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THE AFFIDAVITS AND REAL ESTATE CONTRACT SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH UTTERLY REFUTED THE ALLEGATIONS OF UNLAWFUL DISCRIMINATION IN THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint alleging unlawful discrimination in a real estate deal should not have been dismissed because the documentary evidence did not utterly refute the allegations in the complaint. After the real estate purchase offer was signed by both parties and the down payment was made, defendant’s attorney returned the down payment check with a letter saying that the defendant was no longer interested in selling to the plaintiff:

Here, neither the affidavits submitted in support of the defendant’s motion nor the purported contract between the defendant and another purchaser constituted documentary evidence within the intendment of CPLR 3211(a)(1) … , and the defendant’s evidentiary submissions were “insufficient to utterly refute the plaintiff’s factual allegations” … . Moreover, accepting the facts as alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference … , the complaint sufficiently stated a cause of action alleging unlawful discrimination pursuant to Administrative Code § 8-107(5). Jeffrey v Collins, 2023 NY Slip Op 03686, Second Dept 7-5-23

Practice Point: The affidavits and real estate contract submitted in support of the motion to dismiss did not utterly refute the allegations in the complaint and therefore did not support dismissal of the complaint based on documentary evidence.

 

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THE VOTERS WHOSE ABSENTEE BALLOTS WERE CHALLENGED ON RESIDENCY GROUNDS ARE NECESSARY PARTIES WHO WERE NOT INCLUDED IN THIS PROCEEDING; THE ELECTION LAW PROCEDURES FOR CHALLENGING THE ABSENTEE BALLOTS WERE NOT FOLLOWED; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined the voters whose absentee ballots were unsuccessfully challenged on the ground the voters did not meet the village-residency-requirements were necessary parties in this proceeding and the matter had to be remitted to add them and consider whether their absentee ballots are valid:

Viewing Election Law § 5-220 (2) together with Election Law § 9-209, there is no statutory authority, under the circumstances here, permitting a challenge by petitioners to the absentee ballots submitted by the challenged voters. In view of the statutory scheme, the only opportunity for an objection to be lodged during the post-election review of an absentee ballot is after such ballot has been deemed invalid following a review under Election Law § 9-209 (8) (e), which presupposes an initial review under Election Law § 9-209 (2). … [T]he improper registration of a voter is not one of the explicit grounds used to deem an absentee ballot invalid upon the initial review. Even assuming it was a ground, there is still no indication in the record that any review under Election Law § 9-209 (2) has occurred or, more importantly, that any determination under Election Law § 9-209 (8) (e) has been made here by the canvassing authority as to the invalidity of any absentee ballots and that such determination has been objected to — i.e., the statutory predicate for judicial review (see Election Law § 9-209 [8] [e]). There is likewise no explicit authority within Election Law § 9-209 permitting a court to either conduct that review or make that determination in the first instance. Matter of Hughes v Delaware County Bd. of Elections, 2023 NY Slip Op 03431, Third Dept 6-26-23

Practice Point: When absentee ballots are challenged, the voters who submitted the ballots are necessary parties.

Practice Point: Any challenge to absentee ballots must be made in accordance with the procedures described in the Election Law, not the case here.

 

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HERE THE CLOSE RELATIONSHIP BETWEEN THE NON-SIGNATORY AND THE PARTY TO THE AGREEMENT WARRANTED FINDING THAT THE NON-SIGNATORY WAS BOUND BY THE FORUM SELECTION CLAUSE IN THE AGREEMENT (FIRST DEPT).

The First Department, after reinstating the tortious interference with contract cause of action, determined a non-signatory can be bound by a forum selection clause under the “closely related” doctrine. where the non-signatory and the party to the agreement have such a close relationship that it is foreseeable the forum selection clause will be enforced against the non-signatory:

We find that plaintiff alleged a sufficiently close relationship between Vivendi and the Editis Defendants to justify subjecting it to personal jurisdiction in New York … .  Plaintiff alleged that Editis … was a wholly-owned subsidiary of Vivendi, that Vivendi’s CEO was also the Chairman of Editis, and that Vivendi managed the Editis Defendants’ performance of the subject agreement …. . EPAC Tech. Ltd. v Interforum S.A., 2023 NY Slip Op 03543, First Dept 6-29-23

Practice Point: Here the “close relationship” doctrine warranted finding the non-signatory was bound by the forum selection clause in the agreement. The non-signatory was a wholly-owned subsidiary of the party to the agreement and the non-signatory’s CEO was the chairman of the party to the agreement.

 

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PLAINTIFFS’ ATTORNEY FAILED TO SUBMIT MEDICAL RECORDS REQUESTED BY THE JUDGE FOR MORE THAN A YEAR AFTER THE INQUEST; THE APPLICATION FOR DAMAGES SHOULD NOT HAVE BEEN DENIED ON THAT GROUND; PLAINTIFFS SHOULD NOT BE PENALIZED FOR THE NEGLECT OF THEIR ATTORNEY (SECOND DEPT). ​

The First Department, reversing Supreme Court, determined the application for damages in this personal injury action should not have been denied due to plaintiffs’ counsel’s failure to submit medical records for more than a year after the inquest. Plaintiffs should not be prejudiced by their counsel’s inaction:

Although plaintiffs’ counsel had timely subpoenaed the relevant medical records and those records were apparently delivered to the subpoenaed records room in the courthouse, they were not available at the inquest. Supreme Court therefore reserved decision to give plaintiffs time to submit evidence supporting their damages claim. After a period of more than one year in which plaintiffs’ counsel failed to provide the requested information, Supreme Court issued an order … denying the application for damages on the ground of failure of proof.

Supreme Court improvidently exercised its discretion in denying plaintiffs’ motion to vacate the underlying default. Although we share the court’s concern regarding the extended delay and the inattentiveness of plaintiffs’ former counsel, counsel’s neglect in pursuing his clients’ action should not be permitted to redound to the clients’ detriment … . Counsel did not deny that he failed to respond to communications from the court, but explained that the delays were due to a problem in his firm’s case management system, which did not provide reminders … . These circumstances present a type of law office failure for which the clients should not be penalized , particularly in light of the strong public policy preference for deciding cases on the merits … . In addition, defendants defaulted and therefore will not be prejudiced … . Rosario v General Behr Corp., 2023 NY Slip Op 03560, Second Dept 6-28-23

Practice Point: Here the attorney’s failure to submit medical records requested by the judge after an inquest was not the type of law office failure for which plaintiffs should be penalized. The judge should not have dismissed the application for damages based on counsel’s neglect.

 

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THE NOTICE OF CLAIM IN THIS CHILD VICTIMS ACT CASE SUFFICIENTLY ALLEGED CLAIMANT’S INJURY, DEFENDANT’S FAILURE TO PROTECT CLAIMANT WHILE IN FOSTER CARE AND THE TIME THE CLAIM AROSE (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the Notice of Claim in this Child Victims Act proceeding sufficiently described claimant’s injury, the state’s failure to protect claimant while in foster care, and the time when the claim arose:

… [T]he claim sufficiently provided the defendant with a description of the manner in which the claimant was injured, and how the defendant was negligent in allegedly failing to protect the claimant from sexual abuse while a resident in a state-certified foster care facility. The claimant is not required to set forth the evidentiary facts underlying the allegations of negligence in order to satisfy the section 11(b) “nature of the claim” requirement … . As the claim is sufficiently detailed to allow the defendant to investigate and ascertain its liability, it satisfies the nature of the claim requirement of Court of Claims Act § 11(b)… .

… The claim alleges that the claimant was sexually abused repeatedly in 1992 and 1993, on numerous and regular occasions, including conduct taking place in his room three to four times a week. This Court has stated recently in the context of the CVA, that “[w]e recognize that in matters of sexual abuse involving minors, as recounted by survivors years after the fact, dates and times are sometimes approximate and incapable of calendrical exactitude” … . Thus a claimant commencing a claim pursuant to the CVA is not required to allege the exact date on which the sexual abuse occurred … . As the claim here sufficiently alleges the time when the abuse occurred, the Court of Claims properly declined to dismiss the claim on that ground … . Davila v State of New York, 2023 NY Slip Op 03451, Second Dept 6-28-23

Practice Point: In this Child Victims Act case against the state alleging the failure to protect claimant in foster care, the Notice of Claim sufficiently alleged the injury, defendant’s negligence and the time the claim arose.

 

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VACATING A NOTE OF ISSUE IS NOT THE SAME AS MARKING A CASE OFF PURSUANT TO CPLR 3404; WHEN A NOTE OF ISSUE IS VACATED, THE ACTION REVERTS TO A PRE-NOTE OF ISSUE STATUS AND CAN BE RESTORED TO THE ACTIVE CALENDAR WITHOUT MEETING THE STRINGENT CPLR 3404 REQUIREMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar should have been granted. The note of issue had been vacated but the action had not been marked off pursuant to CPLR 3404. Therefore the criteria for restoring an action that had been marked off for more than a year did not apply:

Pursuant to CPLR 3404, “[a] case . . . marked ‘off’ or struck from the calendar . . . and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute.” “A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked ‘off,’ and after the case has been dismissed pursuant to CPLR 3404, must demonstrate a [potentially] meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant” … .

Here, the order … vacating the note of issue was not equivalent to an order marking “off” or striking the case from the calendar pursuant to CPLR 3404 … . Thus, CPLR 3404 did not apply “because the case reverted to its pre-note of issue status once the note of issue was vacated” … As it is undisputed that there was neither a 90-day demand served upon the plaintiff pursuant to CPLR 3216 nor an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27, and that discovery is complete, the Supreme Court should have granted the plaintiff’s motion to restore the action to the active calendar … . Carrero v Pena, 2023 NY Slip Op 03448, Second Dept 6-28-23

Practice Point: Restoring an action to the calendar after it has been marked off pursuant to CPLR 3404 for more than a year is subject to the stringent requirements of CPLR 3404. But vacating a note of issue, as opposed to marking off the case, restores the action to pre-note of issue status and the action can be restored without meeting the CPLR 3404 requirements because CPLR 3404 is not applicable.

 

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BEFORE SUING A TORTFEASOR’S INSURER, PLAINTIFF MUST OBTAIN A JUDGMENT AGAINST THE TORTFEASOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurer’s motion to dismiss the complaint in this personal injury action should have been granted. The injured plaintiff sued the tortfeasor’s insurer before obtaining a judgment against the tortfeasor (the insured):

Insurance Law § 3420 “grants an injured party a right to sue the tortfeasor’s insurer, but only under limited circumstances—the injured party must first obtain a judgment against the tortfeasor, serve the insurance company with a copy of the judgment and await payment for 30 days” … . Here, the defendants established, prima facie, that the plaintiff lacked standing to commence this action by submitting the complaint, which alleged that the underlying action against [the tortfeasor] “is currently pending.” The complaint is evidence that the plaintiff has not established the condition precedent to maintain a direct action against the defendants (see Insurance Law § 3420[a][2] …). Sizova v Union Mut. Fire Ins. Co., 2023 NY Slip Op 03502, Second Dept 6-28-23

Practice Point: A plaintiff must obtain a judgment against the tortfeasor before the tortfeasor’s insurer can be sued.

 

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IN THIS SIDEWALK SLIP AND FALL CASE, THE DEFENDANT PROPERTY OWNERS HAD DIED AT THE TIME THE ACTION AGAINST THEM WAS COMMENCED; THAT ACTION WAS A NULLITY; THEREFORE THE MOTION TO AMEND THE COMPLAINT TO SUBSTITUTE THE EXECUTOR SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the sidewalk slip and fall action brought against defendant property owners was a nullity because the property owners had died before the suit was commenced. Because the action was a nullity, the motion to amend the complaint to substitute the executor as a party should not have been granted:

“A party may not commence a legal action or proceeding against a dead person” … . The deaths of Leon Chain and Hanka Chain (hereinafter together the decedents) prior to the commencement of this action rendered the action, insofar as asserted against them, a legal nullity from its inception. The plaintiff was instead required to commence an action against the personal representative of the decedents’ estates … . Moreover, even assuming that Ziv was the duly appointed executor of each of the decedents’ estates, the decedents were never a party to the action since they died before the commencement of the action, and the decedents’ estates could not be brought into the action by substitution or by amendment of the caption (see CPLR 1015[a]; 1021 …). The plaintiff’s attempt to amend the complaint to designate the purported executor of the decedents’ estates as a defendant in the place of the decedents was invalid and ineffective to retroactively render the action properly commenced against the decedents’ estates … . Hussain v Chain, 2023 NY Slip Op 03455, Second Dept 6-28-23

Similar issues and result in a foreclosure action: Waterfall Victoria Master Fund, Ltd. v Estate of Dennis F. Creese, 2023 NY Slip Op 03497, Second Dept 6-28-23

Practice Point: Here the defendants had died at the time the action was commenced. That action was therefore a nullity. The complaint could not be amended to substitute the executor as a party.

 

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SURGERY, EVEN AFTER A DEFENSE REQUEST FOR A PRE-SURGERY PHYSICAL EXAM, IS NOT SPOLIATION OF EVIDENCE AND DOES NOT WARRANT SANCTIONS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice LaSalle, determined plaintiff’s surgery, even after a defense request for a pre-surgical physical exam, is not spoliation of evidence and does not trigger sanctions. In this traffic accident case, plaintiff underwent surgery before the action was commenced and again after a defense demand for a pre-surgery medical exam:

… [T]he First Department has recently rejected the proposition that a spoliation analysis can apply in such a situation. In Gilliam v Uni Holdings, LLC (201 AD3d 83), the First Department held “that the condition of one’s body is not the type of evidence that is subject to a spoliation analysis” … . After noting that “[s]poliation analysis has long been applied to a party’s destruction of inanimate evidence,” the First Department concluded that the “state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an ‘obligation,’ to preserve his or her body in an injured state so that a defendant may conduct [a medical examination], is antithetical to our belief in personal liberty and control over our own bodies” … . * * *

We agree with the First Department’s conclusion in this regard, for the reasons stated in its opinion. It is not reasonable to require a plaintiff to delay medical treatment, and potentially prolong his or her suffering, solely to allow a defendant to examine the plaintiff’s body in a presurgical state. Under these circumstances, the plaintiff has not “refuse[d] to obey an order for disclosure or wilfully fail[ed] to disclose information which . . . ought to have been disclosed” (CPLR 3126). Fadeau v Corona Indus. Corp., 2023 NY Slip Op 03453, Second Dept 6-28-23

Practice Point: Here in this traffic accident case, plaintiff underwent surgery before the action was commenced and again after the defense demand for a pre-surgery physical exam. Joining the First Department, the Second Department held that surgery is not spoliation of evidence and does not trigger sanctions.

 

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UNDER THE 2022 FORECLOSURE ABUSE PREVENTION ACT BANKS CAN NO LONGER STOP THE RUNNING OF THE STATUTE OF LIMITATIONS BY VOLUNTARILY DISCONTINUING A FORECLOSURE ACTION (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the foreclosure action was time-barred noting that the 2022 Foreclosure Abuse Prevention Act prohibited banks from stopping the running of the statute of limitations by voluntarily discontinuing the action:

… [T]he voluntary discontinuance of the 2010 foreclosure action did not serve to reset the statute of limitations. Under the Foreclosure Abuse Prevention Act (L 2022, ch 821, § 8 [eff Dec. 30, 2022]), the voluntary discontinuance of the 2010 foreclosure 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] …).  ARCPE 1, LLC v DeBrosse, 2023 NY Slip Op 03498, Second Dept 6-28-23

Practice Point: Under the 2022 Foreclosure Abuse Prevention Act banks can no longer stop the running of the statute of limitations by voluntarily discontinuing the foreclosure action.

 

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