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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). ​

The First Department, reversing Supreme court, determined: (1) the summary judgment motion should have been supported by plaintiff’s affidavit, not the attorney’s affidavit; (2) papers submitted in reply cannot be used to remedy deficiencies in the original submission; and (3), to demonstrate a fraudulent scheme to deregulate an apartment, it is not enough to show the landlord did not register the apartment with the NYC Division of Housing and Community Renewal (DHCR) and increased the rent:

CPLR 3212(b) states, “A motion for summary judgment shall be supported by affidavit . . . The affidavit shall be by a person having knowledge of the facts.” Plaintiff failed to submit an affidavit. While he submitted his attorney’s affirmation, “[s]uch an affirmation . . . is without evidentiary value” … . Although plaintiff submitted his complaint, it is not verified, so it cannot be used in lieu of an affidavit (see CPLR 105[u] …).

… [I]n Ampim v 160 E. 48th St. Owner II LLC (208 AD3d 1085 [1st Dept 2022]), [we] said, “an increase in rent and failure to register [an] apartment with . . . DHCR . . ., standing alone, are insufficient to establish a colorable claim of a fraudulent scheme to deregulate the apartment” … .

… Plaintiff failed to demonstrate an increase in rent, or that landlord misrepresented the legal regulated rent … .

Plaintiff did show an increase in rent through documents submitted in reply. However, a movant may not use reply papers “to remedy . . . basic deficiencies in [his] prima facie showing” … . Tribbs v 326-338 E 100th LLC, 2023 NY Slip Op 01950, First Dept 4-13-23

Practice Point: The attorney affidavit submitted in support of the summary judgment motion was not based on first-hand knowledge and therefore had no evidentiary value.

Practice Point: Re: a summary judgment motion, deficiencies in the original submissions cannot be cured in reply.

Practice Point: Failure to register an apartment with the NYC DHCR coupled with raising the rent do not demonstrate a fraudulent scheme to deregulate.

 

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UNDER THE NEW YORK CITY HUMAN RIGHTS LAW, PLAINTIFF NEED NOT DEMONSTRATE AN ADVERSE EMPLOYMENT ACTION TO RECOVER FOR GENDER DISCRIMINATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s gender discrimination action under the NYC Human Rights Law (City HRL) should not have been dismissed:

Since “[t]he City HRL does not differentiate between sexual harassment and other forms of gender discrimination, but requires that sexual harassment be viewed as one species of sex- or gender-based discrimination” … , it was error to grant summary judgment dismissing plaintiff’s gender discrimination claim, while denying the motion with respect to the hostile work environment and sexual harassment claim. Moreover, plaintiff need not show an adverse employment action in order to establish a prima facie case of gender discrimination under the City HRL … . On this motion for summary judgment dismissing a claim under the City HRL, defendant bore the burden of showing that, based on the record evidence and drawing all reasonable inferences in plaintiff’s favor, no jury could find defendant liable for gender-based discrimination … . Here, plaintiff submits sufficient evidence to support her assertions that, after she rejected her supervisor’s sexual advances, she was unjustifiably criticized for her work product and attendance by her supervisors and was stripped of her assignments, which permits a finding that she was treated “less well” based on her gender … . Bond v New York City Health & Hosps. Corp., 2023 NY Slip Op 01939, First Dept 4-13-23

Practice Point: Under the New York City Human Rights Law a plaintiff need only show she was treated “less well” based on her gender. No adverse employment action is required.

 

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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). ​

The First Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined that one foreign defendant (Koukis) demonstrated he was not represented by an attorney (Santamarina) who purported to waive all defenses based on service of process or lack of personal jurisdiction on behalf of all defendants. Supreme Court agreed Koukis demonstrated Santamarina did not represent him, but found personal jurisdiction over Koukis pursuant to CPLR 302(a)2). The First Department held the court did not have personal jurisdiction over Koukis:

The motion court correctly found that there was no basis to conclude that Koukis authorized Santamarina to appear and waive all jurisdictional defenses on his behalf … . … Koukis emailed Santamarina, with a copy to his attorney, specifically stating that “I have not authorized you to represent me in any legal or other matters.” Koukis also averred that he never communicated with Santamarina and that he never represented him, and there is no indication in the record that Koukis was even aware of Santamarina for any significant time prior to his … email. The two … emails referenced by the dissent were not from or to Santamarina and made no mention of any representation by Santamarina. Gibson, Dunn & Crutcher LLP v Koukis, 2023 NY Slip Op 01863, First Dept 4-11-23

​Practice Point: Here defendant demonstrated he was not represented by an attorney who purported to waive service of process and personal jurisdiction defenses on behalf of all defendants.

 

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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). ​

The First Department determined the burglary conviction was against the weight of the evidence:

The verdict convicting defendant of a burglary of a doctor’s office that occurred in July 2015 was against the weight of the evidence … . Defendant was connected to this burglary solely through the presence of his DNA on an opened soda can in the reception area. The office manager’s testimony failed to address whether there was any innocent explanation for the presence of defendant, or of the soda can, at that location. … . People v Taylor, 2023 NY Slip Op 01848, First Dept 4-6-23

Practice Point: Defendant was convicted of the burglary of a doctor’s office based solely on the presence of a soda can with his DNA on it in the reception area. The testimony did not address whether there was an innocent explanation for the presence of the soda can. The conviction was against the weight of the evidence.

 

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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 IN 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).

The First Department, reversing Supreme Court, determined defendant should have been allowed to contest the constitutionality of his 2002 conviction because he was not informed of the period of post release supervision (PRS) before he pled guilty. Defendant’s failure to move to withdraw the 2002 plea when he was resentenced in 2010 to add PRS to his sentence did not waive his right to claim prejudice in a challenge to the constitutionality of a predicate felony:

At the persistent violent felony offender proceeding in this case, defendant claimed that he would have gone to trial in the 2002 case had he known that PRS would ultimately be a consequence of his plea … . The sentencing court conducted a hearing on this claim, which included defendant’s testimony. After the hearing, the court expressly declined to rule on this claim of prejudice. Instead, the court ruled that defendant was barred from making such a challenge because he declined an opportunity to withdraw his 2002 plea when he was resentenced in 2010. However, that opportunity, offered when defendant had only weeks left to serve on the 8½ year sentence imposed in 2002, would not have provided a remedy for the constitutional defect that defendant is claiming, which is that he would not have pleaded guilty in 2002 had he known of the ultimate PRS component of his sentence. Accordingly, we find that defendant’s 2010 failure to withdraw the 2002 plea did not waive his right to claim prejudice in the context of a challenge to the constitutionality of a predicate felony, and we remand for a ruling on that claim. People v Graham, 2023 NY Slip Op 01852, First Dept 4-6-23

Practice Point: Defendant was not informed of the period of post release supervision (PRS) when he pled guilty in 2002 and did not move to withdraw his plea when PRS was added in 2010. Defendant did not waive his right to attack the constitutionality of the 2002 conviction in this persistent felony offender proceeding.

 

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

The First Department, reversing (modifying) Supreme Court, determined the sanctions imposed for spoliation of evidence were too severe:

… [T]he drastic remedy of striking the entire answer and all the counterclaims was not warranted … . Here, plaintiff failed to establish that the unavailability of the lost and destroyed evidence prejudiced it and left it unable to prosecute its action. Indeed, plaintiff argued only that its ability to defend the counterclaims was compromised. Therefore, the appropriate sanction under the circumstances should have been directed solely to the counterclaims. Harry Winston, Inc. v Eclipse Jewelry, Corp., 2023 NY Slip Op 01840, First Dept 4-6-23

Practice Point: Striking the answer as a spoliation sanction was not warranted. Plaintiff demonstrated only that the ability to prove the counterclaims was affected. The sanctions should have been confined to striking the counterclaims.

 

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BUYERS OF THE HOME HEALTHCARE AGENCY SEEK SPECIFIC PERFORMANCE OF THE PURCHASE AGREEMENT; THE SPECIFIC PERFORMANCE PROVISIONS SURVIVE THE TERMINATION OF THE AGREEMENT; BUT THE BUYER’S MOTION FOR SUMMARY JUDGMENT SEEKING SPECIFIC PERFORMANCE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, in a factually complex opinion by Justice Oing, determined (1) the specific performance provisions in the purchase agreement survived termination of the purchase agreement; and (2) the buyer’s summary judgment motion seeking specific performance should not have been granted. The facts of the case are far too detailed to summarize here.

This dispute arises out of a failed sale of a home healthcare agency. The seller accuses the buyer of repudiating the contract; the buyer charges that seller thwarted its efforts to close the deal because of seller’s remorse. At stake: who owns the business. If the seller prevails, it retains the termination fee; if the buyer prevails, the contractual remedy of specific performance compels the seller to close and sell the company to the buyer. …

The parties entered into the Membership Interest Purchase Agreement, dated September 25, 2019, wherein the seller agreed to sell its interest in Extended Nursing to the buyer for $49 million. The Purchase Agreement required the buyer to make an initial escrow deposit of $1.47 million, which amount would be retained as a termination fee by the seller in the event that the buyer did not close. One of the critical components of the purchase, for which the seller specifically negotiated, was that closing should occur at the earliest practicable time. … The outside date was March 25, 2021 — 18 months after the date the parties executed the Purchase Agreement. The seller claims that the outside date was an essential term … . … § 14.17 of the Purchase Agreement provides the buyer with the remedy of specific performance, which, under Purchase Agreement § 12.2(c), survives termination of the Purchase Agreement. Extended CHHA Acquisition, LLC v Mahoney, 2023 NY Slip Op 01762, First Dept 4-4-23

Practice Point: Here the specific performance provisions of the purchase agreement survived the termination of the agreement, but the buyers’ motion for summary judgment seeking specific performance should not have been granted.

 

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ABSENT FRAUD OR COLLUSION, STRICT PRIVITY PRECLUDES THE PROSPECTIVE BENEFICIARIES OF AN ESTATE FROM BRINGING A LEGAL MALPRACTICE ACTION AGAINST THE ATTORNEY WHO PLANNED THE ESTATE; THE ATTORNEY OWED NO DUTY TO THE BENEFICIARIES (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the malpractice action by the prospective beneficiaries of an estate against the attorney who planned the estate should have been dismissed because there was no privity between the beneficiaries and the attorney:

In the context of estate planning malpractice actions, strict privity applies to preclude a third party, such as beneficiaries or prospective beneficiaries like plaintiffs, from asserting a claim against an attorney for professional negligence in the planning of an estate, absent fraud, collusion, malicious acts or other special circumstances … . While plaintiffs argue their claim against defendant attorneys is couched as one for simple negligence, as opposed to legal malpractice, plaintiffs have not pleaded facts to show that defendant attorneys owed plaintiffs a duty of care in the drafting of their client’s will and trust agreement. The strict privity requirement here protects estate planning attorneys against uncertainty and limitless liability in their practice … . Thus, plaintiffs’ negligence claim is unavailing for lack of factual allegations to demonstrate that defendants owed plaintiffs a duty.

Plaintiffs have not pleaded sufficient factual allegations in their amended complaint to indicate that circumstances of fraud, collusion and/or aiding and abetting exist in this case to override the strict privity rule. Plaintiffs have not alleged fraud with requisite specificity as, inter alia, there are no allegations defendants knowingly made material misrepresentations in the will and trust for the purpose of inducing justifiable reliance by their client (since deceased) upon such misrepresentations, and moreover the allegations made do not support favorable inferences in that regard … . Phillips v Murtha, 2023 NY Slip Op 01767, First Dept 4-4-23

Practice Point: Absent fraud or collusion, strict privity precludes a legal malpractice action by prospective beneficiaries of an estate against the attorney who planned the estate. Here the attorney owed no duty to the prospective beneficiaries.

 

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THE MOTION TO SET ASIDE THE VERDICT APPORTIONING LIABILITY TO THE GYNECOLOGIST WHO NOTED IN HIS REPORT HE FOUND “NO ABNORMALITIES” SHOULD HAVE BEEN GRANTED; PLAINTIFF DID NOT PROVE THE NOTATION MISLED THE PRIMARY CARE PHYICIAN RESULTING IN A DELAY IN DIAGNOSING APPENDICITIS (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant Dr. Subramanyam’s motion to set aside the verdict apportioning liability to him in this medical malpractice case should have been granted. Plaintiff experienced abdominal and was referred by her primary physician (defendant Dr. Selitsky) to Dr. Subramanyam for a gynecological exam. Dr. Subramanyam’ noted in his report that “no abnormalities” were found. Plaintiff argued the “no abnormalities” finding misled Dr. Selitsky causing a delay in diagnosis of plaintiff’s appendicitis:

We find that the record was insufficient to support the jury’s findings that Dr. Subramanyam’s notation of “no abnormalities” misled Dr. Selitsky, who was plaintiff’s primary care physician, and thereby delayed plaintiff’s treatment for appendicitis.

Defendant Dr. Selitsky, testified that she did not rely upon Dr. Subramanyam’s sonogram report in ruling in or out the possibility of appendicitis, a diagnosis she already had considered as part of her differential diagnosis. She further testified that her referral of plaintiff to Dr. Subramanyam was solely to determine whether the source of plaintiff’s pain was gynecological in origin. Furthermore, Dr. Selitsky testified that while she assumed that she had received a copy of the report, she could not recall reading it, and, if she had read it, when she did so. Dr. Subramanyam also testified that it was not within his role to provide recommendations in his report or advise physicians what they should do next. Ameziani v Subramanyam, 2023 NY Slip Op 01759, First Dept 4-4-23

Practice Point: Defendant primary care doctor referred plaintiff to defendant gynecologist to determine the cause of abdominal pain. The gynecologist noted in his report he found “no abnormalities.” Plaintiff alleged that notation misled the primary care physician causing delay in the diagnosis of appendicitis. The appellate division set aside the verdict against the gynecologist.

 

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RE: 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).

The First Department, in a decision too complex to fairly summarize here, noted that for breach of contract actions alleging purely economic injury the claims accrue in the “place of injury,” usually plaintiff’s residence:

… Supreme Court should not have found that the claims accrued in New York and were timely under New York’s six-year statute of limitations. In contract cases involving a purely economic injury, accrual is determined by the “place of injury,” which usually is determined by applying the “plaintiff-residence” rule; this rule asks where the plaintiff resides and where it feels the economic impact of the loss … . MLRN LLC v U.S. Bank, N.A., 2023 NY Slip Op 01748, First Dept 3-30-23

Practice Point: A breach of contract action alleging purely economic injury usually accrues in the “place of injury” which is usually where plaintiff resides.

 

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