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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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DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT).

The Second Department determined Supreme Court had jurisdiction to rule on a dispute among members of a religious corporation (Mandir). The dispute involved whether votes were cast by persons ineligible to vote for the board of trustees. The dispute could be resolved without the court’s intrusion into religious issues:

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“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs” … . However, “[c]ivil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution” … .. In applying neutral principles of law, “courts may rely upon internal documents, such as a congregation’s bylaws, but only if those documents do not require interpretation of ecclesiastical doctrine”… .

Here, resolution of the instant dispute, including determining whether any votes were cast by individuals who were not eligible to vote in the election, does not “require[ ] intrusion into constitutionally protected ecclesiastical matters”… .. Rather, this question may be resolved based upon neutral principles of law and reference to the secular provisions of the Mandir’s internal documents … . Queens Branch of the Bhuvaneshwar Mandir, Inc. v Sherman, 2017 NY Slip Op 08546, Second Dept 12-6-17

 

CIVIL PROCEDURE (RELIGIOUS CORPORATION, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGIOUS CORPORATION, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))/RELIGION (CIVIL PROCEDURE, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))/CORPORATION LAW (RELIGIOUS CORPORATION, CIVIL PROCEDURE, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))

PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT).

The Second Department determined plaintiff’s family to comply with discovery demands and a conditional order warranted dismissal of the complaint pursuant to CPLR 3126:

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If a party refuses to obey an order for disclosure or willfully fails to disclose information, the court may dismiss the action (see CPLR 3126[3]). “While actions should be resolved on the merits when possible, a court may strike [a pleading] upon a clear showing that [a party’s] failure to comply with a disclosure order was the result of willful and contumacious conduct” … .

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Here, the willful and contumacious character of the plaintiff’s actions can be inferred from its repeated failure to respond adequately to the defendant’s notice for discovery and inspection and interrogatories, and the absence of any adequate explanation for its failure to timely comply with those requests, or the deadline set forth in the preliminary conference order… .

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When the plaintiff failed to provide full and complete responses to the defendant’s discovery demands within the specified time, the conditional order became absolute … . To be relieved of the adverse impact of the conditional order directing dismissal of the complaint, the plaintiff was required to demonstrate a reasonable excuse for its failure to provide full and complete responses to the defendant’s discovery demands and that its cause of action was potentially meritorious … . The plaintiff’s submission of an unsworn and unsigned affidavit from its owner did not demonstrate either. Corex-SPA v Janel Group of N.Y., Inc., 2017 NY Slip Op 08502, Second Dept 12-6-17

 

CIVIL PROCEDURE (DISCOVERY, PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT))/DISCOVERY (CIVIL PROCEDURE, PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT))/CPLR 3126 (DISCOVERY,  PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT))

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BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK’S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT).

The First Department determined this breach of contract action stemming from a mortgage-backed-securities trust, brought by a California plaintiff (trustee) ,and concerning California lenders must be timely under both California and New York law. The action, although timely in New York, was not timely under California law, which has a four-year statute of limitations. The New York choice-of-law provisions in the agreements did not expressing incorporate the NY statute of limitations:

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CPLR 202 requires that an action brought by a nonresident plaintiff, “based upon a cause of action accruing without the state,” be timely under the respective statutes of limitations of both New York and “the place without the state where the cause of action accrued.” In Global Fin. Corp. v Triarc Corp. (93 NY2d 525, 529-530 [1999]), the Court of Appeals set forth the general rule that, in cases where (as here) the alleged injury is purely economic, a cause of action is deemed, for purposes of CPLR 202, to have accrued in the jurisdiction of the plaintiff’s residence. …

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it is undisputed that the domiciles of the trust beneficiaries, which are in various jurisdictions, do not provide a workable basis for determining the place of accrual. As to the New York choice-of-law clauses of the relevant agreements, because these provisions do not expressly incorporate the New York statute of limitations, they “cannot be read to encompass that limitation period” … . By contrast, the subject trust in each action comprises a pool of mortgage loans, originated by California lenders and encumbering California properties, either exclusively … or predominantly ,,,, and … administered in California by plaintiff, a California-based trustee …. Further, it is undisputed that the relevant pooling and servicing agreement (PSA) for each trust contemplates the payment of state taxes, if any, in California … . To the extent the physical location of the notes memorializing the securitized mortgage loans has relevance to the analysis, each trust’s PSA contemplates that the notes may be maintained in California, but neither contemplates maintaining the notes in New York … . ​Deutsche Bank Natl. Trust Co. v Barclays Bank PLC, 2017 NY Slip Op 08459, First Dept 12-5-17

 

CIVIL PROCEDURE (BORROWING STATUTE, CONTRACT LAW, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK’S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))/BORROWING STATUTE (CIVIL PROCEDURE, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK’S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))/CONTRACT LAW (CIVIL PROCEDURE, BORROWING STATUTE, STATUTE OF LIMITATIONS, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK’S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))/SECURITIES (MORTGAGE-BACKED SECURITIES, CONTRACT LAW, CIVIL PROCEDURE, BORROWING STATUTE, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK’S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))/TRUSTS AND ESTATES (MORTGAGE-BACKED SECURITIES TRUST, BREACH OF CONTRACT, CIVIL PROCEDURE, BORROWING STATUTE, BREACH OF CONTRACT ACTION BY CALIFORNIA TRUSTEE OF MORTGAGE-BACKED-SECURITIES TRUSTS IS CONTROLLED BY NEW YORK’S BORROWING STATUTE AND MUST BE TIMELY UNDER BOTH CALIFORNIA AND NEW YORK LAW, SUIT WAS UNTIMELY UNDER CALIFORNIA LAW (FIRST DEPT))

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PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT).

The Third Department determined plaintiff’s motion to amend the complaint to add a cause of action for wrongful death was properly granted. Plaintiff’s daughter died after the lawsuit had begun. She had ingested a harmful substance at a festival and the complaint alleged the failure to prevent the use of drugs at the festival and the inadequacy of medical treatment facilities at the festival. Defendants argued there was insufficient evidence of a causal link between the ingestion of the harmful substance and plaintiff’s daughter’s death:

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… [D]efendants failed to meet their burden of demonstrating either prejudice or hindrance and, on these facts, they cannot credibly claim surprise from the proposed amendment… . Moreover, we have previously recognized that plaintiff has a viable negligence cause of action based upon allegations that decedent’s injuries were caused by defendants’ failure to ensure that she received adequate and timely emergency medical care … . Defendants have not demonstrated that the amendment, which adds a cause of action for wrongful death based upon that negligence … , is “palpably insufficient or patently devoid of merit” … .

To the extent that defendants argue that the motion for leave to amend to add a cause of action for wrongful death must be supported by competent medical proof showing a causal connection between their alleged negligence and decedent’s death, they are incorrect. Prior decisions have held that, “[w]here a plaintiff seeks to amend a complaint alleging medical malpractice to add a cause of action for wrongful death, such motion must be accompanied by ‘competent medical proof showing a causal connection between the alleged negligence and the decedent’s death'” … . Matter of Bynum v Camp Bisco, LLC, 2017 NY Slip Op 08433, Third Dept 11-30-17

 

CIVIL PROCEDURE (NEGLIGENCE, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/COMPLAINT, AMENDMENT OF (NEGLIGENCE, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/NEGLIGENCE (CIVIL PROCEDURE, AMEND COMPLAINT, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))/WRONGFUL DEATH (CIVIL PROCEDURE, AMEND COMPLAINT, PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT))

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ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE (SECOND DEPT).

The Second Department determined the action seeking a declaration whether a proposed development was within the jurisdiction of the planning board was premature. Although the board found it had jurisdiction, it also indicated the landowner could obtain a hardship exemption which would allow development:

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Here, the Planning Commission’s initial finding that the proposed subdivision constituted “development” within the meaning of the Act (see Environmental Conservation Law § 57-0107[13]; see also Central Pine Barrens Comprehensive Land Use Plan § 4.3.5) did not constitute a final determination prohibiting the petitioners from subdividing the property in accordance with their proposal. As the Planning Commission’s determination indicated, the petitioners may still obtain a hardship exemption, which would render the proposed residential use of the property authorized … . Since the petitioners failed to adequately allege that they suffered an actual concrete injury, the Supreme Court properly granted the respondents’ motion to dismiss the proceeding as premature … . Matter of Equine Facility, LLC v Pavacic, 2017 NY Slip Op 08371, Second Dept 11-29-17

 

ZONING (ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE (SECOND DEPT))/CIVIL PROCEDURE (RIPENESS, ZONING, ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE (SECOND DEPT))/ENVIRONMENTAL LAW (ZONING,  (ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE (SECOND DEPT))

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MOTION TO VACATE DEFAULT IN THIS FORECLOSURE PROCEEDING SHOULD HAVE BEEN GRANTED, THE REASON FOR THE DEFAULT WAS DEEMED EXCUSABLE, THERE WAS NO PREJUDICE, THERE WERE MERITORIOUS ISSUES RE NOTICE AND STANDING (FIRST DEPT).

The First Department determined Supreme Court should have granted defendant’s motion to vacate the default in this foreclosure proceeding. Defendant’s counsel had neglected to file opposing papers when plaintiff moved for summary judgment and moved to vacate the default a month later. The failure to answer the motion was deemed excusable. The First Department found merit in defendant’s allegations of flaws in the notice provided by the bank, flaws in the bank’s proof of standing, and flaws in the bank’s proof the note was lost:

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The borrower’s prior counsel acknowledged that he failed to submit opposition to the summary judgment motion after stipulating to adjourn that motion. However, counsel moved to vacate the default less than one month after Supreme Court’s decision was entered. Absent a pattern of dilatory behavior, the default was an excusable, one-time oversight, resulting in no prejudice … . …

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The borrower raised a colorable notice defense regarding plaintiff’s service of the mortgage’s 30-day default notice and the requisite 90-day notice under RPAPL 1304 … . … [T]he affidavit of plaintiff’s servicing agent failed to indicate that she had familiarity with standard office mailing procedures … . * * *

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Plaintiff seeks to foreclose the principal sum of $327,828.34, but there are gaps in its proof. * * *

There is also a question as to the sufficiency of the content of the lost note affidavit submitted on summary judgment. The affidavit * * * does not state when the search was made or by whom, and does not indicate approximately when the note was lost. Therefore, the borrower has demonstrated a potentially meritorious standing defense … . US Bank N.A. v Richards, 2017 NY Slip Op 08299, First Dept 11-28-17

 

FORECLOSURE (MOTION TO VACATE DEFAULT IN THIS FORECLOSURE PROCEEDING SHOULD HAVE BEEN GRANTED, THE REASON FOR THE DEFAULT WAS DEEMED EXCUSABLE, THERE WAS NO PREJUDICE, THERE WERE MERITORIOUS ISSUES RE NOTICE AND STANDING (FIRST DEPT))/CIVIL PROCEDURE (VACATE DEFAULT, FORECLOSURE, MOTION TO VACATE DEFAULT IN THIS FORECLOSURE PROCEEDING SHOULD HAVE BEEN GRANTED, THE REASON FOR THE DEFAULT WAS DEEMED EXCUSABLE, THERE WAS NO PREJUDICE, THERE WERE MERITORIOUS ISSUES RE NOTICE AND STANDING (FIRST DEPT))/DEFAULT (FORECLOSURE, MOTION TO VACATE DEFAULT IN THIS FORECLOSURE PROCEEDING SHOULD HAVE BEEN GRANTED, THE REASON FOR THE DEFAULT WAS DEEMED EXCUSABLE, THERE WAS NO PREJUDICE, THERE WERE MERITORIOUS ISSUES RE NOTICE AND STANDING (FIRST DEPT))

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THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that Supreme Court should not have allocated all the proceeds of an insurance policy to the Workers’ Compensation Board and should have ordered the Board to file an accounting pursuant to CPLR 7702. The Board is seeking compensation from members of a workers’ compensation trust which was found to be insolvent. Respondent was a member of the trust and settled with the Board, paying over $1,000,000. Subsequently, in accordance with the terms of the settlement agreement, both the Board and the respondent separately sought to recover funds from an insurance policy. Supreme Court ordered all the recovered proceeds to be paid to the Board and did not order the filing of a verified accounting. The Third Department found that respondent, under the terms of the settlement agreement with the Board, was entitled to some of the funds and an accounting should be filed by the Board. The matter was remitted:

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The provision of the settlement agreement governing allocation of damages obtained from third parties by petitioner is unambiguously applicable by its terms only to the share of the jointly-recovered settlement proceeds that are ultimately allocated to petitioner. This interpretation gives full meaning and effect to the material terms at issue, including respondent’s reservation of its claims against the parties formerly responsible for administration of the trust, the agreement that allocation of the jointly-recovered settlement proceeds would be made in the instant CPLR article 77 proceeding and the provision precluding respondent from using activities undertaken after May 31, 2012 to justify a claim to allocation of the settlement proceeds. Petitioner’s contrary view — that it is entitled to all settlement proceeds because they were insufficient to satisfy the trust’s outstanding obligations and, therefore, that no surplus existed for allocation to former trust members, including respondent — is counter to the plain language of the settlement agreement and would impermissibly render meaningless the express reservation to respondent of all of its claims against former trustees, administrators and professionals. For petitioner’s argument — that all damages recovered from any third party from any source must first be used to satisfy the trust’s outstanding obligations — to prevail, the settling members, like respondent, would have had to have waived their claims against such third parties or subordinated their independent claims to petitioner’s claims. The settlement agreement contains no such terms. Thus, the matter must be remitted for allocation of the jointly-recovered settlement proceeds between petitioner and respondent and, as to any such proceeds allocated to petitioner, a determination of whether there are surplus funds remaining for distribution among the settling former trust members, including respondent. Matter of New York State Workers’ Compensation Bd. v Murray Bresky Consultants, Ltd, 2017 NY Slip Op 08244, Third Dept 11-22-17

 

WORKERS’S COMPENSATION LAW (THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT))/CONTRACT LAW (WORKERS’ COMPENSATION LAW, SETTLEMENT AGREEMENT,  (THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT))/CIVIL PROCEDURE (WORKERS’ COMPENSATION LAW, SETTLEMENT AGREEMENT, VERIFIED ACCOUNTING, (THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT))/CPLR 7702  (WORKERS’ COMPENSATION LAW, SETTLEMENT AGREEMENT, VERIFIED ACCOUNTING, (THE TERMS OF THE SETTLEMENT AGREEMENT DID NOT ALLOW THE COURT TO ALLOCATE ALL THE PROCEEDS OF AN INSURANCE POLICY TO THE WORKERS’ COMPENSATION BOARD, RESPONDENT, A FORMER MEMBER OF AN INSOLVENT WORKERS’ COMPENSATION TRUST WHICH HAD SETTLED WITH THE BOARD, WAS ENTITLED TO SOME OF THE PROCEEDS AND AN ACCOUNTING PURSUANT TO CPLR 7702 (THIRD DEPT))

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