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PETITIONERS’ CHALLENGE TO THE NEW PROVISIONS OF THE ELECTION LAW ADDRESSING THE NEW PROCESS OF CANVASSING ABSENTEE BALLOTS WAS PRECLUDED BY THE DOCTRINE OF LACHES (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined the challenge to the new process of canvassing absentee ballots was precluded by the doctrine of laches:

Petitioners commenced this proceeding/action challenging the constitutionality of the new process of canvassing absentee ballots in Election Law § 9-209 nine months after it was enacted, after the process was in effect for two primary elections and several special elections, and at the time that canvassing of absentee ballots using the new process began in the 2022 general election. The amendment to Election Law § 8-400 was enacted in 2020 and has been in effect for multiple general, primary and special elections but petitioners did not challenge the statute until nine months after the sunset clause was extended and after the mailing of absentee ballots had already begun. … In short, petitioners delayed too long in bringing this proceeding/action. To the extent that petitioners contend that they did not bring the challenges until they were ripe, the action constitutes facial challenges to the statutes, implicating their text, not their applications, and, therefore, the action was ripe at the time of the enactment of the statutes … . Matter of Amedure v State of N.Y., 2022 NY Slip Op 06096, Third Dept 11-1-22

Practice Point: The petitioners didn’t bring this challenge to new provisions in the Election Law addressing the canvassing of absentee ballots until nine months after enactment and after the new process had been used several elections. The petition was precluded by the doctrine of laches.

 

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THE BREACH OF CONTRACT (FIRE INSURANCE POLICY) CAUSE OF ACTION ALLEGED IN THE COMPLAINT DID NOT GIVE NOTICE OF THE CLAIM THE CONTRACT SHOULD BE REFORMED BASED UPON MUTUAL MISTAKE; THEREFORE THE PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO CONFORM THE PLEADINGS TO THE PROOF AND THE JURY SHOULD NOT HAVE BEEN ALLOWED TO CONSIDER WHETHER THE ENDORSEMENT REQUIRING A SPRINKLER SYSTEM ON THE INSURED PREMISES WAS INCLUDED IN THE POLICY BY MUTUAL MISTAKE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, determined plaintiff should not have been allowed to conform the pleadings to the proof and the jury should not have considered whether the contract, an insurance policy, should be reformed based upon mutual mistake. The complaint alleged defendant insurer breached the contract (the policy) by refusing to pay for fire damage. The insurance policy included a Protective Safeguards Endorsement (PSE) which required plaintiff to have a sprinkler system in good working order. The buildings apparently were vacant and did not have sprinkler systems. Based on testimony given at trial, plaintiff argued inclusion of the PSE was a mutual mistake and the contract (policy) should be reformed to exclude it. The jury and the appellate division so found. But the Court of Appeals held the courts should not have looked beyond the four corners of the pleadings, and the pleadings did not give notice of the reformation action:

[CPLR] Section 203 (f) requires the court to determine solely whether a plaintiff’s or a defendant’s original pleading gives notice of the transactions or occurrences underlying the proposed amendment …

To plead reformation, a plaintiff must allege sufficient facts supporting a claim of mutual mistake, meaning that “the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement” … . Given the “heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties, . . . [t]he proponent of reformation must show in no uncertain terms, not only that mistake or fraud exists, but exactly what was really agreed upon between the parties” … .

In contrast, to plead a cause of action for breach of contract, a plaintiff usually must allege that: (1) a contract exists … ; (2) plaintiff performed in accordance with the contract … ; (3) defendant breached its contractual obligations … ; and (4) defendant’s breach resulted in damages … . …

The complaint … alleges that plaintiffs complied “with all of the conditions precedent and subsequent pursuant to the terms of the subject policy.” This … allegation is fatal to plaintiffs’ assertion that the complaint provides notice of the transactions or occurrences to be proved in support of a reformation claim. In fact, if anything, it suggests the opposite because, by asserting total compliance, plaintiffs necessarily disclaimed any challenge to the policy’s terms, specifically the PSE. 34-06 73, LLC v Seneca Ins. Co., 2022 NY Slip Op 06029, CtApp 10-27-22

Practice Point: Here the complaint alleged defendant insurer breached the policy by refusing to pay for fire damage. The insured buildings were vacant and did not have sprinkler systems. The policy included an endorsement requiring sprinkler systems. The insurer refused payment citing plaintiff’s failure to comply with the “sprinkler” endorsement. Based on trial evidence, plaintiff moved to conform the pleadings to the proof to include a cause of action for reformation of the contract alleging that the endorsement requiring sprinkler systems was included by mutual mistake and should be excluded from the policy. The Court of Appeals ruled the complaint did not give notice of the reformation cause of action. Therefore the jury should have been allowed to consider it. The trial verdict, reforming the contract to exclude the “sprinkler” endorsement, and the affirmance by the appellate division were reversed.

 

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THE RECEIVER APPOINTED TO CONTROL PROPERTY INVOLVED IN AN OWNERSHIP DISPUTE SHOULD HAVE BEEN SUBSTITUTED AS THE REPRESENTATIVE OWNER IN A SLIP AND FALL CASE (THIRD DEPT). ​

​The Third Department, reversing Supreme Court, determined the receiver, appointed to take control of two properties the ownership of which is in dispute, should have been substituted as the representative owner of the property in a slip and fall case:

Generally, a temporary receiver appointed pursuant to CPLR article 64 “is a person appointed by the court to take control of designated property and see to its care and preservation during litigation” … . Pertinent here, the appointment order authorized the receiver “to immediately take charge and enter possession of the properties,” and empowered the receiver to “act as manager and landlord of the properties.” Correspondingly, the receiver was “authorized and obligated to keep the properties insured against loss by damage of fire . . . and to procure such . . . other insurance as may be reasonably necessary.” Given these directives, we cannot agree with Supreme Court’s assessment that the receiver was accorded only a limited role that did not include property maintenance. To the contrary, the receiver was charged with both the authority and responsibility to assume control over the properties. Pursuant to CPLR 1017, “[i]f a receiver is appointed for a party . . . the court shall order substitution of the proper parties.” That is the situation here. By the court’s directive, responsibility over the management of the properties was passed from the disputing owners to the receiver … . As such, the receiver should have been substituted as the representative owner of the … property … . Wen Mei Lu v Wen Ying Gamba, 2022 NY Slip Op 06037, Second Dept 10-27-22

Practice Point: Here a receiver was appointed to control properties involved in an ownership dispute. The receiver should have been substituted as a representative owner in a slip and fall case.

 

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THE CERTIFICATION OF ACKNOWLEDGMENT IS PRIMA FACIE EVIDENCE THE DECEDENT EXECUTED THE CONTRACT, BUT THAT EVIDENCE CREATES ONLY A REBUTTABLE PRESUMPTION; PLAINTIFF PRESENTED SUFFICIENT EVIDENCE TO RAISE A QUESTION OF FACT WHETHER DECEDENT SIGNED THE AGREEMENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the certification of acknowledgment is prima facie proof the contract was executed by decedent but the certification only creates a rebuttable presumption:

… [T]he agreement was notarized by defendant Rosemary Bellini. “Certification of the acknowledgment or proof of a writing . . . in the manner prescribed by law for taking and certifying the acknowledgment or proof of a conveyance of real property within the state is prima facie evidence that it was executed by the person who purported to do so” (CPLR 4538). * * *

“The certification of acknowledgment becomes prima facie evidence that the writing was executed by the person who acknowledged having done so. [This] [p]rima facie evidence” is not conclusive; rather, it “creates a rebuttable presumption” … .  Plaintiff marshalled considerable evidence casting doubt on whether decedent actually signed the purported agreement and, if so, whether he knew or understood what he was signing. Thus, plaintiff should be given a chance to rebut the presumption created by Bellini’s notarization … . Langbert v Aconsky, 2022 NY Slip Op 06067, First Dept 10-27-22

Practice Point: Here the certification of acknowledgment was prima facie proof decedent signed the agreement but that proof only creates a rebuttable presumption. But plaintiff raised a question of fact whether decedent actually executed the agreement.

 

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DEFENDANT’S FAILURE TO COMPLY WITH DISCOVERY ORDERS WAS WILLFUL AND CONTUMACIOUS WARRANTING STRIKING ITS ANSWER (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s (Motors’s) failure to turn over records despite four court orders and defendant’s attempt to mislead plaintiff about its compliance with the discovery requirements warranted striking defendant’s answer:

We find that Motors’s failure to produce these records was willful and contumacious, in view of the fact that it did not do so despite four courts orders, and in light of its interrogatory response implying that it had complied with its discovery obligations in an apparent attempt to mislead plaintiff (see CPLR 3216 …). Although the other defendants were represented by the same counsel as Motors, there is no indication that they exercised control over Motors or were in possession of Motors’s records … .

Motors’s dilatory behavior warrants striking its answer … . Lopez v Bronx Ford, Inc., 2022 NY Slip Op 06068, First Dept 10-27-22

Practice Point: Here defendant’s failure to comply with four discovery orders and its attempt to mislead plaintiff about its compliance was deemed willful and contumacious warranting striking defendant’s answer.

 

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THE MOTION TO CONSOLIDATE THE TRIALS OF TWO ACTIONS STEMMING FROM THE SAME FIRE, WHERE ONE PARTY WAS BOTH A DEFENDANT AND A PLAINTIFF, SHOULD HAVE BEEN GRANTED; ANY PREJUDICE RESULTING FROM THE JURY’S KNOWLEDGE OF THE EXISTENCE OF INSURANCE (ONE OF THE ACTIONS IS AGAINST AN INSURER) CAN BE HANDLED WITH JURY INSTRUCTIONS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the motion to consolidate the trials of two actions stemming from the same fire which damages two adjoining properties should have been granted. The court noted that one party is both a plaintiff and a defendant:

Although a motion pursuant to CPLR 602(a) is addressed to the sound discretion of the trial court … , consolidation or joinder for trial is favored to avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts … . “Where common questions of law or fact exist, a motion [pursuant to CPLR 602(a)] to consolidate [or for a joint trial] should be granted, absent a showing of prejudice to a substantial right by the party opposing the motion” … .

Here … the two actions involve common questions of law and fact. Assuming, arguendo, that the respondents would be prejudiced if the two actions are tried before the same jury since it would bring to the jury’s attention the existence of insurance … , any such prejudice is outweighed by the possibility of inconsistent verdicts if separate trials ensue … . Furthermore, the possibility of such prejudice can be mitigated by appropriate jury instructions … . Moreover, a joint trial, rather than consolidation, is appropriate where a party is both a plaintiff and a defendant … . Calle v 2118 Flatbush Ave. Realty, LLC, 2022 NY Slip Op 05981, Second Dept 10-26-22

Practice Point: Here the motion pursuant to CPLR 602 to consolidate the trials of two actions stemming from the same fire should have been granted. One party was both a defendant and a plaintiff. The fact that consolidation would bring the existence of insurance to the jury’s attention (one of the parties is an insurer), although prejudicial, can be handled by jury instructions.

 

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PLAINTIFF, IN THIS CHILD VICTIMS ACT SUIT, ALLEGED HE WAS ABUSED BY AN EMPLOYEE OF FAMILY SERVICES OF WESTCHESTER (FSW) AND BROUGHT CAUSES OF ACTION FOR NEGLIGENT HIRING AND NEGLIGENT SUPERVISION AGAINST FSW; THOSE CAUSES OF ACTION WERE DISMISSED FOR FAILURE TO SUFFICIENTLY ALLEGE FSW WAS AWARE OF THE EMPLOYEE’S PROPENSITY TO COMMIT THE WRONGFUL ACTS ALLEGED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s negligence hiring and negligent supervision causes of action against Family Services of Westchester (FSW) should have been dismissed. Plaintiff, in this Child Victims Act suit, alleged he was abused by a youth mentor employed by FSW when he was 10 – 12 years old:

To sustain a cause of action sounding in negligent supervision of a child under the alleged facts of this case, the plaintiff must establish that the defendant “had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . Similarly, “‘[t]o establish a cause of action based on negligent hiring, negligent retention, or negligent supervision [of an employee], it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury'” … .

Here, the complaint failed to state a cause of action to recover damages for negligent supervision of the plaintiff, since it failed to sufficiently allege that the third party acts were foreseeable … . Similarly, the complaint failed to state causes of action to recover damages for negligent hiring and negligent training and supervision related to the plaintiff’s alleged youth mentor, since it failed to sufficiently allege that FSW knew, or should have known, of a propensity on the part of the youth mentor to commit the alleged wrongful acts … .  Fuller v Family Servs. of Westchester, Inc., 2022 NY Slip Op 05992, Second Dept 10-26-22

Practice Point: Here in this Child Victims Act suit alleging abuse by an employee of Family Services of Westchester (FSW), the complaint did not state causes of action against FSW for negligent hiring or negligent supervision because the complaint did not sufficiently allege FSW was aware of the employee’s propensity for the wrongful conduct alleged.

 

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IN THIS CHILD VICTIMS ACT SUIT ALLEGING ABUSE BY AN EMPLOYEE OF A GROUP FOSTER HOME, THE JUDGE SHOULD HAVE HELD A DISCOVERABILITY HEARING BEFORE DETERMINING WHICH FOSTER-CARE RECORDS WERE DISCOVERABLE (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the judge should have held a discoverability hearing before which foster-care records could be released to the plaintiff. Plaintiff alleged he was abused in 1991 and 1992 by an employee of a group foster home (Little Flower):

Social Services Law § 372(3) requires “authorized agenc[ies],” including Little Flower, to “generate and keep records of those [children] who are placed in [their] care” … . Foster care records are deemed confidential (see Social Services Law § 372[3]), “considering that they must contain individualized and often highly personal information about the [children]” … . The confidential nature of such records serves “[t]o safeguard both the child and [his or her] natural parents” … , as well as others who may be “the subjects of such records” … . Although foster care records are entitled to a presumption of confidentiality, they may nonetheless be deemed discoverable pursuant to the provisions of CPLR article 31 … . Moreover, since “[the] statutory confidentiality requirement is intended [in part] to protect the privacy of children in foster care,” it should not be used “to prevent former foster children from obtaining access to their own records” … , although this does not mean that they are always entitled to unfettered disclosure thereof. Even when considering a request for disclosure from a former foster child, “[a]n agency [may] move for a protective order where some part of the record should not be produced” … . * * *

Supreme Court improvidently exercised its discretion when it declined to conduct a discoverability hearing before deciding that branch of Little Flower’s motion which sought a protective order regarding the purportedly confidential portions of the records. We therefore remit the matter to the Supreme Court, Nassau County, to conduct such a hearing and to “clearly specify the grounds for its denial or approval of disclosure with respect to each document or category of documents” … .  Cowan v Nassau County Dept. of Social Servs., 2022 NY Slip Op 05989, Second Dept 10-26-22

Practice Point: Here, in this Child Victims Act suit, the judge should have held a discoverability hearing before deciding which foster-care records could be released to plaintiff. Plaintiff alleged he was abused in 1991 and 1992 by an employee of a group foster home.

 

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THE INTERSATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) APPLIES ONLY TO PLACEMENT IN FOSTER CARE OR PLACEMENT RELATED TO ADOPTION; THEREFORE THE ICPC DID NOT APPLY HERE WHERE FATHER, A NORTH CAROLINA RESIDENT, SOUGHT CUSTODY OF THE CHILD; NORTH CAROLINA, APPLYING THE ICPC, DID NOT APPROVE PLACEMENT WITH FATHER; THE APPELLATE DIVISION’S DENIAL OF FATHER’S CUSTODY PETITION ON THAT GROUND WAS REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, resolving a conflict between Second and First Departments, determined the Interstate Compact on the Placement of Children (ICPC), which requires that a state approve the placement of a child from another sate, applies only to placement in foster care or adoption, and not, as here, placement with a parent. In this case, the child was in foster care in New York and father, a North Carolina resident, sought custody. Applying the ICPC, North Carolina did not approve placement with father in North Carolina, and the New York courts denied father’s custody petition on that ground. The Court of Appeals held placement with father did not trigger the application of the ICPC:

By its terms, the ICPC governs the out-of-state “placement” of children “in foster care or as a preliminary to possible adoption” (Social Services Law § 374-a [1] [art III] [a] & [b]). The language of the statute thus unambiguously limits its applicability to cases of placement for foster care or adoption—which are substitutes for parental care that are not implicated when custody of the child is granted to a noncustodial parent. * * *

Although the ICPC does not apply to placement with a parent, the Family Court Act contains other effective means to ensure the safety of a child before awarding custody to an out-of-state parent. Family Court retains jurisdiction over custody proceedings and has a broad array of powers under the Family Court Act to ensure a child’s safety. Matter of D.L. v S.B., 2022 NY Slip Op 05940, CtApp 10-25-22

Practice Point: The Interstate Compact on the Placement of Children (ICPC) applies only to foster-care placement and adoption-related placement in another state. The ICPC, therefore, did not apply here where father, a North Carolina resident, sought custody of the child, who was in foster care in New York. Applying the ICPC, North Carolina did not approve placement with father and father’s New York custody petition was improperly denied on that ground.

 

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THE PLEADINGS ALLEGED THE NEGLIGENCE OF THE HOSPITAL’S “AGENTS AND EMPLOYEES” AND PLAINTIFF’S EXPERT POINTED TO THE ALLEGED NEGLIGENCE OF THE EMERGENCY ROOM PHYSICIAN WHO TREATED PLAINTIFF’S DECEDENT; THEREFORE THERE WAS A QUESTION OF FACT WHETHER THE HOSPITAL WOULD BE VICARIOUSLY LIABLE FOR THE EMERGENCY ROOM PHYSICIAN’S ACTS OR OMISSIONS (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined there were questions of fact whether the defendant hospital was vicariously liable for the acts or omissions of the emergency room doctor, Vaugeois, who treated plaintiff’s decedent. Although the complaint did not name Vaugeois as a defendant, the pleadings alleged the negligence of defendant’s agents and employees:

… [Plaintiff’s expert] points to Vaugeois, the hospitalist who admitted and initially rendered care to decedent, as the negligent party. … [P]laintiff’s bill of particulars speaks to defendant’s “agents and employees, specifically including” Smithem and Dey [who had been dropped from the suit]. The word “including” is not exclusive, leaving open the prospect that vicarious liability was premised on the negligence of other providers. “A hospital is responsible for the malpractice of . . . a professional whom it holds out as performing the services it offers, even though in fact he or she is an independent contractor” … . At the very least, a question of fact is presented as to whether liability may be imposed against the hospital based on an apparent authority theory … . “Pursuant to that theory, under the emergency room doctrine, ‘a hospital may be held vicariously liable for the acts of an independent physician if the patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician'” … . Fasce v Catskill Regional Med. Ctr., 2022 NY Slip Op 05906, Third Dept 10-20-22

Practice Point: The pleadings alleged negligence on the part of defendant hospital’s “agents and employees.” Plaintiff’s expert alleged the emergency room physician was negligent. Therefore, there was a question of fact whether the hospital would be vicariously liable for the acts or omissions of the emergency room physician.

 

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