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FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED OR FOR FAILURE TO PROSECUTE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action should not have been dismissed as abandoned pursuant to CPLR 3215(c) or for neglect to prosecute pursuant to CPLR 3216:

It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c) … . Rather, it is enough that the plaintiff timely takes the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference to establish that it initiated proceedings for entry of a judgment within one year of the default for the purposes of satisfying CPLR 3215(c) … . Within one year after the defendant’s default, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference (see RPAPL 1321[1]) and, thus, did not abandon this action … . …

Furthermore, the Supreme Court was without power to direct dismissal of the complaint pursuant to CPLR 3216 on the ground of lack of prosecution. While CPLR 3216 authorizes the dismissal of a complaint for neglect to prosecute, joinder of issue and service of a 90-day notice are conditions precedent to a dismissal under that statute  … . Here, dismissal was improper, as issue was never joined in the action … . US Bank, N.A. v Picone, 2019 NY Slip Op 02141, Second Dept 3-20-19

 

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NOTES TAKEN BY AN OBSERVER HIRED BY PLAINTIFF’S ATTORNEY TO WITNESS AN INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BY DEFENDANTS’ DOCTOR ARE PRIVILEGED AS MATERIAL PREPARED FOR TRIAL, THE OBSERVER WAS ACTING AS AN AGENT OF PLAINTIFF’S ATTORNEY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, in a matter of first impression, determined that the notes taken by an observer at an independent medical exam (IME) of plaintiff by defendants’ doctor are protected by the privilege afforded materials prepared for litigation. The observer was hired by plaintiff’s attorney and was deemed to be acting as an agent of the attorney:

The IME observer, however, is an agent of the plaintiff’s attorney. Consequently, the requested notes and materials constitute materials prepared for trial, bringing them within the conditional or qualified privilege protections of CPLR 3101(d)(2). Materials prepared in anticipation of litigation and preparation for trial may be obtained only upon a showing that the requesting party has a “substantial need” for them in the preparation of the case and that without “undue hardship” the requesting party is unable to obtain the substantial equivalent by other means (CPLR 3101[d][2] …).

The IME observer was hired to assist plaintiff’s attorney in advancing the litigation and preparing for trial … . Although present, she was not involved in the doctor’s examination of the plaintiff. Her function was to serve as the attorney’s “eyes and ears,” observing what occurred during the IME, and then reporting that information back to plaintiff’s attorney.

Defendants have not shown, in response, any “substantial need” for the IME observer’s notes, etc., or why they are unable, without undue hardship, to obtain the “substantial equivalent” of the materials by other means … . Key to this analysis is that the defendants’ doctor conducted plaintiff’s examination and can provide defendants with any information concerning what generally occurred and what he did at the IME. Markel v Pure Power Boot Camp, Inc., 2019 NY Slip Op 02049, First Dept 3-19-19

 

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DEFENDANTS’ DECEDENT’S PHARMACY RECORDS IN THIS BICYCLE-VEHICLE COLLISION CASE ARE NOT PROTECTED BY PHYSICIAN-PATIENT PRIVILEGE AND MUST BE DISCLOSED SUBJECT TO TIME LIMITATIONS AND IN CAMERA REVIEW (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendants’ decedent’s pharmacy records were not protected by physician-patient privilege and must be disclosed to plaintiff, subject to certain limitations and an in camera review. Plaintiff was injured when her bicycle collided with a vehicle driven by decedent:

We agree with plaintiffs, however, that decedent’s pharmacy records are not protected by the physician-patient privilege (see CPLR 4504 [a] … ) and are “material and necessary” to the prosecution of the action (CPLR 3101 [a] …). Nevertheless, we conclude that plaintiffs’ request for records “before and after” the collision was overly broad, and we therefore limit disclosure of the pharmacy records to the six-month period immediately preceding the collision. Furthermore, those records “should not be released to [plaintiffs] until the court has conducted an in camera review thereof, so that irrelevant information is redacted”… . … [D]efendants are directed to submit to the court, for the six-month period  immediately preceding the accident, pharmacy records identifying the medications prescribed to decedent and the prescribed dosages of those medications, and we remit the matter to Supreme Court for an in camera review of those records. Carr-Hoagland v Patterson, 2019 NY Slip Op 02000, Fourth Dept 3-15-19

 

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PETITIONER DID NOT HAVE STANDING TO SEEK A STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) REVIEW OF A ONE-DAY SQUIRREL-HUNTING FUND-RAISING EVENT (FOURTH DEPT).

The Fourth Department determined petitioner did not have standing to seek a State Environmental Quality Review Act (SEQRA) review of one-day squirrel hunting event put on by a volunteer fire department:

Prior to 2017, the one-day hunting contests at issue had been held annually by respondent as fundraisers, with prizes having been awarded based on the weight of squirrels turned in at the end of each contest. Petitioner resides approximately 50 miles from the area where respondent has held the hunting contests. She alleges an environmental injury-in-fact based on her fondness for squirrels, the impact that the hunting contests may have on the “local ecology,” and the possibility that the contests may result in the killing of squirrels that she sees near her residence. Petitioner contends that she therefore has standing to bring this proceeding/action. We reject that contention.

Standing is “a threshold requirement for a [party] seeking to challenge governmental action” … . The burden of establishing standing to challenge an action pursuant to SEQRA is “on the party seeking review” … . “The existence of an injury in fact—an actual legal stake in the matter being adjudicated—ensures that the party seeking review has some concrete interest in prosecuting the action” … . In addition, to establish standing under SEQRA, a petitioner must establish, inter alia, “an environmental injury that is in some way different from that of the public at large”… .

Here, we conclude that petitioner has not met her burden of establishing an environmental [*2]injury-in-fact. Although petitioner may have alleged some environmental harm, she has alleged, at most, an injury that is “no different in either kind or degree from that suffered by the general public” . Petitioner also has not established that the hunting activities at issue have affected the wildlife where she resides, nor has she established that she has used, or even visited, the area where the hunting contests have been conducted … . Matter of Sheive v Holley Volunteer Fire Co., Inc., 2019 NY Slip Op 01982

 

IN THIS COMBINED ARTICLE 78 AND DECLARATORY JUDGMENT ACTION, THE FOUR-MONTH STATUTE OF LIMITATIONS APPLICABLE TO ARTICLE 78 DID NOT APPLY TO THE DECLARATORY JUDGMENT ACTION WHICH ONLY INVOLVED PRIVATE PARTIES, NOT A GOVERNMENT BODY OR OFFICER (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, determined that the declaratory judgment action was not subject to the four-month statute of limitations for Article 78 actions. The plaintiff and defendant are private parties who own land on opposite sides of Cady Road. A portion of the Cady Road was declared discontinued and defendant allegedly erected a barrier. Plaintiff’s action sought Article 78 relief against a town official as well as a declaratory judgment. Because no Article 78 relief was possible with respect to the private defendant who allegedly erected the barrier, the shorter statute of limitations did not apply to the declaratory judgment action concerning the rights of the private parties:

Relief under CPLR article 78 is available only against a limited subset of official and institutional parties. It follows that the four-month statute of limitations applicable to article 78 proceedings cannot be imported to bar a declaratory judgment action against a private individual not subject to article 78. * * *

… [D]efendant is not a “body or officer” within the meaning of CPLR 7802 (a), i.e., he is not a “court, tribunal, board, corporation, [or] officer,” and it is well established that article 78 relief is available only against a “body or officer” as defined by section 7802 (a) … . …

… [T]he true gravamen of its declaratory claims “requires a judicial determination as to the rights of the parties to use Cady Road [which] would [thereby] settle the rights of private [parties],” i.e., plaintiff and defendant. And it is well established that such a contest between the “rights of private [parties]” cannot be adjudicated in an article 78 proceeding … . …

… [B]ecause an article 78 proceeding was not a “proper vehicle” for plaintiff’s private claims for declaratory relief against defendant, the four-month “limitations period set forth in CPLR 217 [1] is not applicable to [such claims] and the six-year statute of limitations set forth in CPLR 213 (1) applies instead” … . Matter of Grocholski Cady Rd., LLC v Smith, 2019 NY Slip Op 01966, Fourth Dept 3-15-19

 

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DEMAND FOR A JURY TRIAL, MADE ONE DAY LATE, SHOULD HAVE BEEN GRANTED, THE DENIAL OF THE ORAL APPLICATION FOR A JURY TRIAL IS PROPERLY CONSIDERED ON APPEAL FROM THE FINAL JUDGMENT, EVEN THOUGH NO FORMAL MOTION ON NOTICE WAS MADE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over an extensive dissent, determined (1) defendants’ oral application requesting a jury trial, made one day late, should have been granted, and (2) the appeal from a final judgment allows an appeal of the denial of the late application for a jury trial, even though no formal motion on notice was made. The dissent argued the denial was not appealable because there was no formal motion on notice:

An appeal from a final judgment “brings up for review . . . any non-final judgment or order which necessarily affects the final judgment” (CPLR 5501 [a] [1]). The parties do not dispute that the order denying defendants’ application for leave to file a late demand for a jury trial necessarily affected the final judgment. …

… [T]he State Constitution provides for a right to a jury trial in civil cases (see NY Const, art I, § 2 … ). Although that right may be waived through the failure to demand it in a timely fashion (see CPLR 4102 [a]), the court “may relieve a party from the effect” of such waiver “if no undue prejudice to the rights of another party would result” (CPLR 4102 [e]). While “[t]he decision . . . to relieve a party from failing to timely comply with CPLR 4102 (a) lies within the sound discretion of the trial court” … , we conclude that the court’s denial of defendants’ application was an abuse of discretion. Braun v Cesareo, 2019 NY Slip Op 01962, Fourth Dept 3-15-19

 

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THERE IS NO APPEAL FROM A DEFAULT STEMMING FROM FAILURE TO APPEAR, MUST MOVE TO VACATE THE DEFAULT (THIRD DEPT).

The Third Department, dismissing the appeal, explained that where a party in default for failing to appear wishes to appeal, the party must first move to vacate the default:

Respondent appeared by telephone before the Support Magistrate for arraignment, an appearance and a hearing, following which the Support Magistrate concluded that respondent had willfully violated the support order and recommended that he be incarcerated. The matter was referred to Family Court for confirmation. Respondent requested permission to give electronic testimony. Family Court denied that application both in writing and orally and directed, on the record, that respondent must appear in person for the hearing. When respondent did not appear, the court conducted the hearing in his absence, found that he willfully violated the support order and committed him to jail for 180 days. Respondent appeals.

Family Court properly found respondent in default … . Although respondent’s counsel appeared and offered the explanation that respondent could not afford to travel to New York, the court had already heard and rejected that excuse in connection with respondent’s application to give electronic testimony and directed him to appear in person for the hearing. When respondent failed to do so, the court did not abuse its discretion by finding him in default  … . “[T]he proper procedure would be for [respondent] to move to vacate the default and, if said motion is denied, take an appeal from that order” … . Because no appeal lies from an order entered on default, we must dismiss this appeal … . Matter of Ulster County Support Collection Unit v Beke, 2019 NY Slip Op 01864, Third Dept 3-14-19

 

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SUPREMACY CLAUSE DOES NOT PRECLUDE DEFAMATION SUIT AGAINST PRESIDENT TRUMP FOR STATEMENTS MADE WHILE A CANDIDATE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissent, determined that the Supremacy Clause did not preclude a New York State civil suit for defamation against President Trump. In response to allegations by the plaintiff that Donald Trump had made unwanted sexual advances, then candidate Trump made statements denying the allegations (made by plaintiff and other women), calling them false and outright lies saying, for example, “all of these liars will be sued after the election is over:”

… [T]he current sitting President attempts to shield himself from consequences for his alleged unofficial misconduct by relying upon the constitutional protection of the Presidency. We reject defendant President Trump’s argument that the Supremacy Clause of the United States Constitution prevents a New York State court – and every other state court in the country – from exercising its authority under its state constitution. Instead, we find that the Supremacy Clause was never intended to deprive a state court of its authority to decide cases and controversies under the state’s constitution.

… [T]he Supremacy Clause provides that federal law supersedes state law with which it conflicts, but it does not provide that the President himself is immune from state law that does not conflict with federal law. Since there is no federal law conflicting with or displacing this defamation action, the Supremacy Clause does not provide a basis for immunizing the President from state court civil damages actions. Moreover, in the absence of a federal law limiting state court jurisdiction, state and federal courts have concurrent jurisdiction. Thus, it follows that the trial court properly exercised jurisdiction over defendant and properly denied his motion to dismiss. Zervos v Trump, 2019 NY Slip Op 01851, First Dept 3-14-19

 

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30-DAY TIME TO APPEAL WITH RESPECT TO ALL PARTIES IS TRIGGERED BY THE SERVICE OF THE ORDER OR JUDGMENT WITH WRITTEN NOTICE OF ENTRY BY ANY PARTY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, determined that the 30-day period for filing a notice of appeal (CPLR 5513(a)) is triggered for all parties when any party serves the other parties with the order or judgment appealed from with written notice of entry:

This appeal provides our Court with an occasion to clarify the meaning of CPLR 5513(a). The 1996 amendment to CPLR 5513(a), effective January 1, 1997, requires that an order or judgment be served “by a party” with written notice of entry in order to commence the time to undertake an appeal (L 1996, ch 214, § 1). … [W]e hold that service of the order or judgment with written notice of entry by any party upon the other parties to the action operates to commence the 30-day time to appeal with respect to not only the serving party, but all the parties in the action. * * *​

… [T]he language of CPLR 5513(a) as to who serves notice of entry is not limited to the “prevailing party,” or to “the appealing party,” or to “the party seeking to limit an adversary’s appellate time.” Rather, “a” party, which is unrestricted, necessarily refers to “any” party to an action. As a result, the service of an order or judgment with written notice of entry commences the 30-day time to appeal as to not only the party performing the service, but as to all other parties as well.

Here, the County’s [defendant’s] service on June 17, 2015, of the Supreme Court’s order with written notice of entry commenced the plaintiffs’ time to appeal the order as to all of the defendants, including those who served a notice of entry at a later date, and those who may have served no notice of entry at all. The plaintiffs’ appeal must therefore be dismissed as untimely as to all of the defendants (see CPLR 5513[a]). W. Rogowski Farm, LLC v County of Orange, 2019 NY Slip Op 01815, Second Dept 3-13-19

 

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SANCTIONS PROPERLY IMPOSED FOR BRINGING A FRIVOLOUS LAWSUIT (SECOND DEPT).

The Second Department determined sanctions for frivolous conduct were properly imposed. The action was precluded by collateral estoppel and should not have been brought:

“The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees resulting from frivolous conduct” (22 NYCRR 130-1.1[a]). Conduct is frivolous under 22 NYCRR 130-1.1 if it is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” or it is “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1[c][1], [2] …).

Here, the Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was pursuant to 22 NYCRR 130-1.1(a) to impose a sanction upon Miller and his attorney consisting of costs in the form of an attorney’s fee (see 22 NYCRR 130-1.1[a]). Under the circumstances of this case, the court properly determined that Miller and his attorney engaged in frivolous conduct in commencing this action, as it was completely without merit in law, and could not be supported by a reasonable argument for an extension, modification, or reversal of existing law (see 22 NYCRR 130-1.1[c]). Miller v Falco, 2019 NY Slip Op 01589, Second Dept 3-6-19

 

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