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​ PLAINTIFF’S FAILURE TO PROVIDE DISCOVERY AND A BILL OF PARTICULARS WARRANTED DISMISSAL OF THE COMPLAINT AS A SANCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s motion to dismiss the complaint by plaintiff Morales based upon Morales’s failure to provide discovery and a bill of particulars should have been granted:

… Morales’s willful and contumacious conduct can be inferred from her repeated failures over an extended period of time to comply with court-ordered discovery and the parties’ discovery stipulation and to respond to the defendants’ demands for a verified bill of particulars and discovery without an adequate excuse … . Contrary to the Supreme Court’s determination, the requirements of 22 NYCRR 202.7 were satisfied by the affirmations of the defendants’ attorneys, which, inter alia, adequately set forth counsels’ good faith efforts to resolve the discovery issues raised by the defendants’ motion … . Morales v Valeo, 2023 NY Slip Op 03861, Second Dept 7-19-23

Practice Point: Here plaintiff’s failure to provide discovery and a bill of particulars warranted dismissal of the complaint (by the appellate court) as an appropriate sanction.

 

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THE WRONG MAILING DATE IN AN AFFIDAVIT OF SERVICE CANNOT BE CORRECTED IN AN AMENDED AFFIDAVIT; MATTER REMITTED FOR A HEARING ON DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting for a hearing, determined a mistake in an affidavit of service of the summons and complaint (wrong mailing date) could not be corrected by an amended affidavit. Therefore a hearing on defendant’s motion to dismiss for lack of personal jurisdiction was necessary:

… [S]imilar to an erroneous address contained in an affidavit of service … , an erroneous mailing date “affects a defendant’s substantial right to notice of the proceeding against him or her, and may not be corrected by an amendment” … . Here, the second amended affidavit of service attempted to correct the admitted erroneous mailing date contained in the original affidavit of service and the first amended affidavit of service, and therefore should not have been considered … . HSBC Bank USA, N.A. v Rini, 2023 NY Slip Op 03856, Second Dept 7-19-23

Practice Point: A wrong address or a wrong mailing date in an affidavit of service cannot be corrected by an amended affidavit.

 

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THE CLAIM IN THIS CHILD VICTIMS ACT ACTION SUFFICIENTLY STATED THE TIME AND NATURE OF THE SEXUAL ABUSE ALLEGEDLY OCCURRING DURING FOSTER CARE MORE THAN 40 YEARS AGO; THE PLEADING REQUIREMENTS IN THE COURT OF CLAIMS AND THE MECHANICS AND PURPOSE OF THE CHILD VICTIMS ACT CONCISELY EXPLAINED (SECOND DEPT). ​

The Second Department, reversing the Court of Claims, determined the claim in this Child Victims Act action, alleging abuse during foster care more than 40 years ago, sufficiently stated the time and nature of the abuse. The decision includes a clear, concise description of the pleading requirement in the Court of Claims, and the mechanics and purpose of the Child Victims Act, which extends that statute of limitations for sexual abuse occurring when the victim was under the age of 18:

Under the particular circumstances of this case, the date ranges provided in the claim indicating that the sexual abuse began when the claimant was 4 years old and “occurred between two to three times a week to three to four times a year” until she was 12 years old while she resided in a foster home, along with other information contained in the claim, including the identities of the claimant’s foster parents, the address of the foster home, and names of the claimant’s alleged abusers, were sufficient to satisfy the “time when” requirement of the Court of Claims Act § 11(b) … . * * *

In this case, the 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 she resided in a foster home. 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) … . Fletcher v State of New York, 2023 NY Slip Op 03850, Second Dept 7-19-23

Practice Point: Here the plaintiff alleged sexual abuse while in foster care more than 40 years ago. Given the purpose of the Child Victims Act, which is clearly explained in this decision, the claim sufficiently described the time and nature of the alleged abuse.

 

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ALTHOUGH PLAINTIFF FELL THROUGH THE FLOOR OF THE BUILDING UNDER RENOVATION WHEN HE WENT IN TO GET A TOOL FOR HIS WORK ON AN ADJACENT BUILDING, HE WAS PERFORMING DUTIES ANCILLARY TO THE CONSTRUCTION WORK AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; HEARSAY EVIDENCE IN THE MEDICAL RECORDS WAS NOT ENOUGH TO RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was hired to remove carpet from a building adjacent to the building to the building undergoing renovation (the carpet had been damaged by flooding in the building being renovated), Plaintiff went inside the building under renovation to get a tool when he fell through a temporary plywood floor: The court noted that opposition to a summary judgment motion based solely on hearsay does not raise a question of fact:

… [T]he plaintiff was assigned the task of removing damaged carpeting and flooring from a property adjacent to the subject premises, which allegedly had flooded as a result of renovations to the subject premises. When the plaintiff went inside the subject premises to get a tool, he fell through a temporary plywood floor, which consisted of several pieces of plywood placed on top of beams. …

… [P]laintiff established, prima facie, that he was at the subject premises, which was a construction site, in order to perform duties ancillary to the construction work, which was covered by Labor Law § 240(1) … . Further, the plaintiff established that he was exposed to an elevation-related risk for which no safety devices were provided, and that such failure was a proximate cause of his injuries … . In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiff was engaged in an enumerated activity, whether the plaintiff was recalcitrant in deliberately failing to use available safety devices, or whether his actions were the sole proximate cause of his injuries … . There is no evidence that anyone instructed the plaintiff that he was not to enter the subject premises or that he was to obtain the tools he needed to work on the adjacent property from somewhere else … . To the extent that the defendant contends that the plaintiff’s uncertified hospital records raise a triable issue of fact as how the accident occurred, “[w]hile hearsay may be considered in opposition to a motion for summary judgment, it is insufficient to raise a triable issue of fact where, as here, it is the only evidence upon which opposition to the motion was predicated” … . Estrella v ZRHLE Holdings, LLC, 2023 NY Slip Op 03848, Second Dept 7-19-23

Practice Point: Plaintiff was hired to remove carpet from a building adjacent to the building under renovation because flooding caused by the renovation damaged the carpet. Plaintiff fell through the floor of the building under renovation when he went in to get a tool. Plaintiff was doing work ancillary to the renovation and was therefore covered by Labor Law 240(1).

Practice Point: Hearsay standing alone will not raise a question of fact at the summary judgment stage.

 

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THE RIGHT TO SEEK DISMISSAL OF THE FORECLOSURE ACTION PURSUANT TO CPLR 3215 (C) BASED ON PLAINTIFF BANK’S FAILURE TO SEEK A DEFAULT JUDGMENT WITHIN A YEAR WAS WAIVED BY DEFENDANT’S THREE-YEAR DELAY IN BRINGING THE MOTION TO DISMISS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant, by waiting three years, waived the seek dismissal of the foreclosure action based on plaintiff bank’s failure to move for a default judgment within one year:

“A ‘defendant may waive the right to seek dismissal pursuant to [CPLR 3215(c)] by his or her conduct'” … . Here, the defendant did not move pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him until nearly three years after the defendant’s attorney filed a notice of appearance on his behalf. Under these circumstances, the defendant waived his right to seek dismissal pursuant to CPLR 3215(c) by his active participation in the litigation … . Moreover, the defendant never sought to vacate his default in answering the complaint. Thus, he was precluded from raising his proffered defenses of the plaintiff’s failure to comply with RPAPL 1304 … . Bank of Am., N.A. v Carapella, 2023 NY Slip Op 03844, Second Dept 7-19-23

Practice Point: The right to dismiss an action based on plaintiff’s failure to move for a default judgment within a year of the default (CPLR 3215(c) can be waived by defendant’s participation in the action. Here defendant did not move to dismiss pursuant to CPLR 3215(c) until three years after defendant’s attorney filed a notice of appearance.

 

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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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