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FRENCH COMPANY WHICH MANUFACTURED ELEVATOR BRAKES FOR SALE TO OTHER MANUFACTURERS DID NOT HAVE SUFFICIENT CONTACTS WITH NEW YORK TO CONFER JURISDICTION IN THIS ELEVATOR MALFUNCTION CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined New York did not have jurisdiction over a French company (Warner Europe) which manufactured elevator brakes in this elevator-malfunction case. The French company sold the brakes to other companies which incorporated the brakes into their elevator A.C. drives:

Warner Europe established that it does not sell the elevator brakes it manufactures in France to any customers in New York or contract with any other company to distribute its elevator brakes to customers in New York. Instead, it sells its elevator brakes as component parts to other manufacturers which incorporate them into A.C. drives, which are then sold to other manufacturers that incorporate the A.C. drives containing the elevator brakes into elevator systems. Warner Europe also established that it has no knowledge of the end users of the elevator brakes, and that it does not sell replacement elevator brakes or component parts to the end-user customers who purchased the elevators into which they were incorporated. Warner Europe also established that its products were neither sold nor advertised online. Finally, Warner Europe showed that it has no real or personal property in New York, no registered agent or telephone number in New York, and no bank or investment account in New York, and that it does not advertise in New York. Thus, the record does not support a finding that Warner Europe knew or reasonably should have known that its manufacture and sale of elevator brakes would have a direct consequence in New York… such that long-arm jurisdiction could be exercised.

Moreover, the plaintiffs and the defendants that opposed Warner Europe’s motion to dismiss did not make a showing of a “sufficient start” to warrant the denial of the motion … . There is no basis to allow discovery to be conducted on the issue of personal jurisdiction since the opposing parties did not allege any facts which, if proven, would establish that Warner Europe may be subject to personal jurisdiction in New York … . Grandelli v Hope St. Holdings, LLC, 2019 NY Slip Op 07386, Second Dept 10-16-19

 

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JUDGE WAS WITHOUT AUTHORITY TO DISMISS THE FORECLOSURE COMPLAINT; ISSUE HAD NOT BEEN JOINED AND THERE WAS NO EVIDENCE PLAINTIFF FAILED TO APPEAR AT A SCHEDULED CONFERENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court was without authority to dismiss (sua sponte) the complaint in this foreclosure action because (1) issue had not been joined, and (2) there was no evidence plaintiff failed to appear at a conference:

CPLR 3216(b)(1) states that no dismissal should be made under this statute unless issue has been joined. “A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met”  … . Here, none of the defendants submitted an answer to the complaint and, thus, issue was never joined (see CPLR 3216[b][1] …). “Since at least one precondition set forth in CPLR 3216 was not met here, the Supreme Court was without power to dismiss the action pursuant to that statute” … . …

Contrary to the defendant’s contention, where, as here, a party “appeared as scheduled, [22 NYCRR 202.27] provides no basis for the court to summarily dismiss the action” for failure to prosecute … . In general, “[t]he procedural device of dismissing a complaint for undue delay is a legislative creation, and courts do not possess the inherent power to dismiss an action for general delay where the plaintiff has not been served with a 90-day demand to serve and file a note of issue pursuant to CPLR 3216(b) … . Bank of N.Y. v Harper, 2019 NY Slip Op 07378, Second Dept 10-16-19

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED DEFENDANTS AN EXTENSION OF TIME TO ANSWER IN THIS FORECLOSURE ACTION, RELIEF WHICH WAS NOT REQUESTED BY DEFENDANTS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, granted relief in this foreclosure action which was not requested by the defendant:

“The court may grant relief that is warranted pursuant to a general prayer for relief contained in a notice of motion if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party” … . Here, the defendants did not request an extension of time to answer, and the Supreme Court’s determination to, sua sponte, grant that relief was an improvident exercise of discretion. Indeed, to extend the time to answer the complaint, a defendant must generally provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action … . Here, the only excuse offered by the defendants for their default was the plaintiff’s alleged failure to properly serve them, which excuse was rejected by the Supreme Court. Further, the defendants did not proffer any potentially meritorious defense to the action. We note also that the court’s sua sponte determination to extend the time within which the defendants had to answer the complaint is fundamentally inconsistent with its determination to deny that branch of the defendants’ motion which was to vacate the judgment of foreclosure and sale. Since the judgment determined the action and the rights of the parties, allowing the defendants to interpose an answer was without practical import. U.S. Bank N.A. v Halevy, 2019 NY Slip Op 07438, Second Dept 10-16-19

 

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JUDGE HAD THE AUTHORITY TO SEVER TWO COUNTS IN AN INDICTMENT AND REMOVE THE MATTER, INVOLVING A JUVENILE, TO FAMILY COURT; THE PEOPLE’S ARTICLE 78 SEEKING PROHIBITION DENIED AND DISMISSED (FIRST DEPT).

The First Department denied the People’s Article 78 action seeking to vacate an order by the respondent judge severing two counts which had been combined in an indictment and removing the charges to Family Court. The People objected to removing the prosecution of a 16-year-old to Family Court. In order the facilitate the removal, respondent judge severed the two counts. The People unsuccessfully argued the judged did not have the authority to sever the counts, and therefore could not send the charges to Family Court:

“[T]he extraordinary remedy of prohibition lies only where there is a clear legal right, and only when a court . . . acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction” … . “Use of the writ is, and must be, restricted so as to prevent incessant interruption of pending judicial proceedings by those seeking collateral review of adverse determinations made during the course of those proceedings” … .

There is no merit in the People’s contention that the court lacks the authority to sever charges that were joined in a single indictment. This argument would have validity in cases where charges were properly joinable in a single indictment. However, the law is clear that the determination of whether the charges were, in fact, properly joinable in the first instance, is a duty of the court that is not delegated to the prosecution or the grand jury.

The court has a duty to examine the indictment to determine whether joinder is proper pursuant to CPL 200.20(a) or (b). Notably, the People have not provided any precedent to support their position to the contrary. Courts routinely rule on the issue of whether charges in an indictment are properly joinable under CPL 200.20(2) and sever those charges that are not … .

While the People disagree with the court’s finding that the … charges were not properly joinable under CPL 200.20(2)(b), determination of this issue is not before us in this article 78 proceeding. Rather, we are only asked, and we only have the authority, to determine whether the court acted without jurisdiction or in excess of its authority. Matter of Vance v Roberts, 2019 NY Slip Op 07358, First Dept 10-10-19

 

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BANK’S EVIDENCE OF STANDING DID NOT MEET THE CRITERIA OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, reversing Supreme Court. determined that the bank’s motion for summary judgment should not have been granted because the evidence of standing submitted by the bank did not meet the requirements of the business records exception to the hearsay rule:

… [T]he plaintiff failed to meet its prima facie burden of establishing that it had standing …. The affidavits of Andrea Kruse, vice president of loan documentation for Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the plaintiff’s servicer, failed to lay the proper foundation under the business records exception to the hearsay rule to support her assertion that the note was transferred to the plaintiff’s custodian prior to commencement of the action and remained in the possession of the plaintiff’s custodian at the time of commencement …. While, in attempting to rely upon the documentary evidence that was annexed to the motion, Kruse averred in her first affidavit that she reviewed the books and records regularly created, maintained, and kept by Wells Fargo, and in her second affidavit that she reviewed the books and records regularly created, maintained, and kept by the plaintiff, she did not attest that she was personally familiar with the plaintiff’s or Wells Fargo’s record-keeping practices and procedures, or that the plaintiff’s records were incorporated into Wells Fargo’s own records or routinely relied upon in its business … . US Bank Natl. Assn. v Hunte, 2019 NY Slip Op 07311, Second Dept 10-9-19

 

PLAINTIFF WAIVED ITS RIGHT TO A JURY TRIAL BY INCLUDING A REQUEST FOR EQUITABLE RELIEF; ONCE WAIVED THE RIGHT CANNOT BE REVIVED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had waived its right to a jury trial by including a request for equitable relief and, once waived, the right cannot be revived:

Plaintiff has waived its right to a jury trial. When, as here, the complaint either joins legal and equitable causes of action arising out of the same alleged wrong or seeks both legal and equitable relief, there is a waiver of a plaintiff’s right to a jury trial … . Plaintiff’s sixth cause of action for a permanent injunction sounds in equity, is not incidental to the remaining claims and as a result of its inclusion, it can no longer be said that money damages would afford a complete remedy … . Furthermore, “[o]nce the right to a jury trial has been intentionally lost by joining legal and equitable claims, any subsequent dismissal, settlement or withdrawal of the equitable claim(s) will not revive the right to trial by jury” … . Errant Gene Therapeutics, LLC v Sloan-Kettering Inst. for Cancer Research, 2019 NY Slip Op 07226, First Dept 10-8-19

 

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THERE WAS NO CONFLICT BETWEEN NEW YORK AND PENNSYLVANIA LAW IN THIS PERSONAL INJURY CASE, THEREFORE NEW YORK LAW APPLIES AND THERE IS NO NEED FOR A CHOICE OF LAW ANALYSIS (FOURTH DEPT).

The Fourth Department determined New York applies in this action stemming from an accident in Pennsylvania:

New York law controls the resolution of its motion and this appeal. “[B]ecause New York is the forum state, i.e., the action was commenced here, New York’s choice-of-law principles govern the outcome of this matter’ ”  … . “The first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved” … . Here, defendant failed to establish the existence of any conflict between New York and Pennsylvania law with respect to the issues raised in the motion, and therefore we need not engage in any choice of law analysis … . Farnham v MIC Wholesale Ltd, 2019 NY Slip Op 07178, Fourth Dept 10-4-19

 

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APPELLANT WAS NOT AGGRIEVED BY SUPREME COURT’S DECISION WHICH DENIED HER MOTION WITHOUT PREJUDICE PENDING FURTHER DISCOVERY; THEREFORE THE APPEAL MUST BE DISMISSED (THIRD DEPT).

The Third Department determined the plaintiff’s Joan and Christopher Porco were not aggrieved by Supreme Court’s ruling and therefore could not appeal it. The underlying action alleges Civil Rights Law (right to privacy) violations related to a film made by defendant about a crime committed by Christopher Porco. The complaint alleged the film had been republished making the action timely. Supreme Court denied the motion without prejudice to try again after discovery:

Christopher Porco is not an aggrieved party. Defendant’s motion sought dismissal of only those claims asserted by Joan Porco. In other words, defendant did not seek any relief against Christopher Porco. Supreme Court likewise did not grant defendant any relief against him. Accordingly, Christopher Porco has no basis to appeal from the February 2018 order.

Regarding Joan Porco, Supreme Court held that she could not rely on the relation back doctrine for her claims in the amended complaint to be timely asserted. The court nonetheless denied defendant’s motion without prejudice to renew upon completion of discovery after considering plaintiffs’ republication argument. … Accordingly, the court neither granted defendant any affirmative relief against Joan Porco nor withheld any affirmative relief requested by Joan Porco. Indeed, the only affirmative relief sought by Joan Porco was for leave to serve a second amended complaint, which the court granted and is not contested on appeal. Because Joan Porco was not granted incomplete relief, the exception to the aggrievement requirement … does not apply in this case.

Furthermore, a party is not aggrieved when his or her interests are only remotely or contingently affected by the order appealed from … . Although Joan Porco’s claims are subject to dismissal in the future given that Supreme Court denied defendant’s motion without prejudice to renew, it is possible that defendant may never seek to renew its motion. And, even if defendant did move to renew, we can only surmise at this juncture how the court would decide it. Finally, to the extent that Joan Porco is dissatisfied with the court’s rationale concerning the relation back doctrine, such dissatisfaction does not make her an aggrieved party … . Porco v Lifetime Entertainment Servs., LLC, 2019 NY Slip Op 07122, Third Dept 10-3-19

 

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VERDICT AWARDING ZERO DAMAGES FOR PAST PAIN AND SUFFERING IN THIS POLICE EXCESSIVE-FORCE CASE SET ASIDE; NEW TRIAL ORDERED UNLESS THE PARTIES STIPULATE TO A $200,000 DAMAGES AWARD (FIRST DEPT).

The First Department determined the verdict awarding plaintiff zero damages for past pain and suffering should have been set aside in this police-excessive-force case (42 USC 1983). The court ordered a new trial unless the parties stipulated to a $200,000 damages award:

Plaintiff sustained injuries when a New York City police officer smashed him in the nose with a bullet-proof shield after entering his apartment to execute a search warrant. After a trial, the jury found that the officer violated plaintiff’s rights under the Fourth Amendment to the U.S. Constitution by using excessive force while arresting him and that the excessive force was a substantial factor in causing his injuries. However, the jury awarded plaintiff no damages for pain and suffering. * * *

However, we find that the jury’s failure to award damages for past pain and suffering is contrary to a fair interpretation of the evidence and deviates materially from what would be reasonable compensation (CPLR 5501[c]; …). The undisputed evidence establishes that plaintiff was in pain the first night after being struck, that for about two weeks after the incident his broken nose and orbital bone fractures were “kind of rough,” that he could only breathe through his mouth, that he had to get medication, that he suffered “really bad” headaches, and that he required reconstructive nasal surgery as a result of his injuries. Shimukonas v City of New York, 2019 NY Slip Op 07147, First Dept 10-3-19

 

NEITHER A CERTIFICATION ORDER NOR A STIPULATION EXTENDING THE DATE FOR FILING A NOTE OF ISSUE MET THE REQUIREMENTS OF A 90-DAY NOTICE; THE DISMISSAL OF THE ACTION WAS INVALID; THE MOTION TO RESTORE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action was not properly dismissed pursuant to CPLR 3216 and plaintiff’s motion to restore the action to the calendar should have been granted:

… [T]he Supreme Court issued a certification order which … certified the matter for trial and directed the plaintiff to file a note of issue within 90 days. The order provided that “[i]f plaintiff does not file a note of issue within 90 days this action may be dismissed. (CPLR 3216).” Thereafter, the parties executed a stipulation dated June 15, 2017, extending the date by which the note of issue must be filed to September 7, 2017. The action was ministerially dismissed on June 21, 2017, without further notice to the parties. …

An action cannot be dismissed pursuant to CPLR 3216(a) “unless a written demand is served upon the party against whom such relief is sought’ in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed'” … .

The certification order, which purported to serve as a 90-day notice pursuant to CPLR 3216, was defective as it did not state that the plaintiff’s failure to comply with the demand would serve as a basis for the court, on its own motion, to dismiss the action for failure to prosecute … . Furthermore, contrary to the determination of the Supreme Court, the subsequent stipulation … , which purported to extend the plaintiff’s deadline for filing a note of issue … , did not constitute a valid 90-day demand … .

Moreover, it is evident from the record that the action was ministerially dismissed without a motion or notice to the parties, and there was no order of the court dismissing the action … . Rosenfeld v Schneider Mitola LLP, 2019 NY Slip Op 06813, Second Dept 9-25-19

 

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