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THE HOSPITAL DEFENDANT WAS PROPERLY PRECLUDED FROM PRESENTING THE CPLR ARTICLE 16 DEFENSE AFTER THE OTHER POTENTIALLY LIABLE DEFENDANTS HAD BEEN SEVERED FROM THE ACTION AT THE HOSPITAL DEFENDANT’S REQUEST, AND AFTER THE HOSPITAL DEFENDANT HAD REPRESENTED TO THE COURT THE OTHER POTENTIALLY LIABLE DEFENDANTS WOULD NOT BE PART OF THE TRIAL, TWO JUSTICE DISSENT, THE HOSPITAL DEFENDANT’S REQUEST FOR THE ERROR IN JUDGMENT JURY INSTRUCTION WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined defendant hospital was properly precluded from presenting a CPLR article 16 defense (pursuant to the defense, a party deemed 50% liable or less pays only that portion of the damages) in this medical malpractice action. Plaintiff’s decedent was first treated at defendant hospital and then at defendant rehabilitation facilities (the Elderwoods). When plaintiff’s decedent was treated at the hospital she was given a high dosage of medication, Simvastatin, and that high dosage was continued at the Elderwoods. The dosage was four times higher than plaintiff’s decedent’s usual dosage. The high dosage caused plaintiff’s decedent’s extreme suffering and death. Earlier in the litigation, the Elderwoods moved for severance, the defendant opposed and the motion was denied. As the trial approached defendant moved to sever the Elderwoods, and represented to the court that the Elderwoods involvment would not be “a topic in the main action.” Then, at the trial, after plaintiff rested, defendant gave notice that it would present evidence of the Elderwoods’ negligence and asked to have them included on the verdict sheet pursuant to CPLR article 16. Noting that the plaintiff was not able to address the article 16 defense during the jury selection and trial, the Fourth Department held that the defendant was properly precluded from presenting the defense. The court also held that defendant’s request for an error in judgment jury instruction was properly denied:

We agree with defendant that the fact that the third-party action was severed does not extinguish a defendant’s article 16 defense. But, in this case, defendant represented before the trial started that the topic of care at the Elderwoods would not be discussed. If defendant had not made this representation, then plaintiff could have preempted or otherwise addressed this anticipated defense through opening statements and plaintiff’s own lay and expert witnesses in plaintiff’s case in chief, and thus could have suggested that the Elderwoods were not negligent before resting. As plaintiff’s counsel asserts, he could have examined his witnesses at trial differently had he known that the topic of the Elderwoods’ care, and thus the CPLR article 16 defense, was still on the table. …

It is well settled that “a doctor may be liable only if the doctor’s treatment decisions do not reflect his or her own best judgment, or fall short of the generally accepted standard of care” . An “error in judgment” charge “is appropriate only in a narrow category of medical malpractice cases in which there is evidence that defendant physician considered and chose among several medically acceptable treatment alternatives” … .

This case does not fall within that narrow category … . There was simply no evidence that there was any judgment made by hospital personnel to administer 80 mg/daily of Simvastatin to decedent. Mancuso v Health, 2019 NY Slip Op 03520, Fourth Dept 5-3-19

 

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BY JOINING IN A PRE-ANSWER MOTION TO DISMISS DEFENDANT EXTENDED ITS TIME TO ANSWER UNTIL TEN DAYS AFTER NOTICE OF ENTRY OF THE ORDER DECIDING THE MOTION TO DISMISS, SINCE DEFENDANT WAS NOT IN DEFAULT, IT COULD APPEAL THE ORDER FINDING IT IN DEFAULT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant did not default. Defendant (Advisors) had joined in a pre-answer motion to dismiss, which extended the time for serving an answer until ten days after notice of entry of the order deciding the motion to dismiss. Because defendant was not in default, it could appeal:

Defendant’s time to answer the complaint was extended by virtue of its serving a notice of motion, together with its co-defendants, seeking dismissal of the causes of action asserted against the co-defendants, pursuant to CPLR 3211(f) (see also CPLR 320[a]; 3012[a], [c]). Generally, a CPLR 3211(a) motion to dismiss made against any part of a pleading extends the time to serve a responsive pleading to all of it … . Here, Advisors did not default, but appeared by joining in defendants’ motion to dismiss the causes of action asserted against the individual named defendants, thereby extending its time to answer the complaint … . Thus, Advisors had ten days from service upon it of notice of entry of the order deciding the partial motion to dismiss, to answer the causes of action against it, pursuant to CPLR 3211(f).

Defendant’s appeal from the order granting the default motion was proper, as it appeared and contested the application for entry of a default order below … . Accordingly, CPLR 5511, which generally prohibits an appeal from an order or judgment entered upon default, is inapplicable … . Levine v Singal, 2019 NY Slip Op 03438, First Dept 5-2-19

 

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PLAINTIFF’S VERIFIED COMPLAINT WAS NOT ‘DOCUMENTARY EVIDENCE’ WITHIN THE MEANING OF CPLR 3211, DEFENDANT’S MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED BASED UPON ALLEGATIONS IN PLAINTIFF’S VERIFIED COMPLAINT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff’s verified complaint in this prescriptive easement action was not “documentary evidence” within the meaning of CPLR 3211 (a)(1) and therefore could not be the basis for granting defendant’s motion to dismiss:

“A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint as barred by documentary evidence may be properly granted only if the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity” … . “Materials that clearly qualify as documentary evidence include documents reflecting out-of-court transactions such as mortgages, deed, contracts, and any other papers, the contents of which are essentially undeniable” … . Also, as relevant here, “[a] party claiming a prescriptive easement must show, by clear and convincing evidence, that the use of the easement was open, notorious, hostile and continuous for a period of 10 years” … .

Supreme Court, in granting defendant’s motion to dismiss, relied solely on plaintiffs’ verified complaint in which they admitted that, during the period of time that the right-of-way has been used by their patrons, plaintiffs were aware that defendant owned the subject property … . Accordingly, the court found that this knowledge rebutted the element of hostility and, as such, voided a necessary element of establishing a prescriptive easement. Although a complaint serves the important purpose of setting forth the plaintiff’s allegations, we do not find that it is “so essentially undeniable as to qualify as documentary evidence that conclusively refutes any claim that [a] plaintiff might have” … . Further, in a motion to dismiss pursuant to CPLR 3211, a “court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide [the] plaintiff the benefit of every possible inference” … ; therefore, the complaint cannot also conclusively refute itself, which is what Supreme Court attempted to do here. Koziatek v SJB Dev. Inc., 2019 NY Slip Op 03419, Third Dept 5-2-19

 

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BECAUSE NO PETITION HAD BEEN FILED IN THIS SUPPORT ENFORCEMENT PROCEEDING, FAMILY COURT DID NOT HAVE SUBJECT MATTER JURISDICTION, A DEFECT THAT MAY BE BROUGHT UP AT ANY TIME (THIRD DEPT).

The Third Department determined Family Court did not have subject matter jurisdiction over the support enforcement proceeding because no petition had been filed. The support magistrate had erroneously treated a request by Florida to register the Florida support judgment in New York as an “enforcement petition:”

The Uniform Interstate Family Support Act (see Family Ct Act art 5-B) provides that “[a] registered support order issued in another state . . . is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state” (Family Ct Act § 580-603 [b]). In New York, proceedings for the violation of a support order “shall be originated by the filing of a petition containing an allegation that the respondent has failed to obey a lawful [support] order,” and Family Court lacks subject matter jurisdiction to determine a violation claim without that petition (Family Ct Act § 453 … ). DSS was free to, and eventually did, file a petition alleging that the father had failed to comply with the support provisions contained in the 2014 judgment (see Family Ct Act §§ 453 [a]; 580-603 [b]). This proceeding did not arise out of that petition, however, and was not rendered viable by its filing … . Family Court accordingly lacked subject matter jurisdiction to render the appealed-from order, and “the claim that a court lacked subject matter jurisdiction ‘may be raised at any time and may not be waived'” … . Matter of Pudvah v Pudvah, 2019 NY Slip Op 03414, Third Dept 5-2-19

 

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ORDER ENTERED UPON CONSENT IS NOT APPEALABLE, COERCION ARGUMENT MUST BE RAISED IN A MOTION TO VACATE THE ORDER (THIRD DEPT).

The Third Department, dismissing the appeal in this neglect proceeding, noted that an order entered upon consent is not appealable. The argument that the consent was coerced must be raised in a motion to vacate the order:

Following consultation with her counsel, respondent … consented on the record to a finding of neglect. Family Court then entered an order that adjudicated the children to be neglected and contained the agreed-upon terms of disposition. Respondent appeals.

It is well settled that an order entered upon consent is not appealable … . Respondent’s claim that her consent was involuntary because she was coerced into accepting the settlement offer should have been raised in Family Court by way of a motion to vacate the order (see Family Ct Act § 1051 [f] … ). As the record does not reveal that any such application was made, the appeal is not properly before this Court. Matter of Vicktoriya DD. (Sheryl EE.), 2019 NY Slip Op 03411, Third Dept 5-2-19

 

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THE PURPORTED WAIVER OF THE STATUTE OF LIMITATIONS DEFENSE WAS NOT IN WRITING AS REQUIRED BY GENERAL OBLIGATIONS LAW 17-103, PLAINTIFF’S BREACH OF CONTRACT ACTION IS TIME-BARRED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Friedman, determined that, because the defendant’s (CFA’s) purported waiver of the statute of limitations defense was not in writing as required by General Obligations Law 17-103, plaintiff’s breach of contract action was time-barred:

To govern the … “subtle interplay . . . between the freedom to contract and New York public policy” … , the legislature enacted General Obligations Law § 17-103 (“Agreements waiving the statute of limitation”), the first paragraph of which provides:

“A promise to waive, to extend, or not to plead the statute of limitation applicable to an action arising out of a contract express or implied in fact or in law, if made after the accrual of the cause of action and made, either with or without consideration, in a writing signed by the promisor or his agent is effective, according to its terms, to prevent interposition of the defense of the statute of limitation in an action or proceeding commenced within the time that would be applicable if the cause of action had arisen at the date of the promise, or within such shorter time as may be provided in the promise” (General Obligations Law § 17-103[1] … ).

“An agreement to extend the statute of limitations that does not comply with these requirements [of § 17-103(1)] has no effect'” … . Sotheby’s, Inc. v Mao, 2019 NY Slip Op 03477, First Dept 5-2-18

 

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RES JUDICATA APPLIES TO ISSUES WHICH COULD HAVE BEEN RAISED IN A SMALL CLAIMS ACTION, NO NEED TO PIERCE THE CORPORATE VEIL TO BRING A BREACH OF FIDUCIARY DUTY ACTION AGAINST A FORMER PARTNER IN A PROFESSIONAL CORPORATION, JUDGE SHOULD NOT HAVE SEARCHED THE RECORD AND RENDERED SUMMARY JUDGMENT WHERE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT).

The Second Department, modifying Supreme Court, determined: (1) although the Small Claims Act provides that collateral estoppel (issue preclusion) does not apply to fact-findings made in a small claims action, the doctrine of res judicata does apply to any issue which could have been, but was not, raised in the small claims action; (2) a breach of fiduciary duty cause of action does not entail piercing the corporate veil in a proceeding against a former partner in a professional corporation; (3) the judge should not have searched the record to render summary judgment when neither party requested that relief:

… “[T]he elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct” … . Contrary to the Supreme Court’s finding, it is not necessary to pierce the corporate veil in order to maintain a cause of action alleging breach of fiduciary duty against former partners in a professional corporation. …

Since … neither party moved for summary judgment with respect to the counterclaims and none of the issues raised in the first, second, or third counterclaims were litigated in the summary judgment motion, or the small claims action, the Supreme Court should not have, in effect, searched the record and awarded the plaintiff summary judgment dismissing those counterclaims … . Weinberg v Picker, 2019 NY Slip Op 03400, Second Dept 5-1-19

 

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DOCUMENTS RELIED UPON BY PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, DOCUMENTS SUBMITTED IN REPLY DID NOT SATISFY PLAINTIFF’S BURDEN TO MAKE OUT A PRIMA FACIE CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the documentary evidence relied upon by plaintiff in this foreclosure action did not meet the criteria for the business records exception to the hearsay rule. Plaintiff’s motion for summary judgment should not have been granted. The court noted that documents submitted in reply could not be considered to satisfy the plaintiff’s burden of making out a prima facie case:

Although “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records, such records are nonetheless admissible if the recipient can establish personal knowledge of the maker’s business practices and procedures, or that the records provided by the maker were incorporated into the recipient’s own records or routinely relied upon by the recipient in its business” … . While [plaintiff’s vice president] averred, inter alia, that his affidavit was based on books and records maintained by the plaintiff, he did not state that Bank of America’s records were provided to the plaintiff and incorporated into the plaintiff’s own records, or that the plaintiff routinely relied upon such records in its business, or that he had personal knowledge of Bank of America’s business practices and procedures. Thus, he failed to lay the proper foundation for admission of these records … . The affidavit and documents submitted by the plaintiff for the first time in reply to the defendants’ opposition could not be used to satisfy the plaintiff’s prima facie burden.​ Tri-State Loan Acquisitions III, LLC v Litkowski, 2019 NY Slip Op 03398, Second Dept 5-1-19

 

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THERE IS NO REQUIREMENT THAT A MOTION TO CONFIRM A REFEREE’S REPORT IN A FORECLOSURE PROCEEDING BE MADE BEFORE A JUDGMENT OF FORECLOSURE MAY BE GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a plaintiff in a foreclosure action need not make a motion to confirm a referee’s report before a judgment of foreclosure can be granted:

… [T]he plaintiff moved … to confirm the referee’s report and for a judgment of foreclosure and sale. The court denied the motion without prejudice to renew upon confirmation of the referee’s report. The plaintiff appeals.

CPLR 4403 authorizes a court to confirm or reject a referee’s report and, thereafter, to “render decision directing judgment in the action.” There is no requirement under the statute that a motion to confirm a referee’s report be made before a motion for a judgment of foreclosure and sale may be brought. Accordingly, we remit the matter to the Supreme Court, Queens County, for a determination on the merits of the plaintiff’s motion … . Real Estate Mtge. Network, Inc. v Pretto, 2019 NY Slip Op 03390, Second Dept 5-1-19

 

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REPORT OF FIRE MARSHAL, WHO HAD NO INDEPENDENT RECOLLECTION OF HIS INVESTIGATION INTO THE CAUSE OF THE FIRE, WAS ADMISSIBLE PURSUANT TO THE BUSINESS RECORD EXCEPTION TO THE HEARSAY RULE, COURT SHOULD NOT HAVE CONSIDERED A NEW THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff could not defeat a summary judgment motion by raising a new theory of liability in the opposing papers:

The report established that the fire marshal conducted an investigation at the subject premises and concluded that the fire in defendants’ building was caused by combustible clothing left in a dryer for too long, rather than any defect in the premises or dryer … . Although the fire marshal did not have an independent recollection of his investigation, his report was admissible under the business record exception to the hearsay rule, and was sufficient to satisfy defendants’ prima facie burden, since it noted that he independently inspected the premises and concluded that the accident was not due to defendants’ negligence … .

In opposition, plaintiff failed to raise a triable issue of fact. Her expert failed to address the theories of liability raised in the complaint and bill of particulars and failed to rebut defendants’ showing. Instead, plaintiff’s expert raised a new theory, namely that plaintiff’s injuries from smoke inhalation were caused by the absence of a self-closing door in the laundry room where the fire occurred, which caused smoke to permeate into plaintiff’s apartment. A plaintiff cannot defeat a summary judgment motion by asserting a new theory of liability for the first time in opposition papers … . Mirdita v Musovic Realty Corp., 2019 NY Slip Op 03284, First Dept 4-30-19

 

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