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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).

The Second Department, reversing Supreme Court, determined the administrator’s (Walter’s) motion to renew in this medical malpractice action should not have been granted. Walter moved to be substituted as plaintiff. Initially the motion was denied but upon Walter’s motion to renew, the motion was granted:

“A motion for leave to renew . . . shall be based upon new facts not offered on the prior motion that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion” … . “CPLR 2221(e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form” … . However, “[w]hile it may be within the court’s discretion to grant leave to renew upon facts known to the moving party at the time of the prior motion, a motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation”… . “Thus, the court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion”… . “While law office failure can be accepted as a reasonable excuse in the exercise of the court’s sound discretion, the movant must submit supporting facts to explain and justify the failure, and mere neglect is not accepted as a reasonable excuse” … .

“If a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order substitution of the proper parties” (CPLR 1015[a]). “A motion for substitution may be made by the successors or representatives of a party or by any party” … . “If the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made” … . “In determining reasonableness, a court should consider the plaintiff’s diligence in seeking substitution, prejudice to the other parties, and whether the action is shown to have potential merit” … . “Even if the plaintiff’s explanation for the delay is not satisfactory, the court may still grant the motion for substitution if there is no showing of prejudice and there is potential merit to the action, in light of the strong public policy in favor of disposing of matters on the merits” … . Tollinchi v Jamaica Hosp. Med. Ctr., 2023 NY Slip Op 02554, Second Dept 5-10-23

Practice Point: The criteria for a motion to renes, and for a motion to be substituted as a party after the death of a party explained in some depth. Here the motion to renew and the motion to be substituted as a party should have been denied.

 

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THE RELEASE SIGNED BY PLAINTIFF BEFORE TAKING A MANDATORY COLLEGE FITNESS-EDUCATION COURSE PRECLUDED HER LAWSUIT AGAINST THE COLLEGE ALLEGING INJURIES SUSTAINED TAKING THE COURSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the release signed by the plaintiff precluded her suit against defendant community college (DCC) for alleged injuries sustained in a mandatory fitness education course:

The plaintiff enrolled in a wellness and fitness education course, which was a mandatory course that had to be taken as part of her general studies degree program at Dutchess Community College. The plaintiff informed the course instructor of her prior back injuries, and signed a release which, in relevant part, “discharge[d] Dutchess Community College from all liability for . . . any claim of injury to [the plaintiff’s] person . . . whether harm is caused by the negligence of the releasees or otherwise.” The release further provided that it was “intended to be broad and inclusive in keeping with state laws.” * * *

“Where the language of an exculpatory agreement expresses in unequivocal terms the intention of the parties to relieve a defendant of liability for its own negligence, the agreement will be enforced” … . “Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release ‘shifts the burden of going forward . . . to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient to void the release'” … . Sjogren v Board of Trustees of Dutchess Community Coll., 2023 NY Slip Op 02551, Second Dept 5-10-23

Practice Point: An unambiguous release will preclude a lawsuit absent fraud sufficient to void the agreement.

 

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WHERE, AS HERE, A PARTY IS A DEFENDANT IN ONE ACTION AND A PLAINTIFF IN ANOTHER ACTION, BOTH OF WHICH STE,M FROM THE SAME TRAFFIC ACCIDENT, THE ACTIONS SHOULD BE CONSOLIDATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the two actions stemming from a single traffic accident should have been consolidated. Decedent leased a truck from defendant Travis and had an accident. Decedent sued Travis alleging negligent maintenance of the truck, Travis sued decedent for the damage to the truck. The two actions should have been consolidated:

CPLR 602(b) provides that “[w]here an action is pending in the supreme court it may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried together with that in the supreme court.” Although a motion pursuant to CPLR 602 “is addressed to the sound discretion of the trial court, consolidation or joinder for trial is favored to avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts. Where common questions of law or fact exist, a motion . . . to consolidate [or for a joint trial] should be granted, absent a showing of prejudice to a substantial right by the party opposing the motion” … .

Here, the two actions involve significant common questions of law and fact; a failure to try them jointly would result in a duplication of trials, unnecessary costs and expense, and a danger of an injustice resulting from divergent decisions; and there has been no showing of prejudice by Travez … . Sherpa v Ford Motor Co., 2023 NY Slip Op 02550, Second Dept 5-10-23

Practice Point: Where two actions arise from the same traffic accident and a party is a defendant in one action and a plaintiff in the other, the actions should be consolidated pursuant to CPLR 602(b).

 

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THE PARTIAL PAYMENTS MADE TOWARD THE DOWN PAYMENT ON THE REAL ESTATE PURCHASE CONTRACT DID NOT CONSTITUTE PART PERFORMANCE OF THE ALLEGED ORAL MODIFICATION OF THE AGREEMENT; THE STATUTE OF FRAUDS RENDERED THE ALLEGED ORAL MODIFICATION UNENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the alleged oral modification of the real estate purchase contract was unenforceable pursuant to he statute of frauds. The original contract called for a $750,000 down payment by a specified date. The payment was not made. Plaintiff argued defendant had orally agreed to take installment payments toward the down payment and two partial payments had in fact been made and accepted. Plaintiff sued for specific performance of the contract. The defendant asserted the statute of frauds affirmative defense. The Second Department held that the two payments did not constitute part performance which would excuse the absence of a writing:

While the statute of frauds empowers courts of equity to compel specific performance of agreements in cases of part performance (see General Obligations Law § 5-703[4]), “the claimed partial performance must be unequivocally referable to the agreement” … . Unequivocally referable conduct is conduct that is “inconsistent with any other explanation” … . It is insufficient “that the oral agreement gives significance to plaintiff’s actions” … . “Rather, the actions alone must be ‘unintelligible or at least extraordinary,’ explainable only with reference to the oral agreement” … . “Significantly, the doctrine of part performance is based on principles of equity, in particular, recognition of the fact that the purpose of the Statute of Frauds is to prevent frauds, not to enable a party to perpetrate a fraud by using the statute as a sword rather than a shield” … . S&G Golden Estates, LLC v New York Golf Enters., Inc., 2023 NY Slip Op 02548, Second Dept 5-10-23

Practice Point: In order to constitute part performance of a contract such that the statute of frauds does not apply, the part performance must be inconsistent with any other explanation. The actions must be explainable only with reference to the oral agreement (not the case here).

 

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IN THIS TRAFFIC ACCIDENT CASE WHERE “SERIOUS INJURY” WAS AN ISSUE, VIDEO SURVEILLANCE OF PLAINTIFF TAKEN BEFORE THE DEPOSITION AND AFTER A DISCOVERY ORDER WAS PRECLUDED FROM BOTH THE SUMMARY JUDGMENT STAGE AND TRIAL; THERE IS NO SPECIFIC DEADLINE FOR PROVIDING VIDEO SURVEILLANCE GATHERED AFTER THE DEPOSITION; THE POST-DEPOSITION VIDEO SURVEILLANCE WAS NOT PRECLUDED (SECOND DEPT).

The Second Department, modifying Supreme Court, in a full-fledged opinion by Justice Dillon, determined that video surveillance of the plaintiff taken prior to the deposition in this traffic accident case, and after a discovery order requiring disclosure of video surveillance had been issued, could not be used in support of a summary judgment motion re: “serious injury” or at trial. However, video surveillance taken after the deposition need not be provided to the plaintiff by any specific deadline and was not precluded:

… [W]e conclude that the defendant’s noncompliance with the plaintiff’s discovery notice and two court orders, over an extended period of time, was willful and strategic with regard to the [pre-deposition] surveillance video. … [T]he defendant should have been precluded from using the … surveillance video of the plaintiff …, as it was not disclosed prior to the plaintiff’s deposition … . * * *

CPLR 3101(i) contains no language prohibiting the acquisition of surveillance video of a party after that party has testified at a deposition. Nor does any decisional authority. Indeed, CPLR 3101(h) recognizes that disclosure is a continuing obligation, requiring parties to amend or supplement discovery responses when later information is obtained that renders an earlier response inaccurate or incomplete when made or when the prior response, though correct and complete when made, is materially no longer so. And parties are not required to be more forthcoming with surveillance videos than they would with any ordinary discovery material under CPLR 3101(a) … .

That said, CPLR 3101(i) provides no fixed deadline for the disclosure of post-deposition surveillance video footage … . Rather, trial courts may regulate issues of timing through their preliminary and compliance conference orders … , subject to their authority and discretion to manage their calendars and determine whether to preclude evidence under CPLR 3126(2) for any noncompliance with court-imposed deadlines … . Pizzo v Lustig, 2023 NY Slip Op 02541, Second Dept 5-10-23

Practice Point: Here surveillance video of the plaintiff which was gathered before the deposition and after a disclosure order was precluded from both the summary judgment stage and the trial. There is no specific deadline for turning over video surveillance of the plaintiff gathered after deposition and that video evidence was not precluded.

 

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​ DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION OR DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant did not demonstrate it did not create the dangerous condition and did not demonstrate it did not have constructive notice of the condition. A metal gate, which should have been secured, fell on plaintiff:

… [T]estimony, if credited, indicates that the gate was not secured to the track, thereby raising a triable issue of fact as to whether the manager created the alleged dangerous condition that caused the plaintiff’s injuries by failing to properly secure the gate at the end of his shift that day … .

… [T]he service manager testified at his deposition that it was his regular practice to inspect the area of the gate “two [or] three times a day,” but the defendant offered no evidence as to when the gate was last inspected on the date of the plaintiff’s injuries. The service manager’s testimony, which “merely referenced his general inspection practices” and failed to indicate when the area where the accident occurred “was last inspected . . . relative to the accident,” was insufficient to demonstrate a lack of constructive notice … . Pena v Pep Boys-Manny, Moe & Jack of Del., Inc., 2023 NY Slip Op 02530, Second Dept 5-10-23

Practice Point: Here a metal gate which should have been secured fell on plaintiff. The defendant did not demonstrate when the area where the accident occurred was last inspected. Therefore defendant failed to demonstrate it did not have constructive notice of the unsecured gate.

Similar constructive-notice issue and result in a slip and fall: Rolon v Arden 29, LLC, 2023 NY Slip Op 02545, Second Dept 5-10-23

 

IN A JUDICIAL DISSOLUTION, IF THE PARTIES CANNOT AGREE ON THE DISPOSITION OF THE ASSETS THE ONLY OPTION IS LIQUIDATION AT A PUBLIC SALE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court did not have the authority to order a sealed-bid auction of the corporate assents in this judicial dissolution case. Because the parties could not agree on the disposition of the assents, under the Business Corporation Law, the only option is liquidation at a public sale:

“‘Postdissolution procedures in a judicial dissolution proceeding are set forth in Business Corporation Law § 1005 through 1008′” … . Business Corporation Law § 1005(a)(2) states that after dissolution “[t]he corporation shall proceed to wind up its affairs, with power to fulfill or discharge its contracts, collect its assets, sell its assets for cash at public or private sale, discharge or pay its liabilities, and do all other acts appropriate to liquidate its business.” “When the parties cannot reach an agreement amongst themselves with respect to the sale of the corporation’s assets either to one another or to a third party, ‘the only authorized disposition of corporate assets is liquidation at a public sale'” … . Thus, since the parties were not able to reach a full agreement as to the terms of the private sale, the Supreme Court did not have the authority to authorize the sealed-bid auction … . Matter of ANO, Inc. v Goldberg, 2023 NY Slip Op 02508, Second Dept 5-10-23

Practice Point: In a judicial dissolution of a corporation, if the parties cannot agree on the disposition of the assets, liquidation at a public sale is the only option.

 

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).

The Second Department, reversing Supreme Court, determined the discontinuance of the action without prejudice, which plaintiff requested on the day of trial, did not entitle plaintiff to the six-month extension of the statute of limitations afforded by CPLR 205(a):

CPLR 205(a) “extends the time to commence an action after the termination of an earlier related action, where both actions involve the same transaction or occurrence or series of transactions or occurrences” … . The statute “provides a six-month grace period” where the previous action has been dismissed in “any ‘other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits'” … .

In this case, CPLR 205(a) was not available to extend the limitations period beyond the termination of the 2001 action, since that action was terminated by means of a voluntary discontinuance. The plaintiff affirmatively requested the discontinuance, and it was granted at his behest and over his adversary’s objection. An action may be voluntarily discontinued either by a stipulation or notice, pursuant to CPLR 3217(a), or by a court order, pursuant to CPLR 3217(b). Contrary to the plaintiff’s contention, a discontinuance sought by a plaintiff and effectuated by a court order under CPLR 3217(b) is no less voluntary within the meaning of CPLR 205(a) than a discontinuance effectuated by a stipulation or notice under CPLR 3217(a) … . Islam v 495 McDonald Ave., LLC, 2023 NY Slip Op 02501, Second Dept 5-10-23

Practice Point: A discontinuance without prejudiced granted to plaintiff over objection is a voluntary discontinuance to which the six-month extension of the statute of limitations afforded by CPLR 205(a) does not apply.

 

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).

The Second Department, reversing County Court, determined the Executive Order suspending Criminal Procedure Law 30.30 (speedy trial) during the COVID pandemic was applicable and defendant’s motion to dismiss the indictment for violation of the speedy trial statute should not have been granted:

Executive Order 202.87, while it was in effect, constituted a toll of the time within which the People must be ready for trial for the period from the date a felony complaint was filed through the date of a defendant’s arraignment on the indictment, with no requirement that the People establish necessity in each particular case. We find that the phrase “to the extent necessary” modifies “suspended” and not “toll,” as it “explains how sections 303.30 and 190.80 are suspended—not in their entirety but ‘to the extent necessary'” … . Therefore, “Executive Order 202.87 does not require a showing of necessity to toll time periods because it does not explicitly condition the tolling on necessity” … . Moreover, as the People contend, CPL 30.30(4)(g) permits the exclusion of “periods of delay occasioned by exceptional circumstances.” Finding that a showing of necessity is required for the exclusion of time under Executive Order 202.87 would render that Executive Order superfluous and unnecessary. People v Taback, 2023 NY Slip Op 02334, Second Dept 5-3-23

Practice Point: The People do not have to show “necessity” to take advantage of the order suspending the speedy trial statute during COVID.

 

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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).

The Second Department, reversing Supreme Court, determined the Article 78 petition seeking court review of the denial of a FOIL request should not have been dismissed for failure to exhaust administrative remedies. Here the county did not respond to the FOIL request within five days, which, under the controlling regulations, is a denial. Petitioner, after an additional 30 days, filed the Article 78 petition without pursuing an administrative appeal. The Second Department held that the county’s failure to notify petitioner of the availability of administrative review justified petitioner’s failure to seek it before going to court, even though petitioner was aware of the availability of the administrative review process:

“The statutory time to respond to a FOIL request for records is ‘within five business days of the receipt of a written request,’ and the agency should respond by ‘mak[ing] such record available to the person requesting it, deny[ing] such request in writing or furnish[ing] a written acknowledgment of the receipt of such request and a statement of the approximate date . . . when such request will be granted or denied'” … . 21 NYCRR 1401.7(b) states, in relevant part, that “[d]enial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body designated to determine appeals, and that person or body shall be identified by name, title, business address[,] and business telephone number” … . “21 NYCRR 1401.7(c) provides that a FOIL request is deemed denied if there is no response to the request within five business days” … . “[A]ny administrative appeal of a denial [must] be undertaken within 30 days of the denial” … . A petitioner who does not “appeal[ ] the denial in writing” will generally be deemed to have “failed to exhaust its administrative remedies and, thus, [may] not resort to a judicial forum to gain relief” … .

Here, the Supreme Court improperly determined that dismissal was warranted based on the petitioner’s failure to exhaust its administrative remedies. Where, as here, an agency fails to “inform the person [or entity] making the FOIL request that further administrative review of the determination is available, the requirement of exhaustion is excused” … . Matter of Law Offs. of Cory H. Morris v Suffolk County, 2023 NY Slip Op 02312, Second Dept 5-3-23

Practice Point: If the agency which receives a FOIL request does not respond within five days, the request can be deemed denied. If the agency does not notify the party making the request of the availability of administrative review of the denial, failure to seek administrative review is excused, even where, as here, the petitioner was aware of the administrative review process.

 

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