Civil Procedure Update March April May June 2023

Civil Procedure Update March April May June 2023

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

Appropriate for Experienced Attorneys

Areas of Professional Practice: 1 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 March – June 2023 which address issues in “Civil Procedure.”

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 CLE update courses. The links to the written materials for this course (“Civil Procedure Reversal Report March 2023,” “Civil Procedure Reversal Report April 2023,” “Civil Procedure Reversal Report May 2023” and “Civil Procedure Reversal Report June 2023”) are 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 1 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 Report March 2023.” “Civil Procedure Reversal Report April 2023,” “Civil Procedure Reversal Report May 2023” and “Civil Procedure Reversal Report June 2023”), 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 March 2023

Civil Procedure Reversal Report April 2023

Civil Procedure Reversal Report May 2023

Civil Procedure Reversal Report June 2023

Attorney Affirmation Civil Procedure Update March April May June 2023

Evaluation Survey Civil Procedure Update March April May June 2023

Topics Covered in the “Civil Procedure Update March April May June 2023” 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 the “Civil Procedure Reversal Report March 2023.” “Civil Procedure Reversal Report April 2023.” “Civil Procedure Reversal Report May 2023” and “Civil Procedure Reversal Report June 2023”

 

MARCH 2023 CIVIL PROCEDURE REVERSAL REPORT

AMENDMENT OF PLEADINGS. 4

PLAINTIFF’S MOTION TO AMEND ITS REPLY TO A COUNTERCLAIM TO ADD THE STATUTE OF LIMITATIONS DEFENSE SHOULD HAVE BEEN GRANTED; THE PROPOSED AMENDMENT WAS NOT PALPABLY IMPROPER AND DEFENDANT SHOWED THERE WAS NO PREJUDICE BY NOT OPPOSING THE MOTION TO AMEND (SECOND DEPT). 4

APPEALS, FAMILY LAW. 5

NON-RESPONDENT FATHER’S APPEAL OF THE PLACEMENT OF HIS CHILDREN WITH THE DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES WAS NOT MOOT; THE CHILDREN HAD BEEN PLACED WITH RELATIVES; PLACEMENT WITH THE DEPARTMENT, AS OPPOSED TO WITH RELATIVES, TRIGGERS THE POSSIBLE FUTURE TERMINATION OF FATHER’S PARENTAL RIGHTS (FOURTH DEPT). 5

APPEALS, PRESERVATION. 6

TWO DISSENTERS ARGUED THE UNPRESERVED ISSUE, WHICH INVOLVED SETTLED LAW, SHOULD NOT HAVE BEEN CONSIDERED ON APPEAL (FOURTH DEPT). 6

APPEALS, SUA SPONTE ORDER. 7

WHEN A JUDGE MAKES A WRONG RULING WHICH CANNOT BE APPEALED BECAUSE IT WAS NOT PROMPTED BY A MOTION, A MOTION TO SET ASIDE THE ORDER PURSUANT TO CPLR 5015 IS AN APPROPRIATE REMEDY; THE DENIAL OF THE MOTION TO SET ASIDE CAN BE APPEALED, AS WAS SUCCESSFULLY DONE HERE (FIRST DEPT). 7

APPEALS, ZONING. 8

THE TOWN BOARD’S FAILURE TO PROVIDE ITS REASONS FOR ITS RULING IN THIS VARIANCE PROCEEDING AND THE BOARD’S FAILURE TO MAKE ADEQUATE FINDINGS OF FACT REQUIRED THE APPELLATE COURT TO REMIT THE MATTER FOR THE SECOND TIME UNDER THREAT OF SANCTIONS (FOURTH DEPT). 8

BREACH OF CONTRACT, ACCRUAL AT PLACE OF INJURY. 9

FOR PURPOSES OF DETERMINING THE CORRECT JURISDICTION FOR STATUTE-OF-LIMITATIONS PURPOSES, THE ACCRUAL OF A BREACH OF CONTRACT ACTION ALLEGING PURELY ECONOMIC INJURY IS USUALLY IN THE “PLACE OF INJURY,” WHICH IS USUALLY WHERE THE PLAINTIFF RESIDES (FIRST DEPT). 9

CONVERSION OF ARTICLE 78 PETITION TO A COMPLAINT. 10

THE ARTICLE 78 PETITION SOUGHT RELIEF NOT AVAILABLE IN SUCH A PROCEEDING (REMOVAL OF A TERRACE CONSTRUCTED ABOVE PETITIONER’S RESIDENCE); THE APPELLATE COURT CONVERTED THE PETITION TO A COMPLAINT PURSUANT TO CPLR 103 (SECOND DEPT). 10

COVID TOLL, FAMILY LAW, JUVENILE DELINQUENCY. 11

THE JUVENILE DELINQUENCY PETITIONS WERE TIMELY FILED; THE CORRECT APPLICATION OF THE COVID TOLL OF THE STATUTE OF LIMITATIONS EXPLAINED (FIRST DEPT). 11

COVID TOLL. 12

THE COVID EXECUTIVE ORDERS TOLLING THE STATUTES OF LIMITATIONS APPLY TO THE TIME FOR ANSWERING A MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT (SECOND DEPT). 12

DEBTOR-CREDITOR, ACTION FOR PAYMENT OF MONEY ONLY. 13

PLAINTIFF’S ACTION RELIED ON EXTRINSIC EVIDENCE AND WAS NOT AN ACTION FOR THE PAYMENT OF MONEY ONLY WHICH CAN BE BROUGHT BY SUMMONS IN LIEU OF A COMPLAINT PURSUANT TO CPLR 3213 (FOURTH DEPT), 13

DISCOVERY SANCTIONS. 14

PRECLUSION OF EVIDENCE AS A DISCOVERY SANCTION WAS NOT WARRANTED; THERE WAS NO EVIDENCE OF WILLFUL OR CONTUMACIOUS CONDUCT AND THE SANCTIONED PARTY WAS NOT GIVEN AN OPPORTUNITY TO EXPLAIN THE FAILURE TO COMPLY WITH DISCOVERY ORDERS (SECOND DEPT). 14

FRAUD, STATUTE OF LIMITATIONS. 15

HERE THERE WAS A QUESTION OF FACT ABOUT WHEN THE PLAINTIFFS BECAME AWARE OF THE ALLEGED FRAUD; THEREFORE THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED (FIRST DEPT). 15

FREEDOM OF INFORMATION LAW (FOIL), DISCOVERY. 16

PLAINTIFF SUED THE CITY AND POLICE UNDER 42 USC 1983 ALLEGING THE CITY AND POLICE HAD AN UNCONSTITUTIONAL POLICY OR PRACTICE ALLOWING POLICE OFFICERS TO FILE FALSE CHARGES, TESTIFY FALSELY AND FALSIFY EVIDENCE WITHOUT CONSEQUENCES; PLAINTIFF WAS ENTITLED TO RECORDS OF SIMILAR COMPLAINTS OR INVESTIGATIONS PURSUANT TO THE CPLR DISCOVERY PROVISIONS AND WAS NOT RESTRICTED TO A FOIL REQUEST (FIRST DEPT). 16

INQUEST AFTER DEFAULT, JUDGES. 17

IN AN INQUEST ON DAMAGES AFTER DEFENDANT DEFAULTED, THE JUDGE SHOULD NOT HAVE CONSIDERED LIABILITY ISSUES (SECOND DEPT). 17

INSURANCE LAW, EXAMINATION UNDER OATH. 18

IN THIS NO-FAULT INSURANCE CASE, THE INSURER REQUESTED AN EXAMINATION UNDER OATH (EUO) WITHOUT AFFORDING THE MEDICAL PROVIDER SPECIFIC, OBJECTIVE JUSTIFICATION FOR THE REQUEST; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE INSURER (FIRST DEPT). 18

JUDGES, DECLARATION ILL WITNESS UNAVAILABLE. 19

AFTER AN IMPORTANT PLAINTIFFS’ WITNESS BECAME ILL DURING CROSS-EXAMINATION AND WAS TAKEN BY AMBULANCE TO THE HOSPITAL, THE JUDGE, SUA SPONTE, DECLARED THE WITNESS UNAVAILABLE, STRUCK HIS TESTIMONY AND ADMITTED HIS DEPOSITION TESTIMONY; THERE WAS NO SUPPORT IN THE RECORD FOR THE FINDING THE WITNESS WOULD BE UNABLE TO TESTIFY; JUDGMENT REVERSED (SECOND DEPT). 19

LITIGATION PRIVILEGE. 20

DEFENDANT’S OFFER TO PROVIDE FALSE TESTIMONY IN A SEPARATE ACTION IS NOT PROTECTED BY THE LITIGATION PRIVILEGE IN THIS RELATED ACTION ALLEGING DEFENDANT’S BREACHED A CONFIDENTIALITY AND NONDISPARAGEMENT AGREEMENT (FIRST DEPT). 20

LONG-ARM JURISDICTION. 21

PLAINTIFF DID NOT ALLEGE SUFFICIENT CONTACTS WITH NEW YORK TO SUPPORT LONG-ARM JURISDICTION OVER THE DEFENDANT IN ISRAEL; THE EVIDENCE DID NOT JUSTIFY JURISDICTIONAL DISCOVERY (FIRST DEPT). 21

MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE. 23

THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF IMPLIED CONTRACT AND DEFENDANT’S MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). 23

MOTIONS TO DISMISS, JUDGES. 24

THE COURT’S INQUIRY ON MOTIONS TO DISMISS AN ARTICLE 78 PETITION, A COMPLAINT, AND/OR A REQUEST FOR A DECLARATORY JUDGMENT SHOULD RARELY GO BEYOND WHETHER, ASSUMING THE TRUTH OF THE ALLEGATIONS, A CAUSE OF ACTION HAS BEEN STATED (SECOND DEPT). 24

SOVEREIGN IMMUNITY, NEGLIGENCE. 25

INTERSTATE SOVEREIGN IMMUNITY IS AN ISSUE WHICH MUST BE RAISED BEFORE THE TRIAL COURT TO BE PRESERVED FOR APPEAL TO THE COURT OF APPEALS; HERE A NEW JERSEY TRANSIT BUS COLLIDED WITH A CAR DRIVEN BY A NEW YORK RESIDENT IN THE LINCOLN TUNNEL AND THE TRIAL WAS HELD IN NEW YORK; ALTHOUGH THE INTERSTATE SOVEREIGN IMMUNITY DEFENSE WAS VALIDATED BY THE US SUPREME COURT IN 2019, THE ISSUE WAS NOT RAISED BEFORE THE TRIAL COURT (CT APP). 25

STATUTORY REMEDIES. 26

WHERE A STATUTE, HERE CIVIL RIGHTS LAW 40-B, PRESCRIBES A MONETARY REMEDY, AN INJUNCTION IS NOT AVAILABLE (FIRST DEPT). 26

TOWN LAW, NOTICE OF CLAIM. 27
PLAINTIFF SUED THE TOWN ALLEGING BREACH OF CONTRACT; TOWN LAW 65 (3) REQUIRED PLAINTIFF TO FILE A NOTICE OF CLAIM WITHIN SIX MONTHS (WHICH PLAINTIFF FAILED TO DO) AND MAKES NO PROVISION FOR FILING A LATE NOTICE; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT). 27

 

APRIL 2023 CIVIL PROCEDURE REVERSAL REPORT

ABANDONMENT OF ACTION, JUDGES. 4

IN 2011 PLAINTIFF WITHDREW THE MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT WITHOUT PREJUDICE AND SUBSEQUENTLY ENGAGED IN SETTLEMENT NEGOTIATIONS FOR YEARS; THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED AND TIME-BARRED (FIRST DEPT). 4

ADMINISTRATIVE LAW, DEBTOR-CREDITOR. 5

IN THIS SUIT BY A NEW JERSEY CASINO TO RECOVER DEFENDANT’S GAMBLING DEBT, DEFENDANT RAISED AFFIRMATIVE DEFENSES ALLEGING PLAINTIFF CASINO VIOLATED PROVISIONS OF NEW JERSEY’S CASINO CONTROL ACT (CCA); THE CONTROLLING AGENCY, THE CASINO CONTROL COMMISSION (CCC), HAS PRIMARY JURISDICTION OVER THOSE COMPLAINTS; THE COMPLAINTS MUST BE RULED ON BEFORE THE COURT CAN CONSIDER PLAINTIFF’S SUMMARY JUDGMENT MOTION (FIRST DEPT). 5

ARBITRATION, ARTICLE 78, CONTRACT LAW, EMPLOYMENT LAW, JUDGES, MUNICIPAL LAW. 6

COURTS HAVE ONLY A LIMITED POWER TO REVIEW AN ARBITRATOR’S RULING; HERE SUPREME COURT SHOULD NOT HAVE FOUND THE ARBITRATOR EXCEEDED HER AUTHORITY BY ORDERING BACK PAY FOR A REINSTATED COUNTY EMPLOYEE (THIRD DEPT). 6

ARTICLE 78, JUDGES, CRIMINAL LAW. 7

THE BRAKES FAILED ON A LIMOUSINE OWNED BY PETITIONER AND 20 PEOPLE DIED; PETITIONER PLED TO 20 COUNTS OF CRIMINALLY NEGLIGENT HOMICIDE AND, PURSUANT TO A PLEA AGREEMENT, WAS SENTENCED TO PROBATION AND COMMUNITY SERVICE; BECAUSE OF A TECHNICAL DEFECT IN THE SENTENCE, PETITIONER APPEARED FOR RESENTENCING BEFORE A DIFFERENT JUDGE WHO DECIDED TO IMPOSE PRISON TIME; PETITIONER WITHDREW HIS PLEA, THE MATTER WAS SET FOR TRIAL AND PETITIONER BROUGHT THIS ARTICLE 78 PROCEEDING TO REINSTATE THE ORIGINAL SENTENCE; THE PETITION WAS DENIED OVER A DISSENT (THIRD DEPT). 7

ATTORNEY AFFIDAVIT IS WITHOUT EVIDENTIARY VALUE, SUMMARY JUDGMENT. 8

THE ATTORNEY AFFIDAVIT SUBMITTED IN SUPPORT OF THE SUMMARY JUDGMENT MOTION WAS WITHOUT EVIDENTIARY VALUE; THE DEFICIENCIES IN THE ORIGINAL SUBMISSION CANNOT BE CURED IN REPLY; FAILURE TO REGISTER AN APARTMENT WITH THE CITY DHCR AND INCREASING THE RENT DO NOT DEMONSTRATE A FRAUDULENT SCHEME TO DEREGULATE (FIRST DEPT). 8

ATTORNEYS, DISQUALIFICATION. 10

PLAINTIFF’S COUNSEL SHOULD NOT HAVE BEEN DISQUALIFIED; HER TESTIMONY ABOUT HER ALLEGED CONDUCT AT THE INDEPENDENT MEDICAL EXAMINATION (IME) WOULD HAVE BEEN CUMULATIVE AND DEFENDANTS COULD NOT SHOW THE IME WAS COMPROMISED IN ANY WAY (FIRST DEPT). 10

ATTORNEYS, PROOF OF REPRESENTATION. 11

DEFENDANT DEMONSTRATED HE WAS NOT REPRESENTED BY THE ATTORNEY WHO PURPORTED TO WAIVE SERVICE OF PROCEES AND PERSONAL JURISDICTION DEFENSES ON BEHALF OF ALL DEFENDANTS; TWO-JUSTICE DISSENT (FIRST DEPT). 11

CHILD VICTIMS ACT, CIVIL RIGHTS LAW, FAMILY LAW. 12

THE EXTENDED STATUTE OF LIMITATIONS IN THE CHILD VICTIMS ACT DOES NOT APPLY TO CIVIL RIGHTS CAUSES F ACTION PURSUANT TO 42 USC 1983; THE DUTY TO REPORT CHILD ABUSE UNDER THE SOCIAL SERVICES LAW APPLIES ONLY TO “PERSONS LEGALLY RESPONSIBLE” FOR THE CARE OF THE CHILD, WHICH DOES NOT INCLUDE TEACHERS (THIRD DEPT). 12

CHILD VICTIMS ACT, COURT OF CLAIMS. 13

ALTHOUGH THE REQUIREMENTS FOR THE CONTENTS OF A CLAIM AGAINST THE STATE IN COURT OF CLAIMS ACT SECTION 11 ARE STRICT AND JURISDICTIONAL, THE CLAIMANT IS NOT REQUIRED TO ALLEGE EVIDENTIARY FACTS (SECOND DEPT). 13

CORPORATION LAW, INFORMAL APPEARANCE. 14

ALTHOUGH DEFENDANT CORPORATION WAS NOT SERVED WITH THE SUMMONS AND COMPLAINT, THE CORPORATE DEFENDANT “APPEARED INFORMALLY” THROUGH THE CEO’S AFFIDAVIT; PLAINTIFFS WERE ENTITLED TO A DEFAULT JUDGMENT AGAINST THE CORPORATION (SECOND DEPT). 14

DEBTOR-CREDITOR, FOREIGN JUDGMENT. 15

PLAINTIFFS OBTAINED A NEW JERSEY DEFAULT JUDGMENT IN A BREACH OF CONTRACT ACTION AGAINST THREE DEFENDANTS WHO ARE JOINTLY AND SEVERALLY LIABLE; PLANTIFFS NEED ONLY SERVE ONE OF THE DEFENDANTS TO ENFORCE THE FOREIGN JUDGMENT AGAINST THAT DEFENDANT (SECOND DEPT). 15

DEBTOR-CREDITOR, PREJUDGMENT INTEREST. 16

THE AWARD OF PREJUDGMENT INTEREST IN A BREACH OF CONTRACT ACTION IS REQUIRED BY CPLR 5001; THE REQUEST FOR PREJUDGMENT INTEREST SHOULD NOT HAVE BEEN DENIED BASED ON A FIVE-YEAR DELAY IN BRINGING SUIT (THIRD DEPT). 16

DEBTOR-CREDITOR, FRAUD, ACCURAL OF CAUSE OF ACTION. 17

WHEN PURELY ECONOMIC INJURY IS ALLEGED, THE CAUSE OF ACTION ACCRUES WHERE THE PLAINTIFF RESIDES; HERE PLAINTIFF RESIDED IN FLORIDA AND, PURSUANT TO NEW YORK’S BORROWING STATUTE, THE FLORIDA STATUTE OF LIMITATIONS APPLIED, RENDERING THE FRAUDULENT-TRANSFER ACTION UNTIMELY (THIRD DEPT). 17

DISMISSAL FOR FAILURE TO STATE A CLAIM, RES JUDICATA. 18

A DISMISSAL FOR FAILURE TO STATE A CLAIM IS NOT ON THE MERITS AND HAS NO RES JUDICATA EFFECT (FIRST DEPT). 18

FAMILY LAW, JURISDICTION. 18

THE ORIGINAL CUSTODY ORDER WAS ISSUED IN NEW JERSEY, WHERE FATHER RESIDES; THE NEW YORK CUSTODY ORDER MUST BE REVERSED BECAUSE FAMILY COURT DID NOT COMMUNICATE WITH THE NEW JERSEY COURT AND NO FINDING WAS MADE ON WHETHER NEW JERSEY HAD RELINQUISHED EXCLUSIVE JURISDICTION OR WHETHER NEW YORK WAS A MORE CONVENIENT FORUM; MATTER REMITTED (THIRD DEPT). 18

HYBRID ARTICLE 78 AND DECLARATORY JUDGMENT, JUDGES. 19

IN A HYBRID PROCEEDING SEEKING REVIEW UNDER CPLR ARTICLE 78 AND SEEKING A DECLARATORY JUDGMENT AND DAMAGES, A MOTION FOR SUMMARY JUDGMENT MUST BE MADE FOR BOTH; HERE THERE WAS NO MOTION TO DISMISS THE DECLARATORY JUDGMENT AND DAMAGES CAUSES OF ACTION; MATTER REMITTED (SECOND DEPT). 19

JUDGES, SANCTIONS FOR SPOLIATION OF EVIDENCE. 20

THE SPOLIATION OF EVIDENCE AFFECTED ONLY THE COUNTERCLAIMS, STRIKING THE ENTIRE ANSWER AND COUNTERCLAIMS WAS TOO SEVERE A SANCTION (FIRST DEPT). 20

LONG-ARM JURISDICTION, CHILD VICTIMS ACT. 21

NEW YORK HAS LONG-ARM JURISDICTION OVER A SINGLE ALLEGED ACT OF SEXUAL ABUSE WHICH OCCURRED IN NEW YORK IN 1975 OR 1976 WHEN PLAINTIFF WAS ON A FIELD TRIP; THE ACTION WAS BROUGHT BY A CONNECTICUT RESIDENT AGAINST A CONNECTICUT DEFENDANT AND ALLEGED SEVERAL OTHER ACTS OF ABUSE WHICH TOOK PLACE IN CONNECTICUT; BECAUSE THE ALLEGED TORT TOOK PLACE IN NEW YORK, THE CONNECTICUT PLAINTIFF CAN TAKE ADVANTAGE OF THE EXTENDED STATUTE OF LIMITATIONS IN NEW YORK’S CHILD VICTIMS ACT (SECOND DEPT). 21

MOTION TO INTERVENE, JUDGES. 22

ALTHOUGH THE COURT DID NOT HAVE THE POWER TO GRANT THE MOTION TO INTERVENE BECAUSE THE PROPOSED ANSWER WAS NOT INCLUDED IN THE PAPERS, A THRESHOLD SHOWING INTERVENTION WAS WARRANTED WAS MADE AND THE DENIAL SHOULD HAVE BEEN “WITH LEAVE TO RENEW” (SECOND DEPT). 22

OUT-OF-STATE AFFIDAVITS. 23

THE ABSENCE OF A CERTIFICATE OF CONFORMITY FOR AN OUT-OF-STATE AFFIDAVIT OF SERVICE WAS A MERELY TECHNICAL DEFECT WHICH DID NOT PREVENT THE COURT FROM CONSIDERING THE AFFIDAVIT (FIRST DEPT). 23

STANDING, FORECLOSURE. 24

THE BANK DID NOT DEMONSTATE IT HAD STANDING TO FORECLOSE BECAUSE IT DID NOT ADEQUATELY EXPLAIN HOW IT CAME INTO POSSESSION OF THE NOTE (THIRD DEPT). 24

TOXIC TORTS, MARITIME LAW, FEDERAL EMPLOYERS’ LIABILITY ACT (FELA), TRUSTS AND ESTATES. 25

UNDER THE JONES ACT OHIO HAD JURISDICTION TO APPOINT ADMINSTRATORS OF THE ESTATE OF DECEDENT WHO ALLEGEDLY DIED OF EXPOSURE TO ASBESTOS ON MERCHANT MARINE SHIPS; THE NEW YORK EXECUTOR OF THE ESTATE WAS TIMELY AND PROPERLY SUBSTITUTED FOR THE OHIO ADMINISTRATORS (FIRST DEPT). 25

TRUSTS AND ESTATES, AUTHORITY TO REPRESENT ESTATE. 26

THE PLAINTIFFS IN THIS SUIT AMONG BROTHERS ABOUT THE FATHER’S ESTATE DID NOT HAVE THE AUTHORITY TO ACT ON BEHALF OF THE ESTATE OR TO SUE AS BENEFICIARIES OF THE ESTATE; THE ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT). 26

VACATE DEFAULT, FORECLOSURE, ATTORNEYS. 27

PLAINTIFF FAILED TO SHOW UP FOR THE SETTLEMENT CONFERENCE IN THIS FORECLOSURE ACTION AND A DEFAULT JUDGMENT WAS GRANTED; IN MOVING TO VACATE THE DEFAULT, PLAINTIFF DID NOT PRESENT SUFFICIENT PROOF OF LAW OFFICE FAILURE AND DID NOT EXPLAIN ITS DELAY IN SEEKING TO VACATE THE DEFAULT JUDGMENT (SECOND DEPT). 27

 

MAY 2023 CIVIL PROCEDURE REVERSAL REPORT

ARTICLE 78, ADMINISTRATIVE LAW, FREEDOM OF INFORMATION LAW (FOIL). 3

THE COUNTY’S FAILURE TO RESPOND TO PETITIONER’S FOIL REQUEST WITHIN FIVE DAYS IS A DENIAL; THE COUNTY’S FAILURE TO NOTIFY PETITIONER OF THE AVAILABILITY OF AN ADMINISTRATIVE REVIEW OF THE DENIAL EXCUSED PETITIONER’S FAILURE TO SEEK ADMINSTRATIVE REVIEW; PETITIONER’S ARTICLE 78 ACTION SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (SECOND DEPT). 3

ARTICLE 78. 4

SETTING A RETURN DATE LESS THAN 20 DAYS FROM THE DATE OF SERVICE OF THE ARTICLE 78 PETITION WAS NOT, UNDER THE FACTS, A JURISDICTIONAL DEFECT; THE PETITION SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT). 4

COMPLAINTS, ANSWERS, VERIFICATION BY ATTORNEY. 6

ANSWER OR A COMPLAINT VERIFIED BY AN ATTORNEY DOES NOT PROVE THE CONTENTS (SECOND DEPT). 6

COMPLAINTS, INFLAMMATORY LANGUAGE, CHILD VICTIMS ACT. 6

IN THIS CHILD VICTIMS ACT ACTION, THE JUDGE CORRECTLY STRUCK INFLAMMATORY LANGUAGE FROM THE COMPLAINT BUT SHOULD NOT HAVE SEALED THE COMPLAINT WITHOUT MAKING WRITTEN FINDINGS (FOURTH DEPT). 6

COMPLAINTS, INFLAMMATORY LANGUAGE. 7

THE MOTION TO STRIKE INFLAMMATORY ALLEGATIONS FROM THE COMPLAINT SHOULD HAVE BEEN GRANTED; WHETHER EVIDENCE ASSOCIATED WITH THE ALLEGATIONS IS DISCOVERABLE OR ADMISSIBLE AT TRIAL IS NOT AFFECTED BY GRANTING THE MOTION TO STRIKE (FIRST DEPT). 7

CONSOLIDATION OF ACTIONS, NEGLIGENCE, TRAFFIC ACCIDENTS. 8

WHERE, AS HERE, A PARTY IS A DEFENDANT IN ONE ACTION AND A PLAINTIFF IN ANOTHER ACTION, BOTH OF WHICH STEM FROM THE SAME TRAFFIC ACCIDENT, THE ACTIONS SHOULD BE CONSOLIDATED (SECOND DEPT). 8

DEFAULT, ATTORNEYS, LAW OFFICE FAILURE. 9

THE MOTION TO VACATE THE DEFAULT ON LAW-OFFICE-FAILURE GROUNDS SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (FIRST DEPT). 9

DISCONTINUANCE, FORECLOSURE, STATUTE OF LIMITATIONS. 10

UNDER THE 2022 AMENDMENT TO CPLR 213, A BANK WHICH HAS STARTED A FORECLOSURE ACTION CANNOT STOP THE RUNNING OF THE STATUTE OF LIMITATIONS BY A VOLUNTARY DISCONTINUANCE; THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 (SECOND DEPT). 10

DISCONTINUANCE, STATUTE OF LIMITATIONS. 11

PLAINTIFF, ON THE DAY OF TRIAL, REQUESTED AND WAS GRANTED A DISCONTINUANCE WITHOUT PREJUDICE; PLAINTIFF COULD NOT TAKE ADVANTAGE OF THE SIX-MONTH EXTENSION OF THE STATUTE OF LIMITATIONS AFFORDED BY CPLR 205(A) (SECOND DEPT). 11

FORECLOSURE, FAILURE TO MOVE FOR DEFAULT. 12

THE BANK IN THIS FORECLOSURE ACTION DID NOT HAVE A REASONABLE EXCUSE FOR FAILING TO MOVE FOR A DEFAULT JUDGMENT WITHIN THE ONE-YEAR ALLOWED BY STATUTE; IT WAS AN ABUSE OF DISCRETION TO GRANT THE MOTION (SECOND DEPT). 12

FORECLOSURE, JUDGES, FAILURE TO APPEAR AT STATUS CONFERENCE. 14

THE JUDGE DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, DISMISS THE FORECLOSURE COMPLAINT FOR PLAINTIFF’S ALLEGED FAILURE TO APPEAR AT A STATUS CONFERENCE AND COMPLY WITH THE DIRECTIVE TO MOVE FOR AN ORDER OF REFERENCE BY A SPECIFIED DATE; PRECEDENT TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT). 14

HAGUE CONVENTION, FAMILY LAW, CUSTODY. 15

THE PROOF OF DOMESTIC VIOLENCE AT THE FORTHCOMING CUSTODY TRIAL SHOULD NOT HAVE BEEN LIMITED TO INCIDENTS OCCURRING AFTER THE HAGUE CONVENTION PROCEEDINGS IN CYPRUS (FIRST DEPT). 15

INCONVENIENT FORUM, FAMILY LAW. 16

FAMILY COURT PROPERLY DETERMINED NEW YORK WAS NOT THE APPROPRIATE FORUM IN THIS CUSTODY DISPUTE, BUT THE NEW YORK PROCEEDINGS SHOULD HAVE BEEN STAYED, NOT DISMISSED (SECOND DEPT). 16

JUDGES, SUA SPONTE GRANT OF RELIEF NOT REQUESTED. 17

THE JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED RELIEF NO PARTY REQUESTED (SECOND DEPT). 17

MOTION TO INTERVENE. 17

THE MOTION TO INTERVENE DID NOT HAVE THE PROPOSED PLEADING ATTACHED; THE MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 17

MOTION TO RENEW, SUBSTITUTION OF ADMINISTRATOR, TRUSTS AND ESTATES. 18

THE ADMINISTRATOR’S MOTION TO BE SUBSTITUED AS PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION, INITIALLY DENIED, SHOULD NOT HAVE BEEN GRANTED UPON THE MOTION TO RENEW; THE CRITERIA FOR A MOTION TO RENEW, AND A MOTION TO BE SUBSTITUTED FOR A DECEASED PARTY ARE EXPLAINED (SECOND DEPT). 18

NECESSARY PARTIES, FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), TRUSTS AND ESTATES. 19

THE ESTATE WAS A NECESSARY PARTY IN THE FORECLOSURE ACTION; THE COURT SHOULD DETERMINE WHETHER THE NECESSARY PARTY CAN BE SUMMONED AND, IF NOT, WHETHER THE ACTION CAN CONTINUE IN THE PARTY’S ABSENCE; THE FACT THAT THE STATUTE OF LIMITATIONS HAS RUN DOES NOT PRECLUDE SUMMONING THE NECESSARY PARTY (SECOND DEPT). 19

ORDER TO SHOW CAUSE, SERVICE OF PROCESS, ELECTION LAW. 21

AN ORDER TO EFFECT SERVICE OF PROCESS IN A MANNER WHICH CANNOT BE COMPLIED WITH PRECLUDES PERSONAL JURISDICTION; PETITIONER DID NOT PRESENT SUFFICIENT EVIDENCE OF ELECTION FRAUD (SECOND DEPT). 21

STANDING, FORECLOSURE, UNIFORM COMMERCIAL CODE. 22

THE BANK DID NOT PRESENT SUFFICIENT EVIDENCE OF STANDING TO FORECLOSE; THE ATTACHED TO THE NOTE; EVIDENCE FIRST OFFERED IN REPLY SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT). 22

 

JUNE 2023 CIVIL PROCEDURE REVERSAL REPORT

AMEND ANSWER. 3

DEFENDANT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN ALLOWED TO AMEND HIS ANSWER TO ASSERT A GRAVES AMENDMENT AFFIRMATIVE DEFENSE (AVAILABLE TO THE LESSOR OF A VEHICLE); PLAINTIFF WAS NOT PREJUDICED BY THE LATENESS OF THE MOTION (FIRST DEPT). 3

APPEALS, ORDERS ISSUED ON DEFAULT. 5

NO APPEAL LIES FROM AN ORDER ISSUED ON DEFAULT, A MOTION TO VACATE IS THE ONLY REMEDY; NO APPEAL LIES FROM AN ORDER ISSUED ON CONSENT (FIRST DEPT). 5

COURT OF CLAIMS, NOTICE OF CLAIM. 6

THE NOTICE OF CLAIM IN THIS CHILD VICTIMS ACT CASE SUFFICIENTLY ALLEGED CLAIMANT’S INJURY, DEFENDANT’S FAILURE TO PROTECT CLAIMANT WHILE IN FOSTER CARE AND THE TIME THE CLAIM AROSE (SECOND DEPT). 6

COURTROOM CLOSURE. 7

IN THIS DIVORCE PROCEEDING (1) THE HUSBAND’S REQUEST FOR CLOSURE OF THE COURTROOM SHOULD HAVE BEEN PUBLIC, NOT CONCEALED FROM THE PUBLIC IN EMAILS, AND (2), THE COURTROOM CLOSURE WAS IMPROPERLY BASED ON AN EXCEPTION TO THE PUBLIC-TRIAL REQUIREMENT WHICH IS NOT INCLUDED IN JUDICIARY LAW SECTION 4 (FIRST DEPT). 7

DECEASED PARTIES. 8

IN THIS SIDEWALK SLIP AND FALL CASE, THE DEFENDANT PROPERTY OWNERS HAD DIED AT THE TIME THE ACTION AGAINST THEM WAS COMMENCED; THAT ACTION WAS A NULLITY; THEREFORE THE MOTION TO AMEND THE COMPLAINT TO SUBSTITUTE THE EXECUTOR SHOULD HAVE BEEN DENIED (SECOND DEPT). 8

FORUM SELECTION CLAUSE, NONSIGNATORIES BOUND. 9

HERE THE CLOSE RELATIONSHIP BETWEEN THE NON-SIGNATORY AND THE PARTY TO THE AGREEMENT WARRANTED FINDING THAT THE NON-SIGNATORY WAS BOUND BY THE FORUM SELECTION CLAUSE IN THE AGREEMENT (FIRST DEPT). 9

MOTION TO INTERVENE. 10

THE MOTION TO INTERVENE DID NOT HAVE THE PROPOSED PLEADING ATTACHED; THE MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 10

MUNICIPAL LAW, NOTICE OF CLAIM, BILLS OF PARTICULARS. 10

PLAINTIFF’S DECEDENT WAS SHOT IN A DARK AREA OF DEFENDANT NEW YORK CITY HOUSING AUTHORITY’S (NYCHA’S) APARTMENT COMPLEX; THE NOTICE OF CLAIM ALLEGED THE LACK OF LIGHTING CONSTITUTED NEGLIGENT SECURITY; THE ADDITIONAL ALLEGATIONS OF SECURITY-RELATED NEGLIGENCE IN THE BILL OF PARTICULARS SHOULD HAVE BEEN STRUCK (SECOND DEPT). 10

NECESSARY PARTIES, ELECTION LAW. 12

THE VOTERS WHOSE ABSENTEE BALLOTS WERE CHALLENGED ON RESIDENCY GROUNDS ARE NECESSARY PARTIES WHO WERE NOT INCLUDED IN THIS PROCEEDING; THE ELECTION LAW PROCEDURES FOR CHALLENGING THE ABSENTEE BALLOTS WERE NOT FOLLOWED; MATTER REMITTED (THIRD DEPT). 12

RELATION-BACK DOCTRINE. 13

APPELLANT PHYSICIAN’S ASSISTANT HAD LEFT DEFENDANT-PRACTICE AT THE TIME THE MEDICAL MALPRACTICE ACTION WAS BROUGHT AGAINST THE PRACTICE; THE PLAINTIFFS DID NOT DEMONSTRATE APPELLANT HAD TIMELY NOTICE OF THE SUIT; THEREFORE THE RELATION-BACK DOCTRINE DID NOT SUPPORT THE MOTION TO ADD THE APPELLANT AS A DEFENDANT AFTER THE STATUTE OF LIMITATIONS HAD RUN (SECOND DEPT). 13

SERVICE OF PROCESS, EXTEND TIME TO SERVE. 14

PLAINTIFF-BANK’S MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT). 14

SERVICE OF PROCESS. 15

WHERE DEFENDANTS AVER SPECIFIC FACTS WHICH REBUT THE STATEMENTS IN THE PROCESS SERVER’S AFFIDAVIT, AN EVIDENTIARY HEARING ON WHETHER THE DEFENDANTS WERE SERVED WITH THE SUMMONS AND COMPLAINT IS REQUIRED (SECOND DEPT). 15

SETTLEMENT AGREEMENTS, EMAIL EXCHANGES. 16

THE EMAIL EXCHANGES BETWEEN ATTORNEYS DID NOT CONSTITUTE A VALID SETTLEMENT AGREEMENT AND DID NOT MEET THE STATUTORY REQUIREMENTS OF A STIPULATION OF SETTLEMENT; THE DISSENTERS ARGUED THE EMAIL EXCHANGES EVINCED AN ENFORCEABLE AGREEMENT (THIRD DEPT). 16

SPOLIATION, SURGERY. 17

SURGERY, EVEN AFTER A DEFENSE REQUEST FOR A PRE-SURGERY PHYSICAL EXAM, IS NOT SPOLIATION OF EVIDENCE AND DOES NOT WARRANT SANCTIONS (SECOND DEPT). 17

STANDING, FORECLOSURE, UNIFORM COMMERCIAL CODE. 18

THE BANK DID NOT DEMONSTRATE IT HAD STANDING TO FORECLOSE; THERE WAS INSUFFICIENT PROOF THE ALLONGE WAS FIRMLY AFFIXED TO THE NOTE AS REQUIRED BY UCC 3-202 (SECOND DEPT). 18

STATUTE OF LIMITATIONS, BORROWING STATUTE, DEBTOR-CREDITOR, FRAUD. 19

THE FRAUDULENT-CONVEYANCE CAUSES OF ACTION INVOLVED CONNECTICUT PROPERTIES AND WERE TIME-BARRED IN CONNECTICUT; NEW YORK’S BORROWING STATUTE RENDERED THE ACTIONS TIME-BARRED IN NEW YORK (FIRST DEPT). 19

STATUTE OF LIMITATIONS, DECLARATORY JUDGMENT. 20

THE APPLICABLE STATUTES OF LIMITATIONS FOR DECLARATORY-JUDGMENT CAUSES OF ACTION DEPEND ON THE NATURE OF THE UNDERLYING ALLEGATIONS; HERE THE ALLEGATIONS SOUNDED IN FRAUD, UNJUST ENRICHMENT AND VIOLATIONS OF THE REAL PROPERTY LAW; ALL WERE TIME-BARRED (SECOND DEPT). 20

STATUTE OF LIMITATIONS, FORECLOSURE, VOLUNTARY DISCONTINUANCE. 21

UNDER THE 2022 FORECLOSURE ABUSE PREVENTION ACT BANKS CAN NO LONGER STOP THE RUNNING OF THE STATUTE OF LIMITATIONS BY VOLUNTARILY DISCONTINUING A FORECLOSURE ACTION (SECOND DEPT). 21

STIPULATIONS, FAMILY LAW. 22

AN ORAL STIPULATION IS INVALID PURSUANT TO DOMESTIC RELATIONS LAW SECION 236(B)(3) AND CANNOT BE RATIFIED; THERE IS NOW AN EVEN SPLIT AMONG THE APPELLATE DIVISION DEPARTMENTS ON THIS ISSUE (FOURTH DEPT). 22

SUMMARY JUDGMENT, POST NOTE OF ISSUE. 23

OUTSTANDING DISCOVERY CONSTITUTED GOOD CAUSE FOR A LATE (POST-NOTE-OF-ISSUE) MOTION FOR SUMMARY JUDGMENT; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION IN THIS LADDER-FALL CASE; DEFENDANTS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION (SECOND DEPT). 23

SUMMARY JUDGMENT, SUCCESSIVE MOTIONS, MOTION TO RENEW. 24

THE BANK’S SECOND MOTION IN THIS FORECLOSURE ACTION DID NOT MEET THE CRITERIA FOR A MOTION TO RENEW AND VIOLATED THE “SUCCESSIVE SUMMARY JUDGMENT MOTION” RULE (SECOND DEPT). 24

SUMMARY JUDGMENT. 25

A SUMMARY JUDGMENT MOTION BROUGHT BEFORE ISSUE IS JOINED IS PREMATURE AND SHOULD NOT BE CONSIDERED (THIRD DEPT). 25

VACATE NOTE OF ISSUE VERSUS MARKING A CASE OFF. 26

VACATING A NOTE OF ISSUE IS NOT THE SAME AS MARKING A CASE OFF PURSUANT TO CPLR 3404; WHEN A NOTE OF ISSUE IS VACATED, THE ACTION REVERTS TO A PRE-NOTE OF ISSUE STATUS AND CAN BE RESTORED TO THE ACTIVE CALENDAR WITHOUT MEETING THE STRINGENT CPLR 3404 REQUIREMENTS (SECOND DEPT). 26