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DEFENDANT IN THIS MED MAL CASE WAS NOT PROPERLY SERVED AND PLAINTIFF WAS NOT ENTITLED TO AN EXTENSION OF THE TIME TO SERVE IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant in this medical malpractice case was entitled to dismissal of all claims because he was not properly served:

Defendant Michael B. Shannon, M.D. contends that this action should have been dismissed as against him for lack of timely service under CPLR 306-b … . It is undisputed on appeal that plaintiff failed to properly serve Shannon within 120 days of commencement of this action. Plaintiff does not purport to have demonstrated good cause for the delay. We find that an extension of time to serve Shannon was not warranted in the interest of justice.

Shannon’s unrebutted affidavit reflects that service was attempted at an office where he worked only as an independent contractor and that his residence and principal place of business were in Ohio. Plaintiff failed to make any effort to investigate further or to correct this error when Shannon failed to appear or answer. She did not file her default motion until nearly two years after commencing this action, which is well over the one-year deadline to make such a motion (see CPLR 3215[c]). The motion was also filed after discovery and motion practice were well underway. Diaz v Nasir, 2024 NY Slip Op 03536, First Dept 6-27-24

Practice Point: Plaintiff did not exercise due diligence in attempting to serve defendant and did not make a timely motion to extend the time to serve, complaint dismissed.

 

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IN THIS TRAFFIC ACCIDENT CASE, THE COURT DID NOT HAVE JURISDICTION TO HEAR A MOTION TO DISMISS BROUGHT ON BEHALF OF THE DECEASED DEFENDANT BY DECEDENT’S FORMER ATTORNEYS WHO HAD NOT BEEN SUBSTITUTED FOR THE DECEDENT; PLAINTIFF’S MOTION TO HAVE DECEDENT’S DAUGHTER SUBSITITUTED AS A REPRESENTATIVE FOR THE DECEDENT REQUIRED NOTICE TO ALL PERSONS INTERESTED IN DECEDENT’S ESTATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the death of the defendant in this traffic accident case divested the court of jurisdiction and the motion to dismiss by the decedent’s former attorneys, who had not been substituted for the decedent, should not have been considered by the court. The Appellate Division also noted that plaintiff’s motion to substitute decedent’s daughter as a representative for the decedent required notice to all persons interested in decedent’s estate:

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a). Moreover, any determination rendered without such substitution will generally be deemed a nullity” .. . “The death of a party terminates his or her attorney’s authority to act on behalf of the deceased party” … . Although the determination of a motion pursuant to CPLR 1021 made by the successors or representatives of a party or by any party is an exception to a court’s lack of jurisdiction, here, the motion, inter alia, pursuant to CPLR 1021 to dismiss the complaint was made by the former attorneys for the decedent purportedly on behalf of the decedent. Since the former attorneys lacked the authority to act, the Supreme Court lacked jurisdiction to consider the motion … . Accordingly, so much of the order as granted the motion purportedly made on behalf of the decedent is a nullity.

Further, any motion pursuant to CPLR 1021 requires that notice be provided to persons interested in the decedent’s estate … . Here, the plaintiff failed to provide notice to persons interested in the decedent’s estate. Accordingly, the Supreme Court should have denied the plaintiff’s cross-motion with leave to renew upon service on persons interested in the decedent’s estate. Fazilov v Acosta, 2024 NY Slip Op 03470, Second Deppt 6-26-24

Practice Point: Here the defendant in a traffic accident case died. The decedent’s former attorneys did not have the authority to make a motion to dismiss and the court should not have considered it.​

Practice Point: Here plaintiff’s motion to have decedent’s daughter substituted for decedent required notice all persons interested in decedent’s estate.

 

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PLAINTIFF’S FAILURE TO MEET THE COURT’S FILING DEADLINE WAS NOT A SUFFICIENT REASON FOR SUA SPONTE DISMISSAL OF THE COMPLAINT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this foreclosure case did not have sufficient cause to dismiss the complaint sua sponte (another reminder that sua sponte dismissals of complaints rarely survive appeal);

“‘A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal'” … . “[A] court may not sua sponte dismiss a complaint for failure to move for a judgment of foreclosure and sale by an arbitrary date set by the court” … . “To obtain appellate review of an order or portion of an order issued sua sponte, a party may move to vacate the order or portion of the order and appeal as of right to the Appellate Division if that motion to vacate is denied” … .

Here, the Supreme Court erred in denying the plaintiff’s motion to vacate the … order and to restore the action to the court’s active calendar, as the plaintiff’s failure to comply with the directive to file an application for a judgment of foreclosure and sale by July 26, 2017, was not a sufficient ground upon which to sua sponte direct dismissal of the complaint … . James B. Nutter & Co. v Heirs & distributees of the estate of Rose Middleton, 2024 NY Slip Op 03472, Second Dept 6-26-24

Practice Point; Failure to meet a filing deadline set by the court was not an adequate reason for the judge’s sua sponte dismissal of the foreclosure complaint.

 

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IN MOVING TO VACATE A MORE THAN $2 MILLION DEFAULT JUDGMENT IN THIS MED MAL CASE, DEFENDANT DOCTOR RAISED A QUESTION OF FACT WHETHER SHE WAS EVER SERVED WITH PROCESS; A HEARING IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing was required to determine whether defendant was properly served in this medical malpractice action. Defendant doctor never appeared and a default judgment of over $2 million had been entered:

In order to warrant a hearing to determine the validity of service of process, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit of service … .

Here, the affidavit of service constituted prima facie evidence of proper service. In moving … to vacate the judgment, the defendant did not merely make a conclusory denial of service, but provided specific, detailed facts that contradicted the affidavit of service. The defendant denied having an employee who had the same name or matched the physical description as the individual allegedly served, “Pearl Unan.” … [T]he defendant stated that at the time of the alleged service his office was closed and there was no one at his reception desk. The defendant’s sworn, nonconclusory denial of service was sufficient to dispute the veracity or contents of the affidavit, requiring a hearing … . … [T]he affidavits of Alexis Malone and Scott Sachs, who were employed by the defendant, also provided specific and detailed facts that contradicted the affidavit of service. Harrison v Schottenstein, 2024 NY Slip Op 03418, Second Dept 6-20-24

Practice Point: Although a process server’s affidavit is prima facie evidence of proper service, a sworn, nonconclusory, fact-based denial of service by the defendant requires a hearing. If defendant is never served, the court never had jurisdiction.

 

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THE NYC DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT TOOK THE “HARD LOOK” REQUIRED BY THE STATE ENVIRONMENTAL QUALITY REVIEW ACT BEFORE APPROVING THE CONSTRUCTION OF SENIOR HOUSING ON GREEN SPACE (CT APP). ​

The Court of Appeals, over an extensive dissenting opinion, determined the NYC Department of Housing Preservation and Development (HPD) took the “hard look” required under the State Environmental Quality Review Act (SEQRA) before approving the construction of a seven-story senior housing unit on land previously used by a tenant as a green space/sculpture garden which was open to the public:

This CPLR article 78 proceeding challenges a negative declaration issued by respondent New York City Department of Housing Preservation and Development (HPD) relating to development of affordable housing on a lot in the Nolita neighborhood of Manhattan. The property is owned by the City of New York and leased on a month-to-month basis since 1991 to a corporation owned by the late petitioner Allan Reiver … . Beginning in 2005, Reiver used the lot as a green space/sculpture garden accessible through his adjacent art gallery. After the City identified the lot as a potential site for affordable senior housing in 2013, Reiver opened the space to the public directly through a gate on Elizabeth Street. The garden is currently open for a limited number of hours per week and is operated and maintained by volunteers.

* * * The Court’s role is not “to weigh the desirability of any action or choose among alternatives,” but to ensure that “agencies will honor their mandate regarding environmental protection by complying strictly with prescribed procedures and giving reasoned consideration to all pertinent issues revealed in the process” … . In other words, “[w]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency” … .

Here, HPD identified appropriate areas of concern, took the necessary “hard look,” and rationally determined that the project would not have a significant adverse impact on the environment. Matter of Elizabeth St. Garden, Inc. v City of New York, 2024 NY Slip Op 03321, Ct App 6-18-24

Practice Point: A court’s role under SEQRA is limited to determining whether the agency took a “hard look” at the adverse environmental effects of a construction project before approving it.

 

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WHEN SERVICE OF PROCESS IS MAILED TO A BUSINESS ADDRESS, AS OPPOSED TO A RESIDENTIAL ADDRESS, THE ENVELOPE SHOULD NOT INDICATE THE CONTENTS ARE LITIGATION-RELATED; HERE THE DEFENDANT’S ADDRESS WAS BOTH HIS RESIDENTIAL AND HIS BUSINESS ADDRESS AND THE ENVELOPE INDICATED THE CONTENTS WERE LITIGATION-RELATED; THE RESIDENTIAL MAILING RULES APPLIED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, determined CPLR 308(2) was not violated by mailing the foreclosure summons and complaint to defendant in an envelope which indicated the contents were litigation-related. Although the address to which the documents were mailed was defendant’s business address, it also served has his residential address. The envelope-restrictions only apply to a mailing to a business address. In a matter of first impression, the First Department held the residential-address mailing-rules, not the business-address mailing restrictions, applied and CPLR 308(2) was not violated:

Defendant’s argument that where a dual purpose exists the business mailing restrictions prohibiting litigation-related markings on the envelope take precedence over the residential mailing conditions is untenable. This position would improperly render meaningless one provision in favor of the other for no apparent reason other than to benefit one side over the other … . … [A] close reading of CPLR 308(2)’s mailing requirements reveals an alternative construction that would resolve this interesting dilemma … . The placement of the phrase “last known residence” before the phrase “actual place of business” signals the Legislature’s clear intent to deem mailing to a defendant’s residence to be primary over a place of business. Indeed, the legislative history for the 1987 amendment to CPLR 308(2) strongly supports this reasoning … . The amendment providing for mailing to a place of business was to ameliorate the inability to locate a defendant’s residence. Thus, mailing to a residential address is primary over a mailing to a place of business, an option that was intended to be secondary in effectuating service of process. Based on the foregoing, where a defendant’s address is both residential and a place of business, the address may be deemed as a residential one in the affidavit of service, permitting a mailing in accordance with CPLR 308(2)’s residential mailing requirements. Under these circumstances, the mailing … did not violate CPLR 308(2)’s mailing requirements…. . AMK Capital Corp. v Plotch, 2024 NY Slip Op 03324, First Dept 6-18-24

Practice Point: Where a defendant’s mailing address is both a business address and a residential address, the CPLR 308(2) “business address” rule, i.e., the envelope must not indicate the contents are litigation-related, does not apply.

 

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ALL OF THE PROPERTY OWNERS POTENTIALLY AFFECTED BY THE DECLARATION OF RIGHTS TO A RECREATIONAL EASEMENT ARE NECESSARY PARTIES BUT NOT ALL WERE INCLUDED AS PLAINTIFFS; ALTHOUGH THE JUDGMENT WAS REVERSED, THE ACTION MAY BE RECOMMENCED WITH ALL THE PROPER PARTIES (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined all the necessary parties were not included in this suit seeking a declaration of the rights of property owners with respect to a recreational easement:

CPLR 1001 (a) provides, in relevant part, that all “[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants.” It is well established that “[t]he absence of a necessary party may be raised at any stage of the proceedings, by any party or by the court on its own motion” … . In an action seeking to determine the extent of a recreational easement, the owners of all parcels of land burdened or benefitted by the easement are necessary parties because there is a potential that their real property rights will be affected by the outcome of the litigation … . Inasmuch as owners of real property who are not currently named as parties may be affected by the outcome of litigation concerning the subject parcel, we reverse the judgment and dismiss the complaint without prejudice (see CPLR 1003). Plaintiffs are thus “not precluded from recommencing the action in the proper manner naming all necessary parties” … . Follett v Dumond, 2024 NY Slip Op 03272, Fourth Dept 6-4-24

Practice Point: All property owners who may be affected by a declaration of rights to a recreational easement are necessary parties.

 

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PLAINTIFF MOVED TO AMEND THE COMPLAINT AFTER THE NOTE OF ISSUE AND CERTIFICATE OF READINESS HAD BEEN FILED; EVEN THOUGH THE AMENDMENT ADDED A CAUSE OF ACTION REQUIRING FURTHER DISCOVERY, THE MOTION WAS GRANTED BECAUSE DEFENDANT DID NOT DEMONSTRATE PREJUDICE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff should be allowed to amend the complaint, even though the note of issue and certificate of readiness had been filed. Defendant was unable to show any prejudice from the proposed amendment. The case was brought as a slip and fall which had been dismissed because plaintiff’s decedent did not identify the cause of the fall. Plaintiff sought to add a cause of action for negligent discharge from the hospital where the slip and fall occurred, which sounds in medical malpractice:

While “[i]t is well settled that [l]eave to amend the pleadings shall be freely given absent prejudice or surprise resulting directly from the delay” … , that policy does not apply “on the eve of trial,” and once a case has been certified ready for trial “there is a heavy burden on [a] plaintiff to show extraordinary circumstances to justify amendment by submitting affidavits which set forth the recent change of circumstances justifying the amendment and otherwise giving an adequate explanation for the delay” … . Inasmuch as plaintiff failed to offer any explanation for the delay, we reject plaintiff’s contention that the court abused its discretion in denying the cross-motion for leave to amend the amended complaint to add a medical malpractice cause of action. Nevertheless, because defendant failed to establish any prejudice that would result from plaintiff’s delay in seeking leave to amend, if further discovery is conducted, we modify the order in the exercise of our discretion by granting plaintiff leave to amend his amended complaint to assert a cause of action for the allegedly negligent discharge of decedent from defendant’s facility, and, further, striking the note of issue and certificate of readiness to allow for additional discovery … . Chapman v Olean Gen. Hosp., 2024 NY Slip Op 03271, Fourth Dept 6-14-24

Practice Point: Here the post-note-of-issue motion to amend the complaint to add a cause of action requiring further discovery was granted because the defendant was unable to demonstrate any prejudice.

 

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STATEMENTS DEFENDANT MADE TO HIS INSURANCE CARRIER IN THIS TRAFFIC ACCIDENT CASE ARE NOT DISCOVERABLE (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court in this traffic-accident case, determined plaintiff’s request for discovery of statements made by defendant to his insurance carrier should have been denied:

The statements sought in plaintiff’s cross-motion constitute materials “produced solely in connection with the report of an accident to a liability insurance carrier . . . with respect to plaintiff’s claim [that] are not discoverable under CPLR 3101 (g), but rather are conditionally immunized from discovery under CPLR 3101 (d) (2)” … . Plaintiff failed to establish either that he has a “substantial need of the materials” or that he is “unable without undue hardship to obtain the substantial equivalent of the materials by other means” (CPLR 3101 [d] [2] …). Fusco v Hansen, 2024 NY Slip Op 03262, Fourth Dept 6-14-24

Practice Point; Here in this traffic-accident case, plaintiff did not demonstrate a need for discovery of statements made by defendant to his insurance carrier (CPLR 3101(d)(2)).

 

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THE CLAIM IN THIS CHILD VICTIMS ACT PROCEEDING DID NOT SET FORTH ANY FACTUAL BASIS FOR THE ALLEGATION THE STATE WAS OR SHOULD HAVE BEEN AWARE OF SEXUAL ABUSE BY ANOTHER CHILD IN A FOSTER HOME AND BY AN EMPLOYEE OF A CHILDREN’S FACILITY; THE CLAIM SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing the Court of Claims in this Child Victims Act proceeding, determined the claim did not set forth any factual basis for the allegation defendants were or should have been aware of the abuse by a child in a foster home and by a staff member of a children’s facility. The claim, therefore, should have been dismissed:

Here, as to the abuse alleged at the foster home, the verified claim alleges only bare legal conclusions and lacks any factual specificity as to how defendant was put on notice of the danger posed by the minor perpetrator. As to the facility, the allegation that other staff members knew about the adult perpetrator’s participation in the off-campus overnight trips would not have put defendant on notice about the adult perpetrator’s propensity to sexually abuse children … . Although the allegation that a counselor discovered the sexual abuse may suffice to provide actual notice about the foreseeability of future abuse, the claim fails to allege that any such subsequent abuse took place … . Even granting the verified claim a liberal construction, presuming its allegations true and providing claimant the benefit of every possible inference, said claim failed to set forth any factual basis upon which defendant could have reasonably anticipated the perpetrators’ harmful conduct and, thus, it failed to “provide a sufficiently detailed description of the particulars of the claim to enable defendant to investigate and promptly ascertain the existence and extent of its liability” … . As such, the Court of Claims erred in denying defendant’s motion to dismiss … . Berg v State of New York, 2024 NY Slip Op 03206, Third Dept 6-13-24

Practice Point: Here the allegation that the state was aware or should have been aware of the sexual abuse of the claimant by another child in a foster home and by a staff member of a children’s facility were not supported by any facts which would allow the state to investigate. Therefore the claim should have been dismissed by the Court of Claims.

 

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