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ABSENT A STIPULATION BY THE PARTIES, FAMILY COURT SHOULD NOT HAVE WITHDRAWN THE FAMILY OFFENSE PETITION (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the family offense petition should not have been withdrawn by the judge because the parties did not stipulate to the withdrawal:

Where, as here, the matter has been submitted to the court, “the court may not order an action discontinued except upon the stipulation of all parties appearing in the action” (CPLR 3217[b]). In this case, there was no stipulation from the parties. Thus, the court erred in directing that the petition was withdrawn … . Matter of Johnson v Lomax, 2023 NY Slip Op 01675, Second Dept 3-29-23

Practice Point: A judge cannot withdraw a family offense petition which has been submitted to the court without a stipulation by the parties.

 

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THE ARTICLE 78 PETITION SOUGHT RELIEF NOT AVAILABLE IN SUCH A PROCEEDING (REMOVAL OF A TERRACE CONSTRUCTED ABOVE PETITIONER’S RESIDENCE); THE APPELLATE COURT CONVERTED THE PETITION TO A COMPLAINT PURSUANT TO CPLR 103 (SECOND DEPT).

The Second Department determined the Article 78 petition seeking the removal of a terrace constructed above petitioner’s property sought relief not available pursuant to Article 78 but converted the petition to a complaint pursuant to CPLR 103[c]:

RPAPL 871(1) authorizes the owner of any legal estate in land to maintain an action for an injunction directing the removal of a structure encroaching on such land. “Even where the facts which would justify the grant of [such] an extraordinary remedy are established, the court must still decide whether, in the exercise of a sound discretion, it should grant the remedy, and if granted, the terms and conditions which should be annexed to it” … . Consequently, that branch of the petition which was to compel the respondents to remove the terrace did not seek the performance of a purely ministerial act which can be obtained in a CPLR article 78 proceeding … .

Pursuant to CPLR 103(c), however, a proceeding should not be dismissed “solely because it is not brought in the proper form,” and this Court has the power to convert a proceeding into the proper form … . Under the circumstances, we convert so much of the proceeding as sought to compel the respondents to remove the terrace into an action, deem that branch of the petition which was to compel the respondents to remove the terrace to be the complaint, and remit the matter to the Supreme Court, Queens County, for further proceedings on the complaint. Matter of Dicker v Glen Oaks Vil. Owners, Inc., 2023 NY Slip Op 01673, Second Dept 3-29-23

Practice Point: An Article 78 proceeding is not appropriate for relief beyond a ministerial act, here the removal of a terrace constructed above petitioner’s residence. Here the appellate court converted the petition to a complaint seeking that relief pursuant to CPLR 103.

 

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IN AN INQUEST ON DAMAGES AFTER DEFENDANT DEFAULTED, THE JUDGE SHOULD NOT HAVE CONSIDERED LIABILITY ISSUES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have considered issues of liability in the inquest on damages after defendant’s default:

After conducting the inquest, the court found … that the plaintiff had failed to proffer credible evidence that the accident occurred or that she had sustained an injury that was caused by the defendants, and directed the dismissal of the complaint. …

By defaulting, the defendants admitted “all traversable allegations in the complaint, including the basic allegation of liability” … . As such, the sole issue to be determined at the inquest was the extent of the damages sustained by the plaintiff, and the Supreme Court should not have considered issues of liability … . Youngja Lee v Hong Kong Supermarket, 2023 NY Slip Op 01668, Second Dept 3-29-23

Practice Point: A judge should not consider issues of liability in an inquest on damages after the defendant’s default.

 

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PRECLUSION OF EVIDENCE AS A DISCOVERY SANCTION WAS NOT WARRANTED; THERE WAS NO EVIDENCE OF WILLFUL OR CONTUMACIOUS CONDUCT AND THE SANCTIONED PARTY WAS NOT GIVEN AN OPPORTUNITY TO EXPLAIN THE FAILURE TO COMPLY WITH DISCOVERY ORDERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discover sanctions imposed by the judge on plaintiff were not warranted:

… Supreme Court improvidently exercised its discretion by imposing the drastic sanction of preclusion upon the plaintiff without affording the plaintiff adequate notice and an opportunity to be heard, including on facts relevant to whether the plaintiff’s noncompliance was willful and contumacious. The defendant did not move for sanctions pursuant to CPLR 3126 due to the plaintiff’s failure to comply with the interim order, nor did the court make its own motion or include language in the interim order warning that noncompliance would result in sanctions. The court also made its determination without oral argument, such that it is unclear what opportunity the plaintiff had to explain the circumstances of its noncompliance. …

… [E]ven if the plaintiff had been provided with adequate due process, the Supreme Court still would have improvidently exercised its discretion by, inter alia, precluding the plaintiff from serving further demands and from introducing certain documents. The record contains no showing of “a clear pattern of willfulness and contumacious conduct necessary to justify [such] sanctions” … . There is no indication that the plaintiff “repeated[ly] fail[ed] to comply with court-ordered discovery” or “fail[ed] to comply with court-ordered discovery over an extended period of time” … . Instead, this case involves a “single incident of noncompliance” with a court order, which was insufficient to warrant a sanction as drastic as preclusion … , especially given the policy of resolving cases on their merits and the fact that discovery was still ongoing at the time the court made its determination. Korsinsky & Klein, LLP v FHS Consultants, LLC, 2023 NY Slip Op 01667, Second Dept 3-29-23

Practice Point; Before precluding evidence as a discovery sanction, there must be a finding of willful and contumacious conduct and the the sanctioned party must be given a chance to explain the failure to comply with discovery orders.

 

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WHERE A STATUTE, HERE CIVIL RIGHTS LAW 40-B, PRESCRIBES A MONETARY REMEDY, AN INJUNCTION IS NOT AVAILABLE (FIRST DEPT).

​The First Department, reversing Supreme Court, determined plaintiffs’ request for a preliminary injunction in this Civil Rights Law 40-b action should not have been granted because the remedy is statutory. Civil Rights Law 40-b prohibits an entertainment venue from denying entry to a person who has a ticket:

… [I]t was improper for the motion court to issue a preliminary injunction. As Civil Rights Law § 41 prescribes a monetary remedy for violations of Civil Rights Law § 40-b, plaintiffs are limited to that remedy (see Woollcott v Shubert , 169 App Div 194, 197 [1st Dept 1915] [“The general rule is that where a statute creates a right and prescribes a remedy for its violation that remedy is exclusive and neither an action for damages nor for an injunction can be maintained”] …). Even if injunctive relief were available, the existence of a statutory damages remedy would undermine plaintiffs’ claims of irreparable harm … . Hutcher v Madison Sq. Garden Entertainment Corp., 2023 NY Slip Op 01646, First Dept 3-28-23

Practice Point: Here the statute, Civil Rights Law 40-b, prescribed a monetary remedy for a violation. Therefore Supreme Court should not have granted plaintiffs’ request for a preliminary injunction.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF IMPLIED CONTRACT AND DEFENDANT’S MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint stated a cause of action for breach of implied contract and the defendant’s motion to dismiss the breach of implied cause of action based on documentary evidence should not have been granted:

“Whether an implied-in-fact contract was formed and, if so, the extent of its terms, involves factual issues regarding the intent of the parties and the surrounding circumstances” … . Contrary to the court’s determination, whether plaintiff “can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” … and, here, plaintiff’s allegations sufficiently state a cause of action for breach of an implied contract arising from an implicit agreement to extend the brokerage contract … . Similarly, the complaint sufficiently alleges the elements of a claim for unjust enrichment … .

… “A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiff’s] claim[s]” … . Although contracts are among the types of documentary evidence that may be considered for purposes of CPLR 3211 (a) (1) … , we conclude that the contract submitted by defendants in support of their motion failed to “utterly refute . . . plaintiff’s allegations [that the contract was implicitly extended] or conclusively establish a defense as a matter of law” … . University Hill Realty, Ltd v Akl, 2023 NY Slip Op 01634, Fourth Dept 3-24-23

Practice Point: Here the breach of implied contract cause of action should not have been dismissed.

Practice Point: The motion to dismiss the breach of  implied contract cause of action based on documentary evidence should not have been granted. Although a contract can be the type of evidence which qualifies as “documentary evidence” here the contract did not utterly refute the allegation the contract was extended.

 

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PLAINTIFF, AGE 61, WAS HIRED FOR AS A CORRECTIONS OFFICER BUT RESIGNED AFTER TWO DAYS AT THE TRAINING ACADEMY; PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT; PLAINTIFF WAS NICKNAMED “GRANDMA” AND SUBJECTED TO RIDICULE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined plaintiff stated a cause of action for age discrimination/hostile work environment. Plaintiff, aged 61, was hired as a corrections officer. She only lasted a couple of days at the training academy. She allegedly was immediately nicknamed “Grandma” and was subjected to ridicule:

Even though plaintiff admitted that she was prepared for the intensive, para-military nature of an academy, she testified that she was not prepared for the humiliation based on the discriminatory conduct that was “singling [her] out by [her] age.” Despite that many of defendant’s witnesses — including the drill sergeant — did not have a recollection of the alleged discriminatory conduct, the Equal Employment Opportunity Commission still had determined that there was reasonable cause to believe that defendant discriminated against plaintiff; such finding, although not dispositive, is some evidence of discrimination … . Given that the conduct spread beyond staff and plaintiff’s trainee class, but also to members of a previous class, further demonstrates the pervasive nature of the alleged discriminatory conduct — particularly in such a short period before plaintiff’s resignation. Accordingly, based on the foregoing, particularly plaintiff’s account of the drill sergeant’s conduct and the candid admissions by the administrative sergeant as to the objective nature of the comments being discriminatory … , we are satisfied that this proof, when viewed in a light most favorable to plaintiff, is sufficient to survive summary judgment and warrant a trial on plaintiff’s hostile work environment claim … .  White-Barnes v New York State Dept. of Corr. & Community Supervision, 2023 NY Slip Op 01561, Third Dept 3-23-23

Practice Point: Plaintiff was hired as a corrections officer at age 61. At the training academy she was called “Grandma” and ridiculed. She resigned after two days. The Third Department held the complaint stated an age-discrimination/hostile-work-environment cause of action and should not have been dismissed.

 

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PLAINTIFF SUED THE CITY AND POLICE UNDER 42 USC 1983 ALLEGING THE CITY AND POLICE HAD AN UNCONSTITUTIONAL POLICY OR PRACTICE ALLOWING POLICE OFFICERS TO FILE FALSE CHARGES, TESTIFY FALSELY AND FALSIFY EVIDENCE WITHOUT CONSEQUENCES; PLAINTIFF WAS ENTITLED TO RECORDS OF SIMILAR COMPLAINTS OR INVESTIGATIONS PURSUANT TO THE CPLR DISCOVERY PROVISIONS AND WAS NOT RESTRICTED TO A FOIL REQUEST (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s request for certain police records should not have been denied. Plaintiff sued the city under 42 USC 1983 alleging an unconstitutional policy or practice by the police which allows officers to swear out false criminal charges, testify falsely at trial and falsify evidence without consequences. Plaintiff sought records of complaints and investigations of similar conduct by officers in a specific task force. Because plaintiff is suing the city, his requests could be brought both pursuant to the Freedom of Information Law (FOIL) and the CPLR discovery provisions. Supreme Court should not have restricted plaintiff’s access to records to that available under the FOIL:

Supreme Court improvidently exercised its discretion with respect to plaintiff’s requests seeking records of complaints and investigations of allegedly similar conduct by officers in the same task force, as those requests did not, in fact, constitute a fishing expedition … . Plaintiff limited his requests to officers assigned only during the six months before his arrest … , and his reference to lawsuits, investigations by the Internal Affairs Bureau, and complaints to the Civilian Complaint Review Board also sufficiently identified documents sought with “reasonable particularity” (CPLR 3120[2] …). Without allowing disclosure of allegations of misconduct by other officers, it is unlikely that plaintiff could demonstrate “that the municipality had a custom or practice that was both widespread and reflected a deliberate indifference to its citizens’ constitutional rights” … .

… Supreme Court should not have imposed a limitation precluding plaintiff from seeking records directly from defendants instead of under FOIL. “When a public agency is one of the litigants, . . . it has the distinct disadvantage of having to offer its adversary two routes into its records” … , and the availability of FOIL does not replace the concomitant right to disclosure under the CPLR. Badia v City of New York, 2023 NY Slip Op 01582, First Dept 3-23-23

Practice Point; Here plaintiff sued the police under 42 USC 1983 alleging an unconstitutional policy to allow the police to file false charges, testify falsely and falsify evidence. Because plaintiff was suing the police, he was entitled to records of similar complaints under the CPLR discovery provisions and was not restricted to FOIL requests.

 

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THE JUVENILE DELINQUENCY PETITIONS WERE TIMELY FILED; THE CORRECT APPLICATION OF THE COVID TOLL OF THE STATUTE OF LIMITATIONS EXPLAINED (FIRST DEPT).

The First Department, reversing Family Court, determined the juvenile delinquency petitions were timely fifed because of the COVOD toll imposed by the Executive Orders:

By Executive Order No. 8.202.8, issued on March 20, 2020 due to the Covid-19 pandemic, the “time limit[s] for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state” were “tolled” … . “A toll suspends the running of the applicable period of limitation for a finite time period, and the period of the toll is excluded from the calculation of the relevant time period” … . However, a suspension “simply delays expiration of the time period until the end date of the suspension” … . By its plain terms, Executive Order 8.202.8 tolled the statute of limitations … , until that order and subsequent Executive Orders extending the tolling period were rescinded by Executive Order 8.210, issued on June 24, 2021 and effective the next day … .

Since the period of the toll must be excluded from the calculation of the filing deadline … , the juvenile delinquency petitions were timely filed on July 2,2021. Respondent allegedly committed his first unlawful act on December 21, 2019. Normally, the filing deadline for the petitions would have been respondent’s 18th birthday — June 7, 2021, which was 534 days after he allegedly committed the first act. When the first executive order took effect on March 20, 2020, there were 444 days remaining before respondent’s 18th birthday. By adding 444 days to June 24, 2021, when the executive order’s tolling provisions were terminated, the Agency’s deadline for filing the petitions was August 25, 2022. Here, the Agency refiled and served the second set of petitions on July 2, 2021, only eight days after the executive orders were rescinded.

The order rescinding the prior Executive Orders meant that the statute of limitations would start running again, “picking up where it left off” … . We also note that Family Court’s narrow interpretation of the Executive Order would deprive respondent of the benefits of Family Court intervention … . Matter of Isaiah H., 2023 NY Slip Op 01587, First Dept 3-23-23

Practice Point: Here the COVID toll of the statute of limitations rendered the filing of the juvenile delinquency petitions timely. The correct application of the toll was explained.

 

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THE NOTICE OF CLAIM IN THIS CHILD VICTIMS ACT SUIT AGAINST THE STATE SUFFICIENTLY ALLEGED WHEN THE ABUSE OCCURRED (SECOND DEPT). ​

The Second Department, reversing (modifying) the Court of Claims in this Child Victims Act (CVA) suit, determined the notice of claim sufficiently alleged the time when the alleged sexual abuse of claimant took place in a state psychiatric center. The court noted that the respondeat superior cause of action should be dismissed because any sexual abuse by a state employee would not be within the scope of employment as a matter of law:

… [T]he Court of Claims incorrectly determined that the claimant was required to allege the exact date on which the sexual abuse occurred … . The claimant’s allegations, including that the abuse occurred in 1993 while she was 14 years old and attending a gym class at Sagamore, were sufficient to satisfy the “time when” requirement of Court of Claims Act § 11(b) in this claim brought pursuant to the CVA … . Wagner v State of New York, 2023 NY Slip Op 01546, Second Dept 3-22-23

Practice Point; Here in this Child Victims Act suit, the allegation that the sexual abuse took place in 1993, when claimant was 14 and attending gym class met the “time when” requirement for a notice of claim.

 

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