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THE BUSINESS RECORDS REFERRED TO IN THE PLAINTIFF’S AFFIDAVIT DEMONSTRATING DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION WERE NOT ATTACHED, RENDERING THE AFFIDAVIT HEARSAY (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the failure to submit the business records referred to in plaintiff’s affidavit rendered the affidavit hearsay. Therefore plaintiff bank did not present prima facie proof of defendant’s default:

… [T]he plaintiff submitted an affidavit of an employee of its loan servicer, who averred that he reviewed certain business records maintained by the loan servicer and the defendant defaulted in making payments on the mortgage debt. However, the affiant failed to submit any business record 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” … . Accordingly, the affiant’s assertions regarding the defendant’s alleged default, without the business records upon which he relied in making those assertions, constituted inadmissible hearsay … . MTGLQ Invs., L.P. v Rashid, 2023 NY Slip Op 00859, Second Dept 2-15-23

Practice Point: An affidavit based upon business records which are not attached is hearsay.

 

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A BREACH OF CONTRACT ACTION IS NOT PROPERLY CONVERTED TO AN ARTICLE 78 PROCEEDING; HERE THE PHYSICIAN SUED THE HOSPITAL FOR FAILING TO HONOR A CONTRACTUAL COMMITMENT TO ADMIT PLAINTIFF TO A RESIDENCY PROGRAM; THE PHYSICIAN’S ACTION WAS PRECLUDED FOR FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES UNDER THE PUBLIC HEALTH LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the breach of contract action should not have been converted to an Article 78 and the action was precluded by plaintiff-physician’s failure to exhaust the administrative remedies under the Public Health Law. Plaintiff was matched to a residency program at defendant hospital and the hospital was contractually bound to offer the residency to the plaintiff. The hospital sought a waiver which was denied, and the hospital still refused to offer the residency to plaintiff. Plaintiff sued for breach of contract and requested a preliminary injunction. Supreme Court improperly converted the action to an Article 78 (mandamus) proceeding and granted the preliminary injunction. The appellate division held a breach of contract action cannot be converted to an Article 78:

Invoking CPLR 103(c), the Supreme Court erroneously converted the subject branch of the plaintiff’s motion and this action into a proceeding pursuant to CPLR article 78. Under CPLR 103(c), courts are empowered to convert a civil judicial proceeding that was brought in the improper form to the proper form and convert a motion into a special proceeding. Here, the court erred in concluding that a proceeding pursuant to CPLR article 78 was the proper form. “[A] CPLR article 78 proceeding is not the proper vehicle to resolve contractual rights” … . “Indeed, it is well settled that mandamus relief lies only to compel the performance of purely ministerial acts, and may not be used when there are other available remedies at law, such as a breach of contract action” … . * * *

Supreme Court should not have rejected the hospital’s argument that the branch of the plaintiff’s motion which was for preliminary injunctive relief against it should be denied because the plaintiff failed to exhaust his administrative remedies under Public Health Law article 28. Public Health Law § 2801-b(1) makes it an “improper practice” for a hospital to deny, withhold, or terminate professional privileges for a reason unrelated to “patient care, patient welfare, the objectives of the institution or the character or competency of the applicant.” “To enforce the statutory prohibition against improper practices, the Legislature created a two-step grievance process by which a physician may obtain injunctive relief requiring the hospital to restore wrongfully terminated staff privileges” … . “First, the physician must submit a complaint to the [public health and health planning council (hereinafter PHHPC)]” … . “It is the duty of the [PHHPC] to undertake a prompt investigation of the action complained of and to allow the parties to the dispute to submit, in a strictly confidential setting, any relevant information in support of their respective positions” … . “After investigating the physician’s complaint, the [PHHPC] will either direct the hospital to reconsider its decision or inform the parties of its determination that the complaint lacks merit” … . Khass v New York Presbyt. Brooklyn Methodist Hosp., 2023 NY Slip Op 00851, Second Dept 2-15-23

Practice Point: A breach of contract action is not properly converted to an Article 78 proceeding pursuant to CPLR 103(c).

Practice Point: A hospital’s failure to honor its contractual commitment to admit plaintiff physician to a residency program is subject to administrative remedies under the Public Health Law which must be exhausted before bringing suit.

 

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IN THIS SLIP AND FALL ACTION AGAINST THE PORT AUTHORITY, THE APPLICABLE STATUTE PROVIDES THAT THE NOTICE OF CLAIM MUST BE SERVED AT LEAST 60 DAYS BEFORE THE COMMENCEMENT OF THE ACTION (NOT 60 DAYS AFTER THE ACCRUAL OF THE ACTION); THEREFORE THE NOTICE OF CLAIM WAS TIMELY SERVED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Maltese, determined the notice of claim in this slip and fall action against the Port Authority was timely because it was served at least 60 days before the commencement of the action. The statute of limitations for the commencement of the action had been tolled by executive order due to the COVID pandemic:

This appeal involves the intersection of McKinney’s Unconsolidated Laws of NY § 7107, which sets forth conditions precedent for commencing an action against the Port Authority of New York and New Jersey (hereinafter the Port Authority), and the executive orders issued by former Governor Andrew Cuomo which tolled time limitations due to the COVID-19 pandemic. McKinney’s Unconsolidated Laws of NY § 7107 requires that an action against the Port Authority must be commenced within one year after the cause of action accrues and that a notice of claim must be served upon the Port Authority at least 60 days before the commencement of the action. We hold that where, as here, the deadline to commence an action pursuant to section 7107 was tolled, service of the notice of claim at least 60 days prior to the timely commencement of the action satisfies section 7107. * * *

… [T]the commencement of this action on November 4, 2020, satisfied section 7107 … .

… [T]he plain language of section 7107 makes the deadline to serve a notice of claim dependent upon the date of commencement, unlike other statutes where the time to serve the notice of claim is measured from the date that the cause of action accrues … . … Therefore, the plaintiff’s service of the notice of claim on August 14, 2020, more than 60 days prior to the commencement of the action on November 4, 2020, satisfied the condition precedent set forth in section 7107. Espinal v Port Auth. of N.Y. & N.J., 2023 NY Slip Op 00844, Second Dept 2-15-23

Practice Point: The statute controlling the timing of a notice of claim against the Port Authority requires service of the notice of claim at least 60 days before the commencement of the action, not 60 days after the accrual of the action.

 

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THE PLEA ALLOCUTION RAISED THE POSSIBILITY OF DURESS AS AN AFFIRMATIVE DEFENSE; THE JUDGE MADE NO INQUIRY INTO THE VALIDITY OF PLEA; CONVICTION REVERSED DESPITE DEFENDANT’S FAILURE TO MOVE TO WITHDRAW THE PLEA (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea, determined the plea allocution raised duress as a possible affirmative defense and the judge did not inquire into the validity of the plea. The issue was considered on appeal despite the failure to move to withdraw the plea:

To be valid, a plea of guilty must be entered voluntarily, knowingly, and intelligently … . Generally, a defendant must preserve for appellate review a challenge to the validity of a guilty plea … . When, however, a “defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea,” the court has a duty to inquire further to make sure that the defendant understands the nature of the charge and that the plea has been intelligently entered … . Where the court failed in its duty to inquire further, a defendant may raise a claim regarding the validity of the plea even without having moved to withdraw the plea … .

In this case, the defendant’s contention challenging the validity of his plea of guilty is unpreserved for appellate review since he did not move to withdraw his plea or otherwise raise that issue prior to the imposition of sentence … . However, the County Court’s failure to inquire into the validity of the plea after the defendant’s allocution raised the possibility of an affirmative defense based on duress (see Penal Law § 40.00) permits the defendant to challenge the sufficiency of the allocution on direct appeal, and requires reversal of the judgment of conviction … . People v Rodriguez, 2023 NY Slip Op 00678, Second Dept 2-8-23

Practice Point: Here the defendant’s allocution raised the possibility he had duress as an affirmative defense but the judge made no inquiry into the validity of the plea. Despite the defendant’s failure to preserve the error by moving to withdraw the plea, the appellate court reversed his conviction.

 

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AFTER COMPLAINING THAT A JUROR APPEARED TO BE SLEEPING AT TIMES, DEFENSE COUNSEL MADE A MOTION TO DISQUALIFY HIM; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY BEFORE DENYING THE MOTION; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge did not make a sufficient inquiry of juror number 2 after complaints from defense counsel and the prosecutor that he appeared to be sleeping at times. The judge’s denial of the defense motion to disqualify the juror was therefore based on speculation:

The court never asked juror number two during any of the inquiries if he had fallen asleep or was sleepy. During the third inquiry, the court did not ask juror number two about defense counsel’s specific observations, including that juror number two had allegedly put his head back with his eyes closed and his mouth dropped. The court also failed to ask juror number two what he meant by his equivocal statement that he “[m]ore or less” understood the jury charge, or to ask if there were any specific portions of the jury charge that juror number two did not understand. Although the court did state at one point that “[w]e have not seen [juror number two] sleeping,” the statement, in context, indicates that the court was correcting defense counsel’s misstatement, rather than making its own observation. Likewise, a statement by a court officer that he had not observed juror number two sleeping was not determinative in this case because defense counsel’s assertion that the officer was seated behind juror number two was uncontradicted … . Since the court failed to ask during the third inquiry whether juror number two had fallen asleep during the jury charge, whether he had difficulty staying awake, or about any of defense counsel’s specific observations, its determination that juror number two was not grossly unqualified to serve was based on speculation … . People v Mentor, 2023 NY Slip Op 00677, Second Dept 2-8-23

Practice Point: When it appears a juror has been sleeping at times and a motion to disqualify the juror is made, the judge must make a sufficient inquiry before ruling on the motion. Here the denial of the motion to disqualify was not preceded by a sufficient inquiry and defendant’s conviction was reversed.

 

THE INSTRUMENT SHOULD HAVE BEEN ADMITTED TO PROBATE AS A LOST WILL (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the will should have admitted an instrument to probate as a lost will. It was shown the will was never in decedent’s possession which negated the presumption the will had been revoked:

A lost or destroyed will may be admitted to probate if (1) it is shown that the will has not been revoked, (2) execution of the will is proved in the manner required for probate of an existing will, and (3) “[a]ll of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete” … . “When a will, although once possessed by a testator, cannot be found after the death of the testator, a strong presumption arises that the testator revoked the will by destruction” … . “The presumption may be overcome, and the lost will admitted to probate, if the proponent establishes that the will was not revoked by the testator during his or her lifetime” … .

Here, in support of the petition, the petitioners submitted, among other things, the affirmation of the attorney-draftsperson, the affidavit of an attesting witness, and the unsigned copy of the decedent’s lost will. The petitioners’ submissions established that the will was never in the decedent’s possession, that the will had not been revoked, and that the will was duly executed … . Matter of McKenna, 2023 NY Slip Op 00664, Second Dept 2-8-23

Practice Point: Here there was unsigned, undated copy of the will, proof the will was never in the decedent’s possession and that it had been duly executed. The instrument should have been admitted to probate as a lost will.

 

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IN THIS CHILD VICTIMS ACT CASE, THE ALLEGATION THE ABUSE TOOK PLACE IN 1982 – 1983 WAS SPECIFIC ENOUGH TO MEET THE PLEADING REQUIREMENTS OF THE COURT OF CLAIMS ACT (SECOND DEPT).

The Second Department, reversing the Court of Claims in this Child Victims Act proceeding, determined the claim sufficiently described when the sexual abuse occurred. The claimant alleged she was abused by a state employee in 1982 and 1983 when she was 17. The Court of Claims had dismissed the claim finding that the allegations when the abuse took place were not specific enough. The Second Department found the 1982 – 1983 time frame adequate:

Court of Claims Act § 11(b) “places five specific substantive conditions upon the State’s waiver of sovereign immunity by requiring the claim to specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” … .  ***

Under the particular circumstances of this case, the date ranges provided in the claim stating that the sexual abuse commenced in approximately 1982 and occurred “repeatedly” and “multiple times” from approximately 1982 to 1983, during periods when the claimant was directed to the Workshop to receive counseling, along with other information contained in the claim including, inter alia, that there was a criminal investigation, prosecution, and conviction of West based upon the claimant’s complaints of sexual abuse, were sufficient to satisfy the “time when” requirement of Court of Claims Act § 11(b) … . Fenton v State of New York, 2023 NY Slip Op 00650, Second Dept 2-8-23

Practice Point: Here in this Child Victims Act case against a state employee, the allegation the sexual abuse took place in 1982 – 1983 was deemed specific enough to satisfy the pleading requirements in the Court of Claims Act.

Similar issues and result in Meyer v State of New York, 2023 NY Slip Op 00658, Second Dept 2-8-23

 

IF PLAINTIFF DOES NOT REJECT AN UNTIMELY ANSWER SUBMITTED WITHOUT LEAVE OF COURT OR STIPULATION, OBJECTION TO THE ANSWER AS UNTIMELY IS WAIVED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the amended answer should not have been struck because it was untimely. The plaintiff did not reject the amended answer:

Although Saldarriaga [defendant] filed her amended answer approximately 20 months after filing her original answer, well beyond the period within which an amended pleading could have been served as of right (see CPLR 3025[a]), without obtaining leave of court or the stipulation of all parties to the amendment … , the plaintiff did not reject the amended answer. By “retaining the amended pleading without objection” , the plaintiff waived any “objection as to untimeliness” … . Thus, Saldarriaga’s amended answer should not have been stricken as untimely.  Citibank, N.A. v Saldarriaga, 2023 NY Slip Op 00647, Second Dept 2-8-23

Practice Point: If a plaintiff accepts an untimely answer submitted without leave of court or a stipulation, objection to the answer as untimely is waived.

 

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PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION SOUGHT TO ADD TWO PHYSICIAN’S ASSISTANTS (PA’S) AS DEFENDANTS AFTER THE STATUTE OF LIMITATIONS HAD RUN; PLAINTIFF DID NOT DEMONSTRATE THE DEFENDANT DOCTORS WERE THE PA’S EMPLOYERS OR SUPERVISORS; PLAINTIFF DID NOT DEMONSTRATE THE PA’S HAD TIMELY KNOWLEDGE OF THE ACTION; THEREFORE THE RELATION-BACK DOCTRINE SHOULD NOT HAVE BEEN APPLIED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate the relation-back doctrine applied such that two physician’s assistants (PA’s) could be added as defendants after the statute of limitations had expired. There was no evidence the PA’s and the doctors were united in interest and no evidence the PA’s had timely notice of the suit:

In a negligence or malpractice action “the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other” … . … As the PA defendants were employed by the practice, not the individual doctor defendants, there is no vicarious liability based on respondeat superior … . …  [T]he plaintiff failed to set forth sufficient facts to demonstrate that the PA defendants were directly supervised or controlled by the doctor defendants in their care and treatment of the decedent.

… The record is devoid of evidence that the PA defendants had notice that an action had been commenced against the doctor defendants prior to the expiration in 2014 of the statute of limitations for the medical malpractice and wrongful death causes of action. Sanders v Guida, 2023 NY Slip Op 00455, Second Dept 2-1-23

Practice Point: Here two of the three prongs of the relation-back doctrine should not have been applied to allow adding two physician’s assistants (PA’s) as defendants in this med mal case after the statute of limitations had run. The defendant doctors were not the PA’s employers or supervisors (the doctors and PA’s were not united in interest) and the plaintiff did not show the PA”s had timely knowledge of the suit.

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO LEVEL ONE; THE PRIOR RAPE (THE JUSTIFICATION FOR COUNTY COURT’S LEVEL THREE DESIGNATION) STEMMED FROM AN ONGOING RELATIONSHIP WITH THE VICTIM WHO WAS UNABLE TO CONSENT SOLELY BECAUSE OF HER AGE (SECOND DEPT).

The Second Department, reversing County Court, determined defendant was entitled to a downward departure to a level one sex offender designation. County Court had designated defendant a lever three offender because of a prior rape-third conviction. The rape-third conviction was based solely on the victim’s inability to consent due to her age. The defendant and the victim had been in a long-term relationship:

… [T]he unusual circumstances established by the defendant … are not accounted for by the Guidelines and tend to demonstrate a lower likelihood of reoffense and danger to the community. With respect to the first felony conviction serving as a predicate for the override, rape in the third degree, the People acknowledged that the victim’s lack of consent was solely by reason of inability to consent because of her age. Further, the record reflects that conduct underlying this crime was an ongoing relationship between the defendant and the victim. During this relationship, a video depicting sexual conduct between the defendant and the victim was taken. This video, depicting the same conduct for which the defendant was convicted of rape in the third degree and designated a level one sex offender, was discovered by a probation officer approximately a year later, and served as the basis for the defendant’s second sex-related felony conviction, possessing a sexual performance by a child. People v Hernandez, 2023 NY Slip Op 00451, Second Dept 2-1-23

Practice Point: Here defendant was entitled to a downward departure to a level one sex offender designation. The rape which County Court relied on for a level three designation stemmed from an ongoing relationship with the victim who was unable to consent solely because of her age.

 

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