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COURT SHOULD HAVE ALLOWED SUBSTITUTION OF AN AFFIDAVIT OF MERIT PURSUANT TO CPLR 2001; SUA SPONTE DISMISSAL OF COMPLAINT NOT WARRANTED.

The Fourth Department determined Supreme Court should have granted plaintiff’s motion to substitute nunc pro tunc an affidavit of merit and amount due in a foreclosure proceeding. Plaintiff could not confirm the proper execution of the original affidavit (a requirement of an administrative order of the chief administrative judge) and sought to substitute the original with an identical affidavit, the proper execution of which could be confirmed. Supreme Court denied the motion and dismissed the complaint sua sponte. The Fourth Department held that the dismissal was not warranted and CPLR 2001 permitted the substitution:

 

” A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal’ ” … . Here, we conclude that “[t]he fact that . . . plaintiff’s [new] attorney[s] attempted to comply, in good faith, with an Administrative Order of the Chief Administrative Judge that did not exist at the time that the action was commenced, or at the time [the judgment of foreclosure and sale was granted], does not qualify as such an extraordinary circumstance’ ” that would support a sua sponte dismissal … . Indeed, “[n]othing in the Administrative Order[] requires the dismissal of an action merely because the plaintiff’s attorney[s] discover[] that there was some irregularity or defect in a prior submission” … . Thus, contrary to the court’s determination, we conclude that plaintiff is not “effectively required to commence an entirely new action” … .

We further conclude that the court erred in denying that part of plaintiff’s motion seeking to substitute the affidavit of merit and amount due. “CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced” … . In addition, “[p]ursuant to CPLR 5019 (a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party” … . Here, we conclude that the substitution of the original affidavit of merit and amount due with a new, substantively identical affidavit of merit and amount due was a ministerial amendment permitted by CPLR 2001 and CPLR 5019 (a) inasmuch as the change affected only plaintiff’s ability to comply with the Administrative Order, and “[t]he attorney affirmation is not itself substantive evidence” … . We further conclude that “[n]o substantial right of [defendant .. .would] be affected by the court’s substitution” … . Indeed, that defendant did not reside in the subject property when plaintiff commenced the mortgage foreclosure action and the property was vacant at that time, and he never joined this action nor made any effort to contest the foreclosure. Wells Fargo Bank, N.A. v Watanabe, 2016 NY Slip Op 01096, 4th Dept 2-11-16

 

CIVIL PROCEDURE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)/FORECLOSURE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)/AFFIDAVIT OF MERIT AND AMOUNT DUE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)

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ORDER ENTERED ON CONSENT IS NOT APPEALABLE; ONLY REMEDY IS MOTION TO VACATE.

In a Family Court matter, the Fourth Department noted that no appeal lies from an order entered by consent. The correct remedy is a motion to vacate the order:

 

Respondent mother appeals from an order denying her motion to vacate an order of fact-finding and disposition, which was entered on the consent of the parties. We agree with the mother that Family Court erred in denying the motion on the sole ground that a direct appeal from that order was pending. It is well settled that “[n]o appeal lies from an order entered upon the parties’ consent” … and, indeed, we dismissed the mother’s appeal from the consent order for that very reason … . Thus, contrary to the court’s determination, the mother’s sole remedy was ” to move in Family Court to vacate the order, at which time [she] [could] present proof in support of [her] allegations of duress, proof which is completely absent from this record’ ” … . Matter of Annabella B.C. (Sandra L.C.), 2016 NY Slip Op 01064, 4th Dept 2-11-16

 

APPEAL (NO APPEAL LIES FROM A CONSENT ORDER)/CIVIL PROCEDURE (NO APPEAL LIES FROM A CONSENT ORDER, ONLY REMEDY IS MOTION TO VACATE)/FAMILY LAW (NO APPEAL LIES FROM A CONSENT ORDER OF FACT-FINDING AND DISPOSITION, ONLY REMEDY IS MOTION TO VACATE)

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COLLEGE’S DETERMINATION WAS NOT ARBITRARY AND CAPRICIOUS; AGENCY’S RATIONAL RULING MUST BE UPHELD EVEN IF THE REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY.

The Fourth Department determined Supreme Court should not have anulled the respondent college’s ruling as arbitrary and capricious. The controversy concerned the hiring of a business manager by the student government (Brockport Student Government or BSG). Although BSG had the power to hire a manager at approximately $50,000 a year, the college, which must ultimately approve the hiring, rejected it and engaged a managing service for $20,000 less. Because the college’s ruling had a rational basis, it could not be deemed arbitrary and capricious simply because the reviewing court would have decided differently. The Fourth Department explained what “arbitrary and capricious” means:

 

…[T]the court erred in determining that their denial of BSG’s budget allocation for a business manager was arbitrary and capricious. It is well established that “[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts . . . An agency’s determination is entitled to great deference and, [i]f the [reviewing] court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency” … . Here, we conclude that respondents’ discretionary determination to reject BSG’s proposed $49,800 salary for a business manager which was based on a comparison of the “hiring practices and compensation rates of other campus-affiliated organizations”… . Matter of Brockport Student Govt. v State Univ. of N.Y. at Brockport, 2016 NY Slip Op 01099, 4th Dept 2-11-16

 

ADMINISTRATIVE LAW (AGENCY’S RATIONAL RULING MUST BE UPHELD EVEN IF REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY)/EDUCATION-SCHOOL LAW (COLLEGE’S REJECTION OF REQUEST BY STUDENT GOVERNMENT HAD A RATIONAL BASIS AND THEREFORE WAS NOT ARBITRARY AND CAPRICIOUS)/ARBITRARY AND CAPRICIOUS (RATIONAL RULING MUST BE UPHELD EVEN IF REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY)

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DEFENDANT-LANDLORD SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT IN THIS LEAD-PAINT-INJURY CASE, DEFENDANT FAILED TO AFFIRMATIVELY DEMONSTRATE, INTER ALIA, LACK OF ACTUAL OR CONSTRUCTIVE NOTICE.

The Fourth Department determined defendant landlord should not have been granted summary judgment in this lead-paint-injury action.  [The case presents another example of a defendant’s failure to affirmatively address all possible theories of recovery in summary-judgment-motion papers.] Defendant failed to demonstrate, inter alia, the absence of a hazardous condition and her lack of actual or constructive notice of the condition. On the issue of constructive notice, the court wrote:

In Chapman, the Court of Appeals [92 NY2d 9] addressed constructive notice, writing that “a triable issue of fact [on notice] is raised when [the evidence] shows that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” (id. at 15). Here, it is undisputed that defendant retained a right of entry and assumed a duty to make repairs; that she knew that the residence was constructed before lead-based paint was banned; and that she knew that young children lived in the apartment. Rodrigues v Lesser, 2016 NY Slip Op 00836, 4th Dept 2-5-16

 

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MALICIOUS PROSECUTION AND ABUSE OF PROCESS CAUSES OF ACTION NOT SUFFICIENTLY PLED.

In finding the pleading insufficient for malicious prosecution and abuse of process causes of action, the Fourth Department explained the flaws:

Where, as here, the underlying action is civil in nature, the party alleging a claim for malicious prosecution must allege a special injury … . In the instant case, defendant “fail[ed] to plead that the civil proceeding involved wrongful interference with [his] person or property” … . Instead, defendant alleged damages amounting to “the physical, psychological or financial demands of defending a lawsuit,” which is insufficient to constitute a special injury for a claim of malicious prosecution … .

To the extent that defendant contends that the second counterclaim is for abuse of process and not malicious prosecution, we conclude that it must still be dismissed as well. “Insofar as the only process issued [here] was a summons, the process necessary to obtain jurisdiction and begin the lawsuit, there was no unlawful interference with [defendant’s] person or property because the institution of a civil action by summons and complaint is not legally considered process capable of being abused” … . Defendant alleges that plaintiff acted maliciously in bringing the action, but “[a] malicious motive alone . . . does not give rise to a cause of action for abuse of process” … . Reszka v Collins, 2016 NY Slip Op 00807, 4th Dept 2-5-16

MALICIOUS PROSECUTION (WHERE UNDERLYING ACTION IS CIVIL, SPECIAL INJURY MUST BE PLED)/ABUSE OF PROCESS (MALICIOUS  MOTIVE ALONE DOES NOT GIVE RISE TO THE CAUSE OF ACTION)

 

PETITIONERS DID NOT HAVE STANDING TO SEEK ANNULMENT OF A NEGATIVE DECLARATION UNDER THE STATE ENVIROMMENTAL QUALITY REVIEW ACT (SEQRA); PETITIONERS DID NOT ALLEGE “ENVIRONMENTAL INJURY.”

In an action seeking to annul a negative declaration under the State Environmental Quality Review Act (SEQRA), the Fourth Department determined the petitioners did not allege an environmental injury, and therefore did not have standing to bring the petition. The petition concerned the construction of an Erie Community College building on the Amherst campus. Apparently, the underlying basis for the petition was the fact that that the new construction was not in the City of Buffalo, but rather was in a suburb. The court explained that the “injuries” described by the petitioners, such as difficulty in commuting to the new location, were not the type of “environmental injury” contemplated by SEQRA:

 

Despite the responsibility of every citizen to contribute to the preservation and enhancement of the quality of the environment, there is a limit on those who may raise environmental challenges to governmental actions … . Those seeking to raise SEQRA challenges must establish both “an environmental injury that is in some way different from that of the public at large, and . . . that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … .

Here, petitioners failed to establish that they have suffered an environmental injury. In opposition to the motion to dismiss, each petitioner submitted an affidavit discussing how he had been allegedly harmed. Petitioner Wilfred Turner stated that, as a student at ECC, he would be harmed by the proposed construction because he did not own a motor vehicle, and it would be both expensive and inconvenient for him and other similarly situated students to use public transportation to attend classes at the Amherst Campus. Petitioner Joel Giambra, the former County Executive of Erie County, stated that, if the proposed facility were constructed on the Amherst Campus instead of within the City of Buffalo, “[he] would be harmed in that all of the work [he had] done and all of the procedures [he had] fought for would be shown to have been useless.” Finally, petitioner Joseph Golombek, Jr., a City Council member for the City of Buffalo (City), stated that he would be harmed because of the “unfavorable decision on the placement of the facility” inasmuch as his “constituents [would] certainly judge [him] according to how well he accomplished [his] tasks,” such as safeguarding the City from “adverse economic decisions” and “promot[ing] the expansion of business and economic opportunity within the City.” None of those alleged injuries constitutes an environmental injury under SEQRA … . Matter of Turner v County of Erie, 2016 NY Slip Op 00806, 4th Dept 2-5-16

 

ENVIRONMENTAL LAW (PETITIONERS DID NOT ALLEGE ENVIRONMENTAL INJURY, DID NOT HAVE STANDING TO ANNUL NEGATIVE DECLARATION UNDER SEQRA)/STANDING (SEQRA, PETITIONERS DID NOT ALLEGE ENVIRONMENTAL INJURY, DID NOT HAVE STANDING)/STATE ENVIRONMENTAL QUALITY REVIEW ACT [SEQRA] (PETITIONERS DID NOT ALLEGE ENVIRONMENTAL INJURY, DID NOT HAVE STANDING TO ANNUL NEGATIVE DECLARATION UNDER SEQRA)

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STATEMENTS MADE AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED.

in finding suppression of defendant’s statements was properly denied, the Fourth Department explained that an illegal arrest will not require the suppression of statements if the statements were “sufficiently attenuated” from the arrest:

 

… [E]ven assuming that defendant was illegally arrested, “defendant’s statements were sufficiently attenuated from the illegal arrest to be purged of the taint created by the illegality” … . “[A] confession that is made after an arrest without probable cause is not subject to suppression if the People adequately demonstrate that the inculpatory admission was attenuated’ from the improper detention; in other words, it was acquired by means sufficiently distinguishable from the arrest to be purged of the illegality’ ” … . In determining whether there has been attenuation, courts must consider “the temporal proximity of the arrest and the confession, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct” … .

Here, defendant was not interrogated until almost 2½ hours after his arrest … . He was given Miranda warnings prior to the interrogation, which is an “important” attenuation factor … . Before defendant was interrogated, a codefendant implicated defendant in at least one of the crimes, which constituted a significant intervening event and provided the police with probable cause … . People v Buchanan, 2016 NY Slip Op 00800, 4th Dept 2-5-16

 

CRIMINAL LAW (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)/EVIDENCE (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)/SUPPRESSION (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)

JURY INSTRUCTIONS ALLOWED CONSIDERATION OF A THEORY NOT ALLEGED IN THE INDICTMENT OR BILL OF PARTICULARS, CONVICTIONS REVERSED.

The Fourth Department reversed defendant’s conviction on several counts charging sexual offenses because the jury instructions allowed consideration of theories not alleged in the indictment or bill of particulars. Therefore it was not possible to determine whether an uncharged theory was a basis for the jury’s verdict:

 

Although defendant did not object to the court’s instructions and thus did not preserve his contention for our review, we conclude that “preservation is not required” …, inasmuch as “defendant has a fundamental and nonwaivable right to be tried only on the crimes charged,” as limited by either the bill of particulars or the indictment itself … . Where the court’s jury instruction on a particular count erroneously contains an additional theory that differs from the theory alleged in the indictment, as limited by the bill of particulars, and the evidence adduced at trial could have established either theory, reversal of the conviction on that count is required because there is a possibility that the jury could have convicted the defendant upon the uncharged theory … . Indeed, such an error cannot be deemed harmless because it is impossible for an appellate court reviewing a general verdict to ascertain on which theory the jury convicted the defendant or whether the jury was unanimous with respect to the theory actually charged in that count … . People v Graves, 2016 NY Slip Op 00853, 4th Dept 2-5-16

 

CRIMINAL LAW (JURY INSTRUCTIONS ALLOWED CONSIDERATION OF A THEORY NOT CHARGED, CONVICTIONS REVERSED)/JURY INSTRUCTIONS (INSTRUCTIONS ALLOWED CONSIDERATION OF A THEORY NOT CHARGED, CONVICTIONS REVERSED)

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MOTIONS TO SET ASIDE THE DEFENSE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED.

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motions to set aside the verdict as against the weight of the evidence should not have been granted. The issue was whether plaintiffs established “serious injury” in a car accident. The Fourth Department explained the criteria for setting aside a jury verdict:

 

It is well established that ” [a] verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence’ ” … . “Although [t]hat determination is addressed to the sound discretion of the trial court, . . . if the verdict is one that reasonable persons could have rendered after receiving conflicting evidence, the court should not substitute its judgment for that of the jury” … . Furthermore, “it is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses” … .

Here, we conclude that the court erred in setting aside the jury’s verdict inasmuch as the jury was entitled to credit the testimony of defendant’s witnesses and reject the testimony of plaintiffs’ witnesses … . Even assuming, arguendo, that plaintiffs established a prima facie case of serious injury, we nevertheless conclude that the jury was entitled to reject the opinions of plaintiffs’ physicians … . The jury’s interpretation of the evidence was not ” palpably irrational’ ” … , or ” palpably wrong’ ” … , and the court therefore erred in granting plaintiffs’ motions. McMillian v Burden, 2016 NY Slip Op 00851, 4th Dept 2-5-16

 

CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED)/EVIDENCE (CIVIL, MOTION TO SET ASIDE VERDICT SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED)/VERDICT (CIVIL, MOTION TO SET ASIDE SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED)

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LAW FIRM’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED, CRITERIA FOR LEGAL MALPRACTICE WHERE AN ACTION HAS BEEN SETTLED EXPLAINED.

The Fourth Department, reversing Supreme Court, determined defendant’s counterclaim alleging legal malpractice in a divorce proceeding which was settled should have been dismissed. The court explained the malpractice criteria in an action which was settled:

 

Defendant contends, inter alia, that but for plaintiff’s alleged negligence she would have received a more favorable result had she proceeded to trial. Generally, “to recover damages for legal malpractice, a [client] must prove (1) that the [law firm] failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the [client] would have been successful in the underlying action had the [law firm] exercised due care” … . In a legal malpractice action in which there was no settlement of the underlying action, it is well settled that, “[t]o obtain summary judgment dismissing [the] complaint . . . , a [law firm] must demonstrate that the [client] is unable to prove at least one of the essential elements of its legal malpractice cause of action” … . A settlement of the underlying action does not, per se, preclude a legal malpractice action … . Where, as here, however, the underlying action has been settled, the focus becomes whether “settlement of the action was effectively compelled by the mistakes of counsel” … . Where the law firm meets its burden under this test, the client must then provide proof raising triable issues of fact whether the settlement was compelled by mistakes of counsel, and “[m]ere speculation about a loss resulting from an attorney’s [alleged] poor performance is insufficient” … . Conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the client would be in a better position but for the settlement, without more, do not make out a claim of legal malpractice … . Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP v Wilson, 2016 NY Slip Op 00841, 4th Dept 2-5-16

 

ATTORNEYS (LEGAL MALPRACTICE, CRITERIA WHERE UNDERLYING ACTION IS SETTLED EXPLAINED)/LEGAL MALPRACTICE (CRITERIA WHERE UNDERLYING ACTION IS SETTLED EXPLAINED)/NEGLIGENCE (LEGAL MALPRACTICE, CRITERIA WHERE UNDERLYING ACTION IS SETTLED EXPLAINED)

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