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CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the continuing wrong doctrine operated to toll the statute of limitations in this breach of contract/breach of warranty of habitability action involving damage to plaintiff’s cooperative apartment during a 2004 renovation. Plaintiff alleged the damage had never been repaired and brought his action in 2016. The Second Department held that the continuing wrong doctrine tolled the statute of limitations but damages were recoverable for only the six years preceding the commencement of the action:

The continuing wrong doctrine “is usually employed where there is a series of continuing wrongs and serves to toll the running of a period of limitations to the date of the commission of the last wrongful act” … . “In contract actions, the doctrine is applied to extend the statute of limitations when the contract imposes a continuing duty on the breaching party” … . Here, the plaintiff alleged that the damage to his unit persisted and had not been repaired, and that such breach constituted a continuing breach of the defendants’ contractual duty to keep the building in good repair and to provide habitable premises … . However, where, as here, the sole remedy sought for the alleged continuing contractual breaches is monetary damages, the plaintiff’s recovery must be limited to damages incurred within the six years prior to commencement of the action … . Garron v Bristol House, Inc., 2018 NY Slip Op 04533, Second Dept 6-20-18

​CONTRACT LAW (CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))/STATUTE OF LIMITATIONS (CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))/COOPERATIVES (CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))/HABITABILITY, WARRANTY OF  (CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))

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MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for a change of venue on discretionary grounds was not brought in the correct county and should not have been granted. The issue was properly before the appellate court despite not having been raised below:

It is undisputed that, pursuant to CPLR 503(a), venue of the Ulster County Action is properly in Ulster County, where Bacci, one of the Ulster plaintiffs, resided at the time the action was commenced … . A motion to change venue on discretionary grounds, unlike motions made as of right, must be made in the county in which the action is pending, or in any county in that judicial district, or in any adjoining county (see CPLR 2212[a]…). The Fenstermen parties, therefore, were required to make a motion pursuant to CPLR 510(3) either in Ulster County, where the Ulster County Action was pending, in another county in the 3rd Judicial District, or in a county contiguous to Ulster County (see CPLR 2212[a] …). Since Ulster County and Nassau County are not contiguous, and Nassau County is not in the 3rd Judicial District, the Fensterman parties’ motion to change venue pursuant to CPLR 510(3) based on discretionary grounds was improperly made in the Supreme Court, Nassau County … . Although not argued by the parties in the Supreme Court, Nassau County, but argued on appeal, we reach this issue in the exercise of our discretion because it appears on the face of the record and could not have been avoided or explained if raised in the Supreme Court … . Fensterman v Joseph, 2018 NY Slip Op 04532, Second Dept 6-20-18

​CIVIL PROCEDURE (MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))/CPLR 503 (MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))/CPLR 2212  (MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))/VENUE  (MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))/APPEALS (CIVIL PROCEDURE, VENUE, MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))

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MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to set aside the verdict as against the weight of the evidence should not have been granted:

“It is well established that [a] verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence”… . “Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” … .

Here, there was sharply conflicting expert testimony with respect to whether plaintiff’s postoperative symptoms could have occurred without negligence on the part of defendant, and the jury was entitled to credit the testimony of defendants’ experts and reject the testimony of plaintiff’s expert … . We conclude that the court erred in setting aside the verdict as against the weight of the evidence inasmuch as “the jury had ample basis to conclude that plaintiff’s postoperative condition was not attributable to any deviation from accepted community standards of medical practice by defendant” … , and thus the jury’s finding that defendant was not negligent was not “palpably irrational or wrong” … . Clark v Loftus, 2018 NY Slip Op 04473, Fourth Dept 6-15-18

​NEGLIGENCE (MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/MEDICAL MALPRACTICE (MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE,  MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/CIVIL PROCEDURE (SET ASIDE THE VERDICT, MOTION TO, MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/VERDICT, MOTION TO SET ASIDE (MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined class certification under CPLR 901 for employees alleging defendant did not pay prevailing wages required by article I, § 17 of the New York Constitution and section 220 (3) of the Labor Law:

… [T]he court erred in determining that plaintiffs failed to establish the first and second CPLR 901 prerequisites, numerosity and commonality. Plaintiffs established the numerosity prerequisite by submitting evidence of approximately 350 class members at a minimum … . Plaintiffs established the commonality prerequisite because one common legal issue dominates the claims of all putative class members, i.e., whether similarly situated employees who worked on public projects were deprived of the prevailing wages to which they were entitled… . Contrary to defendant’s contention, the fact that the amount of damages will vary among the putative class members does not prevent this lawsuit from going forward as a class action … . Vandee v Suit-Kote Corp., 2018 NY Slip Op 04456, Fourth Dept 6-15-18

​CIVIL PROCEDURE (CLASS ACTIONS, CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))/CPLR 901 (CLASS ACTIONS, CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))/CLASS ACTION (CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))/EMPLOYMENT LAW (CLASS ACTIONS, CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))/LABOR LAW (CLASS ACTIONS, CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))

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ALTHOUGH THE INSURER COULD DISCLAIM COVERAGE FOR ANY INJURIES CAUSED BY THE INSURED ASSAILANT’S INTENTIONAL CRIMINAL ACTS UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, THE INSURER COULD NOT DISCLAIM COVERAGE FOR ANY SUBSEQUENT INJURIES THAT MAY HAVE BEEN CAUSED BY THE ASSAILANT’S NEGLIGENCE (THIRD DEPT).

The Third Department determined plaintiff insurer could not completely disclaim coverage of injuries suffered by the defendant at the insured home (owned by the McCabe’s). McCabe was convicted of assaulting and strangling the defendant. Defendant alleges that after McCabe assaulted her she fell over a tripping hazard in the McCabe home and was injured in the fall. Although the insurer can properly disclaim coverage for any injuries inflicted by McCabe’s intentional criminal conduct under the collateral estoppel doctrine, the insurer could not, at this early stage, disclaim coverage for any injuries that might have been caused by McCabe’s negligence (tripping hazard, failure to seek medical care, etc.):

Plaintiff asserts that, to convict McCabe, the criminal jury must have disbelieved his version of events. It is possible, however, that the jury disbelieved only some portions of his testimony … . The jury may have found it incredible that all of defendant’s facial and head injuries were caused when she tried to walk on her own, fell over a raised threshold in the doorway and hit her head on a cinder block wall during that fall. It is also possible that the jury believed that McCabe slammed defendant’s head into the ground or a wall, thereby causing some of her injuries, but the jury did not render any findings regarding what happened after the choking and slamming, such as whether defendant then got up, tried to walk and fell. To establish the convictions, it was unnecessary for the jury to have made findings regarding whether McCabe created a tripping hazard, allowed defendant to walk on her own after he had rendered her partially incapacitated or failed to seek medical help for her after the criminal assault. Hence, the issues as to insurance coverage and exclusions are not identical to the issues decided in McCabe’s criminal trial, and defendants here did not have a full and fair opportunity in the criminal trial to address some of the issues regarding McCabe’s negligence allegedly committed before and after the criminal assault. Plaintiff failed to demonstrate that there was no possible factual or legal basis to support a finding that some of defendant’s injuries were unintended by McCabe, so as to bar coverage under the policy exclusion … . Accordingly, collateral estoppel does not apply here, except as to the more narrow issues necessarily decided in the criminal trial, and plaintiff was not entitled to summary judgment or a declaratory judgment at this early stage of this coverage action … . State Farm Fire & Cas. Co. v Chauncey McCabe, 2018 NY Slip Op 04416, Third Dept 6-14-18

​INSURANCE LAW (ALTHOUGH THE INSURER COULD DISCLAIM COVERAGE FOR ANY INJURIES CAUSED BY THE INSURED ASSAILANT’S INTENTIONAL CRIMINAL ACTS UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, THE INSURER COULD NOT DISCLAIM COVERAGE FOR ANY SUBSEQUENT INJURIES THAT MAY HAVE BEEN CAUSED BY THE ASSAILANT’S NEGLIGENCE (THIRD DEPT))/CIVIL PROCEDURE (INSURANCE LAW, COLLATERAL ESTOPPEL, ALTHOUGH THE INSURER COULD DISCLAIM COVERAGE FOR ANY INJURIES CAUSED BY THE INSURED ASSAILANT’S INTENTIONAL CRIMINAL ACTS UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, THE INSURER COULD NOT DISCLAIM COVERAGE FOR ANY SUBSEQUENT INJURIES THAT MAY HAVE BEEN CAUSED BY THE ASSAILANT’S NEGLIGENCE (THIRD DEPT))/COLLATERAL ESTOPPEL (INSURANCE LAW, ALTHOUGH THE INSURER COULD DISCLAIM COVERAGE FOR ANY INJURIES CAUSED BY THE INSURED ASSAILANT’S INTENTIONAL CRIMINAL ACTS UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, THE INSURER COULD NOT DISCLAIM COVERAGE FOR ANY SUBSEQUENT INJURIES THAT MAY HAVE BEEN CAUSED BY THE ASSAILANT’S NEGLIGENCE (THIRD DEPT))/CRIMINAL LAW (INSURANCE LAW, COLLATERAL ESTOPPEL, ALTHOUGH THE INSURER COULD DISCLAIM COVERAGE FOR ANY INJURIES CAUSED BY THE INSURED ASSAILANT’S INTENTIONAL CRIMINAL ACTS UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, THE INSURER COULD NOT DISCLAIM COVERAGE FOR ANY SUBSEQUENT INJURIES THAT MAY HAVE BEEN CAUSED BY THE ASSAILANT’S NEGLIGENCE (THIRD DEPT))/NEGLIGENCE (INSURANCE LAW, CRIMINAL LAW, COLLATERAL ESTOPPEL, ALTHOUGH THE INSURER COULD DISCLAIM COVERAGE FOR ANY INJURIES CAUSED BY THE INSURED ASSAILANT’S INTENTIONAL CRIMINAL ACTS UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, THE INSURER COULD NOT DISCLAIM COVERAGE FOR ANY SUBSEQUENT INJURIES THAT MAY HAVE BEEN CAUSED BY THE ASSAILANT’S NEGLIGENCE (THIRD DEPT))

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SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT).

The Second Department determined plaintiff’s action for conversion and breach of a fiduciary duty was timely. Plaintiff was the beneficiary of a structured settlement with payments which were to begin in 1998 and continue for the rest of his life. Defendant, who was the custodian of the structured settlement while plaintiff was minor, did not inform the plaintiff of the settlement and used the funds for her own purposes. The Second Department held that conversion sounds in fraud. Therefore the six-year statute of limitations applied and the statute did not begin to run until plaintiff became aware of fraud in 2013:

Contrary to the defendant’s contentions, since the cause of action for conversion is based upon fraud, it is governed by the statute of limitations period for fraud set forth in CPLR 213(8) … . The limitations period for fraud under CPLR 213(8) also applies to the breach of fiduciary duty causes of action inasmuch as the allegations of fraud are essential to those claims … .

Pursuant to CPLR 213(8), “the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it.” “A cause of action based upon fraud accrues, for statute of limitations purposes, at the time the plaintiff possesses knowledge of facts from which the fraud could have been discovered with reasonable diligence'” … .

Here, the plaintiff established that he could not, with reasonable diligence, have discovered the fraud until 2013, when he learned for the first time that he was the beneficiary of a structured settlement from which he was entitled to receive millions of dollars in monthly and periodic lump-sum payments. Monteleone v Monteleone, 2018 NY Slip Op 04317, Second Dept 6-13-18

​FRAUD (STATUTE OF LIMITATIONS, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/CONVERSION  (STATUTE OF LIMITATIONS, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, FRAUD, CONVERSION, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/STATUTE OF LIMITATIONS (FRAUD, CONVERSION, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/FRAUD (STATUTE OF LIMITATIONS, CONVERSION, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/CONVERSION (STATUTE OF LIMITATIONS, FRAUD,  SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/CPLR 213 (STATUTE OF LIMITATIONS, FRAUD, CONVERSION, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))

ABSENCE OF A TRANSLATOR’S AFFIDAVIT CONTRIBUTED TO DEFENDANT’S FAILURE TO MAKE OUT A PRIMA FACIE CASE FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined the defendant’s motion for summary judgment was properly denied because the errata sheets attached to the deposition were not accompanied by a translator’s affidavit. The defendant testified through a Spanish language interpreter:

… [T]he defendant testified at her deposition through a Spanish language interpreter. However, the errata sheets annexed to the transcript of the defendant’s deposition testimony and the defendant’s affidavit, which were both written in English, were not accompanied by a translator’s affidavit executed in compliance with CPLR 2101(b). Therefore, those evidentiary submissions were facially defective and inadmissible … . While the defendant submitted a translator’s affidavit with her reply papers, that affidavit was unnotarized, and thus was not in admissible form … . The defendant’s remaining evidentiary submissions were insufficient to establish her prima facie entitlement to judgment as a matter of law on the applicability of the homeowner’s exemption under the Labor Law …  . Gonzalez v Abreu, 2018 NY Slip Op 04309, Second Dept 6-13-18

CIVIL PROCEDURE (ABSENCE OF A TRANSLATOR’S AFFIDAVIT CONTRIBUTED TO DEFENDANT’S FAILURE TO MAKE OUT A PRIMA FACIE CASE FOR SUMMARY JUDGMENT (SECOND DEPT))/CPLR 2101 (ABSENCE OF A TRANSLATOR’S AFFIDAVIT CONTRIBUTED TO DEFENDANT’S FAILURE TO MAKE OUT A PRIMA FACIE CASE FOR SUMMARY JUDGMENT (SECOND DEPT))/TRANSLATOR’S AFFIDAVIT (ABSENCE OF A TRANSLATOR’S AFFIDAVIT CONTRIBUTED TO DEFENDANT’S FAILURE TO MAKE OUT A PRIMA FACIE CASE FOR SUMMARY JUDGMENT (SECOND DEPT))

PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss the complaint for failure to obtain personal jurisdiction should have been granted. Plaintiff used the affix and mail procedure and did not demonstrate that diligent efforts were made to serve by other means:

Affix and mail service pursuant to CPLR 308(4) is only valid where service under CPLR 308(1) by personal delivery or CPLR 308(2) by delivery to a person of suitable age and discretion “cannot be made with due diligence” … . This requirement must be ” strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received'”… . Whether due diligence has been satisfied must be “determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality” … . Specifically, “it must be shown that the process server made genuine inquiries about the defendant’s whereabouts and place of employment” … .

Here, the submissions in support of the plaintiff’s motion contained numerous inconsistent dates regarding when service was attempted and made upon the defendant. Even accepting the dates of attempted service claimed by the plaintiff, those attempts were “made on weekdays during hours when it reasonably could have been expected that [the defendant] was either working or in transit to work”… . Moreover, there is no indication that the process server made any attempt to locate the defendant’s place of employment so he could attempt to effectuate service there … . Under these circumstances, the plaintiff failed to establish that he exercised due diligence in attempting to effectuate service pursuant to CPLR 308(1) or (2) before resorting to service pursuant to CPLR 308(4) … . Faruk v Dawn, 2018 NY Slip Op 04307, Second Dept 6-13-18

CIVIL PROCEDURE (SERVICE OF PROCESS, PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SERVICE OF PROCESS (PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 308 (SERVICE OF PROCESS, PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/AFFIX AND MAIL  (SERVICE OF PROCESS, PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/JURISDICTION  (SERVICE OF PROCESS, PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))

MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT PROPERLY GRANTED, DIFFERENCE BETWEEN ‘GOOD CAUSE’ AND ‘INTEREST OF JUSTICE’ CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined plaintiff’s cross motion to extend the time to serve the summons and complaint was properly granted. Defendant doctor had retired and was no longer working at the place of business where the medical malpractice summons and complaint was served:

… [A]n attempt at service that later proves defective cannot be the basis for a “good cause” extension of time to serve process pursuant to CPLR 306-b… . However, the more flexible “interest of justice” standard accommodates late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant … . Indeed, the court may consider diligence or lack thereof, along with any other relevant factor, in making its determination, including expiration of the statute of limitations, the potentially meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant … .

Here, several factors weighed in favor of granting the plaintiff’s cross motion. The action was timely commenced, and the statute of limitations with respect to one of the two causes of action had expired when the plaintiff cross-moved for relief  … . The appellant also had actual notice of this action within 120 days after its commencement … . Furthermore, an extension of time to serve the summons and complaint under CPLR 306-b in the interest of justice is available where, as here, “service is timely made within the 120-day period but is subsequently found to have been defective” … .Finally, we note that whether a plaintiff has demonstrated that he or she has a potentially meritorious cause of action is but one factor to be considered by a court in determining a CPLR 306-b motion … . Estate of Fernandez v Wyckoff Hgts. Med. Ctr., 2018 NY Slip Op 04306, Second Dept 6-13-18

CIVIL PROCEDURE (MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT PROPERLY GRANTED, DIFFERENCE BETWEEN ‘GOOD CAUSE’ AND ‘INTEREST OF JUSTICE’ CRITERIA EXPLAINED (SECOND DEPT))/CPLR 306-b  (MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT PROPERLY GRANTED, DIFFERENCE BETWEEN ‘GOOD CAUSE’ AND ‘INTEREST OF JUSTICE’ CRITERIA EXPLAINED (SECOND DEPT))/SERVICE OF PROCESS  (MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT PROPERLY GRANTED, DIFFERENCE BETWEEN ‘GOOD CAUSE’ AND ‘INTEREST OF JUSTICE’ CRITERIA EXPLAINED (SECOND DEPT))/EXTEND TIME, MOTION TO (SERVICE OF PROCESS, MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT PROPERLY GRANTED, DIFFERENCE BETWEEN ‘GOOD CAUSE’ AND ‘INTEREST OF JUSTICE’ CRITERIA EXPLAINED (SECOND DEPT))

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DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined that a damages award in a negligence suit brought by a police officer receiving accident disability retirement (ADR) benefits must be offset by those benefits as a collateral source pursuant to CPLR 4545:

The … question presented … is whether a retired New York City police officer’s accident disability retirement (ADR) benefits are a collateral source that a court must offset against the injured retiree’s jury award for future lost earnings and pension. We hold that ADR benefits operate to replace earnings during the period when the retiree could have been employed, absent the disabling injury, and then serve as pension allotments, and so a court must offset a retiree’s projected ADR benefits against the jury award for both categories of economic loss. * * *

The statutory and regulatory scheme governing ADR benefits, and the text and legislative intent of CPLR 4545 … provide the basis for our conclusion that ADR benefits operate sequentially as payment for future lost earnings and pension benefits. Accordingly, on a motion pursuant to CPLR 4545, a court must apply ADR benefits, dollar-for-dollar, to offset the jury award for future lost earnings during the period they represent lost earnings, and future lost pension during the period they represent lost pension. Andino v Mills, 2018 NY Slip Op 04273, CtApp, 6-12-18

NEGLIGENCE (DAMAGES, COLLATERAL SOURCE, DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP))/CIVIL PROCEDURE (NEGLIGENCE, MUNICIPAL LAW, DAMAGES, COLLATERAL SOURCE,  DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP))/DAMAGES (COLLATERAL SOURCE, DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP))/COLLATERAL SOURCE (DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP))/CPLR 4545 (DAMAGES, COLLATERAL SOURCE,  DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP))/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (DAMAGES, COLLATERAL SOURCE, DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP))/POLICE OFFICERS  (DAMAGES, COLLATERAL SOURCE, DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP))

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