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NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioner’s application for permission to file a late notice of claim should not have been granted. After criminal charges were dismissed, eight months after the deadline for filing a notice of claim, petitioner sought to bring an action alleging violations of 42 USC 1983, false arrest, false imprisonment, assault, battery, and malicious prosecution. The Second Department found that a notice of claim is not required for the 42 USC 1983 action, the statute of limitations had expired on the assault and battery actions, reports documenting an investigation did not provide the city with timely notice of the essential facts of the claim, the excuse for the delay was not reasonable, and petitioner did not show the city was not prejudiced by the delay:

The branch of the petition which sought leave to serve a late notice of claim to assert, pursuant to 42 USC § 1983, violations of the petitioner’s federal civil and constitutional rights, should have been denied as unnecessary… . Such a claim is not subject to the State statutory notice of claim requirement … . …

We disagree with the Supreme Court’s conclusion that the City acquired actual knowledge of the essential facts constituting the relevant state law claims within 90 days after they arose or a reasonable time thereafter. Actual knowledge could not be readily inferred from two reports dated June 18, 2015, documenting an internal investigation conducted by the police department to determine how a firearm was allegedly carried into, and concealed within, the station house, that “a potentially actionable wrong had been committed by the [City]” against the plaintiff … . Moreover, the mere alleged existence of other police reports and records, without evidence of their content, and the involvement of the City’s police officers in the alleged incident, without more, were insufficient to impute actual knowledge to the City … .

We also disagree with the Supreme Court’s conclusion that the petitioner presented a reasonable excuse for his failure to serve a timely notice of claim. The petitioner’s incarceration did not constitute such an excuse, since the relevant state law claims did not accrue, and the petitioner’s time to serve a notice of claim did not begin to run, until he was released from custody … . Matter of Nicholson v City of New York, 2018 NY Slip Op 08134, Second Dept 11-28-18

MUNICIPAL LAW (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL RIGHTS LAW (42 USC 1983,  NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/42 USC 1983 (NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS,  NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STATUTE OF LIMITATIONS  (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/FALSE ARREST  (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/FALSE IMPRISONMENT  (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ASSAULT (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/BATTERY (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))//MALICIOUS PROSECUTION  (NOTICE OF CLAIM, NO NOTICE OF CLAIM REQUIRED FOR ALLEGED VIOLATIONS OF 42 USC 1983, STATUTE OF LIMITATIONS EXPIRED ON ASSAULT AND BATTERY, PERMISSION TO FILE LATE NOTICE OF CLAIM ON THE REMAINING STATE CHARGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT).

The Second Department, annulling the employment discrimination determination, held that the action against the employer, Food Corp., was untimely and the relation-back doctrine did not apply. Complainant had originally named Trade Fair as her employer and then added Food Corp. more than a year after her termination:

Food Corp. does not dispute that the first prong of the relation-back test was satisfied, because the claims against Food Corp. arose out of the same transactions or occurrences as those asserted against Trade Fair. The complainant also established the third prong of the test by presenting evidence suggesting that Food Corp. had notice of the proceeding before the statute of limitations expired, and that Food Corp. should have known that, but for the complainant’s mistake in omitting it as a respondent in her complaint, the proceeding would have been timely commenced against it as well.

However, the complainant failed to satisfy the second prong of the relation-back test, because Food Corp. and Trade Fair were not united in interest. Respondents are “united in interest only when their interest in the subject-matter [of the proceeding] is such that [the respondents] stand or fall together and that judgment against one will similarly affect the other'” … . “[T]he question of unity of interest is to be determined from an examination of (1) the jural relationship of the parties whose interests are said to be united and (2) the nature of the claim asserted against them by the [complainant]” … . Respondents are not united in interest if there is a possibility that the new party could have a defense different from that of the original party … . Here, the Commissioner dismissed the second amended complaint insofar as asserted against Trade Fair on the grounds that the complainant never interacted with or took direction from Trade Fair’s employees, and that Trade Fair was not the complainant’s employer. In contrast, the Commissioner determined that Food Corp. was the complainant’s employer because Food Corp.’s personnel hired and fired the complainant and controlled the complainant’s daily workplace activities. Thus, the record makes clear that Food Corp.’s and Trade Fair’s interests in the administrative proceeding did not stand or fall together … . Matter of 130-10 Food Corp. v New York State Div. of Human Rights, 2018 NY Slip Op 08123, Second Dept 11-28-18

CIVIL PROCEDURE (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/ADMINISTRATIVE LAW  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/HUMAN RIGHTS LAW  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/EMPLOYMENT LAW  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/DISCRIMINATION  (EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/RELATION BACK DOCTRINE (STATUTE OF LIMITATIONS, EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))/STATUTE OF LIMITATIONS (RELATION BACK DOCTRINE, EMPLOYMENT DISCRIMINATION, COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT))

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MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT).

The First Department determined the motion to amend the complaint and bill of particulars in this slip and fall case was properly denied. Plaintiff sought to change the dare of the accident from October 12, 2012, to August 15, 2012:

Plaintiff alleges that she slipped and fell on rainwater that came in through negligently maintained windows in the hallway of defendants’ building. In support of her motion to amend, plaintiff stated that she originally alleged that the accident occurred on October 13, 2012, but that after reviewing her medical records she realized that she was mistaken and that the accident actually occurred on August 15, 2012, the day before she sought treatment at the hospital.

The motion court providently exercised its discretion in denying plaintiff’s motion, as defendants demonstrated that the delay in notifying them that plaintiff had incorrectly identified the date of the accident prejudiced their ability to investigate the incident and to defend the action using surveillance videotapes of the hallway … . Defendants showed that, after learning of plaintiff’s claim, they retrieved surveillance tapes of the alleged accident date of October 13th, which showed that no accident occurred on that date, but that they were no longer able to retrieve videotapes from August 2012 by the time plaintiff informed them of the claimed error in the pleadings. Furthermore, the August 2012 hospital record plaintiff relies upon reflects that she sought treatment from a podiatrist for an unrelated foot condition, and does not reference any fall the previous day … . Otero v Walton Ave. Assoc. LLC, 2018 NY Slip Op 08083, First Dept 11-27-18

CIVIL PROCEDURE (MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/COMPLAINT (MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/BILL OF PARTICULARS (MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/NEGLIGENCE (SLIP AND FALL, MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/SLIP AND FALL  (MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/EVIDENCE (SLIP AND FALL, MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))

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ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT).

The First Department determined the stipulation signed by plaintiff teacher, who agreed to resign in return for discontinuing the disciplinary hearing, was binding under contract principles, despite the inapplicability of CPLR 2104 to administrative proceedings. After signing the stipulation, plaintiff changed his mind:

In the stipulation, DOE (Department of Education] agreed to discontinue the disciplinary hearing on the pending misconduct charges and to take no further disciplinary action against plaintiff, in exchange for which plaintiff agreed “to irrevocably retire from his employment with [DOE] … .” The agreement was signed by plaintiff, his counsel, and DOE’s counsel … . Annexed to the stipulation was a letter signed by plaintiff and addressed to District Superintendent Karen Watts stating, “I hereby irrevocably retire from [DOE] … .” The stipulation contained a signature line for Superintendent Watts, who signed it several days later.

Before Superintendent Watts signed the stipulation, plaintiff notified DOE that he had changed his mind and wanted to rescind the stipulation. He argues that the stipulation was unenforceable when he changed his mind because not all the parties had signed it. …

Although CPLR 2104 is not applicable to agreements entered into in administrative proceedings, the stipulation signed by plaintiff and counsel acting on behalf of DOE is binding under general contract principles … . Plaintiff failed to show the existence of fraud, collusion, mistake or accident, or that counsel lacked DOE’s consent to enter into the stipulation … . Plaintiff’s agreement to retire was irrevocable, and plaintiff understood its consequences. His change of mind is not a cause sufficient to set aside his agreement … . Nor is his parol evidence, offered to show that the parties did not intend to be bound by the stipulation until Superintendent Watts had signed it, admissible to add to or vary the terms of the writing … . Matter of Nobile v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2018 NY Slip Op 08065, First Dept 11-27-18

ADMINISTRATIVE LAW (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/CONTRACT LAW  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/EMPLOYMENT LAW  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/EDUCATION-SCHOOL LAW  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/CIVIL PROCEDURE (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))/CPLR 2104  (ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT))

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BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT).

The First Department determined the NYC Civil Service Commission (CSC) properly upheld the termination of  the petitioner correction officers for using excessive force against an inmate. The court noted that, because the petitioners chose to appeal the determination of the administrative law judge to the CSC, instead of bringing an Article 78, the court’s review powers are extremely limited:

Civil Service Law § 76(1) permits a person whose civil service employment has been terminated to “appeal from such determination either by an application to the state or municipal commission having jurisdiction, or by an application to the court in accordance with [article 78].” If the former option is chosen, “[t]he decision of such civil service commission shall be final and conclusive, and not subject to further review in any court” … . The Court of Appeals has clarified that, despite the plain language in the statute, judicial review is not completely foreclosed … . Rather, the article 78 court, instead of being guided by the substantial evidence or arbitrary and capricious standards of review, is limited to reviewing whether “the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction” … .

Petitioners argue that CSC acted unconstitutionally because it relied on the statements of the inmates, who never testified, thus depriving petitioners of any chance to cross-examine them. However, this point is unpreserved. Petitioners fail to point to anything in the record showing that they ever sought to cross-examine or call the inmates and were denied that opportunity. More importantly, they never protested that their constitutional rights were being violated. This Court has “no discretionary authority” to “reach[] an unpreserved issue in the interest of justice” in an article 78 proceeding challenging an administrative determination … , including issues touching on due process … and evidentiary challenges … . Matter of Almanzar v City of New York City Civ. Serv. Commn., 2018 NY Slip Op 08062, First Dept 11-27-18

ADMINISTRATIVE LAW (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/CIVIL PROCEDURE  (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/EMPLOYMENT LAW (BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/APPEALS (CIVIL SERVICE COMMISSION, BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))/MUNICIPAL LAW (EMPLOYMENT LAW, BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT))

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LAW OFFICE FAILURE EXCUSE INSUFFICIENT, MOTION TO VACATE DISCONTINUANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the law office failure excuse was insufficient to warrant vacating the order of discontinuance:

While courts have discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice… , “[a] court’s inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect” … .

Here, the plaintiff asserted that the action was erroneously discontinued by prior counsel due to confusion generated by an impending substitution of counsel. “Where a party asserts law office failure, it must provide a detailed and credible explanation of the default'”… , and conclusory and unsubstantiated allegations of law office failure are insufficient … . Contrary to the plaintiff’s contention, the uncorroborated representation by its current counsel that the action was erroneously discontinued by prior counsel did not constitute a detailed and credible explanation warranting vacatur of the order of discontinuance and restoration of the action … . Accordingly, the Supreme Court should have denied the plaintiff’s motion to vacate the order of discontinuance and to restore the action to the active calendar. IndyMac Bank, FSB v Izzo, 2018 NY Slip Op 08014, Second Dept 11-21-18

CIVIL PROCEDURE (LAW OFFICE FAILURE EXCUSE INSUFFICIENT, MOTION TO VACATE DISCONTINUANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (LAW OFFICE FAILURE EXCUSE INSUFFICIENT, MOTION TO VACATE DISCONTINUANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LAW OFFICE FAILURE (VACATE DISCONTINUANCE, LAW OFFICE FAILURE EXCUSE INSUFFICIENT, MOTION TO VACATE DISCONTINUANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/DISCONTINUANCE, MOTION TO VACATE  (LAW OFFICE FAILURE EXCUSE INSUFFICIENT, MOTION TO VACATE DISCONTINUANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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LAW OFFICE FAILURE EXCUSE WAS SUFFICIENT TO WARRANT GRANTING DEFENDANTS’ MOTION TO VACATE THE DEFAULT JUDGMENTS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ “law office failure” excuse was sufficient to warrant granting the motion to vacate the default judgments:

“A party seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1), and thereupon to serve a late answer, must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action”… . The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court, and in the exercise of that discretion, the court may accept law office failure as an excuse (see CPLR 2005… ). Here, the defaulting defendants demonstrated a reasonable excuse, based upon law office failure arising from a miscommunication between their former counsel and their present counsel, for their default in answering the complaint or otherwise appearing in the action … .

The defaulting defendants also demonstrated that they had a potentially meritorious defense. …

Under the circumstances here, particularly in light of the evidence that the defaulting defendants’ delay was not willful, the lack of prejudice to the plaintiffs resulting from the defaulting defendants’ short delay in appearing and seeking to answer the complaint, the existence of a potentially meritorious defense, and the strong public policy favoring the resolution of cases on the merits, the Supreme Court improvidently exercised its discretion in denying the defaulting defendants’ motion to vacate their default and to compel the plaintiffs to accept their late answer … . Government Employees Ins. Co. v Avenue C Med., P.C., 2018 NY Slip Op 08010, Second Dept 11-21-18

CIVIL PROCEDURE (VACATE DEFAULT, LAW OFFICE FAILURE EXCUSE WAS SUFFICIENT TO WARRANT GRANTING OF DEFENDANTS’ MOTION TO VACATE THE DEFAULT JUDGMENTS, SUPREME COURT REVERSED (SECOND DEPT))/DEFAULT JUDGMENT, MOTION TO VACATE (LAW OFFICE FAILURE EXCUSE WAS SUFFICIENT TO WARRANT GRANTING OF DEFENDANTS’ MOTION TO VACATE THE DEFAULT JUDGMENTS, SUPREME COURT REVERSED (SECOND DEPT))/ATTORNEYS (LAW OFFICE FAILURE EXCUSE WAS SUFFICIENT TO WARRANT GRANTING OF DEFENDANTS’ MOTION TO VACATE THE DEFAULT JUDGMENTS, SUPREME COURT REVERSED (SECOND DEPT))/LAW OFFICE FAILURE (VACATE DEFAULT, LAW OFFICE FAILURE EXCUSE WAS SUFFICIENT TO WARRANT GRANTING OF DEFENDANTS’ MOTION TO VACATE THE DEFAULT JUDGMENTS, SUPREME COURT REVERSED (SECOND DEPT))/CPLR 5015, CPLR 2005 (VACATE DEFAULT, LAW OFFICE FAILURE EXCUSE WAS SUFFICIENT TO WARRANT GRANTING OF DEFENDANTS’ MOTION TO VACATE THE DEFAULT JUDGMENTS, SUPREME COURT REVERSED (SECOND DEPT))

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WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a partial dissent, determined defendants’ motion to set aside the verdict in this stairway slip and fall case should not have been granted, and the plaintiff’s motion for sanctions (attorney’s fees) for frivolous conduct (bringing the motion to set aside) should have been granted. The dissenting justice agreed the verdict should not have been set aside, but disagreed with the imposition of sanctions on defense counsel. The plaintiff alleged she fell (19 inches) because there was no handrail on one side to the stairs. The Second Department explained that even if the jury found the absence of a handrail to be open and obvious, the jury still could have found the absence of the handrail acted as a trap for the unwary:

“Proof that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain property in a safe condition”… . “While such proof is relevant to the issue of a plaintiff’s comparative negligence, a hazard that is open and obvious may be rendered a trap for the unwary where the condition is obscured or the plaintiff distracted” … . “The determination of . . . whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts  … . …

… [T}he Supreme Court should have granted the plaintiff’s cross motion for an award of costs in the form of reimbursement of reasonable attorneys’ fees pursuant to 22 NYCRR 130-1.1 based on the frivolous conduct of the defendants in moving to set aside the verdict pursuant to CPLR 4404(a) to the extent that the motion was predicated upon the ground that the plaintiff failed to establish at trial that they owned the subject property. * * *

… [T]he record shows that the defendants’ ownership of the property was never genuinely disputed. Cram v Keller, 2018 NY Slip Op 08007, Second Dept 11-21-18

NEGLIGENCE (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL ( OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/OPEN AND OBVIOUS  (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (FRIVOLOUS CONDUCT, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SET ASIDE VERDICT, MOTION TO (FRIVOLOUS CONDUCT, ATTORNEYS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/FRIVOLOUS CONDUCT (MOTION TO SET ASIDE THE VERDICT, ATTORNEYS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

, ,

COLLATERAL ESTOPPEL APPLIED TO THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES’ (OPWDD’S) ARBITRATION PROCEEDINGS WHICH FOUND PETITIONER WAS NOT GUILTY OF SUPPLYING MARIJUANA TO A RESIDENT OF A GROUP HOME FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, THE SUBSEQUENT PROCEEDINGS BY THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS WERE BOUND BY THE FINDINGS OF THE OPWDD ARBITRATION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined that the arbitration proceeding conducted by Office for People with Developmental Disabilities (OPWDD) had a collateral estoppel effect upon subsequent proceedings concerning the same matter conducted by the Justice Center for the Protection of People with Special Needs. Petitioner was accused of providing marijuana to a resident of a group home for persons with developmental disabilities. The OPWDD arbitration concluded petitioner was not guilty. However the Justice Center essentially sustained the charges. The central question was whether the OPWDD and the Justice Center were in privity, such that the Justice Center must accept the outcome of the OPWDD arbitration:

Collateral estoppel applies to arbitration proceedings, and when the doctrine’s requirements are satisfied, “[an] arbitrator’s factual findings must be accorded collateral estoppel effect” … .

…[T]the Justice Center shared interests with OPWDD in the disciplinary proceeding stemming from its fundamental statutory obligation to “protect[] . . . vulnerable persons who reside in or receive services from [state-operated] facilities” and “assur[e], on behalf of the state, that vulnerable persons are afforded care that is of a uniformly high standard” … . The Justice Center directly served these purposes by participating as counsel in the disciplinary proceeding conducted by OPWDD pursuant to its governing regulations and the pertinent collective bargaining agreement to determine whether petitioner should be terminated from her employment working with vulnerable persons… . …

… The Justice Center is required by statute to develop the code of conduct that governs OPWDD employees such as petitioner who regularly work with vulnerable persons in facilities like the group home at issue here … . …

… [T]he OPWDD form that was used to report the incident … included a section indicating that the Justice Center had been notified and providing the date, time and identification number of the notification … . The Justice Center’s subsequent investigation of the incident was carried out by an investigator who testified that he was employed by OPWDD. Matter of Anonymous v New York State Justice Ctr. for The Protection of People With Special Needs, 2018 NY Slip Op 07996, Third Dept 11-21-18

SOCIAL SERVICES LAW (COLLATERAL ESTOPPEL APPLIED TO OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES’ (OPWDD’S) ARBITRATION PROCEEDINGS WHICH FOUND PETITIONER WAS NOT GUILTY OF SUPPLYING MARIJUANA TO A RESIDENT OF A GROUP HOME FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, THE SUBSEQUENT PROCEEDINGS BY THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS WERE BOUND BY THE FINDINGS OF THE OPWDD ARBITRATION (THIRD DEPT))/ARBITRATION (COLLATERAL ESTOPPEL APPLIED TO OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES’ (OPWDD’S) ARBITRATION PROCEEDINGS WHICH FOUND PETITIONER WAS NOT GUILTY OF SUPPLYING MARIJUANA TO A RESIDENT OF A GROUP HOME FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, THE SUBSEQUENT PROCEEDINGS BY THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS WERE BOUND BY THE FINDINGS OF THE OPWDD ARBITRATION (THIRD DEPT))/COLLATERAL ESTOPPEL (ARBITRATION, COLLATERAL ESTOPPEL APPLIED TO OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES’ (OPWDD’S) ARBITRATION PROCEEDINGS WHICH FOUND PETITIONER WAS NOT GUILTY OF SUPPLYING MARIJUANA TO A RESIDENT OF A GROUP HOME FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, THE SUBSEQUENT PROCEEDINGS BY THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS WERE BOUND BY THE FINDINGS OF THE OPWDD ARBITRATION (THIRD DEPT))/CIVIL PROCEDURE (COLLATERAL ESTOPPEL, ARBITRATION, COLLATERAL ESTOPPEL APPLIED TO OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES’ (OPWDD’S) ARBITRATION PROCEEDINGS WHICH FOUND PETITIONER WAS NOT GUILTY OF SUPPLYING MARIJUANA TO A RESIDENT OF A GROUP HOME FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, THE SUBSEQUENT PROCEEDINGS BY THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS WERE BOUND BY THE FINDINGS OF THE OPWDD ARBITRATION (THIRD DEPT))

, , ,

SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT).

The Second Department, modifying (reversing) Supreme Court in this action for divorce, determined that defendant’s motion to preclude plaintiff from introducing certain evidence at trial because of the failure to comply with discovery orders should have been granted. Defendant’s request for attorney’s fees was properly denied, however, because plaintiff is the less-monied spouse:

A court may prohibit a party “from producing in evidence designated things or items of testimony” if the party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126[2] …). Before a court invokes the drastic remedy of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious … . The willful and contumacious character of a party’s conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse for these failures, or (2) the failure to comply with court-ordered discovery over an extended period of time … .

Here, the defendant demonstrated that the plaintiff failed to comply with court-ordered discovery over an extended period of time. The willful and contumacious character of the plaintiff’s conduct may be inferred from her failure to respond to the defendant’s letter … , despite two court orders directing her to do so, and her failure to proffer any excuse for her failure. Accordingly, that branch of the defendant’s motion which was to preclude the plaintiff from producing physical evidence or testimony at trial relating to certain limited items previously requested but not disclosed should have been granted.

We agree, however, with the Supreme Court’s denial of that branch of the defendant’s motion which was to direct the plaintiff to pay interim counsel fees in the sum of $5,000, since the plaintiff is the less-monied spouse … . Maliah-Dupass v Dupass, 2018 NY Slip Op 08018, Second Dept 11-21-18

FAMILY LAW (DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/DIVORCE (SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/CIVIL PROCEDURE (DISCOVERY, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/CPLR 3126 (DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/EVIDENCE (CIVIL PROCEDURE, PRECLUSION, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/ATTORNEYS (FAMILY LAW, DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))

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