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Complaint Can Not Be Deemed Dismissed in Absence of Final Judgment

In reversing Supreme Court, the Second Department determined a complaint had not been dismissed because no final judgment dismissing the complaint had been entered after an order vacating a default:

…[T]he Supreme Court issued an order granting the defendant’s motion to vacate his default in appearing and answering the complaint on the ground of lack of personal jurisdiction. However, no judgment dismissing the complaint on the ground of lack of personal jurisdiction was entered. The plaintiff subsequently moved to extend her time to serve the defendant with process in the action. …[T]he court denied the plaintiff’s motion on the ground that its prior order had dismissed the action and, thus, there was no pending action in which to grant an extension of time for service of process … . On her appeal from the August 13, 2012, order, the plaintiff contends that, inasmuch as there was no judgment dismissing the action, the action was pending when she moved to extend the time to serve the defendant with process. We agree. An action is deemed pending until there is a final judgment (see CPLR 5011…)… .  Cooke-Garrett v Hoque, 2013 NY Slip Op 05554, 2nd Dept 8-7-13

 

Supreme Court Does Not Have the Power to Dismiss a Complaint for Delay in Prosecution Absent 90-Notice (CPLR 3216)

The Second Department reversed Supreme Court’s dismissal of a complaint based on delay in prosecuting the action because the 90-day demand (CPLR 3216) had not been served on the plaintiff.  The First Department wrote:

CPLR 3216 permits a court to dismiss an action for failure to prosecute only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action. Here, the Supreme Court did not possess the power to dismiss this pre-note of issue action on the ground of a general lack of prosecution since the plaintiff had not received a 90-day demand pursuant to CPLR 3216(b) requiring the plaintiff to serve and file a note of issue … .  Armouth-Levy v New York City, 2013 NY Slip Op 05551, 2nd Dept, 8-7-13

 

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Criteria for Prohibition Explained

In determining that prohibition did not lie to challenge the appointment of a special district attorney to investigate election law issues, the Second Department explained:

” [A]n article 78 proceeding in the nature of prohibition will not lie to correct procedural or substantive errors of law'” (Matter of Soares v Herrick, 20 NY3d 139, 145, quoting Matter of Schumer v Holtzman, 60 NY2d 46, 51). Rather, “the extraordinary remedy of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial capacity without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding of which it has jurisdiction” … . Even where prohibition is an available remedy, it ” is not mandatory, but may issue in the sound discretion of the court'” … . ” In exercising this discretion, various factors are to be considered, such as the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal or at law or in equity and the remedial effectiveness of prohibition if such an adequate remedy does not exist'” … .

Prohibition is an available remedy to void the improper appointment of a Special District Attorney pursuant to County Law § 701 when the Special District Attorney is performing the quasi-judicial act of representing the State in its efforts to bring individuals accused of crimes to justice … . However, it is not an available remedy when the Special District Attorney is performing the purely investigative function of investigating “suspicious circumstances” with a view toward determining whether a crime has been committed, since, in such circumstances, his or her acts are to be regarded as executive in nature … . Here, the WFP failed to establish that Special District Attorney Adler was performing a quasi-judicial act. Accordingly, prohibition does not lie.  Matter of Working Families Party v Fisher, 2013 NY slip Op 05578, 2nd Dept 8-7-13

 

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No Article 78 Review Where Petitioner Defaulted

The Second Department noted that there can be no Article 78 review where the petitioner defaulted in the administrative proceeding.  Only the denial of the request to vacate the default can be reviewed:

“[A] petitioner is not aggrieved by an administrative determination made on his [or her] default and may not seek to review such a determination”… . Although the petitioner is not entitled to CPLR article 78 review of the Review Board’s determination to sustain the charges and revoke its registration, which was made upon its default, the Review Board’s determination to deny its application to vacate the default may be reviewed… .  Matter of Tony’s Towing Serv Inc v Swarts, 2013 NY Slip Op 05577, 2nd Dept 8-7-13

 

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DNA Reports Did Not Violate Right to Confrontation; Reports Admissible as Business Records

In finding DNA-profile reports generated by the City of New York’s Medical Examiner did not violate defendant’s right to confrontation, the Second Department wrote:

The reports contained no conclusions, interpretations, comparisons, or subjective analyses, and “consisted of merely machine-generated graphs” and raw data … . Accordingly, the reports were not “testimonial” in nature … .

Further, a foundation for the admission of these reports as business records was established through the testimony of an assistant director employed by the Office of the Chief Medical Examiner of the City of New York (see CPLR 4518[a]…), who also conducted the actual analysis and interpretation of the data contained in the reports at issue.  People v Fucito, 2013 NY Slip Op 05538, 2nd Dept 7-31-13

 

Absence of Adequate Reason for Errata Sheet (CPLR 3116(a)) Altering Deposition Testimony Precluded Its Acceptance

Plaintiff was injured when he fell while using a ladder at the plumbing business where he worked. The ladder was owned by plaintiff’s employer and the property was owned by an out-of-possession landlord.  During his deposition, plaintiff said he had no idea why the ladder slid out from under him when he attempted to step on a shelf.  In reversing Supreme Court and dismissing the complaint, the Second Department determined plaintiff’s post-deposition errata sheet could not be considered in opposition to the defendant’s motion for summary judgment because plaintiff did not provide an adequate reason for the alteration of his deposition testimony:

In his post-deposition errata sheet, the injured plaintiff radically changed much of his earlier testimony, with the vague explanation that he had been “nervous” during his deposition. CPLR 3116(a) provides that a “deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of reasons given by the witness for making them.” Since the injured plaintiff failed to offer an adequate reason for materially altering the substance of his deposition testimony, the altered testimony could not properly be considered in determining the existence of a triable issue of fact as to whether a defect in, or the inadequacy of, the ladder caused his fall… . In the absence of the proposed alterations, the injured plaintiff’s deposition testimony was insufficient to raise a triable issue of fact with respect to the defectiveness or inadequacy of the ladder so as to warrant the denial of summary judgment. Likewise, in opposition to the defendants’ prima facie showing that the trust was an out-of-possession landlord with no duty to repair or maintain the ladder or the floor, the plaintiffs failed to raise a triable issue of fact. Ashford v Tannenhauser, 2013 NY Slip Op 05508, 2nd Dept 7-31-13

 

Absence of 90-Day Demand to Serve a Note of Issue Precluded Dismissal of Lawsuit Based on Gross Laches (12-Year Delay)

In a full-fledged opinion by Justice Chambers, the Second Department determined that the doctrine of laches was not available to dismiss a pre-note-of-issue case which had been dormant for 12 years.  In this slip and fall case, the incident occurred in 1992, issue was joined, plaintiffs served a bill of particulars, but plaintiffs failed to appear at a June 1996 status conference. The action was “marked off” the calendar and later marked “disposed.”  In October, 2008, the plaintiffs moved restore the action to the active pre-note-of-issue calendar. Supreme Court denied the motion to dismiss based on laches “concluding that it lacked the power to dismiss the … complaint.”  The Second Department affirmed, explaining:

At the outset, we note that we summarized the law applicable to the issue in this case in Lopez v Imperial Delivery Serv. (282 AD2d 190), where we explained the interplay among three case management devices: CPLR 3404, 22 NYCRR 202.27, and CPLR 3216. In Lopez, we made clear that none of these devices applies to a pre-note-of-issue case where, as here, there has been no order dismissing the complaint pursuant to 22 NYCRR 202.27, and the defendant has never made a 90-day written demand on the plaintiff to serve and file a note of issue pursuant to CPLR 3216… . In this case, the [defendant] attempts to avoid the holding in Lopez by relying on the doctrine of laches as the basis for dismissing the complaint. * * *

…[T]he Court of Appeals concluded in Airmont Homes that dismissal for either gross laches or failure to prosecute was not available in the absence of compliance with CPLR 3216 (see Airmont Homes v Town of Ramapo, 69 NY2d at 902). To allow dismissal under the circumstances of this case based on the doctrine of laches would be tantamount to permitting dismissal for general delay, which the courts lack inherent authority to do, and which is inconsistent with the legislative intent underlying CPLR 3216 [which requires a 90-day demand to serve and file a note of issue]. …

Although an extensive delay in prosecuting an action may, at times, prejudice a defendant’s ability to defend against a suit, a defendant has the statutory means of avoiding such prejudicial delay by serving a 90-day demand … . Laches, which is an equitable doctrine, does not provide an alternate route to dismissal where a defendant has not served the 90-day demand statutorily required to prompt resumption of the litigation … .  Arroyo v Board of Educ of City of NY, 2013 NY Slip Op 05507, 2nd Dept 7-31-13

 

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Verdict Set Aside as Irreconcilably Inconsistent (Jury Found Defective Sidewalk Was Not Proximate Cause of Plaintiff’s Fall)

The Second Department, over a dissent, set aside a verdict in a slip and fall case which found that the defendant’s (City of New York’s) negligence was not the proximate cause of the fall.  Plaintiff fell on a portion of sidewalk which “was all patched” and which had “a hole in it.”  The court explained:

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors … . Where a jury verdict with respect to negligence and proximate causation is irreconcilably inconsistent, that verdict must be set aside as contrary to the weight of the evidence … .

Contrary to the contention of the defendant City of New York, the plaintiff sufficiently identified the sidewalk defect which allegedly caused her fall … . Under the circumstances of this case, for the jury to find the City negligent for failing to repair a sidewalk defect while on notice of its existence, yet to find that this negligence was not a proximate cause of the plaintiff’s injuries, was contrary to the weight of the evidence and irreconcilably inconsistent… .  Wallace v City of New York, 2013 NY Slip Op 05523, 2nd Dept 7-31-13

 

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Method of Service of Citation Should Be Calculated to Provide Notice Based Upon Facts Known To Court

The Second Department determined a decree (admitting decedent’s will to probate) issued by Surrogate’s Court should have been vacated on the ground that decedent’s daughter (Ross) was never properly served with the citation and, therefore, the court never obtained personal jurisdiction over her.  The Second Department explained that Surrogate Court should have fashioned a method of service, based upon the unique facts of the case known to the court, that was best calculated to notify Ross:

An elementary and fundamental requirement of due process in any proceeding which is accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”… . In making a determination as to whether notice is “reasonably calculated,” the unique information about an intended recipient must be considered, “regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case” … . Here, given that the Surrogate’s Court was aware that Ross and her family would be away from her home in Sloatsburg until sometime in late September 2008, and was vacationing in Long Beach Island during that time, and given that there was no indication that Ross’s address in Long Beach Island was unavailable, in order for notice of the probate proceeding to be reasonably calculated to reach Ross, the Surrogate’s Court should have at least directed that the supplemental citation be mailed to Ross’s address in Long Beach Island, instead of solely directing that the supplemental citation be mailed to Ross’s address in Sloatsburg.  Matter of Skolnick, 2013 NY Slip Op 05463, 2nd Dept 7-24-13

 

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Mother Did Not Stipulate to Order of Reference; Therefore Referee Only Had Power to Hear and Report

The Second Department determined mother did not stipulate to the order of reference (referring the custody and visitation proceeding to a referee) in the manner required by CPLR 2104.  Therefore, although the order of reference authorized the referee to “hear and determine the parties’ rights to custody … and visitation…,” absent the parties’ consent to the reference, the referee only had the power to hear and report.

…[T]he mother did not consent to the reference merely by participating in the proceeding without expressing her desire to have the matter tried before a judge… .

Accordingly, the Court Attorney Referee had no jurisdiction to determine, but only to hear and report, with respect to the parties’ respective petition and cross petition regarding custody and visitation…. Thus, the Court Attorney Referee’s decision … must be deemed a report (see CPLR 4320[b]), and the matter must be remitted for further proceedings pursuant to CPLR 4403 before a judge of the Family Court.  Matter of McClarin v Valera, 2013 NY Slip Op 05461, 2nd Dept 7-24-13

 

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