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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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Failure to Plead Res Ipsa Loquitur Does Not Preclude Application of Theory.

“Since the [res ipsa loquitur] doctrine merely permits an inference arising from the evidence in a negligence case, the plaintiff’s failure to plead res ipsa loquitur does not foreclose its application on summary judgment or at trial.”  Wicks vs Leemilt’s Petroleum, Inc., 2011-01891, Index No. 1843/08 Second Dept. 2-20-13

 

Relation Back Doctrine Applied to Causes of Action Otherwise Time-Barred

The Third Department applied the “relation back” doctrine (see CPLR 203(f)) to allow the amendment of a complaint to include causes of action that otherwise would have been time-barred.  US Bank National Association vs Gestetner, et al, 514808 Third Dept. 2-14-13

 

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Workers’ Compensation Board’s Determination of Duration of Disability Given Preclusive Effect in Related Personal Injury Action

“The doctrine of collateral estoppel is applicable to determinations of quasi-judicial administrative agencies such as the” Workers’ Compensation Board with respect to “findings of fact that are necessary for an administrative agency to reach.”  Here the Workers’ Compensation Board’s determination of the duration of the work-related injury was given preclusive effect in a related personal injury action.  Judge Pigott wrote a strong dissent, arguing in part that the finding was necessarily a mixture of fact and law, not subject to the collateral estoppel principle. Auqui v Seven Thirty One Ltd. Partnership, 2013 NY Slip Op 00950 [20 NY3d 1035], CtApp 2-14-13

 

Inconsistent Interrogatory Answers Do Not Support A Judgment.

No judgment can be entered based upon inconsistent interrogatory answers (by the jury) and a general verdict.  The only remedy is for the trial judge to instruct the jury to keep deliberating or order a new trial (CPLR 4111 (c)).  Applebee vs County of Cayuga, 1388, CA 11-02090 Fourth Dept. 2-8-13

 

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