You are here: / Civil Procedure
,

COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT).

The First Department noted that Supreme Court did not have the authority to, sua sponte, vacate its prior decision and order and reinstate a 2014 judgment. The motion papers did not request any relief that could be the basis of the court’s action:

“[A] trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment” … . Although “a court may grant relief[] pursuant to a general prayer contained in the notice of motion . . . ” … , no such clause was contained in plaintiff’s notice of motion. In the absence of any cross motion from the defendants, or any other kind of request for vacatur of the court’s prior order decision and prior order and reinstatement of the prior judgment, the court erred in doing so on its own initiative. Howell v City of New York, 2018 NY Slip Op 07178, First Dept 10-25-18

CIVIL PROCEDURE (COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT))/SUA SPONTE (COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT))/JUDGES (COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, VACATE ITS DECISION AND REINSTATE A 2014 JUDGMENT WHERE NO REQUEST THAT COULD FORM THE BASIS OF THAT ACTION WAS MADE IN THE MOTION PAPERS (FIRST DEPT))

, , ,

IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a class action stemming from the loss of power during Hurricane Sandy, determined: (1) the public was a third-party beneficiary of a contract between National Grid and the Long Island Power Authority (LIPA); (2) the public was subject to the arbitration clause in the contract; and (3) filing a pre-answer motion dismiss did not act as a waiver of arbitration:

… [U]nder limited circumstances nonsignatories may be compelled to arbitrate” … . “Under the direct benefits theory of estoppel, a nonsignatory may be compelled to arbitrate where the nonsignatory knowingly exploits’ the benefits of an agreement containing an arbitration clause, and receives benefits flowing directly from the agreement” … . “The benefits must be direct, and the party seeking to compel arbitration must demonstrate that the party seeking to avoid arbitration relies on the terms of the agreement containing the arbitration provision in pursuing its claim” … . …

National Grid … demonstrated that the plaintiffs derived a direct benefit from the [contract] and that the plaintiffs are explicitly relying upon the terms of that agreement to support their claims against National Grid. Accordingly, under these circumstances, the plaintiffs should be compelled to arbitrate in accordance with the arbitration clause … . …

… [T]the service of a pre-answer motion to dismiss does not constitute waiver of the right to arbitrate, since “a defendant is entitled to have the sufficiency of a complaint tested before a duty to seek arbitration arises” … . Similarly, an appeal from the denial of a motion to dismiss does not result in waiver of the right to arbitrate … . Matter of Long Is. Power Auth. Hurricane Sandy Litig., 2018 NY Slip Op 07127, Second Dept 10-24-18

ARBITRATION (IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))/CONTRACT LAW (ARBITRATION, IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))/CIVIL PROCEDURE (ARBITRATION, IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))/UTILITIES (IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))

, ,

TAX FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive dissent, determined the county’s attempt to foreclose on tax liens was a nullity because the property owners had died and no representative of the estate had been appointed under the Surrogate’s Court Procedure Act (SCPA) or the CPLR. The dissent argued that an in rem proceeding was appropriate:

“[I]t is well established that the dead cannot be sued” … . Accordingly, “[a] party may not commence a legal action or proceeding against a dead person, but must instead name the personal representative of the decedent’s estate” … . …

Although the passage of time is no bar to the County’s enforcement of tax liens (see RPTL 1160), as a general matter, “[t]he remedy for a [party] who faces the running of the Statute of Limitations under these circumstances is to petition the Surrogate’s Court pursuant to SCPA 1002 for the appointment of . . . [a] personal representative of the estate” … . The Surrogate’s Court Procedure Act provides that, depending on the circumstances of the particular case, letters of administration may be granted to “persons who are distributees of an intestate”… , or to certain other individuals including “the public administrator, . . . the chief fiscal officer of the county, . . . the petitioner, in the discretion of the court, or . . . any other person or persons” … .

Similarly, if the death of a party occurs after the commencement of a proceeding or action “and the claim for or against him [or her] is not thereby extinguished[,] the court shall order substitution of the proper parties” (CPLR 1015[a]). “A motion for substitution may be made by the successors or representatives of a party or by any party” (CPLR 1021 …). …

Our dissenting colleague contends, without citation to any positive authority, that in rem proceedings may be properly commenced and maintained against individuals who are known to be deceased so long as the County has provided those deceased individuals with notice of the proceeding in accordance with statutory law. We are unaware of any purpose such notice would serve to the deceased individuals, and unaware of “any method for serving with process those who have moved beyond the vale” … . Matter of Foreclosure of Tax Liens v Goldman, 2018 NY Slip Op 07123, Second Dept 10-24-18

REAL PROPERTY TAX LAW TAX (FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT))/TAX LIENS (FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT)/FORECLOSURE (TAX LIENS, FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT)).TRUSTS AND ESTATES (TAX LIENS, FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT))/CIVIL PROCEDURE (TRUSTS AND ESTATES, FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT))

, , ,

PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the plaintiff did not submit admissible proof that defendant was in default. The evidence did not meet the business records exception to the hearsay rule. The court also held that a nonparty’s motion to intervene was properly denied as untimely and the Judiciary Law 489 affirmative defense was properly struck. Judiciary Law 489 prohibits buying another’s debt for the purpose of bringing a court action, but debts exceeding $500,000 are exempt. The debts purchased here exceeded $500,000:

The determination to deny Fulton Holdings’ motion for leave to intervene in the action was a provident exercise of discretion. “Intervention under CPLR 1012 and 1013 requires a timely motion” … . Here, Fulton Holdings’ motion was not timely, as it was not made until approximately 14 months after Fulton Holdings had notice that the foreclosure action was pending … . …

Here, the plaintiff failed to submit evidence of default in admissible form. To evince the mortgagor’s default, the plaintiff submitted the affidavits of Igor Fleyshmakher, the plaintiff’s managing member, and Frank Quintana, the president of 179 Court Street Holding Corp. (hereinafter 179 Court), a prior holder of the mortgage. Fleyshmakher and Quintana both attested to the date of the last payment allegedly received on the mortgage. However, the plaintiff failed to demonstrate the admissibility, under the business records exception to the hearsay rule, of any records relied upon by Fleyshmakher and Quintana (see CPLR 4518[a]…). Neither Fleyshmakher nor Quintana laid a foundation for, or even identified, the records upon which they relied. Moreover, neither the plaintiff nor 179 Court acquired its interest in the mortgage until after the alleged default date. Thus, neither Fleyshmakher nor Quintana could have established the loan’s payment history up to and including the date of default by relying on their respective employers’ records. Neither Fleyshmakher nor Quintana asserted that they consulted or relied on the records of 179 Court’s predecessor-in-interest. Under these circumstances, the plaintiff failed to establish, prima facie, the mortgagor’s default … . Fulton Holding Group, LLC v Lindoff, 2018 NY Slip Op 07096, Second Dept 10-24-18

FORECLOSURE (PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/EVIDENCE (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/HEARSAY (BUSINESS RECORDS EXCEPTION, FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/CPLR 4518 (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/CPLR 1012, 1013 (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/DEBTOR-CREDITOR (JUDICIARY LAW 489, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/JUDICIARY 489 FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))

, ,

THE INSURANCE POLICY WAS PROPERLY AUTHENTICATED AND IT EXCLUDED COVERAGE FOR THE PROPERTY DAMAGE, MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the insurance  policy was properly authenticated and the policy unambiguously excluded coverage for the property damage at issue and dismissed the complaint:

The insurance policy submitted by defendant in support of its motion was sufficiently authenticated by the sworn affidavit of defendant’s president, who stated that, based upon his review of defendant’s files, defendant’s proffer was a “full and complete copy” of the insurance policy issued to plaintiffs … .

… [W]e find that the terms of the policy conclusively refute plaintiffs’ claim that defendant is obligated to cover the structural damage caused to their barn by Calhoun’s operation of their tractor and hay baler. By its unambiguous terms, the policy insured plaintiffs only against direct physical loss caused to the barn by 11 specifically delineated perils. Accepting the allegations in plaintiffs’ complaint as true and affording them the benefit of every possible favorable inference… , the alleged cause of the structural damage here — the tractor and hay baler “br[ea]k[ing] through the barn floor” — does not fall under one of the covered perils. The section of the policy cited by plaintiffs as providing coverage is inapplicable, as that section applies solely to liability insurance coverage arising out of third-party claims made against plaintiffs. Accordingly, as the insurance policy conclusively disposes of plaintiffs’ claim, defendant’s motion to dismiss pursuant to CPLR 3211 (a) (1) should have been granted and the complaint dismissed … . Calhoun v Midrox Ins. Co., 2018 NY Slip Op 07024, Third Dept 10-18-18

INSURANCE LAW (THE INSURANCE POLICY WAS PROPERLY AUTHENTICATED AND IT EXCLUDED COVERAGE FOR THE PROPERTY DAMAGE, MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (THIRD DEPT))/CIVIL PROCEDURE (THE INSURANCE POLICY WAS PROPERLY AUTHENTICATED AND IT EXCLUDED COVERAGE FOR THE PROPERTY DAMAGE, MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (THIRD DEPT))/CPLR 3211 (THE INSURANCE POLICY WAS PROPERLY AUTHENTICATED AND IT EXCLUDED COVERAGE FOR THE PROPERTY DAMAGE, MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (THIRD DEPT))/EVIDENCE (THE INSURANCE POLICY WAS PROPERLY AUTHENTICATED AND IT EXCLUDED COVERAGE FOR THE PROPERTY DAMAGE, MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (THIRD DEPT))

, , , ,

REVERSING SUPREME COURT THE THIRD DEPT NOTED THAT SUMMARY JUDGMENT MAY BE AWARDED ON THE BASIS OF AN UNPLEADED CAUSE OF ACTION AND DID SO IN FAVOR OF THE TOWN IN THIS ZONING AND BUILDING CODE VIOLATION CASE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the complaint in this zoning and building code violation case should not have been dismissed by the court sua sponte, and the court should not have awarded summary judgment to the defendant property owner. The Third Department noted that summary judgment may be awarded on an upleaded cause of action in the absence of prejudice and awarded summary judgment in favor of the town (plaintiff):

… [P]laintiff established the material facts through an affidavit by its Code and Zoning Enforcement Officer, who detailed the zoning and building code violations found on defendant’s property and averred that defendant had not remedied them after being served with orders to do so. The statements in the affidavit were corroborated by documentary and photographic evidence, and defendant submitted no opposition that might have raised material questions of fact. Supreme Court correctly observed that the complaint did not name a cause of action or identify the legal basis for the relief requested, and plaintiff’s motion papers suffered from the same problem. Plaintiff now points to authority for the relief sought by it (see Executive Law § 382 [3]; Village Law § 7-714 …), however, and summary judgment may be granted on an unpleaded cause of action “where the proof supports such a cause of action and the opposing party has not been misled to its prejudice” … . The evidence substantiates plaintiff’s entitlement to the relief sought — relief that plaintiff has consistently sought and was narrowed in its notice of motion for summary judgment — and there is no indication that defendant was prejudiced by the failure to identify the statutes authorizing it sooner. Thus, we grant plaintiff’s motion for summary judgment and remit so that Supreme Court may fashion an appropriate remedial order. Village of Sharon Springs v Barr, 2018 NY Slip Op 07022, Third Dept 10-18-19

 

MOTION FOR LEAVE TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department determined a motion for leave to amend the complaint should have been granted and explained the criteria:

CPLR 3025 (b) provides generally that leave to amend a pleading “shall be freely given.” “[T]he rule on a motion for leave to amend a pleading is that the movant need not establish the merits of the proposed amendment and, ‘[i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” … . Here, the proposed amendment does not change the theory of recovery, but seeks to further develop facts supporting plaintiff’s second cause of action for breach of contract. In addition, plaintiff did not delay in seeking the amendment and, given that the amendment is confined to matters that were in the original complaint, there is no prejudice to defendant … . In view of the foregoing, leave to amend the complaint should have been granted. Gulfstream Anesthesia Consultants, P.A. v Cortland Regional Med. Ctr., Inc., 2018 NY Slip Op 07018, Third Dept 10-18-18

CIVIL PROCEDURE (MOTION FOR LEAVE TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (THIRD DEPT))/COMPLAINT, MOTION TO AMEND (MOTION FOR LEAVE TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (THIRD DEPT))/CPLR 3025 (MOTION FOR LEAVE TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (THIRD DEPT))

, ,

BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff bank did not demonstrate standing to bring the foreclosure action:

Where, as here, the note has been endorsed in blank, the purported holder of the note must establish its standing by demonstrating that the original note was physically delivered to it prior to the commencement of the action (see UCC 3-202[1]; 3-204[2]…). The plaintiff attempted to establish its standing through the affidavit of Jonathan Manko, an officer of Bank of America, N.A., the purported servicing agent for the plaintiff. Manko averred that he reviewed all of the documents attached to his affidavit and “authenticate[d] them as coming directly from the loan file at issue herein and kept in the ordinary course of business.” Manko averred that this action was commenced on December 30, 2010, and at that time, the plaintiff was in possession of the original note and mortgage. However, the plaintiff failed to demonstrate that the records Manko relied upon were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Manko, an officer of Bank of America, N.A., did not attest that he was personally familiar with the plaintiff’s record-keeping practices and procedures … . Bank of N.Y. Mellon v Selig, 2018 NY Slip Op 06874, Second Dept 10-17-18

FORECLOSURE (BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION INSUFFICIENT (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, STANDING, BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION INSUFFICIENT (SECOND DEPT))/EVIDENCE (FORECLOSURE, STANDING, BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION INSUFFICIENT (SECOND DEPT))/HEARSAY (FORECLOSURE, BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION INSUFFICIENT (SECOND DEPT))/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (FORECLOSURE, BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION INSUFFICIENT (SECOND DEPT))

, ,

FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT). ​

The Second Department determined Supreme Court properly searched the record and granted defendant’s summary judgment in this action on a promissory note. The agreement at issue was an illegal contract involving a fee-splitting arrangement between physicians and non-physicians which is prohibited by the Education Law:

We agree with the Supreme Court’s determination to deny those branches of the plaintiff’s motion which were for summary judgment on the causes of action to recover the balance due on the promissory note and for an award of costs and attorney’s fees, and, upon searching the record, to award the defendants summary judgment dismissing those causes of action. Contrary to the plaintiff’s contentions, the evidence submitted by the parties in connection with the motion for summary judgment established, prima facie, that the agreement and the promissory note were a pretext for an unlawful fee-splitting arrangement in violation of the Education Law because they circumvented New York’s prohibition on physicians splitting fees with nonphysicians (see Education Law §§ 6509-a, 6530[19] … ). “It is the settled law of this State (and probably of every other State) that a party to an illegal contract cannot ask a court of law to help him [or her] carry out his [or her] illegal object, nor can such a person plead or prove in any court a case in which he [or she], as a basis for his [or her] claim, must show forth his [or her] illegal purpose” … . “Where the parties’ arrangement is illegal the law will not extend its aid to either of the parties . . . or listen to their complaints against each other, but will leave them where their own acts have placed them'” … . Linchitz Practice Mgt., Inc. v Daat Med. Mgt., LLC, 2018 NY Slip Op 06891, Second Dept 10-17-18

CONTRACT LAW (FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT))/DEBTOR-CREDITOR (FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT))/CIVIL PROCEDURE (FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT))/PHYSICIANS (FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT))/FEE-SPLITTING (PHYSICIANS, FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT))/EDUCATION LAW (PHYSICIANS, FEE-SPLITTING ARRANGEMENT BETWEEN PHYSICIANS AND NON-PHYSICIANS IS ILLEGAL UNDER THE EDUCATION LAW AND CANNOT BE ENFORCED BY THE COURTS, SUPREME COURT PROPERLY SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO DEFENDANTS IN THIS ACTION ON A PROMISSORY NOTE (SECOND DEPT))

, ,

SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT).

The Second Department determined the defendants demonstrated the storm in progress rule insulated them from liability in this snow and ice sidewalk slip and fall case because the slip and fall occurred less than four hours after the precipitation stopped. The motion to renew was properly denied because the newly submitted evidence did not call into question the applicability of the four-hour rule:

… [T]he defendants demonstrated that, pursuant to Administrative Code of the City of New York § 16-123(a), which requires building owners to clear ice and snow from an abutting sidewalk within four hours after the snow ceases to fall, excluding the hours between 9:00 p.m. and 7:00 a.m., they had no duty to clear the sidewalk until 10:20 a.m., which was several hours after the plaintiff’s accident. The plaintiff moved, in effect, for leave to renew and reargue her opposition to the defendants’ motion for summary judgment. In support of that branch of her motion which was for leave to renew, the plaintiff submitted the deposition testimony of a former employee of the defendants who witnessed the accident. The plaintiff argued that she was unable to present this evidence in opposition to the motion for summary judgment because the defendants deliberately delayed disclosing the identity of the witness until just before they made that motion. …

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]) and “shall contain reasonable justification for the failure to present such facts on the prior motion”… . Here, we agree with the Supreme Court’s determination to deny that branch of the plaintiff’s motion which was for leave to renew her opposition to the defendants’ motion for summary judgment. The newly submitted evidence would not have changed the prior determination … . The new facts relied on, consisting of the deposition testimony of the defendants’ former employee, did not raise a triable issue of fact as to whether the defendants had a duty to clear the sidewalk prior to the plaintiff’s accident or whether they created or exacerbated a dangerous condition by engaging in negligent snow removal efforts. Ghoneim v Vision Enters. Mgt., LLC, 2018 NY Slip Op 06884. Second Dept 10-17-18

NEGLIGENCE (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/SLIP AND FALL (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/STORM IN PROGRESS RULE  (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/CIVIL PROCEDURE (MOTION TO RENEW, SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/RENEW, MOTION TO (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/CPLR 2221 (MOTION TO RENEW, SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy