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ALTHOUGH PLAINTIFFS DO NOT CONTEST THE APPEALS AND WILL NOT PURSUE THE LITIGATION, THE APPEALS ARE NOT MOOT BECAUSE THE ORDER MAY AFFECT RELATED ACTIONS AGAINST THE DEFENDANTS; THE SUMMARY JUDGMENT MOTION, BROUGHT BEFORE DEFENDANTS ANSWERED THE COMPLAINT, WAS PREMATURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) despite the fact that the plaintiffs indicated they do not contest the appeals and will not pursue the action which had been dismissed, the appeals are not moot because the dismissal may affect related actions against the defendants; and (2) the plaintiff’s summary judgment motion, brought before the defendants had answered the amended complaint, was premature:

While plaintiffs do not contest the appeals and have represented that they will not be pursuing the underlying litigation, this does not render defendants’ appeals moot. The mootness doctrine will deprive a court of the ability to review a case where a change in circumstances between the parties has eliminated the controversy that once existed … . However, an appeal is not moot where “the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” … . Defendants have the right to appeal the order addressing the motion to dismiss because it may serve as unfavorable precedent in related cases that have been brought against them. Hutcher v Madison Sq. Garden Entertainment Corp., 2023 NY Slip Op 06314, First Dept 12-7-23

Practice Point: An appeal is not moot when it is not contested if the order appealed from could affect related actions against the appellants.

 

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PLAINTIFF’S MOTION TO AMEND THE NOTICE OF CLAIM TO ADD A VERIFICATION IN THIS WRONGFUL DEATH ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DENIED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, held that the plaintiff’s motion to amend the notice of claim in this wrongful death action against the defendant city should not have been denied:

“Where there is no showing of prejudice to a municipality, the fact that a notice of claim was not verified by a claimant may be disregarded” … . Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s cross-motion pursuant to General Municipal Law § 50-e(6) for leave to amend the notice of claim to add a verification from the plaintiff’s attorney that the plaintiff lives in a different county than the attorney, as the City defendants failed to demonstrate that they would be prejudiced by the amendment … . Watts v Jamaica Hosp. Med. Ctr., 2023 NY Slip Op 06276, Second Dept 12-6-23

Practice Point: Where there is no prejudice to the municipality, the fact that a notice of claim was not verified can be disregarded.

 

THE DISMISSAL OF THE COMPLAINT DID NOT NULLIFY THE COUNTERCLAIMS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the dismissal of the complaint did not nullify the counterclaims for which discovery had been demanded:

… Supreme Court should not have denied, as academic, the [plaintiffs’] cross-motions pursuant to CPLR 3211(a)(7) to dismiss the counterclaims and to compel the defendants to comply with certain discovery demands. “A cause of action contained in a counterclaim . . . shall be treated, as far as practicable, as if it were contained in a complaint” (CPLR 3019[d] …). “Thus, dismissal of the . . . complaint did not, in itself, extinguish the [defendants’] counterclaims,” which were independent of the causes of action asserted in the complaint … . Banschick v Johnson, 2023 NY Slip Op 06231, Second Dept 12-6-23

Practice Point: Here the dismissal of the complaint should not have been deemed to render the counterclaims academic. Causes of action in counterclaims should be treated as if they were in a complaint.

 

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THE REPEAL OF THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) DID NOT APPLY RETROACTIVELY; THEREFORE THE STATUTE CONFERRED IMMUNITY ON DEFENDANT NURSING HOME RE: COVID-19 PRECAUTIONS; PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT THE ADEQUACY OF THE COVID PRECAUTIONS TAKEN BY DEFENDANT NURSING HOME (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Ceresia, determined that the Emergency or Disaster Treatment Protection Act (EDTPA), which conferred immunity on nursing homes during the COVID-19 pandemic, precluded the COVID-related negligence action against defendant nursing home. The Third Department ruled that the repeal of the EDTPA should not be applied retroactively. Therefore the statute was in effect at the relevant time. The Third Department further held that the evidence of proper COVID-19 precautions offered by the nursing home was not refuted by the plaintiff:

… [T]he ultimate repeal of the EDTPA contained no express indicator of retroactivity — rather, the Legislature simply stated that the repeal would “take effect immediately” … . * * *

Turning to plaintiff’s argument that retroactivity is appropriate because the repeal was remedial in nature, “[c]lassifying a statute as ‘remedial’ does not automatically overcome the strong presumption of prospectivity since the term may broadly encompass any attempt to supply some defect or abridge some superfluity in the former law” … . Based upon all of the foregoing, and noting that the retroactive application of the repeal of the EDTPA would merely punish healthcare providers “for past conduct they cannot change — an objective [that has been] deemed illegitimate as a justification for retroactivity” … we hold that the repeal of the EDTPA was not retroactive … . Whitehead v Pine Haven Operating LLC, 2023 NY Slip Op 06180, Third Dept 11-30-23

Practice Point: The repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) should not be applied retroactively to remove immunity related to COVID precautions conferred on a nursing home during the life of the statute.

 

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THE RIGHT TO SEEK REMOVAL OF A CLOUD ON TITLE IS NEVER BARRED BY A STATUTE OF LIMITATIONS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action which sought to remove a cloud on title should not have been dismissed as time-barred because the right to that relief is never barred by a statute of limitations:

Supreme Court erred in granting those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(5) to dismiss as time-barred the first and second causes of action, which sought to set aside and cancel, as null and void, the two mortgages held by the defendants. The Trust, as the alleged owner of the subject property, is “presumptively entitled to possession” … , and the first and second causes of action seek to remove the cloud on title resulting from the allegedly fraudulent mortgages. “[W]here a plaintiff seeks to remove a cloud on title, the right to such relief ‘is never barred by the Statute of Limitations. It is a continuing right which exists as long as there is an occasion for its exercise'” … . Mostafa v Pension Solutions, LLC, 2023 NY Slip Op 06134, Second Dept 11-29-30

Practice Point: The right to seek removal of a cloud on title is never barred by a statute of limitations.

 

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THE STIPULATION RE: SHARING HUSBAND’S PENSION AT A FUTURE DATE WAS NOT AMBIGUOUS AND NEED NOT BE REFORMED; THE STIPULATION WHICH WAS INCORPORATED BUT NOT MERGED INTO THE DIVORCE JUDGMENT CANNOT BE REFORMED PURSUANT TO A MOTION, A PLENARY ACTION IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the stipulation that was incorporated but not merged into the divorce judgment was not ambiguous and should not have reformed the stipulation based upon a mutual mistake. The stipulation was not ambiguous and required the husband to share his pension when he turned 62. In addition, reformation of the stipulation was not appropriate pursuant to a motion. A plenary action is required to reform stipulation which is incorporated but not merged into the judgment of divorce:

… Supreme Court should have rejected the plaintiff’s contention that the stipulation of settlement was ambiguous. The interpretation of the stipulation advanced by the plaintiff would render meaningless the terms of the stipulation providing that distribution of pension benefits to the plaintiff would commence in the future, when the defendant reached the age of 62 … . Inasmuch as the language of the stipulation disclosed the parties’ intent to defer the plaintiff’s pension distribution until the defendant reached age 62, at a time he would have been eligible for regular service retirement benefits, and is not subject to more than one reasonable interpretation, the agreement is not ambiguous … .

… [T]o the extent that the Supreme Court determined that the stipulation of settlement was affected by a mutual mistake, reformation was not appropriate. A motion is not the proper vehicle for challenging a separation agreement incorporated but not merged into a judgment of divorce. Rather, the plaintiff was required to commence a plenary action to reform the stipulation … . In any event, reformation of the stipulation was unwarranted, as the parties’ mistake regarding the category of benefits the defendant would receive did not “involve a fundamental assumption of the contract” … . Anderson v Anderson, 2023 NY Slip Op 06108, Second Dept 11-29-23

Practice Point: Here the judge should not have determined the stipulation incorporated but not merged into the judgment of divorce was ambiguous because it was subject to only one interpretation.

Practice Point: A stipulation which is incorporated but not merged into the judgment of divorce cannot be reformed pursuant to a motion. A plenary proceeding must be commenced.

 

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THE 90-DAY DEMAND REQUIRED BY CPLR 3216 WAS NOT PROVIDED BY THE COURT’S ORDER; THE ACTION SHOULD HAVE BEEN RESTORED TO THE ACTIVE CALENDAR WITHOUT A SHOWING OF MERIT; THE ISSUE, FIRST RAISED ON APPEAL, WAS PROPERLY CONSIDERED BY THE APPELLATE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action should have been restored to the active calendar because the 90-day demand required by CPLR 3216 was never provided. The issue was properly considered for the first time on appeal because, had the issue been raised below, it could not have been ignored:

Here, the order dated June 26, 2018 … directed the filing of a note of issue by June 29, 2018, but failed to provide the plaintiff with 90 days within which to comply with that directive. Thus, the order dated June 26, 2018, did not constitute a valid 90-day demand pursuant to CPLR 3216 … . Moreover, the order dated June 26, 2018, did not contain the requisite language advising that failure to file a note of issue would be the basis for a motion to dismiss … . …

Although the plaintiff’s contentions i… are raised for the first time on appeal, they may be reached, as they involve issues of law appearing on the face of the record that could not have been avoided if they had been raised at the proper juncture … . OneWest Bank, FSB v Segal, 2023 NY Slip Op 06146, Second Dept 11-29-23

Practice Point: The failure to provide the 90-demand required by CPLR 3216 is reversible error which can be raised for the first time on appeal.

 

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THE JURY’S FINDING THAT THE SCAFFOLD PROVIDED ADEQUATE PROTECTION FOR THE PLAINTIFF IN THIS SCAFFOLD-FALL CASE WAS AGAINST THE WEIGHT OF THE EVIDENCE; NEW TRIAL REQUIRED (FIRST DEPT).

The First Department, setting aside the defense verdict and ordering a new trial in this Labor Law 240(1) scaffold-fall action, determined the scaffold did not adequately protect the plaintiff:

The scaffold on which plaintiff was working at the time of his accident failed to adequately protect him from a height-related hazard when his core drill jerked, causing him to fall backward … . “It does not matter whether plaintiff’s fall was the result of the scaffold . . . tipping, or was due to plaintiff misstepping off its side. In [either] of those circumstances, either defective or inadequate protective devices constituted a proximate cause of the accident” …  Since the remedy for a verdict that is against the weight of the evidence is a new trial … , the issues of whether defendants violated Labor Law § 240 (1), whether such violation proximately caused plaintiff’s accident and injuries, and damages should be retried. Isaac v 135 W. 52nd St. Owner LLC, 2023 NY Slip Op 06085, First Dept 11-28-23

Practice Point: In this Labor Law 240(1) scaffold-fall case, the jury’s finding that the scaffold provided plaintiff with adequate protection was deemed against the weight of the evidence. Where a jury verdict is against the weight of the evidence, a new trial is required.

 

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THE CIVIL RIGHTS LAW, NOT THE CPLR, CONTROLS COUNTERCLAIMS FOR ATTORNEY’S FEES AND PUNITIVE DAMAGES IN A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP) ACTION (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court in this Strategic Lawsuit Against Public Participation (SLAPP) proceeding, determined that the criteria for dismissal of counterclaims are those in the Civil Rights Law, not the CPLR:

In this Strategic Lawsuit Against Public Participation (SLAPP) action, the court’ s application of CPLR 3212(h) to the underlying summary judgment motion was improper, because the counterclaims “subject to the motion” were not SLAPP claims, but affirmative counterclaims for punitive damages and attorneys’ fees … .The award of attorneys’ fees and punitive damages in SLAPP actions are subject to their own statutory regime found in Civil Rights Law §§ 70-a and 76-a (anti-SLAPP statutes). The anti-SLAPP statutes contain their own requirements and evidentiary burdens that have nothing to do with CPLR 3212(h) … .

With respect to punitive damages, Civil Rights Law § 70-a(1)(c) provides that they may only be recovered upon “an additional demonstration” that the SLAPP action was commenced or continued for the sole purpose of “harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights.” Thus, when the court improperly applied the burden-shifting mechanism of 3212(h) to the punitive damages analysis, it effectively negated the requirement that defendants make this “additional demonstration.” …

With respect to attorneys’ fees, the pre-amendment version of Civil Rights Law § 70-a(1)(a) squarely put the burden of proof on the party advancing counterclaims to recover damages in the context of a SLAPP suit. As the November 2020 amendments to the anti-SLAPP statutes do not apply retroactively, this pre-amendment version of the statute applies … .

The pre-amendment version of Civil Rights Law § 70-a(1)(a) provided that “attorney’s fees may be recovered upon a demonstration . . . that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law.” Courts have held that attorneys’ fees are discretionary under the pre-amendment statutory framework, and that it is not necessary to award attorneys’ fees “in every situation in which [an anti-SLAPP] claim is interposed” … . … [W]e find that the court providently exercised its discretion in awarding attorneys’ fees here … . 161 Ludlow Food, LLC v L.E.S. Dwellers, Inc., 2023 NY Slip Op 06076, First Dept 11-28-23

Practice Point: The analysis of counterclaims for attorney’s fees and punitive damages in a SLAPP action is controlled by the Civil Rights Law, not the CPLR.

 

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THE CLAIM OF SEXUAL ABUSE UNDER THE CHILD VICTIMS ACT MET THE PLEADING CRITERIA OF THE COURT OF CLAIMS ACT; THE FOUR-YEAR TIME FRAME WAS SUFFICIENTLY PRECISE; THE FACTS ALLEGED SUFFICIENTLY STATED THE NATURE OF THE DEFENDANT’S NEGLIGENCE (THIRD DEPT).

The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Mackey, determined claimant sufficiently stated a sexual-abuse claim under the Child Victims Act:

The reality is 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” … .Where sexual abuse is alleged to have occurred several decades ago “when the claimant was a child, it is not reasonable to expect the claimant to be able to provide exact dates when each instance of abuse occurred, nor is it required” … . Under the particular circumstances of the case before us, where the events are alleged to have occurred several decades ago, when claimant was a child, we conclude that the four-year time frame pleaded is sufficient … . Accordingly, the Court of Claims should not have granted defendant’s motion to dismiss on the ground that the claim failed to adequately state the time when the claim arose.

Also, contrary to defendant’s contention, claimant sufficiently states the nature of his claim. He alleges that between 1986 and 1990, when he was a minor, he was raped and sexually abused by numerous men in multiple incidents while he was lawfully at the premises; that the abuse was perpetrated “by both employees of [defendant] as well as members of the general public”; that the “majority of these incidents occurred at the premises, more specifically in the bathrooms, stairwells, tunnels, boiler room, and Kitty Carlisle Hart Theater”; that many of the perpetrators “were agents, servants and/or employees of [defendant]”; and that “[t]hese men were known among the community and the children as a sexual predator [sic] yet allowed unfettered access to children.” Claimant also alleges that abusers used their positions of power and authority provided by defendant “to be able to sexually abuse [him] and other boys” and that their abuse “was open and obvious.” Claimant further asserts that defendant negligently retained an abuser “in his position as teacher, coach, and counselor,” despite notice of his propensities, thereby allowing his abuse of claimant and other boys to continue. We conclude that these allegations are sufficient to provide defendant with “an indication of the manner in which . . . claimant was injured and how [defendant] was negligent” … , and thus “defendant cannot reasonably assert that it is unaware of the nature of the claim” … . Because the claim is sufficiently detailed to allow defendant “to investigate the claim and to reasonably infer the basis for its alleged liability” … , it satisfies the nature of the claim requirement of Court of Claims Act § 11 (b). Wright v State of New York, 2023 NY Slip Op 06013, Third Dept 11-22-23

Practice Point: The allegations of sexual abuse within a four-year time frame met the pleading criteria of Court of Claims Act section 11 (b) in that the allegations were sufficiently detailed to determine the nature of the claim and to allow investigation of the claim.