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INSUFFICIENT EVIDENCE THAT THE FAILURE TO TURN OVER REQUESTED INVOICES IN DISCOVERY WAS WILLFUL AND CONTUMACIOUS, BUT PRESENTATION OF EVIDENCE ABOUT THE INVOICES AT TRIAL SHOULD HAVE BEEN PRECLUDED (SECOND DEPT).

The Second Department determined that requested invoices which were alleged not to exist could not be the subject of evidence at trial:

Durante’s affidavit demonstrated that the requested invoices of Croton could not be located and that the invoices of Iron Age were not in the respondents’ possession or control … . Under the circumstances of this case, there was no clear showing that the respondents’ failure to produce the invoices was willful and contumacious, since, inter alia, the respondents complied, albeit tardily, with the appellants’ discovery demands and demonstrated that the invoices requested could not be located, or were not in their possession or control (see CPLR 3101[d][2] … ). Nevertheless, the respondents should have been precluded from later offering evidence regarding the requested invoices of Croton that were not produced … . Accordingly, that branch of the appellants’ motion which was to preclude the respondents from introducing at trial evidence of the requested invoices of Croton that were not provided should have been granted. Cap Rents Supply, LLC v Durante, 2018 NY Slip Op 08458, Second Dept 12-12-18

SPOLIATION

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BY ENTERING A STIPULATION SETTLING A FORECLOSURE ACTION, DEFENDANT WAIVED ANY DEFECT IN SERVICE OF THE COMPLAINT, THE STIPULATION WAS VALID EVEN THOUGH IT DID NOT OCCUR IN COURT, EMAILS AND PAYMENT OF A SETTLEMENT AMOUNT MEMORIALIZED THE STIPULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined that defendant Campbell had waived any defect in service of process by entering into a stipulation of settlement in this foreclosure action. The court held that the stipulation settling the deficiency judgment, which did not occur in court, was memorialized by emails and the payment of an agreed settlement amount. The dissent argued there was insufficient evidence of a stipulation entered into by Campbell and therefore Campbell’s motion to vacate the default judgment on the ground she was never served with the complaint should have been granted:

… [I]n vacating the settlement of the deficiency judgment “in the interests of justice,” the Supreme Court incorrectly determined that Campbell was not represented by counsel. In fact, Campbell was represented by counsel when she settled and made payment on the deficiency judgment. As part of the settlement, the plaintiff agreed not to proceed in other pending foreclosure actions against Campbell. Additionally, Campbell retained the same attorney with respect to other actions arising out of the settlement. By settling the deficiency judgment, Campbell clearly submitted to the court’s jurisdiction and acknowledged the validity of the judgment… . Therefore, we disagree with the court’s determination granting Campbell’s motion to vacate the judgment of foreclosure and sale, the subsequent foreclosure sale, the order of reference, the referee’s deed, and the settlement of the deficiency judgment, the terms of which had been fully performed.

Contrary to the position of our dissenting colleague, a formal stipulation of settlement need not be contained in the record. Here, the terms of the settlement were contained in contemporaneous emails between the plaintiff’s attorney and Campbell’s attorney, and by a check in the amount on which they had agreed. Campbell does not deny that she paid the amount for which she agreed to settle the deficiency judgment. That fully performed settlement two years before Campbell moved to vacate her default effectively waived her defense that the court lacked personal jurisdiction over her … . Eastern Sav. Bank, FSB v Campbell, 2018 NY Slip Op 08465, Second Dept 12-12-18

CPLR 2104

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QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT WITH RESPECT TO THE ADVERSE POSSESSION ACTION AND THE LACHES DEFENSE, THE ACTION INVOLVED LAND THAT WAS ONCE UNDER WATER CREATED BY THE MOVEMENT OF SAND DURING STORMS DECADES AGO (SECOND DEPT).

The Second Department, modifying Supreme Court, determined there were questions of fact in this adverse possession case concerning who owned the land and when the adverse possession began. The land in question was once under water and was created by the movement of sand decades ago:

CPLR 212(a) provides that “[a]n action to recover real property or its possession cannot be commenced unless the plaintiff, or his [or her] predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action.” However, the 10-year limitations period does not begin to run against a record owner of property until the occupiers of the property begin to adversely possess it (see RPAPL 311…).

We disagree with the Supreme Court’s determination that the defendants are entitled to summary judgment dismissing the complaint … on the ground that the action was barred by the statute of limitations. Calculation of the date from which the statute of limitations began to run on the plaintiffs’ causes of action requires a threshold determination as to whether the plaintiffs are the record owners of the disputed land, and secondly, whether, and if so, when, the defendants began to adversely possess the land… . The defendants failed to conclusively establish that the plaintiffs are not the record owners of the disputed land for the purposes of determining a date upon which the statute of limitations began to run … . …

The defendants also failed to establish … that they are entitled to judgment as a matter of law on their laches defense. “The essence of the equitable defense of laches is prejudicial delay in the assertion of rights” … . “In order for laches to apply to the failure of an owner of real property to assert his or her interest, it must be shown that [the] plaintiff inexcusably failed to act when [he or] she knew, or should have known, that there was a problem with [his or] her title to the property. In other words, for there to be laches, there must be present elements to create an equitable estoppel'” … .

Here, although the defendants established that the plaintiffs did not commence the action until a lengthy period of time after the alleged avulsive acts had occurred, the defendants failed to eliminate issues of fact as to whether the plaintiffs’ failure to act was excusable, whether the defendants were taking actions to adversely possess the disputed land, and whether and when the plaintiffs should reasonably have become aware of such alleged acts. Strough v Incorporated Vil. of W. Hampton Dunes, 2018 NY Slip Op 08525, Second Dept 12-12-18

 

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THE PRESUMPTION OF OWNERSHIP OF A VEHICLE CREATED BY THE CERTIFICATE OF TITLE CAN BE REBUTTED BY PROOF OF DOMINION AND CONTROL OVER THE VEHICLE, PLAINTIFF’S MOTION TO DISCOVER THE INSURER’S FILE IN THIS TRAFFIC ACCIDENT CASE TO DETERMINE WHETHER DEFENDANT EXERCISED DOMINION AND CONTROL OVER THE VEHICLE SHOULD NOT HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that evidence that defendant exercised dominion of control of the vehicle would rebut the presumption of ownership created by a certificate of title. Here the tile was in defendant’s wife’s name and she was driving at the time of the traffic accident. Plaintiff sought to discover the insurer’s file pursuant to CPLR 3124. Supreme Court should have granted the motion:

“A certificate of title is prima facie evidence of ownership” (… Vehicle and Traffic Law §§ 128, 2101[g]; 2108[c]…) . However, this presumption may be rebutted by evidence demonstrating that another individual owns the subject vehicle… . This may include evidence that a person other than the title holder exercised “dominion and control” over the vehicle …  .

Here, documents from the insurer concerning the vehicle and the accident are material and relevant to the issue of whether the defendant exercised dominion and control over the vehicle … . Accordingly, the Supreme Court should have granted the plaintiff’s motion to compel the defendant to provide an executed authorization for documents in the insurer’s possession concerning the vehicle and the accident … . ​Portillo v Carlson, 2018 NY Slip Op 08520, Second Dept 12-12-18

 

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LAW OFFICE FAILURE JUSTIFIED CONSIDERING EVIDENCE WHICH COULD HAVE BEEN PROVIDED IN SUPPORT OF THE ORIGINAL MOTION, MOTION TO RENEW PROPERLY GRANTED, HOWEVER DELAYS IN DISCOVERY WARRANTED SANCTIONS AGAINST PLAINTIFF (SECOND DEPT).

The Second Department determined law office failure was an adequate excuse for failing to present evidence in support of plaintiff’s original motion which was submitted in support of a motion to renew. However, in light of plaintiff’s delays in discovery, sanctions were appropriate:

… Supreme Court providently exercised its discretion in considering the new evidence submitted by the plaintiff in support of those branches of her motion which were for leave to renew her prior motion and her opposition to the appellants’ cross motion. Although the new facts may have been known to the plaintiff at the time of her prior motion, the plaintiff explained that the new evidence was not submitted in connection with her prior motion and opposition due to a misunderstanding by counsel that ultimately led to law office failure. * * *

“The determination of what constitutes a reasonable excuse lies within the Supreme Court’s discretion” … . “Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” … . “[T]he court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a detailed and credible explanation of the default at issue” … . …

… [A]though the plaintiff set forth a reasonable explanation for her failure to fully comply with the conditional order of dismissal, the fact remains that she failed to fully comply with that order, and her conduct during discovery cannot be countenanced … . Consequently, … a monetary sanction in the total sum of $5,000 is warranted to compensate the appellants for the time expended and costs incurred in connection with the plaintiff’s failure to fully and timely comply with the conditional order of dismissal … . Burro v Kang, 2018 NY Slip Op 08457, Second Dept 12-12-18

 

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FOUR MONTH STATUTE OF LIMITATIONS APPLIED TO THE DECISION BY THE PLANNING BOARD THAT NO ENVIRONMENTAL IMPACT STATEMENT WAS NECESSARY, PETITION TO ANNUL THAT DECISION WAS UNTIMELY (SECOND DEPT). ​

The Second Department determined the four-month statute of limitations applied to the planning board’s decision that an environmental impact statement was not necessary and the petition to annul that decision was untimely:

To the extent that the petition alleges the Planning Board’s noncompliance with SEQRA [State Environmental Quality Review Act], the four-month statute of limitations applies (see CPLR 217[1]…). An action taken by an agency pursuant to SEQRA may be challenged only when such action is final (see CPLR 7801[1]). An agency action is final when the decision-maker arrives at a ” definitive position on the issue that inflicts an actual, concrete injury'” … . The position taken by an agency is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party … . Here, the statute of limitations began to run with the issuance of the negative declaration for the project on February 19, 2015, as this constituted the Planning Board’s final act under SEQRA and, accordingly, any challenge to the negative declaration had to be commenced within four months of that date … . Matter of Stengel v Town of Poughkeepsie Planning Bd., 2018 NY Slip Op 08488, Second Dept 12-12-18

 

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PETITION TO AMEND A NOTICE OF CLAIM WAS UNTIMELY WITH RESPECT TO THE PARENTS’ DERIVATIVE ACTION IN THIS PEDESTRIAN-VEHICLE TRAFFIC ACCIDENT CASE, THE PETITIONERS DID NOT SHOW THAT THE TOWN HAD TIMELY KNOWLEDGE OF THE ALLEGED INVOLVEMENT OF TOWN PERSONNEL, PETITION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the petition for leave to amend the notice of claim against the town in this pedestrian-vehicle traffic accident case should not have been granted. The infant petitioner was struck by a car crossing a road. The proposed amendment would have alleged a town park ranger waved the family across just before the child was struck. Because the request to amend was made more than a year and 90 days after the accident, the request was untimely for the derivative action by the parents, but the statute of limitations was tolled for the infant petitioner. The Second Department went on to find that petitioners did not demonstrate the town had timely knowledge of the the allegation the family was waved across the street by a town employee, even though the allegation was memorialized in a Suffolk County police report:

… [T]he petitioners failed to establish that the Town acquired actual knowledge, within 90 days of the collision or a reasonable time thereafter, of the essential facts constituting the claim that the Town park ranger waved to the family to cross the highway. It is not alleged that the child was struck by a Town vehicle or a Town employee. In addition, Magwood’s [mother’s] testimony at her hearing held pursuant to General Municipal Law § 50-h did not indicate that a Town park ranger waved to the family to cross the highway. Although several witnesses to the collision gave a statement to the effect that the Town park ranger waved to the family to cross the highway, these statements were made to Suffolk County Police Department (hereinafter SCPD) personnel and memorialized in SCPD reports… . Further, while the Town park ranger prepared a Town Division of Enforcement and Security Public Safety report on the date of the collision, that report did not indicate that the Town park ranger waved to the family to cross the highway. ” [F]or a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation'” … . The Town park ranger’s report did not support a ready inference that the Town committed a potentially actionable wrong … .

Moreover, the petitioners failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim asserting the theory that the Town park ranger waved to the family to cross the highway and for the subsequent delay in filing this petition… . Although the petitioners satisfied their initial burden of showing a lack of substantial prejudice to the Town as a result of the late notice, and the Town failed to make a “particularized showing” of substantial prejudice … , the presence or absence of any one factor is not necessarily determinative in deciding whether permission to serve a late notice of claim should be granted … . Matter of Johnson v County of Suffolk, 2018 NY Slip Op 08482, Second Dept 12-12-18

 

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AUDIOTAPES OF CONVERSATIONS BETWEEN THE PATERNAL GRANDMOTHER AND THE CHILD WERE PROPERLY SUPPRESSED BECAUSE THEY WERE THE PRODUCT OF ILLEGAL WIRETAPPING UNDER CPLR 4506 (SECOND DEPT).

The Second Department determined Family Court properly suppressed audiotapes of conversations between the paternal grandmother and the child in this custody dispute between the maternal and paternal grandmothers. The audiotapes constituted illegal wiretapping pursuant to CPLR 4506:

Contrary to the maternal grandmother’s contention, the Family Court properly granted the paternal grandmother’s motion to suppress audiotapes of conversations between the paternal grandmother and the child pursuant to CPLR 4506, which provides for the suppression of evidence obtained by illegal wiretapping. The maternal grandmother and her son (the child’s uncle) were not parties to the conversation, were not present during the conversation, and the maternal grandmother does not assert that, under the circumstances, any vicarious consent was given… . Moreover, there is no merit to the maternal grandmother’s contention that the motion was untimely because it was not made before the hearing, since the paternal grandmother only learned of the existence of the tapes during the hearing (see CPLR 4506[4]). Matter of Dennis v Davis-Schloemer, 2018 NY Slip Op 08480, Second Dept 12-12-18

MOTION TO SUPPRESS, SUPPRESSION

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GENERAL RELEASE WAS NOT LIMITED TO A 2007 ACTION AND THEREFORE PRECLUDED THE 2014 ACTION, A UNILATERAL MISTAKE DOES NOT INVALIDATE A CONTRACT (THIRD DEPT).

The Third Department determined that, although the release signed by plaintiff (Moore) mentioned a 2007 action, the release stated it was not limited to the 2007 action. Therefore it applied to the instant action. The fact that plaintiff may not have intended that it apply to the current proceedings, a unilateral mistake, does not invalidate a contract:

The general release, executed by Moore after he commenced the present action, released defendant “from all manner of . . . claims and demands . . . in law or in equity that against [defendant] he ever had, now has or which he . . . shall or may have for any reason from the beginning of the world to the date of this release.” Plaintiffs nonetheless argue that the release is limited by its terms to the 2007 action, noting that “where a release contains a recital of a particular claim . . . and there is nothing on the face of the instrument other than general words of release to show that anything more than the matters particularly specified was intended to be discharged, the general words of release are deemed to be limited thereby” … . The release, however, does not limit or otherwise restrict itself to the 2007 action. Rather, it clearly and unambiguously specifies that it “includes, but is not limited to,” the incident that led to the 2007 action … . Moore executed the release with full knowledge that this action was pending against defendant, and the “timing and unequivocal and unconditional language” of the release therefore demonstrates its applicability to the 2014 action at issue here … . …

Although plaintiffs claim that Moore did not intend for the release to encompass this action when he executed it, “the fact that [Moore] may have intended something else is irrelevant[, as] a mere unilateral mistake . . . with respect to the meaning and effect of the release . . . does not constitute an adequate basis for invalidating” it … . Stevens v Town of Chenango (Forks), 2018 NY Slip Op 08389, Third Dept 12-6-18

CONTRACT LAW (GENERAL RELEASE WAS NOT LIMITED TO A 2007 ACTION AND THEREFORE PRECLUDED THE 2014 ACTION, A UNILATERAL MISTAKE DOES NOT INVALIDATE A CONTRACT (THIRD DEPT))/RELEASES  (GENERAL RELEASE WAS NOT LIMITED TO A 2007 ACTION AND THEREFORE PRECLUDED THE 2014 ACTION, A UNILATERAL MISTAKE DOES NOT INVALIDATE A CONTRACT (THIRD DEPT))/CIVIL PROCEDURE (GENERAL RELEASE WAS NOT LIMITED TO A 2007 ACTION AND THEREFORE PRECLUDED THE 2014 ACTION, A UNILATERAL MISTAKE DOES NOT INVALIDATE A CONTRACT (THIRD DEPT))

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A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSED AS TIME-BARRED (SECOND DEPT).

The Second Department. reversing Supreme Court, determined that the medical malpractice action should have been dismissed as time-barred. Plaintiff alleged a ureteral stent/catheter was inserted during surgery in 1993 and was discovered and removed in 2012. If the stent were a “foreign object,” the action would have been timely. But the stent was deliberately inserted for a medical purpose, although it should have been removed after up to six months. Because the stent was purposely inserted, it was not a “foreign object:”

… [T]he plaintiff failed to raise a triable issue of fact as to whether the ureteral stent/catheter allegedly inserted in his body was a “foreign object” such that the discovery rule should apply. According to the parties’ experts, a ureteral stent/catheter is a tube that bridges the kidney to the bladder, and is inserted and intentionally left in a patient for up to six months to assist in the draining of the kidney when the ureter is obstructed or when damage to the ureter was repaired and it is healing. The parties’ experts agree that if a ureteral stent/catheter was inserted in the plaintiff’s body during the 1993 procedure, then it was intentionally left in his body for the purpose of assisting in the draining of the kidney. Thus, the device was retained in the plaintiff’s body (if inserted at all) for ” postsurgery healing purposes'” and was not “analogous to tangible items” or “surgical paraphernalia,” such as clamps, scalpels, sponges, and drains, “introduced into a patient’s body solely to carry out or facilitate a surgical procedure”… . For these reasons, the ureteral catheter/stent was not a “foreign object,” and the action should have been dismissed as time-barred … . Livsey v Nyack Hosp., 2018 NY Slip Op 08289, Second Dept 12-5-18

NEGLIGENCE (A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))/MEDICAL MALPRACTICE (A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))/FOREIGN OBJECT (MEDICAL MALPRACTICE, CIVIL PROCEDURE, A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))/STATUTE OF LIMITATIONS  (MEDICAL MALPRACTICE, CIVIL PROCEDURE, A STENT WAS DELIBERATELY INSERTED IN PLAINTIFF DURING SURGERY IN 1993 AND WAS DISCOVERED AND REMOVED IN 2012, ALTHOUGH THE STENT SHOULD HAVE SUBSEQUENTLY BEEN REMOVED, BECAUSE IT WAS INSERTED INTENTIONALLY AND SERVED A SURGICAL PURPOSE IT WAS NOT A ‘FOREIGN OBJECT,’ THEREFORE THE DISCOVERY OF THE STENT IN 2012 DID NOT START THE STATUTE OF LIMITATIONS, COMPLAINT DISMISSES AS TIME-BARRED (SECOND DEPT))

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