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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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THE COVID FORECLOSURE MORATORIUM INSTITUTED BY HUD FOR FHA INSURED MORTGAGES APPLIED TO RENDER THE REVERSE MORTGAGE FORECLOSURE IN THIS CASE TIMELY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, addressing a question of first impression, determined that the COVID foreclosure moratorium instituted by the US Department of Housing and Urban Development (HUD) which stayed foreclosures on mortgages issued by the Federal Housing Administration (FHA) applied to render an action to foreclose a reverse mortgage timely:

Courts and the legal community are now likely familiar with the 2020 executive orders that tolled time limitations due to the COVID-19 pandemic … . On this appeal, we are asked to consider another governmental pause on business as usual that was spurred by the COVID-19 pandemic. On March 18, 2020, the United States Department of Housing and Urban Development (hereinafter HUD) instituted a COVID-19-related moratorium that effectively stayed foreclosures with respect to mortgages insured by the Federal Housing Administration (hereinafter FHA). This moratorium (hereinafter the FHA COVID-19 moratorium) remained in effect until July 31, 2021. This appeal presents an issue of apparent first impression for an appellate court in this State, namely, whether the statute of limitations for commencing a foreclosure action may be tolled by virtue of the FHA COVID-19 moratorium. We hold that the FHA COVID-19 moratorium, which constituted a stay of foreclosures of federally backed mortgages, may indeed toll the statute of limitations for commencing a foreclosure action, and, on the facts of this case, the FHA COVID-19 moratorium did toll the applicable limitations period. Given the benefit of the toll, one of the defendants timely commenced a separate but related action to foreclose a home equity conversion mortgage, also known as a reverse mortgage, and the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint, seeking to quiet title, brought by the alleged owner of the property encumbered by the reverse mortgage. Trento 67, LLC v OneWest Bank, N.A., 2024 NY Slip Op 03198, Second Dept 6-12-24

Practice Point: Here the COVID foreclosure moratorium instituted by HUD for FHA-insured mortgages rendered the reverse mortgage foreclosure timely.

 

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PLAINTIFF IN THIS CHILD VICTIMS ACT CASE RAISED A QUESTION OF FACT WHETHER DEFENDANT SUMMER CAMP WAS AWARE OR SHOULD HAVE BEEN AWARE OF ITS EMPLOYEE’S PROPENSITY FOR SEXUAL ABUSE; THE NEGLIGENT HIRING, RETENTION AND SUPERVISION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this Child Victims Act case alleging abuse at defendant’s summer camp in 1970, determined plaintiff had raised a question of fact supporting the negligent hiring, retention and supervision cause of action. Plaintiff alleged he informed defendant of the abuse by the employee (Puello):

“Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer’s business, the employer may still be held liable under theories of negligent hiring and retention of the employee” … . “To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . “The employer’s negligence lies in having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the [supervision,] hiring and retention of the employee” … .

Here, the defendant demonstrated, prima facie, that it lacked actual or constructive notice of Puello’s alleged propensity for the conduct that caused the plaintiff’s injury. However, in opposition, the plaintiff raised a triable issue of fact as to whether the defendant had constructive notice of Puello’s alleged propensity for sexual abuse, given, among other things, the frequency and nature of the alleged abuse perpetrated by Puello … . Moreover, the plaintiff averred in his affidavit submitted in opposition to the defendant’s motion that he “clearly told” Thomas Brown, an employee in the camp’s infirmary, about the first of Puello’s alleged assaults, which continued thereafter, raising a triable issue of fact as to whether the defendant had actual notice of Puello’s alleged propensity for sexual abuse. Hammill v Salesians of Don Bosco, 2024 NY Slip Op 03170, Second Dept 6-12-24

Practice Point: Here in this child victims act case alleging abuse of the plaintiff in 1970, plaintiff raised a question of fact whether defendant summer camp was aware of its employee’s propensity for sexual abuse. Among other allegations, plaintiff alleged he told an infirmary employee about the abuse and it continued thereafter.

 

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PLAINTIFF MODEL SUFFICIENTLY ALLEGED PHOTOSHOOTS DONE WHEN SHE WAS 16 AND 17 FOR A SUNTANNING-PRODUCT MARKETING CAMPAIGN CONSTITUTED “SEXUAL PERFORMANCES” TRIGGERING THE EXTENDED STATUTE OF LIMITATIONS IN THE CHILD VICTIMS ACT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Higgitt, determined certain causes of action against the modeling agency which represented plaintiff and the seller of suntanning products which used the photos of plaintiff should not have been dismissed as time-barred under the extended statute of limitations in the Child Victims Act [CVA] (CPLR 214-g). The photoshoots took place when plaintiff was 16 and 17. One of the issues was whether the complaint adequately alleged the photoshoots constituted a “sexual performance” with triggered the applicability of the CVA. After a comprehensive discussion too detailed to summarize here, the First Department held the complaint stated causes of action based on the “sexual performance” criteria in Penal Law 263.05:

At the pleading stage, as to both defendants, we find that a reasonable inference to be drawn from plaintiff’s allegations regarding the photographing of her while she was unclothed is that the resulting photographs may have captured plaintiff’s genitalia, thus satisfying the “sexual conduct” component of a Penal Law § 263.05 sexual performance. It is not merely the allegation of nudity that suffices, but the permissible inference that nudity occasioned the exhibition of genitalia, lewdly, in a photographic performance. We need not and do not reach whether plaintiff will ultimately be successful … , and at this stage, in light of the allegations contained in the complaint and the reasonable inferences to be drawn therefrom, we need not confine our analysis of the allegations to photographs that were ultimately used in Cal Tan’s marketing campaign, as submitted on the appeal.  * * *

We … find that a plaintiff’s age at the time of the alleged acts, so long as under 18 years of age, does not prevent application of the CVA to revive claims otherwise meeting CPLR 214-g’s requirements. Thus, plaintiff adequately pleaded that, with respect to her age at the time of the alleged acts, the CVA applies to her. Doe v Wilhelmina Models, Inc., 2024 NY Slip Op 03081, First Dept 6-6-24

Practice Point: Here photoshoots for a suntanning-product marketing campaign were sufficiently alleged to constitute “sexual performances’ triggering the extended statute of limitations in the Child Victims Act.

 

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CLAIMANT INITIALLY BELIEVED THE ROAD WHERE HE STEPPED IN A POTHOLE AND FELL WAS OWNED BY THE VILLAGE, BUT IN FACT IT WAS OWNED BY THE STATE; CLAIMANT’S LATE NOTICE OF CLAIM SHOULD HAVE BEEN ACCEPTED BY THE COURT OF CLAIMS (THIRD DEPT). ​

The Third Department, reversing the Court of Claims, determined claimant’s late notice of claim in this roadway defect case should not have been rejected. Plaintiff alleged he stepped in a depression in the road and fell. Plaintiff initially believed the road was owned by the village, when, in fact, it was owned by the state. The defect in the road was patched within a week of plaintiff’s fall:

The delay here was minimal, with defendant having received notice approximately three weeks after the 90-day deadline lapsed … . It is significant that when [claimant] returned to the accident scene … , he discovered that the pothole had been patched with blacktop, as shown in the photographs taken that day. Claimant further averred that the depression was “almost a foot wide and around ten feet long,” specifying that it was “about three to four inches deep where [his] foot ended up.” Given this postaccident development, claimant’s attorney argued that “[w]hile [defendant] may not have obtained notice of the . . . accident within 90 days of its occurrence, it is highly likely that it had notice of the condition of the pavement that caused the accident as it patched it within a week of when the accident happened,” emphasizing that defendant’s “records should indicate precisely when it was patched as well as when the decision to patch it occurred and why.” * * *

“A claim has the appearance of merit so long as it is not patently groundless, frivolous or legally defective, and the record as a whole gives reasonable cause to believe that a valid cause of action exists” … . To hold defendant liable for his injuries, claimant will need to prove that defendant either created the condition itself by affirmative acts of negligence, or had actual or constructive notice of a dangerous condition and failed to remedy such condition, thereby causing claimant’s injuries … . Constructive notice exists where a depression in the roadway was “visible and apparent and existed for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . Grasse v State of New York, 2024 NY Slip Op 03110, Third Dept 6-6-24

Practice Point: The criteria for acceptance or rejection of a late notice of claim in the Court of Claims is explained.

 

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WHEN A PRIOR MOTION HAS BEEN DENIED ON PROCEDURAL GOUNDS “WITHOUT PREJUDICE TO RENEW,” THE MOTION FOR LEAVE TO RENEW THE PRIOR MOTION DOES NOT HAVE TO BE SUPPORTED BY REASONABLE JUSTIFICATION FOR PRESENTING NEW FACTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for leave to renew its prior motion should not have been denied. The judge had denied the prior motion on procedural grounds “without prejudice to renew:”

… Supreme Court improvidently exercised its discretion in denying, on procedural grounds, the plaintiff’s motion for leave to renew its prior motion pursuant to CPLR 5225 … . Since the court had denied the plaintiff’s prior motion without prejudice to renew, the plaintiff was not required to demonstrate a reasonable justification for its failure to present alleged new facts on the prior motion … . Key Growth Invest LP v 1499 Fulton Realty, LLC, 2024 NY Slip Op 03036, Second Dept 6-5-24

Practice Point: If a judge denies a motion on procedural grounds “without prejudice to renew,” the motion for leave to renew does not have to provide a reasonable justification for the presentation of new facts.

 

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SUA SPONTE DISMISSAL OF THE COMPLAINT WAS NOT SUPPORTED BY EXTRAORDINARY CIRCUMSTANCES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined there were no extraordinary circumstances justifying a sua sponte dismissal of the complaint in this foreclosure action:

A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint … . HSBC Bank USA, N.A. v Badalamenti, 2024 NY Slip Op 03034, Second Dept 6-5-24

Practice Point: A sua sponte dismissal of a complaint is rarely upheld on appeal.

 

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