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COOPERATIVE BOARD’S DETERMINATION TO WAIVE THE CONSENT REQUIREMENT FOR THE CONSTRUCTION OF A SECOND-FLOOR TERRACE WAS NOT JUSTIFIED BY THE BUSINESS JUDGMENT RULE, THE BOARD’S RULING IS A PROPER SUBJECT OF AN ARTICLE 78 ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the cooperative board should not have given the owner of a second-floor cooperative apartment (Haffey) permission to construct a second floor terrace without the consent of the investor-owner of the first-floor cooperative apartment. The cooperative’s guidelines, which can be waived, required the first-floor owner’s consent to the construction of a second-floor terrace. The board’s decision singled out investor-owners for different treatment and cannot be justified under the business judgment rule. The court noted the board’s determination is properly the subject of an Article 78 proceeding:

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… [In] “the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board’s determination so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith'” … . “To trigger further judicial scrutiny, an aggrieved shareholder-tenant must make a showing that the board acted (1) outside the scope of its authority, (2) in a way that did not legitimately further the corporate purpose or (3) in bad faith”… . “[T]he broad powers of cooperative governance carry the potential for abuse when a board singles out a person for harmful treatment or engages in unlawful discrimination, vendetta, arbitrary decision making and favoritism” … .

… [T]he board’s determination to dispense with the consent requirement and allow Haffey to erect the subject terrace without the petitioner’s consent was not protected by the business judgment rule. By dispensing with the petitioner’s consent, and, more generally, the consent of first-floor shareholders-tenants who do not reside in the building, the board deliberately singled out the petitioner, as well as tenant-shareholders who do not reside on the premises, for harmful treatment and engaged in favoritism toward tenants-shareholders who resided on the premises. As such, the petitioner established that the board’s determination to dispense with his consent did not legitimately further the corporate purpose and was made in bad faith … . Matter of Dicker v Glen Oaks Vil. Owners, Inc., 2017 NY Slip Op 06645, Second Dept 9-27-17

 

COOPERATIVES (COOPERATIVE BOARD’S DETERMINATION TO WAIVE THE CONSENT REQUIREMENT FOR THE CONSTRUCTION OF A SECOND-FLOOR TERRACE WAS NOT JUSTIFIED BY THE BUSINESS JUDGMENT RULE, THE BOARD’S RULING IS A PROPER SUBJECT OF AN ARTICLE 78 ACTION (SECOND DEPT))/CIVIL PROCEDURE (ARTICLE 78, COOPERATIVE BOARD’S DETERMINATION TO WAIVE THE CONSENT REQUIREMENT FOR THE CONSTRUCTION OF A SECOND-FLOOR TERRACE WAS NOT JUSTIFIED BY THE BUSINESS JUDGMENT RULE, THE BOARD’S RULING IS A PROPER SUBJECT OF AN ARTICLE 78 ACTION (SECOND DEPT))/BUSINESS JUDGMENT RULE (COOPERATIVE BOARD’S DETERMINATION TO WAIVE THE CONSENT REQUIREMENT FOR THE CONSTRUCTION OF A SECOND-FLOOR TERRACE WAS NOT JUSTIFIED BY THE BUSINESS JUDGMENT RULE, THE BOARD’S RULING IS A PROPER SUBJECT OF AN ARTICLE 78 ACTION (SECOND DEPT))

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INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL DETERMINE WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT).

The First Department, reversing Supreme Court, determined an attorney who worked for defendant insurer must be deposed to ascertain his role in an investigation of a fire at plaintiffs’ property and the denial of coverage. Based on the deposition, Supreme Court will address what portions of the insurer’s files, including the attorney’s, are discoverable by plaintiffs:

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“[T]he CPLR establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery (CPLR 3101[b]); attorney’s work product, also absolutely immune (CPLR 3101[c]); and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means CPLR 3101 [d][2]” … . “[I]n order for attorney-client communications to be privileged, the document must be primarily or predominantly a communication of a legal character” … . …

“Reports of insurance investigators or adjusters, prepared during the processing of a claim, are discoverable as made in the regular course of the insurance company’s business” … . “Furthermore, attorney work product applies only to documents prepared by counsel acting as such, and to materials uniquely the product of a lawyer’s learning and professional skills, such as those reflecting an attorney’s legal research, analysis, conclusions, legal theory or strategy” … . “Documents prepared in the ordinary course of an insurance company’s investigation to determine whether to accept or reject coverage and to evaluate the extent of a claimant’s loss are not privileged and are, therefore, discoverable. In addition, such documents do not become privileged merely because an investigation was conducted by an attorney” … . Venture v Preferred Mut. Ins. Co., 2017 NY Slip Op 06594, First Dept 9-26-17

 

INSURANCE LAW (INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL INFORM WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT))/ATTORNEYS  (INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL INFORM WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT))/CIVIL PROCEDURE (DISCOVERY, ATTORNEYS, INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL INFORM WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT))/DISCOVERY (INSURANCE LAW, ATTORNEYS, (INSURER’S ATTORNEY MUST BE DEPOSED TO DETERMINE HIS ROLE IN THE INVESTIGATION OF A FIRE ON PLAINTIFFS’ PROPERTY AND THE DENIAL OF COVERAGE, THE INFORMATION PROVIDED BY THE DEPOSITION WILL INFORM WHETHER THE ATTORNEY’S FILES ARE DISCOVERABLE BY THE PLAINTIFFS (FIRST DEPT))

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COUNTERCLAIMS FOR CONTRIBUTION AND INDEMNIFICATION BASED UPON NEGLIGENT SUPERVISION OF THE INJURED CHILD ARE NOT PROPER IN A PRODUCTS LIABILITY ACTION (SECOND DEPT).

The Second Department determined the defendant manufacturer was not entitled to amend its answer with counterclaims for indemnification and contribution based upon negligent supervision by the injured child’s mother in this products liability action. The child was injured by blender blades. The blender was on the kitchen counter but was not running at the time:

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… [P]laintiff’s … four-year-old daughter allegedly was injured when her hand came into contact with the blades of a hand-held stick blender that was left on the kitchen counter, plugged in but not running, while the plaintiff went to retrieve something from the freezer. The plaintiff commenced this action … to recover damages for strict products liability and breach of warranty against the defendants, which allegedly manufactured and sold the blender. The defendants moved for leave to amend their answer to assert a counterclaim against the plaintiff for contribution and indemnification. …

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In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications for leave to amend a pleading are to be freely granted “unless the proposed amendment is palpably insufficient or patently devoid of merit”… . Here, the acts complained of in the proposed counterclaim did not implicate a duty owed to the public at large, but rather, only gave rise to an allegation that the plaintiff negligently supervised her child, which cannot serve as the basis for cognizable claims for contribution or indemnification … . The proposed amendment was, therefore, palpably insufficient, and the Supreme Court properly denied the defendants’ motion. Siragusa v Conair Corp., 2017 NY Slip Op 06564, Second Dept 9-20-17

 

PRODUCTS LIABILITY (COUNTERCLAIMS FOR CONTRIBUTION AND INDEMNIFICATION BASED UPON NEGLIGENT SUPERVISION OF THE INJURED CHILD ARE NOT PROPER IN A PRODUCTS LIABILITY ACTION (SECOND DEPT))/CIVIL PROCEDURE (PRODUCTS LIABILITY, COUNTERCLAIMS FOR CONTRIBUTION AND INDEMNIFICATION BASED UPON NEGLIGENT SUPERVISION OF THE INJURED CHILD ARE NOT PROPER IN A PRODUCTS LIABILITY ACTION (SECOND DEPT))/INDEMNIFICATION (PRODUCTS LIABILITY, COUNTERCLAIMS FOR CONTRIBUTION AND INDEMNIFICATION BASED UPON NEGLIGENT SUPERVISION OF THE INJURED CHILD ARE NOT PROPER IN A PRODUCTS LIABILITY ACTION (SECOND DEPT))/CONTRIBUTION (PRODUCTS LIABILITY, COUNTERCLAIMS FOR CONTRIBUTION AND INDEMNIFICATION BASED UPON NEGLIGENT SUPERVISION OF THE INJURED CHILD ARE NOT PROPER IN A PRODUCTS LIABILITY ACTION (SECOND DEPT))

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DISCOVERY STATUTE MUST BE LIBERALLY CONSTRUED, PLAINTIFF ENTITLED TO CONTRACTS AND AGREEMENTS DEMONSTRATING THE RELATIONSHIP AMONG THE DEFENDANTS IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to discovery of contracts and agreements potentially relevant to the relationship among defendants in this medical malpractice action. The discovery statute is to be broadly construed:

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CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” The words “material and necessary” must ” be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity'” … .

Here, at his deposition, Ward testified that he was president of the PC as well as the Director of Anesthesia Services at the Medical Center. Ward further testified that there was an agreement that was executed by the Medical Center and by him in his individual capacity only, concerning, in effect, the establishment and terms of the existence of what would become the PC (hereinafter the contract). As such, and despite the fact that it was executed by Ward in his individual capacity only, the contract may provide material evidence on the issue of the Medical Center’s relationship to or control over the PC. Thus, the disclosure sought by the plaintiff, i.e., the production of the contract by Nataloni, the PC, and the Medical Center, and a knowledgeable witness from the Medical Center regarding the contract, was “[evidence] material and necessary” for the prosecution of his action … . Accordingly, the Supreme Court improvidently exercised its discretion in denying those branches of the plaintiff’s motion which were to compel Nataloni, the PC, and the Medical Center to produce any contracts and agreements for anesthesia services between the Medical Center and Ward, in his individual capacity only, and to compel the Medical Center to produce a witness with knowledge regarding the subject contract. The court likewise improvidently exercised its discretion in granting those branches of the separate cross motions which were for a protective order with respect to those discovery demands. Redmond v Hanypsiak, 2017 NY Slip Op 06563, Second Dept 9-20-17

 

CIVIL PROCEDURE (DISCOVERY STATUTE MUST BE LIBERALLY CONSTRUED, PLAINTIFF ENTITLED TO CONTRACTS AND AGREEMENTS DEMONSTRATING THE RELATIONSHIP AMONG THE DEFENDANTS IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT))/NEGLIGENCE (DISCOVERY STATUTE MUST BE LIBERALLY CONSTRUED, PLAINTIFF ENTITLED TO CONTRACTS AND AGREEMENTS DEMONSTRATING THE RELATIONSHIP AMONG THE DEFENDANTS IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT))/MEDICAL MALPRACTICE (DISCOVERY STATUTE MUST BE LIBERALLY CONSTRUED, PLAINTIFF ENTITLED TO CONTRACTS AND AGREEMENTS DEMONSTRATING THE RELATIONSHIP AMONG THE DEFENDANTS IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT))

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ALTHOUGH THE DISPUTE BETWEEN PLAINTIFF AND A RABBI INVOLVED THE PURCHASE OF TORAH BOOKS AND THE JEWISH CUSTOM OF SHIDUCH, THE MATTER COULD BE DECIDED BASED ON NEUTRAL PRINCIPLES OF LAW IN THE STATE COURTS (SECOND DEPT).

The Second Department determined a dispute between plaintiff and a rabbi involved neutral principles of law and therefore could be adjudicated in the state court system:

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The plaintiff commenced this action to recover damages for breach of contract and fraud, alleging that she made several payments to the defendants totaling $214,000 for the purchase of three torah books, and for the defendants to find her a husband pursuant to the Jewish custom of “shiduch.” The plaintiff alleged that the defendants made false statements to induce her to make the payments, and had not performed pursuant to their agreement. …

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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” … .

Here, the defendants failed to demonstrate that the plaintiff’s causes of action cannot be determined solely upon the application of neutral principles of law, without reference to religious principles … . Lifschitz v Sharabi, 2017 NY Slip Op 06530, 2nd Dept 9-20-17

 

CIVIL PROCEDURE (ALTHOUGH THE DISPUTE BETWEEN PLAINTIFF AND A RABBI INVOLVED THE PURCHASE OF TORAH BOOKS AND THE JEWISH CUSTOM OF SHIDUCH, THE MATTER COULD BE DECIDED BASED ON NEUTRAL PRINCIPLES OF LAW IN THE STATE COURTS (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGION, ALTHOUGH THE DISPUTE BETWEEN PLAINTIFF AND A RABBI INVOLVED THE PURCHASE OF TORAH BOOKS AND THE JEWISH CUSTOM OF SHIDUCH, THE MATTER COULD BE DECIDED BASED ON NEUTRAL PRINCIPLES OF LAW IN THE STATE COURTS (SECOND DEPT))/RELIGION (ALTHOUGH THE DISPUTE BETWEEN PLAINTIFF AND A RABBI INVOLVED THE PURCHASE OF TORAH BOOKS AND THE JEWISH CUSTOM OF SHIDUCH, THE MATTER COULD BE DECIDED BASED ON NEUTRAL PRINCIPLES OF LAW IN THE STATE COURTS (SECOND DEPT))

MOTION TO EXTEND TIME TO EFFECT SERVICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to extend the time to effect service in this foreclosure action should have been granted. The initial defective service was timely and the statute of limitations ran out before the defect could be cured:

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… [T]he Supreme Court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 306-b for leave to extend its time to serve the summons and complaint upon [defendant] in the interest of justice … . While the action was timely commenced, the statute of limitations had expired when the plaintiff moved for this relief, the timely service of process was subsequently found to have been defective, there was no identifiable prejudice to [defendant] attributable to the delay in proper service, and the complaint appears to be potentially meritorious … . US Bank N.A. v Saintus, 2017 NY Slip Op 06567, Second Dept 9-20-17

CIVIL PROCEDURE (MOTION TO EXTEND TIME TO EFFECT SERVICE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SERVICE OF PROCESS (MOTION TO EXTEND TIME TO EFFECT SERVICE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT).

The Second Department determined the plaintiff home health care workers were properly certified to bring a class action suit alleging inadequate pay in violation of the minimum wage requirements of the Labor Law. The plaintiffs worked at clients’ residences in 24-hour shifts. They were paid an hourly rate for the 12 daytime hours of their 24-hour shifts and a flat rate for the 12 nighttime hours. The plaintiffs argue they were entitled to the minimum wage for each hour of their 24-hour shifts:

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The plaintiffs were required to be at the clients’ residences and were also required to perform services there if called upon to do so. To interpret that regulation to mean that the plaintiffs were not, during those nighttime hours, “required to be available for work” simply because it turned out that they were not called upon to perform services is contrary to the plain meaning of “available” … . …[T]o the extent that the members of the proposed class were not “residential” employees who “live[d] on the premises of the employer,” they were entitled to be paid the minimum wage for all 24 hours of their shifts, regardless of whether they were afforded opportunities for sleep and meals … . …

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… [T]he plaintiffs established the existence of the five prerequisites to class certification … , and none of the factors listed in CPLR 902 warranted a denial of the motion … . Andryeyeva v New York Health Care, Inc., 2017 NY Slip Op 06421, Second Dept 9-13-17

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Similar issues and result in Moreno v Future Care Health Servs., Inc., 2017 NY Slip Op 06439, Second Dept 9-13-17

 

EMPLOYMENT LAW (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/LABOR LAW (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/CIVIL PROCEDURE (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/CLASS ACTIONS (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/HOME HEALTH CARE WORKERS (EMPLOYMENT LAW, PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))/MINIMUM WAGE (PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT))

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AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT).

The Second Department determined the defendant college’s motion to dismiss plaintiff-student’s breach of contract complaint as time-barred was properly granted. Plaintiff-student had received a failing grade and was ultimately dismissed from the program. The plaintiff’s mechanism for redress was an Article 78 proceeding, which has a four-month statute of limitations. The fact that the plaintiff attempted to bring a timely breach of contract action was to no avail:

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 “Although decisions made by educational institutions as to academic issues are not completely beyond the scope of judicial scrutiny, review is restricted to special proceedings under CPLR article 78, and only to determine whether the decision was arbitrary, capricious, irrational, or in bad faith” … .

Here, the plaintiff’s complaint challenged her dismissal from Teachers College following her receipt of a failing grade in the elective course. This is an academic determination for which the plaintiff should have sought review in the context of a proceeding pursuant to CPLR article 78… . Since the plaintiff’s claims would have been barred by the four-month statute of limitations applicable to such a proceeding … , the Supreme Court properly granted Teachers College’s motion to dismiss the complaint on the ground that it was time-barred … . Hernandez v Teachers Coll., Columbia Univ., 2017 NY Slip Op 06433, Second Dept 9-13-17

 

EDUCATION-SCHOOL LAW (AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/COLLEGES (AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/CIVIL PROCEDURE (EDUCATION-SCHOOL LAW, COLLEGES, AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/ARTICLE 78  (AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/STATUTE OF LIMITATIONS (ARTICLE 78, AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))/CONTRACT LAW (EDUCATION-SCHOOL LAW, COLLEGES, AN ARTICLE 78 PROCEEDING IS THE PROPER VEHICLE FOR A STUDENT TO ADDRESS DISMISSAL FROM A PRIVATE COLLEGE, BRINGING A BREACH OF CONTRACT ACTION AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 HAS PASSED WILL NOT WORK (SECOND DEPT))

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MANY STATEMENTS MADE BY A FORMER NEW YORK ATTORNEY GENERAL CONCERNING A FORMER CEO OF AIG DEEMED ACTIONABLE IN THIS DEFAMATION SUIT (SECOND DEPT).

The Second Department, modifying Supreme Court, in a full-fledged opinion by Justice Chambers, determined certain statements made by defendant Eliot Spitzer (former New York Attorney General) concerning Hank Greenberg (former CEO of AIG) supported defamation causes of action. The opinion went through the long list of statements alleged to be defamatory in the complaint in the context of Spitzer’s motions to dismiss. Many, but not all, of the statements were found actionable and the complaint was deemed to have adequately alleged the actionable statements were made with malice:

This appeal presents an opportunity to discuss in some detail the proper application of CPLR 3211(a)(1) and (7) in the context of an action sounding in defamation. * * *

“Since falsity is a necessary element of a defamation cause of action and only facts’ are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action'”… .Thus, “[a]n expression of pure opinion is not actionable, . . . no matter how vituperative or unreasonable it may be” … .

“A pure opinion may take one of two forms. It may be a statement of opinion which is accompanied by a recitation of the facts upon which it is based, or it may be an opinion not accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts” … . Conversely, “an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, is a mixed opinion and is actionable” … .

“Whether a particular statement constitutes an opinion or an objective fact is a question of law” … . “In distinguishing between facts and opinion, the factors the court must consider are (1) whether the specific language has a precise meaning that is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether the context in which the statement appears signals to readers [or listeners] that the statement is likely to be opinion, not fact” … . “The essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were spoken or written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion” … . Greenberg v Spitzer, 2017 NY Slip Op 06432, Second Dept 9-13-17

 

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QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a question of fact was raised whether plaintiff bank was aware defendants observed Saturday as a holy day, thereby invalidating nail and mail service on Saturday in this foreclosure action:

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General Business Law § 13 provides: “Whoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which such person is a party to be adjourned to that day for trial, is guilty of a misdemeanor.”

The defendants contend that the plaintiff’s counsel was aware that they are observant, Orthodox Jewish persons who adhere to the Sabbath, and thus, the Saturday affixation of process to the door of their residence was invalid. This appears to be an issue of first impression for this Court. We agree with the other courts that have addressed the issue, which have consistently held, for more than a century, that service in violation of General Business Law § 13, or its predecessor statute, is void, and personal jurisdiction is not obtained over the party served … . Moreover, we hold that the statute applies not only to personal service upon a defendant, but also to the affixation portion of “nail and mail” service pursuant to CPLR 308(4) on the door of a defendant’s residence, as occurred here … . JPMorgan Chase Bank, N.A. v Lilker, 2017 NY Slip Op 06434, Second Dept 9-13-17

 

CIVIL PROCEDURE (NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))/NAIL AND MAIL (GENERAL BUSINESS LAW, NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))/GENERAL BUSINESS LAW  (CIVIL PROCEDURE, NAIL AND MAIL, QUESTION OF FACT IN THIS FORECLOSURE ACTION WHETHER NAIL AND MAIL SERVICE ON A SATURDAY VIOLATED THE GENERAL BUSINESS LAW BECAUSE PLAINTIFF BANK WAS AWARE DEFENDANTS RECOGNIZED SATURDAY AS A HOLY DAY (SECOND DEPT))

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