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BOTH PLAINTIFF BUS DRIVER AND THE DRIVER OF THE CAR WHICH STRUCK PLAINTIFF’S BUS WERE DEEMED COUNTY EMPLOYEES IN A RELATED PROCEEDING; THEREFORE, PURSUANT TO THE COLLATERAL ESTOPPEL DOCTRINE, WORKERS’ COMPENSATION WAS PLAINTIFF’S EXCLUSIVE REMEDY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, determined the doctrine of collateral estoppel required the dismissal of plaintiff bus-driver’s causes of action against the estate of driver of the car which struck plaintiff’s county bus, and against Jewish Family Services (JFS) for whom the decedent-driver was volunteering at the time of the accident. JFS and the county collaborated on a program to drive senior citizens to medical appointments. Plaintiff sued JFS under a respondeat superior theory. Pursuant to the Workers’ Compensation Law, workers’ compensation benefits were plaintiff’s exclusive remedy because both she and the driver of the car had been deemed county employees in a related action:

A review of the papers supporting [the county’s] cross motion [in the related proceeding] establishes, however, that [the county] focused upon the provisions of Workers’ Compensation Law § 29 (6). Plaintiff thereafter had a full and fair opportunity to respond to that issue, which was discussed at length in the 2019 order. Indeed, Supreme Court … expressly held that the provisions of that statute applied because “both [plaintiff] and Hyde were within the same employ and acting within the scope of employment at the time the alleged injuries occurred, therefore rendering them co-employees which results in workers’ compensation being the exclusive remedy.” Accordingly, under the circumstances of this case, the issue of whether plaintiff and Hyde were coemployees was “actually litigated, squarely addressed and specifically decided” against plaintiff … .

Plaintiff’s claim against JFS is premised upon the theory that JFS exercised sufficient control over Hyde to render it vicariously liable for her negligence. The issue of whether plaintiff and Hyde are coemployees has been resolved against plaintiff with preclusive effect, however, and plaintiff’s exclusive remedy for the negligence of Hyde is therefore workers’ compensation benefits. As noted above, as Workers’ Compensation Law § 29 (6) “deprive[s] the injured employee of a right to maintain an action against a negligent coemployee, [it also] bars a derivative action which necessarily is dependent upon the same claim of negligence for which the exclusive remedy has been provided” … . Thus, as “plaintiff[] did not assert any allegation that [JFS] had committed an act constituting affirmative negligence,” the cross motion of JFS for summary judgment dismissing the complaint against it should have been granted … . Bryant v Gulnick, 2022 NY Slip Op 07284, Third Dept 12-22-22

Practice Point: In a related proceeding it was determined that both plaintiff bus driver and the driver of the car which struck plaintiff’s bus were county employees. Therefore, pursuant to the doctrine of collateral estoppel, Workers’ Compensation was plaintiff’s exclusive remedy.

 

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ALTHOUGH TWO CHILDREN HAD BEEN REMOVED FROM MOTHER’S CARE AFTER NEGLECT FINDINGS AND MOTHER ALLEGEDLY CONCEALED HER PREGNANCY AND FAILED TO SEEK APPROPRIATE PRENATAL CARE, SUMMARY JUDGMENT FINDING MOTHER HAD NEGLECTED HER NEWBORN WAS NOT APPROPRIATE; MATTER REMITTED TO BE HEARD BY A DIFFERENT JUDGE (THIRD DEPT).

The Third Department, reversing Family Court, determined summary judgment finding respondent mother had neglected and derivatively neglected her newborn baby was not appropriate. Two children had been removed from mother’s care based on neglect findings,. Mother allegedly had concealed her pregnancy and allegedly had not sought appropriate prenatal case. But triable issues of fact remained. The matter was sent back to be heard by a different judge:

Upon review of the record and considering the nature of the prior neglect findings, the passage of time, and the questions concerning the degree of progress made by respondent over that time, we find that there are triable issues of fact precluding summary judgment (see CPLR 3212 [b] …). Petitioner’s motion was centered upon the two prior findings of neglect and respondent’s failure to abide by the corresponding orders of disposition … . However, the petition itself acknowledged that respondent had recently become more compliant with petitioner, resulting in expanded visitation with her children, and had been making improvements in her engagement with services and communication skills. According to the petition, respondent had put together a safety plan for the subject child to live with her, and petitioner saw this as “a strength” and was “hopeful in working with” respondent on this plan. Further, petitioner pointed out in opposition to the motion that she had improved her housing and employment situation and ended a relationship with an abusive partner…. .

Accordingly, the matter must be remitted for a fact-finding hearing concerning the allegations in the petition … . Under the circumstances, we find it appropriate to remit to a different judge for the purpose of conducting the hearing. Matter of Ja’layna FF. (Jalyssa GG.), 2022 NY Slip Op 07271, Third Dept 12-22-22

Practice Point: Summary judgment is almost never appropriate in a child-neglect matter. Here summary judgment finding mother had neglected her newborn based on neglect findings re: two other children and allegations mother had concealed her pregnancy and failed to seek appropriate prenatal care was reversed. There existed several triable issue of fact, including recent cooperation by mother. The matter was remitted for a hearing in front of a different judge.

 

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THE HUSBAND DEMONSTRATED HE WAS ILL WHEN THE DIVORCE TRIAL WAS HELD AND THE WIFE MAY NOT BE ENTITLED TO A PORTION OF HIS WORLD TRADE CENTER ACCIDENTAL DISABILITY RETIREMENT BENEFITS BECAUSE PERSONAL-INJURY BENEFITS CONSTITUTE SEPARATE PROPERTY; THE HUSBAND’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court in this divorce action, determined the husband’s motion to vacate the default judgment should have been granted. The husband demonstrated he missed the trial because of illness and he had a meritorious argument that the World Trade Center accidental disability retirement benefits were personal-injury benefits which constituted his personal property:

Pursuant to CPLR 5015 … a court may vacate an order “upon the ground of excusable default, if such motion is made within one year” after such order … . “[A] party seeking to vacate a default must establish a reasonable excuse for the default and a potentially meritorious . . . defense” to the underlying claim … . Significantly, “in recognition of the important public policy of determining matrimonial actions on the merits, the courts of this State have adopted a liberal policy with respect to vacating defaults in actions for divorce” … . * * *

… [I]n support of his motion to vacate the default, the husband proffered an affidavit wherein he averred that on the day of the hearing he was suffering from shingles and, as such, he was in extreme pain, sleep deprived, disoriented and unable to leave his bed. The husband also submitted an affidavit from a physician’s assistant who diagnosed him with, and treated him for, shingles approximately two weeks prior to the date of the trial. She also averred that she saw the husband again the day following the missed trial and that she “observed a noticeable progression of the shingles rash on [the husband’s] body.” … . …

… [T]he husband claims that the wife is not entitled to the portion of his pension that is for World Trade Center accidental disability retirement benefits. “While it is true that the portion of a disability pension which represents compensation for personal injuries is separate property, the party so claiming bears the burden of demonstrating what portion of the pension reflects compensation for personal injuries, as opposed to deferred compensation” … . Zeledon v Zeledon, 2022 NY Slip Op 07279, Third Dept 12-22-22

Practice Point: Here the husband’s illness at the time of trial was a reasonable excuse for his default and the argument that the wife was not entitled to his World Trade Center accidental disability retirement benefits which constituted his separate property (personal-injury benefits) was meritorious. Therefore the husband’s CPLR 5015 motion to vacate the default judgment should have been granted.

 

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ALTHOUGH THE MEDICAL MALPRACTICE ACTIONS WERE TIME-BARRED, THE RELATED WRONGFUL DEATH ACTION, BROUGHT WITHIN TWO YEARS OF DEATH, WAS NOT (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined that, although the medical malpractice actions were time-barred, the related wrongful death action, brought within two years of death, was not:

Although the plaintiff denominated the second cause of action as one for “loss of services,” she alleged all the elements necessary to plead a cause of action for wrongful death, including “(1) the death of a human being, (2) the wrongful act, neglect or default of the defendant by which the decedent’s death was caused, (3) the survival of distributees who suffered pecuniary loss by reason of the death of decedent, and (4) the appointment of a personal representative of the decedent” … . … [T]he wrongful death cause of action was timely. EPTL 5-4.1 provides that an action for wrongful death “must be commenced within two years after the decedent’s death.” Here, the decedent died on November 9, 2013, and this action was commenced on November 9, 2015. Thus, “the cause of action alleging wrongful death was timely commenced within two years of the decedent’s death, since, at the time of [his] death, [the] cause of action sounding in medical malpractice was not time-barred” … .Proano v Gutman, 2022 NY Slip Op 07253, Second Dept 12-21-22

Practice Point: Here the medical malpractice actions were time-barred, but the related wrongful death actions, brought within two years of death, were not.

 

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THE DEFAULTING DEFENDANT WAS DEEMED TO HAVE ADMITTED ALL THE ALLEGATIONS IN THE BREACH-OF-CONTRACT COMPLAINT; THERFORE WHETHER DEFENDANT CAUSED THE DAMAGES SUSTAINED BY PLAINTIFF SHOULD NOT HAVE BEEN CONSIDERED IN THE INQUEST; THE FACT THAT THE AMOUNT OF DAMAGES IS UNCERTAIN DOES NOT JUSTIFY THE FAILURE TO AWARD DAMAGES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant’s default admitted all the allegations in the complaint. Therefore damages should have been awarded for breach of contract:

A defaulting defendant is “deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” … . “The sole issue to be determined at an inquest is the extent of damages sustained by the plaintiff” … . Here, the inquest court erred in considering the question of whether the defendants caused the damages sustained by the plaintiff … .

… [W]hile there is some uncertainty with respect to the plaintiff’s claim of lost profits, “when it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A [party] violating [a] contract should not be permitted entirely to escape liability because the amount of the damages which [the party] has caused is uncertain” … . LD Acquisition Co. 9, LLC v TSH Trade Group, LLC, 2022 NY Slip Op 07227, Second Dept 12-21-22

Practice Point: A defaulting defendant is deemed to have admitted all the allegations in the complaint. Therefore whether the defendant caused the damages alleged in the complaint should not be considered in the inquest. Here the failure to award any damages for breach of contract was not appropriate.

 

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THE SO-ORDERED STIPULATION BETWEEN THE PARTIES RENDERED THE RELATED CAUSE OF ACTION IN THE COMPLAINT MOOT; THE OTHER CAUSE OF ACTION RELIED ON SPECULATION ABOUT FUTURE EVENTS AND THEREFORE WAS NOT RIPE FOR JUDICIAL REVIEW (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined; (1) the stipulation between the two parties rendered the related cause of action in the complaint moot’ and (2) the other cause of action in the complaint was based on speculation about future events and therefore was not ripe for judicial review:

… [P]ursuant to the mootness doctrine, courts are precluded “from considering questions which, although once live, have become moot by passage of time or change in circumstances” … . By contrast, if an “anticipated harm is insignificant, remote or contingent the controversy is not ripe” for judicial review … . “To determine whether a matter is ripe for judicial review, it is necessary first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied” … .

… [T]he first cause of action was resolved by the parties’ so-ordered stipulation. … [T]hat cause of action was rendered academic pursuant to the mootness doctrine … . … [T]he second cause of action relied on speculation about what the County and its various departments might do in response to future audits, and therefore the contemplated harm was both remote and contingent and the controversy was not ripe for judicial review … . Kennedy v Suffolk County, 2022 NY Slip Op 07226, Second Dept 12-21-22

Practice Point: If a cause of action has already been addressed by a so-ordered stipulation, the cause of action is precluded by the mootness doctrine. If a cause of action is based on speculation about future events, it is not ripe for judicial review.

 

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DEFENDANTS IN THIS FORECLOSURE ACTION WERE ENTITLED TO A HEARING PURSUANT TO CPLR 3408 RE: WHETHER THE BANK ENGAGED IN SETTLEMENT NEGOTIATIONS IN GOOD FAITH (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants in this foreclosure action were entitled to a hearing on whether plaintiff bank engaged in settlement negotiations in good faith:

… Supreme Court should have granted the defendants’ cross motion for a hearing to determine whether the plaintiff negotiated in good faith pursuant to CPLR 3408(f). CPLR 3408 requires the parties in a residential foreclosure action to attend settlement conferences at an early stage of the litigation, at which they must “negotiate in good faith to reach a mutually agreeable resolution” … . … [T]he circumstances surrounding its servicer’s handling of the first two loan modification applications are “relevant in the overall context of the parties’ relationship and the negotiations between them,” and thus, are relevant to the good faith inquiry … . …[D]efendants submitted evidence that the plaintiff “engaged in dilatory conduct by making piecemeal document requests, providing contradictory information, and repeatedly requesting documents which had already been provided”… . Investors Bank v Brooks, 2022 NY Slip Op 07224, Second Dept 12-21-22

Practice Point: Defendants submitted evidence the bank in this foreclosure action did not engage in settlement negotiations pursuant to CPLR 3408 in good faith. Supreme Court should have held a hearing.

 

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DEFENDANT’S COUNSEL MISCALENDARED THE RETURN DATE FOR THE MOTION FOR SUMMARY JUDGMENT; THE MOTION TO VACATE THE JUDGMENT DUE TO LAW OFFICE FAILURE SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant’s motion to vacate the judgment due to law office failure should have been granted. Plaintiff’s unopposed motion for summary judgment had been granted:

The law office failure of miscalendaring dates has been deemed a reasonable excuse … . Here, defendant’s counsel miscalendared the return date of plaintiff’s summary judgment motion for July 1, 2021 rather than June 1, 2021. Counsel explained that it is his regular practice to calendar motion dates once a return date is set; to review his calendar daily and on or about the first of each month; and that he had been working part-time at home with a less robust system compared to his office … . Accordingly, defendant proffered a reasonable excuse in the form of law office failure and should not be deprived of its day in court for counsel’s error … .  First Am. Tit. Ins. Co. v Successful Abstract, LLC, 2022 NY Slip Op 07186, First Dept 12-20-22

Practice Point: Miscalendaring the return date for the motion for summary judgment was deemed a reasonable excuse for the default (law office failure).

 

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DEFENDANT DID NOT UPDATE ITS ADDRESS FILED WITH THE SECRETARY OF STATE FOR SERVICE OF PROCESS AND DID NOT HAVE A REASONABLE EXCUSE FOR DEFAULT IN THIS SLIP AND FALL CASE; HOWEVER, NO REASONABLE EXCUSE NEED BE SHOWN IN A MOTION TO VACATE A DEFAULT PURSUANT TO CPLR 317; DEFAULT VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant property-owner’s (St. Andrews’) motion to vacate the default judgment in this slip and fall case should have been granted. St. Andrews had not updated its address with the Secretary of State and did not have a reasonable excuse. However a reasonable excuse is not required by CPLR 317:

St. Andrews’s principal demonstrated that he had received a letter notification of plaintiff’s accident before commencement of the action which he forwarded to his insurance broker, but that he never received any further notice until he received the information subpoena. The principal of DP Realty [designated by St. Andrews to receive service of process] also averred that he was unaware of the summons and complaint ever having been received, and therefore it would not have forwarded any papers to St. Andrews. That evidence was sufficient under CPLR 317 to establish St. Andrews’s lack of personal notice of the summons in time to defend. St. Andrews also demonstrated a meritorious defense in that the Yonkers City Code “does not expressly make the landowner liable for failure to perform” the duty to clean snow and ice from the sidewalk, and an abutting landowner is not liable in the absence of such a statute for failure to clear snow, ice and dirt … .

… [P]laintiff demonstrated that St. Andrews never updated its address with the Secretary of State, and thus could not show a reasonable excuse for its default under CPLR 5015(a)(1). However, no showing of a reasonable excuse is required under CPLR 317 … , and it cannot be inferred solely from the failure to update defendant’s address with the Secretary of State that defendant was deliberately avoiding receiving notice … . In light of the strong public policy favoring resolution of cases on their merits … , we find that St. Andrews demonstrated entitlement to vacatur under CPLR 317… . Gomez v Karyes Realty Corp., 2022 NY Slip Op 07187, First Dept 12-20-22

Practice Point: No reasonable excuse for a default need be shown in a motion the vacate the default pursuant to CPLR 317, Here the defendant’s failure to update its address for the service of process with the Secretary of State was not an attempt to avoid service. The motion to vacate the default should have been granted.

 

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THE MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED; THE MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED; A NEW TRIAL IS NECESSARY BECAUSE AN APPELLATE COURT CANNOT MAKE NEW FINDINGS OF FACT IN A JURY TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice case. determined the motion to set aside the verdict as a matter of law should not have been granted. but the motion to set aside the verdict as against the weight of the evidence should have been granted, explaining the difference:

“‘A motion for judgment as a matter of law pursuant to CPLR 4404(a) may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party'” … . “In considering such a motion, the facts must be considered in a light most favorable to the nonmovant” … . …

… “[A] motion to set aside a jury verdict as contrary to the weight of the evidence should be granted ‘[o]nly where the evidence so preponderates in favor of the unsuccessful litigant that the verdict could not have been reached on any fair interpretation of the evidence'” … . … “‘Whether a particular factual determination is against the weight of the evidence is itself a factual question. In reviewing a judgment of the Supreme Court, the Appellate Division has the power to determine whether a particular factual question was correctly resolved by the trier of facts. If the original fact determination was made by a jury, as in this case, and the Appellate Division concludes that the jury has made erroneous factual findings, the court is required to order a new trial, since it does not have the power to make new findings of fact in a jury case'” … . * * *

As to the weight of the evidence, based on the record, we find that the verdict in favor of the plaintiffs could not have been reached on any fair interpretation of the evidence, and must be set aside (see CPLR 4404[a] …). Accordingly, we reverse the judgment, reinstate the complaint, grant that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial, and remit the matter to the Supreme Court, Queens County, for a new trial…. . Osorio v New York City Health & Hosps. Corp., 2022 NY Slip Op 07072, Second Dept 12-14-22

Practice Point: When an appellate court determines the verdict should be set aside as against the weight of the evidence in a jury trial it must order a new trial because an appellate court does not have the authority to make new findings of fact in a jury trial.

 

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