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EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant attorneys were not entitled to dismissal of the legal malpractice action based on documentary evidence:

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” … . “In order for evidence to qualify as documentary,' it must be unambiguous, authentic, and undeniable” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” … . “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” … .

Here, the emails and letters submitted in support of the defendant's motion were not documentary evidence within the meaning of CPLR 3211(a)(1). To the extent that the other evidence submitted was documentary, that evidence did not conclusively establish the absence of an attorney-client relationship between the plaintiffs and the defendant with respect to the liens and their extensions. First Choice Plumbing Corp. v Miller Law Offs., PLLC, 2018 NY Slip Op 05825, Second Dept 8-22-18

CIVIL PROCEDURE (EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3211 (EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CIVIL PROCEDURE, EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LEGAL MALPRACTICE  (EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (LEGAL MALPRACTICE, CIVIL PROCEDURE, EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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CONDITIONAL ORDER DID NOT MEET THE NOTICE REQUIREMENTS OF CPLR 3216, FORECLOSURE ACTION SHOULD NOT HAVE BEEN ADMINISTRATIVELY DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the conditional order requiring that a note of issue or motion be filed by plaintiff bank within ninety days did not meet the requirements of a notice pursuant to CPLR 3216. Therefore the administrative dismissal of the foreclosure action was invalid:

“CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with” … . As relevant here, an action cannot be dismissed pursuant to CPLR 3216(a) “unless a written demand is served upon the party against whom such relief is sought' in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed'” … . While a conditional order of dismissal may have “the same effect as a valid 90-day notice pursuant to CPLR 3216” … , the conditional order here “was defective in that it failed to state that the plaintiff's failure to comply with the notice will serve as a basis for a motion' by the court to dismiss the action for failure to prosecute” … . Moreover, the conditional order failed to satisfy the notice requirement on the additional ground that there was “no indication that the plaintiff's counsel was present at the status conference at which the court issued the conditional order of dismissal,” nor was there “evidence that the order was ever properly served upon the plaintiff” … . In the absence of proper notice, “the court was without power to dismiss the action for the plaintiff's failure to comply with the conditional order of dismissal” … . Lastly, the Supreme Court erred in administratively dismissing the action without further notice to the parties and without benefit of further judicial review … . Deutsche Bank Natl. Trust Co. v Bastelli, 2018 NY Slip Op 05822, Second Dept 8-22-18

CIVIL PROCEDURE (CONDITIONAL ORDER DID NOT MEET THE NOTICE REQUIREMENTS OF CPLR 3216, FORECLOSURE ACTION SHOULD NOT HAVE BEEN ADMINISTRATIVELY DISMISSED (SECOND DEPT))/FORECLOSURE (CIVIL FORECLOSURE, CONDITIONAL ORDER DID NOT MEET THE NOTICE REQUIREMENTS OF CPLR 3216, FORECLOSURE ACTION SHOULD NOT HAVE BEEN ADMINISTRATIVELY DISMISSED (SECOND DEPT))/CPLR 3216 (CONDITIONAL ORDER DID NOT MEET THE NOTICE REQUIREMENTS OF CPLR 3216, FORECLOSURE ACTION SHOULD NOT HAVE BEEN ADMINISTRATIVELY DISMISSED (SECOND DEPT))

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ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT).

The Second Department determined Supreme Court had, in effect, granted plaintiff's motion for reargument of his opposition to the city's motion for summary judgment and therefore the related order was appealable. The Second Department further determined it would hear the appeal, even though plaintiff's prior appeal of the original order had been abandoned rather than withdrawn. Plaintiff, a bicyclist, alleged he had been injured by a defect in the bicycle lane. The city demonstrated it did not have prior written notice of the defect. The Second Department rejected plaintiff's argument that the “special use” exception to the prior written notice requirement applied because the city did not derive a special benefit from the bicycle lanes unrelated to the public use:

“Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies” … . “Where the City establishes that it lacked prior written notice under [Administrative Code of City of NY § 7-201], the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality”… . The special use exception is reserved for situations where a municipality derives a special benefit from the property unrelated to the public use … .

It is undisputed that the City demonstrated, prima facie, that it lacked prior written notice of the alleged defect. It is further undisputed that the record contains no evidence that the City created the condition that allegedly caused the plaintiff's accident. The plaintiff contends that this case falls within the special use exception because bicycle lanes provide a special benefit to the City by “enhancing its status” and “attracting residents and tourists.” However, the plaintiff failed to demonstrate that the implementation of bicycle lanes on City roadways bestowed a special benefit upon the City unrelated to the public use or that it constituted a special use of the roadways … . Budoff v City of New York, 2018 NY Slip Op 05817, Second Dept 8-22-18

NEGLIGENCE (ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/CIVIL PROCEDURE (ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/APPEALS  (ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))/SPECIAL USE EXCEPTION (ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT))

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LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT).

The First Department, over a dissent, determined the defendants-landlords had properly calculated a rent overcharge by going back four years from a date deemed to be when the tenants would have filed a rent overcharge complaint (none had been filed because the relevant law was unclear at the time):

Defendants chose May 1, 2010 as the date on which plaintiffs would be deemed to have filed a claim for overcharges, in the absence of any such claim having been filed, and then used these 2526.1(a) standards to fix the base date for determining the overcharge as May 1, 2006, the date four years before they undertook their review. Defendants then reduced plaintiffs' rent and forwarded payment to them for the overcharges so reflected. In June 2010 defendants filed registrations for the years 2006, 2007, 2008 and 2009 in accordance with these recalculations. Raden v W 7879, LLC, 2018 NY Slip Op 05799, First Dept 8-16-18

LANDLORD-TENANT (MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/CIVIL PROCEDURE (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/CPLR 213-a (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))/RENT STABILIZATION LAW  (LANDLORD-TENANT, MUNICIPAL LAW, LANDLORDS PROPERLY CALCULATED THE RENT OVERCHARGE PURSUANT TO THE NYC RENT STABILIZATION CODE BY CHOOSING A BASE RENT DATE FOUR YEARS BEFORE THE DATE DEEMED TO BE WHEN THE OVERCHARGE COMPLAINT WOULD HAVE BEEN FILED HAD THE LAW BEEN CLEAR AT THE TIME (FIRST DEPT))

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WHERE THERE IS NO FRAUD ON THE LANDLORD’S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT).

The First Department, reversing the NYC Department of Housing and Community Renewal (DHCR), over an extensive two-justice dissent, determined the DHCR erred when it looked back more than for years from the date of the rent overcharge complaint to determine the base rent for calculating the amount of the overcharge. There was no dispute that the landlord was receiving J-51 tax benefits and was therefore subject to the Rent Stabilization Law (RSL), which had a four-year statute of limitations:

The primary question presented in this appeal is how to determine the proper rent on the base date. * * *

… [I]n the absence of evidence of fraud, this Court has declined to look back more than four years before the filing of the overcharge complaint to set the base date rent … .

In the case at bar, DHCR was not arbitrary and capricious in finding that landlord did not engage in a fraudulent scheme to evade the Rent Stabilization Law. As a consequence, DHCR was prohibited from looking at the unit's rental history before November 2, 2005 [four years before the overcharge complaint]. …

[The legislature] not only set a four-year limitations period, but it also explicitly barred any “examination of the rental history of the housing accommodation prior to the four-year period preceding the filing of a complaint” (RSL § 26-516[a][2]). The Court of Appeals has found that the purpose of the four-year limitations period is “to alleviate the burden on honest landlords to retain rent records indefinitely” … . The Court of Appeals has made what we have called a “limited exception” to the four-year limitations period in cases where landlords act fraudulently … . To expand this exception to landlords who have not engaged in fraud would create a much broader exception that would appear to negate the temporal limits contained in the Rent Stabilization Law and the CPLR. Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 2018 NY Slip Op 05797, First Dept 8-16-18

LANDLORD-TENANT (MUNICIPAL LAW, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/RENT STABILIZATION LAW  (LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/RENT OVERCHARGE  (MUNICIPAL LAW, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/CIVIL PROCEDURE (MUNICIPAL LAW, LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))/CPLR 213-a (MUNICIPAL LAW, LANDLORD-TENANT, WHERE THERE IS NO FRAUD ON THE LANDLORD'S PART, THE NYC DEPARTMENT OF HOUSING AND COMMUNITY RENEWAL CANNOT LOOK BACK FURTHER THAN THE FOUR-YEAR STATUTE-OF-LIMITATIONS PERIOD IN THE RENT STABILIZATION LAW TO DETERMINE THE BASE RENT FOR CALCULATING AN OVERCHARGE (FIRST DEPT))

SUPREME COURT PROPERLY GRANTED DEFENDANTS’ MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY ACTION UNLESS PLAINTIFF STIPULATED TO A SUBSTANTIAL REDUCTION IN DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT).

The Second Department determined defendant's motion to set aside the verdict i(CPLR 4404(a)) n this personal injury case was properly granted. Supreme Court ordered a new trial unless plaintiff agreed to a reduction from $1.2 million to $750,000 for past pain and suffering, and from $3 million to $1.25 million for future pain and suffering. Plaintiff had injured his back after a fall of two feet:

A jury's determination with respect to awards for past and future pain and suffering will not be set aside unless the award deviates materially from what would be reasonable compensation (see CPLR 5501[c]… ). “The reasonableness' of compensation must be measured against relevant precedent of comparable cases” … . “Although prior damage awards in cases involving similar injuries are not binding upon the courts, they guide and enlighten them with respect to determining whether a verdict in a given case constitutes reasonable compensation”… . Considering the nature and the extent of the injuries sustained by the plaintiff, the awards for past pain and suffering and future pain and suffering, as reduced by the Supreme Court, do not deviate materially from what would be reasonable compensation … . Garcia v CPS 1 Realty, LP, 2018 NY Slip Op 05753, Second Dept 8-15-18

CIVIL PROCEDURE (SET ASIDE VERDICT, PERSONAL INJURY, SUPREME COURT PROPERLY GRANTED DEFENDANTS' MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY ACTION UNLESS PLAINTIFF STIPULATED TO A SUBSTANTIAL REDUCTION IN DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT))/CPLR 4404  (SET ASIDE VERDICT, PERSONAL INJURY, SUPREME COURT PROPERLY GRANTED DEFENDANTS' MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY ACTION UNLESS PLAINTIFF STIPULATED TO A SUBSTANTIAL REDUCTION IN DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT))/CPLR 5501 (SET ASIDE VERDICT, PERSONAL INJURY, SUPREME COURT PROPERLY GRANTED DEFENDANTS' MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY ACTION UNLESS PLAINTIFF STIPULATED TO A SUBSTANTIAL REDUCTION IN DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT))/DAMAGES (PAIN AND SUFFERING, SET ASIDE VERDICT, SUPREME COURT PROPERLY GRANTED DEFENDANTS' MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY ACTION UNLESS PLAINTIFF STIPULATED TO A SUBSTANTIAL REDUCTION IN DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT))/PAIN AND SUFFERING (SET ASIDE VERDICT, SUPREME COURT PROPERLY GRANTED DEFENDANTS' MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY ACTION UNLESS PLAINTIFF STIPULATED TO A SUBSTANTIAL REDUCTION IN DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT))

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NO REASONABLE EXCUSE FOR FAILURE TO SEEK A DEFAULT JUDGMENT WITHIN ONE YEAR, DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants' motion to dismiss the complaint in this foreclosure action should have been granted. Plaintiff did not seek a default judgment within one year and did not provide an excuse for the delay:

The plaintiff failed to seek a default judgment on the unanswered complaint within one year after the default, as required by CPLR 3215(c) … . To avoid dismissal of the action as abandoned pursuant to CPLR 3215(c), the plaintiff was required to demonstrate a reasonable excuse for its delay in seeking a default judgment and a potentially meritorious cause of action… . The plaintiff failed to offer a reasonable excuse for its delay in seeking a default judgment. Since the plaintiff failed to proffer a reasonable excuse for its delay in seeking a default judgment, this Court need not consider whether it had a potentially meritorious cause of action… .

A defendant may waive the right to seek a dismissal pursuant to CPLR 3215(c) by serving an answer or taking any other steps which may be viewed as a formal or informal appearance … . Here, the defendants did not appear in the action, either formally or informally. Federal Natl. Mtge. Assn. v Heilpern, 2018 NY Slip Op 05752, Second Dept 8-15-18

CIVIL PROCEDURE (DEFAULT, NO REASONABLE EXCUSE FOR FAILURE TO SEEK A DEFAULT JUDGMENT WITHIN ONE YEAR, DEFENDANTS' MOTION TO DISMISS THE COMPLAINT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3215 (DEFAULT, NO REASONABLE EXCUSE FOR FAILURE TO SEEK A DEFAULT JUDGMENT WITHIN ONE YEAR, DEFENDANTS' MOTION TO DISMISS THE COMPLAINT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/DEFAULT JUDGMENT (CIVIL PROCEDURE, NO REASONABLE EXCUSE FOR FAILURE TO SEEK A DEFAULT JUDGMENT WITHIN ONE YEAR, DEFENDANTS' MOTION TO DISMISS THE COMPLAINT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, DEFAULT, NO REASONABLE EXCUSE FOR FAILURE TO SEEK A DEFAULT JUDGMENT WITHIN ONE YEAR, DEFENDANTS' MOTION TO DISMISS THE COMPLAINT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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MOTION TO AMEND THE COMPLAINT BY NAMING PLAINTIFF IN HER CAPACITY AS THE REPRESENTATIVE OF HER HUSBAND’S ESTATE, WHERE THE ORIGINAL COMPLAINT WAS ERRONEOUSLY BROUGHT IN HER INDIVIDUAL CAPACITY, WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined plaintiff's motion to amend her complaint in this legal malpractice action to sue as a representative of the estate of her husband, rather than in her individual capacity, was properly granted:

“[A]n amendment which would shift a claim from a party without standing to another party who could have asserted that claim in the first instance is proper since such an amendment, by its nature, does not result in surprise or prejudice to the defendants who had prior knowledge of the claim and an opportunity to prepare a proper defense” … .

The Supreme Court providently exercised its discretion in granting the plaintiff leave to amend the complaint to substitute herself in her representative capacity as the plaintiff in place of herself in her individual capacity. The proposed amendment, which only sought to shift the causes of action from the plaintiff in her individual capacity to herself in her representative capacity, was proper since the allegations set forth in the complaint gave the appellants notice of the legal malpractice causes of action being asserted against them in the amended complaint … . Moreover, the appellants' contention that they would be prejudiced by the amendment because the applicable statute of limitations had expired by the time the plaintiff sought leave to amend the complaint is without merit, since the original complaint was timely filed and gave the appellants notice of the transactions and occurrences pleaded in the amended complaint (see CPLR 203[f] … ). D'Angelo v Kujawski, 2018 NY Slip Op 05750, Second Dept 8-15-18

CIVIL PROCEDURE (MOTION TO AMEND THE COMPLAINT BY NAMING PLAINTIFF IN HER CAPACITY AS THE REPRESENTATIVE OF HER HUSBAND'S ESTATE, WHERE THE ORIGINAL COMPLAINT WAS ERRONEOUSLY BROUGHT IN HER INDIVIDUAL CAPACITY, WAS PROPERLY GRANTED (SECOND DEPT))/CPLR 203  (MOTION TO AMEND THE COMPLAINT BY NAMING PLAINTIFF IN HER CAPACITY AS THE REPRESENTATIVE OF HER HUSBAND'S ESTATE, WHERE THE ORIGINAL COMPLAINT WAS ERRONEOUSLY BROUGHT IN HER INDIVIDUAL CAPACITY, WAS PROPERLY GRANTED (SECOND DEPT))/TRUSTS AND ESTATES (CIVIL PROCEDURE, MOTION TO AMEND THE COMPLAINT BY NAMING PLAINTIFF IN HER CAPACITY AS THE REPRESENTATIVE OF HER HUSBAND'S ESTATE, WHERE THE ORIGINAL COMPLAINT WAS ERRONEOUSLY BROUGHT IN HER INDIVIDUAL CAPACITY, WAS PROPERLY GRANTED (SECOND DEPT))

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ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF’S EXPOSURE TO ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE PRESENCE OF ASBESTOS (SECOND DEPT).

The Second Department determined plaintiff's actions stemming from exposure to asbestos, including an action against the county alleging fraudulent concealment of the presence of asbestos where plaintiff worked, were time barred:

Generally, an action to recover damages for personal injuries caused by the latent effects of exposure to any substance or combination of substances must be commenced within three years of the date of discovery of the injury by the plaintiff or from the date when, through the exercise of reasonable diligence, such injury should have been discovered by the plaintiff, whichever is earlier (see CPLR 214-c[2] …). “For purposes of CPLR 214-c, discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, the injured party discovers the primary condition on which the claim is based'” … . Where, as here, a claim is asserted against a municipality, the statute of limitations as to the claim against the municipality is 1 year and 90 days and is measured from the date of discovery of the injury or from the date when, through the exercise of reasonable diligence, the injury should have been discovered, whichever is earlier … . O'Brien v County of Nassau, 2018 NY Slip Op 05774, Second Dept 8-15-18

TOXIC TORTS (ASBESTOS, ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF'S EXPOSURE TO ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE PRESENCE OF ASBESTOS (SECOND DEPT))/ASBESTOS (ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF'S EXPOSURE TO ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE PRESENCE OF ASBESTOS (SECOND DEPT))/MUNICIPAL LAW (TOXIC TORTS, ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF'S EXPOSURE TO ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE PRESENCE OF ASBESTOS (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, TOXIC TORTS, ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF'S EXPOSURE TO ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE PRESENCE OF ASBESTOS (SECOND DEPT))/(STATUTE OF LIMITATIONS, TOXIC TORTS, ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF'S EXPOSURE TO ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE PRESENCE OF ASBESTOS (SECOND DEPT))/FRAUD (ASBESTOS, ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF'S EXPOSURE TO ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE PRESENCE OF ASBESTOS (SECOND DEPT))

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JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed a foreclosure complaint based upon an alleged failure of a condition precedent, and the judge should not have addressed the issue of standing, which was not a jurisdictional issue and was not, and could not be, raised by defendant, who had defaulted:

“A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with any extraordinary circumstances warranting a sua sponte dismissal of the complaint… . The plaintiff's alleged failure to satisfy a condition precedent in the mortgage by failing to provide the defendant with 30 days' written notice of his default in making mortgage payments, even if true, did not deprive the court of jurisdiction to enter a judgment of foreclosure and sale … .

To the extent that the Supreme Court addressed the issue of the plaintiff's standing in the order appealed from, a party's lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court Moreover, since the defendant defaulted in appearing or answering the complaint, and failed to move to vacate his default, he is precluded from asserting lack of standing as a defense … . Countrywide Home Loans, Inc. v Campbell, 2018 NY Slip Op 05749, Second Dept 8-15-18

FORECLOSURE (JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED A FORECLOSURE COMPLAINT AND SHOULD NOT HAVE ADDRESSED THE ISSUE OF STANDING, WHICH IS NOT JURISDICTIONAL AND COULD NOT BE RAISED BY A DEFAULTING DEFENDANT (SECOND DEPT))

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