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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE “GOOD CAUSE” FOR AN EXTENSION OF TIME FOR SERVICE OF PROCESS, BUT DID DEMONSTRATE ENTITLEMENT TO AN EXTENSION IN THE “INTEREST OF JUSTICE” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to extend the time for service of process in this foreclosure action should have been granted. Although plaintiff did not demonstrate “good cause” for the failure to timely serve, the motion met the criteria for an extension in the interest of justice:

“Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time within which to effect service of the summons and complaint for good cause shown or in the interest of justice” … . “Good cause and interest of justice are two separate and independent statutory standards” … . “Good cause requires a showing of reasonable diligence in attempting to effect service” … . “[I]n deciding whether to grant a motion to extend the time for service in the interest of justice, the court must carefully analyze the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter” … . Under the interest of justice standard, “the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to [the] defendant” … .

Here, the plaintiff failed to demonstrate good cause for an extension of time to serve the defendant under CPLR 306-b. In support of the motion, the plaintiff offered nothing more than the affidavit of service of its process server. While a process server’s affidavit of service creates a presumption of proper service, the Supreme Court had already determined that the defendant presented sufficient evidence to warrant a hearing on the validity of service of process … .

However, the plaintiff established its entitlement to an extension of time to serve the defendant with the summons and complaint in the interest of justice. The plaintiff established that the action was timely commenced, that service was timely attempted and was perceived by the plaintiff to have been made within 120 days after the commencement of the action, and that the plaintiff promptly sought an extension of time to serve the defendant with the summons and complaint after the defendant challenged service on the ground that it was defective. The plaintiff also established that the statute of limitations had expired when the plaintiff made its motion to extend the time to serve, that the plaintiff had a potentially meritorious cause of action, and that there was no identifiable prejudice to the defendant attributable to the delay in service … . Countrywide Home Loans, Inc. v Lyons, 2023 NY Slip Op 04654, Second Dept 9-20-23

Practice Point: If you can’t demonstrate “good cause” for an extension of time for service of process, you still may be entitled to an extension in the “interest of justice.”

 

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DEFENDANT’S ANSWER IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN STRUCK FOR SPOLIATION OF EVIDENCE; VIDEO OF A FEW SECONDS BEFORE AND AFTER THE FALL WAS PRESERVED, BUT THE REST OF THE VIDEO WAS OVERWRITTEN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s answer in this slip and fall case should not have been struck for spoliation of evidence. Defendant preserved video of the slip and fall which happened during a school dance—a few seconds before and after the fall. But the rest of the video was overwritten 21 days after the fall as part of a routine procedure. Defendant did not have notice of a potential lawsuit at the time the video was overwritten:

“‘Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126′” … . “‘A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense'” … . “In the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices” … .

… The plaintiff did not establish that the defendant was placed on notice that the evidence might be needed for future litigation at the time the surveillance footage was overwritten … . The plaintiff did not notify the defendant of her claim or request that it preserve any surveillance footage until three months after the incident, by which time the surveillance footage had been automatically overwritten according to the defendant’s normal business practices.

… [D]efendant’s preservation of only a portion of the surveillance footage does not indicate a culpable state of mind … as the defendant’s representative, an assistant principal, averred in an affidavit that he saved the 51-second clip of the incident consistent with ordinary business practices. The assistant principal’s affidavit was also sufficient to provide the court with a “basis to find that the search for [the surveillance footage] had been a thorough one [and] that it had been conducted in a good faith effort to provide [the surveillance footage] to the plaintiff” … . Similarly, no evidence indicates that the defendant was negligent in failing to preserve the additional surveillance footage … . Moreover, the plaintiff did not demonstrate that the defendant’s failure to preserve all of the surveillance footage fatally compromised her ability to prove her claim … . M.B. v St. Francis Preparatory Sch., 2023 NY Slip Op 04651, Second Dept 9-20-23

Practice Point: After video of the fall and a few seconds before and after the fall was preserved by the defendant, the remainder of the video was overwritten in accordance with usual procedure. Defendant was not on notice of a potential lawsuit when the video was overwritten. In the absence of evidence of bad faith, defendant’s answer should not have been struck for spoliation of evidence.

 

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REPORTER WHO INTERVIEWED A MURDER SUSPECT WAS ENTITLED TO A WRIT OF PROHIBITION PREVENTING THE ENFORCEMENT OF A SUBPOENA TO TESTIFY AT THE SUSPECT’S TRIAL; THE PEOPLE DID NOT MEET THE CRITERIA OF CIVIL RIGHTS LAW 79-H, THE NEW YORK SHIELD LAW, WHICH PROTECTS REPORTERS FROM SUBPOENAS WHEN THE REPORTER’S TESTIMONY IS NOT “CRITICAL OR NECESSARY” TO THE PEOPLE’S CASE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined the petitioner, a reporter who had interviewed a murder suspect (Ramsaran) prior to his conviction (which was overturned), was entitled to a writ of prohibition preventing the enforcement of a subpoena to testify at the suspect’s second murder trial  The People did not meet the criteria required by Civil Rights Law 79-h known as the New York Shield Law:

… [P]etitioner has made a sufficient showing that, if in error, respondent (County Court Judge) exceeded his jurisdiction and power in denying petitioner’s motion to quash the subpoena and in ordering her to testify to the information that she obtained in her capacity as a journalist in contravention of Civil Rights Law § 79-h. * * *

To overcome the qualified privilege afforded to petitioner under the New York Shield Law, it was incumbent on the People to make “a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party’s claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source” … . * * *

Even accepting that the information was “highly material and relevant” to the prosecution of Ramsaran, the People failed to establish that it was “critical or necessary.” There is a multitude of other evidence against Ramsaran, including the statements that he made during his telephone calls to 911, his girlfriend and to the police, as well as DNA evidence of the blood found on his clothes and the victim’s van. Contrary to the People’s contentions, Ramsaran’s statements during the interview do not contradict any of his other statements, but rather corroborate other available evidence against him … . Matter of Canning v Revoir, 2023 NY Slip Op 04623, Third Dept 9-14-23

Practice Point: This is a rare example of the granting of a writ of prohibition preventing a judge from enforcing a subpoena. The subpoena sought the testimony of a reporter who had interviewed a murder suspect. The People did not meet the criteria of the New York Shield Law which protects reporters from subpoenas when the reporter’s testimony is not “critical or necessary” to the People’s case.

 

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A DEFAULTING PARTY ADMITS ALL THE ALLEGATIONS IN THE COMPLAINT; THEREFORE LIABILITY ISSUES SHOULD NOT BE CONSIDERED AT THE INQUEST (SECOND DEPT).

The Second Department, reversing Supreme Court, determined liability issues should not have been considered at the inquest where defendant had defaulted:

By defaulting, the defendant admitted “all traversable allegations in the complaint, including the basic allegation of liability” … . As such, the sole issue to be determined at the inquest was the extent of the damages sustained by the plaintiff, and the Supreme Court should not have considered issues of liability … . Znojewski v Mamczur, 2023 NY Slip Op 04617, Second Dept 9-13-23

Practice Point: A defaulting party admits the allegations in the complaint. Liability issues are off limits at an inquest to determine damages.

 

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A PROPERTY OWNER DOES NOT HAVE A DUTY TO INSTALL A NON-SLIP FLOOR OR A GRAB BAR IN A SHOWER STALL; THEREFORE THE NEGLIGENCE AND NUMEROUS OTHER CAUSES OF ACTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined that the facts alleged, a shower-stall floor that was slippery when wet, and the absence of a grab bar in the shower, did not state a cause of action for negligence because the allegations did not describe a duty owed to plaintiff:

… [T]he complaint alleged as defects that the shower floor was slippery and there were no grab bars in the shower stall where Royanne Weiss alleged she slipped and fell. However, there is no common-law or statutory requirement imposing a duty upon the defendants to provide nonslip surfacing or grab bars in a shower or shower stall … . Nor is there a duty to install such devices where the shower and shower stall were not alleged to be defective or hazardous for ordinary use . Accordingly, the Supreme Court should have granted dismissal of the cause of action alleging common-law negligence pursuant to CPLR 3211(a)(7). Weiss v Vacca, 2023 NY Slip Op 04613, Second Dept 9-13-23

Practice Point: The property owner did not have a duty to provide a non-slip floor or a grab bar in the shower stall which was not alleged to be defective or hazardous for ordinary use.

 

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WHATEVER TIME REMAINS ON THE APPLICABLE STATUTE OF LIMITATIONS WHEN THE COVID TOLL BEGAN IS ALL THAT IS LEFT WHEN TO TOLL IS LIFTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that, although the statute of limitations in this personal injury action was subject to the COVID toll, the three-year statute just picked up at the end of the toll where it left off at the beginning of the toll. Therefore plaintiff was not entitled to simply add on the length of the toll (228 days) when the toll was lifted. Plaintiff only had 152 days left when the toll was lifted:

… [D]ue to the tolling provision of the executive orders, the statute of limitations within which the plaintiff was required to file the instant action was tolled between March 20, 2020, and November 3, 2020, a period of 228 days … . However, contrary to the plaintiff’s contention, she did not have an additional 228 days, the length of the tolling period, after the toll’s expiration to commence the action. Instead, the remaining 152 days left on her three-year statute of limitations started to run after the toll was lifted on November 4, 2020 … . Since this action was commenced on April 19, 2021, the plaintiff did not timely commence the action within t…he statute of limitations that expired on April 4, 2021…. . Ruiz v Sanchez, 2023 NY Slip Op 04608, Second Dept 9-13-23

Practice Point: Whatever time remains on the applicable statute of limitations when the COVID toll began is all that is left when the COVID toll is lifted.

 

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​DEFENDANTS IN THIS TRAFFIC ACCIDENT CASE WERE ENTITLED TO DISCOVERY OF GEOGRAPHICAL DATA (SPEED, LOCATION) RECORDED ON PLAINTIFF’S CELL PHONE DURING A THREE-HOUR PERIOD LEADING UP TO THE TIME OF THE ACCIDENT (SECOND DEPT).

The Second Department, modifying Supreme Court in this traffic accident case, determined the defendants’ motion to inspect and collect geographical data recorded on plaintiff’s cell phone leading up to the time of the accident was properly granted but should have been limited to a specific time (1 to 4 pm):

… [T]he defendants’ motion papers sufficiently demonstrated that the production of the plaintiff’s cell phone for the inspection and collection of geographical data recorded on the device on the date of the accident may result in the disclosure of relevant evidence and was reasonably calculated to lead to the discovery of information bearing on the plaintiff’s claim … . The affidavit of the defendants’ forensic expert demonstrated, among other things, that the plaintiff’s cell phone would have recorded data regarding the plaintiff’s speed and location before and at the time of the accident, which, under the particular circumstances presented, was relevant to the plaintiff’s contention that the defendant driver was negligent in the operation of his vehicle … .

The Supreme Court, however, improvidently exercised its discretion in failing to limit the defendants’ inspection and collection of geographical data recorded on the plaintiff’s cell phone on the date of the accident. Under the circumstances, the defendants’ inspection and collection of geographical data from the plaintiff’s cell phone shall be limited to such data recorded between 1:00 p.m. and 4:00 p.m. on the date of the accident … .  Pulgarin v Richmond, 2023 NY Slip Op 04605, Second Dept 9-13-23

Practice Point: Apparently a cell phone in a car records speed and location data which is discoverable in a traffic accident case.

 

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IT WAS AN ABUSE OF DISCRETION TO DENY FATHER’S MOTION TO VACATE HIS DEFAULT IN THIS CUSTODY CASE; THE USUAL RULES FOR VACATION OF A DEFAULT ARE RELAXED IN CHILD CUSTODY MATTERS (SECOND DEPT).

The Second Department, reversing Family Court, determined it was an abuse of discretion to deny father’s motion to vacate his default in this custody proceeding. The Second Department noted that the strict rules surrounding vacation of a default are relaxed in custody matters:

Although the determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court … , “the law favors resolution on the merits in child custody proceedings” … . Thus, the “general rule with respect to opening defaults in civil actions is not to be rigorously applied to cases involving child custody” … .

Under the circumstances presented here, including the brief period between the father’s default and his motion to vacate his default, and in light of the policy favoring resolutions on the merits in child custody proceedings, the Family Court improvidently exercised its discretion in denying the father’s motion to vacate the order of custody and parental access … entered upon his failure to appear … . Matter of Orobona v Cunningham, 2023 NY Slip Op 04594, Second Dept 9-13-23

Practice Point: Because resolution on the merits is the policy favored in child custody matters, the usual rules surrounding vacation of a default are relaxed.

 

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PLAINTIFF WAS HIRED BY THE CITY TO INSTALL A SEWER AND DISCOVERED 45,000 TONS OF CONTAMINATED SOIL; DEFENDANT, WHO CAUSED THE CONTAMINATION, REFUSED TO REMEDIATE; PLAINTIFF, WHO REMEDIATED THE CONTAMINATION, STATED A CAUSE OF ACTION FOR UNJUST ENRICHMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the unjust-enrichment cause of action should not have been dismissed. Plaintiff was hired by the city to install a sewer. Plaintiff discovered 45,000 tons of contaminated soil in the process. Defendant, who was responsible for the contamination, refused to remediate. Plaintiff remediated the contamination and sued defendant for the cost. There was no contract between plaintiff and defendant, so the breach of contract action was properly dismissed. However, the complaint stated a cause of action for unjust enrichment:

“To recover under a theory of unjust enrichment, a litigant must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered” … . “‘[T]he essential inquiry in any action for unjust enrichment . . . is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered'” … . “Although privity is not required for an unjust enrichment claim, a claim will not be supported if the connection between the parties is too attenuated” … .

Here, affording the complaint a liberal construction, we find that it sufficiently alleged that the defendant was unjustly enriched, at the plaintiff’s expense, by the plaintiff’s remediation of the contaminated soil, and that it would be against equity and good conscience to permit the defendant to retain what was sought to be recovered … . Bedford-Carp Constr., Inc. v Brooklyn Union Gas Co., 2023 NY Slip Op 04566, Second Dept 9-13-23

Practice Point: When there is no contract between the parties, the unjust-enrichment theory may be viable, as it was in this case.

 

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THE LETTER OF INTENT WAS NOT A BINDING REAL ESTATE CONTRACT; THE MOTION TO DISMISS THE BREACH OF CONTRACT, BASED ON “DOCUMENTARY EVIDENCE,” SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the letter of intent was a non-binding agreement-to-agree, not a contract for the sale of real property. The letter of intent constituted “documentary evidence” which warranted dismissal of the breach of contract action:

… [T]he defendant submitted the letter of intent which conclusively established that the parties did not enter into a binding contract, but instead had a mere agreement to agree … . The letter of intent expressly stated that the letter was not contractually binding and expressly anticipated the future preparation and execution of a contract. Accordingly, the Supreme Court should have granted dismissal of so much of the complaint as was predicated upon allegations of breach of contract pursuant to CPLR 3211(a)(1). Krasnow v Catania, 2023 NY Slip Op 04584, Second Dept 9-13-23

Practice Point: This is a rare example of a successful motion to dismiss based on documentary evidence. The letter of intent was, by its terms, not a binding contract. Therefore the breach of contract action, based upon the letter of intent, should have been dismissed.

 

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