You are here: / Civil Procedure
, ,

THE JURY’S FINDING THAT THE SCAFFOLD PROVIDED ADEQUATE PROTECTION FOR THE PLAINTIFF IN THIS SCAFFOLD-FALL CASE WAS AGAINST THE WEIGHT OF THE EVIDENCE; NEW TRIAL REQUIRED (FIRST DEPT).

The First Department, setting aside the defense verdict and ordering a new trial in this Labor Law 240(1) scaffold-fall action, determined the scaffold did not adequately protect the plaintiff:

The scaffold on which plaintiff was working at the time of his accident failed to adequately protect him from a height-related hazard when his core drill jerked, causing him to fall backward … . “It does not matter whether plaintiff’s fall was the result of the scaffold . . . tipping, or was due to plaintiff misstepping off its side. In [either] of those circumstances, either defective or inadequate protective devices constituted a proximate cause of the accident” …  Since the remedy for a verdict that is against the weight of the evidence is a new trial … , the issues of whether defendants violated Labor Law § 240 (1), whether such violation proximately caused plaintiff’s accident and injuries, and damages should be retried. Isaac v 135 W. 52nd St. Owner LLC, 2023 NY Slip Op 06085, First Dept 11-28-23

Practice Point: In this Labor Law 240(1) scaffold-fall case, the jury’s finding that the scaffold provided plaintiff with adequate protection was deemed against the weight of the evidence. Where a jury verdict is against the weight of the evidence, a new trial is required.

 

, ,

THE CIVIL RIGHTS LAW, NOT THE CPLR, CONTROLS COUNTERCLAIMS FOR ATTORNEY’S FEES AND PUNITIVE DAMAGES IN A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP) ACTION (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court in this Strategic Lawsuit Against Public Participation (SLAPP) proceeding, determined that the criteria for dismissal of counterclaims are those in the Civil Rights Law, not the CPLR:

In this Strategic Lawsuit Against Public Participation (SLAPP) action, the court’ s application of CPLR 3212(h) to the underlying summary judgment motion was improper, because the counterclaims “subject to the motion” were not SLAPP claims, but affirmative counterclaims for punitive damages and attorneys’ fees … .The award of attorneys’ fees and punitive damages in SLAPP actions are subject to their own statutory regime found in Civil Rights Law §§ 70-a and 76-a (anti-SLAPP statutes). The anti-SLAPP statutes contain their own requirements and evidentiary burdens that have nothing to do with CPLR 3212(h) … .

With respect to punitive damages, Civil Rights Law § 70-a(1)(c) provides that they may only be recovered upon “an additional demonstration” that the SLAPP action was commenced or continued for the sole purpose of “harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights.” Thus, when the court improperly applied the burden-shifting mechanism of 3212(h) to the punitive damages analysis, it effectively negated the requirement that defendants make this “additional demonstration.” …

With respect to attorneys’ fees, the pre-amendment version of Civil Rights Law § 70-a(1)(a) squarely put the burden of proof on the party advancing counterclaims to recover damages in the context of a SLAPP suit. As the November 2020 amendments to the anti-SLAPP statutes do not apply retroactively, this pre-amendment version of the statute applies … .

The pre-amendment version of Civil Rights Law § 70-a(1)(a) provided that “attorney’s fees may be recovered upon a demonstration . . . that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law.” Courts have held that attorneys’ fees are discretionary under the pre-amendment statutory framework, and that it is not necessary to award attorneys’ fees “in every situation in which [an anti-SLAPP] claim is interposed” … . … [W]e find that the court providently exercised its discretion in awarding attorneys’ fees here … . 161 Ludlow Food, LLC v L.E.S. Dwellers, Inc., 2023 NY Slip Op 06076, First Dept 11-28-23

Practice Point: The analysis of counterclaims for attorney’s fees and punitive damages in a SLAPP action is controlled by the Civil Rights Law, not the CPLR.

 

, ,

THE CLAIM OF SEXUAL ABUSE UNDER THE CHILD VICTIMS ACT MET THE PLEADING CRITERIA OF THE COURT OF CLAIMS ACT; THE FOUR-YEAR TIME FRAME WAS SUFFICIENTLY PRECISE; THE FACTS ALLEGED SUFFICIENTLY STATED THE NATURE OF THE DEFENDANT’S NEGLIGENCE (THIRD DEPT).

The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Mackey, determined claimant sufficiently stated a sexual-abuse claim under the Child Victims Act:

The reality is that “in matters of sexual abuse involving minors, as recounted by survivors years after the fact, dates and times are sometimes approximate and incapable of calendrical exactitude” … .Where sexual abuse is alleged to have occurred several decades ago “when the claimant was a child, it is not reasonable to expect the claimant to be able to provide exact dates when each instance of abuse occurred, nor is it required” … . Under the particular circumstances of the case before us, where the events are alleged to have occurred several decades ago, when claimant was a child, we conclude that the four-year time frame pleaded is sufficient … . Accordingly, the Court of Claims should not have granted defendant’s motion to dismiss on the ground that the claim failed to adequately state the time when the claim arose.

Also, contrary to defendant’s contention, claimant sufficiently states the nature of his claim. He alleges that between 1986 and 1990, when he was a minor, he was raped and sexually abused by numerous men in multiple incidents while he was lawfully at the premises; that the abuse was perpetrated “by both employees of [defendant] as well as members of the general public”; that the “majority of these incidents occurred at the premises, more specifically in the bathrooms, stairwells, tunnels, boiler room, and Kitty Carlisle Hart Theater”; that many of the perpetrators “were agents, servants and/or employees of [defendant]”; and that “[t]hese men were known among the community and the children as a sexual predator [sic] yet allowed unfettered access to children.” Claimant also alleges that abusers used their positions of power and authority provided by defendant “to be able to sexually abuse [him] and other boys” and that their abuse “was open and obvious.” Claimant further asserts that defendant negligently retained an abuser “in his position as teacher, coach, and counselor,” despite notice of his propensities, thereby allowing his abuse of claimant and other boys to continue. We conclude that these allegations are sufficient to provide defendant with “an indication of the manner in which . . . claimant was injured and how [defendant] was negligent” … , and thus “defendant cannot reasonably assert that it is unaware of the nature of the claim” … . Because the claim is sufficiently detailed to allow defendant “to investigate the claim and to reasonably infer the basis for its alleged liability” … , it satisfies the nature of the claim requirement of Court of Claims Act § 11 (b). Wright v State of New York, 2023 NY Slip Op 06013, Third Dept 11-22-23

Practice Point: The allegations of sexual abuse within a four-year time frame met the pleading criteria of Court of Claims Act section 11 (b) in that the allegations were sufficiently detailed to determine the nature of the claim and to allow investigation of the claim.

 

, , ,

PLAINTIFF DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff in this foreclosure action did not demonstrate she had standing to bring it:

“A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced” … . The plaintiff can establish standing by attaching a properly endorsed note to the complaint when commencing the action . However, where an endorsement is on an allonge and not on the note itself, the plaintiff must establish that the allonge was “so firmly affixed to the note so as to become a part thereof” as required by UCC 3-202(2) at the time the action was commenced … . “Where there is no allonge or note that is either endorsed in blank or specially endorsed to the plaintiff, mere physical possession of a note at the commencement of a foreclosure action is insufficient to confer standing or to make a plaintiff the lawful holder of a negotiable instrument for the purposes of enforcing the note” … .

Here, the plaintiff failed to establish her status as holder of the note at the time the action was commenced. Although the note was executed in favor of the decedent, the copy of the note attached to the complaint contains two purported endorsements in favor of nonparties, and the plaintiff failed to show that an allonge containing an additional endorsement back to the decedent was firmly affixed to the note … . Thompson v Seay, 2023 NY Slip Op 06072, Second Dept 11-22-23

Practice Point: Where the note and the endorsements do not comply with the requirements of UCC 3-202, plaintiff has not demonstrated standing to bring the foreclosure action.

 

, , , ,

THE UNION’S CHALLENGE TO THE DEDUCTION OF THE COST OF HEALTH INSURANCE FROM A VILLAGE POLICE OFFICER’S PAYCHECK WAS A BREACH-OF-CONTRACT ACTION FOR WHICH THE STATUTE OF LIMITATIONS BEGAN RUNNING ANEW FOR EACH PAYCHECK (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Brathwaite Nelson, determined the action by the union on behalf of a village police officer challenging the deduction of health insurance costs from each paycheck was a breach-of-contract action and the statute of limitations began running anew for each paycheck:

Teamsters Local 445 (hereinafter the Union) filed a demand for arbitration of a grievance against the Village of Maybrook alleging that the Village breached the parties’ collective bargaining agreement (hereinafter CBA) by deducting a certain amount from each paycheck of Sergeant Michael Maresca for health insurance costs. The Supreme Court granted the Village’s petition to permanently stay arbitration on the ground that the claim sought to be arbitrated was barred by the four-month statute of limitations applicable to CPLR article 78 proceedings. The principal issues raised on this appeal are (1) whether the underlying claim is in the nature of CPLR article 78 seeking review of an administrative determination or in the nature of breach of contract, and (2) if the latter, whether the claim is predicated on a single breach or a series of breaches that occurred with each paycheck. … [W]e determine that the nature of the claim is breach of contract and that the claim is predicated on a series of independent alleged breaches. Since the statute of limitations began anew as to each breach, we find that the claim to be arbitrated was not wholly time-barred. We therefore modify the order appealed from by … granting the Union’s cross-motion to the extent of compelling arbitration of so much of the grievance as was not time-barred. Matter of Village of Maybrook v Teamsters Local 445, 2023 NY Slip Op 06051, Second Dept 11-22-23

Practice Point: Here the union’s challenge to the deduction of the cost of health insurance from a village police officer’s paycheck was governed by the six-year statute of limitations for a breach of contract action, not the four-month statute of limitations for an Article 78 proceeding. The statute began running anew for each paycheck.

 

, ,

THE PETITIONER MAKING THE FOIL REQUEST IS A LAW FIRM; THE FACT THAT THE FIRM’S CLIENT ALSO HAD STANDING TO MAKE THE FOIL REQUEST DID NOT DEPRIVE THE LAW FIRM OF STANDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 proceeding contesting the denial of petitioner’s FOIL request should not have been dismissed for lack of standing. Petitioner is a law firm seeking information on behalf of a client. The fact that the client could also make the FOIL request did not deprive the law firm of standing:

Supreme Court erred in concluding that the petitioner lacked standing to pursue this proceeding. The petitioner submitted the FOIL request to the Agency and its request was denied, both initially and on administrative appeal. Since the petitioner’s FOIL request was denied, it had standing to seek judicial review of the Agency’s determination … , regardless of whether it submitted the FOIL request, in whole or in part, on behalf of a client … . The petitioner’s standing was not extinguished by the fact that its client also would have had standing to commence a proceeding challenging the denial of the FOIL request … . Matter of Law Offs. of Cory H. Morris v Suffolk County, 2023 NY Slip Op 06046, Second Dept 11-22-23

Practice Point: Here a law firm made FOIL requests that were denied. The law firm then brought an Article 78 proceeding which was erroneously dismissed for lack of standing. The fact that the firm’s client had standing to bring the FOIL proceedings did not deprive the law firm of standing.

 

, ,

FATHER IGNORED COMPULSORY DISCOVERY OF HIS FINANCIAL ABILITY TO PAY SUPPORT; FATHER IS PRECLUDED FROM OFFERING SUCH EVIDENCE IN THE SUPPORT PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Family Court, determined father should be precluded from presenting any evidence of his financial ability to pay support because he submitted no financial evidence in the discovery phase:

Family Court Act § 424-a “mandates the compulsory disclosure by both parties to a support proceeding of ‘their respective financial states,’ through the provision of tax returns, pay stubs, and sworn statements of net worth” … . “Where a respondent in a child support proceeding fails, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act § 424-a, ‘the court on its own motion or on application shall grant the relief demanded in the petition or shall order that, for purposes of the support proceeding, the respondent shall be precluded from offering evidence as to [the] respondent’s financial ability to pay support'” … .

Here, the father failed to provide a sworn statement of net worth, a tax return, or a pay stub, and he did not offer an explanation for his failure to do so. Since the father failed, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act [*2]§ 424-a, the Family Court was required to either grant the relief demanded in the petition or preclude the father from offering evidence as to his financial ability to pay support … . Under the circumstances of this case, the court should have precluded the father from offering evidence regarding his financial ability to pay support, and should have determined the amount of child support based on the needs of the child, as requested by the mother … . Matter of Grant v Seraphin, 2023 NY Slip Op 06044, Second Dept 11-22-23

Practice Point: In support proceedings, discovery of a party’s financial ability to pay support is compulsory. A party who fails to provide such discovery may be precluded from presenting any financial evidence.

 

, ,

THE 90-DAY TIME-LIMIT IN RPAPL 1371 FOR BRINGING A MOTION FOR A DEFICIENCY JUDGMENT AGAINST THE PURCHASER OF PROPERTY AT A FORECLOSURE SALE FUNCTIONS AS A STATUTE OF LIMITATIONS; THE MOTION HERE WAS UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the mortgagor’s order to show cause seeking a deficiency judgment against defendant, the purchaser of the property at the foreclosure sale, should have been dismissed as untimely pursuant to RPAPL 1371:

RPAPL 1371(2) states that “[s]imultaneously with the making of a motion for an order confirming the sale, provided such motion is made within ninety days after the date of the consummation of the sale by the delivery of the proper deed of conveyance to the purchaser, the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought or the attorney who shall have appeared for such party in such action.” “The courts have uniformly treated the 90-day period contained in RPAPL 1371(2) as a provision in the nature of a statute of limitations, so that the plaintiff’s failure to serve notice within the 90-day period is a complete bar to the entry of a deficiency judgment, and the proceeds of the sale will be deemed to be in full satisfaction of the mortgage debt” … . JDRMDBP-SM, LLC v Hossain, 2023 NY Slip Op 06033, Second Dept 11-22-23

Practice Point: The 90-day time-limit in RPAPL 1371 for bringing a motion for a deficiency judgment against the purchaser of property at a foreclosure sale functions as a statute of limitations. A late motion must be dismissed.

 

THE ORDER TO SHOW CAUSE REQUIRED SERVICE BY OVERNIGHT EXPRESS; THE ORDER TO SHOW CAUSE WAS SERVED BY PRIORITY MAIL; THE FAILURE TO COMPLY WITH THE SPECIFIED MANNER OF SERVICE DEPRIVED THE COURT OF JURISDICTION TO HEAR THE MOTION.

The First Department, reversing Supreme Court, determined plaintiff did not serve the order to show cause in the manner specified in the order. Therefore the court did not have jurisdiction to hear the motion and the order was vacated:

Despite the express provision requiring overnight express service, in the March 16, 2020, order to show cause, plaintiff served the order to show cause and related papers by Priority Mail, which only guarantees delivery in one to three days. Failure to comply strictly with the service provision of the order to show cause deprived the court of jurisdiction to hear the motion … . Therefore, the resulting July 15, 2020 order should be vacated. Colonial Funding Network, Inc. v Finley, 2023 NY Slip Op 05980, First Dept 11-21-23

Practice Point: If the order to show cause specifies the manner of service and service is not made in that manner, the court is deprived of jurisdiction to hear the motion.

 

, ,

THE COMPLAINT ALLEGED DECEDENT, WHO WAS SUFFERING SHORTNESS OF BREATH, SHOULD HAVE BEEN PROVIDED AN ADVANCE LIFE SUPPORT AMBULANCE; THE COMPLAINT SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the complaint alleging decedent, who was suffering shortness of breath, should have been provided an advance life support (ALS) ambulance sounded in medical malpractice, not negligence. Therefore the 2 1/2 year statute of limitations applied and the action was time-barred:

… [T]he allegations in the complaint sound in medical malpractice rather than ordinary negligence. Plaintiffs seek to hold defendant liable for its failure to provide decedent with an advance life support (ALS) ambulance after being advised that decedent was suffering from shortness of breath. The type of ambulance provided by defendant “bears a substantial relationship to the rendition of medical treatment,” and thus plaintiffs’ claims must be viewed within a medical malpractice framework … . The dispatcher would need to understand the significance of “shortness of breath,” have specialized knowledge of the equipment or devices that could treat or care for the possible conditions arising from this symptom and be familiar with accepted practice in providing an ALS ambulance … . Trofimova v Seniorcare Emergency Med. Servs., Inc., 2023 NY Slip Op 05997, First Dept 11-21-23

Practice Point: Where the complaint alleges the need for and failure to provide an ambulance with advance life support, it sounds in medical malpractice, not negligence.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy