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MOTION TO AMEND THE SUMMONS AND COMPLAINT TO ADD AN APPARENTLY MISNAMED PARTY AFTER THE STATUTE OF LIMITATIONS HAD RUN SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend the summons and complaint to add an apparently misnamed party after the statute of limitations had run should not have been granted:

On March 27, 2014, the plaintiff allegedly was injured while boarding a ski lift at Hunter Mountain in Hunter. On March 23, 2016, the plaintiff commenced this action against the defendants, Hunter Mountain and Hunter Mountain Resort, LLC, to recover damages for personal injuries. After the defendants failed to appear or answer the complaint, a default judgment dated April 18, 2018, was entered against the defendants. By notice of motion dated September 15, 2018, the plaintiff moved, inter alia, in effect, pursuant to CPLR 305(c) and 3025(b) for leave to amend the summons, complaint, and caption to name Hunter Mountain Ski Bowl, Inc., doing business as Hunter Mountain (hereinafter HMSB), as a defendant instead of the named defendant Hunter Mountain. …

Relief pursuant to CPLR 305(c) may be granted only where there is evidence that the correct defendant was served, albeit misnamed in the original process, and the correct defendant would not be prejudiced by the granting of the amendment … . While CPLR 305(c) may be used to cure a misnomer in the description of a party defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served … .

… There is no evidence that HMSB and Hunter Mountain are one and the same entity … . … [T]he plaintiff failed to establish that he properly served HMSB or that the Supreme Court obtained jurisdiction over it … .

… [T]he plaintiff was not entitled to relief pursuant to CPLR 3025(b) for leave to amend the summons, complaint, and caption to add HMSB as a defendant, since he did not provide a copy of his proposed amended summons and complaint, … . The proposed amendments are patently devoid of merit because the statute of limitations bars any claim against HMSB, a new party to this action … , and the plaintiff failed to establish that the relation-back doctrine pursuant to CPLR 203(f) applied … . Nossov v Hunter Mtn., 2020 NY Slip Op 04175, Second Dept 7-22-20

 

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PLAINTIFF PRESENTED CLEAR AND CONVINCING EVIDENCE SUPPORTING THE CAUSES OF ACTION AGAINST A NEIGHBOR FOR TRESPASS, PRIVATE NUISANCE, AND VIOLATION OF THE CIVIL RIGHTS LAW; THE MOTION FOR A PRELIMINARY INJUNCTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for a preliminary injunction in this dispute between neighbors should have been granted. Plaintiff alleged the neighbor repeatedly damaged and defaced plaintiff’s property and installed a surveillance camera aimed at plaintiff’s property. The Fourth Department went through the elements required for issuance of a preliminary injunction and described the proof offered in support of the trespass, private nuisance and Civil Rights Law causes of action:

Plaintiff’s supplemental affidavit and photographs submitted in support of the motion demonstrate that Nichols repeatedly drove across her lawn and blew snow with his snowblower onto the side of plaintiff’s house, allegedly causing damage to her awning and fence. Both events were intentional invasions of plaintiff’s interest in the exclusive possession of her land. Furthermore, although “an action for trespass over the lands of one property owner may not be maintained where the purported trespasser has acquired an easement of way over the land in question” … , plaintiff established that the acts allegedly committed by Nichols on the easement exceeded the scope of the easement and did not constitute a reasonable use of his interest in the easement … . Thus, plaintiff demonstrated a likelihood of success on the merits of her trespass claim. …

The evidence submitted by plaintiff established that Nichols drove across plaintiff’s lawn, used a snowblower to blow snow onto her house, tampered with and removed her property markers, parked his vehicle so as to obstruct plaintiff’s driveway, drove on the freshly paved driveway and left tire tracks in the asphalt, and repeatedly painted a white line across the driveway. That conduct exceeds the scope of the easement and may fairly be characterized as a substantial interference with plaintiff’s use and enjoyment of her property. Thus, plaintiff demonstrated a likelihood of success on the merits of her private nuisance claim.

Plaintiff’s affidavit and video evidence also submitted on the motion demonstrate that Nichols threatened to install a “150-foot night vision camera” in his backyard and to point it directly into plaintiff’s backyard and at her living room. As Nichols installed the surveillance camera, he stated to plaintiff, “It’s gonna look right in your fucking living room! . . . You’re on camera bitch! . . . Smile for the camera bitch!” Thus, plaintiff also demonstrated a likelihood of success on the merits of her claim under Civil Rights Law § 52-a. Cangemi v Yeager, 2020 NY Slip Op 04023, Fourth Dept 7-17-20

 

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AN ARTICLE 78 REVIEW OF THE RESPONSE TO A FOIL REQUEST MAY ONLY CONSIDER THE GROUND FOR THE INITIAL AGENCY DECISION; THE GROUNDS FOR A SUBSEQUENT DECISION ISSUED AFTER THE ARTICLE 78 PROCEEDING WAS COMMENCED SHOULD NOT HAVE BEEN CONSIDERED; PETITIONER’S REQUEST FOR THE METADATA OF THE DISCLOSED DOCUMENTS MUST BE DENIED BECAUSE METADATA WAS NOT ‘REASONABLY DESCRIBED’ IN THE FOIL REQUEST (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Article 78 review must be confined to the ground asserted in the agency’s initial FOIL decision and could not consider the grounds asserted in the agency’s subsequent decision issued after petitioner brought the Article 78 proceeding. The ground for the initial decision had been abandoned in the second decision. The court noted that the petitioner’s demand for the metadata of the disclosed documents must be denied because metadata was not “reasonably described” in the FOIL request:

This proceeding is not in the nature of mandamus to compel. Instead, the standard of review is whether the denial of the FOIL request was “affected by an error of law” (CPLR 7803[3] … ), for which judicial review is “limited to the grounds invoked by the agency” in its determination … . Since respondents abandoned the exemption raised in their initial decision, they cannot meet their burden to “establish[] that the . . . documents qualif[y] for the exemption” … . Further, as respondents “did not make any contemporaneous claim that the requested materials” fit the newly raised exemptions, “to allow [them] to do so now would be contrary to [Court of Appeals] precedent, as well as to the spirit and purpose of FOIL” … . …

An agency is only required to produce “a record reasonably described” (Public Officers Law § 89[3][a]). Contrary to petitioner’s contention, the FOIL request for “complete copies” of communications and documents cannot fairly be read to have implicitly requested metadata associated with those copies. Matter of Barry v O’Neill, 2020 NY Slip Op 04007, First Dept 7-16-20

 

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CAUSE OF ACTION AGAINST THE LANDOWNER FOR A SLIP AND FALL IN THE LESSEE’S SHOPPING CENTER PARKING LOT SHOULD NOT HAVE BEEN DISMISSED BECAUSE THE LANDOWNER HAD SOME REPAIR RESPONSIBILITIES UNDER THE LEASE; ALTHOUGH THE ORIGINAL SUMMONS AND COMPLAINT DESCRIBED THE WRONG PROPERTY ADDRESS, THE AMENDED COMPLAINT, SERVED AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS, WAS TIMELY UNDER THE RELATION-BACK DOCTRINE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint against the landowner in this slip and fall case should not have been dismissed. Plaintiff allegedly slipped and fell in the parking lot of a shopping center. Plaintiff sued the landowner three days before the statute of limitations expired. The property address of the shopping center was wrong on the original summons and complaint. A couple of months later plaintiff served a supplemental summons and amended complaint which corrected the address and added defendants. The cause of action against the landowner should not have been dismissed because the lease gave the property owner some authority over keeping the premises safe and because the relation-back theory rendered the amended complaint timely. The causes of action against the added defendants were deemed time-barred because the relation-back doctrine did not apply to them:

A motion to dismiss a cause of action pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s allegations, thereby conclusively establishing a defense as a matter of law … . Here, the defendants’ own affidavits do not constitute documentary evidence within the meaning of CPLR 3211(a)(1) … , and the ground lease between them and Stavan, Inc., failed to utterly refute the plaintiff’s factual allegations. “Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition” … . Although “a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … , and, here, the lease required the lessee to “keep [the subject property] in good repair” and “make or cause to be made any and all repairs both inside and outside,” the lease also gave the defendants the right to reenter the subject property and “perform and do such acts and things, and make such payments and incur such expenses as may be reasonably necessary to make . . . repairs to comply with the requirements” under the lease. Thus, the lease failed to conclusively establish a defense as a matter of law … . …

“The linchpin’ of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period” … . Here, the plaintiff failed to demonstrate that the relation-back doctrine applied inasmuch as she did not establish that the additional defendants had knowledge of the claim or occurrence within the applicable limitations period, and that her failure to name them as defendants in the original complaint was due to a mistake on her part … . Pirozzi v Garvin, 2020 NY Slip Op 03932, Second Dept 7-15-20

 

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ALTHOUGH MOTHER WAS GENERALLY AWARE FATHER HAD MOVED TO DELAWARE, FATHER DID NOT SPECIFY AN AGENT FOR SERVICE AS REQUIRED BY THE FAMILY COURT ACT; THEREFORE SERVICE OF MOTHER’S OBJECTIONS TO THE SUPPORT MAGISTRATE’S ORDER AT FATHER’S LAST KNOWN ADDRESS WAS PROPER (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s objections to the Support Magistrate’s order should not have been rejected on the ground father was not properly served. The papers were served at father’s prior address in Brooklyn. Although mother was aware father may live in Delaware from representation made to the court, father did not specify an agent for service as required by Family Court Act. Therefore service at father’s last known address was proper:

“Family Court Act § 439(e) provides, in pertinent part, that [a] party filing objections shall serve a copy of such objections upon the opposing party,’ and that [p]roof of service upon the opposing party shall be filed with the [Family Court] at the time of filing of objections and any rebuttal'” … . Here, the mother served her objections upon the father at an address in Brooklyn, which was the same address she listed for the father in her petition. The court rejected the proof of service because, inter alia, the court file reflected a Delaware address for the father. While the mother was generally aware that the father represented to the court that his address was in Delaware, there was no evidence in the record that the address was ever disclosed to the mother. Moreover, following the mailing of the original summons to the father’s Brooklyn address, he filed an Address Confidentiality Affidavit. In his Address Confidentiality Affidavit, the father failed to specify an agent for service, and there was no evidence that the mother ever received notice of an agent for service for the father as required by Family Court Act § 154-b(2)(c). Under these circumstances, the mother had insufficient notice of the father’s purported new address in Delaware and lacked notice of an agent for service for the father. Therefore, service upon the father at the address last known to the mother was proper (see CPLR 2103[b][2] …). Matter of Deyanira P. v Rodolfo P.-B., 2020 NY Slip Op 03918, Second Dept 7-15-20

 

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DEFENDANT DID NOT DEMONSTRATE THE FOREIGN CORPORATION WAS DOING BUSINESS IN NEW YORK WITHOUT AUTHORIZATION; DEFENDANT’S MOTION TO DISMISS THE COMPLAINT IN THIS FORECLOSURE ACTION ON THAT GROUND SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a defendant in this foreclosure action brought by a foreign corporation did not demonstrate the corporation was doing business in New York without authorization. Therefore defendant’s motion to dismiss the complaint on that ground should not have been granted:

“Business Corporation Law § 1312(a) constitutes a bar to the maintenance of an action by a foreign corporation found to be doing business in New York without . . . the required authorization to do business there” … . “The purpose of that section is to regulate foreign corporations which are doing business’ within the State, not . . . to enable the avoidance of contractual obligations” … . “[T]he party relying upon this statutory barrier bears the burden of proving that the corporation’s business activities in New York were not just casual or occasional, but so systematic and regular as to manifest continuity of activity in the jurisdiction”… . “[A]bsent proof establishing that the [subject corporation] is doing business in New York, it is presumed that [it] is doing business in [the] State of incorporation, and not in New York” … .

The defendant failed to establish, prima facie, that “[the appellant] conducted continuous activities in [New York] essential to its corporate business” … . Therefore, “the presumption that [the appellant] does business, not in New York but in its State of incorporation has not been overcome” … . JPMorgan Chase Bank, N.A. v Didato, 2020 NY Slip Op 03903, Second Dept 7-15-20

 

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SUPREME COURT SHOULD NOT HAVE CONFIRMED THE REFEREE’S REPORT ABSENT A HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the referee’s report should not have been confirmed in the absence of a hearing on notice to the property owner, TEP:

… [T]he Supreme Court should not have confirmed the referee’s report in the absence of a hearing on notice to TEP (see CPLR 4313 …). Although the notice accompanying the plaintiff’s proposed referee’s oath notified TEP of the due date for the submission of documents to the referee, it did not indicate that the submission of such papers would be in lieu of a hearing … . Further, the Supreme Court erred in rejecting TEP’s contention, raised in opposition to the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale, that ” [t]he referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record inasmuch as the computation was premised upon unproduced business records'” … . Moreover, the referee’s report also failed to identify any documents or other sources upon which the referee based her finding that the mortgaged premises should be sold in one parcel … . HSBC Bank USA, N.A. v Tigani, 2020 NY Slip Op 03901, Second Dept 7-15-20

 

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THE COURT’S ORDER DIRECTING PLAINTIFFS TO FILE A NOTE OF ISSUE DID NOT COMPLY WITH THE CRITERIA FOR A 90-DAY NOTICE PURSUANT TO CPLR 3216; THE COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiffs’ motion to restore the action to active status and to extend the time to serve and file a note of issue should have been granted. Supreme Court, after a compliance conference, directed plaintiffs to file a note of issue by August 4, 2016, which was 21 days from the date of the compliance conference order. The compliance order therefore did not meet the statutory criteria for a valid 90-day notice pursuant to CPLR 3216. Supreme Court should not have, sua sponte, directed dismissal of the complaint pursuant to CPLR 3216:

The compliance conference order dated July 14, 2016, did not constitute a valid 90-day demand pursuant to CPLR 3216 because it directed the plaintiffs to file a note of issue within 21 days, rather than 90 days, of the date of the order … . Furthermore, the compliance conference order failed to set forth any specific conduct constituting neglect by the plaintiffs in proceeding with the litigation (see CPLR 3216[b][3] …). In addition, the Supreme Court failed to give the parties notice and an opportunity to be heard prior to, sua sponte, directing dismissal of the complaint pursuant to CPLR 3216 … .

Since the statutory preconditions to dismissal were not met, the Supreme Court should not have, sua sponte, directed dismissal of the complaint pursuant to CPLR 3216 … .

Contrary to the respondents’ contention, this action could not have properly been dismissed pursuant to CPLR 3126, since there was no motion requesting this relief … . Christiano v Heatherwood House at Holbrook II, LLC, 2020 NY Slip Op 03891, Second Dept 7-15-20

 

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FAMILY COURT ALLOWED MOTHER TO TESTIFY BY TELEPHONE WITHOUT WARNING HER A NOTARY SHOULD BE PRESENT SO SHE COULD BE SWORN AND THEN, SUA SPONTE, REJECTED MOTHER’S TESTIMONY BECAUSE IT WAS NOT SWORN; NEW HEARING ORDERED (THIRD DEPT).

The Third Department, reversing Family Court in this child support violation proceeding, determined that mother’s testimony by telephone should not have been rejected, sua sponte, because it was unsworn. Family Court allowed mother to testify and mother, who was facing incarceration for the child-support violation, had not been warned to have a notary present so her testimony could be sworn:

In noting the lack of a notary present with the mother to swear her in, Family Court correctly identified a critical issue about to unfold at the hearing, but then took no timely corrective action to address the issue, permitted the unsworn questioning to occur and then, in its written decision, found fault with the very unsworn testimony methodology that it had permitted to occur at the hearing. The correct course of action would have been for the court to explain up front that, if the mother wished to testify, she would have to do so under oath and then administer the oath itself if the mother had not made other suitable arrangements. Given that the mother was facing a potential period of incarceration of up to six months in the event that Family Court determined that her failure to pay child support was willful (see Family Ct. Act § 454 [3] [a]), the mother’s testimony was essential to the court’s determination as to whether she had had the ability to pay or willfully disobeyed the prior support order. Thus, having permitted the mother to give unsworn testimony telephonically, it was error for Family Court to thereafter sua sponte rule, nearly 1½ months after the hearing, that it would not credit the mother’s testimony given that it was not sworn.  Matter of Burnett v Andrews-Dyke, 2020 NY Slip Op 03838, Third Dept 7-9-20

 

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THE ATTORNEY GENERAL PROPERLY SERVED VALID SUBPOENAS ON THE VIRTUAL CURRENCY COMPANIES PURSUANT TO GENERAL BUSINESS LAW 352 (MARTIN ACT) IN A FRAUD INVESTIGATION; ONCE THE MOTIONS TO VACATE OR MODIFY THE EX PARTE ORDER RE: THE ISSUANCE OF THE SUBPOENAS WAS DETERMINED, THE COURT NO LONGER HAD ANY AUTHORITY OVER THE ATTORNEY GENERAL’S INVESTIGATION; THEREFORE THE VIRTUAL CURRENCY COMPANIES’ SUBSEQUENT MOTION TO DISMISS WAS NOT PROPERLY BEFORE SUPREME COURT OR THE APPELLATE DIVISION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined that the Attorney General (petitioner) properly served subpoenas on the virtual currency companies (respondents) pursuant to General Business Law (GBL) 352 (Martin Act) in a fraud investigation. The subpoenas were attacked on several grounds, all of which were rejected: (1) subject matter jurisdiction (arguing the virtual currency is not a commodity or a security): (2) long-arm jurisdiction (arguing insufficient contacts with New York); (3) ex parte order was not certified as required by GBL 352 (court found this a technical not jurisdictional defect). But before addressing the issues raised on appeal, the Second Department held that the court did not have statutory authority under the GBL to address the respondents’ motion to dismiss (which was the basis of the appeal). Under the GBL, once the motions to vacate or modify the subpoenas were determined, the court has no authority over the Attorney General’s investigation:

… [U]nder the Martin Act’s statutory scheme, once Supreme Court has issued an order responding to a GBL 354 application, it has no further role in the Attorney General’s investigation, except to rule on a motion by either party to vacate or modify the order, as respondents made here. Accordingly, once the court issued the order authorized by GBL 354 on April 24, 2019, and modified it by order dated May 16, 2019, the proceeding before it was concluded and there was no action or proceeding for Supreme Court to “dismiss” on May 21, 2019 when respondents filed their motion that resulted in the order now before the court. All that remained was the Attorney General’s ongoing investigation, in which, by statute, the courts have no further role at this stage. Indeed, neither party cites to, and this Court is unaware of, any prior case in which the subject of a Martin Act investigation has moved to “dismiss” an application by the Attorney General for an order pursuant to GBL 354. Matter of James v iFinex Inc., 2020 NY Slip Op 03880, First Dept 7-9-20

 

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