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THE MOTIONS BEFORE THE COURT IN THIS TRAFFIC ACCIDENT CASE DID NOT ADDRESS WHETHER THE EMPLOYER OF THE DRIVER WHO REAR-ENDED PLAINTIFF WAS LIABLE TO PLAINTIFF; THE COURT SHOULD NOT HAVE, SUA SPONTE, SEARCHED THE RECORD AND AWARDED PLAINTIFF SUMMARY JUDGMENT AGAINST THE EMPLOYER OF THE DRIVER (FIRST DEPT).

The First Department, reversing Supreme Court in this traffic-accident case, determined Supreme Court should not have, sua sponte, searched the record to award plaintiff summary judgment. The motion before the court was brought by the owner of the car which rear-ended plaintiff, Piard, against the employer of the driver of Piard’s car, Y & H. Piard alleged she did not give Y & H permission to drive the car outside of Y & H’s garage and sought summary judgment on that ground. The court improperly searched the record and awarded plaintiff summary judgment against Y & H:

… [T]he motion court erred in searching the record and granting summary judgment to plaintiff on plaintiff’s claim against Y&H. A motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense … . Here, the only issues raised with respect to defendant Piard’s motion and plaintiff’s cross-motion were defendant Piard’s liability and plaintiff’s comparative fault. The court therefore erred in granting summary judgment to plaintiff based on co-defendant’s Y&H’s liability. Christopher v Piard, 2023 NY Slip Op 05787, First Dept 11-16-23

Practice Point: There are limits on a court’s power to search the record and, sua sponte, award summary judgment. Here the motions before the court did not address whether the employer of the driver of the car which rear-ended plaintiff was liable to plaintiff. Rather the motions addressed whether the owner of the car had given permission to the employer of the driver to use her car. The motion court should not have searched the record and awarded summary judgment to plaintiff against the employer of the driver of the car.

 

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THE RELIGIOUS CEREMONY IN THIS SAME-SEX MARRIAGE TOOK PLACE IN 2005 BEFORE NEW YORK RECOGNIZED SAME SEX MARRIAGE; THE CIVIL MARRIAGE TOOK PLACE IN 2011 JUST AFTER ENACTMENT OF THE MARRIAGE EQUALITY ACT (MEA); DEFENDANT SHOULD HAVE BEEN ALLOWED TO AMEND HER ANSWER TO ALLEGE THE MARRIAGE TOOK PLACE IN 2005 (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ford, reversing Supreme Court, determined defendant’s motion amend the answer in this divorce proceeding to allege the date of this same-sex marriage to have been when the religious ceremony took place in 2005, as opposed the date of the subsequent civil marriage in 2011, should have been granted. In 2005 same sex marriage was not recognized in New York. The Marriage Equality Act (MEA) recognizing same sex marriage was enacted in 2011 and the parties civil marriage took place shortly after the enactment. There has been no determination the MEA cannot apply retroactively. So defendant’s motion to amend is not palpably improper and does not prejudice the plaintiff:

At this stage in the litigation, we are tasked only with determining whether the defendant should be permitted to amend her answer to make the claim that the date of the parties’ marriage was July 21, 2005, not July 28, 2011. “In the absence of prejudice or surprise to the opposing party, a motion for leave to amend the [pleadings] pursuant to CPLR 3025(b) should be freely granted unless the proposed amendment is ‘palpably insufficient’ to state a cause of action or is patently devoid of merit” … . * * *

… [T]he plaintiff failed to establish that the defendant’s proposed amendment was prejudicial to her in such a way that the defendant’s motion for leave to amend her answer should be denied. Neither the length of time between the defendant’s original answer and her motion for leave to amend, nor the fact that the amendment may affect the plaintiff’s maintenance and equitable distribution obligations, are sufficient to establish prejudice to the plaintiff … . Mackoff v Bluemke-Mackoff, 2023 NY Slip Op 05721, Second Dept 11-15-23

Practice Point: In this divorce case, the same-sex couple was married in a 2005 religious ceremony before the Marriage Equality Act (MEA). The couple was married again in a civil ceremony in 2011 shortly after the MEA was enacted. Defendant should have been allowed to amend her answer to state the marriage took place in 2005, not 2011.

 

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THE EVIDENCE PRESENTED IN SUPPORT OF THE DEFENDANT TOWN’S AND POLICE-OFFICER’S MOTION FOR SUMMARY JUDGMENT WAS UNEQUIVOCAL AND DEMONSTRATED THE OFFICERS DID NOT VIOLATE THE “RECKLESS DISREGARD” STANDARD WHEN PURSUING PLAINTIFF MOTORCYCLIST, WHO CRASHED AND WAS SERIOUSLY INJURED; THERE WAS NO INDICATION FURTHER DISCOVERY WOULD UNCOVER ADDITIONAL EVIDENCE; THE MOTION SHOULD NOT HAVE BEEN DENIED AS PREMATURE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town and police–officer defendants were entitled to summary judgment in this motorcycle-accident case. The plaintiff motorcyclist (Ronnie) was speeding when the defendant officers attempted to follow him with their emergency lights on. Both officers pulled back because of the plaintiff’s speed, losing sight of plaintiff. The officers came upon plaintiff in the woods after he had crashed. Supreme Court ruled that the defendants had demonstrated entitlement to summary judgment but found that the summary judgment motion was premature and should await further discovery. The Second Department held the motion was not premature because there was no indication additional evidence would be uncovered:

… [T]he defendants’ motion was not premature. The plaintiff “failed to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the [defendants]” … . Here, the officers directly involved in the attempt to stop Ronnie provided sworn affidavits, which were unequivocal and consistent with the other evidence in the case. There is no basis to conclude that depositions or other discovery would render a different account of the accident. The plaintiff’s mere hope or speculation that discovery would render evidence sufficient to defeat the defendants’ motion was not a sufficient basis to deny the motion … . Rojas v Town of Tuxedo, 2023 NY Slip Op 05751, Second Dept 11-15-23

Practice Point: Where the evidence supports summary judgment and there is no indication further discovery will uncover additional evidence, the summary judgment motion should not be denied as “premature.”

 

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US BANK AS THE CURRENT ASSIGNEE OF THE MORTGAGE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN THIS ACTION TO DISCHARGE AND CANCEL THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined US Bank, the current assignee of the mortgage, should have been allowed to intervene in this action to cancel and discharge the mortgage pursuant to RPAPL 1501(4):

“Upon a timely motion, a person is permitted to intervene as of right in an action involving the disposition of property where that person may be adversely affected by the judgment” (… see CPLR 1012[a][3]). Additionally, “a court, in its discretion, may permit a person to intervene, inter alia, when the person’s claim or defense and the main action have a common question of law or fact” (… see CPLR 1013). “Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance since a timely motion for leave to intervene should be granted, in either event, where the intervenor has a real and substantial interest in the outcome of the proceedings” … .

Here, in support of its motion, U.S. Bank submitted evidence demonstrating, among other things, that it took possession of the note in June 2018, prior to the commencement of this action, and that it was the current assignee of the mortgage. Under the circumstances, U.S. Bank’s submissions were sufficient to demonstrate that it had a real and substantial interest in the outcome of this action … . Maggi v U.S. Bank Trust, N.A., 2023 NY Slip Op 05600, Second Dept 11-8-23

Practice Point: A timely motion to intervene should be granted where the intervenor has a real and substantial interest in the outcome.

 

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DEFENDANT WAS MISNAMED IN THE COMPLAINT BUT WAS TIMELY SERVED; THE AMENDED COMPLAINT WITH THE CORRECT NAME, ALTHOUGH SERVED AFTER THE STATUTE OF LIMITATIONS HAD RUN, SHOULD NOT HAVE BEEN DISMISSED; THE AMENDED COMPLAINT SHOULD HAVE BEEN DEEMED TIMELY SERVED AND FILED NUNC PRO TUNC (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice complaint should not have been dismissed. The original complaint misnamed defendant Mark Gennaro as Michael Gennaro. The amended complaint with the correct name was served after the statute of limitations had run. Pursuant to CPLR 305(c) the amended complaint should have been deemed timely served and filed nunc pro tunc:

“CPLR 305(c) authorizes the court, in its discretion, to ‘allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced'” … . “‘Where the motion is to cure a misnomer in the description of a party defendant, it should be granted even after the statute of limitations has run where (1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought'” … . “While CPLR 305(c) may be used to cure a misnomer in the description of a party defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served” … . “The amendment may be made nunc pro tunc” … .

Here, the evidence established that the defendant, misnamed as Michael Gennaro in the original summons and complaint, was properly served with process within 120 days after the action was timely commenced and, thus, the Supreme Court obtained jurisdiction over the defendant (see CPLR 306-b …). Moreover, there was no evidence that the defendant would be prejudiced by allowing the caption to be amended to correct the misnomer … . The defendant’s contention that the plaintiff was improperly attempting to name a new defendant after the expiration of the statute of limitations, instead of merely correcting a misnomer, is without merit … .  Brewster v North Shore/LIJ Huntington Hosp., 2023 NY Slip Op 05584, Second Dept 11-8-23

Practice Point: Here the defendant was misnamed in the original complaint and the corrected complaint was not served until after the statute of limitations had run. The amended complaint should have been deemed timely served and filed nunc pro tunc pursuant to CPLR 305(c).

 

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RESIDENTS OF A NURSING HOME ALLEGING INADEQUATE STAFFING, UNPALATABLE FOOD, MEDICATION DELAYS, INJURIES DUE TO INSUFFICIENT SUPERVISION, AND ALLOWING RESIDENTS TO SIT IN THEIR OWN WASTE, WERE PROPERY CERTIFIED AS A CLASS IN THIS PUBLIC HEALTH LAW 2801-D ACTION (SECOND DEPT).

The Second Department, in an extensive full-fledged opinion by Justice Ford, distinguishing a prior ruling involving similar issues, determined Supreme Court properly certified nursing-home patients at defendant’s facility as a class in this suit alleging substandard care:

The issue presented on this appeal is whether the Supreme Court properly granted the plaintiffs’ motion for class certification in this putative class action alleging a violation of Public Health Law § 2801-d. … [W]e distinguish our precedent in Olmann v Willoughby Rehabilitation & Health Care Ctr., LLC (186 AD3d 837) and determine that the court properly held … that the plaintiffs established the commonality and superiority requirements of CPLR 901(a) and, thus, correctly granted plaintiffs’ motion for class certification. * * *

… [T]he New York State Department of Health issued a report that revealed multiple issues within Sapphire, including rooms in disrepair, improper food monitoring, late medications, and insufficient staffing. Specifically, the report found, inter alia, that “[b]ased on observation, interview and record review during a recertification survey, the facility did not ensure that sufficient nursing staff were available to provide the services necessary to attain the highest practicable physical, mental and psychosocial well-being of the resident population . . . in accordance with resident needs identified in the facility assessment.” …

The plaintiffs’ motion … included multiple affidavits of family members of residents and former residents …, as well as the affidavit of a former resident, in support of the allegation that [the facility] was insufficiently staffed. These affidavits contained … allegations of unpalatable food, medication delays, injuries due to insufficient supervision, and instances of residents sitting in their own waste for hours at a time. Jenack v Goshen Operations, LLC, 2023 NY Slip Op 05495, First Dept 11-1-23

Practice Point: Here residents of a nursing home alleging substandard care in violation of Public Health Law 2801-d were properly certified as a class. The court distinguished a prior ruling where the action sounded in both negligence and violation of the Public Health Law.

 

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PURSUANT TO THE MANDATORY VICTIMS RESTITUTION ACT (MVRA), A LIEN BASED UPON A RESTITUTION ORDER IN A CRIMINAL CASE CAN BE ENFORCED BY THE PRIVATE CRIME VICTIM (SECOND DEPT).

The Second Department, reversing Supreme Court, in a comprehensive full-fledged opinion by Justice Christopher, determined that a lien based on a restitution order pursuant to the Mandatory Victims Restitution Act (MVRA) can be enforced by the crime victim. Here an insurance company (National Union), which presumably paid the restitution to the crime victim, was substituted for the victim:

This appeal provides an opportunity to examine 18 USC § 3664(m)(1)(B) of the Mandatory Victims Restitution Act of 1996 (hereinafter the MVRA), wherein we determine that a crime victim named in a restitution order who has obtained an abstract of judgment and, as in this case, has docketed and recorded that abstract in accordance with the rules of this state may enforce that lien pursuant to this state’s laws. For the reasons that follow, we hold that section 3664(m)(1)(B) provides a mechanism by which a private victim may enforce such a lien, and that the Supreme Court erred when it … determined that the victim was limited to only recording the abstract of judgment as a lien and dismissed the petition of National Union Fire Insurance Company … (hereinafter National Union) … pursuant to CPLR 404(a) and 3211(a)(7) for failure to state a cause of action. * * *

Our review of the legislative history of the MVRA … supports our conclusion that pursuant to 18 USC § 3664(m)(1)(B), once a victim named in a restitution order has obtained a lien on the property of the defendant, the victim may enforce that lien. * * *

The petition and documentary evidence demonstrated that in accordance with 18 USC § 3664(m)(1)(B), National Union obtained an abstract of judgment of the restitution order at issue from the Clerk of the United States District Court for the Southern District of New York, which was docketed with the Westchester County Clerk (see CPLR 5018[c]), and thus, had an enforceable lien on [the criminal defendant’s] property … . Therefore, the petition sufficiently alleges that National Union is a judgment creditor permitted to commence this proceeding pursuant to CPLR 5206(e). Matter of National Union Fire Ins. Co. of Pittsburgh, Pa, 2023 NY Slip Op 05503, Second Dept 11-1-23

Practice Point: A lien against a criminal defendant’s property based on a restitution order can, pursuant to the Mandatory Victims Restitution Act (MVRA), be enforced by the crime victim.

 

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PRIOR FORECLOSURE ACTIONS DISMISSED FOR LACK OF STANDING DO NOT ACCELERATE THE DEBT AND THEREFORE DO NOT START THE RUNNING OF THE STATUTE OF LIMITATIONS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the prior foreclosure actions had been dismissed for lack of standing and therefore did not accelerate the debt and did not start the running of the statute of limitations. Here the plaintiffs sought discharge and cancellation of the mortgage on the ground the statute of limitations for a foreclosure action had expired:

Because the 2009 and the 2012 actions were dismissed due to lack of standing by defendant, the debt was not validly accelerated when those actions were commenced. As such, the statute of limitations to foreclose on the mortgage did not start to run. Stated differently, the statute of limitations has not expired. Caprotti v Deutsche Bank Natl. Trust Co., 2023 NY Slip Op 05428m Third Dept 10-26-23

Practice Point: Foreclosure actions dismissed for lack of standing do not accelerate the debt and do not start the running of the statute of limitations.

 

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DECEDENT’S SON’S ACTION AGAINST THE COUNTY COMMISSIONER OF SOCIAL SERVICES RE: MEDICAID REIMBURSEMENT FOR DECEDENT’S NURSING-HOME CARE WAS CONTRACTUAL IN NATURE; NO NOTICE OF CLAIM WAS REQUIRED; THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE TRANSFER OF FATHER’S ASSETS TO SON FOR LESS THAN MARKET VALUE WAS FOR PURPOSES OTHER THAN MEDICAID PLANNING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined no notice of claim was required for decedent’s son’s action against the Rensselaer County Commissioner of Social Services and there was a question of fact whether the transfer of decedent’s assets to decedent’s son was in anticipation of nursing home costs. The action against the county sounded in contract, not tort, and therefore there was no “notice of claim” requirement. It was not clear whether decedent’s need for nursing-home care was anticipated and whether there were reasons for the transfer of assets at less than market value unrelated to Medicaid planning. The county was seeking $178,084,47 for decedent’s nursing-home care, the alleged fair market value of the assets transferred to decedent’s son during the 60-month Medicaid look-back period:

… County Law § 52 — indisputably still rooted in tort-like claims — does not extend so far as to encompass claims that are contractual in nature … . * * *

Mindful that this is a plenary action, rather than a proceeding in which our review of an administrative determination is circumscribed, the Commissioner’s own submissions raise material issues of fact as to whether the subject transfers, or some portion thereof, were exclusively for a purpose other than Medicaid planning, necessitating denial of her motion regardless of the sufficiency of the opposing papers … . RSRNC, LLC v Wilson, 2023 NY Slip Op 05432, Third Dept 10-26-23

Practice Point: Actions against a county which are based in contract, not tort, do not trigger the notice-of-claim requirement.

Practice Point: Transfers of assets for less than market value are not necessarily subject to the 60-month look-back for Medicaid nursing-home-costs reimbursement. Here there were questions of fact whether nursing-home care was anticipated at the time of the transfer and whether the transfer was made for legitimate purposes unrelated to Medicaid planning.

 

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ALTHOUGH THE TEN-YEAR DELAY BETWEEN THE JUDGMENT OF FORECLOSURE AND THE SALE OF THE PROPERTY WAS NOT WRONGFUL, THE DEFENDANT SHOULD NOT BE REQUIRED TO PAY THE INTEREST ACCRUED DURING THE DELAY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff in this foreclosure action was not entitled to interest for the ten years between the judgment of foreclosure and the sale of the property:

… [T]he plaintiff explained that his delay in proceeding with the sale of the subject property was based upon his opinion that it was not worthwhile to pursue a foreclosure sale due to market conditions and his belief that there was “no significant equity in the property” beyond the amount of the first mortgage on the property, which had priority over that held by the plaintiff. While the plaintiff’s failure to conduct the sale based on a potential financial benefit to him was not wrongful conduct, per se, his inaction was the sole cause of the accrual of more than 10 years of postjudgment interest, which is roughly equivalent to the principal amount awarded in the order and judgment of foreclosure and sale in the first instance (see CPLR 5004). Under these circumstances, it would be inequitable to charge Romano [defendant] with such accrued interest … . Krupnick v Romano, 2023 NY Slip Op 05398, Second Dept 10-25-23

Practice Point: Here the plaintiff did not sell the property until ten years after the judgment of foreclosure due to market conditions. Although the delay was not wrongful, the defendant should not be required to the pay the interest on the judgment accrued during the ten-year delay.

 

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