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BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT).

The Third Department, modifying Supreme Court, determined an state prison inmate's action in Supreme Court against doctors (Lieb and Angell) alleging medical malpractice should not have been dismissed as duplicating an action against the same doctors in the Court of Claims. It was possible the state would not indemnify the doctors who were not employees of the state and plaintiff would be left without recourse. The Supreme Court action should have been stayed, not dismissed:

The legal theory in the Court of Claims action is nearly identical to the Supreme Court action, and it is not disputed that the two actions arise out of the same set of facts. Moreover, Correction Law § 24-a provides that licensed physicians providing contractual medical care at the request of DOCCS are covered by the defense and indemnity provisions in Public Officers Law § 17, as long as the injury was not the result of intentional wrongdoing. As such, it appears that the dismissal of the Supreme Court action would not prejudice plaintiff's right to receive full recovery from all defendants, as intentional wrongdoing is not part of the Supreme Court action and any damages attendant to Lieb's or Angell's malpractice or negligence would be borne by the state in the Court of Claims action.

However, while these defense and indemnity provisions appear to apply to Lieb and Angell, the record is not fully developed at this time to make such a definite determination. Indeed, despite currently defending Angell, the state has neither conceded nor admitted in any of its submissions or pleadings that it is statutorily bound by Correction Law § 24-a and Public Officers Law § 17 (3) (a) to indemnify Lieb and Angell. Rothschild v Braselmann, 2018 NY Slip Op 00054, Third Dept 1-4-18

CIVIL PROCEDURE (BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT))/COURT OF CLAIMS (BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT))

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IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT).

The First Department, modifying Supreme Court, limited the amount of discovery about the rear stairs of the bus where plaintiff fell and allowed representatives of defendants to be present when the bus was inspected and photographed by plaintiff:

… [D]iscovery [is limited] to documents concerning the rear stairs of the bus on which plaintiff fell, and the absence of warning signs and handrails in the rear of the bus, for a period of five years preceding the date of the accident, and records relating to any modifications or changes to the interior stairs, handrails, or warning signs in the rear of the bus from the day of the accident to the day of the inspection, and the production of the bus for inspection and photographing by plaintiff in the presence of defendants' representatives … .

Predecessor models of the bus on which plaintiff fell and buses with front-facing rear seating are not relevant to whether the bus on which plaintiff fell was defectively designed (CPLR 3101[a]… ). Similarly, while material concerning the rear stairs, handrails, and warning signs in the rear of the subject bus, i.e., the alleged dangerous conditions, is relevant, material concerning other sections of the bus or other defects is not relevant. The production of 15 years' worth of records is burdensome … . Curran v New York City Tr. Auth., 2018 NY Slip Op 00038, First Dept 1-2-18

NEGLIGENCE (IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/CIVIL PROCEDURE (NEGLIGENCE, SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/CPLR 3101 (NEGLIGENCE, SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/SLIP AND FALL (DISCOVERY, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/BUSES (SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/DISCOVERY (IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))

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THE AGREEMENT TO ARBITRATE WAS NOT A DEFENSE TO THE COMPLAINT, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, RATHER, THE ACTION SHOULD HAVE BEEN STAYED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the action on the complaint should have been stayed, not dismissed, based upon the agreement to arbitrate. The Third Department further held that the complaint, augmented by affidavits, stated causes of action and should not have been dismissed:

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Supreme Court improperly dismissed the action against [defendant], rather than staying the action. Initially, there is no dispute on this record that plaintiff and [defendant], in the settlement agreement, consented to arbitrate any and all disputes regarding, among other things, the subject property. However, under established law, “[a]n agreement to arbitrate is not a defense to an action” and, thus, “may not be the basis for a motion to dismiss” … . [Defendant’s] cross motion to dismiss based upon CPLR 3211 (a) (1), premised upon the agreement to arbitrate, does not entitle him to dismissal of this action… . Rather, where, as here, there is a valid arbitration clause in an agreement and the party sued … moves to compel arbitration, the court should stay the judicial action rather than dismiss it (see CPLR 7503 [a]…). By statute, the order granting [defendant’s] motion to compel arbitration “operate[s] to stay [the] pending or subsequent action” (CPLR 7503 [a]). …

We further find that Supreme Court improperly dismissed the complaint against the remaining defendants … . Importantly, on the remaining defendants’ pre-answer cross motions to dismiss the complaint pursuant to CPLR 3211, the court was bound to “accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . The court was also authorized to “consider affidavits submitted by plaintiff[] to remedy any defects in the complaint” … . Piller v Tribeca Dev. Group LLC, 2017 NY Slip Op 09209, Third Dept 12-28-17

ARBITRATION (THE AGREEMENT TO ARBITRATE WAS NOT A DEFENSE TO THE COMPLAINT, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, RATHER, THE ACTION SHOULD HAVE BEEN STAYED (THIRD DEPT))/CIVIL PROCEDURE (THE AGREEMENT TO ARBITRATE WAS NOT A DEFENSE TO THE COMPLAINT, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, RATHER, THE ACTION SHOULD HAVE BEEN STAYED (THIRD DEPT))/CPLR 7503  (THE AGREEMENT TO ARBITRATE WAS NOT A DEFENSE TO THE COMPLAINT, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, RATHER, THE ACTION SHOULD HAVE BEEN STAYED (THIRD DEPT))

COURT SHOULD NOT HAVE DISMISSED CAUSES OF ACTION FOR FAILURE TO NAME NECESSARY PARTIES, BECAUSE THE PARTIES WERE SUBJECT TO THE COURT’S JURISDICTION, THE COURT SHOULD HAVE ORDERED THE PARTIES JOINED (THIRD DEPT).

The Third Department determined Supreme Court should not have dismissed causes of action for failure to name necessary parties, but rather should have ordered the parties joined:

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Supreme Court erred, however, by determining that petitioners’ failure to name Negron, Zell, Lowe, Robertson and Burkert as necessary parties required dismissal of the first three causes of action in the petition/complaint … . CPLR 1001 (b) provides that where a party or parties who should be joined have “not been made a party and [are] subject to the jurisdiction of the court, the court shall order [them] summoned” … . Because Negron, Zell, Lowe, Robertson and Burkert are necessary parties and are subject to Supreme Court’s jurisdiction insofar as they were employees of the City of Kingston Police Department at the time of commencement of this proceeding, the court should have ordered them joined… . Accordingly, we find that this matter must be remitted to Supreme Court to order Negron, Zell, Lowe, Robertson and Burkert to be joined as necessary parties … . Matter of Farrell v City of Kingston, 2017 NY Slip Op 09214, Third Dept 12-28-17

CIVIL PROCEDURE (NECESSARY PARTIES, COURT SHOULD NOT HAVE DISMISSED CAUSES OF ACTION FOR FAILURE TO NAME NECESSARY PARTIES, BECAUSE THE PARTIES WERE SUBJECT TO THE COURT’S JURISDICTION, THE COURT SHOULD HAVE ORDERED THE PARTIES JOINED (THIRD DEPT))/NECESSARY PARTIES (CIVIL PROCEDURE, COURT SHOULD NOT HAVE DISMISSED CAUSES OF ACTION FOR FAILURE TO NAME NECESSARY PARTIES, BECAUSE THE PARTIES WERE SUBJECT TO THE COURT’S JURISDICTION, THE COURT SHOULD HAVE ORDERED THE PARTIES JOINED (THIRD DEPT))/CPLR 1001 (NECESSARY PARTIES, COURT SHOULD NOT HAVE DISMISSED CAUSES OF ACTION FOR FAILURE TO NAME NECESSARY PARTIES, BECAUSE THE PARTIES WERE SUBJECT TO THE COURT’S JURISDICTION, THE COURT SHOULD HAVE ORDERED THE PARTIES JOINED (THIRD DEPT))

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ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s separate cause of action for punitive damages should have been dismissed. However, the demand for punitive damages in the ad damnum clause was proper. Plaintiff was a passenger in the car driven by defendant, who was drunk and lost control of the car:

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The plaintiff erroneously denominated her request for punitive damages as a separate cause of action. “New York does not recognize an independent cause of action for punitive damages”… . Accordingly, the Supreme Court erred in denying that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the separately pleaded sixth cause of action insofar as asserted against him.

However, the plaintiff’s request for punitive damages in the ad damnum clause of the complaint was proper. Whereas compensatory damages are intended to assure that the victim receives “fair and just compensation commensurate with the injury sustained,” punitive damages are meant to “punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future” … . With regard to the availability of punitive damages in personal injury cases involving drunk drivers, while this Court has held that “[e]vidence that a defendant was driving while intoxicated is insufficient by itself to justify the imposition of punitive damages”… , this Court has also held that “driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in wanton and reckless’ conduct evincing heedlessness and an utter disregard for the safety of others”… . Indeed, punitive damages were properly imposed where the driver was excessively drunk …  or was a repeat offender… . Accordingly, a request for punitive damages can be stated in a case arising from drinking and driving. Furthermore, at this stage it would be premature to conclude that the allegations in the complaint are insufficient to support a claim that the defendant acted so recklessly or wantonly as to warrant an award of punitive damages … Thus, to the extent the plaintiff sought punitive damages in her ad damnum clause, she stated a request for such damages, and that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss that request for punitive damages insofar as asserted against him was properly denied … . Gershman v Ahmad, 2017 NY Slip Op 09117, Second Dept 12-27-17

 

NEGLIGENCE (TRAFFIC ACCIDENTS, DAMAGES, DRUNK DRIVING, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/CIVIL PROCEDURE (PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/CRIMINAL LAW (DRUNK DRIVING, NEGLIGENCE, PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENCE, DRUNK DRIVING, PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/PUNITIVE DAMAGES (DRUNK DRIVING, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))/DRIVING WHILE INTOXICATED (NEGLIGENCE, PUNITIVE DAMAGES, ALTHOUGH THERE IS NO CAUSE OF ACTION FOR PUNITIVE DAMAGES IN NEW YORK, PUNITIVE DAMAGES WERE PROPERLY REQUESTED IN THE AD DAMNUM CLAUSE IN THIS DRUNK DRIVING ACCIDENT CASE (SECOND DEPT))

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IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, explained an aspect of the rigid proof requirements for summary judgment. Here plaintiff bank moved for summary judgment in a foreclosure action. Defendant, in opposition, raised plaintiff’s failure to demonstrate compliance with a condition precedent in the note. Plaintiff submitted reply papers with proof the condition precedent had been met. The Second Department determined the reply could not be considered and therefore the plaintiff had not made out a prima facie case in its papers:

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As part of her affirmative defenses and counterclaim, the defendant asserted, inter alia, that the plaintiff l… failed to show that it complied with the condition precedent contained in paragraph 7, subsection C, of the note. * * *

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… [T]he plaintiff failed to establish, prima facie, that it complied with the condition precedent contained in paragraph 7, subsection C, of the note…  “[A] party moving for summary judgment cannot meet its prima facie burden by submitting evidence for the first time in reply, and generally, evidence submitted for the first time in reply papers should be disregarded by the court”… . Here, since the defendant raised the issue of compliance with paragraph 7, subsection C, of the note in her affirmative defenses and counterclaim, the plaintiff’s submission for the first time of a copy of the requisite default notice with its reply to the defendant’s opposition to the summary judgment motion was not sufficient to establish its prima facie compliance … . Since the plaintiff failed to meet its prima facie burden on the motion, we need not consider the sufficiency of the defendant’s opposition papers … . Wells Fargo Bank, N.A. v Osias, 2017 NY Slip Op 09195, Second Dept 12-27-17

 

CIVIL PROCEDURE (IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/EVIDENCE (SUMMARY JUDGMENT, (IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, EVIDENCE, IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/SUMMARY JUDGMENT (EVIDENCE, IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/REPLY (SUMMARY JUDGMENT, EVIDENCE, N MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))

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ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment was properly denied in this fraudulent conveyance action. The court offered a particularly clear description of how summary judgment motions are analyzed by the appellate courts. Although plaintiff bears the burden of proof at trial, a defendant bringing a motion for summary judgment bears the burden of proof. Gaps in a defendant’s proof require that the motion be denied, without considering the plaintiff’s opposing papers. Therefore a defendant cannot point to gaps in the plaintiff’s proof as a ground for summary judgment in favor of defendant:

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It is the movant’s burden on a motion for summary judgment to “make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact”… . Only if the movant succeeds in meeting its burden will the burden shift to the opponent to demonstrate through evidence in admissible form that there exists a triable issue of fact. While the ultimate burden of proof at trial will be borne by the plaintiff, a defendant seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form … . On a summary judgment motion by a defendant, the defendant does not meet its initial burden by merely pointing to gaps in the plaintiff’s case; rather, it must affirmatively demonstrate the merit of its claim or defense… . Vumbico v Estate of Rose H. Wiltse, 2017 NY Slip Op 09194, Second Dept 12-27-17

CIVIL PROCEDURE (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))/EVIDENCE (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))/SUMMARY JUDGMENT (EVIDENCE, ALTHOUGH PLAINTIFF BEARS THE BURDEN OF PROOF AT TRIAL, A DEFENDANT BRINGING A MOTION FOR SUMMARY JUDGMENT BEARS THE BURDEN OF PROOF, GAPS IN DEFENDANT’S PROOF REQUIRE DENIAL OF THE MOTION WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))

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DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT).

The Second Department determined plaintiffs’ declaratory judgment action should have been brought as an Article 78 proceeding and was properly dismissed as untimely. The action concerned alleged violations of height restrictions on new construction which had been the subject of a final environmental impact statement (FEIS):

An action for a declaratory judgment is generally governed by a six-year statute of limitations (see CPLR 213[1]). However, where a declaratory judgment action involves claims that could have been made in another proceeding for which a specific limitation period is provided, the action is subject to the shorter limitations period … . Where an action could have been brought pursuant to CPLR article 78, the four-month statute of limitations applicable to such proceedings applies … .

A proceeding pursuant to CPLR article 78 may be brought to review a determination of a public body or officer which is “final and binding upon the petitioner” (CPLR 217[1]; see CPLR 7801[1]). There are two requirements for fixing the time when agency action is final and binding upon the petitioner: “First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party” … . A determination is final and the statute of limitations begins to run when the agency’s “definitive position on the issue [becomes] readily ascertainable” to the complaining party … , so that the petitioner knew or should have known that it was aggrieved… .

Here, the Supreme Court properly determined that this action could have been brought as a proceeding pursuant to CPLR article 78 … . Save The View Now v Brooklyn Bridge Park Corp., 2017 NY Slip Op 09189, Second Dept 12-27-17

CIVIL PROCEDURE (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/DECLARATORY JUDGMENT  (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/ARTICLE 78 (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/ENVIRONMENTAL LAW (BUILDING HEIGHT RESTRICTIONS , ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/ADMINISTRATIVE LAW  (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))

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PLAINTIFF FAILED TO COMPLY WITH THE STATUTORY REQUIREMENTS FOR SERVICE OF PROCESS ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY, THE COURT NEVER ACQUIRED JURISDICTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that plaintiff did not strictly comply with the requirements for service of process on defendant unauthorized foreign limited liability company. Plaintiff had been granted a default judgment dismissing the foreclosure proceeding as time-barred. Defendant’s motion to vacate the default judgment was denied. The Fourth Department dismissed the complaint (without prejudice) finding that the flaws in service deprived the court of jurisdiction:

Pursuant to [Limited Liability Company law 304], “[f]irst, service upon the unauthorized foreign limited liability company may be made by personal delivery of the summons and complaint, with the appropriate fee, to the Secretary of State … . That was done by plaintiff in this case. “Second, in order for the personal delivery to the Secretary of State to be sufficient,’ the plaintiff must also give the defendant direct notice of its delivery of the process to the Secretary of State, along with a copy of the process” … . The direct notice may be given to the defendant personally… . That was attempted by plaintiff, but the process server was unable to make personal service inasmuch as the property was “unoccupied.” In the alternative, “[t]he direct notice may be sent to the defendant by registered mail, return receipt requested”… . That was attempted by plaintiff in this case, but the mail was returned to plaintiff as undeliverable. …

… [P]laintiff failed to comply with step two of Limited Liability Company Law § 304. …  Inasmuch as plaintiff failed to comply with step two, she necessarily also failed to comply with step three, which would show that a party complied with the service requirements of section 304. Initially, we note that plaintiff filed an affidavit of service showing personal service upon the Secretary of State and a notation that service was made upon defendant by registered mail, return receipt requested, but she did not file an affidavit of compliance… . Moreover, because plaintiff did not comply with step two, she was unable to file a return receipt signed by defendant “or other official proof of delivery” … . Purportedly attached to the affidavit of service filed by plaintiff was a copy of the envelope mailed to defendant by registered mail and returned to plaintiff as undeliverable. Rather than showing proof of delivery, plaintiff showed just the opposite, i.e., that the process was not delivered to defendant. We therefore conclude that the motion to vacate the default judgment on the ground of lack of jurisdiction should have been granted… . Chan v Onyx Capital, LLC, 2017 NY Slip Op 08966, Fourth Dept 12-22-17

CIVIL PROCEDURE (SERVICE OF PROCESS, PLAINTIFF FAILED TO COMPLY WITH THE STATUTORY REQUIREMENTS FOR SERVICE OF PROCESS ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY, THE COURT NEVER ACQUIRED JURISDICTION (FOURTH DEPT))/LIMITED LIABILITY COMPANY LAW (SERVICE OF PROCESS, PLAINTIFF FAILED TO COMPLY WITH THE STATUTORY REQUIREMENTS FOR SERVICE OF PROCESS ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY, THE COURT NEVER ACQUIRED JURISDICTION (FOURTH DEPT))/SERVICE OF PROCESS (LIMITED LIABILITY COMPANY LAW,  PLAINTIFF FAILED TO COMPLY WITH THE STATUTORY REQUIREMENTS FOR SERVICE OF PROCESS ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY, THE COURT NEVER ACQUIRED JURISDICTION (FOURTH DEPT))

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TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, refusing to follow the 1st Department, determined the tenant, who was a defendant in a failed eviction action, had the right to bring a plenary action to recover attorney’s fees without violating the prohibition against claim splitting. It is significant that the tenant did not counterclaim for attorney’s fees in the answer to the eviction action. The fact that the answer included a boilerplate request for attorney’s fees in the wherefore clause did not amount to a counterclaim (which is authorized by Real Property Law § 234:

Applying the traditional understanding of the claim splitting rule discussed above and embodied in the landlord-tenant case law, the landlord’s bid for dismissal on claim splitting grounds must fail. It was the landlord, not the tenant, who instituted the two prior proceedings in Village Court. The tenant successfully defended herself against the landlord’s claims, but she did not assert an affirmative claim until the instant plenary action. Indeed, the landlord’s appellate brief explicitly concedes that the tenant did not interpose a Real Property Law § 234 counterclaim for attorneys’ fees in either of the two prior proceedings. Thus, because the instant action is the tenant’s first assertion of an affirmative claim for relief under section 234, the claim splitting rule poses no bar to her recovery. Put simply, the tenant cannot be guilty of claim splitting because, until the instant action, there was no claim to split. Caracaus v Conifer Cent. Sq. Assoc., 2017 NY Slip Op 08946, Fourth Dept 12-22-17

 

CIVIL PROCEDURE (CLAIM SPLITTING, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/LANDLORD-TENANT (EVICTION, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/REAL PROPERTY LAW (LANDLORD-TENANT, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/CLAIM SPLITTING  (LANDLORD-TENANT, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))

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