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THE ‘COVID-19’ EXECUTIVE ORDER GENERALLY TOLLING THE STATUTE OF LIMITATIONS DID NOT EXTEND THE TIME FOR FILING A PETITION TO VALIDATE A DESIGNATING PETITION, WHICH IS GOVERNED BY ANOTHER ‘COVID-19’ EXECUTIVE ORDER (SECOND DEPT). ​

The Second Department determined the petition to validate the appellant’s designating petition was not timely commenced pursuant to Executive Order No. 202.8 passed in response to the COVID-19 pandemic:

… [T]he statute of limitations for commencing this Election Law article 16 proceeding was not tolled by a provision of Executive Order (Cuomo) No. 202.8 (9 NYCRR 8.202.8), issued on March 20, 2020, in response to the COVID-19 pandemic, which generally tolled limitations periods. Rather, this matter is governed by chapter 24 of the Laws of 2020, passed by the Legislature and signed into law by the Governor two days before the issuance of Executive Order No. 202.8, also in response to the COVID-19 pandemic … . That legislation set a new date for the filing of designating petitions and specifically provided that the time to commence an Election Law article 16 proceeding “shall be adjusted accordingly” … . Indeed, tolling the statute of limitations when the primary election will take place on June 23, 2020, is unworkable … for commencing Election Law article 16 proceedings, pertaining to the validity of designating petitions. We note that while the courts ceased accepting papers for filing in many legal matters due to the pandemic, they continued to accept filings of emergency Election Law applications, as such matters were deemed “essential” by the Chief Administrative Judge … . Matter of Echevarria v Board of Elections in the City of N.Y., 2020 NY Slip Op 02992, Second Dept 5-21-20

 

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DEFENDANT FAILED TO DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE BROKEN CURB WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant did not demonstrate it did not have constructive notice of the broken curb which allegedly caused plaintiff’s slip and fall:

… [T]he defendants failed to meet this burden. In support of their motion, among other things, they proffered the affidavit of the director of engineering of Mount Vernon Hospital who averred that there were no maintenance or complaint records for approximately three years preceding the accident, that he would inspect the premises approximately once a month, and that “the sidewalk and curbing is repaired and replaced on an as needed basis.” The defendants did not proffer any evidence demonstrating when the area at issue was last inspected prior to the plaintiff’s alleged accident … . Moreover, the defendants failed to make a prima facie showing that the alleged defect that caused the plaintiff to fall was not visible and apparent, and would not have been noticed upon a reasonable inspection of the area where the plaintiff alleged she tripped and fell … . Malloy v Montefiore Med. Ctr., 2020 NY Slip Op 02921, Second Dept 5-20-20

 

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UNDER CALIFORNIA LAW A CONTRACT WITH MUTUAL CANCELLATION CLAUSES IS VALID; THEREFORE THE CANCELLATION BY DEFENDANT WAS NOT A BREACH OF THE CONTRACT OR THE COVENANT OF GOOD FAITH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the contract, which required the application of California law, and which included mutual cancellation clauses, was valid. Therefore cancellation by the defendant was not a breach of the contract or the covenant of good faith:

Contrary to the plaintiff’s contention, the terms of the agreement in this case expressly permitted cancellation by either party during the initial one-year term, and the complaint therefore fails to state a viable cause of action for breach of contract. Pursuant to California law, contracts with mutual cancellation provisions are not illusory … , and contracts that provide for a fixed duration but that also contain an express clause for termination at will are not inconsistent … . …

… [T]he cause of action alleging anticipatory breach seeks damages for losses allegedly arising from the defendant’s failure to renew the term of the agreement. However, since the defendant properly cancelled the agreement during the initial term, there can be no recovery for anticipatory breach of contract based on any subsequent nonrenewal … . …

“It is universally recognized the scope of conduct prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the contract” … , and the Supreme Court of California has noted that it is “aware of no reported case in which a court has held the covenant of good faith may be read to prohibit a party from doing that which is expressly permitted by an agreement” … . A.D.E. Sys., Inc. v Energy Labs, Inc., 2020 NY Slip Op 02911, Second Dept 5-20-20

 

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JUDGE SHOULD NOT HAVE SEARCHED THE RECORD AND, SUA SPONTE, GRANTED RELIEF NOT REQUESTED IN THE MOTION PAPERS, INCLUDING THE APPLICATION OF THE RES IPSA LOQUITUR DOCTRINE (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the judge should not have, sua sponte, searched the record to grant relief that was not requested in this Labor Law 200, 240(1), 241(6), negligence action. Plaintiff was injured when a portion of a ceiling fell causing a scaffold to collapse on him. The judge should not have granted summary judgment on a negligence cause of action which was not included in the motions, and should not have granted summary judgment on a res ipsa loquitur theory:

While it is well settled that the Supreme Court has the authority to search the record and grant summary judgment to a nonmoving party with respect to an issue that was the subject of a motion before the court (see CPLR 3212[b] …), here, the court, in effect, searched the record and awarded summary judgment to the movant with respect to an issue that was not the subject of the motion before the court. …

The doctrine of res ipsa loquitur applies when the injury-causing event (1) is “of a kind which ordinarily does not occur in the absence of someone’s negligence”; (2) “[is] caused by an agency or instrumentality within the exclusive control of the defendant”; and (3) was not “due to any voluntary action or contribution on the part of the plaintiff” … . Contrary to the Supreme Court’s determination, this is not one of “the rarest of res ipsa loquitur cases” where the plaintiff’s circumstantial evidence is so convincing and the defendant’s response so weak that the inference of the defendant’s negligence is inescapable … . Although the first and third elements may be satisfied in the plaintiff’s favor, based upon the limited record, this standard was not met as to the second element. Even though courts do not generally apply the requirement of exclusive control as it is literally stated or as a fixed, mechanical or rigid rule … , the plaintiff failed to demonstrate that the plaster ceiling is “structural” and, therefore, the obligation of [defendant] Lexington to maintain pursuant to the terms of the lease it entered into with [defendant] Dover. Moreover, the papers do not establish the plaintiff’s entitlement to summary judgment against Dover on this issue, which was raised by the court sua sponte as against Dover, and was not the subject of the plaintiff’s motion as against Dover. Zhigue v Lexington Landmark Props., LLC, 2020 NY Slip Op 02948, Second Dept 5-20-20

 

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ALTHOUGH THE SEARCH WARRANT WAS IMPROPERLY ADDRESSED TO THE SPECIAL OPERATIONS GROUP, WHICH INCLUDED PEACE OFFICERS AS OPPOSED TO POLICE OFFICERS, THE WARRANT WAS PROPERLY ADDRESSED TO POLICE OFFICERS AS WELL; THE PARTICIPATION OF PEACE OFFICERS IN THE SEARCH WAS LIMITED AND DID NOT INVALIDATE THE SEARCH (SECOND DEPT).

The Second Department determined the fact that corrections officers (i.e., peace officers) participated in a search, along with police officers, did not invalidate the search:

There is no dispute that the search warrant was properly addressed to police officers of the City of Middletown Police Department and police officers of the New York State Police (see CPL 1.20[34][a], [d]). Accordingly, the search warrant complied with the statutory requirement that it “be addressed to a police officer whose geographical area of employment embraces or is embraced or partially embraced by the county of issuance” (CPL 690.25[1]).

The defendant is correct that the search warrant was improperly addressed to the Special Operations Group, since it includes members who are not police officers within the meaning of the statute (see CPL 690.25[1]; see also CPL 2.10[25]). However, “[s]earch warrants should be tested in a commonsense and realistic manner with minor omissions and inaccuracies not affecting an otherwise valid warrant”  … . * * *

Here, the record of the suppression hearing demonstrates that the Special Operations Group played a limited role in the execution of the warrant. Members of that group merely secured entry to the residence for the benefit of the police officers who actually conducted the search and recovered the physical evidence at issue. People v Ward, 2020 NY Slip Op 02943, Second Dept 5-20-20

 

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FATHER’S CHILD SUPPORT OBLIGATION DID NOT CEASE UPON MOTHER’S DEATH; MATERNAL GRANDFATHER’S PETITION SEEKING TO BE MADE THE CHILD-SUPPORT PAYEE RETROACTIVE TO MOTHER’S DEATH PROPERLY GRANTED (SECOND DEPT).

The Second Department determined father’s child support obligations did not cease upon the death of mother. The maternal grandparents were awarded sole custody of the child. The maternal grandfather’s petition seeking to be made the payee of father’s child support was properly granted, retroactive to the date of mother’s death:

Since a child support obligation is owed to the child, not to the payee spouse, “the death of the payee spouse does not terminate the obligation” … . Here, the death of the mother did not terminate the father’s continuing obligation under the order of support dated December 4, 2014, to support the children. It would be contrary to the statutory scheme of the Family Court Act and the important public policies it embodies for the father to no longer be liable for unpaid child support payments accrued after the mother’s death where, as here, “he neither had custody of the child[ren] nor sought to otherwise modify his child support obligation during the relevant period” … . Matter of Sultan v Khan, 2020 NY Slip Op 02929, Second Dept 5-20-20

 

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FAMILY COURT SHOULD NOT HAVE SUMMARILY DISMISSED MOTHER’S PETITION FOR CUSTODY OF CHILDREN LIVING OUT-OF-STATE WITHOUT FIRST DETERMINING WHETHER IT HAD EXCLUSIVE, CONTINUING JURISDICTION OVER CUSTODY ISSUES (SECOND DEPT).

The Second Department determined Family Court should not have dismissed mother’s petition seeking sole custody of the children, who lived out-of-state, without first making a ruling on whether it had continuing jurisdiction over custody issues:

On November 22, 2016, the Family Court issued an order (hereinafter the custody order) awarding, inter alia, joint legal custody of the subject children to the mother and the children’s godmother, with primary physical custody and final decision-making authority to the godmother. …

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified in article 5-A of the Domestic Relations Law, a court in this State which has made an initial custody determination has exclusive, continuing jurisdiction over that determination until it finds, as is relevant here, that it should relinquish jurisdiction because the child does not have a “significant connection” with New York, and “substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships” (Domestic Relations Law § 76-a[1][a] …). …

… Family Court should not have summarily dismissed the mother’s petition on the ground that the children had been living with the godmother in Pennsylvania, without considering whether it had exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a (1) … , and affording the mother an opportunity to present evidence as to that issue … . Matter of Hodge v Hodges-Nelson, 2020 NY Slip Op 02926, Second Dept 5-20-20

 

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SALE OF LAND ORIGINALLY SET ASIDE FOR A CEMETERY WITHOUT RESTRICTIONS CONSTITUTED AN ABANDONMENT OF THE CEMETERY-RELATED USE-RESTRICTIONS ON THE LAND (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, determined the (1907) restrictions on land originally set aside for use as a cemetery had been abandoned (by the sale of the land in 1908) and the single-family residential zoning restrictions subsequently imposed on the land were enforceable, despite the repurchase of the land (in 1950) by the operator of the cemetery:

“A holder of a deed of a cemetery lot . . . acquires only a privilege or license, exclusive of others, to make interments in the lot purchased, only so long as the lot remains a cemetery” … . However, such privilege or license may be extinguished upon abandonment of the cemetery use … . * * *

… “[W]here a cemetery has been so neglected as entirely to lose its identity as such, and is no longer known, recognized, and respected by the public as a cemetery, it may be said to be abandoned” … . Moreover, an affirmative act that “undoes the character and association” of the cemetery “and leaves the land subject to sale or to legal partition . . . loses its sacredness as a resting place for the dead” … . …

Here, the 1908 sale of the 33-acre parcel … to … a private individual, which included the 12.5-acre parcel at issue, constituted an affirmative act of abandonment of the cemetery use of that property. The petitioner failed to submit any evidence to establish a continuous and uninterrupted relationship between itself and the persons or entities that owned the property from 1908 to 1971, when it reacquired the property … . Matter of Ferncliff Cemetery Assn. v Town of Greenburgh, 2020 NY Slip Op 02925, Second Dept 5-20-20

 

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TAKING A LEAVE OF ABSENCE FROM A POSITION ON THE COUNTY BOARD OF ELECTIONS TO RUN FOR STATE SENATE IS NOT THE EQUIVALENT OF RESIGNING FROM THE BOARD OF ELECTIONS, WHICH IS REQUIRED BY THE ELECTION LAW; THE DESIGNATING PETITION SHOULD HAVE BEEN INVALIDATED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the designating petition of LaLota should have been invalidated under the provisions of the Election Law. LoLota was a Commissioner of the Suffolk County Board of Elections. He took a “leave of absence” from that position to allow him to seek office as a State Senator. The Second Department held that taking a leave of absence was not the equivalent of resigning, which is required by the Election Law:

The purpose of the statute is readily apparent—to prevent the conflict of interest, and potential abuse of authority, that would arise if a person is simultaneously both a candidate for public office and an election commissioner charged with the responsibility for overseeing the casting and canvassing of votes for that office. The concern that the statute addresses would not be assuaged by an election commissioner simply stepping aside momentarily while reserving the right to act as commissioner at any time of his or her own choosing. Additionally, because the Deputy Commissioner is appointed by, and serves at the pleasure of, the Commissioner … , LaLota’s designation of his deputy to act for him during his leave of absence does not serve to ameliorate the conflict of interest concerns against which the statute seeks to guard. Matter of LaLota v New York State Bd. of Elections, 2020 NY Slip Op 02905, Second Dept 5-15-20

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, TERMINATED THE GUARDIANSHIP OF AN INCAPACITATED PERSON WITHOUT HOLDING A HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, terminated the guardianship of an incapacitated person (IP) without holding a hearing:

In April 2016, Fanny K. commenced this proceeding pursuant to Mental Hygiene Law article 81 seeking to be appointed as the guardian to manage Angeliki K.’s property located in Greece. After a hearing, the Supreme Court determined that Angeliki K. (hereinafter the IP) was incapacitated within the meaning of Mental Hygiene Law article 81 and appointed Fanny K. (hereinafter the guardian) as the guardian of her property. In September 2018, due to the IP’s health problems and resultant inability to communicate in English, the IP was admitted to an assisted living and rehabilitation facility in Athens, Greece. In November 2018, the guardian moved for leave to change the IP’s place of abode from New York to the assisted living and rehabilitation facility, with the IP continuing to maintain her permanent residence in New York. The court, without a hearing, denied the motion and, sua sponte, terminated the guardianship due to a lack of a continuing nexus between the guardianship and New York.

The Supreme Court should not have, sua sponte, terminated the guardianship, without a hearing, as a guardianship may be terminated “only on application of a guardian, the incapacitated person, or any other person entitled to commence a proceeding under Mental Hygiene Law article 81 with a hearing on notice” (… see Mental Hygiene Law §§ 81.36[b], [c] …). Matter of Angeliki K. (Fanny K.), 2020 NY Slip Op 02786, Second Dept 5-13-20

 

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