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A COMPLAINT THAT IS NEVER SERVED DOES NOT CONSTITUTE AN “ACTION;” HERE A PRIOR COMPLAINT WAS NEVER SERVED; THEREFORE THE INSTANT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THERE WAS ANOTHER IDENTICAL ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint in this traffic accident case should not have been dismissed because it was identical to a prior action. The first complaint was never served so there was no prior action:

CPLR 3211(a)(4) provides that “[a] party may move for judgment dismissing one or more causes of action asserted against [them] on the ground that . . . there is another action pending between the same parties for the same cause of action in a court of any state or the United States.” However, a complaint must have been served in that other action, otherwise it is not “another action,” or a “prior action pending” … within the meaning of CPLR 3211(a)(4) … . Here, it is undisputed that the complaint in the prior action was not served. Quinones v Z & B Trucking, Inc., 2023 NY Slip Op 05282, Second Dept 10-18-23

Practice Point: A complaint which is never served does not constitute an “action.” The subsequent identical complaint should not have been be dismissed on the ground there was a prior identical action.

 

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THE EXECUTOR WAS ENTITLED TO A HEARING ON HIS OBJECTIONS TO THE FEES AND DISBURSEMENTS AWARDED THE GUARDIAN OF DECEDENT’S PERSON AND PROPERTY; THE EXECUTOR WAS ENTITLED TO DISCOVERY PURSUANT TO CPLR 408 IN THE SPECIAL PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the executor of decedent’s estate (Oppedisano) was entitled to a hearing and discovery with respect to the fess and disbursements awarded to the guardian of decedent’s person and property:

… [T]here are disputed issues of fact as to the accuracy and completeness of the guardian’s final account, and whether the guardian failed to adequately investigate the alleged misappropriation of the decedent’s assets and should be denied fees and/or surcharged for breaching his fiduciary duties. Under such circumstances, the Supreme Court erred in denying Oppedisano’s objections to the guardian’s final account without conducting a hearing … .

Pursuant to CPLR 408, leave of court generally is required for disclosure in a special proceeding … . Insofar as discovery tends to prolong a case, and therefore is inconsistent with the summary nature of a special proceeding, such disclosure is granted only where it is demonstrated that there is need for such relief … . When leave of court is granted, disclosure takes place in accordance with CPLR 3101(a), which generally provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action” … . The Court of Appeals has interpreted the phrase “material and necessary” liberally as requiring, upon request, disclosure “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” … . * * *

Oppedisano demonstrated that the requested disclosure was material and necessary to establishing his objections that the guardian’s final account was inaccurate and/or incomplete and that the guardian breached his fiduciary duties and should be denied fees and/or surcharged, and there was no contravening demonstration that the proposed discovery would be prejudicial or unduly burdensome, would violate confidentiality, or would unduly delay the case. Matter of Giuliana M. (DeCarolis), 2023 NY Slip Op 05262, Second Dept 10-18-23

Practice Point: Here the executor was entitled to a hearing on his objections to the fees and disbursements awarded decedent’s guardian and was entitled to discovery pursuant to CPLR 408. In a special proceeding discovery is by leave of court.

 

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PLAINTIFF’S COUNSEL SHOULD NOT HAVE BEEN DISQUALIFIED PURSUANT TO THE ADVOCATE-WITNESS RULE, CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s (Gamez’s) counsel should not have been disqualified pursuant to the advocate-witness rule:

“[T]he disqualification of an attorney is a matter which rests within the sound discretion of the court. A party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion” … . A party moving to disqualify counsel on the ground that he or she may be called as a witness must demonstrate that (1) the testimony of the opposing party’s counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party … . “Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence” … . Here, Lopez [defendant] failed to demonstrate that any anticipated testimony by Gamez’s counsel would be necessary to Lopez’s case and that such testimony would be prejudicial to Gamez … . Gamez v Lopez, 2023 NY Slip Op 05250, Second Dept 10-18-23

Practice Point: The criteria for the disqualification of counsel pursuant to the advocate-witness rule were not met here. The testimony of the opposing party’s counsel must be necessary to the moving party’s case, and the testimony must be prejudicial to the opposing party.

 

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PLAINTIFF BANK DID NOT START PROCEEDINGS TO ENTER A DEFAULT JUDGMENT WITHIN ONE YEAR AND DID NOT PRESENT AN ADEQUATE EXCUSE FOR THE DELAY; THE MOTION TO DISIMISS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not seek a default judgment within one year and did not offer a reasonable excuse for the delay. Therefore there was no need for the court to consider whether plaintiff had a meritorious cause of action. The complaint should have been dismissed:

CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” “The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts ‘shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned” … . …

… [T]his matter was released from the settlement conference part in December 2011, and that the plaintiff failed to take steps to initiate proceedings for the entry of a default judgment by moving for leave to enter a default judgment and for an order of reference until March 2013, “which was too late for the plaintiff to ‘manifest an intent not to abandon the case'” … . … [Plaintiff] offered only vague, conclusory, and unsubstantiated assertions which were insufficient to excuse the plaintiff’s delay in moving for leave to enter a default judgment … .

Since [plaintiff] failed to proffer a reasonable excuse for the plaintiff’s delay, this Court need not consider whether the plaintiff had a potentially meritorious cause of action … . Citimortgage, Inc. v Kimmerling, 2023 NY Slip Op 05246, Second Dept 10-18-23

Practice Point: Pursuant to CPLR 3215(c). if the plaintiff does not start proceedings to enter a default judgment within a year and does not offer an adequate excuse for the delay, the complaint must be dismissed. There is no need for the court to consider whether plaintiff has a meritorious cause of action.

 

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EVEN THOUGH THE DEBTOR TRANSFERRED THE PROPERTY TO THE NON-DEBTOR CODEFENDANT YEARS BEFORE FILING FOR BANKRUPTCY, THE BANKRUPTCY TOLLED THE FORECLOSURE STATUTE OF LIMITATIONS FOR THE ACTION AGAINST THE DEBTOR; THE TOLL DID NOT APPLY TO THE ACTION AGAINST THE NON-DEBTOR WHICH NEVER FILED FOR BANKRUPTCY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, reversing (modifying) Supreme Court, determined the foreclosure statute of limitations was tolled by the bankruptcy stay for the action against the defendant who filed for bankruptcy, but not for the defendant to which the property was transferred (who did not file for bankruptcy):

This appeal requires us to examine whether the stay provided by section 362 of the 1978 Bankruptcy Code (11 USC § 362[a]) operates as a “statutory prohibition” under CPLR 204(a) to toll the statute of limitations to commence a mortgage foreclosure action against a defendant debtor who no longer owns the property that is the subject of the mortgage foreclosure action. We hold that the bankruptcy stay pursuant to subsection 362(a)(1) (see 11 USC § 362[a][1]) tolls the statute of limitations for commencing a mortgage foreclosure action against the defendant debtor, regardless of whether that defendant owns the property at the time of the bankruptcy filing.

This appeal also requires us to determine whether the bankruptcy stay pursuant to subsection 362(a) applies to a nondebtor codefendant to which the defendant debtor transferred the property years before filing for bankruptcy. On the record before this Court, the plaintiff failed to meet its burden of raising a question of fact as to whether the bankruptcy stay applied to the nondebtor codefendant. Bank of N.Y. Mellon v DeMatteis, 2023 NY Slip Op 05242, Second Dept 10-18-23

Practice Point: Filing for bankruptcy tolls the foreclosure statute of limitations, even if the property had been transferred before the filing.

 

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THE PROPOSED AMENDMENT TO THE NOTICE OF CLAIM DID NOT PRESENT A NEW THEORY OF NEGLIGENCE; THE MOTION TO AMEND SHOULD NOT HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to amend the notice of claim should have been granted. The amendments merely fleshed out the theory of negligence described in the original notice and did not present a new theory of liability:

The purpose of prohibiting new theories of liability in notices of claim is to prevent prejudicing the city in its ability to timely investigate the claim and provide an adequate defense … . Contrary to defendants’ argument, to the extent the notice of claim alleges affirmative negligence, plaintiff did so in the first instance. Plaintiff’s original notice of claim alleged that his injuries were caused by New York City’s “negligent . . . design, maintenance, construction and installation . . .” of the “the traffic island/extra curb/bumper” in question. Plaintiff only adds that his injuries were related to the “design, installation, and maintenance” of the delineators and bollards which are specific elements of the traffic island. This addition only alleges specific facts related to the theories of liability contained in the original claim, unlike in cases cited by defendants … . Accordingly, we find that this amendment does not seek to assert a new theory of liability, and instead merely clarifies the facts alleged in the claim, as permitted by General Municipal Law § 50-e. Burnes v City of New York, 2023 NY Slip Op 05221, First Dept 10-17-23

Practice Point: The motion to amend the notice of claim merely fleshed out the theory of negligence in the original notice and did not present a new theory. Therefore the motion should have been granted.

 

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THE PETITIONERS BROUGHT A HYBRID ARTICLE 78/DECLARATORY JUDGMENT ACTION CHALLENGING A LOCAL LAW PROHIBITING SHORT-TERM RENTAL PROPERTIES; THE COURT NOTED THAT THE SUMMARY PROCEDURE AVAILABLE UNDER ARTICLE 78 SHOULD NOT HAVE BEEN APPLIED TO THE DECLARATORY-JUDGMENT ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that in a hybrid Article 78/declaratory judgment/damages action, the summary procedure under Article 78 does not apply to the declaratory judgment. In order to summarily dispose of the declaratory judgment/damages aspect of the action, a party must request it or the court must notify the parties. Here the petitioners, owners of short-term rental properties, challenged the local law prohibiting rental periods of less than 14 days:

“In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those to recover damages and for declaratory relief, on the other hand. The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment” … . “[W]here no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action”… .

Here, the record contains no indication that the Supreme Court gave notice to the parties that it was contemplating the summary dismissal of the declaratory judgment causes of action, or that the respondents/defendants had made an application for such relief. Therefore, the court erred in summarily disposing the causes of action for declaratory relief … . Matter of Jellyfish Props., LLC v Incorporated Vil. of Greenport, 2023 NY Slip Op 05136, Second Dept 10-11-23

Practice Point: In a hybrid Article 78/declaratory judgment action, the summary procedure available under Article 78 cannot be used to dispose of the declaratory judgment action unless a party requests it or the court so notifies the parties.

 

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THE FIVE-YEAR DELAY BETWEEN PLAINTIFF-DECEDENT’S DEATH AND THE MOTION TO SUBSTITUTE AN ADMINISTRATOR DID NOT WARRANT DISMISSAL OF THE ACTION; DECEDENT HAD BEEN AWARDED SUMMARY JUDGMENT ON LIABILITY IN THIS TRAFFIC-ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the four year delay in appointment of an administrator and the addition one year in moving for substitution in this traffic accident case did not warrant dismissal of the action:

… [T]he approximately four-year delay in obtaining letters of administration followed by an approximately one-year delay in moving for substitution shows a lack of diligence … . However, even if the “explanation for the delay is not satisfactory, the court may still grant the motion for substitution if there is no showing of prejudice and there is potential merit to the action, in light of the strong public policy in favor of disposing of matters on the merits” … .

Here, where the decedent was awarded summary judgment on the issue of liability against the defendants, the action has potential merit … . Further, the defendants provided mere “conclusory allegations of prejudice based solely on the passage of time” … . This record reflects that the defendants will suffer little or no prejudice as a result of the delay, particularly because this case, which is set for a trial on damages only, is likely to turn on medical records and an extant deposition transcript … . Hemmings v Rolling Frito-Lay Sales, LP, 2023 NY Slip Op 05125, Second Dept 10-11-23

Practice Point: Plaintiff had been awarded summary judgment on liability in this traffic accident case. Plaintiff died and there was a five-year delay before the motion to substitute an administrator. The action should not have been dismissed.

 

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THE “TIME WHEN” THE ALLEGED SEXUAL ABUSE TOOK PLACE IN 1997 WAS ADEQUATELY ALLEGED IN THE CLAIM IN THIS CHILD VICTIMS ACT SUIT (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the claim in this Child Victims Act action sufficiently described when the alleged sexual abuse took place:

… [T]he Court of Claims incorrectly determined that the claim was insufficient to satisfy Court of Claims Act § 11(b)’s “time when” requirement … . The claimant’s allegations, including that the abuse occurred in approximately 1997 when she was approximately 15 years old by a named employee of the facility shortly after her arrival at the facility, provided sufficient information to enable the State to investigate and ascertain its liability under the circumstances … . Ford v State of New York, 2023 NY Slip Op 05124, Second Dept 10-11-23

Practice Point: In Child Victims Act cases where the alleged sexual abuse took place decades ago, the courts are forgiving when determining the sufficiency of the “time when” allegations. Here the allegations claimant was abused by a named employee in 1997, when she was 15, shortly after her arrival at the facility, were deemed sufficient.

 

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THE MOTION TO VACATE THE DEFAULT SHOULD HAVE BEEN GRANTED IN THE INTEREST OF JUSTICE, NO NEED TO DEMONSTRATE A REASONABLE EXCUSE; THE LOAN AGREEMENT WAS CRIMINALLY USURIOUS; THE MOTION TO DISIMISS BASED ON DOCUMENTARY EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the default judgment should have been vacated in the interest of justice and the complaint dismissed based on documentary evidence. The loan which was the basis of the action was criminally usurious:

“CPLR 5015(a) ‘does not provide an exhaustive list as to when a default judgment may be vacated'” … . “In addition to the grounds set forth in section 5015(a), a court may vacate a default ‘for sufficient reason and in the interests of substantial justice'” … . “[A] party is not necessarily required to establish a reasonable excuse in order to be entitled to vacatur in the interest of justice” … . * * *

The plaintiff does not dispute that the agreement effected an annual interest rate exceeding the criminally usurious threshold of 25% (see Penal Law § 190.40).

… “Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Here, … the defendants conclusively established through the submission of the agreement that it constituted a criminally usurious loan … . Crystal Springs Capital, Inc. v Big Thicket Coin, LLC, 2023 NY Slip Op 05121, Second Dept 10-11-23

Practice Point: A motion to vacate a default in the interest of justice does not require a reasonable excuse.

Practice Point: The usurious loan agreement justified dismissal based on documentary evidence.

 

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