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FAILURE TO TIMELY FILE THE OBJECTIONS TO THE SUPPORT MAGISTRATE’S DETERMINATION DID NOT WARRANT DISMISSAL OF THE OBJECTIONS (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined that the failure to time file proof of service of respondent’s objections to the determination of the Support Magistrate did not warrant dismissal of the objections:

Family Court Act § 439 (e) provides that a party filing objections to the determination of the Support Magistrate must serve those objections upon the opposing party, and that proof of service “shall be filed with the court at the time of filing of objections.” Here, the record indicates that respondent timely filed his objections and served a copy of those objections upon petitioner on the same day, but respondent failed to file proof of service with Family Court until two days later.

Under the particular circumstances of this case, we substitute our discretion for that of Family Court and conclude that dismissal of respondent’s objections is not warranted … . Although respondent failed to comply with the statutory deadline for filing proof of service, ” ‘[s]trict adherence to this deadline is not required,’ ” and courts have ” ‘discretion to overlook a minor failure to comply with the statutory requirement’ ” … . Here, there is no dispute that petitioner was not prejudiced by the late filing inasmuch as she was served with a copy of respondent’s objections within the statutory time period (see Family Ct Act § 439 [e]). Indeed, the record shows that petitioner filed a rebuttal to respondent’s objections. Matter of Sigourney v Santaro, 2021 NY Slip Op 01591, Fourth Dept 3-19-21

 

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PETITIONER DID NOT DEMONSTRATE THE NEGLECT PETITION WAS PROPERLY MAILED TO MOTHER AND MOTHER PRESENTED EVIDENCE REBUTTING THE PROCESS SERVER’S AFFIDAVIT; A HEARING ON WHETHER MOTHER WAS PROPERLY SERVED IS REQUIRED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined a hearing on whether mother was properly served with the neglect petition was necessary:

… [P]etitioner failed in the first instance to establish that the documents were mailed to the mother’s ” ‘last known address’ ” inasmuch as “[t]he affidavit of service says that the [papers] were mailed [by prepaid, first class mail] . . . , without identifying th[e] address” to which they were mailed … . In any event, even assuming, arguendo, that the process server’s affidavit was sufficient to create the presumption of valid service, we conclude that the mother’s submissions were sufficient to rebut that presumption.

The mother’s attorney submitted an affidavit from his legal assistant establishing that the person who accepted service mistakenly thought the papers were for his daughter, who shared the same first name as the mother. That person also informed the legal assistant that the mother had never resided at that address and that the mother’s father, with whom petitioner believed the mother was residing, “had moved out of the home months earlier.” We thus conclude that the mother rebutted any presumption that she was properly served at her “actual place of business, dwelling place or usual place of abode so as to satisfy the requirements of CPLR 308 (2) [or (4)]” … . Additionally, we note that petitioner’s own submissions in the application for an order of substituted service raise a question whether the mother ever resided at the address listed in the affidavit of service inasmuch as that address was not among the numerous identified addresses for her. Matter of William A. (Jessica F.), 2021 NY Slip Op 01580, Fourth Dept 3-19-21

 

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FATHER’S PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT MAKING A DETERMINATION ON THE MERITS, MATTER REMITTED; THE USUAL PROOF REQUIREMENTS FOR AWARDING CUSTODY TO A NONPARENT DO NOT APPLY TO A TEMPORARY PLACEMENT WITH A NONPARENT (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing, determined father’s petition for modification of custody should not have been dismissed as moot without making a determination of the merits. The court noted that the usual requirements for awarding custody to a nonparent did not apply to the maternal aunt in this case because she did not petition for custody and the children were merely placed with her temporarily:

The father initially filed a petition for modification of custody and visitation against the mother, seeking primary residential custody of their three children. Petitioner Genesee County Department of Social Services then commenced a neglect proceeding against the mother, and the mother consented to the entry of orders finding the subject children to be neglected children. Family Court held a joint hearing regarding the neglect petition and the father’s custody petition … , after which the court placed the children with their maternal aunt with the mother’s consent but over the father’s objection, and dismissed the father’s custody petition as moot.

… [W]e agree with the father that the court erred in dismissing his petition for modification of custody and visitation as moot without making a determination on the merits of his petition pursuant to Family Court Act article 6 … . We further agree with the father that, ” ‘[a]s between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’ ” … . Nevertheless, on the facts of this case, we conclude that the maternal aunt did not have the burden of making a showing of extraordinary circumstances inasmuch as she did not file a petition in this matter and was not awarded custody of the children, but rather the children were placed with her for the pendency of the article 10 proceeding pursuant to Family Court Act § 1017 … . Matter of Michael J.M. v Lisa M.H., 2021 NY Slip Op 01573, Fourth Dept 3-19-21

 

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THE COURT OF CLAIMS, NOT SUPREME COURT, IS THE PROPER FORUM FOR THIS DECLARATORY JUDGMENT ACTION AGAINST THE STATE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the proper forum for the declaratory judgment cause of action against the state was the Court of Claims. The plaintiffs had filed a breach of contract action in the Court of Claims and this declaratory judgment action is incidental to the alleged breach of contract. Therefore the Court of Claims should handle it:

The Court of Claims has subject matter jurisdiction over claims for breach of contract against the State … . As long as the primary claim is for money damages, the Court of Claims “may [also] apply equitable considerations” and grant incidental equitable relief … . Here, because the relief sought in the complaint arises out of an alleged breach of contract, the proper forum for this action is the Court of Claims … . Rice v New York State Workers’ Compensation Bd., 2021 NY Slip Op 01669, Fourth Dept 3-19-21

 

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ALTHOUGH DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT DID RAISE A QUESTION OF FACT ON THE VALIDITY OF THE SERVICE OF PROCESS WHICH REQUIRES A HEARING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to vacate the default judgment on the ground defendant had not been properly served with the complaint should not have been granted. The matter was remitted for a hearing to determine the validity of the service of process:

” ‘Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served’ ” … . Although ” ‘bare and unsubstantiated denials are insufficient to rebut the presumption of service . . . , a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing’ ” … . Here, the presumption of service was created by the affidavit of plaintiff’s process server, but defendant rebutted that presumption by submitting, inter alia, his sworn affidavit in which he averred that he had never been personally served, that since at least 2013 he had rented out the dwelling at the address reflected on the affidavit of the process server, that it had been rented to the individual reflected on the affidavit of service, that defendant “did not live or otherwise reside [at the address] in any form,” and instead that he had been living at another address at the time of the purported service. Contrary to plaintiff’s contention, defendant’s submissions raised ” ‘a genuine question’ ” on the issue whether service was properly effected in accordance with CPLR 308 (2) … . Garvey v Global Asset Mgt. Solutions, Inc., 2021 NY Slip Op 01664, Fourth Dept 3-19-21

 

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DEFENDANTS WERE NOT ENTITLED TO A DIRECTED VERDICT ON THE EMPLOYMENT DISCRIMINATION CAUSE OF ACTION; DEFENSE COUNSEL’S REMARK ABOUT THE FINANCIAL CONSEQUENCES OF A PLAINTIFF’S VERDICT DEPRIVED PLAINTIFF OF A FAIR TRIAL; THE COURT OF CLAIMS HAS EXCLUSIVE JURISDICTION OVER ACTIONS SEEKING MONEY DAMAGES FROM THE STATE, RELEVANT CAUSES OF ACTION PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendants’ motion for a directed verdict should not have been granted and the defense attorney’s remark in summation warranted a new trial. Plaintiff alleged he was denied promotion at the Central New York Psychiatric Center (CNYPC) because the defendants deemed him mentally unstable due to his status as a veteran of the Iraq war.  The directed verdict awarded defendants on that issue was reversed. The defense counsel’s remark in summation that one of the individual defendants would have to “open up her checkbook and write somebody a check” if plaintiff wins deprived plaintiff of a fair trial (the state is required to indemnify defendants as state officers and employees). This case was brought in Supreme Court. The Fourth Department noted that the Court of Claims has exclusive jurisdiction over actions against the state for money damages (apparently the relevant causes of action were properly dismissed for that reason):

Plaintiff … contends that the court erred in granting defendants’ motion for a directed verdict with respect to plaintiff’s cause of action under the New York Human Rights Law alleging discrimination based on military status … . We agree. * * * Based upon the … testimony that plaintiff was not promoted because “[t]here was a question after [plaintiff’s] military service about his [mental] stability,” the jury could have rationally inferred that defendants refused to promote plaintiff in part because they perceived that combat veterans, such as plaintiff, develop dangerous and disqualifying mental health issues as a result of their military service. Thus, “it cannot be said that ‘it would . . . be utterly irrational for a jury to reach [a verdict in favor of plaintiff]’ ” … . * * *

… [R]emarks about a party’s financial status “have been universally condemned by the courts of this State” … . The defense attorney’s argument that his clients should not be “forced to open [their] checkbook” likely conveyed that the individual defendants would be required to pay any damages out-of-pocket. That remark was “grossly improper” … . Moreover, it misrepresented the law to the jury. The State has a duty to indemnify its employees for judgments that arise out of actions within the scope of their public duties, although that duty does not arise from injury or damage resulting from intentional wrongdoing on the part of the employee (see Public Officers Law § 17 [3] [a]). Hubbard v New York State Off. of Mental Health, Cent. N.Y. Psychiatric Ctr., 2021 NY Slip Op 01661, Fourth Dept 3-19-21

 

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THE REQUEST TO POLL THE JURY SHOULD NOT HAVE BEEN DENIED; THE JUDGE SHOULD NOT HAVE DISCHARGED THE JURY FOREMAN FOR ARGUING WITH ONE OR MORE JURORS WITHOUT INTERVIEWING ALL INVOLVED (FIRST DEPT).

The First Department, ordering a new trial in this personal injury action, determined the trial judge should not have denied plaintiff’s request to poll the jury and the jury foreman should not have been discharged for arguing with one or more jurors without interviewing all involved:

It is fundamental error to deny a party’s request to poll the jury … . Defendants’ argument that the issue was not preserved for appeal is unavailing, as plaintiff’s counsel clearly requested that the jury be fully polled … . …

It was also reversible error for the court to discharge the jury foreman, who was alleged to have been in a verbal altercations with another juror during deliberations, without interviewing the jury foreman and the other involved juror or jurors to determine the nature and extent of the disagreement … . That jurors have heated exchanges, does not, without more, form a valid basis for substitution of a juror without the consent of the parties … . Garcia v Rosario, 2021 NY Slip Op 01555, First Dept 3-18-21

 

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CPLR 7515, ENACTED IN 2018, DOES NOT APPLY RETROACTIVELY TO PROHIBIT MANDATORY ARBITRATION OF SEXUAL HARASSMENT CLAIMS (FIRST DEPT).

The First Department, reversing Supreme Court, determined CPLR 7515, enacted in 2018, should not be applied retroactively to prohibit arbitration of a sexual harassment claim:

The provisions of CPLR 7515 relied on by plaintiff are not retroactively applicable to arbitration agreements, like the one at issue, that were entered into preceding the enactment of the law in 2018, so that plaintiff’s argument that this law prohibits arbitration of her claims is unavailing … . Newton v LVMH Moet Hennessy Louis Vuitton Inc., 2021 NY Slip Op 01558, First Dept 3-18-21

 

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ALTHOUGH PLAINTIFF BANK IN THIS FORECLOSURE ACTION DID NOT HAVE A JUSTIFIABLE EXCUSE FOR FAILING TO COMPLY WITH THE 90-DAY DEMAND TO FILE A NOTE OF ISSUE PURSUANT TO CPLR 3216, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the complaint in this foreclosure action should not have been dismissed pursuant to CPLR 3216, even though plaintiff’s excuse for failure to comply with the 90-day demand to file a note of issue was not justifiable:

Because there was no compliance with the 90-day demand, the party seeking to avoid dismissal had to demonstrate a “justifiable excuse for the delay and a good and meritorious cause of action” … . The opposition to defendant’s motion advanced only a conclusory and unsubstantiated claim of law office failure by plaintiff’s prior counsel as the justifiable excuse. Although the failure to detail and substantiate a claim of law office failure would justify dismissal of the complaint … , even when presented with an unjustifiable excuse, a court still retains some residual discretion to refuse dismissal of a complaint as a penalty under CPLR 3216 … .

… [S]ome of the delay in this case was not attributable to plaintiff. Taking into account that CPLR 3216 is “extremely forgiving of litigation delay” … , as well as the public policy of resolving disputes on the merits … , defendant’s motion, under the particular circumstances of this case, should have been denied to the extent that it sought dismissal of the complaint, and plaintiff’s cross motion should have been granted to the extent that it sought an extension of time to file the note of issue … . Chase Home Fin., LLC v Shoumatoff, 2021 NY Slip Op 01537, Third Dept 3-18-21

 

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PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO AMEND THE BILL OF PARTICULARS AFTER DISCOVERY WAS CLOSED TO RAISE A NEW THEORY OF LIABILITY STEMMING FROM FACTS NOT PREVIOUSLY ALLEGED; DEFENDANT OUT-OF-POSSESSION LANDLORD DEMONSTRATED THE LEASE DID NOT REQUIRE THE LANDLORD TO MAINTAIN THE DOOR WHICH PLAINTIFF ALLEGED CLOSED ON HER HAND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend the bill of particulars after discovery was complete should not have been granted and defendant out-of-possession landlord’s motion for summary judgment should have been granted. Plaintiff alleged the door of a retail store closed on her hand as she was pushing a cart with merchandise through the doorway. She alleged the door was not properly maintained. After discovery she sought to amend her bill of particulars to allege there was a crack in the floor which caused the cart to get stuck as she was attempting to pass through the doorway:

“While leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise” … , “once discovery has been completed and the case has been certified as ready for trial, [a] party will not be permitted to amend the bill of particulars except upon a showing of special and extraordinary circumstances” … . In such a case, leave may properly be granted “where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant” … . However “where a motion for leave to amend a bill of particulars alleging new theories of liability not raised in the complaint or the original bill is made on the eve of trial, leave of court is required, and judicial discretion should be exercised sparingly, and should be discreet, circumspect, prudent, and cautious” … . “In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom” … .

… [T]he proposed amendment to the bill of particulars raised an entirely new theory of liability well after discovery had been completed, and was advanced only in response to the defendant’s motion for summary judgment. Moreover, the plaintiff failed to proffer a reasonable excuse for her delay in seeking the amendment … , and the proposed amendment was prejudicial to the defendant … . * * *

… [T]he defendant [out-of-possession landlord] demonstrated its … entitlement to summary judgment dismissing the complaint by submitting, inter alia, the lease, which established that the tenant enjoyed complete and exclusive possession of the demised premises at the time of the plaintiff’s injury and that the defendant was not responsible for maintenance of the door. King v Marwest, LLC, 2021 NY Slip Op 08225, Second Dept 3-17-20

 

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