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Supreme Court Has the Power to Appoint a Temporary Representative to Substitute for a Defendant in a Personal Injury Action

One of the defendants in a personal injury action died.  The plaintiff moved pursuant to CPLR 1015 to have Supreme Court appoint a temporary representative of the estate, and to have the temporary representative substituted for the deceased defendant. The defendants opposed the motion arguing that Surrogate’s Court was the appropriate forum for the appointment of a temporary administrator. In finding that Supreme Court could make the appointment, the Second Department wrote:

“In most instances the personal representative of the decedent’s estate should be substituted in the action” …. However, in the event no such representative exists, an appropriate appointment should be made and that individual should be substituted in place of the decedent … . “In determining who shall be substituted for the decedent, conflict of interest questions may be raised” … .

The Second Department, however, determined that the person Supreme Court appointed, the attorney for the insurance company defending the action, had a conflict of interest because the insurance company had disclaimed coverage for the subject accident.  The matter was remitted for the appointment of a different temporary administrator.  Dieye v Royal Blue Services, Inc., 2012 NY Slip Op 01527, 2012-03428, Index No 3392/09, 2nd Dept. 3-13-13

 

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“Aid of the Court No Longer Required” in Neglect Proceeding

The grandmother and mother of a seven-month-old were found to have neglected the child by briefly leaving the child unattended in the kitchen sink with the water running when the hot water “spiked” causing burns.  The mother and grandmother moved to dismiss the petition pursuant to Family Court Act 1051 (c) on the ground aid of the court was not required.  The Second Department noted that the facts were sufficient to sustain the petition, but determined the petition should be dismissed because the aid of the court was not required.  Following the incident the mother completed all the programs required by children’s services, the grandmother attended parenting classes with the mother voluntarily, the child was returned to the mother 18 months before the hearing, home visits confirmed the child was not left unattended and was bathed properly, and the hot water “spikes” had been eliminated. The Second Department wrote:  “The foregoing demonstrates that the incident on which the petition was based was an isolated one, that the mother and grandmother have been rehabilitated, and that the child is no longer at risk of being neglected …”.  Matter of Kayden H., 2013 NY Slip Op 01549, 2011-09702, 2011-09704, Docket No N-22472-09, 2nd Dept. 3-13-13

 

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Lack of Standing Argument Waived

In this foreclosure action, the Third Department determined failure to raise plaintiff’s lack of standing in either the answer or the pre-answer motion to dismiss the complaint constituted a waiver of the defendant’s standing argument.  HSBC Bank USA v Ashley, 513730, Third Dept. 3-7-13

 

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Herniated Disc not “Serious Injury”—Insufficient Proof of Physical Limitations.

The Second Department reversed the trial court’s denial of a motion pursuant to CPLR 4404 to set aside the jury verdict.  The issue was whether the plaintiff had proven he sustained “serious injury” within the meaning of Insurance Law 5102(d).  The plaintiff had a bulging or herniated disk but did not provide objective proof of the extent or degree of the alleged physical limitations caused by the disc injury. In describing the criteria for analysis, the Court wrote:  “ ‘A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial…’ “.  Bacon v Bostany, 2011-08654, 2012-07634, Index No 997/08, Second Dept. 3-6-13

 

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Law Office Failure Justified Vacation of Default Judgment

The Second Department found the evidence in the motion to vacate a default was sufficient: “Here, the moving defendants’ claim of law office failure was supported by a ‘detailed and credible’ explanation of the default.  Moreover, the moving defendants demonstrated the existence of a potentially meritorious opposition to plaintiff’s motion. Accordingly, the Supreme Court providently exercised its discretion in vacating their default in opposing the plaintiff’s motion for summary judgment.”  Properties, LLC v McDonald, LLC, et al, 2011-11434, 2012-04529, Index No 14525/09, 2nd Dept. 3-6-13

 

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Service Upon Employee Did Not Confer Personal Jurisdiction Over Corporation

The Second Department held that service upon an employee who was not an officer, director, managing agent, cashier, or an agent authorized to accept service, did not confer jurisdiction over a corporation, and the motion to dismiss for lack of personal jurisdiction should have been granted.  Fernandez v Town of Babylon …, Omni Recycling of Babylon, Inc., 2012-05513, Index No 4102/01, 2nd Dept. 3-6-13

 

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State Equal Access to Justice Act 

In a full-fledged opinion by Justice Mazzarelli, the First Department interpreted the State Equal Access to Justice Act to allow the award of attorney’s fees under the “catalyst theory.” The petitioner had brought an Article 78 proceeding to compel the City to reinstate public assistance benefits after the Office of Temporary and Disability Assistance had ordered the City to do so. Two weeks after the Article 78 proceeding was started, the City complied with the order and reinstated the benefits.  The First Department determined the Article 78 proceeding was the “catalyst” for the City’s reinstatement of the benefits and, under the State Equal Access to Justice Act, the petitioner was entitled to attorney’s fees.  In re Luz Solla v Berlin, et al, 7847 & 401178/11, 2259, 1st Dept. 3-5-13

 

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CPLR 7511 Review of Compulsory Arbitration Under the Education Law

The First Department explained and applied the principles of a CPLR 7511 review of a hearing officer’s determination after compulsory arbitration pursuant to the Education Law. The case concerned allegations of inappropriate touching of students by a tenured school librarian.  In affirming the hearing officer’s findings and penalty, the Court noted that “ ‘ where the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration’ … . [T]he determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78’ …”.  In re Ash v New York City Board/Dept of Education, 8655, 108528/10 1st Dept. 3-5-13

 

 

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Order Not Appealable, Did Not Affect Substantial Right.

No appeal as of right lies from an order for an in camera inspection of documents (to address a discovery request) where the inspection had not yet been conducted.  “Inasmuch as the order does not affect a substantial right of plaintiff, no appeal as of right lies therefrom…”.  In addition, the Third Department determined that the facts alleged would not support an application for permission to appeal.  Soloman vs Meyer. 515208 Third Dept. 2-21-13

 

Failure to Serve In Manner Stated in Order to Show Cause Is a Jurisdictional Defect.

“The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with …”.  US Bank National Association vs Feliciano, 2012-0553, Index No. 3540/09 Second Dept. 2-20-13

 

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