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​ THE PLAINTIFFS IN THIS SUIT AMONG BROTHERS ABOUT THE FATHER’S ESTATE DID NOT HAVE THE AUTHORITY TO ACT ON BEHALF OF THE ESTATE OR TO SUE AS BENEFICIARIES OF THE ESTATE; THE ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs in this dispute among brothers about the father’s estate did not have the authority to act on behalf of the estate or to sue as beneficiaries of the estate. Therefore the action should have been dismissed:

“It is elementary that the executors or administrators represent the legatees, creditors and distributees in the administration of the estate; that their duty is to recover the property of the estate; and that the legatees and next of kin are concluded by their determination in respect to actions therefor and have no independent cause of action, either in their own right or the right of the estate” … . Here, the plaintiffs did not purport to commence this action as personal representatives of the decedent’s estate. The plaintiffs lacked “letters of administration authorizing [them] to act at the key points when this action was commenced and an amended complaint . . . was served” … . Absent extraordinary circumstances which are not present here, a beneficiary has no authority to act on behalf of an estate or to exercise a fiduciary’s rights with respect to estate property … . Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(3) to dismiss, insofar as asserted against them, the causes of action in the amended complaint asserted by the plaintiffs in their derivative capacity on behalf of the decedent’s estate, as well as the causes of action asserted by the plaintiffs in their individual capacity as beneficiaries of the estate to recover assets of the estate … . Levy v Levy, 2023 NY Slip Op 01892, Second Dept 4-12-23

Practice Point: Absent the authority to act on behalf of an estate, the beneficiaries cannot sue each other claiming rights to estate assets.

 

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DEFENDANT’S ATTORNEY ESSENTIALLY FAILED TO TAKE ANY POSITION ON THE SORA RISK ASSESSMENT; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new SORA hearing, determined defendant did not receive effective assistance of counsel:

“A sex offender facing risk level classification under SORA has a right to the effective assistance of counsel” … . Here, the defendant’s counsel failed to provide “meaningful representation” … , as he “failed to litigate any aspect of the adjudication” … , essentially declining to take any position on the matter. People v Motta, 2023 NY Slip Op 01908, Second Dept, 4-12-23

Practice Point: A defense attorney who fails to take a position in the SORA risk-assessment proceedings does not provide effective assistance of counsel.

 

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IN A HYBRID PROCEEDING SEEKING REVIEW UNDER CPLR ARTICLE 78 AND SEEKING A DECLARATORY JUDGMENT AND DAMAGES, A MOTION FOR SUMMARY JUDGMENT MUST BE MADE FOR BOTH; HERE THERE WAS NO MOTION TO DISMISS THE DECLARATORY JUDGMENT AND DAMAGES CAUSES OF ACTION; MATTER REMITTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the declaratory judgment causes action should not have been dismissed because the motion for summary judgment did not seek that relief. Summary judgment on the CPLR Article 78 causes of action was properly granted, however:

“In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those which seek to recover damages and declaratory relief, on the other hand” … . “The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment” … . “Thus, where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action” … .

Here, since no party made such a motion, the Supreme Court erred in summarily disposing of the petitioner/plaintiff’s third through eighth causes of action. Accordingly, we remit the matter to the Supreme Court … for further proceedings on those causes of action … . Matter of Kelly v Farmingdale State Coll., State Univ. of N.Y., 2023 NY Slip Op 01895, Second Dept 4-12-23

Practice Point: In a hybrid Article 78 and declaratory judgment/damages action, a motion for summary judgment must be made for both. Here the motion only concerned the Article 78 causes of action so the court should not have summarily disposed of the declaratory judgment/damages causes of action.

 

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ALTHOUGH THE COURT DID NOT HAVE THE POWER TO GRANT THE MOTION TO INTERVENE BECAUSE THE PROPOSED ANSWER WAS NOT INCLUDED IN THE PAPERS, A THRESHOLD SHOWING INTERVENTION WAS WARRANTED WAS MADE AND THE DENIAL SHOULD HAVE BEEN “WITH LEAVE TO RENEW” (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the motion to intervene by Poloncarz was properly denied because the proposed answer was not included with the motion papers. but because Poloncarz made a showing warranting intervention, the motion should have been denied with leave to renew:

“A motion seeking leave to intervene, whether made under CPLR 1012 or 1013, must include the proposed intervenor’s . . . complaint or answer (CPLR 1014)” … . “The court has no power to grant leave to intervene where, as here, the prospective intervenor[ ] did not include in [his] motion papers ‘a proposed pleading setting forth the claim or defense for which intervention is sought'” … . Here, Poloncarz, in his official capacity as Erie County Executive, failed to include his proposed answer in his motion papers. Nevertheless, he made a threshold showing that his defense and the Nassau action have a common question of law and fact, that he has a real and substantial interest in the outcome of the proceedings, and that intervention will not unduly delay the determination of the Nassau action or prejudice the substantial rights of any party … . Accordingly, although the Supreme Court was “without the power to grant such relief inasmuch as [Poloncarz, in his official capacity as Erie County Executive,] has failed to comply with CPLR 1014,” the court should have denied the motion with leave to renew that branch of the motion which was for leave to intervene in the Nassau action on proper papers … . Landa v Poloncarz, 2023 NY Slip Op 01891, Second Dept 4-12-23

Practice Point: A court cannot grant a motion to intervene if the proposed complaint or answer is not submitted with the motion papers. Here, because a threshold showing intervention was appropriate was made, the denial should have been “with leave to renew.”

 

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THE PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT SUBMIT THE BUSINESS RECORDS DEMONSTRATING DEFENDANT’S DEFAULT; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff in this foreclosure proceeding did not demonstrate defendant’s default because the relevant business documents were not submitted:

… [P]laintiff submitted an affidavit of an employee of its loan servicer who averred … that based upon his review of certain business records maintained by the loan servicer and the plaintiff, he was familiar with the underlying mortgage loan and payment history of Hernandez [defendant]. However, the affiant, and the plaintiff, failed to submit any business records substantiating the alleged default … . “‘Conclusory affidavits lacking a factual basis are without evidentiary value'” … . “Even assuming that the subject affidavit established a sufficient foundation for the records relied upon, ‘it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted'” … . Federal Natl. Mtge. Assn. v Hernandez, 2023 NY Slip Op 01888, Second Dept 4-12-23

Practice Point: An affidavit describing business records is hearsay if the records themselves are not attached.

 

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THE LESSOR OF THE CAR INVOLVED IN THE TRAFFIC ACCIDENT DID NOT SUBMIT THE BUSINESS RECORDS DEMONSTRATING THE ASSIGNMENT OF THE LEASE; THEREFORE DISMISSAL OF THE COMPLAINT PURSUANT TO THE GRAVES AMENDMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Chase, the defendant – lessor of the car involved in a traffic accident, did not present sufficient evidence of its status as the lessor for purposes of asserting the Graves-Amendment defense. The business records which would have established the lessor-lessee relationship were either illegible or were not submitted:

When evidentiary material is considered on a motion to dismiss pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the motion should not be granted unless the evidentiary material “conclusively [establishes] that the plaintiff has no cause of action” … .

Pursuant to the Graves Amendment, the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of the vehicle if (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner … .

… Chase attempted to establish the fact that it leased the subject vehicle to [defendant] through the business records exception to the hearsay rule (see CPLR 4518[a]). … [E]ven assuming that the … affidavit had established a proper foundation, “it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … .. Since Chase failed to submit the purported assignment of the lease agreement, it failed to conclusively establish that … it was shielded by the Graves Amendment. Tello v Upadhyaya, 2023 NY Slip Op 01913, Second Dept 4-12-23

Practice Point: Here the lessor of the car involved in the accident attempted to raise the Graves-Amendment defense but did not submit the business records showing the assignment of the lease. Therefore the affidavit laying a foundation for those records was hearsay and the motion to dismiss should not have been granted.

 

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ALTHOUGH DEFENDANT CORPORATION WAS NOT SERVED WITH THE SUMMONS AND COMPLAINT, THE CORPORATE DEFENDANT “APPEARED INFORMALLY” THROUGH THE CEO’S AFFIDAVIT; PLAINTIFFS WERE ENTITLED TO A DEFAULT JUDGMENT AGAINST THE CORPORATION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that, although the defendant corporation was not served with the summons and complaint, it “appeared informally” in the action and, therefore, plaintiffs’ motion for a default judgment should have been granted. The “informal appearance” was in the form of the corporate CEO’s affidavit:

… “‘[I]n addition to the formal appearances listed in CPLR 320(a), the law continues to recognize the so-called “informal” appearance'” .. . An informal appearance “‘comes about when the defendant, although not having taken any of the steps that would officially constitute an appearance under CPLR 320(a), nevertheless participates in the case in some way relating to the merits'” … . “When a defendant participates in a lawsuit on the merits, he or she indicates an intention to submit to the court’s jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court” … . “[A]n appearance of the defendant is equivalent to personal service of the summons upon him [or her], unless an objection to jurisdiction under [CPLR 3211(a)(8)] is asserted by motion or in the answer as provided in rule 3211” (CPLR 320[b]).

“The occasion for [an informal] appearance [is] an infrequent thing” … . However, an informal appearance may occur even where the defendant is not served with process , where an individual defendant affirmatively states that he or she is only acting in his or her capacity as an officer of a corporate defendant … . Travelon, Inc. v Maekitan, 2023 NY Slip Op 01816, Second Dept 4-5-23

Practice Point: Although infrequent, New York still recognizes an “informal appearance” in an action, here through an affidavit submitted by the CEO of a corporate defendant. Because of the informal appearance, plaintiffs were entitled to a default judgment, even though the defendant was never served with a summons and complaint.

 

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PLAINTIFFS OBTAINED A NEW JERSEY DEFAULT JUDGMENT IN A BREACH OF CONTRACT ACTION AGAINST THREE DEFENDANTS WHO ARE JOINTLY AND SEVERALLY LIABLE; PLANTIFFS NEED ONLY SERVE ONE OF THE DEFENDANTS TO ENFORCE THE FOREIGN JUDGMENT AGAINST THAT DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs, who obtained a New Jersey default judgment against three defendants, need only serve one of the defendants in this action to enforce the foreign judgment:

In October 2013, the plaintiffs contracted with the defendant Tirepool, LLC … for the purchase of a used car. The contract was negotiated by the defendants Jeff Massicott and Vivian Wallace, the owners/managers of Tirepool. The defendants breached the contract and retained the plaintiffs’ down payment. … [T]he plaintiffs commenced an action against the defendants in the Superior Court of New Jersey (hereinafter the New Jersey action). The defendants failed to answer the complaint, and the plaintiffs obtained a default judgment against the defendants in the principal sum of $26,548.32. …

CPLR 1501 provides: “Where less than all of the named defendants in an action based upon a joint obligation, contract or liability are served with the summons, the plaintiff may proceed against the defendants served, unless the court otherwise directs, and if the judgment is for the plaintiff it may be taken against all the defendants.” Here, the defendants are jointly and severally liable for the judgment in the New Jersey action and, therefore, the plaintiffs are permitted to proceed against Wallace without effectuating service on the other defendants.

Accordingly, the Supreme Court should have granted that branch of the plaintiffs’ motion which was for summary judgment in lieu of complaint insofar as asserted against Wallace. Obed v Tirepool, LLC, 2023 NY Slip Op 01802, Second Dept 4-5-23

Practice Point: Here there was a foreign default judgment against three defendants who are jointly and severally liable. Plaintiffs only served one of the defendants with a summons in lieu of complaint to enforce the foreign judgment. Plaintiffs did not need to serve the other two defendants and could proceed against the defendant who was served.

 

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ALTHOUGH THE VILLAGE ENGINEER SENT A LETTER TO THE ABUTTING PROPERTY OWNERS REQUIRING REPAIR OF THE SIDEWALK DEFECT WHERE PLAINTIFF SLIPPED AND FELL, THE MAJORITY CONCLUDED PLAINTIFF DID NOT DEMONSTRATE THE VILLAGE HAD WRITTEN NOTICE OF THE DEFECT; THE DISSENT DISAGREED (SECOND DEPT).

The Second Department, over a dissent, determined the village demonstrated it did not have written notice of the sidewalk defect where plaintiff allegedly slipped and fell. The village code requires that the board of trustees be given written notice of the defect in order to hold the village liable. Here there was a letter from the town engineer to the abutting homeowners notifying them of the sidewalk defect and requiring repair within 30 days. The majority held that letter did not meet the written notice requirements in the code, which must be strictly construed. the dissent disagreed:

Where … a municipality has enacted a prior written notice law, neither actual nor constructive notice of a condition satisfies the prior written notice requirement … . Records generated by other agencies of the Village, outside of the strict construction of Code of the Village of Garden City § 132-2, fail to satisfy the requirements of the relevant prior written notice law … .. On this record, the plaintiffs failed to raise a triable issue of fact as to whether any documents to or from other municipal employees found their way to the Village Board of Trustees so as to cognizably qualify as prior written notice under the terms of the Village Code.

Our learned dissenting colleague concludes that the plaintiffs, through the submission of a letter on the Village’s letterhead dated May 11, 2015, from the Village Engineer to the defendant homeowners, raised a triable issue of fact as to whether the Village Board of Trustees had prior written notice of the alleged sidewalk defects. … The letter … states … that a recent inspection of the sidewalk and/or driveway apron adjacent to the defendant homeowners’ property indicated that concrete was in need of repair or replacement. The letter continues, stating that it was necessary to repair or replace a defective sidewalk and/or driveway apron for safety reasons and to reduce the likelihood of lawsuits against the property owners and the Village. For these reasons … the Village Board of Trustees had adopted a resolution … providing that property owners are required to repair or replace defective or damaged sidewalks and/or driveway aprons fronting their property within 30 days of receiving notice of such defects. Strictly construing the terms of the Village’s prior written notice law, as we must … that letter from the Village Engineer to the defendant homeowners does not constitute the giving of prior written notice to the Village Board of Trustees. … . Kolenda v Incorporated Vil. of Garden City, 2023 NY Slip Op 01783, Second Dept 4-5-23

Practice Point: Here the village code required that written notice of a sidewalk defect be provided to the board of trustees. A letter from the village engineer to the abutting homeowners requiring repair of the defect did not meet the code’s written-notice requirements, which must be strictly construed. Therefore the village cannot be held liable for the slip and fall.

 

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PLAINTIFF FAILED TO SHOW UP FOR THE SETTLEMENT CONFERENCE IN THIS FORECLOSURE ACTION AND A DEFAULT JUDGMENT WAS GRANTED; IN MOVING TO VACATE THE DEFAULT, PLAINTIFF DID NOT PRESENT SUFFICIENT PROOF OF LAW OFFICE FAILURE AND DID NOT EXPLAIN ITS DELAY IN SEEKING TO VACATE THE DEFAULT JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff did not demonstrate an adequate excuse (law office failure) for not attending the settlement conference and plaintiff’s motion to vacate the default judgment should not have been granted:

… [T]he plaintiff’s allegation of law office failure was conclusory and unsubstantiated. In an affirmation in support of the motion … to vacate the order of dismissal, the plaintiff’s counsel described her office’s standard practices and procedures for receiving and processing notices and orders, and posited that her office had not received notice of the scheduled conference because there were “no notes, scanned images, or calendar steps” in the files that she reviewed. The plaintiff … failed to provide an affidavit from anyone with personal knowledge of the purported law office failure, provide any details regarding such failure, or provide any other evidence of the system’s purported breakdown that led to counsel’s nonappearance at the conference … . Moreover, the plaintiff failed to provide a reasonable excuse for its delay in moving to vacate the order of dismissal … . Since the plaintiff failed to proffer a reasonable excuse its default, it is unnecessary to determine whether the plaintiff demonstrated the existence of a potentially meritorious cause of action (see CPLR 5015[a][1] …). HSBC Bank USA, N.A. v Hutchinson, 2023 NY Slip Op 01782, Second Dept 4-5-23

Practice Point: Here the claim that plaintiff missed the settlement conference due to law office failure was not supported by proof from a person with first hand knowledge. The motion to vacate the default judgment should not have been granted.

 

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