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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). ​

The First Department, reversing Supreme Court, determined the application for damages in this personal injury action should not have been denied due to plaintiffs’ counsel’s failure to submit medical records for more than a year after the inquest. Plaintiffs should not be prejudiced by their counsel’s inaction:

Although plaintiffs’ counsel had timely subpoenaed the relevant medical records and those records were apparently delivered to the subpoenaed records room in the courthouse, they were not available at the inquest. Supreme Court therefore reserved decision to give plaintiffs time to submit evidence supporting their damages claim. After a period of more than one year in which plaintiffs’ counsel failed to provide the requested information, Supreme Court issued an order … denying the application for damages on the ground of failure of proof.

Supreme Court improvidently exercised its discretion in denying plaintiffs’ motion to vacate the underlying default. Although we share the court’s concern regarding the extended delay and the inattentiveness of plaintiffs’ former counsel, counsel’s neglect in pursuing his clients’ action should not be permitted to redound to the clients’ detriment … . Counsel did not deny that he failed to respond to communications from the court, but explained that the delays were due to a problem in his firm’s case management system, which did not provide reminders … . These circumstances present a type of law office failure for which the clients should not be penalized , particularly in light of the strong public policy preference for deciding cases on the merits … . In addition, defendants defaulted and therefore will not be prejudiced … . Rosario v General Behr Corp., 2023 NY Slip Op 03560, Second Dept 6-28-23

Practice Point: Here the attorney’s failure to submit medical records requested by the judge after an inquest was not the type of law office failure for which plaintiffs should be penalized. The judge should not have dismissed the application for damages based on counsel’s neglect.

 

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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). ​

The Second Department, reversing Supreme Court, determined the defendant’s (Lubman;s) motion to amend his answer in this traffic accident case should have been granted. The lateness of the motion to amend did not cause sufficient prejudice to plaintiff to justify denial:

… [T]he court … improperly determined that the Graves Amendment is inapplicable here. Although Lubman did not clearly establish that he was a commercial lessor of motor vehicles … , he proffered sufficient evidence to create a question of fact as to the Graves Amendment’s applicability. He submitted evidence that he owned between four and seven cars that he rented fifty-nine times over a nine-month period through Turo, a peer-to-peer car sharing service. This volume of rental activity, which involved several vehicles, demonstrated more than a casual or occasional endeavor. The fact that Lubman operated under his own name rather than a corporate entity was not determinative. The Graves Amendment defines “owner” as “a person,” which it defines, in part, as “any individual” as well as a “corporation, company . . . or any other entity” … . Thus, by its own terms, the Graves Amendment is intended to cover both individuals and corporate entities.

Supreme Court should have granted Lubman’s motion for leave to amend his answer to assert a Graves Amendment affirmative defense. Lubman demonstrated that his proposed amended answer was not palpably insufficient or clearly devoid of merit …  Although plaintiff … claimed that they would be prejudiced by the amendment because Lubman waited ten months after his deposition before seeking leave to amend his answer, such delay was not significant prejudice that hindered their case preparation or prevented them from acting in support of their position … , as the note of issue had not yet been filed and Lubman could have been deposed further on the limited issue of the Graves Amendment affirmative defense. Ventura v Lubman, 2023 NY Slip Op 03444, First Dept 6-27-23

Practice Point: Although the motion to amend the answer was made 10 months after depositions, the note of issue had not been filed and defendant could be deposed further. The delay therefore did not prejudice plaintiff sufficiently to warrant denial of the motion.

Practice Point: The Graves Amendment limits the liability of a lessor of a vehicle involved in an accident to negligent maintenance or repair. The affirmative defense is available to individuals as well as business entities.

 

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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).

The First Department, dismissing the appeal in this custody case, determined (1) no appeal lies from an order issued on mother’s default, and (2) no  appeal lies from an order entered with mother’s consent:

Because the fact-finding order was issued on the mother’s default, it is not appealable as of right and her remedy was to move to vacate (CPLR 5511 …). Although the mother appeared on the final date of the inquest after petitioner’s witnesses had testified, she was not present during the majority of the fact-finding hearing, and her counsel was not authorized to proceed in her absence … . The mother also did not offer any evidence or seek to testify.

Furthermore, no appeal lies from the dispositional order, as it was entered on the mother’s consent and she is therefore not an aggrieved party under CPLR 5511 … .  Matter of P. A. (Joseph M.), 2023 NY Slip Op 03432, First Dept 6-27-23

Practice Point: No appeal lies from an order issued on default. The only available remedy is a motion to vacate the default.

Practice Point: No appeal lies from an order issued on consent because the consenting party is not “aggrieved.”

 

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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).

The First Department, reversing Supreme Court, determined the judge should not have ordered closure of the courtroom pursuant to Judiciary Law section 4 in this divorce proceeding. The criteria for closure of a courtroom are discussed in some detail. Here the judge ordered some documents to be submitted under seal and then based the closure on the existence of sealed documents as evidence. That justification for closure is not one of the exceptions in Judiciary Law section 4:

The motion court did not provide the public and the press adequate notice of the husband’s courtroom closure request. Because it directed the parties to file their submissions on the application for courtroom closure by email, the submissions were not reflected on “the publicly maintained docket entries,” as required … .

We also reverse on substantive grounds. “Public access to court proceedings is strongly favored, both as a matter of constitutional law . . . and as statutory imperative …” … . In the order appealed here, the motion court improperly read an exception into the “statutory imperative” of NY Judiciary Law §4 that does not exist. The first part of that statute, entitled “Sittings of courts to be public,” states: “The sittings of every court within this state shall be public, and every citizen may freely attend the same . . .” The only exceptions to this rule are set forth in the statute’s next sentence: “except that in all proceedings and trials in cases for divorce, seduction, rape, assault with intent to commit rape, criminal sexual act, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court” … .

Here, the motion court used its discretion to insert another, unwritten category of cases into the statutory exception: proceedings that could entail arguments that implicate documents filed under seal. We find its decision to do so to have been improper … . Paulson v Paulson, 2023 NY Slip Op 03310, First Dept 6-20-23

Practice Point: A request for courtroom closure must be accessible by the public, not concealed in email exchanges.

Practice Point: Courtroom closure based on a reason not included in the public-trial exceptions in Judiciary Law section 4 is an abuse of discretion.

 

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THE LETTER OF INTENT WAS AN AGREEMENT TO AGREE WHICH CONTEMPLATED ONLY OUT-OF-POCKET DAMAGES FOR A BREACH; THE JUDGE SHOULD NOT HAVE RELIED ON CREDIBILITY DETERMINATIONS TO, SUA SPONTE, AWARD SUMMARY JUDGMENT TO PLAINTIFFS (FIRST DEPT).

​The First Department, reversing Supreme Court, determined that the letter of intent (LOI) was an agreement to agree which, if breached, supported only out-of-pocket damages, not cover damages. The judge improperly relied on credibility determinations to, sua sponte, award summary judgment to plaintiffs:

… [R]ecovery for breach of a preliminary agreement’s confidentiality provision could not be based on “the theory that it would have acquired” the company at issue, as the “defendant[] w[as] not bound to go forward with the transaction” … . * * *

… [T]he text of the LOI and the surrounding circumstances support a finding that the parties did not contemplate cover damages at the time of contracting. That the parties entered only a preliminary agreement with no obligation to close a transaction and no specific damage provision for breach conclusively shows that defendant did not wish to assume the risk of covering whatever replacement transaction plaintiffs might pursue … .

… [T]he court improperly relied on credibility determinations to resolve material issues that should have been resolved by the jury. It is “not the function of a court deciding a summary judgment motion to make credibility determinations” … . Cresco Labs N.Y., LLC v Fiorello Pharms., Inc., 2023 NY Slip Op 03305, First Dept 6-20-23

Practice Point: Here the letter of intent was an agreement to agree which contemplated only out-of-pocket damages for a breach.

Practice Point: The judge should not have relied on credibility determinations to, sua sponte, award summary judgment to plaintiffs.

 

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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).

The First Department, reversing Supreme Court, determined the fraudulent-conveyances causes of action should have been dismissed as time-barred under New York’s borrowing statute. The properties which were conveyed are in Connecticut and the action is time-barred under Connecticut law:

Plaintiff’s claims are time-barred pursuant to CPLR 202, New York’s borrowing statute. Under CPLR 202, where a nonresident plaintiff asserts causes of action in a New York court, “the claim must be timely under both New York and the jurisdiction where the action accrued” … . “Consequently, . . . it is the shorter of the two states’ statutes of limitations that controls the timeliness of the action” … . For purposes of CPLR 202, “a cause of action accrues at the time and in the place of the injury” and “[w]hen an alleged injury is purely economic, the place of injury is usually where the plaintiff resides and sustains the economic impact of the loss” … .

Here, plaintiff is a resident of Connecticut and alleges only economic injury. Moreover, it does not dispute that, under Connecticut law, where the claims accrued for purposes of the borrowing statute, the statute of limitations for the asserted causes of action has expired (see Conn Gen Stat § 52-552j …). National Auditing Servs. & Consulting, LLC v Assa, 2023 NY Slip Op 03198, First Dept 6-13-23

Practice Point: Causes of action which accrued in another state must be timely under both that state’s and New York’s statutes of limitations.

 

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

The First Department, vacating the assault second as a hate crime conviction, determined the proof did not support the theory that the subway tracks were used as a dangerous instrument:

The theory supporting this count was not that defendant intended to use the electrified third rail or a moving train as a dangerous instrument, or acted recklessly, but instead that defendant intended that the victim be injured by striking the tracks, alleged to be a “hard object.” The evidence failed to establish defendant’s intent to use the tracks in that manner. The People’s evidence, including the victim’s testimony and a blurry video, was consistent with the victim merely tripping and falling onto the tracks during an altercation with defendant … . Moreover, even if defendant merely caused the victim to fall on the tracks, that would not establish the specific intent required for this conviction. For similar reasons, we find that the verdict on this count was against the weight of the evidence. People v Ames, 2023 NY Slip Op 03205, First Dept 6-13-23

Practice Point: The proof that the victim tripped and fell onto subway tracks during an altercation did not demonstrate defendant’s intent to use the subway tracks as a dangerous instrument. The assault second conviction was vacated.

 

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THE LOCAL LAW WHICH DISQUALIFIES CANDIDATES WHO HAVE CERTAIN FELONY CONVICTIONS SHOULD NOT HAVE BEEN INTERPRETED TO APPLY ONLY TO CONVICTIONS AFTER THE ENACTMENT OF THE LOCAL LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Local Law which disqualified candidates who have certain felony convictions from running for city council and other officers should not have been interpreted to apply only to convictions after the enactment of the Local Law. Given the importance of the law, the proceeding should not have been converted to a summary judgment motion and decided on an expedited schedule because of the impending primary election:

Under the circumstances presented, where plaintiffs, without good reason, waited until shortly before the upcoming June 27, 2023 Democratic primary election to bring this action seeking a determination as to the constitutional and procedural validity of Local Law 15, enacted in February 2021, and to bring this motion seeking injunctive relief barring its enforcement, on an expedited basis that would not permit meaningful review of the important issues and that necessarily would result in electoral disruption, the court should not have converted, with limited notice to the City, the motion to one for summary judgment and resolved the merits of plaintiffs’ claims on an expedited schedule. * * *

We also find that the court, in prematurely resolving the merits of plaintiffs’ challenges, erred to the extent it construed, against the statutory reading proffered by both parties in the motion court, Local Law 15 as not disqualifying candidates based on the specified felony convictions where the convictions predated the law’s enactment in February 2021. A reading of the statutory language that the law applies to any person who “has been convicted” makes clear, on its face, that the law applies to both pre- and post-enactment convictions and, as the City shows, the legislative comments entirely support that reading, as do the subsequent practices of the Board of Elections. Martinez v City of New York, 2023 NY Slip Op 03073, First Dept 6-8-23

Practice Point: The matter should not have been converted to a summary judgment motion and determined on an expedited schedule because of the impending election. The Local Law which disqualifies candidates with certain felony convictions from running for local offices should not have been interpreted to apply only to convictions after the enactment of the local law.

 

​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).

The First Department, reversing Supreme Court, determined plaintiff was unable to show defendant non-profit (Lenox Hill), which hosted a dance for its members, owed her a duty of care to her or proximately caused her injury. Both plaintiff and defendant, Dawson, were members of defendant Lenox Hill. Lenox Hill hosted a dance. During the dance Dawson fell on plaintiff, breaking her ankle. Plaintiff sued Lenox Hill alleging negligent supervision:

In general, a party does not have “a duty to control the conduct of third persons to prevent them from causing injury to others … . A duty can only be found where there exists a special relationship between the defendant and the plaintiff requiring the defendant to protect the plaintiff from the third party, or a special relationship “between defendant and [the] third [party] person whose actions expose[d] plaintiff to harm,” which “would require the defendant to attempt to control the third person’s conduct” … .

… [P]laintiff failed to plead that she had a special relationship to defendant requiring it to protect her … . * * *

Plaintiff also failed to establish proximate cause. To establish proximate cause, “a plaintiff must show that the defendant’s negligence was a substantial cause of the events which produced the injury” … . In the context of the intervention of a third-party between defendant’s conduct and plaintiff’s injury, “liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence” … .

Here, Lenox Hill established that Dawson’s fall was not foreseeable. The record supports that Lenox Hill was not on notice of any similar incidents. Bindler v Lenox Hill Neighborhood House, Inc., 2023 NY Slip Op 02966, First Dept 6-6-23

Practice Point: Generally a party does not have a duty to control the conduct of third persons. Therefore the defendant nonprofit which hosted the dance where plaintiff was injured when another dancer fell on her did not owe plaintiff a duty of care and did not proximately cause her injury.

 

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PLAINTIFF LANDLORD WAS NOT ABLE TO SHOW THE FULLY EXECUTED LEASE WAS EVER DELIVERED TO DEFENDANT TENANT; THEREFORE THE LANDLORD WAS NOT ENTITLED TO SUMMARY JUDGMENT BASED UPON THE TERMS OF THE LEASE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the plaintiff-landlord was not entitled to summary judgment based on the terms of the second amended lease because the landlord could not show that the defendant-tenant was ever provided with a fully executed lease:

… [A] leasehold estate cannot be conveyed without a legal delivery of the fully executed lease to the lessee … , and plaintiff did not offer sufficient proof to rebut [defendant’s] showing that he never received delivery of the executed second amendment during the lease period. Evidence of defendant’s continued occupancy and payment of rent after expiration of the first amendment to the lease in 2016 is equally consistent with a month-to-month tenancy giving rise to an obligation to pay use and occupancy, and therefore does not, without more, prove delivery of the second amendment. Walber 82 St. Assoc., LP v Fisher, 2023 NY Slip Op 02993, First Dept 6-6-23

Practice Point: A leasehold estate cannot be conveyed without legal delivery of the fully executed lease to the lessee.

 

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