Civil Procedure Update January – March 2022

Civil Procedure Update January – March 2022

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

Appropriate for Experienced Attorneys

Areas of Professional Practice: 2.5 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 January 1, 2022 and March 30, 2022 which address issues in “Civil Procedurre.”

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these monthly CLE courses. Links to the written materials for this course (“Civil Procedure Reversal Reports for January, February and March  2022”) are provided below.

As you listen to the course, you will hear verification codes. After finishing the course, print and fill out the attached “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). 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 2.5 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 links below for the written materials (“Civil Procedure Reversal Reports January, February and March 2022”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

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

Civil Procedure Reversal Report January 2022

Civil Procedure Reversal Report February 2022

Civil Procedure Reversal Report March 2022

Attorney Affirmation Civil Procedure Update January, February, March 2022

Evaluation Survey Civil Procedure Update January, February, March 2022

Topics Covered in the “Civil Procedure Update January, February, March 2022” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the Pages in Each of the Three Civil Procedure Reversal Reports

 

JANUARY 2022 CIVIL PROCEDURE REVERSAL REPORT

APPEALS, ABANDONMENT, FORECLOSURE………………………………………………………………………………………5

ALTHOUGH THE MOTION TO DISMISS THE FORECLOSURE ACTION AS ABANDONED PURSUANT TO CPLR
3215 WAS DENIED ON A GROUND NOT RAISED BY THE PARTIES, THE ORDER WAS SELF-PRESERVED AND
APPEALABLE; THE PRESENTATION OF AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFENDANT’S
DEFAULT PRECLUDES A FINDING THAT THE ACTION WAS ABANDONED PURSUANT TO CPLR 3215, DESPITE THE MOTION COURT’S REJECTION OF THE ORDER AS INCOMPLETE (SECOND DEPT). ……………………………5

APPEALS, JUDGES. ………………………………………………………………………………………………………………………..6

IN THIS ARTICLE 78 PROCEEDING, NO APPEAL LIES FROM A JUDGE’S DECLINING TO SIGN AN ORDER TO
SHOW CAUSE; THE ONLY REMEDY IS A MOTION TO VACATE THE FINAL JUDGMENT (FIRST DEPT). …………6

APPEALS, SUA SPONTE, LANDLORD-TENANT, COVID. ………………………………………………………………………..7

THE LANDLORD’S SUMMARY PROCEEDING WAS PROPERLY BROUGHT IN SUPREME COURT BECAUSE
COVID EXECUTIVE ORDERS PROHIBITED BRINGING THE ACTION IN CIVIL COURT; ALTHOUGH SUA SPONTE ORDERS ARE NOT APPEALABLE, THE NOTICE OF APPEAL WAS DEEMED A MOTION FOR LEAVE TO APPEAL (FIRST DEPT). ……………………………………………………………………………………………………………………………….7

APPEALS, PRESERVE STATUS QUO…………………………………………………………………………………………………..8

PETITIONERS DID NOT TAKE STEPS TO PRESERVE THE STATUS QUO AS THEY SOUGHT TO VACATE A
CONSTRUCTION CONTRACT; THE CONSTRUCTION PROGRESSED TO THE POINT WHERE THE COURT MUST DISMISS THE APPEAL AS MOOT (THIRD DEPT). …………………………………………………………………………………8

CHILD VICTIMS ACT, ANONYMOUS CAPTION……………………………………………………………………………………9

THE PLAINTIFFS’ REQUEST TO PROCEED ANONYMOUSLY IN THIS CHILD VICTIMS ACT CASE WAS NOT
SUPPORTED BY SUFFICIENT EVIDENCE OF ANY HARM WHICH WOULD RESULT FROM USING PLAINTIFFS’
LEGAL NAMES IN THE CAPTION (FIRST DEPT). ………………………………………………………………………………….9

COLLATERAL ESTOPPEL, CORPORATION LAW, RELIGION. …………………………………………………………………10

THE DOCTRINE OF COLLATERAL ESTOPPEL DID NOT PRECLUDE THIS ACTION TO DETERMINE THE VALIDITY OF THE PURPORTED 2017 ELECTION OF THE BOARD OF DIRECTORS; THE PRIOR ACTION CONCERNED ONLY THE VALIDITY OF THE PURPORTED 2019 ELECTION OF THE BOARD OF DIRECTORS (THIRD DEPT)…10

DISCLOSURE, EXPERT TESTIMONY, MEDICAL MALPRACTICE. ……………………………………………………………11

SUPREME COURT SHOULD NOT HAVE STRUCK PLAINTIFF’S EXPERT’S TESTIMONY IN THIS MEDICAL
MALPRACTICE ACTION ON THE GROUND THE TESTIMONY EXCEEDED THE CPLR 3101 (D) DISCLOSURE;
PLAINTIFF’S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT)……………………….11

DISCOVERY SANCTIONS, ADVERSE INFERENCE JURY CHARGE, JUDGES. ……………………………………………..12

THE TRIAL JUDGE SHOULD HAVE GIVEN THE ADVERSE INFERENCE CHARGE WHICH HAD BEEN ORDERED AS A DISCOVERY SANCTION RE: A MISSING SURVEILLANCE TAPE; JURY VERDICT SET ASIDE (FIRST DEPT).
………………………………………………………………………………………………………………………………………………..12

IMMUNITY, EDUCATION-SCHOOL LAW………………………………………………………………………………………….13

SUNY ALBANY NOT PROTECTED BY GOVERNMENT IMMUNITY IN THIS CASE BROUGHT BY A STUDENT
WHO ALLEGED SHE WAS ASSAULTED IN HER DORM ROOM BY A PERSON NOT AUTHORIZED TO BE IN THE DORM; THERE WERE QUESTIONS OF FACT ABOUT THE ADEQUACY OF SECURITY AND THE
FORESEEABILITY OF THE ASSAULT (THIRD DEPT). …………………………………………………………………………..13

INTEREST, FORECLOSURE. ……………………………………………………………………………………………………………14

IN THIS FORECLOSURE ACTION, THE ACCRUAL OF INTEREST SHOULD HAVE BEEN TOLLED DURING THE
BANK’S UNEXPLAINED DELAYS IN PROCURING AND ENTERING AN ORDER OF REFERENCE (SECOND DEPT).
………………………………………………………………………………………………………………………………………………..14

JUDICIAL ESTOPPEL, WORKERS’ COMPENSATION……………………………………………………………………………15

DEFENDANTS ARGUED PLAINTIFF WAS NOT AN EMPLOYEE IN THE WORKERS’ COMPENSATION
PROCEEDING; HERE THE DEFENDANTS ARGUED PLAINTIFF WAS AN EMPLOYEE AND HIS REMEDY WAS
LIMITED TO WORKERS’ COMPENSATION; THE DOCTRINE OF JUDICIAL ESTOPPEL PRECLUDED THE
WORKERS’ COMPENSATION AFFIRMATIVE DEFENSE IN THIS ACTION (THIRD DEPT)…………………………….15

LIQUIDATED DAMAGES, DOUBLE RECOVERY, CONTRACT LAW. ………………………………………………………..16

DEFENDANT HAD WITHHELD PAYMENT ON THE CONTRACT AS AN OFFSET FOR THE LIQUIDATED
DAMAGES PROVISION OF THE CONTRACT; THE AWARD OF LIQUIDATED DAMAGES TO THE DEFENDANT
THEREFORE CONSTITUTED A DOUBLE RECOVERY (FIRST DEPT). ……………………………………………………….16

NONPARTY DEPOSITIONS, ATTORNEYS, JUDGES……………………………………………………………………………..17

THE DEPOSITION OF THE NONPARTY MAJORITY SHAREHOLDER IN THE COOPERATIVE REGARDING LEAKS IN THE UNITS WAS PROPER AND SHOULD NOT HAVE BEEN STOPPED AND SUPPRESSED BY THE JUDGE; SANCTIONS AGAINST PLAINTIFF’S ATTORNEY FOR FRIVOLOUS AND UNPROFESSIONAL CONDUCT WERE WARRANTED (FIRST DEPT). …………………………………………………………………………………………………………17

NOTICE OF CLAIM, NEGLIGENCE. ………………………………………………………………………………………………….18

THE NOTICE OF CLAIM ACT DOES NOT APPLY TO THE PORT AUTHORITY, WHICH IS A BISTATE ENTITY
(NEW YORK AND NEW JERSEY) CREATED BY COMPACT (FIRST DEPT)…………………………………………………18

OPINIONS, JUDGE’S ADOPTION OF OPINION DRAFTED BY COUNSEL. ………………………………………………..19

THE JUDGE ADOPTED A DECISION DRAFTED BY COUNSEL AS THE FINAL DETERMINATION OF THE CASE
AND THEREBY VITIATED THE PURPOSE SERVED BY JUDICIAL OPINIONS; THE FOURTH DEPARTMENT
VACATED THE JUDGMENT (FOURTH DEPT)…………………………………………………………………………………….19

REFEREE’S REPORT, FORECLOSURE……………………………………………………………………………………………….20

THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN CONFIRMED BECAUSE IT WAS BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED (HEARSAY) (SECOND DEPT). …….20

REFEREE’S REPORT, FORECLOSURE……………………………………………………………………………………………….20

THE DOCUMENTS UPON WHICH THE CALCULATIONS IN THE REFEREE’S REPORT WERE BASED WERE NOT PRODUCED RENDERING THE REPORT INADMISSIBLE HEARSAY (SECOND DEPT). …………………………………20

RESTORE TO CALENDAR, MOTION TO……………………………………………………………………………………………21

THE ONE YEAR TIME-LIMIT IN CPLR 3404 FOR A MOTION TO RESTORE AN ACTION TO THE CALENDAR DID NOT APPLY TO THIS CASE WHERE THE ACTION WAS ADMINISTRATIVELY DISMISSED (SECOND DEPT). ….21

STANDING, FORECLOSURE, UNIFORM COMMERCIAL CODE……………………………………………………………..22

DEFENDANTS RAISED A QUESTION OF FACT WHETHER THE BANK POSSESSED THE CORRECT VERSION OF THE NOTE, AND, THEREFORE, WHETHER THE BANK HAD STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT). …………………………………………………………………………………………………………………………22

STANDING, FORECLOSURE, UNIFORM COMMERCIAL CODE……………………………………………………………..23

THE BANK DID NOT DEMONSTRATE THE ALLONGE WAS FIRMLY AFFIXED TO THE NOTE AND THEREFORE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT)………………..23

STANDING, FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL). …………………….24

SLIGHTLY DIFFERENT SIGNATURES ON THE NOTE AND DEFENDANTS’ DENIAL OF RECEIPT OF THE RPAPL 1304 NOTICE DID NOT RAISE QUESTIONS OF FACT; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT)……………………………………..24

STANDING, FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), CONTRACT LAW.
………………………………………………………………………………………………………………………………………………..25

THE BANK DID NOT DEMONSTRATE: (1) STANDING TO BRING THE FORECLOSURE ACTION; (2)
COMPLIANCE WITH THE NOTICE PROVISION IN THE MORTGAGE; AND (3), COMPLIANCE WITH THE
NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT). ……………………………………………………………….25

STANDING, FORECLOSURE. ………………………………………………………………………………………………………….26

DEFENDANT RAISED A QUESTION OF FACT WHETHER THE NOTE SUBMITTED BY THE BANK TO
DEMONSTRATE STANDING TO FORECLOSE WAS THE NOTE SHE SIGNED (SECOND DEPT). ……………………26

STANDING, FORECLOSURE. ………………………………………………………………………………………………………….26

THE BANK WHICH COMMENCED THE 2006 FORECLOSURE HAD ALREADY ASSIGNED THE NOTE AND
MORTGAGE AND DID NOT HAVE STANDING TO FORECLOSE; THEREFORE THE STATUTE OF LIMITATIONS
DID NOT START RUNNING IN 2006; THE DISSENT DISAGREED (SECOND DEPT)……………………………………26

STATUTE OF LIMITATIONS, FORECLOSURE……………………………………………………………………………………..28

ALTHOUGH THE BANK IN THIS FORECLOSURE ACTION INSPECTED THE VACANT PROPERTY AND MADE
PERIODIC REPAIRS, IT WAS NOT A “MORTGAGEE IN POSSESSION” SUCH THAT THE STATUTE OF
LIMITATIONS WAS TOLLED; IN ORDER TO BE DEEMED A “MORTGAGEE IN POSSESSION,” THE MORTGAGOR MUST CONSENT TO THE BANK’S POSSESSION OF THE PROPERTY (SECOND DEPT). …………28

SUMMARY JUDGMENT, CONDITIONAL JUDGMENT, CONTRACT LAW, NEGLIGENCE, ELEVATORS. …………29

IN THIS ELEVATOR-ACCIDENT CASE, THE BUILDING OWNERS WERE ENTITLED TO A CONDITIONAL
JUDGMENT ON CONTRACTUAL INDEMNIFICATION AGAINST THE ELEVATOR-MAINTENANCE COMPANY
BEFORE THE PRIMARY ACTION IS DETERMINED (SECOND DEPT). ……………………………………………………..29

SUMMARY JUDGMENT, PRE-DEPOSITION MOTION FOR, TRAFFIC ACCIDENTS, CIVIL

PROCEDURE, NEGLIGENCE, VEHICLE AND TRAFFIC LAW. …………………………………………………………………30
EVEN THOUGH PARTY DEPOSITIONS HAD NOT YET BEEN TAKEN IN THIS TRAFFIC ACCIDENT CASE,
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAS NOT PREMATURE AND PLAINTIFF WAS ENTITLED
TO SUMMARY JUDGMENT; DEFENDANT’S OPPOSITION PAPERS DID NOT RAISE A QUESTION OF FACT
BECAUSE NO EXPLANATION OF THE ACCIDENT WAS OFFERED; PLAINTIFF ALLEGED DEFENDANT’S BUS
CROSSED A DOUBLE YELLOW LINE AND STRUCK HIS TAXI CAB (SECOND DEPT)…………………………………..30

SUMMARY JUDGMENT, PRE-JOINDER MOTION FOR. ………………………………………………………………………31

A PRE-JOINDER MOTION FOR SUMMARY JUDGMENT MUST BE DENIED (FIRST DEPT). ………………………..31

SUMMARY JUDGMENT, SUCCESSIVE AND LATE MOTIONS FOR…………………………………………………………32

SUPREME COURT PROPERLY CONSIDERED A SUCCESSIVE AND LATE MOTION FOR SUMMARY JUDGMENT, CRITERIA EXPLAINED; DEFENDANT DEMONSTRATED PLAINTIFF WAS NOT A THIRD-PARTY BENEFICIARY OF THE CONTRACT AT ISSUE, CRITERIA EXPLAINED (SECOND DEPT)……………………………………………………….32

VERDICT, MOTION TO SET ASIDE, NEGLIGENCE, MUNICIPAL LAW, IMMUNITY……………………………………33

PLAINTIFF’S VERDICT IN THIS SUBWAY ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE; PLAINTIFF WAS
STRUCK BY A TRAIN AND ALLEGED THE ALLOWED SPEED FOR ENTERING A STATION WAS TOO HIGH;
DEFENDANT TRANSIT AUTHORITY SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE THAT SPEED
STUDIES HAD BEEN CONDUCTED IN SUPPORT OF THE QUALIFIED IMMUNITY DEFENSE (FIRST DEPT)……33

 

FEBRUARY 2022 CIVIL PROCEDURE REVERSAL REPORT

ABANDONMENT, NEGLECT TO PROSECUTE, FORECLOSURE……………………………………………………………….5

THE CONDITIONAL ORDER OF DISMISSAL OF THIS FORECLOSURE ACTION DID NOT MEET THE
REQUIREMENTS OF CPLR 3216; THEREFORE THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS
ABANDONED (SECOND DEPT). ………………………………………………………………………………………………………5

APPEALS, FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL). …………………………6

THE AFFIDAVITS DID NOT PROVE THE RPAPL 1304 WAS ACTUALLY MAILED TO DEFENDANTS; PLAINTIFF’S
SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED; FAILURE TO COMPLY WITH “ONE
ENVELOPE” RULE CAN BE RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT). ……………………………6

APPEALS, JUDGES. ………………………………………………………………………………………………………………………..7

NO APPEAL LIES FROM DICTA (SECOND DEPT)………………………………………………………………………………….7

APPEALS, NO MOTION ON NOTICE. ………………………………………………………………………………………………..7

THE BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING CAUSE OF ACTION SHOULD
HAVE BEEN DISMISSED AS DUPLICATIVE OF THE BREACH OF CONTRACT CAUSE OF ACTION; THE APPEAL
FROM AN ORDER WHICH WAS NOT THE PRODUCT OF A MOTION ON NOTICE MUST BE DISMISSED (FIRST DEPT)………………………………………………………………………………………………………………………………………….7

ARBITRATION, EXCEEDING AUTHORITY……………………………………………………………………………………………9

THE ARBITRATOR EXCEEDED HER POWERS BY AWARDING RELIEF WHICH WAS NOT REQUESTED BY ALL
THE PARTIES OR AUTHORIZED BY LAW; PUNITIVE DAMAGES, SANCTIONS AND ATTORNEY’S FEES AWARDS VACATED (FIRST DEPT). …………………………………………………………………………………………………………………9

CERTIFICATE OF MERIT, MEDICAL MALPRACTICE. …………………………………………………………………………..10

THE FAILURE TO TIMELY FILE THE CERTIFICATE OF MERIT IN THIS MEDICAL MALPRACTICE WAS NOT A
GROUND FOR DIMSISSAL OF THE COMPLAINT (THIRD DEPT)……………………………………………………………10

CLASS ACTIONS, LANDLORD-TENANT, MUNICIPAL LAW. ………………………………………………………………….11

CLASS CERTIFICATION SHOULD NOT HAVE DENIED TENANTS IN THIS RENT-OVERCHARGE ACTION (FIRST DEPT)………………………………………………………………………………………………………………………………………..11

COMPLAINTS, FRAUD, CONTRACT LAW. ………………………………………………………………………………………..12

THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR FRAUD IN THE INDUCEMENT, AS OPPOSED TO AN INSINCERE PROMISE OF FUTURE PERFORMANCE; ALTHOUGH THE ISSUE WAS RAISED IN REPLY AND
WAS NOT RAISED BELOW, IT WAS CONSIDERED ON APPEAL BECAUSE IT WAS DETERMINATIVE, DID NOT
ALLEGE NEW FACTS, AND COULD NOT HAVE BEEN AVOIDED IF RAISED BELOW (FIRST DEPT). …………….12

COMPLAINTS, FRAUD. …………………………………………………………………………………………………………………13

COMPLAINT ALLEGATIONS OF A FRAUDULENT CONVEYANCE MADE “UPON INFORMATION AND BELIEF”
DO NOT STATE A CAUSE OF ACTION (FIRST DEPT). ………………………………………………………………………….13

DISCONTINUANCE, FORECLOSURE………………………………………………………………………………………………..14

THE PURPORTED STIPULATION OF DISCONTINUANCE OF THE FORECLOSURE ACTION AND THE
PURPORTED NOTICE OF DISCONTINUANCE WERE INVALID; SUPREME COURT SHOULD NOT HAVE
DETERMINED THE ACCELERATION OF THE MORTGAGE DEBT HAD BEEN REVOKED (SECOND DEPT). …….14

DISCOVERY, CHILD VICTIM’S ACT, EDUCATION-SCHOOL LAW. ………………………………………………………….15

PLAINTIFF’S DISCOVERY REQUESTS IN THIS CHILD VICTIM’S ACT ACTION ALLEGING SEXUAL ABUSE BY A
CATHOLIC SCHOOL GYM TEACHER WERE PALPABLY IMPROPER (SECOND DEPT). ……………………………….15

DISCOVERY, MEDICAL MALPRACTICE, CHILD CUSTODY AND CHILD PROTECTIVE SERVICES RECORDS. ……16

CERTAIN CHILD CUSTODY RECORDS AND CHILD PROTECTIVE SERVICES RECORDS (WHICH DO NOT RELATE TO AN INVESTIGATION) MAY BE DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION BROUGH ON
BEHALF OF AN INFANT (THIRD DEPT)…………………………………………………………………………………………….16

DISCOVERY, PRE-JOINDER DISCOVERY, PRESERVATION OF THE SCENE OF THE SLIP AND FALL………………17

PETITIONER’S NOTICE OF CLAIM DEMONSTRATED HE HAD SUFFICIENT INFORMATION TO FORMULATE A
COMPLAINT IN THIS SLIP AND FALL CASE; HIS REQUEST FOR PRE-JOINDER DISCOVERY AND
PRESERVATION OF THE ACCIDENT SCENE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ………….17

DISMISS, MOTIONS TO, JUDGES……………………………………………………………………………………………………18

SUPREME COURT, IN THE CONTEXT OF A MOTION TO DISMISS, SHOULD NOT HAVE DETERMINED AS A
MATTER OF LAW THAT THE DEFENDANTS WERE NOT “AFFILIATES” WITHIN THE MEANING OF THE
LANGUAGE OF A RELEASE (FIRST DEPT). ………………………………………………………………………………………..18

JURISDICTION, FORECLOSURE, PARTICIPATION IN A SETTELEMENT CONFERENCE DOES NOT WAIVE A
LACK OF JURISDICTION DEFENSE…………………………………………………………………………………………………..19

IN THIS FORECLOSURE ACTION, DEFENDANT DID NOT WAIVE THE LACK OF JURISDICTION DEFENSE BY
PARTICIPATING IN THE MANDATORY SETTLEMENT CONFERENCE AND WAS ENTITLED TO A HEARING ON WHETHER SHE WAS PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT (SECOND DEPT). ……….19

JURISDICTION, NATIONWIDE WEBSITE. …………………………………………………………………………………………20

THE FLORIDA DEFENDANTS ADVERTISED THROUGH A NATIONWIDE WEBSITE; THE NEW YORK PLAINTIFFS SOLICITED THE CONTRACT WITH DEFENDANTS; PLAINTIFFS DID NOT MAKE OUT A PRIMA FACIE CASE OF EITHER GENERAL OR SPECIFIC (LONG-ARM) JURISDICTION OVER DEFENDANTS (SECOND DEPT)…………..20

LAW OF THE CASE, FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL). ………….21

THE BANK FAILED TO SUBMIT THE BUSINESS RECORDS RELIED ON IN ITS AFFIDAVIT IN THIS FORECLOSURE ACTION RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY; SUPREME COURT’S DETERMINATION THE
BANK HAD COMPLIED WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND THE MORTGAGE WAS THE LAW OF THE CASE PRECLUDING RECONSIDERATION OF THE ISSUE PURSUANT TO DEFENDANTS’ CROSS
MOTION (SECOND DEPT). ……………………………………………………………………………………………………………21

PRELIMINARY INJUNCTION, CONTRACT LAW………………………………………………………………………………….23

ALTHOUGH THE PRELIMINARY INJUNCTION IN THIS BREACH OF CONTRACT ACTION WAS PROPERLY
IMPOSED, SUPREME COURT SHOULD HAVE REQUIRED THE POSTING OF AN UNDERTAKING (FOURTH
DEPT)………………………………………………………………………………………………………………………………………..23

SERVICE OF PROCESS, FORECLOSURE. …………………………………………………………………………………………..23

THE PROCESS SERVER IN THIS FORECLOSURE ACTION WAS TOLD BY DEFENDANT’S DAUGHTER THAT HE
HAD THE RIGHT ADDRESS; BUT, IN FACT, DEFENDANT DID NOT RESIDE AT THAT ADDRESS; SERVICE WAS
INVALID (SECOND DEPT). …………………………………………………………………………………………………………….23

STANDING, FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), UNIFORM
COMMERCIAL CODE……………………………………………………………………………………………………………………24

THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STANDING TO BRING THE ACTION
AND DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE MORTGAGE AND
RPAPL 1304 (SECOND DEPT). ……………………………………………………………………………………………………….24

STANDING, FORECLOSURE. ………………………………………………………………………………………………………….25

THE AFFIDAVITS SUBMITTED TO PROVE THE BANK’S STANDING TO BRING THE FORECLOSURE ACTION
WERE NOT ACCOMPANIED BY THE RELEVANT DOCUMENTS AND THEREFORE CONSTITUTED
INADMISSIBLE HEARSAY (SECOND DEPT). ………………………………………………………………………………………25

STANDING, ZONING…………………………………………………………………………………………………………………….26

THE PETITIONERS DEMONSTRATED THAT THE OPERATION OF A CONCRETE PLANT WOULD CAUSE
INJURIES TO THEM DIFFERENT FROM THOSE SUFFERED BY THE PUBLIC AT LARGE; SUPREME COURT
SHOULD NOT HAVE DETERMINED PETITIONERS DID NOT HAVE STANDING TO CONTEST THE RENOVATION AND OPERATION OF THE PLANT (SECOND DEPT). …………………………………………………………………………..26

STATUTE OF LIMIITATIONS, CONTINUOUS REPRESENTATION DOCTRINE, ATTORNEYS, LEGAL
MALPRACTICE…………………………………………………………………………………………………………………………….27

BECAUSE PLAINTIFF’ DECEDENT COULD NOT COMMENCE A LEGAL MALPRACTICE ACTION WHILE THE
DEFENDANTS-ATTORNEYS STILL REPRESENTED HIM, THERE WAS A QUESTION OF FACT WHETHER THE
ACTION WAS TIMELY (SECOND DEPT)……………………………………………………………………………………………27

STAY OF NEW YORK ACTION, RELATED ACTION IN ROMANIA……………………………………………………………28

PLAINTIFF STARTED AN ACTION AGAINST DEFENDANT IN NEW YORK; THEN DEFENDANT STARTED AN
ACTION AGAINST PLAINTIFF IN ROMANIA; THE RESULTS OF THE ROMANIAN ACTION MAY BE DISPOSITIVE IN THE NEW YORK ACTION; THE NEW YORK ACTION SHOULD HAVE BEEN STAYED PENDING THE
OUTCOME OF THE ROMANIAN ACTION, EVEN THOUGH THE NEW YORK ACTION WAS COMMENCED FIRST
(FIRST DEPT). ……………………………………………………………………………………………………………………………..28

SUBPOENAS, NONPARTY SUBPOENA. ……………………………………………………………………………………………29

NO ONE MOVED TO QUASH THE NONJUDICIAL SUBPOENA SERVED ON A NONPARTY; SUPREME COURT
SHOULD HAVE GRANTED THE MOTION TO COMPEL THE NONPARTY’S APPEARANCE AT A DEPOSITION
(SECOND DEPT). …………………………………………………………………………………………………………………………29

SUMMARY JUDGMENT, JUDGES, SEARCH THE RECORD. ………………………………………………………………….30

LESSOR OF THE VEHICLE INVOLVED IN THE REAR-END COLLISION WAS ENTITLED TO SUMMARY
JUDGMENT PURSUANT TO THE GRAVES AMENDMENT; SUPREME COURT HAD THE AUTHORITY TO
SEARCH THE RECORD AND GRANT SUMMARY JUDGMENT EVEN THOUGH NO MOTION HAD BEEN MADE
(FIRST DEPT). ……………………………………………………………………………………………………………………………..30

SUMMARY JUDGMENT, JUDGES. ………………………………………………………………………………………………….31

THE JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED DEFENDANT PARTIAL SUMMARY JUDGMENT ON
HE STRUCTURE-LOSS (FIRE-DAMAGE) CLAIM; THE PARTIES WERE NOT MADE AWARE OF THAT
POSSIBILITY PRIOR TO THE RULING (THIRD DEPT)……………………………………………………………………………31

 

MARCH 2022 CIVIL PROCEDURE REVERSAL REPORT

ADMINISTRATIVE LAW, ATTORNEYS FEES, EQUAL ACCESS TO JUSTICE ACT. …………………………………………7

ALTHOUGH THE VAPING ASSOCIATION PREVAILED IN ITS ACTION FOR A PRELIMINARY INJUNCTION
STAYING THE ENFORCEMENT OF THE DEPARTMENT OF HEALTH’S REGULATIONS BANNING FLAVORED
VAPING LIQUIDS, THE DEPARTMENT’S ACTION WAS “SUBSTANTIALLY JUSTIFIED;” THEREFORE THE
VAPING ASSOCIATION WAS NOT ENTITLED TO ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO
JUSTICE ACT (THIRD DEPT). ……………………………………………………………………………………………………………7

AMEND COMPLAINT, CIVIL CONSPIRACY. ………………………………………………………………………………………..9

PLAINTIFF’S MOTION TO AMEND THE COMPLAINT SHOULD NOT HAVE BEEN GRANTED; THE ADDED
DEFENDANT DID NOT HAVE ANY INTEREST IN THE PROPERTY IN DISPUTE; AND THE CIVIL CONSPIRACY
CAUSE OF ACTION PLAINTIFF SOUGHT TO ADD IS NOT RECOGNIZED IN NEW YORK; THEREFORE THE
PROPOSED AMENDMENTS WERE PATENTLY DEVOID OF MERIT (FOURTH DEPT). …………………………………9

APPEALS, FUGITIVE DISENTITLEMENT DOCTRINE. …………………………………………………………………………..10

ALTHOUGH THE APPELLANT WAS IN JAPAN, THE 1ST DEPARTMENT REFUSED TO DISMISS THE APPEAL
PURSUANT TO THE FUGITIVE DISENTITLEMENT DOCTRINE IN THIS FAMILY COURT CIVIL-CONTEMPT
MATTER; APPELLANT HAD APPEARED VIRTUALLY IN COURT PROCEEDINGS AND STATED HE WOULD
RETURN TO NEW YORK TO COMPLY WITH ANY COURT ORDER (FIRST DEPT)………………………………………10

ARBITRATION, ISSUES FOR THE COURT………………………………………………………………………………………….11

WHETHER THE AGREEMENT TO ARBITRATE IS VALID IS A THRESHOLD ISSUE FOR THE COURT, NOT THE
ARBITRATOR (SECOND DEPT). ……………………………………………………………………………………………………..11

CHILD VICTIM’S ACT, FIDUCIARY DUTY…………………………………………………………………………………………..11

IN THIS CHILD VICTIM’S ACT PROCEEDING PLAINTIFF ALLEGED ABUSE BY A PRIEST AND TEACHER IN
ELEMENTARY SCHOOL; PLAINTIFF ALLEGED THE SCHOOL WAS OVERSEEN BY DEFENDANTS PARISH AND
DIOCESE; THE 2ND DEPARTMENT HELD THE BREACH OF FIDUCIARY DUTY CAUSE OF ACTION SHOULD
HAVE BEEN DISMISSED BECAUSE THERE WAS NOTHING UNIQUE ABOUT THE RELATIONSHIP BETWEEN
DEFENDANTS AND PLAINTIFF, AS OPPOSED TO THE RELATIONSHIPS WITH THE OTHER PARISHIONERS
(SECOND DEPT). …………………………………………………………………………………………………………………………11

CIVIL RIGHTS LAW, RETROACTIVE APPLICATION OF STATUTE……………………………………………………………12

THE 2020 AMENDMENTS TO CIVIL RIGHTS LAW 70, THE ANTI-SLAPP LAW, DO NOT APPLY RETROACTIVELY TO THE PLAINTIFF’S PENDING DEFAMATION ACTION AGAINST DEFENDANT (FIRST DEPT)……………………12

CORPORATION LAW, PROPER FORUM, FOREIGN LAW. ……………………………………………………………………14

ALTHOUGH THIS SHAREHOLDERS’ DERIVATIVE ACTION AGAINST A SWISS CORPORATION REQUIRES THE
APPLICATION OF SWISS LAW, NEW YORK IS THE PROPER FORUM; MOST ON THE BOARD OF DIRECTORS
ARE RESIDENTS OF NEW YORK AND THE ALLEGATIONS IN THE COMPLAINT REFLECT A SUBSTANTIAL
NEXUS TO NEW YORK (FIRST DEPT)……………………………………………………………………………………………….14

DEBTOR-CREDITOR, ENFORCEMENT OF JUDGMENT AGAINST NON-DEBTORS. …………………………………..15

IN AN ACTION SEEKING TO ENFORCE A JUDGMENT AGAINST NON-DEBTORS PURSUANT TO CPLR ARTICLE 52, THE PETITIONERS ARE NOT ENTITLED TO A JURY TRIAL; THE ACTION IS EQUITABLE IN NATURE,
DESPITE THE DEMAND FOR MONETARY DAMAGES (FIRST DEPT). …………………………………………………….15

DEBTOR-CREDITOR, ENFORCEMENT OF JUDGMENT ENTERED IN PEOPLE’S REPUBLIC OF CHINA. …………16

SUPREME COURT SHOULD NOT HAVE DISMISSED AN ACTION TO ENFORCE A MONEY JUDGMENT
OBTAINED IN THE PEOPLE’S REPUBLIC OF CHINA (PRC) ON THE IMPLICIT GROUND THE DEFENDANTS
WERE NOT AFFORDED DUE PROCESS IN THE PRC; THE US STATE DEPARTMENT DOCUMENTS UPON
WHICH SUPREME COURT’S RULING WAS BASED DO NOT CONSTITUTE DOCUMENTARY EVIDENCE; THE
COMPLAINT SUFFICIENTLY ALLEGED DEFENDANTS HAD AN OPPORTUNITY TO BE HEARD, WERE
REPRESENTED BY COUNSEL AND HAD THE OPPORTUNITY TO APPEAL IN THE PRC ACTION (FIRST DEPT). 16

DEBTOR-CREDITOR, FRAUD, INJUNCTION………………………………………………………………………………………17

IF PLAINTIFFS IN A FRAUDULET-CONVEYANCE AND ENFORCEMENT-OF-MONEY JUDGMENT PROCEEDING CAN BE FULLY COMPENSATED BY MONEY DAMAGES, IT IS ERROR TO ISSUE A PRELIMINARY INJUNCTION
(FIRST DEPT), ……………………………………………………………………………………………………………………………..17

DEFAULT, CORPORATION LAW, LIMITED LIABILITY COMPANY LAW. ………………………………………………….18

DEFENDANTS DID NOT DEMONSTRATE ACTUAL NOTICE OF THE SUMMONS WAS NOT RECEIVED IN TIME
TO DEFEND THE ACTION, AND DID NOT PROVIDE A REASONABLE EXCUSE FOR THE DEFAULT;
DEFENDANTS’ MOTION TO VACATE THE DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 18

DISCLOSURE OF TAX RETURNS. …………………………………………………………………………………………………….19

PLAINTIFF COUNTY, ACTING ON BEHALF OF THE NURSING HOME WHERE DECEDENT WAS CARED FOR,
WAS ENTITLED TO DISCLOSURE OF DECEDENT’S TAX RETURNS; THE RETURNS ARE RELEVANT TO
WHETHER DECEDENT’S SON BREACHED THE “RESPONSIBLE PARTY AGREEMENT” WHICH REQUIRED HIM TO USE THE DECEDENT’S INCOME TO PAY THE NURSING HOME (THIRD DEPT)…………………………………..19

DISMISSAL OF COMPLAINT, JUDGES, NO VALID 90-DAY NOTICE. ………………………………………………………20

EVEN THOUGH PLAINTIFF DID NOT TIMELY FILE A NOTE OF ISSUE AND DID NOT COMPLY WITH A PRIOR
DISCOVERY ORDER, THE JUDGE WAS WITHOUT AUTHORITY TO, SUA SPONTE, DISMISS THE COMPLAINT
BECAUSE PLAINTIFF HAD NOT BEEN SERVED WITH A VAILD 90-DAY DEMAND TO FILE A NOTE OF ISSUE
(SECOND DEPT). …………………………………………………………………………………………………………………………20

FAMILY LAW, APPEALS, DEFAULT, ATTORNEYS. ………………………………………………………………………………21

THE MAJORITY HELD THE APPELLATE DIVISION PROPERLY REFUSED TO HEAR APPELLANT FATHER’S
APPEAL IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING BECAUSE FATHER WAS IN DEFAULT
(NO APPEAL LIES FROM A DEFAULT); THE DISSENT ARGUED FATHER WAS NOT IN DEFAULT BECAUSE HE
APPEARED BY COUNSEL (CT APP)………………………………………………………………………………………………….21

FAMILY LAW, JURISDICTION. ………………………………………………………………………………………………………..22

FAMILY COURT DID NOT HAVE JURISDICTION TO MODIFY A SEPARATION AGREEMENT WHICH WAS
INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE; A PLENARY ACTION IS REQUIRED (FIRST DEPT). ……………………………………………………………………………………………………………………………..22

FAMILY LAW, VENUE FOR DIVORCE, SEASONAL HOME, COVID. ………………………………………………………..23

THE COUNTY WHERE PLAINTIFF AND DEFENDANT OWNED A SEASONAL SECOND HOME (WHERE
DEFENDANT LIVED AFTER COVID REACHED NEW YORK CITY) WAS NOT THE PROPER VENUE FOR THE
DIVORCE ACTION (SECOND DEPT)…………………………………………………………………………………………………23

FAMILY LAW, JUDGES, ADOPTION OF PARTY’S FINDINGS OF FACT…………………………………………………….24

THE WIFE’S REQUEST FOR MAINTENANCE WAS REJECTED WITHOUT EXPLANATION AND THE HUSBAND’S FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE WHOLLY ADOPTED BY SUPREME COURT; THE
THIRD DEPARTMENT AWARDED MAINTENANCE ON APPEAL (THIRD DEPT)………………………………………..24

FAMILY LAW, JUDGES, ATTORNEYS, COURT-ACCESS BY NEWS OUTLET. …………………………………………….25

A LOCAL ONLINE NEWS OUTLET SHOULD NOT HAVE BEEN EXCLUDED FROM A FAMILY COURT HEARING
REGARDING WHETHER A DEPUTY COUNTY ATTORNEY SHOULD BE DISQUALIFIED FROM A NEGLECT
PROCEEDING ON CONFLICT OF INTEREST GROUNDS; THE OUTLET IS ENTITLED TO A TRANSCRIPT OF THE HEARING (FOURTH DEPT). …………………………………………………………………………………………………………..25

FAMILY LAW, JUDGES, DEFAULT WARNING. …………………………………………………………………………………..27

IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, ALTHOUGH FAMILY COURT THREATENED TO FIND RESPONDENT IN DEFAULT WHEN HE DID NOT PROVIDE PROOF HE FAILED TO APPEAR BECAUSE HE
WAS HOSPITALIZED, FAMILY COURT DID NOT ULTIMATELY GIVE RESPONDENT A “DEFAULT WARNING;”
RESPONDENT AND HIS COUNSEL WERE PRESENT AT THE FACT-FINDING BUT WERE PRECLUDED BY THE
COURT FROM PARTICIPATING; RESPONDENT HAS A RIGHT TO BE HEARD ON THE ABANDONMENT ISSUE;
REVERSED AND REMITTED (THIRD DEPT)……………………………………………………………………………………….27

FAMILY LAW, JUDGES, ORDER VS DECISION……………………………………………………………………………………28

WHERE AN ORDER CONFLICTS WITH A DECISION, THE DECISION CONTROLS (FOURTH DEPT). ……………..28

FAMILY LAW, MENTAL HYGIENE LAW, IMPROPER DEFAULT……………………………………………………………..29

SUPREME COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT OF DIVORCE AGAINST THE
HUSBAND, WHO WAS REPRESENTING HIMSELF, WHEN HE DID NOT APPEAR AT THE INQUEST; BOTH THE
COURT AND THE WIFE WERE AWARE THE HUSBAND HAD BEEN DIAGNOSED WITH A SIGNIFICANT
MENTAL HEALTH CONDITION (FIRST DEPT). …………………………………………………………………………………..29

FIDUCIARY DUTY, BREACH OF, CONVERSION, FRAUD, STATUTE OF LIMITATIONS………………………………..30

CAUSES OF ACTION ALLEGING BREACH OF FIDUCIARY DUTY DO NOT ACCRUE UNTIL THE FIDUCIARY DUTY IS OPENLY REPUDIATED; CAUSES OF ACTION FOR CONVERSION BASED UPON FRAUD ARE TIMELY SIX
YEARS FROM THE CONVERSION OR TWO YEARS FROM DISCOVERY OF THE CONVERSION; THE RELEVANT CAUSES OF ACTION HERE, THEREFORE, SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). …………..30

FORECLOSURE, ATTORNEY’S FAILURE TO APPEAR, POSSESSION OF THE NOTE, STANDING…………………..31

DEFENDANT NEVER PHYSICALLY POSSESSED THE NOTE UNDERLYING THE MORTGAGE AND WAS NEVER
ASSIGNED THE NOTE; THEREFORE DEFENDANT DOES NOT HAVE STANDING TO FORECLOSE ON THE
MORTGAGE; AN ATTORNEY’S FAILURE TO APPEAR AT A FULLY BRIEFED MOTION ARGUMENT IS NOT A
DEFAULT (FOURTH DEPT)…………………………………………………………………………………………………………….31

FORECLOSURE, JURISDICTION, “LIMITED” ATTORNEY-APPEARANCE………………………………………………….32

ALTHOUGH DEFENDANTS WERE NOT PROPERLY SERVED IN THIS FORECLOSURE ACTION AND THEIR
MOTION TO VACATE THE JUDGMENT WAS GRANTED ON THAT GROUND, THE DEFENDANTS’ ATTORNEY’S “LIMITED APPEARANCE” AT A SETTLEMENT CONFERENCE PROVIDED THE COURT WITH JURISDICTION
OVER THE MATTER; THE MOTION TO VACATE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ……32

FORECLOSURE, NEGLECT TO PROSECUTE. ……………………………………………………………………………………..33

THE CONDITIONAL ORDER OF DISMISSAL DID NOT MEET THE REQUIREMENTS OF CPLR 3216 BECAUSE
ISSUE WAS NEVER JOINED IN THIS FORECLOSURE ACTION; THE ACTION SHOULD NOT HAVE BEEN
DISMISSED FOR FAILURE TO PROSECUTE (SECOND DEPT)………………………………………………………………..33

FORECLOSURE, SETTLEMENT CONFERENCE, ABANDONMENT. …………………………………………………………34

DEFENDANTS’ PARTICIPATION IN A SETTLEMENT CONFERENCE DID NOT WAIVE THEIR RIGHT TO MOVE
TO DISMISS THE FORECLOSURE ACTION AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT). …..34

FORECLOSURE, STANDING, STATUTE OF LIMITATIONS…………………………………………………………………….35

IF THE 2008 FORECLOSURE ACTION COMMENCED BY AEGIS WAS VALID, THE INSTANT FORECLOSURE
ACTION BY A DIFFERENT BANK WOULD BE TIME-BARRED; PLAINTIFF BANK RAISED A QUESTION OF FACT
BY SUBMITTING EVIDENCE THAT AEGIS DID NOT POSSESS THE NOTE AND MORTGAGE AT THE TIME THE 2008 ACTION WAS COMMENCED AND THEREFORE DID NOT HAVE STANDING TO FORECLOSE (SECOND
DEPT)………………………………………………………………………………………………………………………………………..35

FORECLOSURE, STANDING. ………………………………………………………………………………………………………….36

THE LOST NOTE AFFIDAVIT SUBMITTED BY THE BANK WAS INSUFFICIENT; THEREFORE THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION; DEFENDANTS’ MOTION TO AMEND
THE ANSWER TO ASSERT THE LACK OF STANDING DEFENSE SHOULD HAVE BEEN GRANTED (SECOND
DEPT)………………………………………………………………………………………………………………………………………..36

FORECLOSURE, STANDING, UNIFORM COMMERCIAL CODE……………………………………………………………..37

THE BANK FAILED TO DEMONSTRATE STANDING TO BRING THE . FORECLOSURE ACTION; THERE WERE
QUESTIONS OF FACT WHETHER THE “HOLDER (OF THE NOTE)” REQUIREMENTS OF THE UCC WERE MET
(SECOND DEPT). …………………………………………………………………………………………………………………………37

JUDGES, REMARKS PREJUDICED THE JURY……………………………………………………………………………………..38

REMARKS BY THE JUDGE AND DEFENDANT’S COUNSEL PREJUDICED THE JURY IN THIS MEDICAL
MALPRACTICE CASE; ALTHOUGH NOT PRESERVED, THE ISSUE WAS CONSIDERED ON APPEAL IN THE
INTEREST OF JUSTICE; DEFENSE VERDICT SET ASIDE (SECOND DEPT)…………………………………………………38

JURISDICTION, LANDLORD-TENANT, CIVIL PROCEDURE, MUNICIPAL LAW, TENANT HARASSMENT………..39

THE TENANT HARASSMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED; SUPREME COURT
HAD SUBJECT MATTER JURISDICTION FOR THAT CAUSE OF ACTION (SECOND DEPT). ………………………….39

LABOR LAW-CONSTRUCTION LAW, WORKERS’ COMPENSATION, COLLATERAL ESTOPPEL. …………………..39

THE WORKERS’ COMPENSATION BOARD RULED THE PLAINTIFF DID NOT HAVE “POST-CONCUSSION
SYNDROME” OR A “CONCUSSION CONDITION;” PLAINTIFF WAS THEREFORE ESTOPPED FROM CLAIMING
THOSE INJURIES IN THIS LABOR LAW ACTION (FOURTH DEPT)………………………………………………………….39

MOTION TO RENEW. …………………………………………………………………………………………………………………..40

PLAINTIFFS’ MOTION TO RENEW ON THE GROUND THE DEFENDANTS’ WINNING ARGUMENT WAS RAISED FOR THE FIRST TIME IN REPLY PAPERS SHOULD HAVE BEEN GRANTED (FIRST DEPT). ………………………….40

PRIVILEGE, PHYSICIAN-PATIENT, BREACH IS A TORT. ……………………………………………………………………….41

PLAINTIFF STATED A CAUSE OF ACTION FOR BREACH OF THE PHYSICIAN-PATIENT PRIVILEGE, A TORT
(THIRD DEPT)……………………………………………………………………………………………………………………………..41

SANCTIONS, ATTORNEYS, JUDGES…………………………………………………………………………………………………42

THE JUDGE DID NOT FOLLOW PROPER PROCEDURE FOR IMPOSING SANCTIONS, I.E., PLAINTIFF’S
COUNSEL WAS ORDERED TO PAY $10,000 IN COUNSEL FEES TO DEFENDANT’S COUNSEL (FIRST DEPT)…42

STATUTE OF LIMITATIONS DEFENSE ASSERTED IN COUNTERCLAIM…………………………………………………..43

ALTHOUGH THE MOTION TO DISMISS ON STATUTE OF LIMITATIONS GROUNDS WAS NOT TIMELY, THE
ASSERTION OF THE DEFENSE IN THE REPLY TO THE COUNTERCLAIM WAS TIMELY; THE DEFENSE CAN BE RAISED IN A SUBSEQUENT SUMMARY JUDGMENT MOTION (FIRST DEPT). ………………………………………..43

TRUSTS AND ESTATES, TURNOVER OF ANNUITY FUNDS ALREADY DISTRIBUTED, STATUTE OF LIMITATIONS.
………………………………………………………………………………………………………………………………………………..44

THE PETITION BROUGHT BY THE EXECUTOR PURSUANT TO SCPA 2103 SOUGHT DISCOVERY AND THE
TURNOVER OF ANNUITY FUNDS WHICH HAD BEEN TRANSFERRED TO APPELLANT; THE SCPA 21O3
ACTION IS LIKE AN ACTION FOR CONVERSION OR REPLEVIN AND HAS A THREE-YEAR STATUTE OF
LIMITATIONS; HERE THE MOTIONS TO AMEND THE ANSWERS TO ASSERT THE STATUTE OF LIMITATIONS DEFENSE AND FOR SUMMARY JUDGMENT ON THAT GROUND SHOULD HAVE BEEN GRANTED (SECOND
DEPT)………………………………………………………………………………………………………………………………………..44

TRUSTS AND ESTATES, SURROGATE’S VS SUPREME COURT. …………………………………………………………….45

PETITIONER STARTED PROCEEDINGS CONCERNING THE EXECUTOR’S HANDLING OF DECEDENT’S ASSETS IN SURROGATE’S COURT; AFTER RELIEF WAS DENIED WITHOUT PREJUDICE PETITIONER STARTED SIMILAR PROCEEDINGS IN SUPREME COURT, A COURT OF CONCURRENT JURISDICTION; THE EXECUTOR’S MOTION TO TRANSFER THAT PROCEEDING TO SURROGATE’S COURT SHOULD HAVE BEEN GRANTED (THIRD DEPT).
………………………………………………………………………………………………………………………………………………..45

VENUE, DOCUMENTARY EVIDENCE……………………………………………………………………………………………….46

A COMPUTER PRINTOUT FROM THE NYS DEPARTMENT OF STATE WEBSITE PURPORTING TO SHOW THE
LOCATION OF DEFENDANT’S PRINCIPAL PLACE OF BUSINESS FOR VENUE PURPOSES WAS NOT
ADMISSIBLE AS A BUSINESS RECORD (SECOND DEPT). …………………………………………………………………….46