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THIS FAMILY OFFENSE PROCEEDING WAS REMITTED TO FAMILY COURT; APPELLATE REVIEW WAS NOT POSSIBLE IN THE ABSENCE OF FINDINGS OF FACT ADDRESSING CONFLICTING EVIDENCE AND THE CREDIBILITY OF WITNESSES (SECOND DEPT).

The Second Department, remitting the matter to Family Court in this family offense proceeding, noted that appellate review was impossible without findings of fact:

The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record … .

Effective appellate review requires that appropriate factual findings be made by the hearing court since it is the court best able to measure the credibility of the witnesses … . In granting or denying a petition for an order of protection, the Family Court must state the facts deemed essential to its determination (see CPLR 4213[b] … ). Remittal is not necessary, however, where the record is sufficient for this Court to conduct an independent review of the evidence … .

Here, the Family Court, which was presented with sharply conflicting accounts by the parties regarding their allegations, issued mutual orders of protection without setting forth any findings with respect to the credibility of the parties or the facts deemed essential to its determinations (see CPLR 4213[b]). Since the record presents factual issues, including questions of credibility, and in light of the conflicting allegations made by the parties against each other, resolution thereof is best left to the court of first instance … . Matter of Sealy v Peart, 2023 NY Slip Op 02128, Second Dept 4-26-23

Practice Point: Here in this family offense proceeding appellate review was not possible because the Family Court judge did not make any findings addressing conflicting evidence and the credibility of witnesses. The matter was remitted because the record was not sufficient for an independent review.

 

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MEDICAL RECORDS DEMONSTRATED THE NEGLIGENT FAILURE TO DIAGNOSE A SEVERED NERVE; THEREFORE THE MEDICAL FACILITY WAS DEEMED TO HAVE HAD TIMELY NOTICE OF THE NATURE OF THE MALPRACTICE CLAIM; THE PETITION FOR LEAVE TO FILE AND SERVE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition to file a late notice of claim in this medical malpractice action should have been granted. The medical facilities’ (NHCC’S) failure to diagnose a severed nerve was apparent from the medical records. Therefore NHCC had timely notice of the nature of the claim:

Medical records can establish actual knowledge of the essential facts constituting a claim where they “evince that the medical staff, by its acts or omissions, inflicted an[ ] injury on plaintiff” … . “While expert opinion may be helpful to this showing, it is not required where ‘the basic facts underlying the malpractice claims [can] be gleaned from the . . . medical records'” … . Here, NHCC acquired actual knowledge of the essential facts constituting the petitioners’ claim, since its employees participated in the acts or omissions giving rise to the claim and prepared medical records from which it could be readily inferred that NHCC negligently failed to timely diagnose and treat the injured petitioner’s nerve injury … .

Further, under the circumstances of this case, the petitioners demonstrated a reasonable excuse for the delay in serving a notice of claim based upon, inter alia, the injured petitioner not learning of the nerve injury until his surgery on March 11, 2021, followed by his recovery time from the surgery and inability to consult with an attorney until after he was fully vaccinated for COVID-19 due to preexisting health conditions … .

Moreover, the petitioners presented a “plausible argument” that NHCC could conduct an adequate investigation of the claim despite the delay, and thus, NHCC would not be substantially prejudiced by the late notice of claim … . Matter of Cleary v Nassau Health Care Corp., 2023 NY Slip Op 02121, Second Dept 4-26-23

Practice Point: Here the medical records were deemed to have provided the medical facility with timely knowledge of the negligent failure to diagnose a severed nerve. Therefore the petition for leave to file and serve a late notice of claim should have been granted.

 

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​THE ARBITRATOR’S AWARD OF EXCESSIVE ATTORNEY’S FEES WAS IRRATIONAL AND WARRANTED VACATION OF THE ENTIRE ARBITRATION AWARD (SECOND DEPT),

The Second Department, reversing Supreme Court, determined the attorney’s fee awarded by the arbitrator was excessive and warranted vacation of the entire arbitration award:

… [T]he arbitrator’s excessive award of attorneys’ fees in the sum of $11,307 was irrational because it was not supported by any proof. The arbitrator issued an award in the petitioner’s favor upon a finding that Surgery Center defaulted in answering the demand for arbitration. After awarding the petitioner damages in the principal sum of $22,614.89, plus interest, the arbitrator proceeded to award attorneys’ fees in the sum of $11,307, which is equal to 50% of the damages award. On the issue of attorneys’ fees, the petitioner submitted only the service agreements, which contained identical provisions stating that “[i]f [the petitioner] prevails in any litigation or arbitration between the parties, [Surgery Center] shall pay [the petitioner’s] legal fees,” and a letter of engagement between the petitioner and its counsel, which stated that the petitioner’s “collection matters will be handled on a contingency basis of one third of all amounts recovered or whatever legal fees are awarded, whichever is greater.” The petitioner’s counsel did not submit, and the arbitrator did not consider, any evidence as to the hours of legal work by the petitioner’s counsel or the hourly rate. Although the arbitrator stated that he was awarding the sum of $11,307 in attorneys’ fees “as provided for in the agreement between the parties,” there was no proof that Surgery Center agreed to unlimited or unreasonable fees, and no proof that Surgery Center agreed to the fee arrangement that the petitioner made with its counsel. Moreover, the award of attorneys’ fees was contrary to the petitioner’s agreement with its counsel. As such, the arbitrator’s award of attorneys’ fees was irrational … .

Further, the arbitrator’s award of attorneys’ fees violates the strong public policy against excessive fees, e.g., fee arrangements “where the amount becomes large enough to be out of all proportion to the value of the professional services rendered” … .

Under the circumstances present here, where the award of attorneys’ fees was clearly irrational and contrary to public policy, vacatur of the entire arbitration award is warranted … . Matter of Briscoe Protective, LLC v North Fork Surgery Ctr., LLC, 2023 NY Slip Op 02120, Second Dept 4-26-23

Practice Point: Here there was no support in the record for the attorney’s fee award, which was deemed excessive. Therefore the attorney’s fee award was irrational and warranted vacation of the entire arbitration award.

 

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ALTHOUGH DEFENDANT DID NOT SIGN THE NOTE, HE WAS A TITLE-HOLDER AND WAS LISTED AS A BORROWER ON THE MORTGAGE; THEREFORE DEFENDANT WAS ENTITLED TO THE NOTICE OF FORECLOSURE IN ACCORDANCE WITH RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Kalenborn was entitled to the RPAL 1304 notice of foreclosure even though he did not sign the note. Kalenborn held title to the property and was listed as a “borrower” on the mortgage:

… [D]efendants established that the plaintiff failed to serve Douglas Kalenborn with notice pursuant to RPAPL 1304, and, contrary to the plaintiff’s contention, Douglas Kalenborn was entitled to such notice as a “borrower” within the meaning of that statute. Although Douglas Kalenborn did not sign the note, the plaintiff conceded that both of the defendants were title owners of the subject property and both executed the mortgage as a “borrower.” “Where, as here, a homeowner defendant is referred to as a ‘borrower’ in the mortgage instrument and, in that capacity, agrees to pay amounts due under the note, that defendant is a ‘borrower’ for the purposes of RPAPL 1304, notwithstanding . . . any ambiguity created by a provision in the mortgage instrument to the effect that parties who did not sign the underlying note are not personally obligated to pay the sums secured” … . Since Douglas Kalenborn “signed the mortgage as a ‘borrower’ and, in that capacity, agreed to pay the amounts due under the note, [he] was entitled to notice pursuant to RPAPL 1304” … . HSBC Bank USA, N.A. v Kalenborn, 2023 NY Slip Op 02109, Second Dept 4-26-23

Practice Point: Here defendant did not sign he note but he was a title-holder and was listed as a borrower on the mortgage. Therefore defendant was entitled to notice of the foreclosure which met the requirements of RPAPL 1304.

 

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​ PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE THE NOTICE OF FORECLOSURE WAS MAILED TO DEFENDANT IN ACCORDANCE WITH THE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not demonstrate the notice of foreclosure was mailed to defendant in accordance with the requirements of RPAPL 1304:

… [T]he plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304 … . The plaintiff did not submit proof of actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures. Further, the plaintiff failed to present sufficient proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, including “how the mail was transmitted to the postal service” … . Freedom Mtge. Corp. v King, 2023 NY Slip Op 02105, Second Dept 4-26-23

Practice Point: The plaintiff in this foreclosure action did not prove how the notice of foreclosure was transmitted to the postal service. Therefore compliance with the requirements of RPAPL 1304 was not proven and plaintiff’s motion for summary judgment should not have been granted.

 

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​ NEW YORK HAS LONG-ARM JURISDICTION OVER A SINGLE ALLEGED ACT OF SEXUAL ABUSE WHICH OCCURRED IN NEW YORK IN 1975 OR 1976 WHEN PLAINTIFF WAS ON A FIELD TRIP; THE ACTION WAS BROUGHT BY A CONNECTICUT RESIDENT AGAINST A CONNECTICUT DEFENDANT AND ALLEGED SEVERAL OTHER ACTS OF ABUSE WHICH TOOK PLACE IN CONNECTICUT; BECAUSE THE ALLEGED TORT TOOK PLACE IN NEW YORK, THE CONNECTICUT PLAINTIFF CAN TAKE ADVANTAGE OF THE EXTENDED STATUTE OF LIMITATIONS IN NEW YORK’S CHILD VICTIMS ACT (SECOND DEPT).

​The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Christopher, determined a single alleged act of sexual abuse which took place during a field trip to New York from Connecticut, involving a Connecticut-resident plaintiff and a Connecticut defendant, was sufficient for long-arm jurisdiction in New York. Plaintiff alleged defendant Boys and Girls Club of Greenwich, Inc failed to properly supervise club activities and, as a result, plaintiff was abused on several occasions by a member of the club. Only one of the alleged instances of abuse took place in New York. Although plaintiff is a Connecticut resident, the court ruled plaintiff could take advantage of the extended statute of limitations in New York’s Child Victims Act because the alleged tort took place in New York.

Where, as here, the plaintiff has established the requisite minimum contacts, as previously set forth, we must then engage in the second part of the due process inquiry; that is, whether defending a suit in New York comports with “traditional notions of fair play and substantial justice” … .  Here, the Club has failed to present a “compelling case” that some other consideration would render jurisdiction unreasonable … . … [T]he exercise of jurisdiction over the Club in New York would “comport with ‘fair play and substantial justice'” … . * * * 

With regard to CPLR 214-g, the revival statute, enacted under the Child Victims Act, S.H. v Diocese of Brooklyn (205 AD3d 180), does not preclude determining that it is appropriate for New York to exercise long-arm jurisdiction in this case. While S.H. discussed the legislative history of the revival statute and found that the history supports the proposition that the statute was enacted for the benefit of New York residents, this was in the context of the facts of S.H., wherein the alleged acts of abuse occurred in Florida. In S.H. we held, “that under the circumstances of this case, CPLR 214-g is not available to nonresident plaintiffs where the alleged acts of abuse occurred outside New York” … . In the instant case, while the plaintiff is not a New York resident, unlike the situation in S.H., the alleged abuse occurred in New York. 

We note that our finding that the Club is subject to personal jurisdiction pursuant to CPLR 302(a)(2) is limited to the one act of sexual abuse alleged to have occurred in New York. WCVAWCK-Doe v Boys & Girls Club of Greenwich, Inc., 2023 NY Slip Op 02026, Second Dept 4-19-23

Practice Point: Here a Connecticut resident sued a Connecticut defendant alleging several acts of sexual abuse in 1975 or 1976. Most of the alleged abuse took place in Connecticut. One alleged instance of abuse took place when plaintiff was on a field trip to New York. New York has long-arm jurisdiction over that tort, and the Connecticut plaintiff can take advantage of the extended statute of limitations in the Child Victims Act based on the situs of that single instance of abuse. The opinion should be consulted for its comprehensive analysis of jurisdiction under the long-arm statute.

 

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THE CUSTODY RULING SHOULD NOT HAVE BEEN MADE WITHOUT A BEST INTERESTS HEARING; FATHER’S PARENTAL ACCESS SHOULD NOT HAVE BEEN CONDITIONED ON COMPLIANCE WITH TREATMENT (SECOND DEPT).

​The Second Department, reversing Family Court, held the custody determination should not have been made without a best interests hearing and father’s parental access should not have been conditioned on compliance with treatment:

“Custody determinations should generally be made only after a full and plenary hearing and inquiry” … .. “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “A court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … . “Similarly, visitation determinations should generally be made after a full evidentiary hearing to ascertain the best interests of the child” … .

Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the parties’ child … . Moreover, the court failed to articulate the factors and evidence material to its determination … .

The Supreme Court also erred in suspending the father’s parental access without determining the best interests of the child … . Furthermore, the court improperly conditioned the father’s future parental access or reapplication for parental access rights upon his compliance with treatment … . Matter of Baez-Delgadillo v Moya, 2023 NY Slip Op 01994, Second Dept 4-19-23

Practice Point: Custody determinations usually should not be made absent a best interests hearing. Parental access should not be conditioned on the parent’s compliance with treatment.

 

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ALTHOUGH THE REQUIREMENTS FOR THE CONTENTS OF A CLAIM AGAINST THE STATE IN COURT OF CLAIMS ACT SECTION 11 ARE STRICT AND JURISDICTIONAL, THE CLAIMANT IS NOT REQUIRED TO ALLEGE EVIDENTIARY FACTS (SECOND DEPT).

​The Second Department, reversing the Court of Claims, determined the claim in this Child Victims Act proceeding sufficiently stated the nature of the claim. The claimant alleged he was sexually abused in state-run foster homes every week for two years (1994 – 1996}. The claim alleged negligent hiring, retention or supervision:

The only reason identified by the Court of Claims in the order appealed from, and by the defendant on appeal, for concluding that the claim failed to state the nature of the claim is that, while the claim included an allegation that the defendant had actual or constructive notice of the alleged sexual abuse, it did not supply any “details” as to how the defendant received notice of the alleged abuse. Although the requirements of Court of Claims Act § 11(b) are strict, and jurisdictional in nature, the fact remains that the claim is a pleading, the contents of which are merely allegations. As the defendant correctly contends, “[a] necessary element of a cause of action to recover damages for negligent hiring, retention, or supervision is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Nonetheless, “[c]auses of action alleging negligence based upon negligent hiring, retention, or supervision are not statutorily required to be pleaded with specificity” ,,, . The manner in which the defendant acquired actual or constructive notice of the alleged abuse is an evidentiary fact, to be proved by the claimant at trial. In a pleading, “the plaintiff need not allege his [or her] evidence” … . Martinez v State of New York, 2023 NY Slip Op 01990, Second Dept 4-19-23

Practice Point: A claim (i.e., the pleading) against the state must meet the strict, jurisdictional “contents” requirements in Court of Claims Act section 11. But the claim is merely a pleading and need not allege evidentiary facts to survive a motion to dismiss.

 

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IN THIS FORECLOSURE ACTION, THE BUSINESS RECORDS UPON WHICH THE REFEREE’S CALCULATIONS WERE BASED WERE NOT ATTACHED TO THE REFEREE’S AFFIDAVIT, RENDERING THE AFFIDAVIT HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been accepted because the business records upon which the calculations were based were not attached to the affidavit:

 … [A] referee’s computations based on the “review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … . Here, the referee based his calculations upon documentary evidence submitted by the plaintiff, including the note and mortgage, as well as an affidavit of amount due and owing, submitted in support of the motion to confirm the referee’s report. However, the affidavit of amount due and owing does not identify the business records upon which the affiant relied in order to compute the total amount due on the mortgage, and there are no such records annexed thereto. Consequently, the referee’s findings in that regard were not substantially supported by the record … . M&T Bank v Bonilla, 2023 NY Slip Op 01989, Second Dept 4-19-23

Practice Point: To the extent an affidavit refers to business records which are not attached the affidavit is hearsay.

 

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IF THE WORKER’S COMPENSATION BOARD FINDS A DEFENDANT IN A CONSTRUCTION-ACCIDENT ACTION WAS PLAINTIFF’S EMPLOYER, PLAINTIFF’S RECOVERY AGAINST THE EMPLOYER IS RESTRICTED TO WORKER’S COMPENSATION BENEFITS AND OTHER DEFENDANTS CANNOT MAINTAIN ACTIONS FOR CONTRIBUTION OR INDEMNIFICATION AGAINST THAT EMPLOYER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Wan, determined the employees were restricted to worker’s compensation benefits in this construction-accident action against their employers and the other defendants were precluded from seeking contribution and indemnification from the employers:

Workers’ Compensation Law § 11(1) precludes recovery by “any third person” against “[a]n employer” for contribution or indemnity “for injuries sustained by an employee acting within the scope of his or her employment” unless the employee “has sustained a ‘grave injury'” or there is a “written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant.” Despite this clear directive, the Supreme Court, relying on this Court’s decision in Baten v Northfork Bancorporation, Inc. (85 AD3d 697), permitted cross-claims sounding in contribution and indemnity to survive against an entity on the ground that triable issues of fact existed with respect to whether that entity was an employer, regardless of a Workers’ Compensation Board determination on this issue. Here, we clarify that, notwithstanding our prior decision in Baten, no claim for indemnity or contribution may be maintained against an entity determined to be an employer by the Workers’ Compensation Board except in the limited circumstances specified in Workers’ Compensation Law § 11.* * *

… [W]e hold that Workers’ Compensation Law § 11 precludes recovery by any third party for contribution and indemnity against an entity determined by the WCB [Workers’ Compensation Board] to be the plaintiff’s employer except where the injured employee has suffered a grave injury or where the employer has expressly agreed in writing to contribute or indemnify.  Velazquez-Guadalupe v Ideal Bldrs. & Constr. Servs., Inc., 2023 NY Slip Op 02025, Second Dept 4-19-23

Practice Point: If the Workers’ Compensation Board determined a defendant in a construction-accident action was plaintiff’s employer, absent a “grave” injury or the employer’s agreement to contribute or indemnify, the plaintiff’s recovery is restricted to Workers’ Compensation benefits and there can be no recovery for contribution or indemnification against the employer by other defendants.

 

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