Civil Procedure Update April – June 2022 – Part 1 of 3

Civil Procedure Update April – June 2022 – Part 1

(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Appropriate for Experienced Attorneys

Areas of Professional Practice: 3 CLE Credit Hours

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between April 1, 2022 and June 30, 2022 which address issues in “Civil Procedure.”

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly Reversal Reports which are accessed in the “Update Service.” The monthly Reversal Reports comprise the written materials for these monthly CLE courses. The course is divided into three parts: Part 1 is based on the April 2022 Reversal Report; Part 2 is based on the May 2022 Reversal Report; Part 3 is based on the June 2022 Reversal Report. The link to the April Reversal Report is below.

As you listen to the course, you will hear verification codes. After finishing Part 3 of the course, print and fill out the “Attorney Affirmation,” including the verification codes, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). The links to the “Attorney Affirmation” and “Evaluation Survey” are on the podcast page for Part 3 of this course. Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 3 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the link below for the written materials for Part 1: Civil Procedure Reversal Report April 2022).

The media player for this course is at the bottom of the page.

Links to the Attorney Affirmation and Evaluation Form are on the podcast page for Part 3 of this course.

Civil Procedure Reversal Report April 2022

Topics Covered in the “Civil Procedure Reversal Report April 2022” Are Described Below; the Numbers Refer to the Page Numbers in the Report

APRIL 2022 REVERSAL REPORT

APPEALS, FAMILY LAW, ELECTRONICALLY RECORDED PROCEEDINGS. 4

THE ELECTRONICALLY RECORDED HEARING INCLUDED 80 QUESTIONS POSED TO A WITNESS BY COUNSEL BUT ONLY FOUR ANSWERS WERE AUDIBLE; NEW HEARING WITH A STENOGRAPHER ORDERED (THIRD DEPT). 4

APPEALS, MOOTNESS, MENTAL HYGIENE LAW. 5

BECAUSE OF A LACK OF PLACEMENT OPTIONS, A CHILD REMOVED FROM SCHOOL WHEN SHE BECAME UNMANAGEABLE REMAINED IN A HOSPITAL EMERGENCY ROOM FOR WEEKS; THE PETITION SOUGHT HER RELEASE FROM THE EMERGENCY ROOM; THE APPEAL WAS DEEMED MOOT BECAUSE THE NYS OFFICE OF PEOPLE WITH DEVELOPMENTAL DISABILITIES HAD FOUND SUITABLE PLACEMENT AND INSTITUTED A PROGRAM TO ENSURE THE PROBLEM WOULD NOT RECUR (CT APP). 5

APPEALS, REVIEW BY COURT OF APPEALS. 6

THE APPELLATE DIVISION INITIALLY REVERSED SUPREME COURT AND HELD PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) LADDER-FALL CASE; THERE WAS A DEFENSE VERDICT AFTER TRIAL; THE ORDER DENYING SUMMARY JUDGMENT IS NOT APPEALABLE TO THE COURT OF APPEALS (CT APP). 6

ATTORNEYS, LAW OFFICE FAILURE. 7

HERE PLAINTIFF’S ATTORNEY OFFERED A DETAILED, CREDIBLE EXPLANATION OF THE LAW OFFICE FAILURE WHICH RESULTED IN MISSING THE DEADLINE FOR PROVIDING DISCOVERY, AS WELL AS THE DEMONSTRATION OF POTENTIALLY MERITORIOUS CAUSES OF ACTION; DEFENDANTS’ MOTIONS TO ENFORCE THE PRECLUSION ORDER SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 7

CLASS ACTIONS, LANDLORD-TENANT. 8

CLASS CERTIFICATION SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE CLASS WAS TOO SMALL; PLAINTIFF-TENANTS ALLEGED THE LANDLORD DEREGULATED APARTMENTS WHILE RECEIVING J-51 TAX BENEFITS (FIRST DEPT). 8
COVID RELATED DELAY. 9

COVID, 9

DEFENDANTS WERE UNABLE TO COMPLETE DISCOVERY BECAUSE OF PLAINTIFF’S ILLNESS AND THE COVID-19 SHUTDOWN; DEFENDANTS’ MOTION TO EXTEND THE TIME FOR FILING A SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). 9

DEFAULT JUDGMENTS. 10

THE BANK DID NOT OFFER A REASONABLE EXCUSE FOR FAILURE TO TAKE PROCEEDINGS FOR A DEFAULT JUDGMENT WITHIN A YEAR AND DID NOT SUBMIT AN ADEQUATE LOST NOTE AFFIDAVIT; THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED; THE ACTION IS DEEMED ABANDONED (SECOND DEPT). 10

DISCOVERY, VEHICLE AND TRAFFIC LAW, MUNICIPAL LAW, SEALING OF RECORDS. 11

ALTHOUGH THE RECORDS OF TRAFFIC INFRACTIONS ARE SEALED PURSUANT TO CPL 160.55, THE RECORDS OF A VIOLATION OF NYC ADMINISTRATIVE CODE 19-190(B), AN UNCLASSIFIED MISDEMEANOR WHICH CRIMINALIZES STRIKING A PEDESTRIAN WHO HAS THE RIGHT OF WAY, ARE NOT SEALED; THEREFORE PLAINTIFF IS ENTITLED TO DISCOVERY OF THOSE RECORDS IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE (FIRST DEPT). 11

FAMILY LAW, FOREIGN CHILD SUPPORT ORDER. 12

THE ORIGINAL CHILD SUPPORT ORDER WAS ISSUED IN VIRGINIA, WHERE FATHER RESIDES; FATHER’S NEW YORK CHILD SUPPORT PETITION WAS ACTUALLY SEEKING MODIFICATION OF THE VIRGINIA ORDER; NEW YORK THEREFORE DID NOT HAVE JURISDICTION OVER FATHER’S PETITION (SECOND DEPT). 12

FAMILY LAW, DELEGATION OF JUDGE’S AUTHORITY TO A PARTY. 14

FAMILY COURT IMPROPERLY DELEGATED TO FATHER THE COURT’S AUTHORITY TO DETERMINE MOTHER’S ACCESS TO THE CHILD (SECOND DEPT). 14

FORECLOSURE, STATUTE OF LIMITATIONS, PARTIAL PAYMENT. 14

THE STATUTE OF LIMITATIONS IN THIS FORECLOSURE ACTION STARTED ANEW WHEN DEFENDANT MADE A PARTIAL PAYMENT; DEFENDANT WAIVED THE LACK OF STANDING DEFENSE (FOURTH DEPT). 14

FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL). 15

RPAPL 1301(3) PROHIBITS MORE THAN ONE FORECLOSURE AT A TIME; THE VIOLATION OF THAT STATUTE HERE WAS A MERE IRREGULARITY WHICH SHOULD HAVE BEEN DISREGARDED; THE PRIOR ACTION WAS DISMISSED AFTER THE INSTANT ACTION WAS COMMENCED (SECOND DEPT). 15

JUDGES, OBLIGATION TO ISSUE A DECISION, APPEALS. 16

TO FACILITATE APPELLATE REVIEW THE JUDGE WHO AWARDED PLAINTIFFS SUMMARY JUDGMENT, ATTORNEY’S FEES AND COSTS SHOULD HAVE WRITTEN A DECISION EXPLAINING THE BURDENS OF PROOF AND REASONING; ISSUING ORDERS WITHOUT AN EXPLANATORY DECISION IS AN “UNACCEPTABLE PRACTICE;” PLAINTIFFS DID NOT SHOW THEIR INTERPRETATION OF THE CONTRACT WAS THE ONLY REASONABLE ONE; THE FRAUDULENT MISREPRESENTATION CAUSE OF ACTION CANNOT BE BASED UPON AN ALLEGED INTENT TO BREACH THE CONTRACT AND WAS NOT SUFFICIENTLY PLED (FOURTH DEPT). 16

LABOR LAW-CONSTRUCTION LAW, SUMMARY JUDGMENT MOTION NOT PREMATURE. 17

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION IN THIS A-FRAME LADDER-FALL CASE; ALTHOUGH NO DEPOSITIONS HAD BEEN TAKEN, THE DEFENDANT FAILED TO SHOW THE SUMMARY JUDGMENT MOTION WAS PREMATURE (FIRST DEPT). 17

LATE MOTION TO SET ASIDE THE VERDICT. 20

ABSENT A SHOWING OF GOOD CAUSE FOR THE DELAY, A MOTION TO SET ASIDE A VERDICT MADE MORE THAN 15 DAYS AFTER THE VERDICT WAS RENDERED SHOULD NOT BE GRANTED (SECOND DEPT). 20

NECESSARY PARTIES, GOVERNOR, LIEUTENANT GOVERNOR, SALARY INCREASES. 21

THE CURRENT GOVERNOR AND LIEUTENANT GOVERNOR, AS WELL AS FORMER GOVERNOR CUOMO, ARE NECESSARY PARTIES IN THIS SUIT PURSUANT TO THE STATE FINANCE LAW CHALLENGING THE CONSTITUTIONALITY OF THE SALARY INCREASES FOR THOSE PARTIES (THIRD DEPT). 21

NEGLIGENCE, EDUCATION-SCHOOL LAW, LATE NOTICE OF CLAIM. 22

THE FACT THAT THE SCHOOL WAS AWARE OF THE PETITIONERS’ CHILD’S INJURY AT THE TIME IT OCCURRED DOES NOT MEAN THE SCHOOL HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT; PETITIONERS’ APPLICATION TO DEEM A LATE NOTICE OF CLAIM TIMELY SERVED SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 22

NEGLIGENCE, SUPPPLEMENTAL VS AMENDED BILL OF PARTICULARS. 23

THE DOCUMENT LABELED A “SUPPLEMENTAL” BILL OF PARTICULARS WAS ACTUALLY AN “AMENDED” BILL OF PARTICULARS BECAUSE IT ADDED NEW INJURIES AFTER THE NOTE OF ISSUE WAS FILED; THE DEFENDANT’S MOTION TO STRIKE THE AMENDED BILL OF PARTICULARS SHOULD HAVE BEEN GRANTED (SECOND DEPT). 23

NEGLIGENCE, TRAFFIC ACCIDENTS, LATE NOTICE OF CLAIM. 24

IN THIS TRAFFIC ACCIDENT CASE INVOLVING THE DEFENDANT NYC TRANSIT AUTHORITY’S BUS, THE AUTHORITY GAINED TIMELY KNOWLEDGE OF THE POTENTIAL CLAIM WHEN IT INVESTIGATED THE ACCIDENT AND WAS NOT PREJUDICED BY THE DELAY; THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, NOTWITHSTANDING THE ABSENCE OF A REASONABLE EXCUSE (SECOND DEPT). 24

REBUTTAL EVIDENCE. 25

THE TRIAL JUDGE HAS THE DISCRETION TO PERMIT REBUTTAL TESTIMONY; HERE PLAINTIFF’S TREATING PHYSICIAN WAS PROPERLY ALLOWED TO REBUT THE TESTIMONY OF DEFENDANTS’ EXPERT, EVEN THOUGH THE TREATING PHYSICIAN’S TESTIMONY COULD HAVE BEEN PRESENTED IN THE CASE-IN-CHIEF (FIRST DEPT). 25

TRUSTS AND ESTATES, STANDING, UNDUE INFLUENCE. 26

PLAINTIFFS HAD STANDING TO CHALLENGE THE TRUST SET UP BY DECEDENT; PLAINITIFFS DID NOT STATE A CAUSE OF ACTION FOR FRAUD BECAUSE IT WAS ALLEGED THE DECEDENT (A THIRD PARTY), NOT THE PLAINTIFFS, RELIED ON THE ALLEGEDLY FALSE STATEMENT; THE COMPLAINT STATED A CAUSE OF ACTION ALLEGING DEFENDANTS EXERCISED UNDUE INFLUENCE OVER THE DECEDENT WHICH AFFECTED THE DECEDENT’S ESTATE-RELATED DECISIONS (THIRD DEPT). 26

VENUE, CONTRACT LAW, NURSING HOME ADMISSION AGREEMENT, CHOICE OF VENUE. 27

THE VENUE DESIGNATION IN THE NURSING HOME ADMISSION AGREEMENT, SIGNED BY PLAINTIFF’S DECEDENT’S WIFE, WAS NOT ENFORCEABLE BY THE NURSING HOME (SE COND DEPT). 27

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