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THE ALLEGATIONS IN THE VERIFIED COMPLAINT IN THIS SLIP AND FALL CASE WERE SUFFICIENT TO SUPPORT PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT; THE DEFENDANT’S FAILURE TO ANSWER IS DEEMED TO BE AN ADMISSION TO THE ALLEGATIONS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for a default judgment based upon the allegations in the verified complaint should have been granted:

A party seeking a default judgment must submit proof of service of the summons and the complaint and “proof of the facts constituting the claim, the default and the amount due” (CPLR 3215[f] …). To demonstrate “facts constituting the claim,” the movant need only proffer proof sufficient “to enable a court to determine that a viable cause of action exists” … . The movant may do so either by submission of an affidavit of merit or by verified complaint, if one has been properly served … .

Here, contrary to the court’s conclusion, plaintiffs established the facts constituting their claim. Their verified complaint alleges that plaintiff Maria Bigio was walking in front of defendant’s property when she tripped and fell on a defective sidewalk condition, sustaining injuries, and plaintiff stated in her verification that these allegations were true to her own personal knowledge. Because defendant, by defaulting, is deemed to have admitted “all traversable allegations in the complaint, including the basic allegation[] of liability,” the allegations were sufficient to enable the court to determine that a viable negligence cause of action existed … . Bigio v Gooding, 2023 NY Slip Op 00806, First Dept 2-14-23

Practice Point: Here in this slip and fall case the allegations in the verified complaint were sufficient to grant plaintiff’s motion for a default judgment. The failure to answer is deemed an admission to the allegations in the complaint.

 

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NEW YORK HAS LONG-ARM JURISDICTION OVER THE MICHIGAN MANUFACTURER OF UNMANNED AERIAL VEHICLES (UAV’S) PURCHASED BY SUNY STONY BROOK FOR USE IN MADAGASCAR IN THIS BREACH OF CONTRACT ACTION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a dissenting opinion, reversing the appellate division, determined New York had long-arm jurisdiction over a Michigan manufacturer of unmanned aerial vehicles (UAV’s) purchased by SUNY Stony Brook for transporting medical supplies to remote areas of Madagascar. The two UAV’s purchased by SUNY Stony Brook didn’t meet Stony Brooks’ needs and were returned to Michigan for replacement. The UAV’s were not replaced and SUNY Stony Brook sued for breach of contract:

… “[T]he nature and purpose of a solitary business meeting conducted for a single day in New York may supply the minimum contacts necessary to subject a nonresident participant to the jurisdiction of our courts” … . Here … there was more than this bare minimum: the meeting was part of a far reaching and long-standing relationship … . * * *

… Plaintiff’s claims are based on the sale of the two UAVs, and [the UAV manufacturer’s] contacts in New York were directly related to efforts to resolve the dispute over operability of the purchased UAVs … .Thus, “[t]here is an articulable nexus or substantial relationship between defendant’s New York activities and the parties’ contract, defendant’s alleged breach thereof, and potential damages” … .

Finally, the exercise of jurisdiction must also comport with due process, a constitutional inquiry focused on “the relationship among the defendant, the forum, and the litigation” … . * * * Those requirements are satisfied here. State of New York v Vayu, Inc., 2023 NY Slip Op 00801, CtApp 2-14-23

Practice Point: Even a single solitary business meeting in New York may supply the minimum contacts necessary for long-arm jurisdiction.

 

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DEFENDANT WAS IMPROPERLY SUBSTITUTED AS A JOHN DOE IN THIS FORECLOSURE ACTION AND BECAUSE HE WAS SUED AS AN HEIR TO THE MORTGAGEE, AND NOT AS A REPRESENTATIVE OF THE MORTGAGEE’S ESTATE, THE ACTION WAS TIME BARRED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this foreclosure action, determined defendant was not properly substituted in the amended complaint for a John Doe in the original complaint and, because defendant was sued in his capacity as the heir of the decedent, and not as a representative of the decedent’s estate, the action was time-barred:

Plaintiff commenced this mortgage foreclosure action … against … the mortgagee, David B. Bailey (decedent), and certain “John Does” and “Jane Does” defined in the complaint as “the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint.” Plaintiff subsequently discovered that decedent had died in 2018 and made an ex parte application seeking … to substitute Arthur Bailey, in his capacity as heir to decedent’s estate (defendant), as a John Doe defendant and for leave to file an amended complaint. …

We agree with defendant that his motion should be granted insofar as it seeks dismissal of the amended complaint against him. Defendant correctly contends that he was improperly substituted as John Doe #1 pursuant to CPLR 1024. Inasmuch as the original complaint “fail[ed] to mention decedent’s death” and defendant is being sued in the amended complaint in his capacity as an heir to decedent’s estate, defendant does not fit within the categories of John and Jane Does set forth in the original complaint and thus cannot be substituted therefor … . Further, although here plaintiff also filed and served an amended complaint on defendant solely in his capacity as heir to decedent’s estate and not as a representative thereof (… see generally EPTL 3-3.6 [a], [b] …), … the relevant statute of limitations expired prior to the order granting plaintiff’s ex parte application for leave to file the amended complaint (see generally CPLR 213 [4]). Citibank, N.A. v Bailey, 2023 NY Slip Op 00777, Fourth Dept 2-10-23

Practice Point: If a defendant does not fit any of the “John Doe” categories described in the original complaint, he cannot be added as a John Doe in an amended complaint.

 

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PLAINTIFF ALLEGED HE WAS DENIED PROPER MEDICAL CARE IN THE NIAGARA COUNTY JAIL AND SUED THE JAIL DOCTOR, THE COUNTY AND THE SHERIFF; THE CAUSES OF ACTION ALLEGING THE VIOLATION OF PLAINTIFF’S CIVIL RIGHTS PURSUANT TO 42 USC 1983 SURVIVED MOTIONS TO DISMISS; OTHER CAUSES OF ACTION WERE DEEMED TIME-BARRED; ACTIONS ALLEGING THE COUNTY WAS VICARIOUSLY LIABLE FOR THE ACTS OF THE SHERIFF WERE DISMISSED; THE RELATION-BACK DOCTRINE DID NOT APPLY BECAUSE THE COUNTY AND SHERIFF WERE NOT DEEMED “UNITED IN INTEREST” (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined some causes of action should have been dismissed and others should not have been dismissed in this action against the county, county employees and sheriff alleging plaintiff was denied proper medical care while he was an inmate in the Niagara County Jail. The medical malpractice and negligence causes of action against a doctor employed by the county were time-barred pursuant to General Municipal Law 50-d (one year and ninety days). The causes of action against the doctor and the county alleging civil rights violations pursuant to 42 USC 1983 properly survived motions to dismiss. But the 42 USC 1983 cause of action against the sheriff should have been dismissed because the sheriff had no personal involvement in plaintiff’s medical care. The relation-back doctrine was improperly invoked for time-barred causes of action against the sheriff because the county and the sheriff are not united interest (the county is not vicariously liable for the acts of the sheriff and the sheriff’s department does not have an identity separate from the county). The negligent investigation cause of action should have been dismissed because New York does not recognize it. Claims alleging the county was vicariously liable for the acts of the sheriff should have been dismissed because plaintiff did not allege there was a local law imposing such a responsibility. Prezioso v County of Niagara, 2023 NY Slip Op 00768, Fourth Dept 2-10-23

Practice Point: Plaintiff alleged he was denied proper medical care in the Niagara County Jail. Plaintiff’s causes of action alleging a violation of his civil rights pursuant to 42 USC 1983 survived dismissal. The confusing relationship between the county and the sheriff resulted in the dismissal of several causes of action. The one-year-ninety day statute of limitations in the General Municipal Law applied to some causes of action. Absent a local law to the contrary, a county is not vicariously liable for the acts of the sheriff. The decision is worth reading because of the sheer number of unique issues which arise in suits against counties, county employees and county sheriffs.

 

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THE MOTION TO AMEND THE COMPLAINT SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE PROPOSED CHANGES WERE NOT “REDLINED” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to amend the complaint should not have been denied on the ground the proposed changes were not “redlined” (apparently referring to the failure to mark the proposed changes to make them more visible):

The court improvidently exercised its discretion in denying plaintiff’s cross motion solely on the technical basis that the proposed amended complaint was not redlined (see CPLR 3025[b]), since the proposed amendments to add the third-party defendants as direct defendants were sufficiently described in the moving papers and easily discerned on review of the proposed amended summons and complaint … . Herrera v Highgate Hotels, L.P., 2023 NY Slip Op 00729, First Dept 2-9-23

Practice Point: Although CPLR 3025 (b) requires that “Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.” the motion to amend here should not have been denied because the proposed changes were not “redlined.” The accompanying papers sufficiently described the proposed changes.

 

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IN THIS CHILD VICTIMS ACT CASE, THE ALLEGATION THE ABUSE TOOK PLACE IN 1982 – 1983 WAS SPECIFIC ENOUGH TO MEET THE PLEADING REQUIREMENTS OF THE COURT OF CLAIMS ACT (SECOND DEPT).

The Second Department, reversing the Court of Claims in this Child Victims Act proceeding, determined the claim sufficiently described when the sexual abuse occurred. The claimant alleged she was abused by a state employee in 1982 and 1983 when she was 17. The Court of Claims had dismissed the claim finding that the allegations when the abuse took place were not specific enough. The Second Department found the 1982 – 1983 time frame adequate:

Court of Claims Act § 11(b) “places five specific substantive conditions upon the State’s waiver of sovereign immunity by requiring the claim to specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” … .  ***

Under the particular circumstances of this case, the date ranges provided in the claim stating that the sexual abuse commenced in approximately 1982 and occurred “repeatedly” and “multiple times” from approximately 1982 to 1983, during periods when the claimant was directed to the Workshop to receive counseling, along with other information contained in the claim including, inter alia, that there was a criminal investigation, prosecution, and conviction of West based upon the claimant’s complaints of sexual abuse, were sufficient to satisfy the “time when” requirement of Court of Claims Act § 11(b) … . Fenton v State of New York, 2023 NY Slip Op 00650, Second Dept 2-8-23

Practice Point: Here in this Child Victims Act case against a state employee, the allegation the sexual abuse took place in 1982 – 1983 was deemed specific enough to satisfy the pleading requirements in the Court of Claims Act.

Similar issues and result in Meyer v State of New York, 2023 NY Slip Op 00658, Second Dept 2-8-23

 

IF PLAINTIFF DOES NOT REJECT AN UNTIMELY ANSWER SUBMITTED WITHOUT LEAVE OF COURT OR STIPULATION, OBJECTION TO THE ANSWER AS UNTIMELY IS WAIVED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the amended answer should not have been struck because it was untimely. The plaintiff did not reject the amended answer:

Although Saldarriaga [defendant] filed her amended answer approximately 20 months after filing her original answer, well beyond the period within which an amended pleading could have been served as of right (see CPLR 3025[a]), without obtaining leave of court or the stipulation of all parties to the amendment … , the plaintiff did not reject the amended answer. By “retaining the amended pleading without objection” , the plaintiff waived any “objection as to untimeliness” … . Thus, Saldarriaga’s amended answer should not have been stricken as untimely.  Citibank, N.A. v Saldarriaga, 2023 NY Slip Op 00647, Second Dept 2-8-23

Practice Point: If a plaintiff accepts an untimely answer submitted without leave of court or a stipulation, objection to the answer as untimely is waived.

 

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THE TENANT MADE GOOD FAITH EFFORTS TO CURE THE DEFAULTS CITED BY THE LANDLORD AND WAS ENTITLED TO A YELLOWSTONE INJUNCTION TOLLING TENANT’S TIME TO CURE (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Gonzalez, determined the tenant liquor-store had made good faith efforts to cure the defaults cited by the landlord and was entitled to a Yellowstone injunction tolling the tenant’s time to cure the defaults. The opinion lays out the fact in a level of detail which cannot be fairly summarized here:

In keeping with public policy against forfeiture, courts grant Yellowstone relief on “far less than the normal showing required for preliminary injunctive relief” … . The tenant need only demonstrate that (1) it holds a lease; (2) it received a notice of default, notice to cure, or threat to terminate the lease; (3) it requested injunctive relief prior to the termination of the lease or expiration of the cure period; and (4) it is prepared to cure the alleged default by any means short of vacating the premises … ,. Once the tenant establishes these elements, the motion court may exercise its discretion to issue a Yellowstone injunction tolling the tenant’s time to cure … . Elite Wine & Spirit LLC v Michelangelo Preserv. LLC, 2023 NY Slip Op 00631, First Dept 2-7-23

Practice Point: If a tenant has made good faith efforts to cure the defaults cited by the landlord, a court may grant the tenant a Yellowstone injunction tolling the tenant’s time for curing the defaults. The Yellowstone criteria are laid out in the opinion.

 

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THE REVIVED STATUTE OF LIMITATIONS FOR LAWSUITS ALLEGING SEXUAL ABUSE PURSUANT TO THE CHILD VICTIMS ACT (CVA) DOES NOT VIOLATE DUE PROCESS (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Bannister, determined the revived statute of limitations for law suits based upon sexual abuse under the Child Victims Act (CVA) did not violate due process:

… [I]t is well settled that “a claim-revival statute will satisfy the Due Process Clause of the [New York] State Constitution if it was enacted as a reasonable response in order to remedy an injustice” … . Addressing the second prong of that standard first—i.e., whether the statute “remed[ied] an injustice”—the Court of Appeals recognized that, “[i]n the context of a claim-revival statute, there is no principled way for a court to test whether a particular injustice is ‘serious’ or whether a particular class of plaintiffs is blameless; such moral determinations are left to the elected branches of government” … . Here, as evidenced by the legislative history of the CVA, the legislature considered the need for “justice for past and future survivors of child sexual abuse” and the need to “shift the significant and lasting costs of child sexual abuse to the responsible parties” … . Specifically, the legislative history noted the significant barriers those survivors faced in coming forward with their claims, including that child sexual abuse survivors may not be able to disclose their abuse until later in life after the relevant statute of limitations has run because of the mental, physical and emotional injuries sustained as a result of the abuse … . As explained in the Senate Introducer’s Memorandum in Support, “New York currently requires most survivors to file civil actions . . . against their abusers by the age of 23 at most, long before most survivors report or come to terms with their abuse, which has been estimated to be as high as 52 years old on average” … .. Because the statutes of limitat ions left “thousands of survivors” of child sexual abuse unable to sue their abusers, the legislature determined that there was an identifiable injustice that needed to be remedied … . PB-36 Doe v Niagara Falls City Sch. Dist., 2023 NY Slip Op 00598, Fourth Dept 2-3-23

Practice Point: The revived statute of limitations in the Child Victims Act is constitutional.

 

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THE LACK-OF-STANDING DEFENSE WAS NOT RAISED IN THE ANSWER OR THE PREANSWER MOTION TO DISMISS; IT IS NOT A JURISDICTIONAL DEFECT; THEREFORE THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE ACTION ON THAT GROUND (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed petitioners’ declaratory judgment action against the town for lack of standing. The petitioners sought a ruling that the town had failed to enforce a zoning code provision which prohibited respondent-defendant from operating a commercial business out of his residence. Although the town moved to dismiss the action, it did not raise lack-of-standing in its answer or its motion. Therefore the judge did not have the authority to dismiss on that ground:

“Standing ‘is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation’ ” … . Nonetheless, “a party’s lack of standing does not constitute a jurisdictional defect” … , and therefore a challenge to a party’s standing is waived if the defense is not asserted in either the answer or a preanswer motion to dismiss … . Here, the Town’s motion with respect to the second cause of action was not based on petitioners’ alleged lack of standing. Thus, we conclude that the court erred in sua sponte reaching the issue of standing with respect to that cause of action … . Matter of Cayuga Nation v Town of Seneca Falls, 2023 NY Slip Op 00575. Fourth Dept 2-3-23

Practice Point: A lack-of-standing is not a jurisdictional defect. Therefore, if it is not raised in the answer or a preanswer motion to dismiss, it is waived and the judge cannot raise it sua sponte.

 

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