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PLAINTIFF, WORKING FOR A SUBSIDIARY OF VERIZON, WAS INJURED LAYING A CABLE UNDER A CITY STREET; THE MAJORITY HELD THERE WERE QUESTIONS OF FACT WHETHER A FRANCHISE AGREEMENT BETWEEN THE CITY AND VERIZON AND/OR THE ISSUANCE OF A CITY PERMIT RENDERED THE CITY A PROPER DEFENDANT; A TWO-JUSTICE DISSENT DISAGREED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, over a two-justice dissent, determined the City was not entitled to summary judgment in this Labor Law case. Plaintiff was working for a subsidiary of Verizon (Empire City) laying a conduit in a trench in the street when a backhoe pushed a metal plate onto his foot. The City argued it was not an owner under the Labor Law, had no notice of the alleged dangerous condition, and there was no nexus between the City and and the work performed by Verizon. The majority held there were questions of fact about the existence of a franchise agreement between the City and Verizon, and whether a permit for the work had been issued by the City. Although the “lack of a nexus” argument was raised for the first time in reply, the majority held the issue raised a question of law and was properly considered by the motion court:

The witness’s lack of knowledge renders his testimony inconclusive and speculative as to whether Empire City was working without a permit on the day plaintiff was injured, warranting denial of summary judgment … . * * *

… [T]here remain triable issues of fact as to whether there existed a nexus between plaintiff and the City … . Furthermore, plaintiff sought certified copies of the franchise agreements for both Verizon and Empire City as part of discovery and defendant failed to provide them. Thus, the City’s challenge to the franchise documentation as being unauthenticated should have been rejected by the court, as copies of the documents remained in defendant’s exclusive possession and control but were not provided to plaintiff …  Powell v City of New York, 2023 NY Slip Op 03843, First Dept 7-17-23

Practice Point: The plaintiff was employed by a subsidiary of Verizon and was injured laying a conduit in a trench under a City street. The City claimed it had no nexus to the work done by Verizon. The majority held questions of fact about the existence of a franchise agreement between the City and Verizon and the issuance of a permit by the City precluded summary judgment in favor of the City. There was a two-justice dissent.

 

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A STORM DRAIN ALLEGEDLY CAUSED FLOODING ON PLAINTIFFS’ PROPERTY; THE NEGLIGENT DESIGN CAUSE OF ACTION AGAINST THE VILLAGE ACCRUED WHEN THE STORM DRAIN WAS INSTALLED, NOT WHEN THE FLOODING OCCURRED, AND WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this action stemming from flooding cause by a village storm drain, determined the negligent design cause of action against the village was time-barred because it accrued at the time the storm drain was constructed. However the trespass and negligent maintenance causes of action were timely:

General Municipal Law § 50-i provides that tort actions against municipalities “shall be commenced within one year and ninety days after the happening of the event upon which the claim is based.” Here, the plaintiffs alleged in the third cause of action that the Village’s negligent design of the storm drain system caused or contributed to the alleged property damage. Under these circumstances, “the happening of the event upon which the claim [was] based” …  was the design and installation of the storm drain system, which occurred many years prior to the commencement of this action … . Methal v Village of Ardsley, 2023 NY Slip Op 03775, Second Dept 7-12-23

Practice Point: Here a storm drain flooded plaintiffs’ property. The negligent maintenance and trespass causes of action accrued at or about the time of the flooding and were timely. But the negligent design cause of action accrued when the storm drain was installed and was time-barred.

 

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ALTHOUGH DEFENDANT IN THIS FORECLOSURE ACTION DID NOT ASSERT THE AFFIRMATIVE DEFENSES OF LACK OF STANDING AND LACK OF PERSONAL JURISDICTION IN THE ANSWER, THE DEFENSES WERE NOT WAIVED AND THE MOTION TO AMEND THE ANSWER SHOULD HAVE BEEN GRANTED; EVEN THOUGH THE STATUTE PROVIDING THAT THE LACK OF STANDING DEFENSE WAS NOT WAIVED WAS NOT ENACTED AT THE TIME THE MOTION WAS DECIDED, THE APPELLATE COURT CAN APPLY THE LAW AS IT EXISTS AT THE TIME OF THE APPELLATE DECISION (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the defendant’s failure to assert the plaintiff’s lack of standing and lack of personal jurisdiction in the answer did not waive those affirmative defenses, Defendant’s motion to amend the answer should have been granted. The court noted that even though RPAPL 1302-a, which provides that the failure to assert plaintiff’s lack of standing in the answer does not waive the defense, had not been enacted at the time the motion below was decided, the statute can be applied on appeal:

RPAPL 1302-a … provides that, notwithstanding the provisions of CPLR 3211(e), “any objection or defense based on the plaintiff’s lack of standing in a foreclosure proceeding related to a home loan, as defined in [RPAPL 1304(6)(a)], shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss.” “‘The general rule holds that an appellate court must apply the law as it exists at the time of its decision'” … . Accordingly, RPAPL 1302-a may be considered in connection with the present appeal, even though that statute had not been enacted at the time the relevant orders in this action were decided by the Supreme Court … .

… Although the defendant did not assert lack of personal jurisdiction in her answer and thereby waived this defense under CPLR 3211(e), such a defense can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025(b) … . Deutsche Bank Natl. Trust Co. v Groder, 2023 NY Slip Op 03768, Second Dept 7-12-23

Practice Point: Although defendant in this foreclosure action did not assert the affirmative defenses of lack of standing and lack of personal jurisdiction in the answer, the defenses were not waived and defendant should have been allowed to amend the answer accordingly.

Practice Point: An appellate court can apply the law as it exists at the time of the appellate decision, even where, as here, the relevant statute had not been enacted when the lower court issued its decision.

 

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HERE IT WAS NOT DEMONSTRATED THAT THE JUDGE LAID OUT THE SPECIFIC CONDUCT DEMONSTRATING A NEGLECT TO PROSECUTE AND IT WAS NOT DEMONSTRATED THE PLAINTIFF WAS AFFORDED NOTICE AND AN OPPORTUNITY TO BE HEARD IN OPPOSITION TO DISMISSAL FOR NEGLECT TO PROSECUTE (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined compliance with the “specific conduct” and “notice” requirements of CPLR 3216 had not been demonstrated. Therefore, he motion to dismiss for neglect to prosecute should not have been granted:

Effective January 1, 2015, the legislature amended, in several significant respects, the statutory preconditions to dismissal under CPLR 3216″ … . One such precondition is that where a written demand to resume prosecution of the action is made by the court, as here, “the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” (CPLR 3216[b][3] …). Here, the certification order is not included in the record, and, accordingly, this Court cannot make a determination as to whether that order set forth the information required by the statute.

… [A]nother precondition to dismissal is that where the court, on its own initiative, seeks to dismiss a complaint pursuant to CPLR 3216, it must first give the parties notice of its intention to do so (see id. § 3216[a] …). Such notice is meant to provide the parties with an opportunity to be heard prior to the issuance of an order directing dismissal of the complaint … . Designer Limousine, Inc. v Authority Transp., Inc., 2023 NY Slip Op 03767, Second Dept 7-12-23

Practice Point: In order for a dismissal for neglect to prosecute to hold up on appeal, the judge’s strict compliance with CPLR 3216 must be demonstrated. Here it was not demonstrated that the judge laid out the specific conduct justifying dismissal and it was not demonstrate plaintiff was afforded notice and an opportunity to respond.

 

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IF THE JUDGE DOES NOT LAY OUT IN DETAIL THE SPECIFIC CONDUCT JUSTIFYING A DISMISSAL OF AN ACTION FOR NEGLECT TO PROSECUTE, THE REQUIREMENTS FOR DISMISSAL PURSUANT TO CPLR 3216 ARE NOT MET AND THE SIX-MONTH PERIOD FOR THE FILING OF ANOTHER COMPLAINT (CPLR 205(A)) IS AVAILABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the requirements for dismissing the first complaint for neglect to prosecute were not met. Therefore the six-month extension of the statute of limitations applied and the second complaint was not time-barred:

… [T]he complaint in the prior action was not dismissed for “neglect to prosecute” within the meaning of CPLR 205(a). “Where a dismissal is one for neglect to prosecute the action made pursuant to [CPLR 3216] or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Although the court set forth on the record that the plaintiff failed to appear for a single conference and failed to supply an effective authorization for certain relevant medical records, such conduct did not demonstrate a general pattern of delay in proceeding with the litigation … . The court’s conclusory statements, to the effect that the plaintiff had engaged in a general pattern of delay, do not satisfy the statutory requirements that a court set forth on the record the “specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation”… .

Thus, contrary to the Supreme Court’s determination, the six-month extension afforded by CPLR 205(a) was applicable, and the instant action was timely commenced within six months of the termination of the prior action. Crudele v Price, 2023 NY Slip Op 03765, Second Dept 7-12-23

Practice Pont: The statutory requirements in CPLR 3216 for dismissal for neglect to prosecute are strictly enforced by appellate courts. Here the motion court did not lay out the “specific conduct” justifying dismissal for failure to prosecute. Therefore the six-month extension for filing a second complaint pursuant to CPLR 205 (a) was available to the plaintiff.

 

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ALTHOUGH THE STATUTE OF LIMITATIONS STARTED RUNNING WHEN THE FORECLOSURE ACTION WAS FIRST BROUGHT, THE SUBSEQUENT LOAN MODIFICATION AGREEMENT, ENTERED WHILE THE FORECLOSURE ACTION WAS STILL PENDING, STARTED THE STATUTE OF LIMITATIONS RUNNING ANEW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the six-year statute of limitations for the original foreclosure action had run, the loan modification agreement, which was entered after the foreclosure action was started and while it was still pending, restarted the statute of limitations:

RPAPL 1501(4) provides, in pertinent part, that “[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage . . . has expired, any person having an estate or interest in the real property subject to such encumbrance may maintain an action . . . to secure the cancellation and discharge of record of such encumbrance.” Pursuant to General Obligations Law § 17-105, however, “a promise to pay the mortgage debt, if made after the accrual of a right of action to foreclose the mortgage . . . by the express terms of a writing signed by the party to be charged is effective . . . to make the time limited for commencement of the action run from the date of the . . . promise”… .  14 Fillm Corp. v Mid-Island Mtge. Corp., 2023 NY Slip Op 03759, Second Dept 7-12-23

Practice Point: Even if a foreclosure had been filed, starting the running of the statute of limitations, a loan modification agreement entered while the the foreclosure action was pending starts the running of the statute of limitations all over again.

 

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DEFENDANTS’ MOTION TO COMPEL PLAINTIFF TO ALLOW THE EX PARTE INTERVIEW OF THE NONPARTY TREATING PHYSICIAN’S ASSISTANT ABOUT PLAINTIFF’S EXPLANATION OF THE CAUSE OF HER SLIP AND FALL WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Maltese, in a matter of first impression, determined defendants’ motion to compel plaintiff to authorize an ex parte interview of the nonparty physician’s assistant (Molina) who treated plaintiff after her slip and fall was properly denied. Defendants sought to interview Molina about plaintiff’s statement concerning the cause of her fall, not about her medical treatment. The Second Department reasoned that allowing questions about the cause of the fall would constitute an improper expansion of the Court of Appeals ruling in Arons v Jutkowitz, 9 NY3d 393:

The Court of Appeals in Arons v Jutkowitz did not explicitly address the issue involved in this case, where the defendants’ counsel intends to interview a physician assistant about the reason that the plaintiff tripped, rather than about the plaintiff’s injury or her medical condition. Instead, the Court of Appeals’ decision in Arons v Jutkowitz distinguished between information about a medical condition that a plaintiff has placed in issue by commencing the action and information about other unrelated medical conditions which would still be protected under HIPAA. Furthermore, Arons v Jutkowitz involved three separate actions, all of which concerned allegations of medical malpractice, where causation is related to and intertwined with the issues of the patient’s medical condition and treatment … . Because the Court of Appeals did not explicitly rule on whether an Arons authorization would apply to information about causation and liability, where, as here, the plaintiff’s alleged injury was not caused by medical treatment but instead was caused by a trip and fall accident, granting the subject branch of the defendants’ motion would result in an extension of the scope of Arons. Yan v Kalikow Mgt., Inc., 2023 NY Slip Op 03817, Second Dept 7-12-23

Practice Point: Under Arons v Jutdowitz, 9 NY3d 292, a defendant in a personal injury case may be given permission to interview nonparty medical personnel about medical conditions plaintiff has put in controversy, as opposed to medical conditions protected by HIPAA. Here defendants sought to extend that ruling to compel plaintiff to allow an ex parte interview of the treating physician’s assistant concerning plaintiff’s statements about the cause of her slip and fall. The Second Department refused to so extend the Arons ruling.

 

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A LEGAL MALPRACTICE COMPLAINT WHICH ALLEGES CONCLUSORY AND SPECULATIVE DAMAGES WILL BE DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice complaint did not state a cause of action and should have been dismissed pursuant to CPLR 3211(a). Conclusory and speculative allegations of damages are not sufficient:

“‘To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages'” … . “To establish causation in a legal malpractice action, ‘a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence'” … . “‘Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative'” … . Here, the plaintiff failed to state a cause of action to recover damages for legal malpractice because the plaintiff’s allegation that the restaurant would have had increased profits but for the defendants’ alleged malpractice is conclusory and speculative … . 126 Main St., LLC v Kriegsman, 2023 NY Slip Op 03758, Second Dept 7-12-23

Practice Point: A legal malpractice complaint does not state a cause of action if the damages allegations and conclusory are speculative.

 

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THE JUDGE SHOULD HAVE ALLOWED TIME FOR OBJECTIONS TO PETITIONER’S APPLICATION TO WITHDRAW THE NEGLECT PETITION AND CANCEL THE FACT-FINDING HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have granted petitioner’s request to withdraw the neglect petition and cancel the fact-finding hearing without allowing time for objections to be raised:

We agree with the AFC that Family Court erred in granting petitioner’s application to dismiss the neglect petition without allowing any time for objections to be raised. We are cognizant that, “ordinarily[,] a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted” … . However, one should be given an opportunity to present any such special circumstances or any other arguments concerning the application, such as the effect upon a subject child’s welfare … , whether prejudice should attach to the discontinuance … or whether another party should be permitted, in the court’s discretion, to commence a neglect proceeding (see Family Ct Act § 1032 [b] …). Because Family Court dismissed the petition without allowing the parties — including the father as a nonrespondent parent — to present any arguments regarding petitioner’s application for a discontinuance, we remit this matter to allow them the opportunity to do so. Matter of Lauren X. (Daughn X.), 2023 NY Slip Op 03732, Third Dept 7-6-23

Practice Point: Although a party’s application to discontinue an action, here a neglect petition, should ordinarily be granted, here the judge should have allowed time for objections before granting the application.

 

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LAWYERS FOR CHILDREN, WHICH IS CONTRACTUALLY OBLIGATED TO PROVIDE ATTORNEYS IN CHILD WELFARE MATTERS, HAS STANDING TO CHALLENGE THE HOST FAMILY HOMES PROGRAM WHICH PLACES CHILDREN WITHOUT THE PARTICIPATION OF ATTORNEYS (THIRD DEPT).

​The Third Department reversing Supreme Court, determined Lawyers for Children, which provides attorneys for child welfare matters, had standing to bring a petition challenging the Host Family Homes program which facilitates temporary placement of children in foster care without an attorney. 

… [P]ursuant to Social Services Law § 358-a (6), Family Court is tasked with appointing an attorney for the children should there be a hearing before it. Petitioner Lawyers for Children had initially contracted with the Office of Court Administration (hereinafter OCA) respecting voluntary foster care placements and, since the legislative changes in 1999, has consistently represented children in New York City who have been voluntarily placed outside of the home. Similarly, petitioner Legal Aid Society contracted with OCA and receives assignments through New York City Family Court. Petitioner Legal Aid Bureau of Buffalo, Inc., likewise, has contracted with OCA and receives funding to represent children in child welfare matters.

In December 2021, respondent Office of Children and Family Services (hereinafter OCFS) promulgated regulations creating the Host Family Homes program, a system for the temporary care of children by pre-vetted volunteers without resorting to the voluntary placement process in the Social Services Law … . * * * Children cared for by a host family under this program were not entitled to assigned counsel, although they could communicate with an attorney … . * * *

… [P]etitioners sufficiently alleged an injury in fact that is not merely conjectural, as implementation of the program would, in essence, place children outside their home without the right to legal representation to which they would be entitled by Social Services Law § 358-a and that petitioners have a contractual obligation to provide … . Matter of Lawyers for Children v New York State Off. of Children & Family Servs., 2023 NY Slip Op 03747, Third Dept 7-6-23

Practice Point: Lawyers for Children is contractually obligated to provide attorneys in child welfare matters. Lawyer for Children has standing to challenge the Host Family Homes program which places children in foster care without the participation of attorneys.

 

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