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DEFENDANT, AS AN OUT-OF-POSSESSION LANDLORD, WAS NOT LIABLE FOR AN ALLEGED DANGEROUS CONDITION ON THE PROPERTY; PLAINTIFF’S REFERENCES TO UNPLEADED CAUSES OF ACTION (LABOR LAW 240(1) AND LABOR LAW 241(6)) IN THE BILL OF PARTICULARS WERE UNSUPPORTED; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court and dismissing plaintiff’s complaint, determined defendant was an out-of-possession landlord who was not responsible for the alleged dangerous condition on the property and the Labor Law 240(1) and 241(6) causes of action, although mentioned in the bill of particulars, were not pleaded. Plaintiff was doing work on cabinets when she was struck by a piece of wood that flew off a table saw operated by another worker. She sued under a negligence theory (dangerous condition) and under Labor Law section 200 (which codifies common law negligence):

“[A] landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … . “‘An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct'” … .

… [T]he evidence … , including … the written lease … and transcripts of the deposition testimony … established … that the defendant was an out-of-possession landlord that had relinquished control of the subject property to Tobin and had not assumed a duty to maintain the property in a reasonably safe condition by a course of conduct … . Although the defendant reserved a right of entry under the lease, this did not provide a sufficient basis on which to impose liability upon the defendant for injuries caused by a dangerous condition, as the condition did not violate a specific statute, nor was it a significant structural or design defect … .

Modern practice permits a plaintiff, in some circumstances, to successfully oppose a motion for summary judgment by relying on an unpleaded cause of action that is supported by the plaintiff’s submissions, where the plaintiff has not engaged in unexcused protracted delay in presenting the new theory of liability… . … Here … the plaintiff’s unpleaded causes of action alleging violations of Labor Law §§ 240(1) and 241(6) are not supported by the plaintiff’s submissions, as the record demonstrates that the plaintiff’s work at the time of her injury did not involve “construction, excavation or demolition work” within the meaning of Labor Law § 241(6), or “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” within the meaning of Labor Law § 240(1) … . Miranda v 1320 Entertainment, Inc., 2024 NY Slip Op 04313, Second Dept 8-28-24

Practice Point: Here the defendant demonstrated out-of-possession landlord status and was therefore not liable for an alleged dangerous condition on the property.​

Practice Point: Although unpleaded causes of action mentioned for the first time in the bill of particulars can be considered in opposition to a summary judgment motion, here the unpleaded Labor Law 240(1) and 241(6) causes of action were unsupported by the plaintiff’s submissions. The complaint should have been dismissed.

 

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PLAINTFF’S MOTION TO STRIKE DEFENDANTS’ ANSWER FOR SPOLIATION OF EVIDENCE IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN CONSIDERED BY THE MOTION COURT BEFORE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the motion court should have first considered plaintiff’s (decedent’s) motion to strike defendants’ answer (for spoliation of evidence) before considering defendants’ motion for summary judgment (which was granted). Decedent alleged there was video footage showing the slip and fall which was overwritten 72 hours after the fall:

“Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126” … . The Supreme Court has broad discretion in determining what, if any, sanction would be imposed for spoliation of evidence … . “The sanction of dismissal of a pleading may be imposed even absent willful and contumacious conduct if a party has been so prejudiced that dismissal is necessary as a matter of fundamental fairness” …  “However, a less severe sanction or no sanction is appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her case or defense” … .

A defendant whose answer is stricken is “deemed to admit all traversable allegations in the complaint, including the basic allegation of liability” … , and summary judgment is warranted in favor of the plaintiff on the issue of liability upon the appropriate motion … .

Here, since the decedent’s motion pursuant to CPLR 3126 to strike the defendants’ answer or, in the alternative, for an adverse inference instruction at trial for spoliation of evidence sought sanctions that would impact the defendants’ ability to establish, prima facie, that they were entitled to judgment as a matter of law on the issue of liability, the Supreme Court should have considered the merits of the decedent’s motion before rendering a determination on the issue of liability on the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them … . Hudesman v Dawson Holding Co., 2024 NY Slip Op 04307, Second Dept 8-28-24

Practice Point: Where a plaintiff’s motion can affect a defendant’s ability to defend an action (here a motion to strike the answer for spoliation of evidence), that motion should be considered first, before considering a defendant’s motion for summary judgment.

 

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THE MOTION COURT IN THIS REAR-END TRAFFIC-ACCIDENT CASE SHOULD HAVE CONSIDERED THE CERTIFIED BUT UNSIGNED DEPOSITION TRANSCRIPTS SUBMITTED BY DEFENDANT; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT AND DISMISSAL OF THE CROSS-CLAIMS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion court should have considered the deposition transcripts, which were certified but unsigned, and should have granted defendant driver’s (Jara Mejia’s) motions for summary judgment and dismissal of the cross-claims. Jara Mejia’s car was stopped when it was struck from behind:

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . In support of his motion, Jara Mejia submitted, inter alia, a transcript of his deposition testimony and transcripts of the deposition testimony of the plaintiffs, Tsering, and Cruz Arce. Contrary to the Supreme Court’s determination, Jara Mejia’s unsigned but certified deposition transcript was admissible, “since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent” … . In addition, while the remaining deposition transcripts were also unsigned, they were certified and their accuracy was not challenged … . Thus, the deposition transcripts were admissible and should have been considered by the court on Jara Mejia’s motion. Gironza v Macedonio, 2024 NY Slip Op 04306, Second Dept 8-28-24

Practice Point: Certified but unsigned deposition transcripts are admissible in support of summary judgment when submitted by the party deponent himself.

Practice Point: Certified but unsigned deposition transcripts are admissible in support of summary judgment when their accuracy is not challenged.

 

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ALTHOUGH THE MEDICATION DISPENSED BY DEFENDANT PHARMACY WAS PRESCRIBED, THE COMPLAINT ALLEGED THE MEDICATION WAS CLEARLY CONTRAINDICATED; THE PHARMACIST MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMSSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the pharmacist malpractice lawsuit should not have been dismissed, despite the fact that the medication was duly prescribed, criteria explained:

“On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable theory” … .

“[W]hen a pharmacist has demonstrated that he or she did not undertake to exercise any independent professional judgment in filling and dispensing prescription medication, that pharmacist cannot be held liable for negligence in the absence of evidence that he or she failed to fill the prescription precisely as directed by the prescribing physician or that the prescription was so clearly contraindicated that ordinary prudence required the pharmacist to take additional measures before dispensing the medication” … . Here, the amended complaint does not allege that the pharmacy exercised independent professional judgment or that it did not fill the prescriptions as directed by Gibson. Nevertheless, accepting the facts as alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently alleges that the prescriptions were so clearly contraindicated that ordinary prudence required the pharmacy to take additional measures before dispensing the medication. Bistrian v Gibson, 2024 NY Slip Op 04303, Second Dept 8-28-24

Practice Point: Usually a pharmacist cannot be held liable for dispensing a duly prescribed medication (as was the case here), but the allegation that the medication was clearly contraindicated was deemed sufficient to state a cause of action for pharmacist malpractice.

 

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THE DEFAMATION ACTION AGAINST A REPORTER AND A MEDIA COMPANY WAS PROPERLY DISMISSED PURSUANT TO THE ANTI-SLAPP STATUTE; PLAINTIFFS FAILED TO DEMONSTRATE THE SUIT HAD A “SUBSTANTIAL BASIS IN LAW;” CRITERIA EXPLAINED (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Gonzalez, over a two-justice concurrence, determined plaintiffs failed to demonstrate their defamation action against a reporter and a media company had a “substantial basis in law” under the anti-SLAPP law. Therefore the complaint was dismissed pursuant to CPLR 3211 [g] [1] and defendants were entitled to attorney’s fees and costs. The articles published by defendants concerned plaintiff Karl Reeves’ divorce and custody dispute. The facts are too detailed to fairly summarize here:

… [T]he anti-SLAPP law creates an accelerated summary dismissal procedure, which applies when a defendant in a SLAPP suit moves pursuant to CPLR 3211(a)(7) to dismiss the complaint. Upon such a motion, the defendant bears the initial burden of showing that the action or claim is a SLAPP suit (see CPLR 3211[g][1]). Once the defendant makes that showing, the burden shifts to the plaintiff to demonstrate that the claim has a “substantial basis in law” (id.). If the claim is dismissed, the defendant recovers a mandatory award of attorneys’ fees.

This case presents the issue of what constitutes a “substantial basis in law” under the anti-SLAPP law. We hold, based on our reading of CPLR 3211(g) and (h), that “substantial basis” under the anti-SLAPP law means “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … , a phrase drawn from the relevant legislative history. We further find that, because the complaint in this case fails to survive ordinary CPLR 3211(a)(7) analysis, plaintiffs have failed to meet the higher burden under CPLR 3211(g) of showing that their SLAPP suit has a substantial basis in law. Accordingly, defendants — a media entity and a reporter — are entitled to mandatory costs and attorneys’ fees pursuant to Civil Rights Law § 70-a. We remand the case solely for calculation of those costs and fees.  Reeves v Associated Newspapers, Ltd., 2024 NY Slip Op 04286, First Dept 8-22-24

Practice Point: To overcome a motion to dismiss a defamation action under the anti-SLAPP statute, the plaintiff must demonstrate the action has a “substantial basis in law.” This decision fleshes out the meaning of that phrase.

 

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ALTHOUGH THE CITY HAD TIMELY KNOWLEDGE OF THE ROAD DEFECT WHICH ALLEGEDLY CAUSED PETITIONER-BUS-DRIVER’S ACCIDENT, THERE WAS NO SHOWING THE CITY HAD TIMELY KNOWLEDGE OF PETITIONER’S ACCIDENT, INJURIES OR THE FACTS UNDERLYING HER THEORY OF LIABILITY; THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN DENIED; THERE WAS AN EXTENSIVE DISSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive dissent. determined the petition for leave to file a late notice of claim against the city should not have been granted. Although petitioner demonstrated the city had timely knowledge of the existence of the pothole which allegedly caused petitioner-bus-driver’s injury, petitioner did not demonstrate the city had timely knowledge of her accident, injuries or the facts underlying her theory of liability:

… [T]he evidence submitted in support of the petition failed to establish that the appellants acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter … . “‘Actual knowledge of the essential facts underlying the claim means knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the [proposed] notice of claim; the public corporation need not have specific notice of the theory or theories themselves'” … . “Unsubstantiated and conclusory assertions that the municipality acquired timely actual knowledge of the essential facts constituting the claim through the contents of reports and other documentation are insufficient” … .

Here, although the petitioner’s submission of photographs and evidence that the defect was repaired after the accident may have demonstrated that the appellants had actual knowledge of the defect, actual knowledge of a defect is not tantamount to actual knowledge of the facts constituting the claim where, as here, the record did not establish that the appellants were aware of the petitioner’s accident, her injuries, and the facts underlying her theory of liability … . Matter of Ippolito v City of New York, 2024 NY Slip Op 04265, Second Dept 8-21-24

Practice Point: Here petitioner’s inability to demonstrate the city had timely knowledge of her accident, injuries or the facts underlying her theory of liability supported denial of her petition for leave to file a late notice of claim. The fact that the city had timely knowledge of the road defect which allegedly caused petitioner’s accident was not enough.

 

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THE UNINSURED PLAINTIFF WAS AWARDED TENS OF MILLIONS OF DOLLARS, INCLUDING FUTURE MEDICAL COSTS, AFTER TRIAL FOR AN INJURY WHICH LEFT HIM PARALYZED; DEFENDANT REQUESTED A COLLATERAL SOURCE HEARING PURSUANT TO CPLR 4545 BECAUSE PLAINTIFF MAY BE ABLE TO RECOVER FUTURE MEDICAL COSTS UNDER THE PATIENT PROTECTION AND AFFORDABLE CARE ACT; IN A MATTER OF FIRST IMPRESSION THE SECOND DEPARTMENT HELD DEFENDANT WAS ENTITLED TO A COLLATERAL SOURCE HEARING (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ventura, in a matter of first impression, determined defendant in this negligence action was entitled to a hearing pursuant to CPLR 4545 concerning damages awarded for future medical expenses. Plaintiff, a bicyclist, was struck by a railroad tie which was dropped from above, and was paralyzed. Plaintiff was awarded tens of millions of dollars after trial. Defendant argued the uninsured plaintiff may be entitled to future medical costs under the Patient Protection and Affordable Care Act and requested a CPLR 4545 collateral source hearing:

This appeal presents a question of first impression in New York involving the effect of the Patient Protection and Affordable Care Act on collateral source offsets in personal injury actions, to wit: whether a defendant may be entitled to a collateral source hearing pursuant to CPLR 4545 for the purpose of establishing that an uninsured plaintiff’s future medical expenses will, with reasonable certainty, be covered in part by a private health insurance policy, as long as the plaintiff takes the steps necessary to procure the policy. Among other reasons, since providing a defendant an offset under such circumstances would serve the “ultimate goal of CPLR 4545 to eliminate duplicate recovery by a plaintiff” … , we conclude that the defendant was entitled to a hearing pursuant to CPLR 4545 to demonstrate the extent, if any, to which the plaintiff’s future medical expenses would be reduced by available insurance coverage. We express no opinion, however, about the appropriate outcome following the hearing.

… [W]e modify the amended judgment by deleting the award of damages for the plaintiff’s future medical expenses and … remit this matter to the Supreme Court … , for a collateral source hearing on the issue of those expenses, with entry of an appropriate second amended judgment thereafter. Liciaga v New York City Tr. Auth., 2024 NY Slip Op 04257, Second Dept 8-21-24

Practice Point: If an uninsured plaintiff, who was awarded damages to cover future medical costs, may be entitled to future medical costs under the Patient Protection and Affordable Care Act, defendant may be entitled to a CPLR 4545 collateral source hearing.​

 

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BECAUSE THE ALLONGE ENDORSED IN BLANK WAS NOT FIRMLY AFFIXED TO THE NOTE AS REQUIRED BY THE UCC, THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STANDING TO BRING THE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate iT had standing to bring the action. The purported allonge endorsed in blank was not attached to the note:

 “A plaintiff may establish … its standing as the holder of the note by demonstrating that a copy of the note, including an endorsement in blank, was among the exhibits annexed to the complaint at the time the action was commenced” … . “A promissory note [is] a negotiable instrument within the meaning of the Uniform Commercial Code” ( … see UCC 3-104[2][d]). A “holder” is “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession” (UCC 1-201[b][21][A]; see 3-301 … ). Where an instrument is endorsed in blank, it may be negotiated by delivery (see UCC 3-202[1]; 3-204[2] …). “An indorsement must be . . . on the instrument or on a paper so firmly affixed thereto as to become a part thereof” (UCC 3-202[2]).

… [T]he plaintiff failed to make a prima facie showing that it had standing to commence the action. Although the plaintiff attached a copy of the note and a purported allonge endorsed in blank to the complaint, the plaintiff failed to demonstrate that the purported allonge “was so firmly affixed [to the note] as to become a part thereof, as required by UCC 3-202(2)” … . Moreover, an affidavit of an assistant secretary of the plaintiff’s servicer/attorney-in-fact, submitted in support of the plaintiff’s motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, and for an order of reference, was also insufficient to demonstrate the plaintiff’s compliance with UCC 3-302(2), as it was bereft of any reference to the purported allonge … . Lakeview Loan Servicing, LLC v Florio, 2024 NY Slip Op 04256, Second Dept 8-21-24

Practice Point: The UCC requires that an allonge endorsed in black be firmly affixed to the note.​

 

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THE COVID TOLL OF THE STATUTE OF LIMITATIONS RENDERED THIS NEGLIGENCE ACTION AGAINST A MUNICIPALITY TIMELY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the COVID toll of the statute of limitations applied and the negligence action against defendant municipality was timely commenced:

The plaintiff alleged that he was injured on May 24, 2019, when he was seated on a swing that collapsed at a playground owned and operated by the defendants, causing him to fall to the ground. Thereafter, the defendants moved for summary judgment dismissing the complaint as time-barred, arguing that the action was not timely commenced within the applicable one-year and 90-day statute of limitations. In an order dated August 3, 2022, the Supreme Court granted the defendants’ motion. The plaintiff appeals.

Pursuant to General Municipal Law § 50-i and CPLR 217-a, an action against a municipality to recover damages for personal injuries must be commenced within one year and 90 days after the happening of the event upon which the claim is based. Here, the defendants established, prima facie, that the applicable statute of limitations started to run from January 5, 2020, the date on which the plaintiff turned 18 years old (see CPLR 208), and that the action was not timely commenced within one year and 90 days from that date by April 5, 2021 … . However, in opposition, the plaintiff established that Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), which was issued in connection with the COVID-19 public health crisis, and subsequent executive orders extending the duration thereof, tolled the applicable statute of limitations for a 228-day period from March 20, 2020, to November 3, 2020, and thus, the action was timely commenced prior to the expiration of the statute of limitations on November 19, 2021 … . Fuhrmann v Town of Riverhead, 2024 NY Slip Op 04248, Second Dept 8-21-24

Practice Point: Here the COVID toll of the statute of limitations extended the time for commencing the negligence action against the municipality by 228 days.

 

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THE SIX-MONTH EXTENSION FOR COMMENCEMENT OF AN ACTION UNDER CPLR 205(A) IS NOT AVAILABLE WHEN THE PRIOR ACTION WAS VOLUNTARILY DISCONTINUED; HERE THE CPLR 205(A) EXTENSION WAS NOT AVAILABLE FOR A STATE ACTION WHICH PLAINTIFF ATTEMPTED TO COMMENCE AFTER VOLUNTARILY DISCONTINUING A SIMILAR FEDERAL ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the six-month extension for the commencement of an action codified in CPLR 205 (a) was not available to the plaintiff because a similar federal action had been voluntarily discontinued by the plaintiff. Plaintiff had sued in federal court for violations of the Fair Labor Standards Act and the Labor Law. Plaintiff discontinued that action and brought a state action under the Labor Law. Because plaintiff could not take advantage of CPLR 205 (a), the state action was time-barred:

“CPLR 205(a) extends the time to commence an action after the termination of an earlier related action, where both actions involve the same transaction or occurrence or series of transactions or occurrences” … . However, the six-month grace period provided under CPLR 205(a) is not available where the previous action has been terminated by “a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits” … .

CPLR 205(a) was not applicable to this action, since the similar and timely commenced federal action was terminated by means of a voluntary discontinuance. A discontinuance effectuated pursuant to either CPLR 3217(a) or (b) constitutes a voluntary discontinuance for purposes of CPLR 205(a) … . Pursuant to a similar provision in the Federal Rules of Civil Procedure, an action may be voluntarily dismissed either by a stipulation or notice, pursuant to Federal Rules of Civil Procedure rule 41(a)(1), or by a court order, pursuant to Federal Rules of Civil Procedure rule 41(a)(2). Thus, since the discontinuance here was affirmatively requested by the plaintiff and was granted pursuant to Federal Rules of Civil Procedure rule 41(a)(2), CPLR 205(a) was not available to extend the limitations period beyond the termination of the federal action … . Castillo v Suffolk Paving Corp., 2024 NY Slip Op 04239, Second Dept 8-21-24

Practice Point: Here plaintiff voluntarily discontinued a federal action and brought a similar action in state court. Because the federal action was voluntarily discontinued, the six month extension for commencing an action under CPLR 205 (a) was not available to plaintiff and the state action was time-barred.

 

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