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INTERSTATE SOVEREIGN IMMUNITY IS AN ISSUE WHICH MUST BE RAISED BEFORE THE TRIAL COURT TO BE PRESERVED FOR APPEAL TO THE COURT OF APPEALS; HERE A NEW JERSEY TRANSIT BUS COLLIDED WITH A CAR DRIVEN BY A NEW YORK RESIDENT IN THE LINCOLN TUNNEL AND THE TRIAL WAS HELD IN NEW YORK; ALTHOUGH THE INTERSTATE SOVEREIGN IMMUNITY DEFENSE WAS VALIDATED BY THE US SUPREME COURT IN 2019, THE ISSUE WAS NOT RAISED BEFORE THE TRIAL COURT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a two-judge dissenting opinion, determined the sovereign immunity defense raised for the first time on appeal by New Jersey in this traffic accident case was not preserved for appeal to the Court of Appeals. The accident happened in the Lincoln Tunnel and involved the New York resident plaintiff and a bus owned by the defendant New Jersey Transit Corporation. New Jersey argued that the US Supreme Court had changed the law in 2019, allowing a state to preclude suit in another state absent consent thereby presenting a constitutional issue not subject to the preservation requirement. The Court of Appeals rejected that argument:

The question before us is whether we have power to hear this appeal under NY Constitution article VI, § 3 and CPLR 5601 (b) (1). To answer this threshold issue, we must consider the jurisdictional nature of interstate sovereign immunity to ascertain whether defendants’ sovereign immunity defense is exempt from our general preservation rules. We conclude that a state must preserve its interstate sovereign immunity defense by raising it before the trial court, and no exception to the general preservation rule applies. Because defendants asserted their sovereign immunity defense for the first time on appeal after the United States Supreme Court decided Franchise Tax Bd. of Cal. v Hyatt (587 US &mdash, 139 S Ct 1485 [2019] [hereinafter Hyatt III]), the argument is unpreserved in this case and there is no directly involved constitutional question supporting this appeal as of right. The appeal should therefore be dismissed. Henry v New Jersey Tr. Corp., 2023 NY Slip Op 01466, CtApp 3-21-23

Practice Point: Interstate sovereign immunity means one state cannot be sued in the courts of another state absent consent. That form of sovereign immunity was validated by the US Supreme Court in 2019. The issue, however, must be preserved by raising it in the trial court before the Court of Appeals will consider it.

 

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TWO DISSENTERS ARGUED THE UNPRESERVED ISSUE, WHICH INVOLVED SETTLED LAW, SHOULD NOT HAVE BEEN CONSIDERED ON APPEAL (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, considered an unpreserved issue on appeal (the date from which prejudgment interest begins to run). The dissenting justices argued the unpreserved issue involved settled law and there was, therefore, no reason to consider it:

The majority assumes that the issue is unpreserved but reaches the merits of claimant’s contention through application of an exception to the preservation rule … . In other words, on this appeal as of right from a final judgment (see CPLR 5701 [a] [1]), the majority is not limiting this Court’s scope of review to those matters brought up for review pursuant to CPLR 5501 (a). We respectfully disagree with the majority to the extent that it elects to address an unpreserved issue of statewide interest inasmuch as it does nothing more than adhere to this Court’s well-settled and decades-long precedent on that particular issue . In short, under the circumstances of this case, we disagree with the majority’s decision to invoke what should be a very rare exception to rules of preservation only just to double down on our long-standing precedent. Indeed, by reaching claimant’s contention challenging that precedent, the majority fails to fully recognize that the policy reasons underlying the preservation rule, and the … rarity of times when we except from it, are “especially acute when the new issue seeks change in a long-established common-law rule,” as is the case here … . Sabine v State of New York, 2023 NY Slip Op 01455, Fourth Dept 3-17-23

Practice Point: The majority considered an unpreserved issue on appeal which involved a well-settled area of the law. Two dissenters argued the case did not justify ignoring the preservation requirement, which should be a rare occurrence reserved to new issues seeking change in the common law.

 

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PLAINTIFF’S ACTION RELIED ON EXTRINSIC EVIDENCE AND WAS NOT AN ACTION FOR THE PAYMENT OF MONEY ONLY WHICH CAN BE BROUGHT BY SUMMONS IN LIEU OF A COMPLAINT PURSUANT TO CPLR 3213 (FOURTH DEPT),

The Fourth Department, reversing Supreme Court, determined plaintiff’s cause of action was not for the payment of money only (CPLR 3213) for which a summons in lieu of  a complaint was an appropriate vehicle:

As proof of the agreement to reduce defendant’s liability under the guaranty and the amount of that reduction, plaintiff relies on evidence extrinsic to the instrument consisting of representations in the affidavit of its chief operating officer, deposit receipt printouts from the online system of plaintiff’s bank, and a guaranty balance chart apparently generated by plaintiff showing the calculation of defendant’s revised liability.

In our view, “[g]oing that far afield from the [financial] instrument itself does not appear to comport with the simple standards” embodied in the statute and related case law … . Indeed, inasmuch as plaintiff’s moving papers demonstrate that outside evidence beyond “simple proof of nonpayment or a similar de minimis deviation from the face of the document[s]” is needed to determine the amount due, we conclude that “[p]laintiff’s action falls far short of satisfying the [CPLR] 3213 threshold requirement” … . Counsel Fin. II LLC v Bortnick, 2023 NY Slip Op 01441, Fourth Dept 3-17-23

Practice Point: Plaintiff relied on extrinsic evidence. The action was not, therefore, for the “payment of money only” within the meaning of CPLR 3213 and was not properly brought by a summons in lieu of complaint.

 

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​ THE COMPLAINT ALLEGED AN ORAL JOINT VENTURE AGREEMENT BUT DID NOT ALLEGE THE PARTIES AGREED TO SHARE THE LOSSES; THE STATUTE OF FRAUDS THEREFORE APPLIED AND THE COMPLAINT WAS DISMISSED; PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ALLEGE THE PARTIES AGREED TO SHARE THE LOSSES SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff’s motion to amend the complaint should have been granted. The initial breach of contract complaint was dismissed because it was not alleged the parties to the oral joint venture agreed to share the losses (therefore the statute of frauds applied to the agreement). The amendment sought to include the allegation the parties agreed to share the losses:

… Supreme Court improperly denied the plaintiff’s motion on the basis that the breach of contract causes of action in the amended complaint had previously been dismissed … . Moreover, under the circumstances here, the court should have granted the plaintiff’s motion. The defendants cannot be prejudiced or surprised by the proposed amendments, which were premised upon the same facts, transactions, or occurrences alleged in the amended complaint and “simply sought to cure the deficiencies cited by the Supreme Court in its earlier order which resulted in the dismissal” … . Further, the plaintiff explained that the omission of a loss-sharing allegation from the amended complaint was inadvertent, and he diligently sought to amend the pleading to correct the defect … . Benjamin v 270 Malcolm X Dev., Inc., 2023 NY Slip Op 01275, Second Dept 3-15-23

Practice Point: In the absence of prejudice amendment of a complaint should be allowed. Here the complaint was dismissed because plaintiff did not allege the parties agreed to share the losses in an oral joint venture agreement which triggered the statute of frauds. Plaintiff’s motion to amend the complaint to allege the parties agreed to share the losses should have been granted.

 

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THE NOTICE OF CLAIM IN THIS CHILD VICTIMS ACT LAWSUIT AGAINST THE STATE ALLEGING SEXUAL ABUSE AT A PSYCHIATRIC HOSPITAL SUFFICIENTLY DESCRIBED THE TIME PERIOD WHEN THE ABUSE ALLEGEDLY TOOK PLACE; THE ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing the Court of Claims in this Child Victims Act action, determined that the notice of claim sufficiently described when the alleged sexual abuse took place at the state’s psychiatric center:

The claimant commenced this claim against the State of New York to recover damages resulting from alleged acts of sexual assault committed against her, beginning when she was 15 years old, by an employee of Sagamore Children’s Psychiatric Center (hereinafter Sagamore). * * *

… [T]he claim was sufficiently specific to satisfy the pleading requirements of Court of Claims Act § 11(b). The claim alleged negligent hiring, training, and supervision of an employee who had subjected the claimant to multiple sexual assaults at Sagamore between June 5, 2013, and September 16, 2013—a period of approximately three months—while the claimant was a patient at Sagamore. This was sufficiently specific to enable the State to investigate the claim promptly and ascertain its liability … . D. G. v State of New York, 2023 NY Slip Op 01183, Second Dept 3-8-23

Practice Point: Here the notice of claim sufficiently described the three-month time-frame when the alleged sexual abuse of the plaintiff took place at a state psychiatric hospital, The Child Victims Act lawsuit should not have been dismissed.

 

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THE CAUSES OF ACTION FOR NEGLIGENT SUPERVISION (OF THE PLAINTIFF-STUDENT) AND NEGLIGENT FAILURE TO WARN (THE PLAINTIFF-STUDENT) SHOULD NOT HAVE BEEN DISMISSED IN THIS CHILD VICTIMS ACT CASE; THE COMPLAINT ALLEGED PLAINTIFF WAS SENT TO A PRIEST NOT EMPLOYED BY THE SCHOOL FOR DISCIPLINE AND WAS MOLESTED BY THE PRIEST (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the negligent supervision and negligent failure to warn causes of action against defendant Catholic school should not have been dismissed in this Child Victims Act case. Plaintiff alleged he was sent by the school to a priest, who was not employed by the school, for discipline. Plaintiff alleged he was molested by the priest and the school knew or should have known of the priest’s propensity:

The complaint alleges … the defendant knew or should have known of the priest’s propensity to molest children, that the defendant had a duty to exercise the same duty of care of supervision over its minor students as a reasonably prudent parent would, and that the defendant breached its duty to adequately supervise the plaintiff which caused him to be sexually abused by the priest. …  … [T]he fact that the sexual abuse occurred off school premises does not require dismissal of the cause of action alleging negligent supervision since, here, the plaintiff has alleged that the defendant released the plaintiff into a potentially hazardous situation and directed him to see a certain priest for discipline knowing that the priest had a propensity to sexually abuse children … . … [T]he criminal intervention of a third party may be a reasonably foreseeable consequence of circumstances created by the defendant, for example where, as here, the plaintiff was permitted to meet with the priest, a person who allegedly had a propensity to abuse children, alone and behind closed doors … .

… Supreme Court erred in determining that the cause of action alleging negligent failure to warn was subject to dismissal because it was duplicative of the cause of action alleging negligent supervision. … [T]hese causes of action are based on distinctive facts, one based on failing to warn the plaintiff about the priest and the other based on the defendant’s failure to adequately supervise the plaintiff … . Sullivan v St. Ephrem R.C. Parish Church, 2023 NY Slip Op 01207, Second Dept 3-8-23

Practice Point: Here plaintiff alleged the Catholic school sent him to a priest, who was not employed by the school, for school-related discipline and the priest molested him. The causes of action for negligent supervision of the plaintiff-student and failure to warn the plaintiff-student should not have been dismissed. The fact that the priest was not employed by the school did not require dismissal because the school allegedly released the plaintiff into a dangerous situation. Nor did the fact that the priest allegedly committed criminal acts relieve the school of potential liability.

 

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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT IN THIS FORECLOSURE ACTION AFTER PLAINTIFF FAILED TO MEET A DEADLINE SET IN A STATUS CONFERENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this foreclosure proceeding should not have, sua sponte, dismissed the complaint when plaintiff did not move for a judgment of foreclosure and sale by the deadline set in a status conference order:

On March 22, 2017, the Supreme Court issued a status conference order … directing the plaintiff to “file an application for a [j]udgment of [f]oreclosure [and] sale” by June 7, 2017. The plaintiff failed to do so. In an order entered June 15, 2017 (hereinafter the dismissal order), the court, sua sponte, directed dismissal of the complaint and cancellation of the notice of pendency.

A court’s power to dismiss an action, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal … . Here, the plaintiff’s failure to move for a judgment of foreclosure and sale as directed by the … status conference order was not a sufficient ground upon which to sua sponte direct dismissal of the complaint and cancellation of the notice of pendency … . Deutsche Bank Trust Co. Ams. v Martinez, 2023 NY Slip Op 01179, Second Dept 3-8-23

Practice Point: Sua sponte dismissals of complaints are disfavored. Here the failure to meet a deadline set in a status conference did not justify a sua sponte dismissal of the complaint.

 

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DEFENDANT NYC HOUSING AUTHORITY (NYCHA) UNILATERALLY ADJOURNED THE 5O-H HEARING IN THIS SLIP AND FALL CASE AND ALLEGEDLY SENT A FOLLOW-UP LETTER TO PLAINTIFF; PLAINTIFF DENIED RECEIPT OF THE LETTER AND DEFENDANT IMPROPERLY SUBMITTED AN AFFIDAVIT OF SERVICE IN REPLY; THE AFFIDAVIT WAS NOT CONSIDERED; IN ADDITION, THE AFFIDAVIT DID NOT PROVE THE LETTER WAS MAILED TO PLAINTIFF (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the complaint against the NYC Housing Authority (NYCHA) in this slip and fall case should not have been dismissed based on plaintiff’s failure to attend the General Municipal Law 50-h hearing. The NYCHA unilaterally adjourned the hearing by follow-up letter. Plaintiff denied receipt of the follow-up letter and the NYCHA included an affidavit of service in its reply. The Second Department noted that the affidavit of service should not be considered because it was first submitted in reply. In addition, the affidavit did not present sufficient proof of mailing:

… [E]ven had the affidavit of service of the follow-up letter been submitted with the defendants’ moving papers, the mere assertion therein that the letter was mailed, unsupported by someone with personal knowledge of the mailing of the letter or proof of standard office practice to ensure that it was properly mailed, was insufficient to give rise to the presumption of receipt that attaches to letters duly mailed … . Inasmuch as there was no adequate proof that NYCHA served the follow-up letter adjourning the 50-h hearing, NYCHA failed to establish entitlement to such a hearing and that the plaintiff was precluded from commencing this action against NYCHA … . Acevedo v Hope Gardens I, LLC, 2023 NY Slip Op 01073, Second Dept 3-1-23

Practice Point: Yet again an affidavit did not prove a document was mailed because the affiant did not have personal knowledge of the mailing and there was no evidence of a standard office practice to ensure proper mailing.

 

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AFTER AN IMPORTANT PLAINTIFFS’ WITNESS BECAME ILL DURING CROSS-EXAMINATION AND WAS TAKEN BY AMBULANCE TO THE HOSPITAL, THE JUDGE, SUA SPONTE, DECLARED THE WITNESS UNAVAILABLE, STRUCK HIS TESTIMONY AND ADMITTED HIS DEPOSITION TESTIMONY; THERE WAS NO SUPPORT IN THE RECORD FOR THE FINDING THE WITNESS WOULD BE UNABLE TO TESTIFY; JUDGMENT REVERSED (SECOND DEPT).

The Second Department, reversing the judgment after trial, determined the trial judge should not have, sua sponte, announced that an important witness for plaintiffs (Awad) was unavailable due to illness, struck the witness’s testimony and admitted the witness’s deposition testimony:

During his cross-examination, Awad fell ill, and was taken from the courthouse by ambulance. …

CPLR 3117(a)(3)(iii) permits the reading of a witness’s deposition at trial where the court finds “that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment” … . In exercising its discretion under CPLR 3117, “the trial court may not act arbitrarily or deprive a litigant of a full opportunity to present [its] case” … .

Here, there is no information in the record regarding the nature of Awad’s illness or the treatment he received, or whether he was hospitalized and for how long. Thus, the Supreme Court’s sua sponte determination that Awad was unavailable to testify due to sickness or infirmity lacked support in the record, and the court improvidently exercised its discretion in determining that Awad’s deposition testimony was admissible under CPLR 3117(a)(3)(iii) … . 244 Linwood One, LLC v Tio Deli Grocery Corp., 2023 NY Slip Op 01072, Second Dept 3-1-23

Practice Point: Here a witness became ill during cross-examination and was taken to the hospital by ambulance. Without putting any additional information on the record, the judge declared the witness unavailable, struck his testimony and admitted his deposition. Because there was no support in the record for the judge’s (sua sponte) determination the witness would not be able to testify, the judgment after trial was reversed.

 

THE MOTION TO CHANGE VENUE WAS MADE MORE THAN 15 DAYS AFTER THE DEMAND TO CHANGE VENUE; THE 15-DAY TIME-LIMIT IS STRICTLY ENFORCED AND THE MOTION SHOULD HAVE BEEN DENIED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendants’ motion to change venue pursuant to CPLR 511(b) was made more than 15 days after their demand to change venue and was therefore untimely:

Supreme Court should have denied defendants’ motion to change venue from Bronx County to Westchester County because it was untimely made. Defendants have a reasonable excuse for their failure to make a timely demand to change venue. They learned of plaintiff’s Westchester address on April 5, 2022, when they received plaintiff’s medical authorizations and a copy of the Aided report, and made a prompt demand to change venue the day after, on April 6, 2022 … . However, pursuant to CPLR 511(b), defendants had until April 21, 2022, 15 days after service of their demand, to make the motion. Defendants’ motion made on April 26, 2022, 20 days after the demand, is untimely and should have been denied. Defendant did not move within the strict time limits provided by the statute and failed to offer any explanation for the delay … . Gomez v Cypser, 2023 NY Slip Op 01060, First Dept 2-28-23

Practice Point: Once defendant makes a demand to change venue, defendant has 15 days to make a motion to change venue pursuant to CPLR 511(b). The 15-day time-limit is strictly enforced. Here the motion was made 20 days after the demand and Supreme Court should not have granted it.

 

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