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ALTHOUGH THE ARTICLE 78 PETITION WAS VERIFIED BY AN ATTORNEY, THE VERIFICATION WAS VALID BECAUSE THE ATTORNEY HAD FIRST-HAND KNOWLEDGE OF THE FACTS; IN ADDITION, ANY DEFECTS IN THE VERIFICATION WERE WAIVED BY RESPONDENTS; PRIOR ARBITRATION PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT WAS NOT AN OBSTACLE TO THE PETITION ALLEGING A VIOLATION OF THE EDUCATION LAW CONCERNING THE SUSPENSION OF A SCHOOL PRINCIPAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the verification of an Article 78 petition by petitioner’s attorney was valid because the attorney had first hand knowledge of the contents and, even if the verification was invalid, the respondent had waived any objection to it. The matter concerns the suspension of a school principal which had been the subject of arbitration pursuant to the collective bargaining agreement. The arbitration was not an obstacle to these proceedings brought pursuant to the Education Law because the issues are not the same.  The issue involved in the Article 78 petition, an interpretation of Education Law 2566 (6), was not the kind of issue which must first be brought before the Commissioner of Education:

Although the verification requirement of CPLR 7804 (d) must ordinarily be completed by a party, a verification “may be made by [a party’s] attorney [where, as here,] all the material allegations of the pleading are within the personal knowledge of . . . [that] attorney’ ” …  Moreover, a party challenging the sufficiency of a verification is required “to give notice with due diligence to the attorney of the adverse party that he [or she] elect[ed]’ to treat the petition as a nullity” … . Thus, even assuming, arguendo, that the verification by petitioner’s attorney was insufficient, we conclude that respondents waived any challenge to the petition on that ground by failing to make the requisite diligent efforts and instead waiting a month before seeking dismissal of the petition on that basis … . …

… .[A]lthough Education Law § 310 provides … that any party aggrieved by an official act or decision of school authorities “may appeal by petition to the [C]ommissioner of [E]ducation,” the Commissioner exercises primary jurisdiction only where the matter involves an issue requiring his or her specialized knowledge and expertise … . Petitioner’s contention regarding section 2566, however, requires no more than the interpretation and application of the plain language of that statute for which no deference to the Department of Education is required … . Matter of Buffalo Council of Supervisors & Adm’rs, Local #10 v Cash, 2019 NY Slip Op 05895, Fourth Dept 7-31-19

 

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PLAINTIFF BANK WAS ENTITLED TO AN ORDER REQUIRING THE COUNTY CLERK TO RECORD A MORTGAGE, THE ORIGINAL OF WHICH HAD ALLEGEDLY BEEN LOST; AN ATTORNEY AFFIDAVIT IS AN APPROPRIATE VEHICLE FOR THE SUBMISSION OF DOCUMENTS IN ADMISSIBLE FORM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank was entitled to an order requiring the county clerk to accept a copy of a mortgage for recording (the original allegedly had been lost and was never recorded). The Second Department further determined that an attorney affidavit was an appropriate vehicle for the submission of the documents to be recorded, which were in admissible form:

The plaintiff established its prima facie entitlement to judgment as a matter of law on the first cause of action, which sought an order directing the Suffolk County Clerk to accept a copy of the mortgage for recording. The County Clerk has a statutory duty that is ministerial in nature to record a written conveyance if it is duly acknowledged and accompanied by the proper fee (see Real Property Law §§ 290[3]; 291; County Law § 525[1]). “Accordingly, the Clerk does not have the authority to refuse to record a conveyance which satisfies the narrowly-drawn prerequisites set forth in the recording statute” … . Here, the copy of the mortgage submitted on the motion, which is notarized, was subject to recording … . Contrary to the Supreme Court’s determination, the complaint adequately stated a cause of action for this relief … , and the plaintiff’s failure to submit an affidavit of someone with personal knowledge of the facts was not fatal to the motion. The affidavit or affirmation of an attorney, even if he or she has no personal knowledge of the facts, may serve as the vehicle for the submission of acceptable attachments which provide evidentiary proof in admissible form, e.g., documents and transcripts … . JPMorgan Chase Bank, N.A. v Wright, 2019 NY Slip Op 05966, Second Dept 7-31-19

 

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FAILURE TO DISCLOSE THE SLIP AND FALL ACTION AS AN ASSET IN A BANKRUPTCY PROCEEDING DEPRIVED PLAINTIFF OF THE LEGAL CAPACITY TO SUE (SECOND DEPT).

The Second Department determined plaintiff did not have the legal capacity to sue in this slip and fall case because the action was not listed as an asset in a prior bankruptcy proceeding:

“The failure of a party to disclose a cause of action as an asset in a prior bankruptcy proceeding, which the party knew or should have known existed at the time of that proceeding, deprives him or her of the legal capacity to sue subsequently on that cause of action'” … .

Here, it is undisputed that the plaintiff did not disclose, in the bankruptcy petition that she filed in October 2015, the existence of the cause of action to recover damages for personal injuries that she had previously asserted against the defendant. The defendant established, prima facie, that when the petition was filed, the plaintiff knew or should have known of the existence of her cause of action, and the plaintiff failed to raise a triable issue of fact in opposition to that prima facie showing … . Jean-Paul v 67-30 Dartmouth St. Owners Corp., 2019 NY Slip Op 05965, Second Dept 7-31-19

 

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NONPARTY SUBPOENA SHOULD NOT HAVE BEEN QUASHED IN THIS OUT-OF-STATE ASBESTOS-RELATED INSURANCE ACTION, THE NONPARTY HAD BEEN EMPLOYED BY THE INSURER AND MAY POSSESS RELEVANT KNOWLEDGE ABOUT HOW THE INSURANCE POLICIES WERE INTERPRETED AND ENFORCED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the petition to quash a nonparty subpoena in this out-of-state asbestos-related insurance action should not have been granted:

“CPLR 3101 (a) (4) allows a party to obtain discovery from a nonparty, and provides that [t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof’ ” … . The phrase “material and necessary” in CPLR 3101 “must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity’ ” …

“An application to quash a subpoena should be granted [o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious . . . or where the information sought is utterly irrelevant to any proper inquiry” … , and the burden is on the party seeking to quash a subpoena to make such a showing … . …

“[A] witness’s sworn denial of any relevant knowledge …” … is insufficient, standing alone, to establish that the discovery sought is utterly irrelevant to the action or that the subpoena, if honored, will obviously and inevitably fail to turn up relevant evidence  … . … [The nonparty’s] deposition testimony is … potentially relevant because she has personal knowledge of how [the insurer] interpreted and enforced similar “consent” provisions of other excess policies while she was employed by [the insurer]. Matter of Barber v Borgwarner, Inc., 2019 NY Slip Op 05850, Fourth Dept 7-31-19

 

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FORECLOSURE ACTION ABANDONED, BANK FAILED TO INITIATE DEFAULT JUDGMENT PROCEEDINGS WITHIN ONE YEAR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff bank had abandoned the foreclosure action by failure to move for a default judgment within one year. The bank’s participation in mandatory settlement conferences did not constitute the initiation of an action for a default judgment:

CPLR 3215(c) provides, in part, that if the plaintiff fails to take proceedings for the entry of judgment within one year after the defendant’s default, “the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion” … . “The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts shall’ dismiss claims … for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned” … . However, the failure to timely seek a default judgment may be excused if “sufficient cause is shown why the complaint should not be dismissed” … . To establish sufficient cause as required by CPLR 3215(c), a plaintiff must proffer a reasonable excuse for the delay in timely moving for a default judgment and demonstrate that it has a potentially meritorious cause of action … .

… [A]fter this action was released from the mandatory foreclosure settlement conference part in July 2016, the plaintiff was authorized to proceed with the prosecution of this action. However, despite the fact that the appellants failed to answer or otherwise appear in the action after being served with process, the plaintiff took no steps to initiate proceedings for the entry of a default judgment against the appellants. The plaintiff’s participation in the mandatory foreclosure settlement part conferences did not constitute the initiation of proceedings for the entry of a default judgment. Moreover, more than one year passed from the time that the plaintiff was authorized to resume prosecution of this action prior to the appellants moving in October 2017 to dismiss the complaint as abandoned …. In light of the plaintiff’s failure to meet its burden to show sufficient cause why the complaint should not be dismissed as abandoned, it is not necessary to address the issue of whether the plaintiff demonstrated that it had a potentially meritorious cause of action … . HSBC Bank USA, N.A. v Slone, 2019 NY Slip Op 05963, Second Dept 7-31-19

 

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EYEWITNESS TESTIMONY THAT DEFENDANT IN THIS TRAFFIC ACCIDENT CASE APPEARED TO BE INTOXICATED SHOULD NOT HAVE BEEN EXCLUDED, THE EVIDENCE WAS RELEVANT TO DEFENDANT’S RELIABILITY AS A WITNESS AND COULD PROPERLY HAVE BEEN PRESENTED IN REBUTTAL TO DEFENDANT’S TESTIMONY, PLAINTIFFS’ MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion to set aside the defense verdict in this traffic accident case should have been granted. There was sharply conflicting testimony about how the accident happened and whether defendant fled the scene. A witness, Stephen, who allegedly chased defendant down after the accident was not allowed to testify that defendant appeared to be intoxicated:

We agree with plaintiffs that the court erred in excluding Stephen’s testimony that defendant exhibited indicia of intoxication during their interaction immediately after the accident and that, in his opinion, she was intoxicated. Although defendant’s failure to remain at the scene meant that Stephen was the only witness who had an opportunity to observe defendant and interact with her after the accident, the court prohibited Stephen from testifying about his observations of defendant on the ground that he was not an “expert” in signs of intoxication. Contrary to the court’s ruling, it is well settled that a lay witness may testify regarding his or her observation that another individual exhibited signs of intoxication … , and also regarding his or her opinion that another individual was intoxicated … . …

… [P]laintiffs should have been permitted to present Stephen’s testimony with respect to whether defendant appeared to be intoxicated, which would allow the jury to consider whether and to what degree alcohol impaired defendant’s senses and her ability to accurately perceive and recall the events about which she testified at trial. …

… Stephen’s proposed testimony regarding his observations of defendant, i.e., that she fumbled with her license, slurred her speech, and smelled of alcohol, was not cumulative of other evidence already before the jury … . …

Defendant testified that she did not fumble with her license, her speech was not slurred, she did not recall her eyes being “glassy,” and there was no alcohol on her breath. Thus, the excluded testimony from Stephen would have provided ” evidence in denial of some affirmative fact which [defendant] has endeavored to prove’ ” … and therefore fell within the scope of permissible rebuttal evidence.  Brooks v Blanchard, 2019 NY Slip Op 05847, Fourth Dept 7-31-19

 

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COMMISSIONER OF LABOR AND INDUSTRIAL BOARD OF APPEALS COULD NOT PURSUE STATE WAGE CLAIMS ON BEHALF OF CLAIMANTS WHO ARE SUBJECT TO A CLASS ACTION SETTLEMENT IN FEDERAL DISTRICT COURT IN WHICH THE STATE WAGE CLAIMS WERE RELEASED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, determined that the Commissioner of Labor and the Industrial Board of Appeals (IBA) were bound by the federal district court’s release in a class action alleging failure to pay minimum wages, failure to pay overtime wages and unlawful deductions. The IBA had awarded two members of the class state wage claims together with interest and penalties:

Procedurally, IBA erred in entertaining this issue. In the final approval order, the District Court clearly and unmistakably retained exclusive and continuing subject matter jurisdiction of the Stewart class action “for the purposes of supervising the implementation, effectuation, enforcement, construction, administration and interpretation of the Settlement Agreement and this Judgment.” Undoubtedly, the District Court “has the power to enforce an ongoing order against relitigation so as to protect the integrity of a complex class settlement over which it retained jurisdiction” … . … * * *

Because we have determined that claimants have released their dual wage claims, the focus now necessarily concerns the concept of privity, and whether it exists between claimants and respondents [Commissioner of Labor, et al]. We find that the holding in Applied Card Sys., Inc. (11 NY3d at 124) is dispositive of this issue.

The Applied Card Court addressed whether the state Attorney General was precluded under the doctrine of res judicata from pursuing on the class members’ behalf their restitution claims released in an underlying class action settlement. The Court held that because the Attorney General was pursuing claims identical to the ones that had been released that fact alone established privity … . The facts herein are virtually indistinguishable from Applied Card. Here, respondents, on behalf of claimants, seek to pursue their released dual wage claims. As such, privity has been established between claimants and respondents. Matter of Silvar v Commissioner of Labor of the State of N.Y., 2019 NY Slip Op 05841, First Dept 7-30-19

 

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SPOLIATION WARRANTED STRIKING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the destruction of plaintiff’s truck, which was allegedly struck by defendant’s truck, warranted striking the complaint:

… [O]n their motion pursuant to CPLR 3126 to strike the complaint, the defendants sustained their burden of establishing that the plaintiff was obligated to preserve the truck at the time it was purportedly “seized and disposed” of, that the truck had been seized and disposed of before the defendants had an opportunity to inspect it, and that the truck was relevant to the litigation … . Furthermore, the defendants demonstrated that their ability to prove their defense had been significantly, if not fatally, compromised by the loss of the truck. Under the circumstances presented, the sanction of striking the complaint was appropriate … . Delmur, Inc. v School Constr. Auth., 2019 NY Slip Op 05764, Second Dept 7-24-19\

 

AN ORDER REQUIRING COMPLIANCE WITH DISCOVERY DEMANDS WHICH WAS NOT SERVED ON THE DEFENDANT BY THE PLAINTIFF IS NOT ENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an order that was not served on the defendant by the plaintiff, here an order striking the answer if discovery demands were not complied with by a specified date, was not enforceable:

… [T]he plaintiff, as the successful moving party given that the Supreme Court conditionally granted that branch of the prior motion which was to strike the defendant’s answer, was required to serve the May 2016 order on the defendant for that order to be enforceable against the defendant with respect to its answer being stricken in the event that it failed to provide discovery responses by June 17, 2016 … . The plaintiff’s contention that since the May 2016 order did not specify that the plaintiff had to serve a copy of that order with notice of entry upon the defendant, the plaintiff did not have to do so before that order was enforceable against the defendant, is without merit (see CPLR 2220). Since the defendant did not have notice of the May 2016 order, its failure to provide discovery responses by June 17, 2016, was not willful. Wolf Props. Assoc., L.P. v Castle Restoration, LLC, 2019 NY Slip Op 05808, Second Dept 7-24-19

 

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PLAINTIFF BANK IN THIS FORECLOSURE PROCEEDING SHOULD HAVE BEEN GRANTED AN EXTENSION OF TIME TO EFFECT SERVICE FOR GOOD CAUSE SHOWN AND IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action should have been granted more time to serve the defendant by publication:

Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time within which to effect service upon “good cause shown or in the interest of justice” … . “To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. Good cause will not exist where a plaintiff fails to make any effort at service, or fails to make at least a reasonably diligent effort at service. By contrast, good cause may be found to exist where the plaintiff’s failure to timely serve process is a result of circumstances beyond the plaintiff’s control” … .

If a plaintiff fails to establish good cause for an extension, courts must consider whether an extension is warranted in the interest of justice … . A showing of reasonably diligent efforts at service is not required, but courts may consider diligence along with other factors, including “the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant” … . Wilmington Sav. Fund Socy., FSB v James, 2019 NY Slip Op 05807, Second Dept 7-24-19

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