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RATHER THAN ADDRESS WHETHER THE REGULATION REQUIRING HOSPITAL PERSONNEL TO BE VACCINATED AGAINST COVID WAS VALID AND ENFORCEABLE, THE FOURTH DEPARTMENT REFUSED TO APPLY THE EXCEPTION TO THE MOOTNESS DOCTRINE TO CONSIDER THE MERITS OF THE APPEAL, FLATLY STATING THE PANDEMIC IS OVER AND IS UNLIKELY TO OCCUR AGAIN (FOURTH DEPT).

The Fourth Department determined the appeal of Supreme Court’s ruling that the regulation requiring hospitals to mandate COVID vaccines for certain personnel exceeded the state’s authority has been rendered moot. The state has repealed the regulation. The exception to the mootness doctrine did not apply:

“[A]lthough the issue of the lawfulness of the [regulation] implemented as part of the extraordinary response to the COVID-19 pandemic is substantial and novel, that issue is not likely to recur” given the once-in-a-century nature of the pandemic and the emergency governmental response thereto … . Moreover, “the issue is not of the type that typically evades review” … . Indeed, the regulation at issue here received significant review from numerous state and federal courts … . In any event, under the circumstances of this case, we would “decline to invoke the mootness exception” … . Matter of Medical Professionals for Informed Consent, Individually & On Behalf of Its Members, Kristen Robillard, M.D., Zarina Hernandez-schipplick, M.D., Margaret Florini, A.S.C.P., Olyesya Girich, Rt (r), & Elizabeth Storelli, R.N., Individually & On Behalf of Others Similarly Situated v Bassett, 2023 NY Slip Op 05052, Fourth Dept 10-6-23

Practice Point: Health care workers lost their jobs if they refused to be vaccinated against COVID-19 based upon the regulation at issue here. At this writing, the COVID booster campaign continues unabated for everyone over six months of age. Yet the Fourth Department refused to consider whether the regulation was valid and enforceable, instead declaring the pandemic over and unlikely to occur again.

 

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​ A VOLUNTARY DISCONTINUANCE OF A FORECLOSURE ACTION NO LONGER STOPS THE STATUTE OF LIMITATIONS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, noted that a voluntary discontinuance of a foreclosure action no longer stops the running of the statute of limitations:

… [T]he six-year statute of limitations began to run on the entire debt in July 2011, when the plaintiff’s predecessor in interest commenced the 2011 action and elected to call due the entire amount secured by the mortgage … . The instant action was commenced in October 2017, more than six years later (see CPLR 213[4] …). Under the recently enacted Foreclosure Abuse Prevention Act (L 2022, ch 821, § 8 [eff Dec. 30, 2022]), the voluntary discontinuance of the 2011 action did not “in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute” (CPLR 3217[e]; see CPLR 203[h] … ). Under these new legal principles, the plaintiff cannot rely upon the voluntary discontinuance of the 2011 action to establish entitlement to judgment as a matter of law on the issue of whether enforcement of the mortgage loan is barred by the statute of limitations. CIT Bank, N.A. v Byers, 2023 NY Slip Op 04978, Second Dept 10-4-23

Practice Point: Pursuant to the Foreclosure Abuse Prevention Act (2022) the bank can no longer stop the running of the statute of limitations by voluntarily discontinuing the foreclosure action.

 

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BECAUSE INDIVIDUAL CONDOMINIUM OWNERS ARE RESPONSIBLE FOR THE INSTALLATION OF WINDOW GUARDS, THE DEFENDANT CONDOMINIUM DID NOT HAVE A DUTY TO INSTALL WINDOW GUARDS; THEREFORE THE CONDOMINIUM COULD NOT BE LIABLE FOR PLAINTIFFS’ DAUGHTER’S FALL FROM THE WINDOW UNDER THE FAILURE-TO-INSTALL THEORY; HOWEVER, THE CAUSE OF ACTION BASED UPON THE CONDOMINIUM’S FAILURE TO GIVE PLAINTIFFS NOTICE OF THE CITY’S WINDOW-GUARD REQUIREMENT SURVIVED THE DISMISSAL MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action against the condominium (Cherry Tower) premised on the failure to install window guards should have been granted. Plaintiffs’ five-year-old daughter fell from the fifth floor window and died. Defendants submitted the deed to the condominium in support of their motion to dismiss. Because plaintiffs owned the condo unit, the defendants had no duty to install window guards. However, the cause of action alleging defendants’ failure to give notice of the window-guard requirements in the NYC Administrative Code properly survived dismissal:

“The characteristics of condominium ownership are individual ownership of a unit, an undivided interest in designated common elements, and an agreement among unit owners regulating the administration and maintenance of property” … . Accepting the allegations in the complaint as true and giving the plaintiff the benefit of every favorable inference, the documentary evidence submitted by the Cherry Tower defendants, including the deed demonstrating that the unit owners purchased the subject apartment in 2007 and the condominium bylaws placing the responsibility to install and maintain window guards on the unit owners, conclusively demonstrates that the Cherry Tower defendants had no duty to install window guards in the subject apartment (see Administrative Code of City of NY § 27-2043.1[a]; Real Property Law § 339-ee[1] …).

However, the Supreme Court properly denied that branch of the Cherry Tower defendants’ motion which was to dismiss so much of the complaint as was based on their failure to provide the plaintiff with notice of the window guard requirements. Accepting the allegations in the complaint as true and giving the plaintiff the benefit of every favorable inference, the complaint sufficiently alleges that the Cherry Tower defendants failed in their responsibility to deliver the required notice to the subject apartment (see Administrative Code § 17-123[b]). Kwan v Kuie Chin Yap, 2023 NY Slip Op 05005, Second Dept 10-4-23

Practice Point: The individual owners of condominium units are responsible for the installation of window guards. Therefore the condominium itself has no duty to do so. However, in New York City, the condominium must provided the individual owners with notice of the window-guard requirement in the NYC Administrative Code.

 

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CLAIMANT ALLEGED SHE WAS SEXUALLY ABUSED BY TWO NAMED COUNSELORS FROM 1976 – 1978; THE CLAIM SUFFICIENTLY STATED A CAUSE OF ACTION PURSUANT TO THE CHILD VICTIMS ACT (SECOND DEPT). ​

The Second Department, reversing the Court of Claims, determined the claim sufficiently stated a Child Victims Act cause of action stemming from claimant’s time in foster care from 1976 to 1978:

In August 2021, the claimant commenced this claim pursuant to the Child Victims Act (see CPLR 214-g) against the defendant, inter alia, to recover damages for negligent hiring, retention, and supervision. The claim alleged that the claimant, who had been placed in a group home for foster children when she was a child, was sexually abused by two named counselors at the facility from approximately 1976 to 1978. * * *

Court of Claims Act § 11(b) requires a claim to specify: “(1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” … . These statutory requirements are “strictly construed,” and a failure to comply with any of those requirements “constitutes a jurisdictional defect mandating dismissal” … . The purpose of the pleading requirements is to provide “a sufficiently detailed description of the particulars of the claim” so that the defendant can “investigate and promptly ascertain the existence and extent of its liability” … . “However, absolute exactness is not required, so long as the particulars of the claim are detailed in a manner sufficient to permit investigation” … .

Contrary to the Court of Claims’ determination, the claim set forth the nature of the claim with sufficient detail to allow the defendant to investigate the claim in a prompt manner and to assess its potential liability … . Brown v State of New York, 2023 NY Slip Op 04997, Second Dept 10-4-23

Practice Point: To state a cause of action pursuant to the Child Victims Act, the claim need only provide sufficient detail to allow a prompt investigation. Here the claimant alleged sexual while in foster care from 1976 – 1978 by two named counselors. The claim should not have been dismissed.

 

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TO CONSIDER A LATE MOTION TO DISMISS, THE PARTIES MUST FIRST BE PUT ON NOTICE THE MOTION WILL BE TREATED AS A SUMMARY JUDGMENT MOTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the post answer motion to dismiss should not have been heard because there was no notice the motion would be treated as a summary judgment:

By summons and complaint dated July 8, 2021, plaintiff commenced this action against defendant to recover approximately $360,000 in unpaid counsel fees. Defendant answered on or about August 18, 2021 and asserted the statute of limitations as an affirmative defense. On September 1, 2022, defendant moved under CPLR 3211(a)(5) to dismiss the complaint as barred by the statute of limitations. Defendant’s post-answer motion to dismiss was not timely (CPLR 3211 [e] …). Thus, the motion could not be properly considered unless the parties were given adequate prior notice that the motion would be treated as a motion for summary judgment under CPLR 3212 or unless an exception to the notice requirement applied (see CPLR 3211[c] … ). Because defendant does not argue that adequate notice was given or that an exception to the notice requirement applied, we reverse and remand for consideration after the parties are given the requisite notice …   Smith, Gambrell & Russell, LLP v 3 W. 16th St., LLC, 2023 NY Slip Op 04952, First Dept 10-3-23

Practice Point: A late (post answer) motion to dismiss should not be considered unless the parties have been notified the motion will be treated as a summary judgment motion, or unless some exception to the notice requirement applies.

 

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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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