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BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT).

The Second Department determined the bank’s motion for leave to enter a default judgment in this foreclosure proceeding was properly denied because the motion relied on documents verified and affirmed by counsel and an affidavit by a person with no first-hand knowledge of the facts asserted. The Second Department noted that the bank’s motion to amend the caption, by substituting named parties for “John Does” should have been granted and the complaint should not have been dismissed sua sponte:

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… [T]he plaintiff failed to submit the requisite proof of the facts constituting the claim …  “While a verified complaint may be used as the affidavit of the facts constituting the claim, it must contain evidentiary facts from one with personal knowledge”… . ” [A] pleading verified by an attorney pursuant to CPLR 3020 (d) (3)[, and not by someone with personal knowledge of the facts,] is insufficient to establish its merits'”… . On its motion, the plaintiff submitted the complaint, verified only by counsel, and an affirmation of counsel, with counsel having no personal knowledge of the facts. The plaintiff also submitted an affidavit of a representative of the loan servicer attesting to a default, but failing to address the relevant questions relating to the fact that the mortgagor did not own the subject property, whether the relevant documents should be reformed, or whether an equitable lien or mortgage should be imposed. First Franklin Fin. Corp. v Alfau, 2018 NY Slip Op 00409, Second Dept 1-24-18

FORECLOSURE (BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/EVIDENCE (FORECLOSURE, DEFAULT JUDGMENT, ANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, DEFAULT JUDGMENT, BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/SUA SPONTE (FORECLOSURE, DISMISSA OF COMPLAINT, BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/DEFAULT JUDGMENT (FORECLOSURE, EVIDENCE, BANK’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT WAS SUPPORTED BY DOCUMENTS VERIFIED OR AFFIRMED BY PERSONS WITHOUT FIRST-HAND KNOWLEDGE, MOTION WAS PROPERLY DENIED BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))

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ALTHOUGH THE JUDGMENT OF FORECLOSURE MISTAKENLY ORDERED THE SALE OF MULTIPLE LOTS, WHICH WAS IMPOSSIBLE BECAUSE A SINGLE BUILDING SPANNED THE THREE LOTS, THE MOTION COURT PROPERLY DEEMED THE PROPERTY TO HAVE BEEN SOLD AS A SINGLE LOT, COURT HAS THE POWER TO CORRECT A MISTAKE, SUA SPONTE, WHERE THERE IS NO PREJUDICE (SECOND DEPT).

The Second Department determined the motion court properly merged three lots into one after the foreclosure sale because the building on the property spanned all three lots. The appellants sought to vacate the referee’s deed because the foreclosure judgment directed the sale “in multiple parcels or in bulk” which was impossible:

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CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced… . In addition, CPLR 5019(a) gives trial courts the discretion to cure mistakes, defects, and irregularities that do not affect substantial rights of parties… . Here, the appellants failed to establish that a substantial right of theirs was prejudiced by the court’s sua sponte, inter alia, deeming the property to have been sold as one lot … . Northern Blvd Corona, LLC v Northern Blvd Prop., LLC, 2018 NY Slip Op 00427, Second Dept 1-24-18

FORECLOSURE (ALTHOUGH THE JUDGMENT OF FORECLOSURE MISTAKENLY ORDERED THE SALE OF MULTIPLE LOTS, WHICH WAS IMPOSSIBLE BECAUSE A SINGLE BUILDING SPANNED THE THREE LOTS, THE MOTION COURT PROPERLY DEEMED THE PROPERTY TO HAVE BEEN SOLD AS A SINGLE LOT, COURT HAS THE POWER TO CORRECT A MISTAKE, SUA SPONTE, WHERE THERE IS NO PREJUDICE (SECOND DEPT))/CIVIL PROCEDURE  (ALTHOUGH THE JUDGMENT OF FORECLOSURE MISTAKENLY ORDERED THE SALE OF MULTIPLE LOTS, WHICH WAS IMPOSSIBLE BECAUSE A SINGLE BUILDING SPANNED THE THREE LOTS, THE MOTION COURT PROPERLY DEEMED THE PROPERTY TO HAVE BEEN SOLD AS A SINGLE LOT, COURT HAS THE POWER TO CORRECT A MISTAKE, SUA SPONTE, WHERE THERE IS NO PREJUDICE (SECOND DEPT))/CPLR 2001(POWER TO CORRECT, ALTHOUGH THE JUDGMENT OF FORECLOSURE MISTAKENLY ORDERED THE SALE OF MULTIPLE LOTS, WHICH WAS IMPOSSIBLE BECAUSE A SINGLE BUILDING SPANNED THE THREE LOTS, THE MOTION COURT PROPERLY DEEMED THE PROPERTY TO HAVE BEEN SOLD AS A SINGLE LOT, COURT HAS THE POWER TO CORRECT A MISTAKE, SUA SPONTE, WHERE THERE IS NO PREJUDICE (SECOND DEPT))/CPLR 5019 (POWER TO CORRECT, ALTHOUGH THE JUDGMENT OF FORECLOSURE MISTAKENLY ORDERED THE SALE OF MULTIPLE LOTS, WHICH WAS IMPOSSIBLE BECAUSE A SINGLE BUILDING SPANNED THE THREE LOTS, THE MOTION COURT PROPERLY DEEMED THE PROPERTY TO HAVE BEEN SOLD AS A SINGLE LOT, COURT HAS THE POWER TO CORRECT A MISTAKE, SUA SPONTE, WHERE THERE IS NO PREJUDICE (SECOND DEPT))

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MOTION TO VACATE A REFEREE’S DEED PROPERLY DENIED, A SALE PRICE LOWER THAN MARKET VALUE DOES NOT INVALIDATE THE SALE, PURPORTED EVIDENCE OF A CONSPIRACY AMONG THE BIDDERS WAS IMPROPERLY SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS (SECOND DEPT).

The Second Department determined the motion to vacate a referee’s deed in foreclosure was properly denied. The appellant’s alleged that price at which the property sold was too low and was the result of a conspiracy among the bidders. The court noted that foreclosed properties routinely sell below market value and the proof of the alleged conspiracy was improperly submitted in reply papers:

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A court may exercise its inherent equitable power to ensure that a foreclosure sale conducted pursuant to a judgment of foreclosure “is not made the instrument of injustice” … and, therefore, may set aside a foreclosure sale ” where fraud, collusion, mistake, or misconduct casts suspicion on the fairness of the sale'”… . Absent such conduct, the mere inadequacy of price is an insufficient reason to set aside a sale unless the price is so inadequate as to shock the court’s conscience  … . “[I]n most instances,” the fair market value of a mortgaged property “will exceed the winning bid” on that property at a foreclosure sale … . Northern Blvd Corona, LLC v Northern Blvd Prop., LLC, 2018 NY Slip Op 00428, Second Dept 1-24-18

FORECLOSURE (MOTION TO VACATE A REFEREE’S DEED PROPERLY DENIED, A SALE PRICE LOWER THAN MARKET VALUE DOES NOT INVALIDATE THE SALE, PURPORTED EVIDENCE OF A CONSPIRACY AMONG THE BIDDERS WAS IMPROPERLY SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS (SECOND DEPT))/REFEREE’S DEED (FORECLOSURE, MOTION TO VACATE A REFEREE’S DEED PROPERLY DENIED, A SALE PRICE LOWER THAN MARKET VALUE DOES NOT INVALIDATE THE SALE, PURPORTED EVIDENCE OF A CONSPIRACY AMONG THE BIDDERS WAS IMPROPERLY SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS (SECOND DEPT))/CIVIL PROCEDURE (REPLY PAPERS, (MOTION TO VACATE A REFEREE’S DEED PROPERLY DENIED, A SALE PRICE LOWER THAN MARKET VALUE DOES NOT INVALIDATE THE SALE, PURPORTED EVIDENCE OF A CONSPIRACY AMONG THE BIDDERS WAS IMPROPERLY SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS (SECOND DEPT)).REPLY (CIVIL PROCEDURE, MOTION TO VACATE A REFEREE’S DEED PROPERLY DENIED, A SALE PRICE LOWER THAN MARKET VALUE DOES NOT INVALIDATE THE SALE, PURPORTED EVIDENCE OF A CONSPIRACY AMONG THE BIDDERS WAS IMPROPERLY SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS (SECOND DEPT))

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THE DISMISSAL OF THE 2009 FORECLOSURE ACTION DID NOT CONSTITUTE A REVOCATION OF THE ACCELERATION OF THE DEBT, THE STATUTE OF LIMITATIONS TRIGGERED BY THE 2009 ACTION EXPIRED AND THE PROPERTY OWNER IS ENTITLED TO A DISCHARGE OF THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a 2009 foreclosure action accelerated the debt and therefore started the statute of limitations. The dismissal of the 2009 action did not revoke the election to accelerate. The current owner of the property was therefore entitled to a discharge of the mortgage:

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The filing of the summons and complaint in the 2009 action was sufficient to accelerate the mortgage … . Contrary to the Supreme Court’s determination, although a lender may revoke its election to accelerate the mortgage, the dismissal of the prior foreclosure action did not constitute an affirmative act by the lender revoking its election to accelerate, and the record is barren of any affirmative act of revocation occurring during the six-year limitations period subsequent to the initiation of the 2009 action … . MSMJ Realty, LLC v DLJ Mtge. Capital, Inc., 2018 NY Slip Op 00422, Second Dept 1-24-18

FORECLOSURE (THE DISMISSAL OF THE 2009 FORECLOSURE ACTION DID NOT CONSTITUTE A REVOCATION OF THE ACCELERATION OF THE DEBT, THE STATUTE OF LIMITATIONS TRIGGERED BY THE 2009 ACTION EXPIRED AND THE PROPERTY OWNER IS ENTITLED TO A DISCHARGE OF THE MORTGAGE (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, STATUTE OF LIMITATIONS, THE DISMISSAL OF THE 2009 FORECLOSURE ACTION DID NOT CONSTITUTE A REVOCATION OF THE ACCELERATION OF THE DEBT, THE STATUTE OF LIMITATIONS TRIGGERED BY THE 2009 ACTION EXPIRED AND THE PROPERTY OWNER IS ENTITLED TO A DISCHARGE OF THE MORTGAGE (SECOND DEPT))/STATUTE OF LIMITATIONS (FORECLOSURE, THE DISMISSAL OF THE 2009 FORECLOSURE ACTION DID NOT CONSTITUTE A REVOCATION OF THE ACCELERATION OF THE DEBT, THE STATUTE OF LIMITATIONS TRIGGERED BY THE 2009 ACTION EXPIRED AND THE PROPERTY OWNER IS ENTITLED TO A DISCHARGE OF THE MORTGAGE (SECOND DEPT))

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BANK’S MOTION FOR LEAVE TO RENEW AND REARGUE SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE ACTION, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to renew and reargue in this foreclosure action should not have been granted:

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A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination and must contain reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2]). While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance  … . Renewal “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” … . …

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A motion for leave to reargue is similarly directed to the trial court’s discretion and, to warrant reargument, the moving party must demonstrate that the court overlooked or misapprehended the relevant facts or misapplied law (see CPLR 2221[d] …). Here, … the court, in its initial determination, did not overlook or misapprehend relevant facts or misapply the law in deciding that [the bank] had failed to meet its prima facie burden on the issue of standing, thus requiring denial of its motion … . JPMorgan Chase Bank, N.A. v Jeffrey Novis, 2018 NY Slip Op 00281, Second Dept 1-17-18

FORECLOSURE (CIVIL PROCEDURE, BANK’S MOTION FOR LEAVE TO RENEW AND REARGUE SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE ACTION, CRITERIA EXPLAINED (SECOND DEPT))/CIVIL PROCEDURE (BANK’S MOTION FOR LEAVE TO RENEW AND REARGUE SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE ACTION, CRITERIA EXPLAINED (SECOND DEPT)).CPLR 2221 (BANK’S MOTION FOR LEAVE TO RENEW AND REARGUE SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE ACTION, CRITERIA EXPLAINED (SECOND DEPT))

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AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavit of merit submitted by the bank did not demonstrate the affiant had the authority to act on the bank’s behalf:

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“Where, as here, a foreclosure complaint is not verified, CPLR 3215(f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an affidavit made by the party” … . Here, the plaintiff submitted an affidavit of merit executed by the Vice President of Loan Documentation for the plaintiff’s purported “servicer.” However, there is no evidence in the record demonstrating that the Vice President of Loan Documentation had the authority to act on behalf of the plaintiff. Under such circumstances, the Supreme Court should have denied those branches of the plaintiff’s motion which were for leave to enter a default judgment … and for an order of reference, with leave to renew upon proper papers … . HSBC Bank USA, N.A.. v Cooper, 2018 NY Slip Op 00280, Second Dept 1-17-18

FORECLOSURE (CIVIL PROCEDURE, DEFAULT JUDGMENT, AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, DEFAULT JUDGMENT, , AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/AFFIDAVIT OF MERIT (CIVIL PROCEDURE, DEFAULT JUDGMENT, FORECLOSURE, AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/DEFAULT JUDGMENT (FORECLOSURE, AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPRL 3215  (FORECLOSURE, DEFAULT JUDGMENT, , AFFIDAVIT OF MERIT DID NOT DEMONSTRATE THE AFFIANT HAD THE AUTHORITY TO ACT ON BEHALF OF THE BANK IN THIS FORECLOSURE ACTION, DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT).

The Second Department, modifying Supreme Court, determined petitioner’s motion for leave to discontinue its tax certiorari proceeding (seeking lower property tax assessments) with respect to one of its properties was properly denied because respondent town’s ability to defend would be prejudiced. However, Supreme Court should not have order the merger of two of the tax lots because neither party had requested that relief:

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A motion for leave to discontinue an action is addressed to the sound discretion of the court … , and generally should be granted unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results … .

Here, the Supreme Court providently exercised its discretion in denying the petitioner’s motion, since the record supports the conclusion that the requested discontinuance would prejudice the respondents’ ability to defend the assessment on the remaining parcel.

However, the Supreme Court improvidently exercised its discretion by, sua sponte, directing the parties to merge two of the subject tax lots. “Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'” … . Here, neither party sought merger of the subject lots or similar relief, and merger of those lots could potentially be prejudicial to the petitioner. Matter of Catherine Commons, LLC v Town of Orangetown, 2018 NY Slip Op 00287, Second Dept 1-17-18

CIVIL PROCEDURE (DISCONTINUANCE, SUA SPONTE RULING, SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/DISCONTINUANCE (SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/SUA SPONTE RULING (SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/REAL PROPERTY TAX (TAX CERTIORARI PROCEEDINGS, SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/PROPERTY TAX ASSESSMENTS (SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/TAX CERTIORARI PROCEEDINGS (SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))

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THE COMPLAINT, STEMMING FROM A FALL OFF A STRETCHER WHILE BEING POSITIONED FOR AN X-RAY, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE UNTIMELY, PROPOSED NEGLIGENT HIRING CAUSE OF ACTION COULD NOT BE ADDED UNDER THE RELATION BACK DOCTRINE (FIRST DEPT).

The First Department determined the complaint sounded in medical malpractice, not common law negligence, and was therefore untimely. Plaintiff alleged she fell off a stretcher as she was being positioned for a chest X-ray. The attempt to amend the complaint to allege a negligent hiring cause of action failed because the facts underlying negligent hiring were not the same as the facts underlying the original complaint. Therefore the relation-back doctrine did not apply:

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As described by plaintiff in her affidavit, the technician’s conduct in placing plaintiff’s body in a certain position, so as to obtain accurate imaging in an Xray directed by a physician at defendant hospital, bore a “substantial relationship to the rendition of medical treatment by a licensed physician” … . Accordingly, plaintiff’s complaint sounds in medical malpractice and was correctly dismissed as untimely (see CPLR 214-a). …

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CPLR 203(f) provides, “A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading” … .

The original complaint asserts one cause of action that arose from plaintiff’s Xray on July 5, 2012. The proposed negligent hiring and failure to promulgate regulations claims arise from different facts and implicate different duties based on conduct preceding, and separate and different from, the alleged negligence of the Xray technician on that date. Thus, the relation back doctrine is inapplicable because the facts alleged in the original complaint failed to give notice of the facts necessary to support the amended pleading … . Lang-Salgado v Mount Sinai Med. Ctr., Inc., 2018 NY Slip Op 00248, First Dept 1-16-18

NEGLIGENCE (MEDICAL MALPRACTICE, THE COMPLAINT, STEMMING FROM A FALL OFF A STRETCHER WHILE BEING POSITIONED FOR AN X-RAY, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE UNTIMELY, PROPOSED NEGLIGENT HIRING CAUSE OF ACTION COULD NOT BE ADDED UNDER THE RELATION BACK DOCTRINE (FIRST DEPT))/MEDICAL MALPRACTICE ( THE COMPLAINT, STEMMING FROM A FALL OFF A STRETCHER WHILE BEING POSITIONED FOR AN X-RAY, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE UNTIMELY, PROPOSED NEGLIGENT HIRING CAUSE OF ACTION COULD NOT BE ADDED UNDER THE RELATION BACK DOCTRINE (FIRST DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE STATUTE OF LIMITATIONS, RELATION BACK DOCTRINE, THE COMPLAINT, STEMMING FROM A FALL OFF A STRETCHER WHILE BEING POSITIONED FOR AN X-RAY, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE UNTIMELY, PROPOSED NEGLIGENT HIRING CAUSE OF ACTION COULD NOT BE ADDED UNDER THE RELATION BACK DOCTRINE (FIRST DEPT))/RELATION BACK DOCTRINE (CIVIL PROCEDURE, PROPOSED NEGLIGENT HIRING CAUSE OF ACTION COULD NOT BE ADDED UNDER THE RELATION BACK DOCTRINE IN THIS MEDICAL MALPRACTICE ACTION (FIRST DEPT))/CPLR 214-a (MEDICAL MALPRACTICE, THE COMPLAINT, STEMMING FROM A FALL OFF A STRETCHER WHILE BEING POSITIONED FOR AN X-RAY, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE UNTIMELY, PROPOSED NEGLIGENT HIRING CAUSE OF ACTION COULD NOT BE ADDED UNDER THE RELATION BACK DOCTRINE (FIRST DEPT))/CPLR 203 (MEDICAL MALPRACTICE, THE COMPLAINT, STEMMING FROM A FALL OFF A STRETCHER WHILE BEING POSITIONED FOR AN X-RAY, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE UNTIMELY, PROPOSED NEGLIGENT HIRING CAUSE OF ACTION COULD NOT BE ADDED UNDER THE RELATION BACK DOCTRINE (FIRST DEPT))

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STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY ORDERS OVER A PERIOD OF THREE YEARS, PURELY LEGAL ISSUE RAISED FOR THE FIRST TIME ON APPEAL CAN BE CONSIDERED IF THE RECORD IS SUFFICIENT (FIRST DEPT).

The First Department, over an extensive two-justice dissent, determined the city’s answer in this malicious prosecution/false arrest action was properly struck because of the city’s failure to comply with multiple discovery orders. The First Department also noted that a purely legal issue raised for the first time on appeal can be addressed provided the record is sufficient. (The issue raised for the first time on appeal was Supreme Court’s erroneous grant of a default judgment with respect to one of the defendants before the defendant’s time to answer the complaint had expired.) Essentially the initial discovery order was issued in May 2011 and the response was not filed until the return date of the plaintiff’s motion to strike in July 2014. The dissenting justices argued that some sanction short of striking the answer was warranted:

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Pursuant to CPLR 3126, “[i]f any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed, pursuant to this article, the court may make such orders with regard to the failure or refusal as are just.” This Court has long held that “the drastic remedy of striking a party’s pleading pursuant to CPLR 3126 for failure to comply with a discovery order . . . is appropriate only where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious or due to bad faith” …  “Willful and contumacious behavior can be inferred by a failure to comply with court orders, in the absence of adequate excuses” … . Although actions should be resolved on the merits whenever possible, the efficient disposition of cases “is not promoted by permitting a party . . . to impose an undue burden on judicial resources to the detriment of . . . other litigants. Nor is the efficient disposition of the business before the courts advanced by undermining the authority of the trial court to supervise the parties who appear before it” … . “[I]t generally is within the discretion of the motion court to determine the appropriate penalty to be imposed against an offending party” and “[i]t would not be appropriate . . . for this Court to substitute its discretion for that of the Justice sitting in the IAS Court”… . Watson v City of New York, 2018 NY Slip Op 00245, First Dept 1-16-18

CIVIL PROCEDURE (DISCOVERY, STRIKE ANSWER, APPEALS, STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY ORDERS OVER A PERIOD OF THREE YEARS, PURELY LEGAL ISSUE RAISED FOR THE FIRST TIME ON APPEAL CAN BE CONSIDERED IF THE RECORD IS SUFFICIENT (FIRST DEPT))/DISCOVERY (STRIKE ANSWER, STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY ORDERS OVER A PERIOD OF THREE YEARS (FIRST DEPT))/ANSWER, MOTION TO STRIKE  STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY ORDERS OVER A PERIOD OF THREE YEARS (FIRST DEPT))/APPEALS (PURELY LEGAL ISSUE RAISED FOR THE FIRST TIME ON APPEAL CAN BE CONSIDERED IF THE RECORD IS SUFFICIENT (FIRST DEPT))/CPLR3126 (STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY ORDERS OVER A PERIOD OF THREE YEARS (FIRST DEPT))

MOTION IN LIMINE CANNOT BE USED TO DETERMINE AN ISSUE OF MATERIAL FACT, THE MOTION WAS ACTUALLY AN UNTIMELY MOTION FOR SUMMARY JUDGMENT AND SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion in limine was actually a motion for summary judgment and was therefore untimely and should not have been granted. Plaintiff was injured when he slipped on debris at a construction site and sued under Labor Law 241 (6) and negligence. Summary judgment motions had been adjudicated. Four years later before starting a bench trial the defendants purported to make a motion in limine and the court dismissed the action with prejudice:

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The trial court found that the motion court’s [prior] order held that [defendant]”(1) did not have sufficient notice of; and (2) did not cause or create the debris condition that resulted in plaintiff[‘s] … accident” and dismissed the complaint because “plaintiffs place the alleged violation of the Industrial Code squarely only on and with defendant … .”

The trial court erred in granting defendants’ motion in limine because, as defendants’ acknowledge in their brief, it was one for summary judgment. As such, it was untimely as it was brought more than 120 days from the filing of the note of issue (CPLR 3212[a]). Further, an issue of material fact cannot form the basis for granting a motion in limine because it is an “inappropriate device to obtain [summary] relief” … . Casalini v Alexander Wolf & Son, 2018 NY Slip Op 00246, First Dept 1-16-18

CIVIL PROCEDURE (MOTION IN LIMINE CANNOT BE USED TO DETERMINE AN ISSUE OF MATERIAL FACT, THE MOTION WAS ACTUALLY AN UNTIMELY MOTION FOR SUMMARY JUDGMENT AND SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/MOTION IN LIMINE (CIVIL PROCEDURE, MOTION IN LIMINE CANNOT BE USED TO DETERMINE AN ISSUE OF MATERIAL FACT, THE MOTION WAS ACTUALLY AN UNTIMELY MOTION FOR SUMMARY JUDGMENT AND SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/CPLR 3212 (MOTION IN LIMINE CANNOT BE USED TO DETERMINE AN ISSUE OF MATERIAL FACT, THE MOTION WAS ACTUALLY AN UNTIMELY MOTION FOR SUMMARY JUDGMENT AND SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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