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IN THIS CHILD VICTIMS ACT ACTION, THE JUDGE CORRECTLY STRUCK INFLAMMATORY LANGUAGE FROM THE COMPLAINT BUT SHOULD NOT HAVE SEALED THE COMPLAINT WITHOUT MAKING WRITTEN FINDINGS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the judge was correct in striking inflammatory language from this Child Victims Act complaint but should not have sealed the complaint:

Pursuant to CPLR 3024 (b), “[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading.” “[I]t is generally held that the test under this section is whether the allegation is relevant, in an evidentiary sense, to the controversy and, therefore, admissible at trial” … . Although “factual averments about sexual abuse are necessary in any action where those allegations form the predicate for an award of damages, to state a cause of action generally and pursuant to the CVA [Child Victims Act] specifically” … , the language struck by the court does not contain any factual averments necessary to plaintiff’s causes of action. Further, the court’s decision to strike the inflammatory language does not preclude plaintiff from attempting to prove at the trial stage that defendant committed acts of sexual abuse against her. We thus conclude that “there is no prejudice to plaintiff as a result of the order, whereas if [the language is] not stricken prejudice may result to defendant” … .

We further conclude, however, that the court erred in granting that part of the cross-motion seeking to seal the complaint without making “a written finding of good cause, . . . specify[ing] the grounds thereof,” as required by 22 NYCRR 216.1 (a) … . LG 101 Doe v Wos, 2023 NY Slip Op 02404, Fourth Dept 5-5-23

Practice Point: In this Child Victims Act case, the judge properly struck inflammatory language from the complaint but should not have sealed the complaint absent written findings of good cause.

 

THE MOTION TO STRIKE INFLAMMATORY ALLEGATIONS FROM THE COMPLAINT SHOULD HAVE BEEN GRANTED; WHETHER EVIDENCE ASSOCIATED WITH THE ALLEGATIONS IS DISCOVERABLE OR ADMISSIBLE AT TRIAL IS NOT AFFECTED BY GRANTING THE MOTION TO STRIKE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to strike inflammatory allegations from the complaint should have been granted:

Plaintiff commenced this action against defendant asserting causes of action for defamation, defamation per se, intentional infliction of emotional distress, and gender-motivated violence under the Victims of Gender-Motivated Violence Protection Law (Administrative Code of NYC § 10-111 et seq.).

The court should have granted defendant’s motion to strike certain inflammatory factual allegations from the first amended complaint. The allegations at issue, which employed rhetoric or detailed defendant’s misconduct toward other women and his relationships with notorious third parties, were scandalous and prejudicial, and not necessary to establish any element of plaintiff’s causes of action (see CPLR 3024 [b] …). CPLR 3024 (b) motions do not judge whether matters will be discoverable or admissible at trial … . Ganieva v Black, 2023 NY Slip Op 02380, First Dept 5-4-23

Practice Point: Here the motion to strike inflammatory allegations from the complaint should have been granted. Granting such a motion has no effect on whether the related evidence is discoverable or admissible at trial.

 

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THE MOTION TO VACATE THE DEFAULT ON LAW-OFFICE-FAILURE GROUNDS SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff’s motion to vacate the default on law-office-failure grounds should have been granted:

Plaintiff established a reasonable excuse for his default in failing to timely file his cross motion and opposition to defendants’ motion for summary judgment. Plaintiff’s counsel stated that he mistakenly believed that the papers could be filed at any time on the return date of December 15, 2021, and that the e-filing at 10:58 p.m. on that date was timely, despite the fact that the papers were, in fact, due to be filed two days before the return date. Thus, the default resulted from law office failure, which a court may excuse in its discretion (CPLR 2005 …). Moreover, there was no evidence that the default was deliberate or part of a pattern of dilatory conduct by plaintiff … .

Although plaintiff did fail to provide defendants with time to reply to his cross motion, thus causing prejudice to them, this error should have been remedied by granting defendants a brief adjournment, in view of the strong public policy of resolving cases on the merits, rather than by granting a default judgment … . The record also raises issues about defendants’ own conduct in connection with their motion, namely their submission of the motion for summary judgment just a few days before the court-imposed deadline for complying with a subpoena issued by plaintiff, and their failure to comply with an order directing production of responsive documents.

Furthermore, plaintiff made a prima facie showing of a meritorious claim … . Giordano v Giordano, 2023 NY Slip Op 02381, First Dept 5-4-23

Practice Point: Here law-office-failure was deemed an adequate ground for vacating the default judgment. Any prejudice caused by the late filing of motion papers could have been avoided by a brief adjournment.

 

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SETTING A RETURN DATE LESS THAN 20 DAYS FROM THE DATE OF SERVICE OF THE ARTICLE 78 PETITION WAS NOT, UNDER THE FACTS, A JURISDICTIONAL DEFECT; THE PETITION SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the failure to provide the requisite 20-day notice in an Article 78 petition, under the facts, was not a jurisdictional defect and the dismissal of the petition was an abuse of discretion. Petitioners sought to contest a ruling of the NYS Office of Children and Family Services which refused to find a maltreatment report unfounded re: one of the petitioners:

Pursuant to CPLR 7804 (c), “a notice of petition, together with the petition and affidavits specified in the notice, shall be served . . . at least [20] days before the time at which the petition is noticed to be heard.” However, CPLR 2001, which has been held to apply to service defects … , authorizes a court to “permit a mistake, omission, defect or irregularity . . . to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.” In deciding whether a defect in service is a “technical infirmity” within the scope of CPLR 2001, “courts must be guided by the principle of notice to the [respondent] — notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” … .

… [I]t is … wholly undisputed that the subject application was not heard on the return date proposed by petitioners, nor was there any appearance before Supreme Court, either held or calendared, prior to respondents’ motion. It is further undisputed that, apart from failing to strictly comply with CPLR 7804 (c), petitioners properly served respondents. Thus, this case is functionally no different than those in which a return date has been omitted from a notice of petition, and such failures have been held to be technical infirmities within the scope of CPLR 2001 … . Given these facts, although the return date on the notice of petition was defective at the time of service, we find that the service effectuated by petitioners was reasonably calculated to apprise respondents of this proceeding and afford them the opportunity to defend against it … . Matter of Naomi R. v New York State Off. of Children & Family Servs., 2023 NY Slip Op 02362, Third Dept 5-4-23

Practice Point: Here, under the facts, the failure to provide the required 20-day notice (service at least 20 days before the return date) for an Article 78 petition did not prejudice the respondent and was not a jurisdictional defect. The petition should not have been dismissed.

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT HAVE A REASONABLE EXCUSE FOR FAILING TO MOVE FOR A DEFAULT JUDGMENT WITHIN THE ONE-YEAR ALLOWED BY STATUTE; IT WAS AN ABUSE OF DISCRETION TO GRANT THE MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff did not have a reasonable excuse for failing to move for a default judgment within and year and the motion should not have been granted:

… [T]he one-year period within which the plaintiff had to take proceedings for the entry of a default judgment expired in March 2016 (see CPLR 3215[c]). The plaintiff moved, inter alia, for leave to enter a default judgment against the defendant and for an order of reference in September 2016, 18 months after this matter was released from the foreclosure settlement conference part. Thus, the plaintiff’s motion … for leave to enter a default judgment against the defendant was made beyond the one-year deadline imposed by CPLR 3215(c).

One exception to the mandatory language of CPLR 3215(c) is when “sufficient cause is shown why the complaint should not be dismissed.” “This requires a showing of a reasonable excuse for the delay in moving for leave to enter a default judgment, and a showing that the cause of action is potentially meritorious” … . The determination as to whether an excuse is reasonable is committed to the sound discretion of the court, but reversal is warranted if that discretion is improvidently exercised … .

… [T]he plaintiff’s vague, conclusory, and unsubstantiated assertions that the delay in making its motion was attributable to the time spent in the mandatory foreclosure settlement conference part, and its need to comply with certain administrative orders, were insufficient to excuse the lengthy 18-month delay in moving for leave to enter a default judgment … .

“Since the plaintiff failed to proffer a reasonable excuse, this Court need not consider whether the plaintiff had a potentially meritorious cause of action” … . Bank of N.Y. Mellon v Toscano, 2023 NY Slip Op 02294, Second Dept 5-3-23

Practice Point: If plaintiff does not have a reasonable excuse for failing to move for a default judgment within the one year allowed by statute, it is an abuse of discretion to grant the motion and whether there is a meritorious cause of action is irrelevant.

 

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THE JUDGE DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, DISMISS THE FORECLOSURE COMPLAINT FOR PLAINTIFF’S ALLEGED FAILURE TO APPEAR AT A STATUS CONFERENCE AND COMPLY WITH THE DIRECTIVE TO MOVE FOR AN ORDER OF REFERENCE BY A SPECIFIED DATE; PRECEDENT TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department, rejecting its own precedent in this foreclosure action, determined the judge did not have the authority to, sua sponte, dismiss the complaint for plaintiff’s failure to comply with the directive to appear at a status conference and move for an order of reference by a specified date:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . The plaintiff’s failure to comply with the directive in the order dated September 13, 2017, was not a sufficient ground upon which to direct dismissal of the complaint … . Moreover, the court was without authority to, sua sponte, direct dismissal of the complaint based upon the plaintiff’s failure to comply with its directive to proceed by motion where, as here, the plaintiff was entitled to proceed either by motion or trial … . …

… 22 NYCRR 202.27 was not a proper basis for directing dismissal of the complaint … . Where a party appears as scheduled, 22 NYCRR 202.27 “provides no basis for the court to summarily dismiss the action for failure to prosecute” … . Nothing in the record establishes that the plaintiff did not appear or was not ready to proceed at the final status conference … . To the extent our cases have held that a failure to comply with a directive in a prior status conference order amounts to a nonappearance at the status conference or a failure to announce readiness to proceed “immediately or subject to the engagement of counsel” within the meaning of 22 NYCRR 202.27 … , such cases should no longer be followed … . “In general, [t]he procedural device of dismissing a complaint for undue delay is a legislative creation, and courts do not possess the inherent power to dismiss an action for general delay” … where, as here, the statutory preconditions to dismissal under CPLR 3216, which is the statutory provision addressing “[w]ant of prosecution,” have not been met…. . U.S. Bank N.A. v Bhagwandeen, 2023 NY Slip Op 02349, Second Dept 5-3-23

Practice Point: A judge’s authority to dismiss a complaint in the absence of the statutory conditions in CPLR 3216 (failure to prosecute) is extremely limited. Here in this foreclosure action the Second Department rejected its own precedent and held plaintiff’s alleged failure to appear at a status conference and comply with the directive to move for an order of reference by a specified date did not justify the sua-sponte dismissal of the complaint.

 

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PETITIONER, A CORRECTION OFFICER WHO WAS INJURED MOVING LAUNDRY BAGS BLOCKING A HALLWAY IN THE JAIL, WAS ENTITLED TO GENERAL MUNICIPAL LAW 207-C BENEFITS; ALTHOUGH SUPREME COURT SHOULD NOT HAVE TRANSFERRED THE ARTICLE 78 TO THE APPELLATE DIVISION, THE FOURTH DEPARTMENT CONSIDERED THE MERITS (FOURTH DEPT).

The Fourth Department, reversing the denial of General Municipal Law 207-a benefits in this Article 78 proceeding, determined petitioner, a correction officer, was injured performing her duties when she attempted to move laundry bags blocking the hallway in the jail housing unit. The Fourth Department noted that Supreme Court should not have transferred the Article 78 proceeding to the appellate division because the determination was not based upon a hearing at which evidence was taken “pursuant to direction by law:”

… Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804 (g) on the ground that the petition raised a substantial evidence issue. Respondent’s determination “was not ‘made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law’ (CPLR 7803 [4]). Rather, the determination was the result of a hearing conducted pursuant to the terms of [an] agreement” between petitioner’s union and respondent … . Nevertheless, in the interest of judicial economy, we consider the merits of the petition …. …

Petitioner testified at the hearing that she thought the laundry bags outside the main entrance door were a “safety issue,” particularly because they would block other officers from moving through the hallway quickly and because persons using the hallway may get hurt. She further testified that her training and job responsibilities required her to address safety concerns. Petitioner also submitted documentary evidence that correction officers were under the duty to ensure that laundry bags are not placed on the housing unit floor at any time. Moreover, it is undisputed that there was no policy prohibiting correction officers from moving laundry bags. Although respondent submitted testimony that correction officers should order inmates to move laundry bags, that testimony did not address the location of the laundry bags and the safety hazard posed by laundry bags left in a hallway. We therefore conclude that the determination to deny petitioner’s application for section 207-c benefits was arbitrary and capricious … . Matter of Williams v County of Onondaga, 2023 NY Slip Op 02262, Fourth Dept 4-28-23

Practice Point: A correction officer injured moving laundry bags blocking a jail hallway was performing her duties and was entitled to General Municipal Law 207-c benefits.

Practice Point: An Article 78 proceeding should not be transferred to the appellate division unless evidence was taken at a hearing “pursuant to direction by law.” Here the hearing, which was held pursuant to an agreement between the respondent and petitioner’s union, did not meet that criteria.

 

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IN THIS SUIT BY A NEW JERSEY CASINO TO RECOVER DEFENDANT’S GAMBLING DEBT, DEFENDANT RAISED AFFIRMATIVE DEFENSES ALLEGING PLAINTIFF CASINO VIOLATED PROVISIONS OF NEW JERSEY’S CASINO CONTROL ACT (CCA); THE CONTROLLING AGENCY, THE CASINO CONTROL COMMISSION (CCC), HAS PRIMARY JURISDICTION OVER THOSE COMPLAINTS; THE COMPLAINTS MUST BE RULED ON BEFORE THE COURT CAN CONSIDER PLAINTIFF’S SUMMARY JUDGMENT MOTION (FIRST DEPT).

​The First Department, in a full-fledged opinion by Justice Kapnick, determined the plaintiff, a New Jersey casino (Golden Nugget), was not entitled to summary judgment this action seeking to recover defendant’s (Chan’s) $200,000 gambling debt. Defendant had raised affirmative defenses based upon complaints alleging the dice used by the casino violated the Casino Control Act (CCA) which defendant filed with the New Jersey Division of Gaming Enforcement (DGE). The Casino Control Commission has primary jurisdiction over those complaints. Therefore the complaints must be ruled upon before summary judgment can be considered by the court:

Supreme Court’s granting of summary judgment to plaintiff was premature. The motion court should instead have deferred any decision until receipt of DGE’s ruling on Chan’s “patron complaint” based on the same violations, since that grievance was filed prior to the commencement of plaintiff’s litigation and remained pending at the time of its decision. While DGE has ruled that the same scribing violations against another casino do not violate the CCA, there has been no ruling by DGE in any matter concerning defendant’s allegations of “non-transparent dice.” Accordingly, the motion for summary judgment is denied, with leave to renew upon a ruling by DGE on the “patron complaint,” or after six months if DGE has failed to resolve this issue despite sufficient notice to DGE by the parties … . Golden Nugget Atl. City LLC v Chan, 2023 NY Slip Op 02176, First Dept 4-27-23

Practice Point: Here a New Jersey sued defendant to recover a $200,000 gambling debt. Defendant raised violations of New Jersey’s Casino Control Act as affirmative defenses. Because New Jersey’s Casino Control Commission has primary jurisdiction over those complaints, they must be ruled on before the court can consider the casino’s summary judgment motion.

 

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PLAINTIFF’S COUNSEL SHOULD NOT HAVE BEEN DISQUALIFIED; HER TESTIMONY ABOUT HER ALLEGED CONDUCT AT THE INDEPENDENT MEDICAL EXAMINATION (IME) WOULD HAVE BEEN CUMULATIVE AND DEFENDANTS COULD NOT SHOW THE IME WAS COMPROMISED IN ANY WAY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s counsel should not have been disqualification based upon her alleged interference with the independent medical examination (IME). Defendants did not demonstrate counsel’s testimony concerning the IME was necessary, given the plaintiff’s and physician’s ability to testify:

… [D]isqualification is required “only where the testimony by the attorney is considered necessary and prejudicial to plaintiffs’ interests” … .

… Although defendants maintain that they have a right to call plaintiff’s counsel as a witness based on the knowledge she obtained at the IME, and therefore her disqualification under Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7 is required, defendants have not established that counsel’s testimony would be necessary to their defense and not cumulative of the testimony that could be provided by the examining physician and plaintiff herself … .

The examining physician completed a “meaningful examination” of plaintiff at the IME, reflected by the IME report in which he was able to opine with a reasonable degree of medical certainty as to the genesis of plaintiff’s symptoms, and defendants have not established that they were prejudiced by the contents of the report based on counsel’s alleged intrusions … . To the extent that further information is required to prepare a defense, the remedy is not disqualification of opposing counsel but rather to permit defendants to seek further discovery to obtain that information … . Domingo v 541 Operating Corp., 2023 NY Slip Op 02175, First Dept 4-27-23

Practice Point: Defendants alleged plaintiff’s counsel’s behavior during the independent medical examination (IME) required her disqualification because defendants needed to call her as a witness to IME proceedings. The First Department held that counsel’s testimony about the IME was not necessary (cumulative to plaintiff’s and the physician’s testimony) and defendants did not show any prejudice stemming from counsel’s alleged conduct. Therefore plaintiff’s counsel and her firm should not have been disqualified.

 

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THIS FAMILY OFFENSE PROCEEDING WAS REMITTED TO FAMILY COURT; APPELLATE REVIEW WAS NOT POSSIBLE IN THE ABSENCE OF FINDINGS OF FACT ADDRESSING CONFLICTING EVIDENCE AND THE CREDIBILITY OF WITNESSES (SECOND DEPT).

The Second Department, remitting the matter to Family Court in this family offense proceeding, noted that appellate review was impossible without findings of fact:

The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record … .

Effective appellate review requires that appropriate factual findings be made by the hearing court since it is the court best able to measure the credibility of the witnesses … . In granting or denying a petition for an order of protection, the Family Court must state the facts deemed essential to its determination (see CPLR 4213[b] … ). Remittal is not necessary, however, where the record is sufficient for this Court to conduct an independent review of the evidence … .

Here, the Family Court, which was presented with sharply conflicting accounts by the parties regarding their allegations, issued mutual orders of protection without setting forth any findings with respect to the credibility of the parties or the facts deemed essential to its determinations (see CPLR 4213[b]). Since the record presents factual issues, including questions of credibility, and in light of the conflicting allegations made by the parties against each other, resolution thereof is best left to the court of first instance … . Matter of Sealy v Peart, 2023 NY Slip Op 02128, Second Dept 4-26-23

Practice Point: Here in this family offense proceeding appellate review was not possible because the Family Court judge did not make any findings addressing conflicting evidence and the credibility of witnesses. The matter was remitted because the record was not sufficient for an independent review.