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MOTHER WAS PROPERLY FOUND TO HAVE DEFAULTED IN THIS CUSTODY MATTER; MOTHER’S ATTORNEY APPEARED BUT DECLINED TO PARTICIPATE; ALTHOUGH AN ORDER ENTERED UPON DEFAULT CANNOT BE APPEALED, CONTESTED MATTERS DETERMINED BY THE TRIAL COURT, HERE WHETHER MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED, CAN BE CONSIDERED UPON APPEAL FROM THE ORDER (FOURTH DEPT). ​

The Fourth Department determined Family Court properly found that mother had defaulted in this custody case, despite the appearance of her attorney, who declined to participate. The Fourth Department noted that, although orders issued pursuant to a default are not appealable, contested issues addressed by the court prior to the order can be appealed:

The court, concluding that the mother had adequate warning that she needed to appear visually at the hearing and ample time to ensure that she could so appear, denied the request for an adjournment and determined that it would proceed by inquest. Inasmuch as the mother’s attorney, although present, thereafter declined to participate in the inquest in the mother’s absence and instead elected to stand mute, we conclude that the court properly determined that the mother’s failure to appear in the manner required constituted a default … .

“[N]otwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from [such an] order [or judgment] brings up for review those ‘matters which were the subject of contest’ before the [trial court]” … . Thus, in this appeal, review is limited to the mother’s contention that the court abused its discretion in denying her attorney’s request for an adjournment … . We reject that contention. Matter of Reardon v Krause, 2023 NY Slip Op 04880, Fourth Dept 9-29-23

Practice Point: Here mother did not appear in the custody case and her attorney appeared but declined to participate. Therefore Family Court properly found mother to be in default.

Practice Point: Although an order entered upon default is not appealable, an appeal from such an order brings up contested matters decided prior to the order. Here the appellate court considered the denial of mother’s attorney’s request for an adjournment.

 

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A COURT DOES NOT LOSE JURISDICTION OVER SENTENCING A DEFENDANT PURSUANT TO CRIMINAL PROCEDURE LAW 390.30 IF MORE THAN A YEAR ELAPSES BETWEEN CONVICTION AND SENTENCING (FOURTH DEPT).

The Fourth Department determined County Court did not lose jurisdiction to sentence defendant because more than a year elapsed between conviction and sentencing:

CPL 390.30 provides in relevant part that, “[i]n any case where the court determines that a defendant is eligible for a sentence of probation, the court, after consultation with the prosecutor and upon the consent of the defendant, may adjourn the sentencing to a specified date and order that the defendant be placed on interim probation supervision. In no event may the sentencing be adjourned for a period exceeding one year from the date the conviction is entered, except that upon good cause shown, the court may, upon the defendant’s consent, extend the period for an additional one year where the defendant has agreed to and is still participating in a substance abuse treatment program in connection with a . . . drug court” … . … [N]othing in CPL 390.30 (6) (a) states that a failure to sentence a defendant within one year of the date of conviction is a jurisdictional defect or that sentencing after that one-year period is prohibited … . People v Bryant, 2023 NY Slip Op 04857, Fourth Dept 9-29-23

Practice Point: CPL 390.30 does not deprive the sentencing court of jurisdiction if more than a year elapses between conviction and sentencing.

 

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PLAINTIFF’S DECEDENT’S COUNSEL IN THIS SLIP AND FALL CASE DID NOT SEEK LETTERS OF ADMINISTRATION FOR FIVE YEARS AFTER PLAINTIFF’S DECEDENT’S DEATH; THE ACTION SHOULD HAVE BEEN DISMISSED PURSUANT TO CPLR 1021 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the slip and fall action should have been dismissed. The slip and fall occurred in 2013. The plaintiff died in 2015.and the letters of administration were issued in 2021. Plaintiff’s attorney’s failure to move for substitution of a representative within a reasonable time warranted dismissal:

CPLR 1021 provides as follows: “A motion for substitution may be made by the successors or representatives of a party or by any party . . . . If the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate . . . . [I]f the event requiring substitution is the death of a party, and timely substitution has not been made, the court, before proceeding further, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent’s estate to show cause why the action or appeal should not be dismissed” (emphasis added).

In determining reasonableness, a court should consider the plaintiff’s diligence in seeking substitution, prejudice to the other parties, and whether the action is shown to have potential merit … . Here, the unexplained, more than five-year delay in seeking letters of administration shows a lack of diligence … . Further, no demonstration of a potentially meritorious cause of action was made. Neither the attorney affirmation, complaint, bill of particulars, nor supplemental bill of particulars constituted an affidavit of merit, as counsel had no personal knowledge of the facts of this case … . Since an affidavit of merit was not submitted and no reasonable justification for the delay in petitioning for letters of administration was provided, the Supreme Court should have granted that branch of Nargis’s motion which was pursuant to CPLR 1021 to dismiss the complaint insofar as asserted against it … . Mesniankina v 302 BBA, LLC2023 NY Slip Op 04765, Second Dept 9-27-23

Practice Point: If your client dies and you wait five years before substituting an administrator for the decedent, you risk dismissal pursuant to CPLR 1021.

 

A MOTION FOR LEAVE TO RENEW CAN BE BASED UPON A CLARIFICATION OF DECISIONAL LAW, BUT NOT, AS WAS THE CASE HERE, ON A DECISION APPLYING ESTABLISHED LAW TO THE FACTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the motion for leave to renew should not have been granted because it was not based upon a change in law. Rather it was based upon a case in which established law was applied to the facts:

“A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law,” including, a clarification of decisional law ( …see CPLR 2221[e][2]). Here, however, the defendant failed to demonstrate such a change in the law … . Instead, the defendant merely pointed to case law … , in which this Court applied established law … to the facts presented in the particular case before it. Sharan v Christiana Trust, 2023 NY Slip Op 04789, Second Dept 9-27-23

Practice Point: A motion for leave to renew can be based on a change in the law, even a clarification of decisional law. But here the motion was improperly based upon a decision which merely applied established law to the facts.

 

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THE MOTION SEEKING A CIVIL CONTEMPT DETERMINATION COULD NOT BE HEARD BECAUSE THE UNDERLYING SUIT HAD BEEN SETTLED BY STIPULATION WITH PREJUDICE, STRIPPING SUPREME COURT OF SUBJECT MATTER JURISDICTION; A SUBJECT-MATTER-JURISDICTION ISSUE CAN BE RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the civil contempt action should have been dismissed because the underlying lawsuit had been settled with prejudice by stipulation. Because the issue relates to a court’s subject matter jurisdiction it can be raised on appeal at any time. The underlying lawsuit was a property dispute and concerned the location of a fence. After the stipulation settling the suit, defendants refused to sign a fence location agreement. Because the underlying suit was discontinued with prejudice the plaintiffs only option is to commence a plenary action:

… [T]he defendants’ assertion, raised for the first time on appeal, that the Supreme Court lacked jurisdiction to entertain the plaintiffs’ motion, is properly before this Court, as a defect in subject matter jurisdiction may be raised at any time … .

“A motion must be addressed to a pending action” … , and a court lacks jurisdiction to entertain a motion after the action has been “‘unequivocally terminated . . . [by the execution of] an express, unconditional stipulation of discontinuance'” … , “or actual entry of judgment in accordance with the terms of the settlement” … .

Here, the Supreme Court lacked jurisdiction to entertain that branch of the plaintiffs’ motion which was to hold the defendants in civil contempt, since the action was unconditionally discontinued with prejudice by the parties’ stipulation, as memorialized in the settlement order … . Thus, the relief requested by the plaintiffs was not available by way of a motion, and could only be obtained by commencing a plenary action … . Riccio v Kukaj, 2023 NY Slip Op 04785, Second Dept 9-27-23

Practice Point: A stipulation settling a suit with prejudice strips the court of subject matter jurisdiction. Therefore a subsequent motion cannot be heard by the court and any further proceedings require a plenary action. A subject-matter-jurisdiction issue can be raised for the first time on appeal.

 

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THE LABOR LAW CONSTRUCTION-ACCIDENT CAUSES OF ACTION SHOULD NOT HAVE BEEN JOINED OR CONSOLIDATED WITH THE MEDICAL MALPRACTICE CAUSES OF ACTION STEMMING FROM THE CONSTRUCTION-ACCIDENT INJURIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to join or consolidate the Labor Law construction accident causes of action with the medical malpractice action stemming from the injuries should not have been granted:

Plaintiff commenced suit in Kings County against several construction-related entities alleging violations of Labor Law §§ 200, 240, and 241, and common-law negligence in connection with a work place accident causing injuries. After the accident plaintiff was taken to a NYCHHC facility for treatment. Plaintiff also commenced this suit in New York County against NYCHHC, alleging medical malpractice in connection with his post-accident treatment. Although the Labor Law action and this medical malpractice action involve common questions of fact, the medical malpractice action involves numerous additional allegations of professional negligence and injuries that are irrelevant to the Labor law action, and there are no common defendants.

The issues and applicable legal principles presented in plaintiff’s Labor Law action and this medical malpractice action arising out of his subsequent treatment, are so dissimilar that joinder or consolidation pursuant to CPLR 602(a) would not be beneficial and would likely result in jury confusion … . Licona-Rubio v New York City Health & Hosps. Corp., 2023 NY Slip Op 04722, First Dept 9-26-23

Practice Point: Even though the construction-accident injuries were the basis for the medical malpractice action, the Labor Law and medical malpractice actions (against different defendants) should not have been joined or consolidated.

 

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FATHER’S OBJECTIONS (EXCEPTIONS) TO THE IMMEDIATE RETURN OF HIS SON TO ITALY PURSUANT TO THE HAGUE CONVENTION SHOULD NOT HAVE BEEN REJECTED; THE EXCEPTIONS RELATED TO ALLEGATIONS THE SON WAS SUBJECTED TO SEXUAL ABUSE BY A MINOR IN MOTHER’S HOME IN ITALY (THIRD DEPT).

The Third Department, reversing Supreme Court, remitting the matter for a hearing, determined father, pursuant to the Hague Convention, had demonstrated the child should not be returned to his mother in Italy based on his allegations he was being sexually abused by a minor who was living with mother and her boyfriend. Therefore, Supreme Court should not have rejected father’s objections (exceptions) to his son’s immediate return to Italy for further proceedings:

… [T]he father’s affidavit reflects that the child made prompt, detailed disclosures of extended sexual abuse experienced in Italy. According to that affidavit, the child also reported that abuse to the mother, who did nothing to intervene or prevent it and instead “forced” the child to continue sleeping in the same bed as the offending minor. As a result, the child has developed a fear of returning to the mother’s custody in Italy. Supreme Court was also provided with a State Police incident report, which reflects that the child made consistent allegations regarding the abuse about a week following his disclosure to the father while interviewed by a child advocate. The submissions further included confirmation of the Italian criminal proceedings against the mother and the boyfriend for not only their alleged failure to prevent the abuse but their facilitation thereof, and there is no information in the record regarding the current status of those proceedings. Accepting these serious allegations as true … , it was an abuse of discretion to summarily reject the father’s first exception. * * *

The affidavit also makes clear the child’s particularized fear of returning to the mother’s custody given that failure and her alleged facilitation of the sexual abuse that he suffered. The record also contained an email exchange regarding the child’s lack of communication with the mother following his disclosure to the father, in which the father describes the child as “a mature smart boy” who was thus being permitted to determine his own communication preferences. Also before the court was the transcript of a telephone call between the child and the mother, in which the child, then nearly 10½ years old, articulately opposed the mother’s efforts to secure his return, citing the mother’s “lies” as to why he is in New York. Although the parties debate the influence each of them has had over the child’s position, any undue influence also presents an issue of fact … . Matter of Luisa JJ. v Joseph II, 2023 NY Slip Op 04699, Third Dept 9-21-23

Practice Point: Here mother demonstrated her son should be returned to her in Italy pursuant to the procedures in the Hague Convention. However father’s objections (exceptions) to his son’s immediate return to Italy based on allegations of sexual abuse by a minor in mother’s home should not have been rejected by Supreme Court. An immediate hearing in Supreme Court was ordered.

 

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THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION AND DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE-OF-DEFAULT PROVISION IN THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate standing to bring the action and did not demonstrate it complied with the notice-of-default requirement in the mortgage:

… [T]he plaintiff failed to establish … that it had standing to commence this action. Although the plaintiff attached to the complaint copies of the note and three undated purported allonges, one of which was endorsed in blank, the plaintiff did not demonstrate that the purported allonges, which were each on a piece of paper completely separate from the note and the other allonges, were “so firmly affixed” to the note “as to become a part thereof,” as required by UCC 3-202(2) … .

Additionally, the plaintiff failed to establish its status as the holder of the note at the time of the commencement of the action. In her affidavit, a representative employed by the plaintiff’s loan servicer did not attest that she was personally familiar with the plaintiff’s record-keeping practices and procedures, and therefore, the plaintiff failed to demonstrate that the records relied upon by the affiant were admissible under the business records exception to the hearsay rule … .

The plaintiff also failed to establish, prima facie, that it complied with the condition precedent contained in the mortgage agreement, which required that it provide the defendant with a notice of default prior to demanding payment of the loan in full. The evidence submitted by the plaintiff did not establish that a notice of default was mailed by first-class mail or actually delivered to the defendant’s “notice address” if sent by other means, as required by the terms of the mortgage agreement … . U.S. Bank N.A. v Yoel, 2023 NY Slip Op 04682, Second Dept 9-20-23

Practice Point: If the defendant in a foreclosure action alleges the bank lacks standing to bring the action, the bank must demonstrate it was the holder of the note at the time the action was brought. In addition, the UCC requires that allonges endorsed in blank be “firmly affixed” to the note.

 

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IN THIS STAIRWAY SLIP AND FALL CASE, PLAINTIFF WAS ENTITLED TO DISCOVERY OF PRE-ACCIDENT REPAIRS BUT NOT POST-ACCIDENT REPAIRS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this stairway slip and fall case, determined plaintiff was entitled to discovery of pre-accident repairs, but not to post-accident repairs:

Supreme Court providently exercised its discretion in directing the defendant to produce repair-related records for the subject stairway, and a list of all employees and contractors that performed work on the subject stairway, for the period of two years prior to the date of the subject accident. The plaintiffs demonstrated that those documents were material and necessary to the prosecution of this action, and the defendant failed to demonstrate that a protective order was warranted with respect to those documents … .

However, the Supreme Court erred in directing the defendant to disclose such records for the one-year period after the date of the accident. “Evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case” … . “An exception to this rule applies if a defendant’s maintenance of, or control over, the subject instrumentality is at issue” … . Here, there is no issue as to the maintenance and control of the subject stairway … . C.B. v New York City Tr. Auth., 2023 NY Slip Op 04650, Second Dept 9-20-23

Practice Point: Plaintiff in this stairway slip and fall case is entitled to discovery of pre-accident, but not post-accident, repairs.

 

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THE COMPLAINT AGAINST THE LESSOR OF THE CAR INVOLVED IN THE TRAFFIC ACCIDENT SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO THE GRAVES AMENDMENT; DEFENDANT LESSOR DID NOT DEMONSTRATE THE ALLEGATION THE CAR WAS NEGLIGENTLY MAINTAINED WAS “NOT A FACT AT ALL” (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s cause of action against the lessor of the car involved in the accident (Rallye) should not have been dismissed pursuant to the Graves Amendment. Defendant lessor did not demonstrate the allegation the car was negligently maintained was “not a fact at all:”

“Pursuant to the Graves Amendment (49 USC § 30106), the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner” … .

In considering a motion pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory … . Further, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and “unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it,” dismissal should not eventuate … .

Here, contrary to the defendants’ contention, an affidavit from Rallye’s employee, who averred that Rallye’s vehicle was in good working condition at the time it allegedly was rented to Orphanides [the defendant driver], did not show that the plaintiff’s allegation of negligent maintenance on the part of Rallye was not a fact at all … . Holmquist v Orphanides, 2023 NY Slip Op 04660, Second Dept 9-20-23

Practice Point: In the context of a motion to dismiss, an affidavit stating that the leased car involved in the accident was in good working order will not, pursuant to the Graves Amendment, defeat a complaint which alleges the leased car was negligently maintained  The affidavit does not establish the negligent-maintenance allegation is “not a fact at all.”

 

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