Civil Procedure Update July 2020

Civil Procedure Update July 2020

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

This Course Is Appropriate for Experienced Attorneys

Areas of Professional Practice: 0.5 CLE Credit Hour

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 July 1, 2020 and July 31, 2020 which address issues in “Civil Procedure.” Similar 1/2-to 1-hour CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.

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. A link to the written materials for this course (“Civil Procedure Update Pamphlet July 2020”) is provided below.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, 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 0.5 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 Update Pamphlet July 2020”), 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 Update Pamphlet July 2020

Civil Procedure Update July 2020 Attorney Affirmation

Civil Procedure Update July 2020 Evaluation Survey

Topics Covered in the “Civil Procedure Update July 2020” 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 “Civil Procedure Update Pamphlet July 2020”

90-DAY NOTICE.

THE CERTIFICATION ORDER DIRECTING PLAINTIFF TO FILE A NOTE OF ISSUE WITHIN 90 DAYS WAS NOT A VALID 90-DAY NOTICE PURSUANT TO CPLR 3216; THE ACTION SHOULD NOT HAVE BEEN DISMISSED AND THE CROSS-MOTION TO EXTEND THE TIME FOR FILING A NOTE OF ISSUE SHOULD HAVE BEEN GRANTED (SECOND DEPT). 8

90-DAY NOTICE.

THE COURT’S ORDER DIRECTING PLAINTIFFS TO FILE A NOTE OF ISSUE DID NOT COMPLY WITH THE CRITERIA FOR A 90-DAY NOTICE PURSUANT TO CPLR 3216; THE COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT (SECOND DEPT). 9

ABANDONMENT.

PLAINTIFF MOVED FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION; EVEN THOUGH THE MOTION WAS WITHDRAWN, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT). 10

ADMINISTRATIVE LAW, PROMULGATION OF REGULATIONS.

THE REGULATION REQUIRING NEW YORK HEALTH INSURANCE POLICIES TO COVER MEDICALLY NECESSARY ABORTION SERVICES, WHICH INCLUDES AN EXEMPTION FOR ‘RELIGIOUS EMPLOYERS,’ IS CONSTITUTIONAL AND WAS PROPERLY PROMULGATED (THIRD DEPT). 11

AMEND COMPLAINT, STATUTE OF LIMITATIONS.

CAUSE OF ACTION AGAINST THE LANDOWNER FOR A SLIP AND FALL IN THE LESSEE’S SHOPPING CENTER PARKING LOT SHOULD NOT HAVE BEEN DISMISSED BECAUSE THE LANDOWNER HAD SOME REPAIR RESPONSIBILITIES UNDER THE LEASE; ALTHOUGH THE ORIGINAL SUMMONS AND COMPLAINT DESCRIBED THE WRONG PROPERTY ADDRESS, THE AMENDED COMPLAINT, SERVED AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS, WAS TIMELY UNDER THE RELATION-BACK DOCTRINE (SECOND DEPT). 12

AMEND COMPLAINT, STATUTE OF LIMITATIONS.

MOTION TO AMEND THE SUMMONS AND COMPLAINT TO ADD AN APPARENTLY MISNAMED PARTY AFTER THE STATUTE OF LIMITATIONS HAD RUN SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 13

APPEARANCE, DEFAULT.

ALTHOUGH IT IS POSSIBLE TO ENTER AN ‘INFORMAL APPEARANCE’ IN AN ACTION WHICH WILL AVOID A DEFAULT, THE APPEARANCE MUST BE MADE WITHIN THE STATUTORY TIME LIMITS; THE PLAINTIFF BANK’S MOTION FOR A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION WAS PROPERLY GRANTED (SECOND DEPT). 14

ARTICLE 78.

AN ARTICLE 78 REVIEW OF THE RESPONSE TO A FOIL REQUEST MAY ONLY CONSIDER THE GROUND FOR THE INITIAL AGENCY DECISION; THE GROUNDS FOR A SUBSEQUENT DECISION ISSUED AFTER THE ARTICLE 78 PROCEEDING WAS COMMENCED SHOULD NOT HAVE BEEN CONSIDERED; PETITIONER’S REQUEST FOR THE METADATA OF THE DISCLOSED DOCUMENTS MUST BE DENIED BECAUSE METADATA WAS NOT ‘REASONABLY DESCRIBED’ IN THE FOIL REQUEST (FIRST DEPT). 15

CLASS ACTIONS.

THE 2009 ROBERTS CASE APPLIES RETROACTIVELY TO RENT OVERCHARGES STEMMING FROM THE RENTAL OF DEREGULATED APARTMENTS BY LANDLORDS RECEIVING J-51 TAX BENEFITS; THE OVERCHARGES HERE MUST BE RE-CALCULATED IN ACCORDANCE WITH A RECENT RULING BY THE COURT OF APPEALS; THE CLASS OF TENANTS IN THIS RENT OVERCHARGE ACTION SHOULD NOT HAVE BEEN EXPANDED BY SUPREME COURT (FIRST DEPT). 16

COLLATERAL ESTOPPEL.

ARBITRATOR’S DECISION FINDING CLAIMANT WAS PROPERLY DISCHARGED FOR MISCONDUCT ENTITLED TO COLLATERAL ESTOPPEL EFFECT IN THE UNEMPLOYMENT INSURANCE PROCEEDING (THIRD DEPT). 17

DISCLOSURE, SUMMARY JUDGMENT.

DEFENDANT HOME OWNER DEMONSTRATED HE DID NOT HAVE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK AND DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION WHICH ALLEGEDLY RESULTED IN PLAINTIFF’S INJURIES IN THIS LABOR LAW 200 ACTION; SUPREME COURT SHOULD NOT HAVE CONSIDERED AN AFFIDAVIT FROM A NOTICE WITNESS WHO WAS NOT DISCLOSED PRIOR TO THE SUMMARY JUDGMENT MOTION (SECOND DEPT). 18

FAILURE TO STATE A CAUSE OF ACTION.

MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION MAY BE BROUGHT AT ANY TIME; THE SELLER WAS NOT OBLIGATED TO EXERCISE AN OPTION IN THE RESTRICTED REMEDIES CLAUSE OF THE REAL ESTATE PURCHASE CONTRACT BECAUSE THE BUYER NEVER DEMANDED SPECIFIC PERFORMANCE OF THE CONTRACT (FIRST DEPT). 19

FORUM NON CONVENIENS, SERVICE OF PROCESS.

ALTHOUGH THE MOTION TO DISMISS FOR FAILURE TO SERVE A DEFENDANT SHOULD HAVE BEEN DENIED AND THE MOTION TO EXTEND TIME TO SERVE GRANTED, THE MOTION TO DISMISS ON FORUM NON COVENIENS GROUNDS WAS PROPERLY GRANTED (SECOND DEPT). 20

FORUM NON CONVENIENS.

DEFENDANTS’ MOTION TO DISMISS ON THE GROUND OF FORUM NON CONVENIENS IN THIS PERSONAL INJURY ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). 21

INJUNCTIONS.

PLAINTIFF PRESENTED CLEAR AND CONVINCING EVIDENCE SUPPORTING THE CAUSES OF ACTION AGAINST A NEIGHBOR FOR TRESPASS, PRIVATE NUISANCE, AND VIOLATION OF THE CIVIL RIGHTS LAW; THE MOTION FOR A PRELIMINARY INJUNCTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 22

JURISDICTION, FOREIGN CORPORATIONS.

DEFENDANT DID NOT DEMONSTRATE THE FOREIGN CORPORATION WAS DOING BUSINESS IN NEW YORK WITHOUT AUTHORIZATION; DEFENDANT’S MOTION TO DISMISS THE COMPLAINT IN THIS FORECLOSURE ACTION ON THAT GROUND SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 23

NOTE OF ISSUE, MOTION TO VACATE.

MOTION TO VACATE THE NOTE OF ISSUE AND COMPEL DISCOVERY PROPERLY DENIED; MISAPPROPRIATION OF TRADE SECRETS AND BREACH OF A NON-COMPETITION CLAUSE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). 24

NOTICE OF CLAIM.

MOTIONS FOR LEAVE TO FILE LATE NOTICES OF CLAIM IN THIS “POLLUTION ESCAPING FROM A LANDFILL” CASE SHOULD HAVE BEEN GRANTED; THE STATUTE OF LIMITATIONS HAD BEEN TOLLED BY THE FILING OF A FEDERAL CLASS ACTION SUIT; ALTHOUGH THERE WAS NO ADEQUATE EXCUSE, THE RESPONDENT WAS AWARE OF THE CLAIMS AND COULD NOT DEMONSTRATE PREJUDICE FROM THE DELAY (FOURTH DEPT). 25

NOTICE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, FORECLOSURE.

PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 AND 1306 IN THIS FORECLOSURE ACTION; PROOF REQUIREMENTS EXPLAINED IN SOME DEPTH (SECOND DEPT). 26

REFEREE’S REPORTS.

SUPREME COURT SHOULD NOT HAVE CONFIRMED THE REFEREE’S REPORT ABSENT A HEARING (SECOND DEPT). 27

REMOVAL FROM CITY COURT.

TENANT’S MOTION TO REMOVE AN EVICTION PROCEEDING FROM CIVIL COURT AND CONSOLIDATE IT WITH A BREACH-OF-LEASE ACTION IN SUPREME COURT SHOULD HAVE BEEN GRANTED; LEASE PROVISIONS PRECLUDED THE COUNTERCLAIMS AND EQUITABLE RELIEF IN THE EVICTION PROCEEDING, BUT THAT RELIEF IS AVAILABLE IN THE SUPREME COURT PROCEEDING (SECOND DEPT). 27

RES JUDICATA, COLLATERAL ESTOPPEL.

ALTHOUGH DEFENDANTS’ INSURER OBTAINED A DECLARATORY JUDGMENT (BY DEFAULT) THAT IT WAS NOT OBLIGATED TO PAY NO-FAULT BENEFITS TO PLAINTIFF PEDESTRIAN IN THIS TRAFFIC ACCIDENT CASE, THE DECLARATORY JUDGMENT DID NOT PRECLUDE, UNDER EITHER CLAIM OR ISSUE PRECLUSION, PLAINTIFF’S PERSONAL INJURY ACTION AGAINST DEFENDANTS (FIRST DEPT). 28

SERVICE OF OBJECTIONS, FAMILY LAW.

ALTHOUGH MOTHER WAS GENERALLY AWARE FATHER HAD MOVED TO DELAWARE, FATHER DID NOT SPECIFY AN AGENT FOR SERVICE AS REQUIRED BY THE FAMILY COURT ACT; THEREFORE SERVICE OF MOTHER’S OBJECTIONS TO THE SUPPORT MAGISTRATE’S ORDER AT FATHER’S LAST KNOWN ADDRESS WAS PROPER (SECOND DEPT). 29

SERVICE OF ORDER, FAMILY LAW.

ABSENT PROOF OF SERVICE OF THE SUPPORT MAGISTRATE’S ORDER ON FATHER OR FATHER’S COUNSEL, THE TIME FOR FILING OBJECTIONS TO THE ORDER NEVER BEGAN RUNNING (SECOND DEPT). 30

SERVICE OF PROCESS, DEFAULT.

DEFENDANT’S MOTION TO VACATE ITS DEFAULT BECAUSE IT WAS NEVER SERVED WITH THE SUMMONS AND COMPLAINT SHOULD HAVE BEEN GRANTED; THE ADDRESS ON FILE WITH THE SECRETARY OF STATE WAS INCORRECT (SECOND DEPT). 31

SERVICE OF PROCESS.

DEFENDANTS’ CONCLUSORY AND UNSUBSTANTIATED CLAIMS DID NOT REBUT THE SWORN ALLEGATIONS OF PROPER SERVICE AND MAILING OF THE SUMMONS, COMPLAINT AND REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1303 NOTICE IN THIS FORECLOSURE ACTION; THE DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 32

STANDING, ZONING.

LOCAL LAW REVISING ZONING DISTRICTS AND ALLOWING MINING WAS VALIDLY ENACTED; CONTRARY TO SUPREME COURT’S FINDING, TWO PETITIONERS HAD STANDING BY VIRTUE OF THEIR OWNING PROPERTY SUBJECT TO THE NEW ZONING PROVISIONS; ONE PORTION OF THE LOCAL LAW USURPED THE POWERS OF THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) AND WAS ANNULLED; ANOTHER PORTION ADDRESSING TRUCK TRAFFIC VIOLATED THE VEHICLE AND TRAFFIC LAW AND WAS ANNULLED (THIRD DEPT). 33

STANDING.

HEARSAY DID NOT PROVE BANK HAD STANDING IN THIS FORECLOSURE ACTION (SECOND DEPT). 34

STATUTE OF LIMITATIONS, FORECLOSURE.

ATTEMPTS TO DE-ACCELERATE THE DEBT, INCLUDING VOLUNTARY DISCONTINUANCES AFTER THE DEATH OF THE DEFENDANT, WERE INEFFECTUAL, THE FORECLOSURE ACTION IS TIME-BARRED (THIRD DEPT). 35

STATUTE OF LIMITATIONS.

PLAINTIFF’S DECEDENT’S MEDICAL MALPRACTICE AND WRONGFUL DEATH ACTIONS WERE NOT TIME-BARRED, SUPREME COURT REVERSED (SECOND DEPT). 36

STATUTE OF LIMITATIONS.

QUESTIONS OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS ARCHITECTURAL MALPRACTICE/BREACH OF CONTRACT ACTION (SECOND DEPT). 37

STATUTE OF LIMITATIONS.

THE ACTION ALLEGING DEFECTIVE CONSTRUCTION OF A CONDOMINIUM ACCRUED WHEN THE WORK WAS COMPLETED, I.E., WHEN THE CERTIFICATE OF OCCUPANCY WAS ISSUED; THE ACTION WAS TIME-BARRED (SECOND DEPT). 38

SUBPOENAS.

THE ATTORNEY GENERAL PROPERLY SERVED VALID SUBPOENAS ON THE VIRTUAL CURRENCY COMPANIES PURSUANT TO GENERAL BUSINESS LAW 352 (MARTIN ACT) IN A FRAUD INVESTIGATION; ONCE THE MOTIONS TO VACATE OR MODIFY THE EX PARTE ORDER RE: THE ISSUANCE OF THE SUBPOENAS WAS DETERMINED, THE COURT NO LONGER HAD ANY AUTHORITY OVER THE ATTORNEY GENERAL’S INVESTIGATION; THEREFORE THE VIRTUAL CURRENCY COMPANIES’ SUBSEQUENT MOTION TO DISMISS WAS NOT PROPERLY BEFORE SUPREME COURT OR THE APPELLATE DIVISION (FIRST DEPT). 39

SUMMARY JUDGMENT IN LIEU OF COMPLAINT.

THE PROMISSORY NOTE WAS NOT DEMONSTRATED TO BE AN INSTRUMENT FOR THE PAYMENT OF MONEY ONLY, THE MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 40

SUMMARY JUDGMENT.

NEW THEORY PRESENTED IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LACK-OF-INFORMED-CONSENT CAUSE OF ACTION SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT). 41

TELEPHONE, TESTIMONY BY, SWORN TESTIMONY.

FAMILY COURT ALLOWED MOTHER TO TESTIFY BY TELEPHONE WITHOUT WARNING HER A NOTARY SHOULD BE PRESENT SO SHE COULD BE SWORN AND THEN, SUA SPONTE, REJECTED MOTHER’S TESTIMONY BECAUSE IT WAS NOT SWORN; NEW HEARING ORDERED (THIRD DEPT). 42

VERDICT, MOTION TO SET ASIDE.

ALTHOUGH A FRYE HEARING WAS NOT NECESSARY BECAUSE BIOMECHANICAL ENGINEERING IS AN ACCEPTED SCIENTIFIC THEORY, THE BIOMECHANICAL ENGINEER’S TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN THIS REAR-END COLLISION CASE; NO FOUNDATION WAS LAID FOR THE ENGINEER’S TESTIMONY; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT). 43

VERDICT, MOTION TO SET ASIDE.

WHETHER THE DEFENDANT FIRST STOPPED AT THE STOP SIGN OR DROVE THROUGH THE STOP SIGN DOESN’T MATTER BECAUSE EITHER WAY THE VEHICLE AND TRAFFIC LAW WAS VIOLATED; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT). 44