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THE REGULATION REQUIRING NEW YORK HEALTH INSURANCE POLICIES TO COVER MEDICALLY NECESSARY ABORTION SERVICES, WHICH INCLUDES AN EXEMPTION FOR ‘RELIGIOUS EMPLOYERS,’ IS CONSTITUTIONAL AND WAS PROPERLY PROMULGATED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Colangelo, affirming Supreme Court, determined the regulation requiring health insurance policies in New York to provide coverage for medically necessary abortion services, which includes an exemption for “religious employers,” was properly promulgated and was constitutional. The Court of Appeals decision upholding a similar regulation for prescription contraceptives,  Catholic Charities of Diocese of Albany v Serio (7 NY3d 510 [2006] …), was deemed the controlling precedent:

At issue in Catholic Charities of Diocese of Albany was the validity of a provision of the Women’s Health and Wellness Act (…[hereinafter WHWA]) that requires health insurance policies that provide coverage for prescription drugs to include coverage for prescription contraceptives … . The WHWA also provided an exemption from coverage for “religious employers” (Insurance Law § 3221 [l] [16] [E]), which exemption contains the identical criteria as the exemption applicable here … . … As the constitutional arguments raised by plaintiffs here are the same as those raised and rejected in Catholic Charities of Diocese of Albany, Supreme Court properly concluded that they must meet the same fate by operation of the doctrine of stare decisis. “Stare decisis is the doctrine which holds that common-law decisions should stand as precedents for guidance in cases arising in the future and that a rule of law once decided by a court will generally be followed in subsequent cases presenting the same legal problem” … .

We agree with Supreme Court that an analysis of the Boreali factors [Boreali v Axelrod, 71 NY2d 1] weighs in favor of rejecting plaintiffs’ challenge that the Superintendent exceeded regulatory authority in promulgating the regulation at issue here. Roman Catholic Diocese of Albany v Vullo, 2020 NY Slip Op 03707, Third Dept 7-2-20

 

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ATTEMPTS TO DE-ACCELERATE THE DEBT, INCLUDING VOLUNTARY DISCONTINUANCES AFTER THE DEATH OF THE DEFENDANT, WERE INEFFECTUAL, THE FORECLOSURE ACTION IS TIME-BARRED (THIRD DEPT).

The Third Department, over a two-justice concurrence, determined the statute of limitations began to run in 2009 when the mortgage debt was accelerated in this foreclosure action and the attempts to subsequently de-accelerate the debt after the death of the defendant, including voluntary discontinuances, were ineffectual. Therefore the action was time-barred:

With respect to the notices of discontinuance in the 2009 and 2013 actions, we note that we, as well as other Appellate Divisions, have held that the voluntary discontinuance of an action, without more, will not generally constitute an affirmative act that revokes a lender’s election to accelerate a debt … . * * *

In the 2009 action, plaintiff filed its notice of voluntary discontinuance roughly 13 months after decedent had passed away, without having sought substitution of a legal representative to act on behalf of decedent’s estate (see CPLR 1021; see also SCPA 1002, 1401, 1402 [1] [b]). Thus, as the action was stayed and there was no substitution of a proper defendant, the notice of voluntary discontinuance filed in the 2009 action was without effect. …  As for the notice of discontinuance filed in the 2013 action, plaintiff commenced that action against decedent, despite the fact that she had died more than two years earlier. As a result, the 2013 action was a nullity from its inception and the subsequent notice of voluntary discontinuance was void … .

We similarly find that, under the circumstances of this case, the July 2015 and September 2015 notices did not constitute affirmative acts that would notify decedent’s legal representative that the prior debt acceleration was revoked, that the debt was de-accelerated and that the loan was reinstated to installment payments. Irrespective of the content and substance of the July 2015 and September 2015 notices, plaintiff addressed the notices to decedent, who had been deceased for more than four years, and mailed them to the mortgaged property. The record reflects that the September 2015 letter, which was sent by both regular mail and certified mail, was returned as undeliverable. Beneficial Homeowner Serv. Corp. v Heirs at Large of Ramona E. Thwaits, 2020 NY Slip Op 03709, Third Dept 7-2-20

 

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THE CONDITIONAL DIRECTIVE THAT FATHER BE AWARDED SOLE CUSTODY IF MOTHER DID NOT RETURN FROM SWEDEN WITH THE CHILD IS NOT ENFORCEABLE; A CHANGE IN CUSTODY MUST BE BASED ON THE BEST INTERESTS OF THE CHILD AND SHOULD NOT BE USED TO PUNISH A PARENT (SECOND DEPT).

The Second Department, reversing Family Court, determined the conditional directive that sole custody of the child be awarded to father if mother did not return from Sweden with the child within 30 days was not enforceable. There was no application for a change of custody before the court. The conditional directive was issued to punish mother for moving to and remaining in Sweden and was not based upon the best interests of the child:

The paramount concern in any custody determination is the best interests of the child, under the totality of the circumstances  … . Reversal or modification of an existing custody order ” should not be a weapon wielded as a means of punishing a recalcitrant’ or contemptuous parent” … . In addition, “where no party has moved for a change in custody, a court may not modify an existing custody order in a non-emergency situation absent notice to the parties, and without affording the custodial parent an opportunity to present evidence and to call and cross-examine witnesses” … .

Here, the Family Court’s conditional directive that sole legal and physical custody of the child shall be transferred to the father if the mother did not return the child to New York City within 30 days was meant to punish the mother and was not based on the court’s determination of the best interests of the child. The court should not have considered a change in custody in the absence of an application for such relief with notice to the mother …. Further, the court’s conditional award of custody to the father was improper in light of the court’s determination otherwise that it was in the child’s best interests to remain in the custody of the mother, and considering, among other things, that the mother had always been the child’s primary caretaker, the father did not have overnight visits with the child, and the court had previously expressed concerns about the father’s ability to care for the child for an extended period of time … . Matter of Ross v Ross, 2020 NY Slip Op 03668, Second Dept 7-1-20

 

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NEW THEORY PRESENTED IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LACK-OF-INFORMED-CONSENT CAUSE OF ACTION SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s lack-of-informed-consent cause of action in this medical malpractice case should have been dismissed. Plaintiff had alleged a new theory in response to defendant’s motion for summary judgment which should not have been considered because the theory was not discernable from the pleadings:

… [T]he Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action to recover damages for lack of informed consent insofar as asserted against him. The defendant made a prima facie showing of his entitlement to judgment as a matter of law dismissing that cause of action insofar as asserted against him through the affidavit of his expert, the deposition testimony, and the written consent form signed by the plaintiff, which demonstrated that the defendant disclosed to the plaintiff the risks, benefits, and alternatives to the procedure … .

In opposition, the plaintiff alleged, for the first time, a new theory that the procedure performed by the defendant exceeded the scope of her consent in specific respects, a theory that was not referred to when the plaintiff’s counsel questioned the defendant at his deposition. The general rule is that ” [a] plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars'” … . If the theory is discernable from the pleadings, it may be considered … , especially if the theory is referred to in the depositions … . In this case, the assertion of the new theory was not discernable from the pleadings, nor alluded to by the plaintiff’s counsel when deposing the defendant … . Therefore, that theory should not have been considered. Larcy v Kamler, 2020 NY Slip Op 03652, Second Dept 7-1-20

 

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THE PROMISSORY NOTE WAS NOT DEMONSTRATED TO BE AN INSTRUMENT FOR THE PAYMENT OF MONEY ONLY, THE MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in lieu of complaint (CPLR 3213) based upon a promissory note should not have been granted. The note was not demonstrated to be an instrument for the payment of money only:

Pursuant to CPLR 3213, a plaintiff demonstrates its prima facie entitlement to judgment as a matter of law with respect to a promissory note if it shows “the existence of a promissory note, executed by the defendant, containing an unequivocal and unconditional obligation to repay, and the failure by the defendant to pay in accordance with the note’s terms” … . “Where the instrument requires something in addition to defendant’s explicit promise to pay a sum of money, CPLR 3213 is unavailable” … . Once the plaintiff has established its prima facie entitlement to judgment as a matter of law, “the burden then shifts to the defendant to submit evidence establishing the existence of a triable issue with respect to a bona fide defense” … .

Here, the plaintiffs failed to establish, prima facie, that the subject promissory note was an instrument for the payment of money only … . In support of their motion, the plaintiffs submitted the promissory note, which refers to the asset sale/purchase agreement and provides the defendants with “an absolute right of set-off against the entire unpaid principal balance of [the] Note based upon any and all provisions of the Asset Sale/Purchase Agreement.” Under the circumstances, “outside proof” was required, “other than simple proof of nonpayment,” to establish the plaintiffs’ prima facie case … . Express Valentine Auto Repair Shop, Inc. v New York Taxi 2, Inc., 2020 NY Slip Op 03644, Second Dept 7-1-20

 

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QUESTIONS OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS ARCHITECTURAL MALPRACTICE/BREACH OF CONTRACT ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact about whether the continuous representation doctrine tolled the statute of limitations in this architectural malpractice/breach of contract action. Defendant’s decedent was hired by plaintiff to construct a four-story condominium. Although the work was completed in 2008 there were problems getting approval by the city and new architectural services contracts were entered in 2015 and 2018. The court noted that, where a motion to dismiss pursuant to CPLR 3211 is made on statute-of-limitations grounds, a plaintiff may remedy any defects in the pleadings in an affidavit:

“[A]n action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” is subject to a three-year statute of limitations (CPLR 214[6] … ). Such an action, founded upon “defective design or construction accrues upon the actual completion of the work to be performed and the consequent termination of the professional relationship” … . However, “a professional malpractice cause of action asserted against an architect or engineer may be tolled under the continuous representation’ doctrine if the plaintiff shows its reliance upon a continued course of services related to the original professional services provided” … . * * *

Even if the defendant had met her prima facie burden, the plaintiff raised a question of fact as to whether the continuous representation toll applied. Specifically, the plaintiff averred in an affidavit in opposition to the motion that [defendant’s decedent] continued to work on the project from 2008 through the time that the parties entered into the 2015 agreement, including by continuing to revise the plans so as to subdivide the property, regularly meeting with the plaintiff, renewing building permits with the plaintiff, meeting with a “commissioner” at the DOB [NYC Department of Buildings] to discuss revised plans, and filing an application concerning the project with the DOB in 2014. Anderson v Pinn, 2020 NY Slip Op 03636, Second Dept 7-1-20

 

DEFENDANTS’ MOTION TO DISMISS ON THE GROUND OF FORUM NON CONVENIENS IN THIS PERSONAL INJURY ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to dismiss this personal injury case on the ground of forum non conveniens grounds (CPLR 327) should have been granted:

On a motion pursuant to CPLR 327 to dismiss the complaint on the ground of forum non conveniens, the burden is on the movant to demonstrate the relevant private or public interest factors that militate against a New York court’s acceptance of the litigation. “Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses, the availability of an alternative forum, the situs of the actionable events, and the burden which will be imposed upon the New York courts, with no one single factor controlling” … . …

… New York courts need not entertain causes of action lacking a substantial nexus with New York … . In this case, the accident occurred in New Jersey, the decedent was a resident of New Jersey and, as a result of the accident, received medical treatment in New Jersey before her death; the plaintiff is a resident of Georgia, and none of the potential witnesses are believed to be residents of New York. Although the defendant Port Authority of New York and New Jersey is a statutory resident of New York … , and the defendant Champlain Enterprises, Inc., is a New York corporation, when taking into consideration all of the relevant factors , we find that the defendants established that New York is an inconvenient forum in which to prosecute this action … .

However, in order to assure the availability of a forum for the action, our reversal and granting of the motion to dismiss the complaint pursuant to CPLR 327 is conditioned on the defendants stipulating to waive jurisdictional and statute of limitations defenses as indicated herein\ … . Sikinyi v Port Auth. of N.Y. & N.J., 2020 NY Slip Op 03683, Second Dept 7-1-20

 

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PERSONAL INJURY ACTION BY MOTHER OF A 14-YEAR-OLD KILLED WHEN WORKING ILLEGALLY ON DEFENDANT FARM PROPERLY DISMISSED; THE RECOVERY UNDER THE WORKERS’ COMPENSATION LAW WAS THE EXCLUSIVE REMEDY BECAUSE THE INTENTIONAL-TORT EXCEPTION DID NOT APPLY; THE ACTION WAS PRECLUDED BY THE RES JUDICATA DOCTRINE; IN ADDITION THERE WAS NO EVIDENCE DEFENDANTS ACTED WILLFULLY OR INTENTIONALLY (THIRD DEPT).

The Third Department determined the personal injury action brought by decedent’s mother was properly dismissed because the recovery pursuant to the Workers’ Compensation Law was the exclusive remedy. Plaintiff’s decedent, 14-years-old, was killed operating a skid steer while illegally employed by defendant’s (Park’s) farm. Although plaintiffs recovered Workers’ Compensation benefits, plaintiffs argued an exception to the exclusive-remedy restriction for intentional torts applied. The Third Department held the exclusive-remedy restriction applied and there was no evidence of willful or intentional conduct on the part of the defendants:

Inasmuch as the [Workers’ Compensation] Board had already “determined that [decedent’s] injuries were suffered accidentally and in the course of employment” for the Farm, the claim that the Farm or its employees are liable “for an intentional tort based on the same event is barred by the exclusive remedy and finality provisions of the Workers’ Compensation Law, and by principles of res judicata” … . Even if the Board’s decision did not have preclusive effect, however, Supreme Court properly rejected the contention that Park engaged in “deliberate acts . . . to injure [decedent] or to have him injured” so as to bring this case within an exception to the exclusivity provisions of the Workers’ Compensation Law … . The record reflects that decedent used the skid steer without anyone’s knowledge and that, following the investigation into decedent’s death, Park pleaded guilty to willful failure to pay unemployment insurance contributions (see Labor Law § 633), endangering the welfare of a child (see Penal Law § 260.10) and prohibited employment of a minor (see Labor Law § 133). It could be inferred from those facts that Park was negligent in failing to supervise decedent, or even reckless in exposing decedent to dangerous work that his age left him unsuited for, but not that Park acted out of a “willful intent to harm” decedent, as required … . Smith v Park, 2020 NY Slip Op 03583, Third Dept 6-25-20

 

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ALTHOUGH DISFAVORED, DISCLOSURE OF REDACTED TAX RETURNS WAS WARRANTED IN THIS CASE (FIRST DEPT).

The First Department noted that the disclosure of tax returns is disfavored, but agreed with Supreme Court that disclosure of the redacted returns in this Labor-Law/employment-law dispute was warranted:

Plaintiffs claim that between 2010 and 2016 defendant employed them as a caretaker for her ailing aunt and that defendant violated, inter alia, several sections of the Department of Labor Regulations (12 NYCRR) requiring overtime pay, a minimum wage, and additional pay for split shifts. Defendant denies that she was plaintiffs’ employer for purposes of the regulations and provisions of the Labor Law, but admits that she paid plaintiffs by check from 2014 to 2016, albeit on her aunt’s behalf. Plaintiffs claim they were paid in cash by defendant between 2010 and 2013. Defendant, who denies that she was the source of the cash payments, seeks plaintiffs’ federal and state tax returns for 2010 to 2013, claiming she needs the returns to verify the cash amounts, as well as plaintiffs’ assertion that they were employees, and not independent contractors.

… [D]efendant demonstrated both that the specific information ordered disclosed was necessary to defend the action, and unavailable from other sources … . Since plaintiffs were paid in cash between 2010 and 2013 and there is no other evidence in the record establishing who paid their wages and how much they were paid during those years, defendant showed a specific need for the production of the three years of tax returns, which might show the amounts claimed by plaintiffs as income from the caretaker work, as well as whether they claimed the income as wages or as money earned through self-employment. Defendant demonstrated that investigating plaintiffs’ bank accounts would be inconclusive, since pay deposited in the accounts could have been commingled with other amounts, and because one of the plaintiffs claimed that she used several banking institutions and did not make deposits on a predictable basis. We note that the court already inspected the tax returns in camera and deemed them relevant. Currid v Valea, 2020 NY Slip Op 03590, First Dept 6-25-20

 

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PETITIONER DID NOT HAVE THE STATUTORILY REQUIRED CLOSE RELATIONSHIP WITH THE RESPONDENT IN THIS FAMILY OFFENSE PROCEEDING; FAMILY COURT DID NOT HAVE SUBJECT MATTER JURISDICTION (FIRST DEPT).

The First Department, reversing Family Court, determined Family Court did not have subject matter jurisdiction over this family offense proceeding because the petitioner and the respondent were not members of the same family or household and had not been in an intimate relationship:

The court lacks subject matter jurisdiction over this family offense proceeding brought by the foster mother of respondent’s biological children. Petitioner failed to establish that she and respondent, who are not members of the same family or household, are or have been in an intimate relationship (see Family Court Act § 812[1][e] …). Petitioner testified that she did not even know respondent’s first name. It appears from the record that petitioner’s contact with respondent has been limited to scheduling visitation with the children at the agency and, perhaps, interacting with respondent when she went to petitioner’s home to pick up the children for visits. Matter of Veronica C. v Ariann D., 2020 NY Slip Op 03612, First Dept 6-25-20

 

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