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MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT).

The Second Department determined the bank’s motion for summary judgment in this foreclosure proceeding could not be entertained because issue had not been joined, only a notice of appearance had been filed by defendant. The action was properly deemed abandoned pursuant to CPLR 3215:

Contrary to the plaintiff’s contention, the Supreme Court properly denied those branches of its motion which were for summary judgment on the complaint and for an order of reference. “A motion for summary judgment may not be made before issue is joined (CPLR 3212[a]) and the requirement is strictly adhered to” … . Where, as here, a defendant has served a notice of appearance, but has not served “a responsive pleading,” in this case, an answer (see CPLR 3011), issue has not been joined, and the plaintiff is barred from seeking summary judgment … . …

Here, the defendants were served with the summons and complaint on December 30, 2010. The defendant had “twenty days after service of the summons” to appear “by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer” (CPLR 320[a]). … [T]he plaintiff’s time to bring a motion for leave to enter a default judgment expired on February 3, 2012, a year after the defendants’ default, but the plaintiff did not make such a motion until January 2015.

The plaintiff contends that the “sufficient cause shown” standard was met by the “significant delay” caused by an improper stipulation of discontinuance that was filed on February 22, 2013, and the proceedings it had to take to obtain an order dated August 15, 2013, vacating the stipulation and restoring the action to the calendar. However, … actions taken in 2013 and thereafter “offer no excuse as to why no action was taken within one year of the default, as required by statute.” In fact, this Court has held that “[a]n excuse which matures after the expiration of the statutory limit for entering a default judgment with the Clerk is legally insufficient to justify a plaintiff’s failure to enter the default judgment” … . For the same reason, there is no merit to the plaintiff’s argument that the same proceedings in 2013 established that it had not abandoned the action … . JBBNY, LLC v Begum, 2017 NY Slip Op 08816, Second Dept 12-20-17

 

FORECLOSURE (MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, JOINDER OF ISSUE, ABANDONMENT, MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT)))/NOTICE OF APPEARANCE (FORECLOSURE, JOINDER OF ISSUE, MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT))/JOINDER OF ISSUE (NOTICE OF APPEARANCE, MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT))/ABANDONMENT (CIVIL PROCEDURE, FORECLOSURE, MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT))/CPLR 3215 (FORECLOSURE, ABANDONMENT, MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT))

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FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT).

The Second Department determined this foreclosure proceeding was properly dismissed for failure to comply with a 90-day demand pursuant to CPLR 3216 (b)(3):

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Where, as here, a plaintiff has been served with a 90-day demand pursuant to CPLR 3216(b)(3), that plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day period … . The plaintiff failed to do either within the 90-day period. Therefore, in order to excuse the default, the plaintiff was required to demonstrate a justifiable excuse for its failure to timely file the note of issue or move to either vacate the demand or extend the 90-day period, as well as a potentially meritorious cause of action… . Nevertheless, it has been said that CPLR 3216 is “extremely forgiving” … , “in that it never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … .

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the defendant’s motion pursuant to CPLR 3216 to dismiss the action insofar as asserted against him. The plaintiff took no action whatsoever in the five years from the time the case was released from the foreclosure settlement part on October 15, 2009, until the defendant served his 90-day demand on October 10, 2014. Moreover, after failing to comply with the 90-day deadline, the plaintiff took no action for five months before belatedly filing a note of issue. The plaintiff failed to provide a justifiable excuse for its delay in filing a note of issue and failed to demonstrate a potentially meritorious cause of action. The plaintiff’s further contention that dismissal was too harsh a sanction, and that a lesser sanction was more appropriate under the circumstances, is unavailing, given the plaintiff’s “pattern[ ] of persistent neglect, a history of extensive delay, evidence of an intent to abandon prosecution and lack of any tenable excuse for such delay”  … . Deutsche Bank Natl. Trust Co. v Inga, 2017 NY Slip Op 08810, Second Department 12-20-17\

 

FORECLOSURE (CIVIL PROCEDURE, FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))/CPLR 3216(b)(3) (FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))/ABANDONMENT OF ACTION (CIVIL PROCEDURE, FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))/NEGLECT TO PROSECUTE (CIVIL PROCEDURE, FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))

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ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT SUBJECT TO THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined, among other things, the arbitration of the breach contract claim did not preclude tort actions against the school defendants by a former student and his parents. The Second Department further determined Supreme Court should not have dismissed causes of action against the school on grounds not raised by the parties, should not have dismissed causes of action against a party which did not move for dismissal, and the four-month Article 78 statute of limitations, which usually applies to actions against schools, did not apply to the tort causes of action raised here. The allegations included bullying and an improper relationship between the student and certain defendants:

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On a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” … . The complaint must be liberally construed in the light most favorable to the plaintiff, and all allegations must be accepted as true … . Broadly construed, the allegations, inter alia, of an “inappropriate relationship” between the plaintiff’s son and Stowell, an instructor or teacher at Knox School, the allegations of multiple communications from Stowell to the son around the time of his temporary “disappearance” from school and home in late 2012, and the allegations that Stowell refused to cooperate with a police investigation, suffice to state causes of action sounding in negligence … , intentional infliction of emotional distress … , and negligent infliction of emotional distress … . Cheslowitz v Board of Trustees of the Knox Sch., 2017 NY Slip Op 08807, Second Dept 12-20-17

 

NEGLIGENCE (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/CIVIL PROCEDURE  (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/CPLR 3211 (a)(7)  (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))

FAILURE TO OBJECT TO DISCOVERY DEMANDS REQUIRED THAT THE COURT GRANT THE MOTION TO COMPEL DISCOVERY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s failure to object to plaintiff’s discovery demands required the court to grant plaintiff’s motion to compel discovery:

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A defendant’s failure to make a timely challenge to a plaintiff’s document demand pursuant to CPLR 3122(a)(1) forecloses inquiry into the propriety of the information sought except with regard to material that is privileged pursuant to CPLR 3101 or requests that are palpably improper … . Here, the defendant City of New York did not object to the plaintiff’s requests for discovery dated February 4, 2014, and February 12, 2015, respectively, within the required time period, and it failed to either asserted a valid privilege or establish that the demands were palpably improper.

Accordingly, the Supreme Court erred in denying the plaintiff’s motion to compel the City to comply with those requests for discovery.  Recine v City of New York, 2017 NY Slip Op 08870, Second Dept 12-20-17

 

CIVIL PROCEDURE (DISCOVERY, FAILURE TO OBJECT TO DISCOVERY DEMANDS REQUIRED THAT THE COURT GRANT THE MOTION TO COMPEL DISCOVERY (SECOND DEPT))/DISCOVERY (MOTION TO COMPEL, FAILURE TO OBJECT TO DISCOVERY DEMANDS REQUIRED THAT THE COURT GRANT THE MOTION TO COMPEL DISCOVERY (SECOND DEPT))/CPLR 3122 (DISCOVERY, FAILURE TO OBJECT TO DISCOVERY DEMANDS REQUIRED THAT THE COURT GRANT THE MOTION TO COMPEL DISCOVERY (SECOND DEPT))

COURT HAS DISCRETION TO ACCEPT UNAUTHORIZED SURREPLIES (SECOND DEPT).

The Second Department noted that a judge has the discretion to control motion practice and may accept substantive surreplies:

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While unauthorized surreplies containing new arguments generally should not be considered, the Supreme Court has the authority to regulate the motion practice before it, as well as the discretion to determine whether to accept late papers or even surreply papers for “good cause” (CPLR 2214[c] …). Here, the Supreme Court did not improvidently exercise its discretion in determining that it would consider the supplemental evidence sought to be submitted by the plaintiff. The plaintiff proferred a valid excuse, the delay was minimal, and there was no prejudice as the court also determined that it would give the defendant a full opportunity to respond to, and submit further evidence addressing, the plaintiff’s submissions … . U.S. Bank Trust, N.A. v Rudick, 2017 NY Slip Op 08874, Second Dept 12-20-17

CIVIL PROCEDURE (MOTION PRACTICE, COURT HAS DISCRETION TO ACCEPT UNAUTHORIZED SUBSTANTIVE SURREPLIES (SECOND DEPT))/SURREPLIES (CIVIL PROCEDURE, COURT HAS DISCRETION TO ACCEPT UNAUTHORIZED SUBSTANTIVE SURREPLIES (SECOND DEPT))/MOTION PRACTICE (SURREPLIES,  COURT HAS DISCRETION TO ACCEPT UNAUTHORIZED SUBSTANTIVE SURREPLIES (SECOND DEPT))

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DEFENDANTS’ MOTION TO FILE A LATE ANSWER PURSUANT TO CPLR 3012 AFTER A DEFAULT IN THIS FORECLOSURE PROCEEDING WAS PROPERLY DENIED, FIVE FACTORS TO BE CONSIDERED EXPLAINED, ALLEGATION DEFENDANTS WERE CHEATED WAS NOT A DEFENSE (FIRST DEPT).

The First Department, over an extensive dissent, determined defendants’ motion to file a late answer in this foreclosure proceeding was properly denied. Shortly after giving their son, Luigi, powers of attorney, Luigi took out a mortgage to buy a condominium, using his parents’ (defendants’) home as collateral. Luigi defaulted and eventually the foreclosure action was started. After a default in the foreclosure proceedings, the defendants hired counsel and moved to file a late answer. The First Department went through each of the five factors to be considered, noting that the defendants’ claim to have first learned of the mortgage when they were served in the foreclosure action was not credible, and the allegation defendants were cheated by their son is not a defense (the powers of attorney were not fraudulently obtained):

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Under CPLR 3012(d), a trial court has the discretionary power to extend the time to plead, or to compel acceptance of an untimely pleading “upon such terms as may be just,” provided that there is a showing of a reasonable excuse for the delay. In reviewing a discretionary determination, the proper inquiry is whether the court providently exercised its discretion.

In Artcorp Inc. v Citirich Realty Corp. (140 AD3d 417 [1st Dept 2016]), we adopted the factors set forth in Guzetti v City of New York (32 AD3d 234, 238 (id.) [1st Dept 2006] [McGuire, J., concurring]) as those that “must . . . be considered and balanced” in determining whether a CPLR 3012(d) ruling constitutes an abuse of discretion. Those factors include the [*4]length of the delay, the excuse offered, the extent to which the delay was willful, the possibility of prejudice to adverse parties, and the potential merits of any defense … . * * *

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Of these five factors, three — – the lack of a potential meritorious defense, which is the most notable, the length of the delay, and the willfulness of the default — weigh against granting the motion. The remaining factors, whether the delay was excusable and whether there was any possibility of prejudice to an adverse party, are arguably neutral. Therefore, considering and weighing the five Artcorp/Guzzetti factors, we conclude that Supreme Court properly denied the … motion. Emigrant Bank v Rosabianca, 2017 NY Slip Op 08716, First Dept 12-14-17

 

CIVIL PROCEDURE (LATE ANSWER, DEFENDANTS’ MOTION TO FILE A LATE ANSWER PURSUANT TO CPLR 3012 AFTER A DEFAULT IN THIS FORECLOSURE PROCEEDING WAS PROPERLY DENIED, FIVE FACTORS TO BE CONSIDERED EXPLAINED, ALLEGATION DEFENDANTS WERE CHEATED WAS NOT A DEFENSE (FIRST DEPT))/LATE ANSWER (DEFENDANTS’ MOTION TO FILE A LATE ANSWER PURSUANT TO CPLR 3012 AFTER A DEFAULT IN THIS FORECLOSURE PROCEEDING WAS PROPERLY DENIED, FIVE FACTORS TO BE CONSIDERED EXPLAINED, ALLEGATION DEFENDANTS WERE CHEATED WAS NOT A DEFENSE (FIRST DEPT))/FORECLOSURE (CIVIL PROCEDURE, DEFENDANTS’ MOTION TO FILE A LATE ANSWER PURSUANT TO CPLR 3012 AFTER A DEFAULT IN THIS FORECLOSURE PROCEEDING WAS PROPERLY DENIED, FIVE FACTORS TO BE CONSIDERED EXPLAINED, ALLEGATION DEFENDANTS WERE CHEATED WAS NOT A DEFENSE (FIRST DEPT))

EVEN WHERE THE CLASS HAS NOT BEEN CERTIFIED, CPLR 908 REQUIRES THE PUTATIVE CLASS MEMBERS BE GIVEN NOTICE OF THE SETTLEMENT OR DISMISSAL OF THE ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge dissent, determined notice of the settlement or dismissal of a class action lawsuit, where the class has not been certified, must be provided to all members of the putative class pursuant to CPLR 908:

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CPLR 908 provides that “[a] class action shall not be dismissed, discontinued, or compromised without the approval of the court,” and that “[n]otice of the proposed dismissal, discontinuance, or compromise shall be given to all members of the class in such manner as the court directs.” On this appeal, we must determine whether CPLR 908 applies only to certified class actions, or also to class actions that are settled or dismissed before the class has been certified. We conclude that CPLR 908 applies in the pre-certification context. As a result, notice to putative class members of a proposed dismissal, discontinuance, or compromise must be given. Desrosiers v Perry Ellis Menswear, LLC, 2017 NY Slip Op 08620, CtApp 12-12-17

 

CIVIL PROCEDURE (EVEN WHERE THE CLASS HAS NOT BEEN CERTIFIED, CPLR 908 REQUIRES THE PUTATIVE CLASS MEMBERS BE GIVEN NOTICE OF THE SETTLEMENT OR DISMISSAL OF THE ACTION (CT APP))/CLASS ACTIONS (NOTICE OF SETTLEMENT OR DISMISSAL EVEN WHERE THE CLASS HAS NOT BEEN CERTIFIED, CPLR 908 REQUIRES THE PUTATIVE CLASS MEMBERS BE GIVEN NOTICE OF THE SETTLEMENT OR DISMISSAL OF THE ACTION (CT APP))/CPLR 908 (CLASS ACTIONS, EVEN WHERE THE CLASS HAS NOT BEEN CERTIFIED, CPLR 908 REQUIRES THE PUTATIVE CLASS MEMBERS BE GIVEN NOTICE OF THE SETTLEMENT OR DISMISSAL OF THE ACTION (CT APP))

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MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COMPLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissenting opinion, determined the Mental Hygiene Legal Service (MHLS) was entitled to a copy of the psychiatric patient’s full medical chart prior to an involuntary-retention hearing under the Mental Hygiene Law. As a preliminary matter, the First Department held MHLS has organizational standing to bring the underlying Article 78 proceeding which was triggered by the Bronx Psychiatric Center’s (BPC’s) refusal to provide the medical record:

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In order to retain a patient involuntarily for more than 60 days, the hospital must obtain a court order so directing, although the patient may remain hospitalized while the application for such an order is pending … . The hospital must show “that the patient is mentally ill and in need of continued, supervised care and treatment, and that the patient poses a substantial threat of physical harm to himself and/or others”… . On the other hand, MHLS has a duty “[t]o provide legal services and assistance to patients or residents and their families related to the admission, retention, and care and treatment of such persons” … . MHLS further has a duty “[t]o initiate and take any legal action deemed necessary to safeguard the right of any patient or resident to protection from abuse or mistreatment” … .

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This Court has found organizational standing under exceptional circumstances involving organizations that were dedicated to protecting a class of individuals who suffered injuries which certain statutes were intended to guard against, and who could not otherwise act in their own interests. …

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We find that MHLS has demonstrated a clear legal right to mandamus relief … . … [W]hen read together, [the] statutory duty and regulatory provisions impose upon BPC a compulsory duty to provide MHLS with a copy of its clients’ complete medical charts before their respective retention hearings under MHL 9.31 and 9.33 are held. Matter of Mental Hygiene Legal Serv. v Daniels, 2017 NY Slip Op 08645, First Dept 12-12-17

 

MENTAL HYGIENE LAW (MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COMPLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT))/CIVIL PROCEDURE (ORGANIZATIONAL STANDING, MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COMPLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT))/STANDING (CIVIL PROCEDURE, ORGANIZATIONAL STANDING, MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COMPLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT))/ORGANIZATIONAL STANDING (MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COM PLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT))/MENTAL HEALTH LEGAL SERVICE (INVOLUNTARY RETENTION, MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COMPLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT))/PSYCHIATRIC PATIENTS (INVOLUNTARY RETENTION, MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COMPLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT))/INVOLUNTARY RETENTION (PSYCHIATRIC PATIENTS, MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COMPLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT))

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PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, upheld for the most part a preliminary injunction placing restrictions on protests by animal rights advocates against Central Park Sightseeing which operates horse-drawn carriages in New York City’s Central Park. The court found that Central Park Sightseeing was likely to prevail on its public nuisance and tortious interference with contract causes of action. The First Department modified the injunction’s “floating buffer zone” provision, paragraph 3, however:

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The court granted plaintiff’s motion for a preliminary injunction to the extent of enjoining and restraining defendants “and/or anyone else who becomes aware of this Decision and Order” from

“1. physically blocking, impeding, or obstructing any persons from seeking or taking, or providing … a lawful horse-carriage ride disembarking from Central Park South …;

“2. physically touching, pushing, shoving, or grabbing any such persons or horses;

“3. yelling or shouting at, or aggressively accosting, any such persons, or any carriage horses, from a distance of less than nine feet (… three yards…);

“4. physically blocking, impeding, or obstructing the progress of any such horse-carriage ride;

“5. handing literature to persons situated within a horse carriage; and

“6. counseling, facilitating, aiding, or abetting any other person from doing such things.”

The court made it clear that “[b]oth sides agree that defendants can protest, including picket, hold signs, hand out literature, bear witness, and raise their voices,” noting that “the content of the speech is not at issue here; the manner of delivery is.” …

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We … modify paragraph 3 of the injunction to prohibit any person from knowingly approaching within nine feet of another person in the loading/unloading zone, without that person’s consent, for the purpose of handing a leaflet or bill or displaying a sign or engaging in oral protest or education of such other person … . * * *

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The nine-foot zone represents a “conversational distance,” allowing normal communication … . Central Park Sightseeing LLC v New Yorkers for Clean, Livable & Safe Sts., Inc., 2017 NY Slip Op 08619, First Dept 12-7-17

 

CONSTITUTIONAL LAW (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FIRST AMENDMENT (PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/ANIMAL LAW (ANIMAL RIGHTS, PUBLIC PROTESTS, FIRST AMENDMENT, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FIRST AMENDMENT (PUBLIC PROTEST, ANIMAL LAW, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FREE SPEECH (PUBLIC PROTEST, ANIMAL LAW, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/CIVIL PROCEDURE (PRELIMINARY INJUNCTION, FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/INJUNCTION  (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/BUFFER ZONE  (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))

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BANK’S FAILURE TO COMPLY WITH COURT’S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to comply with the court’s order to move for summary judgment within 60 days could not be the basis for dismissal for neglect to prosecute, which requires a 90-day notice:

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“A court may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as articulated in CPLR 3216, are met” … . The September order could not be deemed a 90-day demand pursuant to CPLR 3216 because it gave US Bank only 60 days within which to file a motion for summary judgment (see CPLR 3216[b][3]). Since the dismissal order … , merely effectuated the September order, which did not meet the statutory preconditions set forth in CPLR 3216, there was a failure of a condition precedent, and the Supreme Court was not authorized to dismiss the action on its own motion … . In any event, there was no evidence that the plaintiff intended to abandon the action, that the default was willful, or that the defendants were prejudiced … . US Bank, N.A. v Mizrahi, 2017 NY Slip Op 08548, Second Dept 12-6-17

 

CIVIL PROCEDURE (NEGLECT TO PROSECUTE, BANK’S FAILURE TO COMPLY WITH COURT’S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT))/NEGLECT TO PROSECUTE (BANK’S FAILURE TO COMPLY WITH COURT’S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT))/FORECLOSURE (NEGLECT TO PROSECUTE, BANK’S FAILURE TO COMPLY WITH COURT’S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT))/CPLR 3216 (NEGLECT TO PROSECUTE, BANK’S FAILURE TO COMPLY WITH COURT’S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT))

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