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THE JUDGMENTS ISSUED BY THE NATION COURT FOR A VIOLATION OF A CAYUGA NATION ORDINANCE CONSTITUTED FINES; A FOREIGN COUNTRY’S JUDGMENTS FOR FINES ARE NOT RECOGNIZED OR ENFORCEABLE IN NEW YORK STATE COURTS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the judgments granted by the Nation Court for violation of a Cayuga Nation ordinance constituted fines. Under the CPLR, a foreign -country judgment for a fine is not recognized or enforceable in New York State:

“Under CPLR article 53, a judgment issued by a foreign country is recognized and enforceable in New York State if it is ‘final, conclusive and enforceable where rendered’ ” … . Article 53, however, “does not apply to a foreign country judgment, even if the judgment grants or denies recovery of a sum of money, to the extent the judgment is . . . a fine or penalty” … . “A party seeking recognition of a foreign country judgment has the burden of establishing that [article 53] applies to the foreign country judgment” .. .

Here, there is no dispute that each of the foreign country judgments at issue in these appeals is a fine. The foreign country judgments were granted by the Nation Court against respondents after the Nation Court found respondents in contempt of an order permanently enjoining respondents from operating Pipekeepers and in violation of a Cayuga Nation ordinance and assessed fines based on those findings. Thus, inasmuch as petitioner failed to meet its burdens of establishing that article 53 applied to the foreign country judgments … , the burdens never shifted to respondents to establish a mandatory or discretionary ground for non-recognition of the judgments under CPLR 5304 … . Matter of Cayuga Nation v Parker, 2024 NY Slip Op 03603, Fourth Dept 7-3-24

Practice Point: Judgments issued by the Nation Court for violations of a Cayuga Nation ordinance are considered foreign-county judgments by the CPLR. Foreign-country judgments for fines, like those issued here, are not recognized or enforceable in New York State courts.

 

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THE DEFENSE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING IN THIS CEILING-COLLAPSE CASE; THE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants landlord and property manager were entitled to have the liability verdict set aside in the interest of justice because the judge should not have precluded testimony by defendants’ expert. Plaintiff-tenants were injured when their apartment ceiling collapsed. The defendant expert would have testified there would have been no visible signs that the ceiling was about to collapse. The court noted that plaintiffs’ request for a Frye hearing was properly denied because the expert would have testified based upon his personal training and experience:

“[E]xpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” … . The expert must possess “the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” … . “The expert’s opinion, taken as a whole, must also reflect an acceptable level of certainty in order to be admissible” … .

Here, the defendants’ CPLR 3101(d) disclosure indicated that Yarmus [the defense expert], a professional engineer with experience in construction management and building and safety code compliance, would testify, inter alia, as to the materials and manner of construction of the ceiling at issue, as well as the manner in which ceilings so constructed may detach and collapse, allegedly, without a defect that is detectable so as to give notice of a dangerous condition. Contrary to the plaintiffs’ contention, Yarmus’s proposed testimony was neither so conclusory or speculative, nor without basis in the record, as to render it inadmissible … .

… “[T]he long-recognized rule of Frye . . . is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has ‘gained general acceptance’ in its specified field … . An expert opinion based on personal training and experience is not subject to a Frye analysis … . Ghazala v Shore Haven Apt. Del, LLC, 2024 NY Slip Op 03681, Second Dept 7-3-24

Practice Point; If a judge makes a mistake by precluding admissible testimony, here testimony by the defense expert, the judge has the power to set aside the verdict in the interest of justice. The Appellate Division reversed the denial of the motion to set aside the verdict.

 

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LABOR LAW 193 PROHIBITS AN EMPLOYER FROM REDUCING AN EMPLOYEE’S PAY TO COMPENSATE FOR THE EMPLOYEE’S ALLEGEDLY POOR PERFORMANCE; HERE THE EMPLOYER REDUCED PLAINTIFF’S PAY TO RECOUP COSTS ASSOCIATED WITH PLAINTFF’S TRAFFIC ACCIDENT WITH A COMPANY TRUCK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Labor Law section 193 prohibited plaintiff-truck-driver’s employer from reducing plaintiff’s pay to recoup costs associated with a traffic accident alleged to have been the result of plaintiff’s negligence:

Labor Law § 193 “prohibits an employer from making any deduction from an employee’s wages unless permitted by law or authorized by the employee for certain purposes” … . To allow an employer to recover the return of paid wages based upon an employee’s alleged lack of performance “would be permitting [that employer] to do indirectly and retroactively that which the law specifically prohibits it from doing directly” … . This principle applies equally whether the cause of action sounds in negligence or in contract, as an employee may not waive the protections of Labor Law § 193 … .

… [T]he defendants’ counterclaims are explicit attempts to recoup costs for their business allegedly arising out of the plaintiff’s negligence or poor performance. Because such causes of action are barred by the Labor Law, the Supreme Court erred in denying the plaintiff’s motion pursuant to CPLR 3211(a)(7) to dismiss the defendants’ counterclaims. Craig v Fastex Logistics Transp., LLC, 2024 NY Slip Op 03678, Second Dept 7-3-24

Practice Point: Here plaintiff-truck-driver’s employer reduced his pay to recoup costs associated with plaintiff’s traffic accident with a company truck. Such a pay reduction is prohibited by Labor Law section 193.

 

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ALTHOUGH SUCCESSIVE SUMMARY JUDGMENT MOTIONS ARE DISFAVORED; HERE THE ISSUES IN EACH MOTION DID NOT OVERLAP AND APPELLANTS OFFERED A SUFFICIENT REASON. I.E. THE FIRST MOTION PRECEDED DEFENDANT’S DEPOSITION IN WHICH HE ADMITTED SWERVING INTO APPELLANTS’ VEHICLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined appellants’ second summary judgment motion in this traffic accident case did not violate the prohibition of successive motions. The first motion dealt with whether plaintiff suffered a serious injury within the meaning of the Insurance Law. The second motion addressed defendant’s liability. Appellants demonstrated a sufficient reason for the failure to include both issues in a single motion, i.e., the first motion was made before defendant was deposed and admitted swerving into appellants’ vehicle:

… [A]ppellants’ first motion for summary judgment was on the issue of serious injury. Their second motion was on the issue of liability. The issue of whether plaintiff sustained a serious injury within the meaning of the Insurance Law, “is a threshold matter separate from the issue of fault” and which must, therefore, be determined separately … . “[S]erious injury is quintessentially an issue of damages, not liability” … . Under the facts presented, appellants’ failure to raise the issue of liability in their first motion for summary judgment does not run afoul of the general disfavor of successive motions since the issue of serious injury was not germane to the issue of liability … .

Appellants have also established the existence of sufficient cause … . Here, the record indicates that the first motion for summary judgment was filed prior to the deposition testimony of defendant-respondent Phanor. In his testimony Phanor admitted that he swerved into appellant’s vehicle in order to avoid another unidentified vehicle. Priester v Phanor, 2024 NY Slip Op 03554, First Dept 6-27-24

Practice Point: Here the fact that successive summary judgment motions are generally prohibited was overlooked. The issues in the two motions did not overlap (one dealt with plaintiff’s damages, the other with defendant’s liability). And the first motion was brought before the deposition in which defendant admitted swerving into appellants’ vehicle.

 

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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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