFECTIVE, AFFIDAVITS AND OTHER EVIDENCE DEMONSTRATE A POTENTIALLY MERITORIOUS CLAIM; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, noted that a defective complaint will survive a motion to dismiss if affidavits or other evidence demonstrate a potentially meritorious claim:

The amended complaint is defective because it merely alleges that the Bluestone defendants participated in fraudulent transfers, without alleging that they were a transferee of the assets or benefited in any way from the transfers … . However, a defective complaint will not be dismissed where affidavits and other evidence amplify inartfully pleaded but potentially meritorious claims … . Plaintiffs rely on evidence submitted by the Goldman defendants in opposition to the Bluestone defendants’ motion to dismiss which suggests that the Bluestone defendants may have participated in and benefitted from the alleged fraudulent transfers. This evidence indicates that plaintiffs have potentially meritorious fraudulent conveyance claims against the Bluestone defendants. Ninth Space LLC v Goldman, 2021 NY Slip Op 01853, First Dept 3-25-21

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, AFTER A COMPLIANCE CONFERENCE, ISSUED A PRECLUSION ORDER BECAUSE THERE WAS NO MOTION PENDING (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have, sua sponte, issued a preclusion order after a compliance conference because no motion was pending:

Order … which, upon granting plaintiff’s motion to reargue, reinstated his lost earnings claim but precluded the claim for years which tax returns are not produced to defendants, unanimously reversed, without costs, and the claim reinstated without limitation.

The underlying preclusion order should not have been issued sua sponte at a compliance conference, with no motion pending … . Sullivan v Snow, 2021 NY Slip Op 01873, First Dept 3-25-21

 

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THE ORDER DISMISSING THE COMPLAINT FOR FAILURE TO SEEK A DEFAULT JUDGMENT WITHIN ONE YEAR DID NOT INLCUDE SPECIFIC FINDINGS OF A PATTERN OF DELAY; THEREFORE THE “FAILURE TO PROSECUTE” EXCEPTION IN CPLR 205 (A) DID NOT APPLY; PLAINTIFF’S ACTION BROUGHT WITHIN SIX MONTHS OF DISMISSAL WAS NOT TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint was timely pursuant to the six-month extension afforded by CPLR 205 (a).  The dismissal of the complaint did not include any specific findings of a general pattern of delay. Therefore the six-month extension was not precluded:

In 2018, Supreme Court granted defendant’s motion pursuant to CPLR 3215(c) to dismiss the complaint in the prior, 2010 foreclosure action for plaintiff’s failure to seek a default judgment within one year of defendant’s default. The dismissal order did not include any findings of specific conduct demonstrating a general pattern of delay in proceeding with the litigation, as required to preclude the application of CPLR 205(a) for failure to prosecute … . Under the circumstances, the court should not have granted defendant’s motion to dismiss the complaint in the present action as time-barred, as this action was timely brought within six months after the motion court dismissed plaintiff’s first foreclosure action … . U.S. Bank N.A. v Kim, 2021 NY Slip Op 01876, First Dept 3-25-21

 

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WHERE FRAUD IS THE BASIS OF A CLAIM FOR BREACH OF FIDUCIARY DUTY, THE STATUTE OF LIMITATIONS IS SIX YEARS (FIRST DEPT).

The First Department determined that where the basis of a claim for aiding and abetting breach of fiduciary duty is fraud, the statute of limitations is six years:

[Defendant] Katten contends that even if the claim for aiding and abetting breach of fiduciary duty is taken at face value, the statute of limitations is three years because plaintiff seeks damages, not equitable relief … . However, “a cause of action for breach of fiduciary duty based on allegations of actual fraud is subject to a six-year limitations period” … . Plaintiff’s claim against defendant Albert Hallac for breach of fiduciary duty is based on allegations of actual fraud; hence, the statute of limitations for the claim against Katten for aiding and abetting Hallac’s breach of fiduciary duty is six years. Wimbledon Fin. Master Fund, Ltd. v Hallac, 2021 NY Slip Op 01881, First Dept 3-25-21

 

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THERE IS NO NEED TO FILE AN AFFIDAVIT OF SERVICE AFTER SERVICE OF A WARRANT AND NOTICE OF EVICTION; THE MATTER WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined that the failure file an affidavit of service after serving the warrant and notice of eviction did not affect the validity of the service of the warrant of eviction which triggers the 14-day waiting period before execution of the warrant. The court noted that the matter was moot because the petitioner was subsequently evicted based on a different warrant, but the matter should be heard on appeal because the circumstance is likely to recur. The two dissenters argued the mootness of the matter precluded appeal:

… [T]he issuance of a warrant is the court’s last act in a summary proceeding, as denoted by the phrase, “Upon rendering a final judgment for [the owner], the court shall issue a warrant” (RPAPL 749 [1]). The execution of the warrant terminates the lease … . Likewise, the execution of the warrant terminates the summary proceeding and the jurisdiction of the court …  Because the court no longer has jurisdiction, the filing of the affidavit of service is superfluous. This stands in stark contrast to the purpose of the affidavit of service at the commencement of the summary proceeding, where it suffices as proof that the party was properly served pursuant to law, as proper service is required to bring a respondent within the jurisdiction of the court … .

… [W]e find that filing the affidavit of service at the conclusion of service of a warrant of eviction is not required, and the 14-day notice begins the day following the date of service, posting or mailing, whichever is later … . Matter of Dixon v County of Albany, 2021 NY Slip Op 01819, Third Dept 3-25-21

 

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS PEDESTRIAN-VEHICLE ACCIDENT CASE WAS PREMATURE; PLAINTIFF HAD NOT YET BEEN DEPOSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this pedestrian-vehicle accident case was premature because plaintiff had not been deposed:

Plaintiff alleges that after crossing Pearl Street at the intersection with Whitehall Street he was struck from behind by defendants’ box truck, while he was on the curb/lip of the sidewalk. According to the affidavit of the driver, defendant Rosado, plaintiff was distracted by talking on a cell phone, and walked into the side of the truck while it was already making a right turn.

While plaintiff was not required to demonstrate the absence of comparative negligence on his part, his motion was premature in that defendants did not have the opportunity to depose him … . Bey v Rosado, 2021 NY Slip Op 01840, First Dept 3-25-21

 

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THE COMMERCIAL LEASE GUARANTEE MET THE DEFINITION OF AN INSTRUMENT FOR THE PAYMENT OF MONEY; THE COVID-19 RESTRICTIONS ON ENFORCEMENT OF COMMERCIAL LEASE GUARANTEES DO NOT APPLY; THE WARRANTY OF HABITABILITY DEFENSE IS NOT AVAILABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined: (1) although guarantees generally are not instruments for the payment of money within the meaning of CPLR 3213, the language of the guarantee was unconditional and therefore met the criteria of such an instrument; (2) the COVID-19-related provision of the NYC Administrative Code and executive orders, prohibiting enforcement of commercial lease guarantees, do not apply where the business were not required to cease operations; (3) the warranty of habitability was not available as a defense because of the language of the guarantee; and (4) a commercial tenant cannot assert the warranty of habitability:

While a guarantee of both payment and performance does not qualify as an instrument for the payment of money only under CPLR 3213 … , paragraph 1 of the guaranty signed by defendants includes an unconditional obligation to pay all rent and additional rent owed under the sublease, and therefore does so qualify … ; “it required no additional performance by plaintiff[] as a condition precedent to payment or otherwise made defendant[s’] promise to pay something other than unconditional” … .

While the prohibition on the enforcement of commercial lease guaranties against natural persons under Administrative Code of City of NY § 22-1005 applies to businesses that were required to “cease operation” or “close to members of the public” under executive orders 202.3, 202.6, or 202.7, issued in connection with the COVID-19 pandemic, defendants never asserted that the nonparty subtenant ceased operations or closed to the public as a result of those orders.

Defendants’ claim that they properly raised warranty of habitability defenses under the sublease is without merit. Such defenses are not available to defendants because all defenses under the guaranty, with the exception of prior payment, were waived. Moreover, a commercial tenant cannot avail itself of the statutory warranty of habitability (see Real Property Law § 235-b …). iPayment, Inc. v Silverman, 2021 NY Slip Op 01846, First Dept 3-25-21

 

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EVEN THOUGH PLAINTIFF MAY HAVE ACCEPTED DEFECTIVE GOODS WITHIN THE MEANING OF THE UCC, THE UCC PROVIDES REMEDIES, INCLUDING THE RIGHT TO BE MADE WHOLE AND THE RIGHT TO REVOKE THE ACCEPTANCE; PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Christopher, reversing Supreme Court, determined the verdict should not have been set aside in this consumer law case. Plaintiff ordered kitchen cabinets. When they arrived one box was opened by defendant-seller’s representative to confirm the color. Plaintiff then signed a “Completion Certificate” which indicated the cabinets had been found satisfactory. In fact the cabinets were not satisfactory as revealed when they were installed. The Second Department noted that, although under the UCC plaintiff, based on the “Completion Certificate,” could not reject the goods, the UCC provides that she could be made whole, and, in fact, could revoke her acceptance, in addition to other available remedies. Therefore plaintiff’s verdict awarding $30,000 should not have been set aside:

“Acceptance of goods by the buyer precludes rejection of the goods accepted” (UCC 2-607[2]; see Comment 2). However, “acceptance does not of itself impair any other remedy provided by [article 2 of the UCC] for non-conformity” (UCC 2-607[2] …). “Thus, ‘acceptance leaves unimpaired the buyer’s right to be made whole, and that right can be exercised by the buyer not only by way of cross-claim for damages, but also by way of recoupment in diminution or extinction of the [purchase] price'” … . …

Moreover, after the buyer has accepted allegedly non-conforming goods, the buyer may revoke acceptance of the goods under certain limited circumstances and “obtain the same remedies as are available upon rejection” … . …

… [E]ven if the jury found that the plaintiff did not properly revoke her acceptance of the cabinets, the jury could have found that the plaintiff was entitled to other remedies pursuant to UCC 2-607 … .

… [T]he jury’s verdict that … the defendant breached their contract with the plaintiff, breached the implied warranty of fitness, and that the plaintiff was entitled to damages in the amount of $30,000 was supported by a valid line of reasoning and permissible inferences from the evidence at trial … . Campbell v Bradco Supply Co., 2021 NY Slip Op 01745, Second Dept 3-24-21

 

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THE NYPD IS A DEPARTMENT OF THE CITY AND CANNOT BE SEPARATELY SUED; THE 42 USC 1983 CIVIL RIGHTS VIOLATION CAUSE OF ACTION WAS NOT SUPPORTED BY SUFFICIENT ALLEGATIONS OF AN UNCONSTITUTIONAL CITY CUSTOM OR POLICY; THE OTHER CAUSES OF ACTION AGAINST THE CITY FALL BECAUSE THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST AND THE FORCE USED BY THE POLICE WAS NOT EXCESSIVE UNDER THE CIRCUMSTANCES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the 42 USC 1983 violation-of-civil rights, negligence, assault and battery, excessive force, false arrest and false imprisonment causes of action against the New York Police Department (NYPD) and New York City (City) should have been dismissed. Plaintiff was shot when, in the midst of a psychotic episode, she approached the police with a knife. She was indicted, tried and found not responsible by reason of mental disease or defect. The court noted that the NYPD is a department of the City and cannot be sued separately. The court also noted the 1983 action against the City failed to state a cause action because no city policy or custom was identified as violating plaintiff’s constitutional rights:

To hold a municipality liable under 42 USC § 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy … . Here, “[a]lthough the complaint alleged as a legal conclusion that the defendants engaged in conduct pursuant to a policy or custom which deprived the plaintiff of certain constitutional rights, it was wholly unsupported by any allegations of fact identifying the nature of that conduct or the policy or custom which the conduct purportedly advanced” … . * * *

The Supreme Court also should have granted that branch of the defendants’ motion which was for summary judgment dismissing the false arrest and false imprisonment causes of action insofar as asserted against the City. The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest and false imprisonment … , including causes of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law … . Brown v City of New York, 2021 NY Slip Op 01743, Second Dept 3-24-21

 

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