Criminal Law Update April May June 2023

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

Appropriate for Experienced Attorneys

Areas of Professional Practice: 1.5 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 April, May and June, 2023 which address issues in “Criminal Law.”

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 (“Criminal Law Reversal Report April 2023,” “Criminal Law Reversal Report May 2023” and “Criminal Law 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 (“Criminal Law Reversal Report April 2023.” “Criminal Law Reversal Report May 2023” and “Criminal Law 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.

Criminal Law Reversal Report April 2023

Criminal Law Reversal Report May 2023

Criminal Law Reversal Report June 2023

Attorney Affirmation Criminal Law Update April May June 2023

Evaluation Survey Criminal Law Update April May June 2023

Topics Covered in the “Criminal Law Update 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 “Criminal Law Reversal Report April 2023,” “Criminal Law Reversal Report May 2023” and “Criminal Law Reversal Report June 2023”

 

APRIL 2023 CRIMINAL LAW REVERSAL REPORT

APPEALS, SENTENCING, POST RELEASE SUPERVISION, CONSTITUTIONAL LAW, PERSISTENT FELONY OFFENDER DESIGNATION. 3

WHEN DEFENDANT PLED GUILTY IN 2002 HE WAS NOT INFORMED OF THE PERIOD OF POST RELEASE SUPERVISION (PRS) AND HE DID NOT MOVE TO WITHDRAW THE PLEA IIN 2010 WHEN PRS WAS ADDED TO HIS SENTENCE; DEFENDANT DID NOT WAIVE HIS RIGHT TO CONTEST THE CONSTITUTIONALITY OF THE 2002 CONVICTION RE: A PERSISTENT FELONY OFFENDER DESIGNATION (FIRST DEPT). 3

APPEALS, WEIGHT OF THE EVIDENCE. 4

DEFENDANT’S BURGLARY CONVICTION WAS BASED SOLELY ON A SODA CAN WITH HIS DNA ON IT; THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT). 4

ASSAULT, DANGEROUS INSTRUMENT. 4

THE ASSAULT SECOND CONVICTION WAS REVERSED BECAUSE PROOF A BAMBOO STICK WAS A “DANGEROUS INSTRUMENT” WAS LEGALLY INSUFFICIENT; ASSAULT THIRD CONVICTION VACATED AS AN INCLUSORY CONCURRENT COUNT OF ASSAULT SECOND (SECOND DEPT). 4

FAMILY COURT, JUVENILES. 5

WHEN A JUVENILE PLEADS GUILTY TO AN OFFENSE FOR WHICH HE CANNOT BE HELD CRIMINALLY RESPONSIBLE, THE CONVICTION MUST BE VACATED AND DISMISSED (FIRST DEPT). 5

FAMILY OFFENSES, JUDGES. 7

THIS FAMILY OFFENSE PROCEEDING WAS REMITTED TO FAMILY COURT; APPELLATE REVIEW WAS NOT POSSIBLE IN THE ABSENCE OF FINDINGS OF FACT ADDRESSING CONFLICTING EVIDENCE AND THE CREDIBILITY OF WITNESSES (SECOND DEPT). 7

FAMILY OFFENSES. 8

THE EVIDENCE SUPPORTED HARASSMENT AS A FAMILY OFFENSE BUT DID NOT SUPPORT AGGRAVATED HARASSMENT OR DISORDERLY CONDUCT (FOURTH DEPT). 8

INCLUSORY CONCURRENT COUNTS. 9

THE MURDER SECOND DEGREE COUNTS MUST BE DISMISSED AS INCLUSORY CONCURRENT COUNTS OF MURDER FIRST DEGREE (THIRD DEPT). 9

JURORS, JUDGES. 9

THE JUDGE IMPROPERLY DISMISSED A JUROR WHEN SHE DIDN’T APPEAR WITHOUT MAKING AN INQUIRY; NEW TRIAL ORDERED (THIRD DEPT). 9

SENTENCING, JUDGES, CIVIL PROCEDURE, CONTRACT LAW. 10

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). 10

SENTENCING. 11

CONSECUTIVE SENTENCES SHOULD NOT HAVE BEEN IMPOSED RE: CERTAIN WEAPONS-POSSESSION COUNTS (THIRD DEPT). 11

SEX OFFENDER REGISTRATION ACT (SORA), APPEALS. 12

BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT AN ENUMERATED OFFENSE UNDER SORA, THEREFORE DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER; THE WAIVER OF APPEAL WAS INVALID (THIRD DEPT). 12

SEX OFFENDER REGISTRATION ACT (SORA), APPEALS. 13

DEFENDANT’S “PROMOTING A SEXUAL PERFORMANCE BY A CHILD” CONVICTION WAS REVERSED ON THE LAW; THE DEFENDANT CANNOT BE CLASSIFIED AS A “SEX OFFENDER” (FOURTH DEPT). 13

SEX OFFENDER REGISTRATION ACT (SORA), ATTORNEYS. 14

DEFENDANT’S ATTORNEY ESSENTIALLY FAILED TO TAKE ANY POSITION ON THE SORA RISK ASSESSMENT; NEW HEARING ORDERED (SECOND DEPT). 14

SEX OFFENDER REGISTRATION ACT (SORA), MENTAL HYGIENE LAW, CONSTITUTIONAL LAW. 15

THE PROVISION OF MENTAL HYGIENE LAW SECTION 10 THAT ALLOWS A COURT TO DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE PETITIONER, WHO HAD BEEN RELEASED TO A STRICT AND INTENSIVE SUPERVISION AND TREATEMENT (SIST) REGIMEN, IS A DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT IS NOT UNCONSTITUTIONAL (SECOND DEPT). 15

SEX OFFENDER REGISTRATION ACT (SORA). 16

A SEX OFFENDER MAY PETITION ANNUALLY FOR A MODIFICATION OF THE RISK LEVEL CLASSIFICATION; SUCH A PETITION IS NOT PRECLUDED BY PRIOR PETITIONS WITHIN A YEAR SEEKING OTHER RELIEF UNDER THE CORRECTION LAW (SECOND DEPT), 16

SEX OFFENDER REGISTRATION ACT (SORA). 17

BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT A REGISTRABLE OFFENSE UNDER SORA; THE JUDGMENT REQUIRING DEFENDANT TO REGISTER AS A SEX OFFENDER VACATED (THIRD DEPT). 17

SUPERIOR COURT INFORMATION, EXCEPTIONS. 18

THE SUPERIOR COURT INFORMATION (SCI) DID NOT AFFIRMATIVELY PLEAD THE EXCEPTION IN THE CRIMINAL MISCHIEF STATUTE; THEREFORE THE CRIMINAL MISCHIEF COUNT WAS JURISDICTIONALLY DEFECTIVE (THIRD DEPT). 18

SUPERIOR COURT INFORMATION. 19

A SUPERIOR COURT INFORMATION (SCI) FILED AFTER INDICTMENT IS A NULLITY (CT APP). 19
VACATE CONVICTION, NEWLY DISCOVERED EVIDENCE. 19

TEXT EXCHANGES WITH AND PHOTOGRAPHS OF THE RAPE AND SEXUAL-ABUSE VICTIM DELETED BY DEFENDANT

FROM HIS CELL PHONE AND SUBSEQUENTLY RECOVERED DO NOT CONSTITUTE “NEWLY DISCOVERED” EVIDENCE WHICH WILL SUPPORT A MOTION TO VACATE THE CONVICTION (CT APP). 19

WAIVER OF INDICTMENT. 20

THE RECORD DID NOT DEMONSTRATE THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT, A JURISDICTIONAL DEFECT (THIRD DEPT). 20

 

MAY 2023 CRIMINAL LAW REVERSAL REPORT

ASSAULT, EVIDENCE. 4

THE EVIDENCE OF PHYSICAL INJURY WAS SUFFICIENT TO SUPPORT THE ASSAULT SECOND CONVICTION (CT APP). 4

BRADY MATERIAL. 5

THE FACT THAT THE PEOPLE WERE HELPING THE COMPLAINANT PROCURE A U VISA WHICH WOULD ALLOW THE COMPLAINANT TO STAY IN THE US AND APPLY FOR PERMANENT RESIDENCE WAS BRADY MATERIAL WHICH SHOULD HAVE BEEN PROVIDED TO THE DEFENSE; U VISAS ARE AVAILABLE TO ALIENS WHO SUFFER ABUSE FROM CRIMINAL ACTIVITY; CONVICTIONS REVERSED AND INDICTMENTS DISMISSED (FIRST DEPT). 5

BURGLARY, EVIDENCE. 6

THE STORE MANAGER TOOK THE TWO CANS OF RED BULL DEFENDANT WAS CARRYING FROM HIM AND TOLD HIM TO LEAVE THE STORE; THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE BURGLARY CONVICTION; AN EXTENSIVE TWO-JUSTICE DISSENT ARGUED OTHERWISE (FIRST DEPT). 6

CIRCUMSTANTIAL EVIDENCE. 7

THE DEFENSE REQUEST FOR THE CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FIRST DEPT). 7

DEPRAVED INDIFFERENCE. 8

THE DEPRAVED INDIFFERENCE MURDER JURY INSTRUCTION DID NOT PROPERLY EXPLAIN THAT DEPRAVED INDIFFERENCE IS THE DEFENDANT’S MENTAL STATE AT THE TIME OF THE CRIME, NOT THE OBJECTIVE CIRCUMSTANCES UNDER WHICH THE HOMICIDE OCCURRED; APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE; WRIT OF CORAM NOBIS GRANTED AND NEW TRIAL ORDERED (THIRD DEPT). 8

FAMILY OFFENSES. 9

THE INDICTMENT COUNT CHARGING AGGRAVATED FAMILY OFFENSE DID NOT SPECIFY WHICH OF THE LISTED OFFENSES WAS THE BASIS OF THE CHARGE, RENDERING THE COUNT JURISDICTIONALLY DEFECTIVE (CT APP). 9

GRAND JURY, JUROR HAD FELONY CONVICTION. 10

ONE OF THE GRAND JURORS HAD A FELONY CONVICTION RENDERING THE GRAND JURY ILLEGALLY CONSTITUTED; THE INDICTMENT SHOULD HAVE BEEN DISMISSED; WHETHER THE DEFENDANT WAS PREJUDICED WAS IRRELEVANT (FOURTH DEPT). 10

IMPEACHMENT. 12

THE WITNESS’S TRIAL TESTIMONY THAT HE DID NOT SEE THE PERPETRATOR’S FACE AND DID NOT SEE THE DEFENDANT FIRE A GUN MERELY FAILED TO CORROBORATE OR BOLSTER THE PEOPLE’S CASE, IT DID NOT CONTRADICT OR DISPROVE ANY EVIDENCE; THEREFORE THE PROSECUTOR SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THE WITNESS (SECOND DEPT). 12

INDICTMENTS. 12

THE INDICTMENT DID NOT GIVE ADEQUATE NOTICE OF THE PARTICULAR CRIME WITH WHICH DEFENDANT WAS CHARGED (FIRST DEPT). 12

JURY NOTES. 13

WHERE A JURY NOTE DOES NOT UNAMBIGUOUSLY DESCRIBE A REQUESTED EXHIBIT, THE NOTE MUST BE READ OR SHOWN TO THE PARTIES AND THE PARTIES MUST BE ALLOWED INPUT RE: THE PROPER RESPONSE; HERE THE JUDGE DID NOT FOLLOW THAT PROCEDURE AND THE CONVICTIONS WERE REVERSED (FIRST DEPT). 13

JURY NOTES. 14

WHERE A JURY NOTE DOES NOT UNAMBIGUOUSLY DESCRIBE A REQUESTED EXHIBIT, THE NOTE MUST BE READ OR SHOWN TO THE PARTIES AND THE PARTIES MUST BE ALLOWED INPUT RE: THE PROPER RESPONSE; HERE THE JUDGE DID NOT FOLLOW THAT PROCEDURE AND THE CONVICTIONS WERE REVERSED (FIRST DEPT). 14

JUSTIFICATION DEFENSE. 15

THE DEFENDANT TESTIFED THE VICTIM WAS ON TOP OF HIM REPEATEDLY STRIKING HIM IN THE HEAD WHEN HE PULLED OUT HIS FIREARM AND SHOT THE VICTIM; EVEN IF DEFENDANT’S VERSION WAS DEEMED UNLIKELY, THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE; NEW TRIAL ORDERED (FOURTH DEPT). 15

JUSTIFICATION DEFENSE. 16

THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; THE FACT THAT THE VICTIM WAS SHOT IN THE BACK DURING A SHOOTOUT WAS NOT ENOUGH (FIRST DEPT). 16

PAROLEES, SEARCHES. 17

PAROLEES DO NOT SURRENDER THEIR CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES; HERE THE SEARCH BY PAROLE OFFICERS WAS BASED UPON A TIP FROM DEFENDANT’S MOTHER; THE SEARCH WAS DEEMED SUBSTANTIALLY RELATED TO THE PAROLE OFFICERS’ DUTIES; THERE WAS A DISSENT (THIRD DEPT). 17

POSSESSION OF A WEAPON, CONSTITUTIONAL LAW. 18

THE DEFENDANT ARGUED A 2022 US SUPREME COURT RULING FINDING NEW YORK’S FIREARM LICENSING REQUIREMENT UNCONSITUTIONAL RENDERED THE POSSESSION-OF-A-WEAPON STATUTE TO WHICH HE PLED GUILTY IN 2016 UNCONSTITUTIONAL; THE ISSUE WAS NOT PRESERVED BECAUSE IT WAS NOT RAISED IN THE TRIAL COURT IN 2016 (FIRST DEPT). 18

PUBLIC TRIAL. 20

THE JUDGE CLOSED THIS MURDER TRIAL TO THE PUBLIC CITING “INTIMIDATION” BY SPECTATORS AND THE POSTING OF A PHOTO OF THE TRIAL ON INSTAGRAM; THE SPARSE RECORD DID NOT SUPPORT CLOSING THE COURTROOM, NEW TRIAL ORDERED (CT APP). 20

PUBLIC TRIAL. 21

THE JUDGE’S POLICY OF NOT LETTING MEMBERS OF THE PUBLIC INTO THE COURTROOM DURING TESTIMONY HAD THE UNINTENDED EFFECT OF EXCLUDING MEMBERS OF THE PUBLIC FROM PORTIONS OF THE TRIAL; NEW TRIAL ORDERED (CT APP) 21

SENTENCING, VIRTUAL. 22

DEFENDANT WAS SENTENCED VIRTUALLY AND DID NOT WAIVE HIS RIGHT TO BE PRESENT; RESENTENCING ORDERED (FIRST DEPT). 22

SENTENCING. 22

A SENTENCE CANNOT BE ALTERED AFTER THE DEFENDANT HAS BEGUN SERVING IT; HERE THE AMENDED UNIFORM SENTENCE AND COMMITMENT FORM DID NOT MERELY CORRECT AN INADVERTENT MISTAKE, IT ALTERED THE SENTENCE AND WAS THEREFORE INVALID (SECOND DEPT). 22

SENTENCING. 23

DEFENDANT IN THIS MANSLAUGHTER CASE WAS THE VICTIM OF DOMESTIC VIOLENCE AND SHOULD HAVE BEEN SENTENCED UNDER THE ALTERNATIVE SENTENCING SCHEME IN THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (FOURTH DEPT). 23

SENTENCING. 24

THE CONVICTION UPON WHICH DEFENDANT’S SECOND-FELONY-OFFENDER STATUS WAS BASED WAS MORE THAN 10 YEARS BEFORE THE CURRENT OFFENSE AND THE PEOPLE DID NOT DEMONSTRATE THAT ANY PORTION OF THE 10-YEAR PERIOD WAS TOLLED BY INCARCERATION; SENTENCE VACATED AND MATTER REMITTED FOR A HEARING AND RESENTENCING (THIRD DEPT). 24

SEX OFFENDER REGISTRATION ACT (SORA). 25

DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO A LEVEL ONE BECAUSE HE HAD BEEN AT LIBERTY FOR 17 YEARS WITHOUT REOFFENDING (SECOND DEPT). 25

SEX OFFENDER REGISTRATION ACT (SORA). 26

EVEN THOUGH THE NUMBER OF POINTS WAS REDUCED BY THE CHANGE IN THE FACTUAL BASIS FOR THE RISK ASSESSMENT FROM “ARMED WITH A DANGEROUS INSTRUMENT” (RECOMMENDED BY THE BOARD) TO “INFLICTED PERSONAL INJURY,” DEFENDANT WAS ENTITLED TO 10 DAYS NOTICE OF THE CHANGE (SECOND DEPT). 26

SEX OFFENDER REGISTRATION ACT (SORA). 27

EVEN THOUGH THE NUMBER OF POINTS WAS REDUCED BY THE CHANGE IN THE FACTUAL BASIS FOR THE RISK ASSESSMENT FROM “ARMED WITH A DANGEROUS INSTRUMENT” (RECOMMENDED BY THE BOARD) TO “INFLICTED PERSONAL INJURY,” DEFENDANT WAS ENTITLED TO 10 DAYS NOTICE OF THE CHANGE (SECOND DEPT). 27

SIROIS HEARING. 28

THE DEFENDANT WAS ENTITLED TO A SIROIS HEARING ON WHETHER HE PROCURED THE VICTIM’S REFUSAL TO TESTIFY; CONVICTION REVERSED (THIRD DEPT). 28

SPEEDY TRIAL, COVID TOLLS. 29

THE EXECUTIVE-ORDER COVID TOLLS APPLY TO THE SPEEDY TRIAL STATUTE, RENDERING THE INDICTMENT OF THE DEFENDANT TIMELY (SECOND DEPT). 29

SPEEDY TRIAL, COVID. 30

THE ORDER SUSPENDING THE SPEEDY TRIAL STATUTE DURING COVID APPLIED HERE; DEFENDANT’S SPEEDY-TRIAL MOTION TO DISMISS THE INDICTMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 30

SPEEDY TRIAL. 31

HERE THE NEW STATUTE REQUIRING THE PEOPLE TO FILE AND SERVE A CERTIFICATE OF COMPLIANCE WITH DISCOVERY OBLIGATIONS WENT INTO EFFECT AFTER THE PEOPLE HAD ANNOUNCED READINESS FOR TRIAL; THE STATUTE RETURNED THE PEOPLE TO A STATE OF UNREADINESS; DEFENDANT’S MOTION TO DISMISS ON SPEEDY-TRIAL GROUNDS SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 31

STREET STOPS. 32

THE DEFENDANT’S ACTIONS OBSERVED BY THE POLICE OFFICERS IN THIS STREET STOP DID NOT MEET THE “REASONABLE SUSPICION DEFENDANT HAD COMMITTED A CRIME OR WAS IN POSSESSION OF A WEAPON” STANDARD; THE FRISK WAS THEREFORE ILLEGAL AND THE SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED (CT APP). 32

TRAFFIC STOPS, SEARCHES AND SEIZURES. 33

THE TRAFFIC STOP WAS VALID, BUT THE POLICE OFFICERS SAW NOTHING TO INDICATE A WEAPON WAS IN THE CAR; THE SEARCH OF THE CAR AND SEIZURE OF A WEAPON FROM AN OPEN PURSE IN THE BACK SEAT WAS ILLEGAL (FIRST DEPT). 33

 

JUNE 2023 CRIMINAL LAW REVERSAL REPORT 

APPEALS, INVALID WAIVER. 4

THE WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE STATED THE WAIVER WAS AN ABSOLUTE BAR TO AN APPEAL (FOURTH DEPT). 4

ASSAULT, SUBWAY TRACKS AS DANGEROUS INSTRUMENT. 4

THE PROOF THAT THE SUBWAY TRACKS WERE USED AS A DANGEROUS INSTRUMENT WAS LEGALLY INSUFFICIENT; DEFENDANT’S ASSAULT SECOND CONVICTION VACATED (FIRST DEPT). 4

ATTORNEYS, DEFENDANT CLAIMED ASSIGNED COUNSEL WAS PAID BY FAMILY. 5

THE JUDGE SHOULD HAVE INQUIRED INTO DEFENDANT’S ALLEGATION HIS ASSIGNED COUNSEL WAS BEING PAID BY HIS FAMILY; NEW TRIAL ORDERED (FOURTH DEPT). 5

GUILTY PLEA INVALID. 6

FAILURE TO INFORM THE DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION TO BE IMPOSED OR THE MAXIMUM POTENTIAL PERIOD OF POSTRELEASE SUPERVISION RENDERED THE GUILTY PLEA INVALID (SECOND DEPT). 6

INCLUSORY CONCURRENT COUNTS. 7

THE INCLUSORY CONCURRENT COUNTS MUST BE DISMISSED AND THE RELATED SENTENCES VACATED (THIRD DEPT). 7

JUDGES, APPEARANCE OF AN ADVOCATE. 7

THE TRIAL JUDGE TOOK ON THE APPEARANCE OF AN ADVOCATE FOR THE PROSECUTION IN QUESTIONING WITNESSES; ROBBERY CONVICTION REVERSED (SECOND DEPT). 7

JURORS, FOR CAUSE CHALLENGES. 8

THE FOR CAUSE CHALLENGES TO TWO JURORS WHO SAID THEY WOULD TEND TO BELIEVE THE TESTIMONY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FOURTH DEPT). 8

JUSTIFICATION DEFENSE. 9

THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; THE FACT THAT THE VICTIM WAS SHOT IN THE BACK DURING A SHOOTOUT WAS NOT ENOUGH (FIRST DEPT). 9

JUSTIFICATION DEFENSE. 10

THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; THE FACT THAT THE VICTIM WAS SHOT IN THE BACK DURING A SHOOTOUT WAS NOT ENOUGH (FIRST DEPT). 10

JUVENILE DELINQUENCY, PARKER WARNINGS. 11

RESPONDENT JUVENILE WAS NOT INFORMED THE FACT FINDING HEARING IN THIS JUVENILE DELINQUENCY PROCEEDING WOULD GO FORWARD IN HIS ABSENCE (THE PARKER WARNING); THEREFORE RESPONDENT DID NOT WAIVE THE RIGHT TO BE PRESENT AND THE ADJUDICATION WAS REVERSED BECAUSE OF HIS ABSENCE (FOURTH DEPT). 11

PAROLE WARRANT CHALLENGED. 12

DEFENDANT CHALLENGED THE VALIDITY OF THE PAROLE WARRANT WHICH WAS THE BASIS OF THE ENTRY INTO HIS HOME (THE PAYTON ISSUE); THE JUDGE SHOULD HAVE HELD A HEARING TO DETERMINE THE VALIDITY OF THE PAROLE WARRANT (FOURTH DEPT). 12

PRO SE INQUIRY INADEQUATE. 14

THE JUDGE DID NOT CONDUCT THE REQUIRED “SEARCHING INQUIRY” BEFORE ALLOWING DEFENDANT TO PROCEED PRO SE; NEW TRIAL ORDERED (CT APP). 14

PROSECUTORIAL MISCONDUCT. 14

IN THIS MURDER TRIAL, THE PROSECUTOR REPEATEDLY BROUGHT UP UNCHARGED CRIMES WHICH WERE NOT MENTIONED IN THE PRETRIAL SANDOVAL PROCEEDINGS; THE JUDGE DID NOT INTERVENE; THE DEFENSE DID NOT OBJECT; CONVICTIONS REVERSED (THIRD DEPT). 14

SANDOVAL. 16

PRECEDENT DID NOT REQUIRE THE TRIAL JUDGE TO ADMIT, UNDER SANDOVAL, EVIDENCE OF A PRIOR CONVICTION SIMILAR TO THE OFFENSE ON TRIAL; RATHER THAT PRECEDENT ONLY HELD EVIDENCE OF A PRIOR CONVICTION SHOULD NOT BE EXCLUDED SOLELY BASED ON SIMILARITY; THE PREJUDICE VERSUS PROBATIVE-VALUE ANALYSIS SHOULD STILL BE APPLIED (FOURTH DEPT). 16

SECOND FELONY ADJUDICATION, FOREIGN CONVICTION. 17

THE WASHINGTON DC ATTEMPT TO COMMIT ROBBERY CONVICTION COULD NOT BE THE BASIS OF A SECOND FELONY OFFENDER ADJUDICATION IN NEW YORK (SECOND DEPT). 17

SEX OFFENDER REGISTRATION ACT (SORA), CONSTITUTIONAL LAW. 18

THE STATUTE PROHIBITING SEX OFFENDERS FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS AS APPLIED TO SEX OFFENDERS CONVICTED BEFORE THE STATUTE WENT INTO EFFECT DOES NOT VIOLATE THE EX POST FACTO CLAUSE; HERE PETITIONER WAS INCARCERATED PAST HIS PAROLE DATE BECAUSE HOUSING WHICH COMPLIED WITH THE SCHOOL GROUNDS LAW COULD NOT BE FOUND (CT APP). 18

SEX OFFENDER REGISTRATION ACT (SORA). 19

DEFENDANT’S POSITIVE PERFORMANCE IN THE PRISON SEX OFFENDER TREATMENT AND EDUCATIONAL PROGRAMS, GIVEN THE SERIOUSNESS OF HIS OFFENSES, DID NOT WARRANT A DOWNWARD DEPARTURE FROM LEVEL THREE TO LEVEL TWO; TWO-JUDGE DISSENT (CT APP). 19

SEX OFFENDER REGISTRATION ACT (SORA). 20

DEFENDANT’S POSITIVE PERFORMANCE IN THE PRISON SEX OFFENDER TREATMENT AND EDUCATIONAL PROGRAMS, GIVEN THE SERIOUSNESS OF HIS OFFENSES, DID NOT WARRANT A DOWNWARD DEPARTURE FROM LEVEL THREE TO LEVEL TWO; TWO-JUDGE DISSENT (CT APP). 20

SEX OFFENDER REGISTRATION ACT (SORA). 21

EVEN THOUGH THE SORA RISK LEVEL CAME OUT THE SAME (115 POINTS), THE JUDGE SHOULD NOT HAVE FIRST REMOVED 15 POINTS WHICH WERE BASED ON AN INAPPLICABLE RISK FACTOR AND THEN ADDED 15 POINTS BASED ON A RISK FACTOR NOT INCLUDED IN THE RISK ASSESSMENT; THAT CONSTITUTED AN UPWARD DEPARTURE WITHOUT NOTICE (CT APP). 21

SEX OFFENDER REGISTRATION ACT (SORA). 22

ONCE THE APPELLATE DIVISION DETERMINED A SORA RISK FACTOR DID NOT APPLY, BRINGING DEFENDANT’S RISK ASSESSMENT FROM A LEVEL THREE TO A LEVEL TWO, THE APPELLATE COURT HAD THE AUTHORITY TO REMIT THE MATTER TO COUNTY COURT TO CONSIDER, FOR THE FIRST TIME, WHETHER AN UPWARD DEPARTURE WAS WARRANTED (CT APP). 22

SEX OFFENDER REGISTRATION ACT (SORA). 24

THE STATUTE PROHIBITING SEX OFFENDERS ON PAROLE FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS APPLIES TO YOUTHFUL OFFENDERS (CT APP). 24

SEX OFFENDER REGISTRATION ACT (SORA). 25

THE STATUTE PROHIBITING SEX OFFENDERS FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS AS APPLIED TO SEX OFFENDERS CONVICTED BEFORE THE STATUTE WENT INTO EFFECT DOES NOT VIOLATE THE EX POST FACTO CLAUSE; HERE PETITIONER WAS INCARCERATED PAST HIS PAROLE DATE BECAUSE HOUSING WHICH COMPLIED WITH THE SCHOOL GROUNDS LAW COULD NOT BE FOUND (CT APP). 25

SEX OFFENDER REGISTRATION ACT (SORA). 26

THE STATUTE PROHIBITING SEX OFFENDERS ON PAROLE FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS APPLIES TO YOUTHFUL OFFENDERS (CT APP). 26

STREET STOPS, REASONABLE SUSPICION. 27

ALTHOUGH DEFENDANT’S GRABBING AT HIS WAISTBAND AND RUNNING DID NOT PROVIDE REASONABLE SUSPICION, THE MAJORITY HELD DEFENDANT’S STOPPING HIS CAR IN THE STREET AND AGGRESSIVELY APPROACHING A WOMAN IN ANOTHER CAR PROVIDED REASONABLE SUSPICION; THE DISSENT DISAGREED (FOURTH DEPT). 27

STREET STOPS, SUPPRESSION, LEGALITY OF POLICE CONDUCT. 28

THE PEOPLE DID NOT DEMONSTRATE THE DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY WALKING IN THE MIDDLE OF THE STREET AT THE TIME OF THE STREET STOP; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE POLICE CONDUCT AND THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 28

STUN BELT ON DEFENDANT DURING TRIAL. 30

DEFENDANT WAS WEARING A STUN BELT DURING THE TRIAL WITHOUT THE JUDGE’S OR PROSECUTOR’S KNOWLEDGE; THE MAJORITY HELD THIS WAS NOT A MODE OF PROCEEDINGS ERROR; A TWO-JUDGE DISSENT DISAGREED (CT APP). 30

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

 

Personal Injury Update 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 in June 2023 which address issues in “Personal Injury.”

The “Personal Injury” 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. A Link to the written materials for this course (“Personal Injury Reversal Report June 2023” 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 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 (“Personal Injury 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.

Personal Injury Reversal Report June 2023

Attorney Affirmation Personal Injury June 2023

Evaluation Survey Personal Injury Update June 2023

Topics Covered in the “Personal Injury Update 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 “Personal Injury Reversal Report June 2023”

 

JUNE 2023 PERSONAL INJURY REVERSAL REPORT

ASSUMPTION OF THE RISK. 5

PLAINTIFF, AN EXPERIENCED MOTOCROSS RIDER, ASSUMED THE RISK OF LOSING CONTROL OF HIS BIKE UPON LANDING AFTER A JUMP; PLAINTIFF WAS AWARE THAT SOME ASPECT OF THE LANDING AREA CAUSED HIM TO LOSE CONTROL OF THE BIKE ON A PRIOR PRACTICE RUN BUT DID NOT INVESTIGATE (THIRD DEPT). 5

ATTORNEYS, FAILURE TO PROVIDE MEDICAL RECORDS TO THE COURT. 6

PLAINTIFFS’ ATTORNEY FAILED TO SUBMIT MEDICAL RECORDS REQUESTED BY THE JUDGE FOR MORE THAN A YEAR AFTER THE INQUEST; THE APPLICATION FOR DAMAGES SHOULD NOT HAVE BEEN DENIED ON THAT GROUND; PLAINTIFFS SHOULD NOT BE PENALIZED FOR THE NEGLECT OF THEIR ATTORNEY (SECOND DEPT). 6

BATTERY, EMPLOYMENT LAW, DISCOVERY. 7

PLAINTIFF NURSE WAS ASSAULTED BY A PATIENT IN DEFENDANT’S HOSPITAL; SHE WAS ENTITLED TO DISCOVERY OF ANY NON-PRIVILEGED INFORMATION ABOUT THE PATIENT’S AGGRESSIVE BEHAVIOR IN HIS MEDICAL RECORDS (SECOND DEPT). 7

CHILD VICTIMS ACT, FOSTER CARE. 8

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). 8

DOG BITE. 9

IN THIS DOG-BITE CASE, DEFENDANT DEMONSTRATED SHE WAS NOT AWARE OF HER DOG’S VICIOUS PROPENSITIES; PLAINTIFF’S ALLEGATIONS IN RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DID NOT RAISE A QUESTION OF FACT ON THAT ISSUE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (THIRD DEPT). 9

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, VICARIOUS LIABILITY. 10

ALTHOUGH THE CORRECTIONS OFFICERS CONDUCTING A STRIP SEARCH OF CLAIMANT PRISONER WERE PARTIALLY MOTIVATED BY THE INTENT TO HUMILIATE, THEY WERE DEEMED TO BE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT AND THE STATE IS VICARIOUSLY LIABLE FOR THEIR INTENTIONAL TORTS (THIRD DEPT). 10

LABOR LAW-CONSTRUCTION LAW. 11

EVIDENCE THAT THE LADDER TILTED CAUSING PLAINTIFF TO JUMP OFF WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT). 11

LABOR LAW-CONSTRUCTION LAW. 12

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). 12

LABOR LAW-CONSTRUCTION LAW. 14

REMOVING SCAFFOLDS, LADDERS, ETC. FROM THE WORKSITE WAS “ANCILLARY” TO THE RENOVATION WORK AND THEREFORE PROTECTED BY LABOR LAW 240(1); THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S FALLING OFF THE TOP OF THE VAN WHERE HE WAS LOADING THE EQUIPMENT WAS COVERED BY LABOR LAW 240(1) (SECOND DEPT). 14

LABOR LAW-CONSTRUCTION LAW. 15

TRIPPING OVER A GAP BETWEEN THE TOP STEP OF A STAIRCASE AND THE LANDING IS NOT A GRAVITY-RELATED INCIDENT COVERED BY LABOR LAW 240(1); RE: LABOR LAW 241(6), THE INDUSTRIAL CODE PROVISION REQUIRING COVERS OVER HAZARDOUS OPENINGS APPLIES ONLY TO OPENINGS A WORKER CAN COMPLETELLY FALL THROUGH (SECOND DEPT). 15

MEDICAL MALPRACTICE. 16

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). 16

MEDICAL MALPRACTICE. 17

CONFLICTING EXPERT OPINIONS PRECLUDE SUMMARY JUDGMENT IN A MEDICAL MALPRACTICE ACTION; DEFENDANT, IN ITS MOTION FOR SUMMARY JUDGMENT, DID NOT DEMONSTRATE ENTITLEMENT TO SUMMARY JUDGMENT ON PROXIMATE CAUSE; THEREFORE PLAINTIFF, IN OPPOSITION, WAS NOT REQUIRED TO RAISE A QUESTION OF FACT ON THAT ISSUE (SECOND DEPT). 17

MEDICAL MALPRACTICE. 18

DEFENDANT PEDIATRIC PRACTICE SUBMITTED EXPERT EVIDENCE PLAINTIFF’S ADOLESCENT SCOLIOSIS COULD NOT HAVE BEEN DIAGNOSED UNTIL A YEAR AFTER PLAINTIFF LEFT DEFENDANT’S CARE; PLAINTIFF’S EXPERT AFFIDAVIT DID NOT ADDRESS THAT ISSUE; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT). 18

MEDICAL MALPRACTICE. 19

DEFENDANT PHYSICIAN’S AFFIDAVIT DID NOT PROVE PLAINTIFF’S DECEDENT WAS INFORMED OF THE PRESENCE OF A FOREIGN BODY IN HIS PELVIS; THE AFFIDAVIT RELIED ON INSUFFICIENT EVIDENCE OF THE DEFENDANT’S CUSTOM OR HABIT; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED (FOURTH DEPT). 19

MUNICIPAL LAW, SIDEWALK CONCRETE FELL INTO SUBWAY. 21

THE CITY ISSUED TREE PIT PERMITS FOR THE SIDEWALK ABOVE A SUBWAY STATION; PLAINTIFF WAS INJURED IN THE SUBWAY STATION BELOW THE SIDEWALK WHEN A PIECE OF CONCRETE FELL; THE CITY DID NOT CLAIM IT DID NOT HAVE WRITTEN NOTICE OF THE SIDEWALK DEFECT; THERE WAS A QUESTION OF FACT WHETHER THE CITY CREATED THE DANGEROUS CONDITION (TREE PIT PERMITS) (SECOND DEPT). 21

NEGLIGENT SUPERVISION. 22

DEFENDANT DAWSON FELL ON PLAINTIFF DURING A DANCE HOSTED BY DEFENDANT NON-PROFIT, LENOX HILL; PLAINTIFF SUED LENOX HILL ALLEGING NEGLIGENT SUPERVISION OF THE DANCE; LENOX HILL DID NOT OWE A DUTY OF CARE TO PLAINTIFF AND DID NOT PROXIMATELY CAUSE PLAINTIFF’S INJURY (FIRST DEPT). 22

SHOOTING, MUNICIPAL LAW, LANDLORD-TENANT. 23

PLAINTIFF’S DECEDENT WAS SHOT IN A DARK AREA OF DEFENDANT NEW YORK CITY HOUSING AUTHORITY’S (NYCHA’S) APARTMENT COMPLEX; THE NOTICE SECURITY; THE ADDITIONAL ALLEGATIONS OF SECURITY-RELATED NEGLIGENCE IN THE BILL OF PARTICULARS SHOULD HAVE BEEN STRUCK (SECOND DEPT). 23

SLIP AND FALL, MUNICIPAL LAW. 24

IN A SIDEWALK SLIP AND FALL CASE AGAINST A MUNICIPALITY, VERBAL NOTICE OF THE DEFECT, EVEN IF REDUCED TO WRITING, DOES NOT SATISFY THE WRITTEN NOTICE REQUIREMENT (FOURTH DEPT). 24

SLIP AND FALL. 25

DEFENDANT PROPERTY OWNER DID NOT PROVE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON BLACK ICE WAS LAST INSPECTED OR CLEANED; THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT). 25

SLIP AND FALL. 26

THE DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE THE FLOWER POT OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; THE CIRCUMSTANCES OF THE ACCIDENT RAISED A QUESTION OF FACT ON THAT ISSUE (SECOND DEPT). 26

SLIP AND FALL. 27

THE FLOOR IN THE BATHROOM WHERE PLAINTIFF SLIPPED AND FELL HAD RECENTLY BEEN MOPPED; THE DEFENDANT GROCERY STORE DID NOT PROVE THERE WAS AN ADEQUATE WARNING; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 27

SLIP AND FALL. 28

THE LOBBY WAS MOPPED WITH A SOAP-LIKE SUBSTANCE AN HOUR BEFORE PLAINTIFF’S SLIP AND FALL AND PLAINTIFF TESTIFIED SHE NOTICED THE FLOOR WAS WET AND SMELLED OF CLEANING FLUID AFTER SHE FELL; THERE WAS A QUESTION OF FACT WHETHER DEFENDANT BUILDING OWNER CREATED THE DANGEROUS CONDITION (SECOND DEPT). 28

SLIP AND FALL. 29

THERE WERE TWO STEPS LEADING TO A LANDING AT DEFENDANT’S FRONT DOOR; PLAINTIFF ALLEGED THE ABSENCE OF A HANDRAIL WAS A PROXIMATE CAUSE OF HER FALL; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). 29

SURGERY IS NOT SPOLIATION. 30

SURGERY, EVEN AFTER A DEFENSE REQUEST FOR A PRE-SURGERY PHYSICAL EXAM, IS NOT SPOLIATION OF EVIDENCE AND DOES NOT WARRANT SANCTIONS (SECOND DEPT). 30

TRAFFIC ACCIDENTS, COURT OF CLAIMS. 31

IN THIS INTERSECTION TRAFFIC ACCIDENT CASE, ALTHOUGH THE STATE DEMONSTRATED THE INTERSECTION WAS SAFE WHEN CONSTRUCTED, CLAIMANT RAISED A QUESTION OF FACT WHETHER INCREASED TRAFFIC RENDERED THE INTERSECTION UNSAFE AND WHETHER THE STATE WAS AWARE OF THE DANGER (FOURTH DEPT). 31

TRAFFIC ACCIDENTS, GRAVES AMENDMENT. 32

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). 32

TRAFFIC ACCIDENTS, GRAVES AMENDMENT. 33

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). 33

TRAFFIC ACCIDENTS, RES IPSA LOQUITUR. 34

AFTER PLAINTIFFS’ CAR WAS SERVICED, A TIRE (WHEEL?) FELL OFF, CAUSING AN ACCIDENT; THE PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON THE RES IPSA LOQUITUR THEORY OF LIABILITY (SECOND DEPT). 34

TRAFFIC ACCIDENTS, VEHICLE AND TRAFFIC LAW. 36

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY IN THIS INTERSECTION TRAFFIC ACCIDENT CASE; BUT DEFENDANTS’ COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). 36

TRAFFIC ACCIDENTS, VEHICLE AND TRAFFIC LAW. 37

THERE IS A QUESTION OF FACT WHETHER DEFENDANT POLICE OFFICER ACTED WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS IN THIS EMERGENCY-VEHICLE TRAFFIC ACCIDENT CASE; TWO-JUSTICE DISSENT (FOURTH DEPT). 37

 

Personal Injury Update February March 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 in February and March 2023 which address issues in “Personal Injury.”

The “Personal Injury” 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. Links to the written materials for this course (“Personal Injury Reversal Report February 2023” and “Personal Injury Reversal Report March 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 (“Personal Injury Reversal Report February 2023” and “Personal Injury Reversal Report March 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.

Personal Injury Reversal Report February 2023

Personal Injury Reversal Report March 2023

Attorney Affirmation Personal Injury February March 2023

Evaluation Survey Personal Injury Update February March 2023

Topics Covered in the “Personal Injury Update February March 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 “Personal Injury Reversal Report February 2023” and “Personal Injury Reversal Report March 2023”

 

FEBRUARY 2023 PERSONAL INJURY REVERSAL REPORT

ANIMAL LAW. 3

THE MAJORITY IN THIS DOG-BITE CASE DETERMINED DEFENDANT DID NOT DEMONSTRATE A LACK OF KNOWLEDGE OF THE DOG’S VICIOUS PROPENSITIES; TWO DISSENTERS ARGUED DEFENDANT’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED BECAUSE THE DOG HAD NEVER EXHIBITED VICIOUS BEHAVIOR BEFORE (FOURTH DEPT). 3

LABOR LAW-CONSTRUCTION LAW, CIVIL PROCEDURE. 5

PLAINTIFF IN THIS LABOR LAW 240(1) AND 241(6) ACTION WAS STRUCK BY A PIPE WHICH FELL AS IT WAS BEING HOISTED FROM A TRUCK; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S MOTION TO ADD THE VIOLATION OF ADDITIONAL INDUSTRIAL CODE PROVISIONS TO THE BILL OF PARTICULARS SHOULD HAVE BEEN GRANTED (SECOND DEPT). 5

LABOR LAW-CONSTRUCTION LAW. 6

BECAUSE LOOSE PLANKS ON A SCAFFOLD CONSTITUTED A PROXIMATE CAUSE OF PLAINTIFF’S FALL IN THIS LABOR LAW 240(1) ACTION, PLAINTIFF’S ACTS OR OMISSIONS COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE FALL AND THE RECALCITRANT WORKER DEFENSE WAS NOT AVAILABLE (FIRST DEPT). 6

MEDICAL MALPRACTICE, CIVIL PROCEDURE, EMPLOYMENT LAW. 7

PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION SOUGHT TO ADD TWO PHYSICIAN’S ASSISTANTS (PA’S) AS DEFENDANTS AFTER THE STATUTE OF LIMITATIONS HAD RUN; PLAINTIFF DID NOT DEMONSTRATE THE DEFENDANT DOCTORS WERE THE PA’S EMPLOYERS OR SUPERVISORS; PLAINTIFF DID NOT DEMONSTRATE THE PA’S HAD TIMELY KNOWLEDGE OF THE ACTION; THEREFORE THE RELATION-BACK DOCTRINE SHOULD NOT HAVE BEEN APPLIED (SECOND DEPT). 7

MEDICAL MALPRACTICE, CIVIL RIGHTS LAW, MUNICIPAL LAW, EMPLOYMENT LAW. 8

PLAINTIFF ALLEGED HE WAS DENIED PROPER MEDICAL CARE IN THE NIAGARA COUNTY JAIL AND SUED THE JAIL DOCTOR, THE COUNTY AND THE SHERIFF; THE CAUSES OF ACTION ALLEGING THE VIOLATION OF PLAINTIFF’S CIVIL RIGHTS PURSUANT TO 42 USC 1983 SURVIVED MOTIONS TO DISMISS; OTHER CAUSES OF ACTION WERE DEEMED TIME-BARRED; ACTIONS ALLEGING THE COUNTY WAS VICARIOUSLY LIABLE FOR THE ACTS OF THE SHERIFF WERE DISMISSED; THE RELATION-BACK DOCTRINE DID NOT APPLY BECAUSE THE COUNTY AND SHERIFF WERE NOT DEEMED “UNITED IN INTEREST” (FOURTH DEPT). 8

NEGLIGENT SUPERVISION, EDUCATION-SCHOOL LAW, INJURED STUDENT, EVIDENCE. 9

HERE THE STUDENT WITH DISABILITIES WAS UNSUPERVISED IN GYM CLASS WHEN SHE WAS INJURED; THE DEFENDANT SCHOOL DISTRICT SUCCESSFULLY EXCLUDED EVIDENCE THAT MORE SUPERVISION OF THE STUDENT WAS NEEDED BECAUSE SUCH EVIDENCE PURPORTEDLY CONFLICTED WITH THE STUDENT’S “AMERICANS WITH DISABILITIES ACT 504 PLAN” (WHICH DID NOT CALL FOR EXTRA SUPERVISION) AND THEREFORE EXTRA SUPERVISION WOULD HAVE AMOUNTED TO DISCRIMINATION; THE THIRD DEPARTMENT REJECTED THE ARGUMENT FINDING THAT THE 504 PLAN DID NOT ACT AS A CEILING FOR THE LEVEL OF SUPERVISION TO BE AFFORDED THE STUDENT AND ORDERED A NEW TRIAL (THIRD DEPT). 9

NEGLIGENT SUPERVISION, EDUCATION-SCHOOL LAW, INJURED STUDENT. 11

PLAINTIFF-STUDENT’S CHEMICAL BURNS WERE CAUSED BY THE INTENTIONALLY WRONGFUL, SPONTANEOUS, UNFORESEEABLE ACTS OF THIRD PARTIES OVER WHOM DEFENDANT SCHOOL HAD NO CONTROL OR AUTHORITY; STUDENTS HAD APPARENLY PUT DRANO IN A WATER BOTTLE WHICH PLAINTIFF KICKED; TWO-JUSTICE DISSENT ARGUED THE SCHOOL DID NOT MEET ITS BURDEN OF PROOF ON ITS LACK OF NOTICE (FIRST DEPT). 11

SEXUAL ABUSE, CHILD VICTIMS ACT, CIVIL PROCEDURE, FAMILY LAW, SOCIAL SERVICES LAW. 12

IN THIS CHILD VICTIMS ACT LAWSUIT ALLEGING PLAINTIFF WAS ABUSED BY A SCHOOL JANITOR, THE SOCIAL SERVICES LAW 413 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE JANITOR WAS NOT “A PERSON LEGALLY RESPONSIBLE” FOR PLAINTIFF’S CARE; THEREFORE THE SCHOOL HAD NO DUTY TO REPORT THE ABUSE PURSUANT TO THE SOCIAL SERVICES LAW (SECOND DEPT). 12

SEXUAL ABUSE, CHILD VICTIMS ACT, COURT OF CLAIMS. 13

IN THIS CHILD VICTIMS ACT CASE, THE ALLEGATION THE ABUSE TOOK PLACE IN 1982 – 1983 WAS SPECIFIC ENOUGH TO MEET THE PLEADING REQUIREMENTS OF THE COURT OF CLAIMS ACT (SECOND DEPT). 13

SLIP AND FALL, MUNICIPAL LAW, EVIDENCE, MUNICIPAL LAW. 14

PLAINTIFF STEPPED OFF A CURB AND FELL INTO A FOUR-FOOT DEEP STORM DRAIN; THE GRATE WHICH USUALLY COVERED THE DRAIN WAS FOUND AT THE BOTTOM; THE DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). 14

TRAFFIC ACCIDENTS, EVIDENCE. 15

THE PLAINTIFF MADE A LEFT TURN IN FRONT OF DEFENDANT WHEN DEFENDANT HAD THE RIGHT OF WAY; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; PLAINTIFF’S AFFIDAVIT ALLEGING DEFENDANT ATTEMPTED TO GO AROUND ANOTHER VEHICLE WAS BASED ON SPECULATION WHICH IS NOT SUFFICIENT TO DEFEAT SUMMARY JUDGMENT (FOURTH DEPT). 15

TRAFFIC ACCIDENTS, GRAVES AMENDMENT, EVIDENCE. 16

AFFIDAVITS NOT BASED ON PERSONAL KNOWLEDGE AND NOT SUPPORTED BY CERTIFIED BUSINESS RECORDS HAVE NO PROBATIVE VALUE; HERE THE AFFIDAVITS FAILED TO PROVE DEFENDANT WAS IN THE BUSINESS OF RENTING TRUCKS SUCH THAT THE GRAVE’S AMENDMENT APPLIED, AND FAILED TO PROVE THE TRUCK WAS PROPERLY MAINTAINED; DEFENDANT SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT). 16

TRAFFIC ACCIDENTS, INSURANCE LAW, ARBITRATION, CIVIL PROCEDURE. 18

THE PETITION TO STAY ARBITRATION PENDING A FRAMED ISSUE HEARING SHOULD HAVE BEEN GRANTED IN THIS UNINSURED MOTORIST TRAFFIC ACCIDENT CASE; PROCEDURAL CRITERIA EXPLAINED (SECOND DEPT). 18

TRAFFIC ACCIDENTS, REAR-END COLLISIONS, EVIDENCE. 19

AN AFFIDAVIT FROM A WITNESS TO THIS REAR-END TRAFFIC ACCIDENT STATING THAT PLAINTIFF WAS BACKING UP AT THE TIME DEFENDANT’S CAR STRUCK PLAINTIFF’S RAISED ONLY A QUESTION OF PLAINTIFF’S COMPARATIVE FAULT WHICH WILL NOT DEFEAT PLANTIFF’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT). 19

TRAFFIC ACCIDENTS, TRUSTS AND ESTATES, CIVIL PROCEDURE, JUDGES, ATTORNEYS. 20

INSURANCE LAW. SUPREME COURT HAD THE POWER TO APPOINT THE PUBLIC ADMINISTRATOR TO REPRESENT THE ESTATE IN THIS TRAFFIC ACCIDENT CASE; DEFENSE COUNSEL REPRESENTED THE INSURER, NOT THE DEFENDANT ESTATE (SECOND DEPT). 20

TRAFFIC ACCIDENTS, POLICE CAR, VEHICLE AND TRAFFIC LAW, MUNICIPAL LAW. 21

QUESTION OF FACT WHETHER THE POLICE OFFICER ACTED IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN HE ATTEMPTED TO MAKE A U-TURN TO PURSUE A VEHICLE AND STRUCK PLAINTIFF’S CAR (SECOND DEPT). 21

 

MARCH 2023 PERSONAL INJURY REVERSAL REPORT

CHILD VICTIMIS ACT, EDUCATION-SCHOOL LAW. 4

THE CAUSES OF ACTION FOR NEGLIGENT SUPERVISION (OF THE PLAINTIFF-STUDENT) AND NEGLIGENT FAILURE TO WARN (THE PLAINTIFF-STUDENT) SHOULD NOT HAVE BEEN DISMISSED IN THIS CHILD VICTIMS ACT CASE; THE COMPLAINT ALLEGED PLAINTIFF WAS SENT TO A PRIEST NOT EMPLOYED BY THE SCHOOL FOR DISCIPLINE AND WAS MOLESTED BY THE PRIEST (SECOND DEPT). 4

CHILD VICTIMS ACE, COURT OF CLAIMS, CIVIL PROCEDURE. 5

THE NOTICE OF CLAIM IN THIS CHILD VICTIMS ACT SUIT AGAINST THE STATE SUFFICIENTLY ALLEGED WHEN THE ABUSE OCCURRED (SECOND DEPT). 5

CHILD VICTIMS ACT, COURT OF CLAIMS. 6

THE NOTICE OF CLAIM IN THIS CHILD VICTIMS ACT LAWSUIT AGAINST THE STATE ALLEGING SEXUAL ABUSE AT A PSYCHIATRIC HOSPITAL SUFFICIENTLY DESCRIBED THE TIME PERIOD WHEN THE ABUSE ALLEGEDLY TOOK PLACE; THE ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). 6

DAMAGES, INQUEST, JUDGES. 7

IN AN INQUEST ON DAMAGES AFTER DEFENDANT DEFAULTED, THE JUDGE SHOULD NOT HAVE CONSIDERED LIABILITY ISSUES (SECOND DEPT). 7

FREEDOM OF INFORMATION LAW (FOIL), HIPAA PRIVACY RULE. 7

BOTH THE HIPAA PRIVACY RULE AND THE PUBLIC OFFICERS LAW APPLY TO THE FOIL REQUEST FOR RECORDS DOCUMENTING INJURIES SUFFERED BY ATHLETES USING THE OLYMPIC TRAINING FACILITIES IN THE ADIRONDACK PARK; THE HIPAA DEIDENTIFICATION PROCEDURE SHOULD BE APPLIED TO THE REQUESTED RECORDS (THIRD DEPT). 7

INSURANCE LAW, ASSAULT OR ACCIDENT. 9

THE INJURED PARTY WAS STRUCK WITH A BATON IN AN ALTERCATION OUTSIDE A BAR; IT WAS ALLEGED THE INJURY WAS ACCIDENTAL; THE INSURER SOUGHT A DECLARATORY JUDGMENT RE: THE OBLIGATION TO DEFEND AND INDEMNIFY; THERE WERE QUESTIONS OF FACT WHETHER THE INCIDENT FELL OUTSIDE THE COVERAGE OF THE POLICY (NO DISCLAIMER REQUIRED) OR WHETHER THE INCIDENT WAS SUBJECT TO A POLICY EXCLUSION (TIMELY DISCLAIMER REQUIRED) (SECOND DEPT). 9

LABOR LAW-CONSTRUCTION LAW, AGENCY. 10

PLAINTIFF ALLEGEDLY TRIPPED ON DEBRIS AND FELL INTO A TWO-TO-THREE-FOOT-DEEP PIT FROM WHICH THE PLYWOOD COVER HAD BEEN REMOVED TRIGGERING POTENTIAL LIABILITY UNDER LABOR LAW 240(1) AND 241(6); ONE DEFENDANT MAY BE LIABLE AS A STATUTORY AGENT OF THE OWNER WITH SUPERVISORY AUTHORITY; TWO DEFENDANTS MAY BE LIABLE UNDER LABOR LAW 200 FOR THE DANGEROUS CONDITIONS; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). 10

LABOR LAW-CONSTRUCTION LAW. 11

PLAINTIFF WAS NOT WEARING A HARD HAT AND WAS STRUCK IN THE HEAD BY DEBRIS DURING DEMOLITION WORK; PLAINTIFF ALLEGED THE FAILURE TO PROVIDE HEAD PROTECTION VIOLATED THE INDUSTRIAL CODE GIVING RISE TO A LABOR LAW 241(6) CAUSE OF ACTION; DEFENDANTS DID NOT DEMONSTRATE THE JOB WAS NOT A HARD HAT JOB; THEREFORE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 11

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS. 12

A VIDEO CAMERA HAD BEEN INSTALLED IN A GRAPEFRUIT-SIZED HOLE BEHIND A TOILET IN A WOMEN’S RESTROOM AND VIDEO HAD BEEN RECOVERED; OVERRULING PRECEDENT, THE FIRST DEPARTMENT HELD THAT “EXTREME AND OUTRAGEOUS CONDUCT” IS NOT AN ELEMENT OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AND THAT CAUSE OF ACTION WAS REINSTATED (FIRST DEPT). 12

SLIP AND FALL, LANDLORD-TENANT, CONTRACT LAW, INSURANCE LAW. 13

IN THIS SIDEWALK SLIP AND FALL CASE, THE MASTER LEASE VIOLATED GENERAL OBLIGATIONS LAW 5-321 WHICH PROHIBITS A LEASE AGREEMENT FROM PROVIDING THE LANDLORD BE INDEMNIFIED FOR LIABILITY FOR THE LANDLORD’S OWN NEGLIGENCE (FIRST DEPT). 13

SLIP AND FALL, LANDLORD-TENANT. 15

DEFENDANTS IN THIS ICY-STEP SLIP AND FALL CASE DID NOT DEMONSTRATE THEY WERE OUT-OF-POSSESSION LANDLORDS WHO WERE NOT RESPONSIBLE FOR ICE AND SNOW REMOVAL; DEFENDANTS DID NOT SUBMIT THE LEASE IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT (SECOND DEPT). 15

SLIP AND FALL, MUNICIPAL LAW. 16

DEFENDANT NYC HOUSING AUTHORITY (NYCHA) UNILATERALLY ADJOURNED THE 5O-H HEARING IN THIS SLIP AND FALL CASE AND ALLEGEDLY SENT A FOLLOW-UP LETTER TO PLAINTIFF; PLAINTIFF DENIED RECEIPT OF THE LETTER AND DEFENDANT IMPROPERLY SUBMITTED AN AFFIDAVIT OF SERVICE IN REPLY; THE AFFIDAVIT WAS NOT CONSIDERED; IN ADDITION, THE AFFIDAVIT DID NOT PROVE THE LETTER WAS MAILED TO PLAINTIFF (SECOND DEPT). 16

SLIP AND FALL. 17

CONFLICTING EVIDENCE OF THE WEATHER AT THE TIME OF THE ICE SLIP AND FALL PRECLUDED SUMMARY JUDGMENT BASED ON THE STORM-IN-PROGRESS RULE; IN ADDITION, THERE WAS EVIDENCE THE ICE WAS THERE FOR SOME TIME BEFORE THE FALL AND DEFENDANTS DID NOT DEMONSTRATE THEY LACKED ACTUAL OR CONSTRUCTIVE NOTICE OF IT; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 17

SLIP AND FALL. 18

CONFLICTING EXPERT EVIDENCE ABOUT ICE ON THE PARKING LOT BEFORE THE SNOW STORM BEGAN PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL ACTION (THIRD DEPT). 18

SLIP AND FALL. 18

THERE WAS EVIDENCE OF TWO PROXIMATE CAUSES OF PLAINTIFF’S SLIP AND FALL: (1) HER KNEE BUCKLED; AND (2) WHEN SHE TRIED TO STOP HER FALL BY GRABBING THE VANITY, THE VANITY MOVED FIVE INCHES AWAY FROM THE WALL (SECOND DEPT). 18

TRAFFIC ACCIDENTS, EMERGENCY DOCTRINE. 20

PLAINTIFF CHANGED LANES, CUT OFF DEFENDANT’S VEHICLE AND CRASHED INTO THE REAR OF THE CAR IN FRONT; DEFENDANTS MOVED FOR SUMMARY JUDGMENT PURSUANT TO THE EMERGENCY DOCTRINE; SUPREME COURT DENIED THE MOTION DESPITE PLAINTIFF’S FAILURE TO OPPOSE IT; THE SECOND DEPARTMENT AWARDED DEFENDANTS SUMMARY JUDGMENT PURSUANT TO THE EMERGENCY DOCTRINE (SECOND DEPT). 20

TRAFFIC ACCIDENTS, INSURANCE LAW, CIVIL PROCEDURE. 21

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). 21

TRAFFIC ACCIDENTS, SOVEREIGN IMMUNITY. 22

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). 22

TRAFFIC ACCIDENTS, VEHICLE AND TRAFFIC LAW. 23

ALTHOUGH PLAINTIFF PEDESTRIAN WAS STRUCK CROSSING THE STREET WHERE THERE WAS NO CROSSWALK, THERE WAS A QUESTION OF FACT WHETHER DEFENDANT DRIVER FAILED TO SEE WHAT SHE SHOULD HAVE SEEN (SECOND DEPT). 23

TRAFFIC ACCIDENTS. 24

DEFENDANT’S CAR WAS STRUCK BY AN ONCOMING CAR WHICH CROSSED A DOUBLE YELLOW LINE; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE EMERGENCY DOCTRINE (SECOND DEPT). 24

TRAFFIC ACCIDENTS. 25

IN A REAR-END COLLISION, THE ALLEGATION THE CAR IN FRONT STOPPED SHORT DOES NOT RAISE A QUESTION OF FACT (FIRST DEPT). 25

TRAFFIC ACCIDENTS. 26

PLAINTIFF WAS INVOLVED IN A COLLISION WHICH PUSHED HIS CAR INTO DEFENDANT’S CAR WHICH WAS PARKED ALONG THE CURB IN VIOLATION OF PARKING REGULATIONS; THE LOCATION OF DEFENDANT’S CAR WAS NOT A PROXIMATE CAUSE OF THE ACCIDENT; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). 26

TRAFFIC ACCIDENTS. 26

THE ALLEGATION THE CAR IN FRONT MADE A SUDDEN STOP DOES NOT RAISE A QUESTION OF FACT IN A REAR-END COLLISION (SECOND DEPT). 26

 

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