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THE BANK IN THIS FORECLOSURE ACTION DID NOT HAVE A REASONABLE EXCUSE FOR FAILING TO MOVE FOR A DEFAULT JUDGMENT WITHIN THE ONE-YEAR ALLOWED BY STATUTE; IT WAS AN ABUSE OF DISCRETION TO GRANT THE MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff did not have a reasonable excuse for failing to move for a default judgment within and year and the motion should not have been granted:

… [T]he one-year period within which the plaintiff had to take proceedings for the entry of a default judgment expired in March 2016 (see CPLR 3215[c]). The plaintiff moved, inter alia, for leave to enter a default judgment against the defendant and for an order of reference in September 2016, 18 months after this matter was released from the foreclosure settlement conference part. Thus, the plaintiff’s motion … for leave to enter a default judgment against the defendant was made beyond the one-year deadline imposed by CPLR 3215(c).

One exception to the mandatory language of CPLR 3215(c) is when “sufficient cause is shown why the complaint should not be dismissed.” “This requires a showing of a reasonable excuse for the delay in moving for leave to enter a default judgment, and a showing that the cause of action is potentially meritorious” … . The determination as to whether an excuse is reasonable is committed to the sound discretion of the court, but reversal is warranted if that discretion is improvidently exercised … .

… [T]he plaintiff’s vague, conclusory, and unsubstantiated assertions that the delay in making its motion was attributable to the time spent in the mandatory foreclosure settlement conference part, and its need to comply with certain administrative orders, were insufficient to excuse the lengthy 18-month delay in moving for leave to enter a default judgment … .

“Since the plaintiff failed to proffer a reasonable excuse, this Court need not consider whether the plaintiff had a potentially meritorious cause of action” … . Bank of N.Y. Mellon v Toscano, 2023 NY Slip Op 02294, Second Dept 5-3-23

Practice Point: If plaintiff does not have a reasonable excuse for failing to move for a default judgment within the one year allowed by statute, it is an abuse of discretion to grant the motion and whether there is a meritorious cause of action is irrelevant.

 

THERE WAS EVIDENCE DEFENDANTS’ EMPLOYEES DIRECTED TRUCKS TO DRIVE OVER THE DEFECTIVE SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL, RAISING A QUESTION OF FACT WHETHER DEFENDANTS CREATED THE SIDEWALK DEFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff raised a question of fact about whether defendants, whose businesses were across the street from the cracked sidewalk where plaintiff fell, created the defect. There was evidence that truck servicing defendants’ businesses drove over the sidewalk to back in to defendants’ loading dock:

… [T]he plaintiff raised a triable issue of fact as to whether the defendants committed an affirmative act of negligence that resulted in the creation of the dangerous condition on the sidewalk … . In opposition to the defendants’ motion, the plaintiff submitted the deposition testimony of an individual who had resided next door to the defendants’ premises for nearly 56 years. The neighbor testified that the street on which he lived was a dead-end street that was mostly residential, and that the drivers of 18-wheel tractor-trailers that made deliveries to the defendants’ business, while maneuvering into the driveway of the premises, frequently drove onto the sidewalk across the street, thereby creating the condition that caused the plaintiff to trip and fall. The neighbor had, on numerous occasions, observed [defendants’ employees] directing truck drivers onto the sidewalk while assisting them in backing up to the loading dock. This evidence was sufficient to raise a triable issue of fact as to whether the actions of the defendants caused or created the hazardous sidewalk condition that allegedly caused the plaintiff’s accident … . Abramson v Janowski’s Hamburgers, Inc., 2023 NY Slip Op 02293, Second Dept 5-3-23

Practice Point: Here there was evidence the sidewalk where plaintiff fell, which was across the street from defendants’ businesses, was driven over by trucks making deliveries to defendants’ businesses, creating the defect.

 

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THE JUDGE DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, DISMISS THE FORECLOSURE COMPLAINT FOR PLAINTIFF’S ALLEGED FAILURE TO APPEAR AT A STATUS CONFERENCE AND COMPLY WITH THE DIRECTIVE TO MOVE FOR AN ORDER OF REFERENCE BY A SPECIFIED DATE; PRECEDENT TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department, rejecting its own precedent in this foreclosure action, determined the judge did not have the authority to, sua sponte, dismiss the complaint for plaintiff’s failure to comply with the directive to appear at a status conference and move for an order of reference by a specified date:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . The plaintiff’s failure to comply with the directive in the order dated September 13, 2017, was not a sufficient ground upon which to direct dismissal of the complaint … . Moreover, the court was without authority to, sua sponte, direct dismissal of the complaint based upon the plaintiff’s failure to comply with its directive to proceed by motion where, as here, the plaintiff was entitled to proceed either by motion or trial … . …

… 22 NYCRR 202.27 was not a proper basis for directing dismissal of the complaint … . Where a party appears as scheduled, 22 NYCRR 202.27 “provides no basis for the court to summarily dismiss the action for failure to prosecute” … . Nothing in the record establishes that the plaintiff did not appear or was not ready to proceed at the final status conference … . To the extent our cases have held that a failure to comply with a directive in a prior status conference order amounts to a nonappearance at the status conference or a failure to announce readiness to proceed “immediately or subject to the engagement of counsel” within the meaning of 22 NYCRR 202.27 … , such cases should no longer be followed … . “In general, [t]he procedural device of dismissing a complaint for undue delay is a legislative creation, and courts do not possess the inherent power to dismiss an action for general delay” … where, as here, the statutory preconditions to dismissal under CPLR 3216, which is the statutory provision addressing “[w]ant of prosecution,” have not been met…. . U.S. Bank N.A. v Bhagwandeen, 2023 NY Slip Op 02349, Second Dept 5-3-23

Practice Point: A judge’s authority to dismiss a complaint in the absence of the statutory conditions in CPLR 3216 (failure to prosecute) is extremely limited. Here in this foreclosure action the Second Department rejected its own precedent and held plaintiff’s alleged failure to appear at a status conference and comply with the directive to move for an order of reference by a specified date did not justify the sua-sponte dismissal of the complaint.

 

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IN THIS PARKING-LOT-ICE SLIP AND FALL CASE, THE SNOW REMOVAL CONTRACTOR DID NOT DEMONSTRATE IT DID NOT LAUNCH AN INSTRUMENT OF HARM AND THE PROPERTY OWNERS DID NOT DEMONSTRATE THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION; THE DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant snow-removal company, Landscapes, and the defendant property owners, Nambar, were not entitled to summary judgment in this parking-lot-ice slip and fall case. Landscapes did not show it did not launch an instrument of harm by piling snow which melted and formed ice, and the Nambar defendants did not show they did not have constructive notice of the icy condition:

… [S]ince the plaintiff’s pleadings alleged that the Landscapes defendants, through their snow removal efforts, created the icy condition in the parking lot, thereby launching a force or instrument of harm that caused the plaintiff’s injuries, those defendants, in support of their motion for summary judgment, were required to establish, prima facie, that they did not create the alleged dangerous condition … . The Landscapes defendants failed to make such a showing, as they did not affirmatively establish that they did not create the icy condition by negligently piling snow in an elevated area in the parking lot, where it allegedly melted and created a stream of water that refroze … . …

… [T]he Namdar defendants failed to eliminate triable issues of fact as to whether they had constructive notice of the alleged ice condition. The deposition testimony of the Namdar defendants’ building engineer raised a triable issue of fact as to whether those defendants had notice of the condition that allegedly caused the ice to form, i.e., the stream of water flowing from the pile of snow in the elevated area of the parking lot … . In addition, the deposition testimony of [one of the Landscapes defendants] indicated that the building engineer had instructed him to pile snow in certain places, including the elevated area of the parking lot, thus raising a triable issue of fact as to whether the Namdar defendants were responsible for creating the alleged ice condition … . Tomala v Islandia Expressway Realty, LLC, 2023 NY Slip Op 02347, Second Dept 5-3-23

Practice Point: Here in this slip and fall case the snow-removal contractor did not demonstrate it did not launch an instrument of harm by piling snow such that it melted and formed ice and the property owners did not demonstrate they did not have constructive notice of or did not participate in the creation of the dangerous condition. The defendants should not have been granted summary judgment.

 

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THE ASSAULT SECOND CONVICTION WAS REVERSED BECAUSE PROOF A BAMBOO STICK WAS A “DANGEROUS INSTRUMENT” WAS LEGALLY INSUFFICIENT; ASSAULT THIRD CONVICTION VACATED AS AN INCLUSORY CONCURRENT COUNT OF ASSAULT SECOND (SECOND DEPT).

The Second Department determined the assault second conviction was not supported by legally sufficient evidence that a bamboo stick was a “dangerous instrument:”

The defendant … contends that the evidence was legally insufficient to support her convictions of assault in the second degree pursuant to Penal Law § 120.05(2) … and criminal possession of a weapon in the fourth degree based on the People’s theory that a bamboo stick the defendant used to discipline the child was a dangerous instrument. Although the defendant’s contention is unpreserved for appellate review (see CPL 470.05[2]), we reach the issue in the exercise our interest of justice jurisdiction (see id. § 470.15[6][a]). A “dangerous instrument” is defined as “any instrument . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury” (Penal Law § 10.00[13]). “Serious physical injury” is defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00[10]). Here, viewing the evidence in the light most favorable to the prosecution, it was legally insufficient to establish that the bamboo stick, which was not produced at trial, “was readily capable of killing or maiming [the child], or of causing any of the other severe harms described in Penal Law § 10.00(10)” … .

Further, the defendant’s conviction of assault in the third degree pursuant to Penal Law § 120.00(1) must be vacated, and that count of the indictment dismissed, as an inclusory concurrent count of assault in the second degree pursuant to Penal Law § 120.05(9) … .  People v Weng, 2023 NY Slip Op 02134, Second Dept 4-26-23

Practice Point: Here the assault second conviction was not supported by legally sufficient proof a bamboo stick was a “dangerous instruction.” The assault third conviction was vacated as an inclusory concurrent count of assault second.

 

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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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