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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, UNTIMELY CROSS MOTION CAN BE CONSIDERED ONLY TO THE EXTENT THE ISSUES RAISED ARE THE SAME AS THE ISSUES RAISED IN PLAINTIFF’S SUMMARY JUDGMENT MOTION (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was standing on a scaffold when a masonry stone fell on the scaffold and the planks collapsed. The court noted that defendants’ untimely cross motion for summary judgment was properly considered only to the extent the issues were identical to the issues raised in plaintiff’s motion for summary judgment:

This Court may consider the merits of defendants’ untimely cross motion for summary judgment dismissing the complaint to the extent it sought dismissal of the Labor Law § 240(1) claim, because it is based on the same issues raised in plaintiff’s motion … However, the remainder of the motion, seeking dismissal of Labor Law § 241(6), Labor Law § 200 and common law negligence claims cannot be considered because it does not address issues nearly identical to those raised in the timely motion and defendants did not demonstrate good cause for the delay … .

Plaintiff is entitled to summary judgment as to liability on his Labor Law § 240(1) claim. He established, prima facie, that he was engaged in an activity falling within the statute, and that defendants failed to provide him proper safety equipment, either in the form of a scaffold that could withstand the force of a falling masonry stone … , or any other appropriate safety device. Plaintiff further demonstrated that defendants’ failure to provide an appropriate safety device was the proximate cause of the accident, and defendants have failed to raise an issue of fact. Jarama v 902 Liberty Ave. Hous. Dev. Fund Corp., 2018 NY Slip Op 03897, First Dept 5-31-18

​LABOR LAW -CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, UNTIMELY CROSS MOTION CAN BE CONSIDERED ONLY TO THE EXTENT THE ISSUES RAISED ARE THE SAME AS THE ISSUES RAISED IN PLAINTIFF’S SUMMARY JUDGMENT MOTION (FIRST DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, UNTIMELY CROSS MOTION CAN BE CONSIDERED ONLY TO THE EXTENT THE ISSUES RAISED ARE THE SAME AS THE ISSUES RAISED IN PLAINTIFF’S SUMMARY JUDGMENT MOTION (FIRST DEPT))/SUMMARY JUDGMENT ( UNTIMELY CROSS MOTION CAN BE CONSIDERED ONLY TO THE EXTENT THE ISSUES RAISED ARE THE SAME AS THE ISSUES RAISED IN PLAINTIFF’S SUMMARY JUDGMENT MOTION (FIRST DEPT))

PLAINTIFF MADE A SUFFICIENT START DEMONSTRATING NEW YORK HAS JURISDICTION OVER THE DEFENDANTS TO WARRANT JURISDICTIONAL DISCLOSURE AND A HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had made a sufficient showing that New York may have jurisdiction over the defendants to warrant jurisdictional disclosure:

… [P]laintiff made a “sufficient start” in establishing that New York courts have jurisdiction over defendants to warrant jurisdictional disclosure and a hearing… . On his motion to renew, plaintiff submitted sufficient evidence to warrant a finding of jurisdiction on the papers alone (… CPLR 2221[e], [f]). The evidence shows that plaintiff was hired by defendants, a corporation and two individuals, all residents of Louisiana, after an in-person meeting in New York and that defendants engaged in extensive communications with him by telephone, email, in-person meetings, and document exchanges for two years while he was in New York representing them in various matters. Mischel v Safe Haven Enters., LLC, 2018 NY Slip Op 03902, First Dept 5-31-18

​CIVIL PROCEDURE (JURISDICTION, PLAINTIFF MADE A SUFFICIENT START DEMONSTRATING NEW YORK HAS JURISDICTION OVER THE DEFENDANTS TO WARRANT JURISDICTIONAL DISCLOSURE AND A HEARING (FIRST DEPT))/JURISDICTION (CIVIL PROCEDURE, PLAINTIFF MADE A SUFFICIENT START DEMONSTRATING NEW YORK HAS JURISDICTION OVER THE DEFENDANTS TO WARRANT JURISDICTIONAL DISCLOSURE AND A HEARING (FIRST DEPT))/LONG ARM JURISDICTION (PLAINTIFF MADE A SUFFICIENT START DEMONSTRATING NEW YORK HAS JURISDICTION OVER THE DEFENDANTS TO WARRANT JURISDICTIONAL DISCLOSURE AND A HEARING (FIRST DEPT))/SUFFICIENT START (LONG ARM JURISDICTION, PLAINTIFF MADE A SUFFICIENT START DEMONSTRATING NEW YORK HAS JURISDICTION OVER THE DEFENDANTS TO WARRANT JURISDICTIONAL DISCLOSURE AND A HEARING (FIRST DEPT))

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ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT).

The Second Department determined the arbitrator’s award was irrational and violated CPLR 1209 in this no-fault insurance action. The injured child and his mother had assigned their rights to payment for health care services to the petitioner, Fast Care. Contrary to the arbitrator’s finding, arbitration was not sought by the injured child, which would have required a court order under CPLR 1209, but rather was sought by the assignee, Fast Care:

An arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeding his or her power; or (4) the failure to follow the procedures of CPLR article 75 … . In addition, an arbitration award may be vacated “if it violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power”… . An arbitration award may also be vacated where it is in ” explicit conflict'” with established laws and “the strong and well-defined policy considerations’ embodied therein”… .

We agree with the Supreme Court that the arbitrator’s award was irrational and in conflict with CPLR 1209, which applies “only where an infant is a party” to an arbitration proceeding … . The infant patient was not a party to the arbitration; rather, Fast Care, as the infant’s assignee, was the party that brought the arbitration … . Matter of Fast Care Med. Diagnostics, PLLC/PV v Government Employees Ins. Co., 2018 NY Slip Op 03831, Second Dept 5-30-18

​INSURANCE LAW (NO-FAULT, ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT))/ARBITRATION (NO-FAULT INSURANCE, ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT))/CIVIL PROCEDURE (NO-FAULT INSURANCE, ARBITRATION, ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT))/CPLR 1209 (NO-FAULT INSURANCE, ARBITRATION, ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT))

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FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT).

The Second Department, dismissing the appeal as academic, determined Family Court was divested of subject matter jurisdiction in this guardianship proceeding because the child had turned 21. Mother had sought appointment as guardian in an effort to procure special immigrant juvenile status (SIJS) for the child:

“Generally, courts are precluded from considering questions which, although once live, have become moot by passage of time or change in circumstances'” … . Where, as here, a child who consented to the appointment of a guardian after his or her 18th birthday turns 21, the term of appointment of the guardian “expires on [the child’s] twenty-first birthday” (SCPA 1707[2]). Consequently, once the child turns 21, the court “is divested of subject matter jurisdiction, [and] cannot exercise such jurisdiction by virtue of an order nunc pro tunc” … . Thus, the guardianship petition cannot be granted at this juncture.

Furthermore, since guardianship status, which the Family Court can only grant to individuals under 21, is a condition precedent to a declaration allowing a child to seek SIJS, the petitioner’s motion for the issuance of an order declaring that the child is dependent on the court and making the requisite specific findings so as to enable him to petition for SIJS has also been rendered academic … . Matter of Vincenta E. V. v Alexander R. G., 2018 NY Slip Op 03849, Second Dept 5-30-18

​FAMILY LAW (FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/IMMIGRATION LAW (FAMILY LAW, FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/CIVIL PROCEDURE (FAMILY LAW, FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/SUBJECT MATTER JURISDICTION  (FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/JURISDICTION (FAMILY LAW, FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))

DEFENDANT WHO HAD APPEARED IN THE ACTION BUT HAD SINCE MOVED TO SOUTH CAROLINA COULD BE COMPELLED TO APPEAR AT TRIAL BY A SUBPOENA MAILED TO HIS NEW YORK ATTORNEY (FIRST DEPT).

The Second Department determined a trial subpoena issued to a defendant in a medical malpractice action compelled defendant’s attendance despite his having moved to South Carolina:

… [T]he plaintiffs mailed a subpoena to the office of the defendant’s attorneys, located in Mineola, New York. The subpoena commanded the defendant to appear at the trial of this action to give testimony as part of the plaintiffs’ direct case. The defendant moved to quash the subpoena, arguing that he was no longer subject to the jurisdiction of the court because he had moved from New York to South Carolina during the pendency of the action. The Supreme Court denied the motion, and the defendant appeals.

A court of record generally has the power “to issue a subpoena requiring the attendance of a person found in the state to testify in a cause pending in that court” (Judiciary Law § 2-b[1]). “Where the attendance at trial of a party or person within the party’s control can be compelled by a trial subpoena, that subpoena may be served by delivery in accordance with [CPLR 2103(b)] to the party’s attorney of record” (CPLR 2303-a). Here, the trial subpoena was properly served upon the defendant’s attorneys pursuant to CPLR 2303-a and 2103(b)(2). Contrary to the defendant’s contention, because he is a party to this action, over whom personal jurisdiction had been obtained, he is “found in the state” within the meaning of Judiciary Law § 2-b(1) … . Chicoine v Koch, 2018 NY Slip Op 03825, Second Dept 5-30-18

​CIVIL PROCEDURE (DEFENDANT WHO HAD APPEARED IN THE ACTION BUT HAD SINCE MOVED TO SOUTH CAROLINA COULD BE COMPELLED TO APPEAR AT TRIAL BY A SUBPOENA MAILED TO HIS NEW YORK ATTORNEY (FIRST DEPT))/SUBPOENAS (DEFENDANT WHO HAD APPEARED IN THE ACTION BUT HAD SINCE MOVED TO SOUTH CAROLINA COULD BE COMPELLED TO APPEAR AT TRIAL BY A SUBPOENA MAILED TO HIS NEW YORK ATTORNEY (FIRST DEPT))/TRIALS (SUBPOENAS, DEFENDANT WHO HAD APPEARED IN THE ACTION BUT HAD SINCE MOVED TO SOUTH CAROLINA COULD BE COMPELLED TO APPEAR AT TRIAL BY A SUBPOENA MAILED TO HIS NEW YORK ATTORNEY (FIRST DEPT))

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PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT).

The First Department determined plaintiff in this whistleblower action was entitled to discover medical records protected by the Health Insurance Portability and Accountability Act (HIPAA) and the Public Health Law (PHL). Plaintiff alleged he was fired, in violation Labor Law 740, in retaliation for complaining that defendant’s employees procured organs without performing tests and from people who still showed signs of life:

The records concerning these four individuals are material and necessary to plaintiff’s claim (see CPLR 3101[a]). To prevail on a claim for retaliatory termination in violation of Labor Law § 740(2), plaintiff must prove that he was fired because he objected to or threatened to disclose a practice that was in violation of a law or regulation … . The subject medical records will allegedly show that defendant pressured doctors to declare people dead in violation of regulations regarding the making of such determinations … .

… [B]ecause the subject disclosure would be made in the course of a judicial proceeding and pursuant to a qualified protective order, it is authorized under HIPAA… .

… PHL § 4351(8) renders defendant’s documents subject to the protections of the physician-patient privilege set forth at CPLR 4504. This privilege is personal to the patient and is not terminated by death … . It has not been expressly or implicitly waived in this case by the donors’ next of kin … . However, plaintiff demonstrated that the information in the medical records is material and necessary to his claim and that “the circumstances warrant overcoming the privilege and permitting discovery of the records with all identifying patient information appropriately redacted to protect patient confidentiality” … . Allowing disclosure under these circumstances is consistent with the public policy underlying the whistleblower statute, i.e., to encourage employees to report hazards to supervisors and the public … . McMahon v New York Organ Donor Network, 2018 NY Slip Op 03820, First Dept 5-29-18

​EMPLOYMENT LAW (PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/LABOR LAW (WHISTLEBLOWERS, PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/PRIVILEGE (MEDICAL RECORDS, PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/CIVIL PROCEDURE (DISCOVERY, MEDICAL RECORDS,  PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/HIPAA (PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/PUBLIC HEALTH LAW (MEDICAL RECORDS, PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/WHISTLEBLOWERS  (PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/DISCOVERY (MEDICAL RECORDS, PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/ORGAN TRANSPLANTS  (PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))

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THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT).

The Second Department modified the judgment in this uninsured driver traffic accident case. Although the Motor Vehicle Accident indemnification Corporation (MVAIC) can withhold payment until it receives a release from the plaintiff pursuant to a settlement agreement, the MVAIC cannot demand a release where, as here, a court has issued a judgment:

“Where judgment has been entered against an uninsured defendant in favor of a qualified person, Insurance Law § 5210 provides that a qualified person may petition the court to compel MVAIC to pay the amount of a judgment against that uninsured defendant that remains unpaid, subject to the limitations contained therein” … . Here, the petitioner demonstrated that she obtained the underlying judgment … , which remained unpaid. However, the sum sought by the petitioner, and the amount the Supreme Court directed MVAIC to pay, exceeded MVAIC’s statutory limit of liability.

The maximum limit of MVAIC’s liability under the Insurance Law is $25,000 (see Insurance Law § 5210[a][1]). MVAIC’s contention that the petitioner is not entitled to interest because the delay in payment was caused by the plaintiff’s failure to execute a release in the proper amount is without merit. While MVAIC has the right to a release upon the settlement of a claim (see Insurance Law § 5213[b]; CPLR 5003-a), MVAIC is not entitled to such a release when ordered to pay on a judgment. Matter of Baker v Motor Veh. Acc. Indem. Corp., 2018 NY Slip Op 03676, Second Dept 5-23-18

​INSURANCE LAW (TRAFFIC ACCIDENTS, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (INSURANCE LAW, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (TRAFFIC ACCIDENTS, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/UNINSURED DRIVERS  (TRAFFIC ACCIDENTS, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/CIVIL PROCEDURE (MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/RELEASES (TRAFFIC ACCIDENTS, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))

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COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s (Citimortgage’s) motion to dismiss the plaintiff’s action to cancel and discharge a mortgage should not have been granted. The bank started a foreclosure action in 2009 and the statute of limitations expired on March 17, 2015. On March 13, 2015, the bank sent a letter to plaintiff purporting to de-accelerate the loan and re-institute the loan as an installment loan. The Second Department determined the motion to dismiss should not have been converted to a motion for summary judgment and the March 13, 2015, letter did not constitute documentary evidence sufficient to dismiss the complaint. There was no proof when the letter was mailed and it could have arrived after the statute of limitations expired:

Here, the Supreme Court should not have converted Citimortgage’s motion pursuant to CPLR 3211(a) to dismiss the complaint to one for summary judgment without providing “adequate notice to the parties” (CPLR 3211[c]…). None of the recognized exceptions to the notice requirement is applicable here. No specific request for summary judgment was made by any party, the parties did not deliberately chart a summary judgment course, and the action did not exclusively involve issues of law which were fully appreciated and argued by the parties … . …

“In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence,’ it must be unambiguous, authentic, and undeniable. Judicial 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. However, neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” … . Furthermore, “[a] lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action”… . Soroush v Citimortgage, Inc., 2018 NY Slip Op 03724, Second Dept 5-23-18

​FORECLOSURE (COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/CIVIL PROCEDURE (DISMISS, MOTION TO, COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/DISMISS, MOTION TO (CIVIL PROCEDURE, COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/DOCUMENTARY EVIDENCE (DISMISS, MOTION TO, COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/CPLR 3211 (COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))

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ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined defendant school district’s motion to set aside the verdict for legal insufficiency should have been granted. Plaintiff assistant principal sued the district after she was injured breaking up a fight between students. She had previously been injured by a student and had complained that more security was needed on the floor where she was hurt. The Second Department explained that plaintiff could not recover unless a special relationship with the school district had been proven:

On a legal sufficiency challenge, whether made pursuant to CPLR 4401 at the close of the plaintiffs’ case or pursuant to CPLR 4404(a) to set aside the jury verdict, the relevant inquiry is whether there is any rational process by which the trier of fact could base a finding in favor of the nonmoving party … .

Absent the existence of a special relationship between the defendants and the injured plaintiff, liability may not be imposed on the defendants for the breach of a duty owed generally to persons in the school system and members of the public … . A special relationship can be formed, inter alia, if the defendants voluntarily assumed a special duty to the injured plaintiff upon which she justifiably relied … . In order to succeed on this theory, the plaintiffs were required to establish four elements: (1) an assumption by the defendants, through promises or actions, of an affirmative duty to act on behalf of the injured plaintiff; (2) knowledge on the part of defendants’ agents that inaction could lead to harm; (3) some form of direct contact between the defendants’ agents and the injured plaintiff; and (4) the injured plaintiff’s justifiable reliance on the defendants’ affirmative undertaking … . Morgan-Word v New York City Dept. of Educ., 2018 NY Slip Op 03673, Second Dept 5-23-18

​EDUCATION-SCHOOL LAW (ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, MUNICIPAL LAW, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (EDUCATION-SCHOOL LAW, NEGLIGENCE, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMPLOYMENT LAW (EDUCATION-SCHOOL LAW, NEGLIGENCE, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (SET ASIDE THE VERDICT, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/VERDICT, MOTION TO SET ASIDE  (ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 4404 (SET ASIDE VERDICT, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, EDUCATION-SCHOOL LAW, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT).

The Second Department determined the writing and execution requirements for an out-of-court stipulation of settlement were not met by an e-mail sent by the defendant in a slip and fall case:

To be enforceable, a stipulation of settlement must conform to the criteria set forth in CPLR 2104 … . Where, as in the instant case, counsel for the parties did not enter into a settlement in open court, an “agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney” … . The plain language of CPLR 2104 requires that “the agreement itself must be in writing, signed by the party (or attorney) to be bound” … . An email message may be considered “subscribed” as required by CPLR 2104, and, therefore, capable of enforcement, where it “contains all material terms of a settlement and a manifestation of mutual accord, and the party to be charged, or his or her agent, types his or her name under circumstances manifesting an intent that the name be treated as a signature” … .

Here, the email confirming the settlement agreement was sent by counsel for the party seeking to enforce the agreement, [defendant]. There is no email subscribed by the plaintiff, who is the party to be charged, or by her former attorney. In the absence of a writing subscribed by the plaintiff or her attorney, the settlement agreement is unenforceable against the plaintiff … . Kataldo v Atlantic Chevrolet Cadillac, 2018 NY Slip Op 03669, Second Dept 5-23-18

​CIVIL PROCEDURE (STIPULATION OF SETTLEMENT, EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))/STIPULATION OF SETTLEMENT (EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))/SETTLEMENT, STIPULATION OF (EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))/CPLR 2014 (STIPULATION OF SETTLEMENT, EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))/NEGLIGENCE (STIPULATION OF SETTLEMENT, EMAIL DID NOT MEET THE REQUIREMENTS OF CPLR 2104 FOR AN OUT OF COURT STIPULATION OF SETTLEMENT, SETTLEMENT AGREEMENT NOT ENFORCEABLE (SECOND DEPT))

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