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PURELY CONCLUSORY ALLEGATIONS IN A COMPLAINT WILL NOT SURVIVE A PRE-ANSWER MOTION TO DISMISS (FOURTH DEPT).

The Fourth Department, in determining a negligent training and supervision cause of action was properly dismissed, noted that purely conclusory allegations in a complaint will not survive a pre-answer motion to dismiss:

We reject plaintiffs’ contention that the court erred in dismissing the third cause of action, alleging negligent training and supervision. We are cognizant of our duty on a motion to dismiss to “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” .. , and that the issue ” [w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss’ ” … . Nevertheless, although “it is axiomatic that a court must assume the truth of the complaint’s allegations, such an assumption must fail where there are conclusory allegations lacking factual support . . . Indeed, a cause of action cannot be predicated solely on mere conclusory statements . . . unsupported by factual allegations”… . Here, the only factual allegations in the third cause of action concern the actions of other defendants not involved in this appeal; therefore, plaintiffs’ conclusory allegations with respect to defendants fail to state a valid cause of action for negligent training and supervision against them … . Bratge v Simons, 2018 NY Slip Op 08778, Fourth Dept 12-21-18

 

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HEARING IS REQUIRED TO DETERMINE WHETHER A GUARDIAN SHOULD BE APPOINTED FOR MOTHER IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, MOTHER SUFFERS FROM SCHIZOPHRENIA (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined a guardian should have been appointed for mother in the proceeding which terminated her parental rights:

It is well settled that courts cannot “shut their eyes to the special need of protection of a litigant actually incompetent but not yet judicially declared such. There is a duty on the courts to protect such litigants”… . Indeed, “[t]he public policy of this State . . . is one of rigorous protection of the rights of the mentally infirm”… . Thus, ” where there is a question of fact . . . whether a guardian ad litem should be appointed, a hearing must be conducted’ ” … , and the failure to make such an inquiry once a meritorious question of a litigant’s competence has been raised requires remittal … .

… [W]e conclude that a meritorious question of the mother’s competence was raised. It is of no moment that the mother’s attorney did not move for the appointment of a guardian ad litem inasmuch as the court may make such an appointment on its own initiative (see CPLR 1202 [a] …). …

There is no dispute that the mother, who had been diagnosed with, inter alia, schizophrenia, had been in and out of psychiatric hospitals throughout her life. Indeed, at the time of the subject child’s birth, which was two years before this termination proceeding, the mother had been committed to a psychiatric unit after being found incompetent to stand trial in a criminal court. During the course of the hearing in this proceeding, the mother was involuntarily committed to a psychiatric unit, and the matter had to be adjourned until her release. Additionally, during the mother’s brief testimony upon resumption of the hearing, the court and the AFC [attorney for the child] had to interrupt her repeatedly inasmuch as her answers to questions were nonresponsive and, at times, completely nonsensical.

Given “the magnitude of the rights at stake [in a termination proceeding], as well as the allegations of mental illness” …, we conclude that the court erred in failing to hold a hearing on whether a guardian ad litem should have been appointed for the mother. Matter of Jesten J.F. (Ruth P.S.), 2018 NY Slip Op 08812, Fourth Dept 12-21-18

 

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IN THIS CUSTODY PROCEEDING BROUGHT BY MOTHER, A HEARING IS NECESSARY TO DETERMINE WHETHER NEW YORK HAD JURISDICTION AFTER THE CHILD SPENT FOUR OR FIVE MONTHS WITH FATHER IN NORTH CAROLINA (FOURTH DEPT).

The Fourth Department, reversing Family Court, found that a hearing is necessary in this custody proceeding to determine whether New York had jurisdiction after the child spent four or five months in North Carolina:

Petitioner mother appeals from an order that dismissed for lack of jurisdiction her petition for custody of the subject child. Domestic Relations Law § 76 (1) (a) provides in relevant part that a New York court has jurisdiction to make an initial custody determination if New York “is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent . . . continues to live in this state . . . .” ” Home state’ means the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding” (§ 75-a [7]). A period of temporary absence during the six-month time frame is considered part of the time period to establish home-state residency … . Moreover, if “a parent wrongfully removes a child from a state, the time following the removal is considered a temporary absence” … .

We conclude that Family Court erred in dismissing the petition based on lack of jurisdiction without holding a hearing. Here, there are disputed issues of fact whether the child’s four- or five-month stay in North Carolina constituted a temporary absence from New York State in light of allegations that respondent father withheld the child from the mother for purposes of establishing a “home state” in North Carolina … and whether the mother’s absence from New York State interrupted the child’s six-month pre-petition residency period required by Domestic Relations Law § 76 (1) (a) … . Matter of Dean v Sherron, 2018 NY Slip Op 08807, Fourth Dept 12-21-18

 

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DEFENDANT’S ALLEGATION THAT SHE DOES NOT LIVE AT THE ADDRESS WHERE HER BROTHER WAS SERVED IN THIS FORECLOSURE ACTION NECESSITATED A TRAVERSE HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, found that a traverse hearing should have been held to determine whether defendant was properly served with the summons, complaint and Real Property Actions and Proceedings Law (RPAPL) 1303 notice:

In this foreclosure matter commenced in 2009, plaintiff’s affidavit of service indicated that service of the summons, complaint and RPAPL 1303 notice was effectuated upon defendant Nicola McCallum pursuant to CPLR 308(2) by serving an individual, who allegedly identified himself as her brother, at her “dwelling place,” and mailing the same documents to that address.

In response, defendant averred that she was never served with the summons and complaint, that she does not reside at the address where service was made, and that her primary residence has always been at the property that is the subject of this foreclosure action.

“While a proper affidavit of a process server attesting to personal delivery upon a defendant constitutes prima facie evidence of proper service, a sworn non-conclusory denial of service by a defendant is sufficient to dispute the veracity or content of the affidavit, requiring a traverse hearing”… . The competing averments concerning plaintiff’s residence at the time of service raise a factual issue concerning whether the service address was her “dwelling place or usual place of abode” at the time of service (CPLR 308[2]) warranting a traverse hearing concerning whether defendant was properly served with the summons, complaint and RPAPL 1303 notice … . Nationstar Mtge. LLC v McCallum, 2018 NY Slip Op 08755, First Dept 12-20-18

 

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IN THIS CPLR ARTICLE 4 PROCEEDING BROUGHT BY THE ATTORNEY GENERAL, THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE RESPONDENT NOT-FOR-PROFIT CORPORATION VIOLATED ITS FIDUCIARY DUTY AND THE NOT-FOR-PROFIT-CORPORATION LAW WITH RESPECT TO ITS AFFILIATE NOT-FOR-PROFIT CORPORATIONS AND WHETHER THE BUSINESS JUDGMENT RULE APPLIED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a decision too fact-specific to be fairly summarized here, determined issues of fact were presented about whether certain actions taken by respondent not-for-profit corporation (TLCN) breached its fiduciary duty to its not-for-profit corporation affiliate (Coburn) and violated the Not-for-Profit Corporation Law. The action was brought by the Attorney General in a special proceeding pursuant to CPLR article 4 which is similar to a summary judgment motion. The Third Department further held there were questions of fact whether the business judgment rule could properly be applied:

… Supreme Court acted properly in ordering TLCN to adopt a conflict of interest policy … .

… [I]nasmuch as Coburg is an independent corporation, TLCN may not operate Coburg in a manner inconsistent with Coburg’s purpose, nor engage in related party transactions without complying with the relevant provisions of the Not-For-Profit Corporation Law. * * *

Genuine issues of material fact exist as to whether respondents violated their duty to Coburg by improperly utilizing its surplus to benefit TLCN and its other affiliates and by engaging in related party transactions that were not in Coburg’s best interest. …

… [T]he business judgment rule has no place where corporate officers or directors take actions that exceed their authority under the relevant corporate bylaws … , or where they make decisions affected by an inherent conflict of interest… . There are issues of fact in the present record that preclude application of the business judgment rule, specifically regarding whether respondents exceeded their authority by improperly utilizing Coburg’s surplus to benefit TLCN and its other affiliates and by engaging in related party transactions that were not in Coburg’s best interest. Matter of The People of The State of New York v The Lutheran Care Network, Inc., 2018 NY Slip Op 08727, Third Dept 12-20-18

 

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COUNTERCLAIMS AGAINST INDIVIDUAL TRUSTEES RELATED BACK TO THE COUNTERCLAIMS AGAINST THE TRUST AND THEREFORE WERE NOT TIME-BARRED, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the counterclaims against the trustees of the plaintiff workers’ compensation self-insurance trust should not have been dismissed as time-barred because they related back to the counterclaims against the trust:

Supreme Court determined that, because defendant was aware of the identity of the trustees when it interposed its original answer and counterclaims in September 2010, its failure to assert claims against the individual trustees between September 2010 and December 2016 represented “either a strategic litigation decision on its part or a mistake of law,” neither of which it found would entitle defendant to application of the doctrine. We disagree.

There is nothing in the record before us demonstrating that defendant intentionally elected not to assert its counterclaims against the individual trustees and/or that it did so to obtain “a tactical advantage in the litigation” … . A review of defendant’s pleadings demonstrates that it intended to sue the individual trustees … . Although the specific names of the individual trustees could have been ascertained from certain documentation that the trust provided to defendant on an annual basis, “we need no longer consider whether [such a] mistake was excusable” … . Rather, as the Court of Appeals has recognized, the primary question — and “the linchpin of the relation back doctrine” — is whether the newly added party had actual notice of the claim … . As trustees of the trust, we find it implausible that the individual trustees were not aware of the trust’s commencement of this action and the counterclaims that defendant asserted against the trust — such knowledge being imputed to them as trustees … . NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 2018 NY Slip Op 08735 [167 AD3d 1305], Third Dept 12-20-18

 

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NOTICE OF APPEARANCE FILED BY DEFENDANT’S ATTORNEY WAIVED ANY SUBSEQUENT OBJECTION TO PERSONAL JURISDICTION IN THIS FORECLOSURE ACTION, ISSUE HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT).

The Second Department, reversing Supreme Court on a ground not raised below, determined that defendant’s attorney’s notice of appearance waived any objection to personal jurisdiction over defendant:

“The filing of a notice of appearance in an action by a party’s counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction” … . Here, in November 2014, the defendant’s attorney appeared in the action on her behalf by filing a notice of appearance dated October 31, 2014, and did not move to dismiss the complaint on the ground of lack of personal jurisdiction at that time, or assert lack of personal jurisdiction in a responsive pleading… . The defendant did not move to dismiss the complaint until September 2015, 10 months after filing a notice of appearance. Under those circumstances, the defendant waived any claim that the Supreme Court lacked personal jurisdiction over her in this action … .

Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record, and could not have been avoided if brought to the attention of the Supreme Court … . Deutsche Bank Natl. Trust Co. v Vu, 2018 NY Slip Op 08629, Second Dept 12-19-18

 

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CROSS-MOTION TO EXTEND THE TIME FOR SERVICE OF PROCESS PURSUANT TO CPLR 306-b IN THIS FORECLOSURE ACTION PROPERLY GRANTED, THE JUDGMENT OF FORECLOSURE HAD BEEN VACATED BECAUSE DEFENDANT WAS NOT PROPERLY SERVED INITIALLY (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the judgment of foreclosure should have been vacated because defendant was not served and therefore the court did not acquire personal jurisdiction. However, plaintiff’s timely cross-motion to extend the time for service pursuant to CPLR 306-b was properly granted:

“If service is not made upon a defendant within the time provided in [CPLR 306-b], the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” … . Good cause requires the plaintiff to demonstrate, as a threshold matter, “reasonably diligent efforts” in attempting to effect service … . In deciding whether, in the interest of justice, to grant an extension of time to serve a summons and complaint, “the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the [potentially] meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” … . “A determination of whether to grant the extension in the interest of justice is generally within the discretion of the motion court” … . Bank United, FSB v Verbitsky, 2018 NY Slip Op 08623, Second Dept 12-19-18

 

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THE PETITION SEEKING LEAVE TO COMMENCE AN ACTION AGAINST THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) IN THIS PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING, THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE NOTICE CONDITIONS PRECEDENT TO THE ACTION WERE MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this pedestrian accident action seeking coverage by the Motor Vehicle Accident Indemnification Corporation (MVAIC) should not have been dismissed without a hearing:

A petitioner seeking leave of court to commence an action against the MVAIC has the initial burden of demonstrating that he or she is a “[q]ualified person” within the meaning of Insurance Law § 5202 and by making an evidentiary showing that he or she has satisfied certain other statutory requirements … . In a special proceeding, to the extent that no triable issues of fact are raised, the court is empowered to make a summary determination (see CPLR 409[b]). If, however, triable issues of fact are raised, an evidentiary hearing must be held (see CPLR 410).

Here, there are triable issues of fact as to whether the petitioner is an uninsured resident of New York, and, therefore, a “[q]ualified person” pursuant to article 52 of the Insurance Law (Insurance Law § 5202[b]); whether the accident, which the petitioner admitted that he did not report to the police within 24 hours as required by Insurance Law § 5208(a)(2)(A), was, nonetheless, reported to the police “as soon as was reasonably possible” within the meaning of Insurance Law § 5208(a)(2)(B); and whether the petitioner served a notice of claim upon the MVAIC within 90 days of the accident (see Insurance Law § 5208[a][2][A]), which issues could not have been resolved without an evidentiary hearing … . Matter of Laszlone v Motor Veh. Acc. Indem. Corp., 2018 NY Slip Op 08657, Second Dept 12-19-18

TRAFFIC ACCIDENTS

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INSURER WAIVED THE CONTRACTUAL ISSUE WHETHER PETITIONER WAS A PASSENGER IN THE CAR BY NOT SEEKING A STAY OF ARBITRATION, THEREFORE THE ARBITRATOR EXCEEDED HIS POWERS BY FINDING PETITIONER WAS NOT A PASSENGER AT THE TIME OF THE HIT AND RUN ACCIDENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer (GEICO) had waived the contractual issue whether petitioner was a “qualified person” entitled to uninsured motorist benefits in this hit and run accident by not moving to stay arbitration. Therefore the arbitrator exceeded his powers in finding petitioner was not a “qualified person” because he was not a passenger in the car at the time of the accident. The matter was remitted to be heard by another arbitrator to determine whether petitioner suffered “serious injury:”

…[T]he issue presented to the arbitrator was whether the claimants, the petitioner and his girlfriend, sustained serious injuries as a result of the negligence of the operator of the hit-and-run vehicle, and if so, the reasonable compensatory value thereof. With a hit-and-run cause of action, in order to proceed to arbitration, there must be “physical contact” by a hit-and-run vehicle to a “qualified person” (Insurance Law § 5217). Accordingly, the determination of whether the petitioner is a “qualified person” pursuant to the policy is a condition precedent to arbitration and therefore is a basis for an application to stay arbitration to be determined by the courts … . Here, since GEICO never moved to stay the arbitration, it waived the ability to litigate this issue and essentially conceded that the petitioner was a covered person under the policy … . Matter of Banegas v GEICO Ins. Co., 2018 NY Slip Op 08644, Second Dept 12-19-18

TRAFFIC ACCIDENTS

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