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BANK MUST DEMONSTRATE IT HAS STANDING TO FORECLOSE TO ESTABLISH BOTH A VALID NOTICE OF THE ACCELERATION OF THE NOTE AND A VALID NOTICE OF THE DE-ACCELERATION OF THE NOTE, BANK WAS NOT ENTITLED TO DISMISS THE ACTION SEEKING TO CANCEL AND DISCHARGE A NOTE AND MORTGAGE ON STATUTE OF LIMITATIONS GROUNDS, AND PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE GROUND THE BANK HAD NOT VALIDLY DE-ACCELERATED THE NOTE TO STOP THE RUNNING OF THE STATUTE (SECOND DEPT).

The Second Department, modifying Supreme Court, in a full-fledged opinion by Justice Dillon, determined plaintiff’s motion for summary judgment in this action to cancel and discharge a note and mortgage pursuant to Real Property Actions and Proceedings Law (RPAPL) 1501 was properly denied, but defendant’ motion to dismiss the complaint pursuant to CPLR 3211 should not have been granted. Plaintiff argued the debt had been accelerated and the statute of limitations for foreclosure had passed, defendant argued it had de-accelerated the debt and the statute had not run.  The court, disagreeing with the 1st Department, noted that the language in a letter to the effect that the failure to cure the delinquency within 30 days “will result in acceleration” of the note does not constitute sufficient notice of the acceleration such that the statute of limitations starts to run. In addition, the court held, as a matter of first impression, standing to bring the foreclosure action is a pre-requisite both for a valid acceleration and a valid de-acceleration of the note:

Courts must … be mindful of the circumstance where a bank may issue a de-acceleration letter as a pretext to avoid the onerous effect of an approaching statute of limitations and to defeat the property owner’s right pursuant to RPAPL 1501 to cancel and discharge a mortgage and note. Here, however, the de-acceleration letter containing a clear and unequivocal demand that the homeowner meet her prospective monthly payment obligations constitutes a de-acceleration in fact and cannot be viewed as pretextual in any way.  …

We hold for the first time in the Appellate Division, Second Department, that just as standing, when raised, is a necessary element to a valid acceleration, it is a necessary element, when raised, to a valid de-acceleration as well.

Here, the de-acceleration notice … does not establish that [defendant] had standing to de-accelerate the earlier demand that the plaintiff’s mortgage debt be paid in its entirety, and no other evidence submitted … demonstrates that it had standing.  Milone v US Bank Natl. Assn., 2018 NY Slip Op 05760, Second Dept 8-15-18

FORECLOSURE (BANK MUST DEMONSTRATE IT HAS STANDING TO FORECLOSE TO ESTABLISH BOTH A VALID NOTICE OF THE ACCELERATION OF THE NOTE AND A VALID NOTICE OF THE DE-ACCELERATION OF THE NOTE, BANK WAS NOT ENTITLED TO DISMISS THE ACTION SEEKING TO CANCEL AND DISCHARGE A NOTE AND MORTGAGE ON STATUTE OF LIMITATIONS GROUNDS AND PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE GROUND THE BANK HAD NOT VALIDLY DE-ACCELERATED THE NOTE TO STOP THE RUNNING OF THE STATUTE (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, BANK MUST DEMONSTRATE IT HAS STANDING TO FORECLOSE TO ESTABLISH BOTH A VALID NOTICE OF THE ACCELERATION OF THE NOTE AND A VALID NOTICE OF THE DE-ACCELERATION OF THE NOTE, BANK WAS NOT ENTITLED TO DISMISS THE ACTION SEEKING TO CANCEL AND DISCHARGE A NOTE AND MORTGAGE ON STATUTE OF LIMITATIONS GROUNDS AND PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE GROUND THE BANK HAD NOT VALIDLY DE-ACCELERATED THE NOTE TO STOP THE RUNNING OF THE STATUTE (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, BANK MUST DEMONSTRATE IT HAS STANDING TO FORECLOSE TO ESTABLISH BOTH A VALID NOTICE OF THE ACCELERATION OF THE NOTE AND A VALID NOTICE OF THE DE-ACCELERATION OF THE NOTE, BANK WAS NOT ENTITLED TO DISMISS THE ACTION SEEKING TO CANCEL AND DISCHARGE A NOTE AND MORTGAGE ON STATUTE OF LIMITATIONS GROUNDS AND PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE GROUND THE BANK HAD NOT VALIDLY DE-ACCELERATED THE NOTE TO STOP THE RUNNING OF THE STATUTE (SECOND DEPT))

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HUSBAND’S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY’S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) husband's counsel should not have been disqualified on the ground she would be a witness, (2) the plenary action seeking to set aside the prenuptial agreement on grounds of duress, coercion, undue influence and unconscionabiltiy is properly joined with the divorce action, (3) and interim attorney's fees are not available for the action to set aside the prenuptial agreement:

Rule 3.7 of the Rules of Professional Conduct… provides that, unless certain exceptions apply, “[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact” … . In order to disqualify counsel on the ground that he or she may be called as a witness, a party moving for disqualification must demonstrate that (1) the testimony of the opposing party's counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party… . Here, the wife failed to demonstrate that [the attorney's] testimony will be necessary to her case … . …

“The trial court has broad discretion in determining whether to order consolidation”(… see CPLR 602[a]). The interests of justice and judicial economy are better served by consolidation or a joint trial in those cases where the actions share material questions of law or fact … . A motion to consolidate or join for trial should be granted absent a showing of prejudice to a substantial right by a party opposing the motion … . …

The Supreme Court should not have awarded the wife interim counsel fees in the sum of $10,000 pursuant to Domestic Relations Law § 237, as that statute does not permit the recovery of fees for legal work performed on nonmatrimonial matters, including where, as here, a party seeks an award of counsel fees incurred in an action to set aside a prenuptial agreement … . Lombardi v Lombardi, 2018 NY Slip Op 05758, Second Dept 8-15-18

FAMILY LAW (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/ATTORNEYS (FAMILY LAW, HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/CIVIL PROCEDURE (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/CPLR 602  (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/CONTRACT LAW (PRENUPTIAL AGREEMENT, HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/PRENUPTIAL AGREEMENT  (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))

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PLAINTIFF WAS NOT ENTITLED TO PREJUDGMENT INTEREST IN THIS BREACH OF CONTRACT ACTION BECAUSE PLAINTIFF FAILED TO DEMONSTRATE WHEN THE DAMAGES WERE INCURRED (SECOND DEPT).

n a breach of contract action too complex to fairly summarize here, the Second Department determined plaintiff was not entitled to prejudgment interest pursuant to CPLR 5001 (a) because plaintiff did not demonstrate when the damages were incurred:

We agree with the Supreme Court’s determination that the plaintiff was not entitled to prejudgment interest. CPLR 5001(a) provides that interest shall be recovered upon a sum awarded for a breach of contract. CPLR 5001 further mandates that “[i]nterest shall be computed from the earliest ascertainable date the cause of action existed” (CPLR 5001[b]). “Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date” (CPLR 5001[b]…). CPLR 5001 further provides that “[t]he date from which interest is to be computed shall be specified in the verdict, report or decision” (CPLR 5001[c]). With limited exception, “[i]f a jury is discharged without specifying the date, the court upon motion shall fix the date” (id.). The party seeking prejudgment interest bears the burden of demonstrating the date from which interest should be computed… .

Here, the plaintiff failed to demonstrate when the damages were incurred. Under the particular circumstances of this case, the Supreme Court’s determination that the damages were not incurred until the jury rendered its verdict was warranted … . Kachkovskiy v Khlebopros, 2018 NY Slip Op 05671, Second Dept 8-8-18

CIVIL PROCEDURE (PREJUDGMENT INTEREST, PLAINTIFF WAS NOT ENTITLED TO PREJUDGMENT INTEREST IN THIS BREACH OF CONTRACT ACTION BECAUSE PLAINTIFF FAILED TO DEMONSTRATE WHEN THE DAMAGES WERE INCURRED (SECOND DEPT))/CPLR 5001 (PREJUDGMENT INTEREST, PLAINTIFF WAS NOT ENTITLED TO PREJUDGMENT INTEREST IN THIS BREACH OF CONTRACT ACTION BECAUSE PLAINTIFF FAILED TO DEMONSTRATE WHEN THE DAMAGES WERE INCURRED (SECOND DEPT))/PREJUDGMENT INTEREST (PLAINTIFF WAS NOT ENTITLED TO PREJUDGMENT INTEREST IN THIS BREACH OF CONTRACT ACTION BECAUSE PLAINTIFF FAILED TO DEMONSTRATE WHEN THE DAMAGES WERE INCURRED (SECOND DEPT))/INTEREST (PREJUDGMENT INTEREST, PLAINTIFF WAS NOT ENTITLED TO PREJUDGMENT INTEREST IN THIS BREACH OF CONTRACT ACTION BECAUSE PLAINTIFF FAILED TO DEMONSTRATE WHEN THE DAMAGES WERE INCURRED (SECOND DEPT))/CONTRACT LAW (PREJUDGMENT INTEREST, PLAINTIFF WAS NOT ENTITLED TO PREJUDGMENT INTEREST IN THIS BREACH OF CONTRACT ACTION BECAUSE PLAINTIFF FAILED TO DEMONSTRATE WHEN THE DAMAGES WERE INCURRED (SECOND DEPT))

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JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, raised the statute of limitations defense in this foreclosure action:

Supreme Court erred in sua sponte raising the affirmative defense of the statute of limitations and directing the dismissal of the complaint on that ground. The statute of limitations is an affirmative defense which is waived by a party unless it is raised either in a responsive pleading, or by motion prior to the submission of a responsive pleading (see CPLR 3211[e]…). “A court may not take judicial notice,’ sua sponte, of the applicability of a statute of limitations if that defense has not been raised” … . Here, the defendant neither answered the complaint nor submitted a pre-answer motion which raised the statute of limitations defense. 352 Legion Funding Assoc. v 348 Riverdale, LLC, 2018 NY Slip Op 05662, Second Dept 8-8-18

CIVIL PROCEDURE (STATUTE OF LIMITATIONS, JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))/STATUTE OF LIMITATIONS ( JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))/JUDGES (SUA SPONTE, JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))/FORECLOSURE (STATUTE OF LIMITATIONS, JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))

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CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT).

The First Department, over a concurring memorandum, defined the procedure for determining whether opposing counsel can be deposed. Counsel had requested a protective order prohibiting the deposition. The matter was remanded for a ruling based upon the criteria described as follows:

… [D]efendants’ counsel has made a prima facie showing that the material sought is irrelevant and/or that the process is not calculated to lead to legitimate discovery, whether because the information sought is privileged or because the true purpose of the subpoena is solely to disqualify him.  …

… [W]e remand this matter to the motion court for further proceedings to determine whether plaintiffs have shown that the information they seek in deposing defendants’ counsel is material and necessary… , that they have a good faith basis for seeking it … , and that the information is not available from another source. Should the motion court allow the deposition to proceed, it should be without prejudice to counsel’s objection to specific questions to the extent that the answers would reveal information that is privileged or otherwise protected from discovery (CPLR 3101). Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 2018 NY Slip Op 05624, First Dept 8-2-18

CIVIL PROCEDURE (CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))/PRIVILEGE (ATTORNEY-CLIENT, CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))/ATTORNEYS (DEPOSITION OF OPPOSING COUNSEL, CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))/DISCOVERY (DEPOSITION OF OPPOSING COUNSEL, CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))/PROTECTIVE ORDER (DEPOSITION OF OPPOSING COUNSEL, CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))

NO REASONABLE JUSTIFICATION FOR FAILURE TO PRESENT DOCUMENTS WITH ORIGINAL MOTION, MOTION FOR LEAVE TO RENEW PROPERLY DENIED (SECOND DEPT).

The Second Department determined petitioner’s motion for leave to renew was properly denied. The context was an action by a municipal employee, a senior tree pruner, arguing that he was entitled to a hearing before termination because of his status as a member of a volunteer fire department (an “exempt firefighter”). Petitioner’s attempt to present evidence of the “exempt firefighter” status in a motion to renew was rejected:

“In general, a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination” … . However, “[t]he requirement that a motion for renewal be based on new facts is a flexible one” … . The new or additional facts presented “either must have not been known to the party seeking renewal or may, in the Supreme Court’s discretion, be based on facts known to the party seeking renewal at the time of the original motion” … . “However, in either instance, a reasonable justification’ for the failure to present such facts on the original motion must be presented” … .

” [T]he Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion'” … . A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation… .  Here, we agree with the Supreme Court’s finding that the petitioner failed to offer a reasonable justification for his failure to present the documents relating to his status as an “exempt” firefighter in opposition to the original motion to dismiss. Matter of Serviss v Incorporated Vil. of Floral Park, 2018 NY Slip Op 05597, Second Dept 8-1-18

CIVIL PROCEDURE (NO REASONABLE JUSTIFICATION FOR FAILURE TO PRESENT DOCUMENTS WITH ORIGINAL MOTION, MOTION FOR LEAVE TO RENEW PROPERLY DENIED (SECOND DEPT))/CPLR 2221 (NO REASONABLE JUSTIFICATION FOR FAILURE TO PRESENT DOCUMENTS WITH ORIGINAL MOTION, MOTION FOR LEAVE TO RENEW PROPERLY DENIED (SECOND DEPT))/RENEW, MOTION TO (NO REASONABLE JUSTIFICATION FOR FAILURE TO PRESENT DOCUMENTS WITH ORIGINAL MOTION, MOTION FOR LEAVE TO RENEW PROPERLY DENIED (SECOND DEPT))

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INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim should not have been granted. Infant plaintiff was allegedly injured when he tripped and fell over a discarded metal frame on village property. The court noted that the mother’s derivative cause of action was time-barred because the infancy toll of the statute of limitations did not apply to her:

… [T]he Supreme Court should have denied that branch of the petition which was for leave to serve a late notice of claim upon the Village on behalf of the mother in her individual capacity, as the statute of limitations for her derivative cause of action had expired at the time the proceeding was commenced … . The infancy toll (see CPLR 208) is personal to the infant and does not extend to a parent’s derivative cause of action … . Matter of R.N. v Village of New Sq., 2018 NY Slip Op 05595, Second Dept 8-1-18

MUNICIPAL LAW (INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT)/NEGLIGENCE (CIVIL PROCEDURE, MUNICIPAL LAW, INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STATUTE OF LIMITATIONS  (INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/INFANCY TOLL (STATUTE OF LIMITATIONS, (INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

COURT PROPERLY REFUSED TO CONSIDER EVIDENCE SUBMITTED WITH REPLY PAPERS (SECOND DEPT).

The Second Department noted that evidence submitted for the first time in reply papers was properly not considered. The context was a motion for leave to file a late notice of claim in a personal injury action. The evidence at issue was a supervisor’s report of injury and illness, presumably submitted to show the respondent’s awareness of petitioner’s injury. Matter of Murnane v New York City Sch. Constr. Auth., 2018 NY Slip Op 05594, Second Dept 8-1-18

CIVIL PROCEDURE (REPLY PAPERS, COURT PROPERLY REFUSED TO CONSIDER EVIDENCE SUBMITTED WITH REPLY PAPERS (SECOND DEPT))/REPLY PAPERS (COURT PROPERLY REFUSED TO CONSIDER EVIDENCE SUBMITTED WITH REPLY PAPERS (SECOND DEPT))

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS REAR-END COLLISION CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined that plaintiff’s motion for summary judgment and plaintiff’s motion to set aside the verdict in this rear-end collision case were properly denied.  Plaintiff was stopped when the rear-end collision occurred. However, defendant demonstrated that he was unable to stop because of slippery conditions:

On his motion for summary judgment, the plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that his vehicle was stopped when it was struck in the rear by the defendant’s vehicle… . However, the defendant raised a triable issue of fact as to the existence of a nonnegligent explanation; namely, an unavoidable skidding on a snow-covered road … . …

A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party … .

Here, in light of the defendant’s testimony regarding his speed and distance from the plaintiff’s vehicle just before the collision and the testimony that he immediately applied the brakes when the plaintiff’s brake lights illuminated but nonetheless was caused to skid by snowy road conditions, there was a valid line of reasoning and permissible inferences by which the jury could reach the conclusion that the defendant was not at fault in the happening of the accident … . Miller v Steinberg, 2018 NY Slip Op 05585, Second Dept 8-1-18

NEGLIGENCE (REAR END COLLISIONS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS REAR-END COLLISION CASE PROPERLY DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS  (REAR END COLLISIONS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS REAR-END COLLISION CASE PROPERLY DENIED (SECOND DEPT))/REAR END COLLISIONS (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS REAR-END COLLISION CASE PROPERLY DENIED (SECOND DEPT))/CIVIL PROCEDURE (REAR END COLLISIONS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS REAR-END COLLISION CASE PROPERLY DENIED (SECOND DEPT))

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COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT).

The Second Department determined plaintiff’s employment discrimination action was properly dismissed on collateral estoppel grounds. Plaintiff had brought a discrimination action in federal court which was dismissed. The Human Rights Law (NYCHRL) causes of action in state court, alleging the same facts as alleged in the federal case, were therefore properly dismissed. Defendants were not entitled to dismissal of the breach of contract and quantum meruit causes of action. Because the defendants submitted evidence in support of their motion to dismiss , the motion court treated it as a motion for summary judgment (before issue was joined). The court noted that defendants did not make out a prima facie case in their motion papers. Therefore the sufficiency of plaintiff’s papers need not be considered. The court also explained that where there is a question about the existence of a contract, a quantum meruit cause of action may be brought and the plaintiff is not required to elect his or her remedies:

Here, the factual determinations made by the federal courts with regard to the causes of action alleging discrimination, retaliation, and hostile work environment under Title VII were determinative of the plaintiff’s identical claims asserted in this action pursuant to NYCHRL

CPLR 3211(c) provides, “[u]pon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment.” Although the path the defendants took in moving pursuant to CPLR 3211(c) was procedurally questionable, they charted their own course in this instance. There was no need to give the plaintiff an opportunity to file additional papers because the defendants failed to establish their prima facie entitlement to judgment as a matter of law by failing to tender sufficient evidence to eliminate any issues of fact with respect to those causes of action. Accordingly, the defendants were properly denied summary judgment, without regard to the sufficiency of the opposition papers … . Karimian v Time Equities, Inc., 2018 NY Slip Op 05583, Second Dept 8-1-18

EMPLOYMENT LAW (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/CIVIL PROCEDURE (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/CPLR 3211 (C) (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/HUMAN RIGHTS LAW (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/CONTRACT LAW (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/QUANTUM MERUIT (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))

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