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Due Diligence Requirements for Nail and Mail Service Do Not Apply Under the New York City Charter, One Attempt at Personal Service and Use of Nail and Mail Method for a Notice of Violation (by the NYC Department of Buildings) Sufficient

The First Department determined that, although the New York City Charter refers to CPLR article 3, the “due diligence” requirements for “nail and mail” service in article 3 do not apply to service of a notice of violation (NOV) by the Department of Buildings (DOB). Therefore, one attempt at personal service followed by use of the “nail and mail” method was sufficient service:

The reference to CPLR article 3 in the City Charter’s affix and mail provision merely prescribes the class of individuals whom respondents must try to personally serve, and does not import the “due diligence” requirement of CPLR article 3 … . This interpretation of the City Charter is supported by the statutory language as a whole, and by the legislative history showing a legislative intent to make service under section 1049-a(d)(2) of the City Charter less onerous than service under CPLR article 3 (see id.; see also Governor’s Mem approving L 1979, ch 623, 1979 McKinney’s Session Laws of NY at 1816-1817). Matter of Mestecky v City of New York, 2015 NY Slip Op 08077, 1st Dept 11-5-15

 

Late Motion to Amend Answer Should Have Been Granted, No Prejudice

The Second Department determined Supreme Court should have granted plaintiff’s motion to amend the answer by adding an affirmative defense. The court noted that, absent prejudice, mere lateness is not a sufficient ground for denial of the motion:

Permission to amend a pleading should be “freely given” (CPLR 3025[b]…). Leave to amend an answer to assert an affirmative defense should generally be granted where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that it would prejudice or surprise the opposing party … . Here, the defendant sufficiently alleged that the driver of his vehicle did not have his permission or consent to operate his vehicle at the time of the subject accident … . The proposed affirmative defense set forth allegations based on factual matters that are not palpably insufficient or patently devoid of merit … .

Furthermore, mere lateness is not a basis for denying an amendment unless the lateness is coupled with ” significant prejudice to the other side'” … . Although the defendant waited over 1 ½ years before moving for leave to amend the answer, there was no showing that the plaintiff would be significantly prejudiced, as discovery was ongoing … . Jeboda v Danza, 2015 NY Slip Op 07951, 2nd Dept 11-4-15

 

Defendant Who Was Not Served Because Current Address Not on File with Secretary of State Entitled to Vacate Default Judgment Pursuant to CPLR 317

The Second Department determined defendant’s motion to vacate a default judgment should have been granted pursuant to CPLR 317, even though that ground was not raised below. Apparently defendant did not keep a current address on file with the Secretary of State. Therefore, although the Secretary of State was served, defendant did not receive notice of the suit in time to defend:

… [A]lthough the defendant did not cite CPLR 317 in support of its motion, this Court may, under the circumstances presented here, consider CPLR 317 as a basis for vacating the default (see CPLR 2001…). CPLR 317 permits a defendant who has been “served with a summons other than by personal delivery” to defend the action upon a finding by the court that the defendant “did not personally receive notice of the summons in time to defend and has a meritorious defense” (CPLR 317…). Here, there was no evidence that the defendant or its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend this action … . Proof that additional copies of the summons and complaint were delivered to an employee of the tenant occupying premises owned by the defendant was insufficient to establish that the defendant received notice of the summons and complaint … . Furthermore, there is no basis in the record to conclude that the defendant deliberately attempted to avoid service, especially since the plaintiff had knowledge of the defendant’s actual business address … . Moreover, the defendant met its burden of demonstrating the existence of a potentially meritorious defense … . Schacker Real Estate Corp. v 553 Burnside Ave., LLC, 2015 NY Slip Op 07963, 2nd Dept 11-4-15

 

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Past Recollection Recorded and Hearsay Inadmissible at Trial Properly Considered in Opposition to Defendant’s Summary Judgment Motion

The Third Department determined a statement made by defendant’s employee [Mackey] near the time of plaintiff’s slip and fall was admissible as past recollection recorded and was properly considered in opposition to defendant’s summary judgment motion. In addition, hearsay which would not be admissible at trial was sufficiently corroborated to be considered in opposition to defendant’s motion for summary judgment. Defendant’s motion was properly denied:

… “[T]he requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his [or her] knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information” … . Here, Mackey testified that, beyond being upset that her cousin was hurt, she was unable to remember the particulars of the event, but she did recall filling out and signing a document recording her memories at the time. In this document, Mackey averred that she watched plaintiff fall by the Coinstar machine in an area that had been checked by the front-end maintenance crew approximately one hour prior to the incident. In the blank space next to the words “Condition at the time of last check prior to accident:” Mackey wrote, “ice machine is always leaking.” Mackey recalled completing this document within days of the incident and explained that the form did not help to refresh her recollection of the events. On this basis, we agree with Supreme Court’s ruling that Mackey’s written statement was admissible as a past recollection recorded and, as such, properly considered in the context of defendant’s motion for summary judgment …

Further, in keeping with the principles that, “[t]o grant summary judgment, it must clearly appear that no material and triable issue of fact is presented” … and such motion should be denied if there is any doubt as to the existence of such issues …, we likewise find no error in Supreme Court’s consideration of Mackey’s oral statement, notwithstanding its likely inadmissibility at trial. With that said, however, we acknowledge that, although “hearsay evidence that is inadmissible at trial may be sufficient to defeat a motion for summary judgment, there must be some additional competent evidence to support the motion or an excuse for the failure to present proof in admissible form” … . Zupan v Price Chopper Operating Co., Inc., 2015 NY Slip Op 07893, 3rd Dept 10-29-15

 

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Out-of-Possession Landlord and Lessee Are Not “United In Interest” Such that the Lessee Could Be Added to the Complaint After the Statute of Limitations Had Run (Relation-Back Doctrine)

The Third Department determined Supreme Court, in a snow-ice slip and fall case, properly denied plaintiff’s motion to amend the complaint, after the statute of limitations had run, to add the lessee of the property (Albany Medical Center Hospital [AMCH]) as a defendant. The defendant out-of-possession landlord demonstrated, under the terms of the lease, AMCH had the responsibility for maintaining the property in a safe condition. Because the out-of-possession landlord and AMCH were not “united in interest,” the relation-back doctrine did not apply:

… [T]he relation back doctrine permits a plaintiff to amend the complaint to add a defendant even though the statute of limitations had expired at the time of amendment so long as three requirements are met: “(1) both claims must arise out of the same occurrence, (2) [the] defendant and [the new party] were united in interest, and by reason of that relationship can be charged with notice of the institution of the action such that it will not be prejudiced in maintaining a defense on the merits, and (3) [the new party] knew or should have known that, but for a mistake by [the] plaintiff as to the identity of the proper party, the action would have been brought against it as well ” … . While there is no dispute that the first prong of this test is satisfied under these circumstances, we agree with Supreme Court that defendant and AMCH do not share unity of interest inasmuch as they cannot be said to “stand or fall together” … . “Indeed, unless the original defendant and new party are vicariously liable for the acts of the other[,] there is no unity of interest between them” … . McLaughlin v 22 New Scotland Ave., LLC, 2015 NY Slip Op 07883, 3rd Dept 10-29-15

 

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Cause of Action Based Upon a Dispute About the Correct Rent-Increase Computation Accrues on the First Use of the Disputed Computational Methodology

The First Department determined a lawsuit stemming from a dispute about the proper rent computation in an ambiguous contract was time-barred. The lawsuit was started in 2009. However, the rent computation problem was apparent in 1999. That is when the statute of limitations started running and it does not start anew every year the problem persisted:

In Goldman Copeland [260 AD2d 370], this Court squarely held that a claim for breach of contract based on an allegedly erroneous computation of rent accrues upon the first use of that computational methodology, and the statute of limitations does not begin to run anew each time the same formula is used. * * *

Goldman Copeland is a precedent of this Court, and we adhere to it as a matter of stare decisis. Its holding applies to this case, as Tenant consistently paid, and Landlord accepted, rent based on two successive 50-cents-per-square-foot escalations from 1999 through 2009, when this action was commenced. Further, when the first rent escalation went into effect in late 1999, Landlord could have determined, through the use of simple arithmetic, that the lease’s rent illustrations for the initial 25-year term were not based on 10% increases. When Landlord subsequently discovered in 2001 that it had not been billing rent based on a 10% escalation since 1999, the discovery was not based on any information that Landlord had not possessed in 1999. K-Bay Plaza, LLC v Kmart Corp., 2015 NY Slip Op 07905, 1st Dept 10-29-15

 

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Affidavits and Text Messages Do Not Constitute “Documentary Evidence” In the Context of a Motion to Dismiss Pursuant to CPLR 3211(a)(1)

The Second Department determined defendant’s motion to dismiss the breach of contract complaint should have been denied. The affidavits and text messages submitted in support of the motion did not constitute “documentary evidence” upon which a motion to dismiss may be based. The court defined “documentary evidence” in this context:

In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as “documentary evidence,” it must be “unambiguous, authentic, and undeniable” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable,’ would qualify as documentary evidence’ in the proper case” … . However, “[n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” … .

Here, the affidavits and text messages relied upon by the Supreme Court in concluding that the plaintiff failed to comply with the alleged condition precedent were not ” essentially undeniable,'” and did not constitute documentary evidence … . Eisner v Cusumano Constr., Inc., 2015 NY Slip Op 07812, 2nd Dept 10-28-15

 

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Criteria for Amending a Complaint to Replace “John Does” with Named Defendants Explained

Plaintiff alleged he was injured when tackled by police officers. The officers were named in the complaint as “john does.” After the statute of limitations had run, plaintiff sought to amend the complaint to name the officers involved. The Second Department determined the motion was properly denied because plaintiff did not exercise due diligence in discovering the officers’ names:

In order to employ the procedural “Jane Doe” or “John Doe” mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired … . “[W]hen an originally-named defendant and an unknown Jane Doe’ [or John Doe’] party are united in interest, i.e. employer and employee, the later-identified party may, in some instances, be added to the suit after the statute of limitations has expired pursuant to the relation-back’ doctrine of CPLR 203(f), based upon postlimitations disclosure of the unknown party’s identity” … . The moving party seeking to apply the relation-back doctrine to a later-identified “Jane Doe” or “John Doe” defendant has the burden, inter alia, of establishing that diligent efforts were made to ascertain the unknown party’s identity prior to the expiration of the statute of limitations … .

Here, the plaintiffs failed to establish that they exercised due diligence to discover the identity of the John Doe defendants prior to the expiration of the statute of limitations. There is no indication in the record that the plaintiffs engaged in any pre-action disclosure or made any Freedom of Information Law requests … . Moreover, there is no indication that the plaintiffs sought assistance from either the Criminal Court or the Supreme Court to learn the identities of the individual officers before the statute of limitations had run … . Although the plaintiffs maintain that, due to a pending investigation by the NYPD’s Internal Affairs Bureau, they did not learn the identities of the subject officers until the injured plaintiff’s criminal trial, the plaintiffs’ submissions failed to show that they diligently sought to gain access to the records contained in the file for the criminal proceeding prior to the expiration of the statute of limitations. Holmes v City of New York, 2015 NY Slip Op 07819, 2nd Dept 10-28-15

 

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Statute of Limitations for Breach of Fiduciary Duty Tolled Until Fiduciary’s Roles Terminated

In an action against a fiduciary stemming from the distribution of an estate, Supreme Court determined the six-year statute of limitations applied to the breach of fiduciary duty cause of action and precluded any evidence from prior to 2007.  The Third Department agreed that the six-year statute was the correct one, but held that the statute never started running because the fiduciary’s roles were never terminated. Therefore pre-2007 evidence was not precluded:

Although “New York law does not provide a single statute of limitations for breach of fiduciary duty claims [and] the choice of the applicable limitations period depends on the substantive remedy that the plaintiff seeks” …, the parties do not dispute that a six-year period applies to these two remaining causes of action. However, the statute of limitations for a claim alleging a breach of fiduciary duty is tolled until there has been an open repudiation by the fiduciary or the relationship has otherwise been clearly terminated … .

There is nothing in this record indicating that respondents’ relevant fiduciary roles have terminated. Although many of the actions about which petitioners complain were done openly, petitioners also allege that they were repeatedly assured that such actions were ultimately in their best interests. The amended petition alleges that respondents have not to date repudiated their positions as fiduciaries. That allegation is not denied in this pre-answer motion, which was supported only by an attorney’s affirmation and memorandum of law. Matter of Therm, Inc., 2015 NY Slip Op 07732, 3rd Dept 10-22-15

 

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Patient Held In a Mental Health Facility After the Court Order Authorizing Confinement Had Expired Was Entitled to Habeas Corpus Relief Pursuant to CPLR Article 70

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, reversing the appellate division, determined that a patient, who was held in a mental health facility pursuant to a court order which the facility neglected to extend, was entitled to release pursuant to a CPLR article 70 habeas corpus proceeding. The hospital unsuccessfully argued that the only habeas-corpus relief available to the patient was pursuant to Mental Hygiene Law 33.15 which required an inquiry into the patient’s mental state:

CPLR 7001 provides that article 70 applies to common-law and statutory writs of habeas corpus “[e]xcept as otherwise prescribed by statute” (CPLR 7001). However, nothing in the plain language of Mental Hygiene Law § 33.15 purports to limit the availability of the common-law writ in Mental Hygiene Law proceedings. Rather, section 33.15 enhances the efficacy of the writ of habeas corpus, as our case law dictates, and thereby ensures that patients are not committed and retained without due process of law. That is, Mental Hygiene Law § 33.15 allows patients to seek a writ of habeas corpus when they are being held pursuant to a court order but, nevertheless, believe they have sufficiently recovered from their mental illness so that their continued retention is unwarranted; in such cases, determining the legality of their retention would require an inquiry into their mental state. On the other hand, patients whose detention is otherwise unauthorized may proceed under the habeas corpus provisions of CPLR article 70 since the legality of their detention can be determined on the basis of, for example, whether the appropriate procedures have been followed, without the need for a hearing into their mental state.  People ex rel. DeLia v Munsey, 2015 NY Slip Op 07697, CtApp 10-22-15

 

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