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CONCLUSORY AND SPECULATIVE ALLEGATIONS PLAINTIFF WOULD NOT HAVE LOST ITS DISADVANTAGED BUSINESS ENTERPRISE (DBE) STATUS HAD DEFENDANT ATTORNEYS NOT FAILED TO FILE AN ADMINSTRATIVE APPEAL AND REQUEST A HEARING WERE NOT SUFFICIENT TO SURVIVE A MOTION TO DISMISS PURSUANT TO CPLR 3211 (A) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the legal malpractice complaint should have been dismissed. Defendants allegedly did not pursue an administrative appeal and submitted a written response in lieu of a hearing. Plaintiff Mid City alleged the failures resulted in the termination of its status as a disadvantaged business enterprise (DBE). The Second Department held plaintiff did not demonstrate that but for the alleged legal malpractice the DBE status would not have been terminated:

… [E]ven accepting the facts alleged in the complaint as true, and according Mid City the benefit of every possible favorable inference … , the complaint failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome regarding the termination of Mid City’s status as a DBE … . The allegation that Mid City lost the opportunity to pursue an administrative appeal, without any indication that the appeal would be successful, is insufficient to state a claim … . Similarly, the allegation that Mid City would have been recertified as a DBE had the defendants requested a hearing, rather than having filed a written response to the initial letter proposing termination of its status as a DBE, is speculative and conclusory … . Mid City Elec. Corp. v Peckar & Abramson, 2023 NY Slip Op 01085, Second Dept 3-1-23

Practice Point: To survive a motion to dismiss the complaint in a legal malpractice action, the plaintiff must make specific factual allegations demonstrating that but for the attorney’s negligence the outcome would have been more favorable. Conclusory or speculative “but for” allegations are not enough.

 

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ALTHOUGH THE SEARCH WARRANT DESCRIBED THE RESIDENCE AS HAVING TWO ENTRANCE DOORS, ONE LEADING TO THE AREA WHERE THE INFORMANT SAW THE FIREARMS AND ONE LEADING TO A STAIRWAY TO THE SECOND FLOOR (WHICH THE INFORMANT HAD NOT VISITED), THE WARRANT WAS NOT SEVERABLE AND WAS THEREFORE OVERBROAD (SECOND DEPT). ​

The Second Department determined Supreme Court properly found the search warrant overly broad and suppressed the seized evidence. The warrant described the premises to be searched as having two exterior doors, one leading to the area described by the confidential informant who had seen firearms there, and the other leading to stairs to the second floor. The informant had never been upstairs and nothing was seized from upstairs. The issue was whether the part of the warrant which authorized the search of the upstairs could be severed from the part of the warrant describing the area visited by the informant. The court reasoned that severance would be justified if the warrant described two separate apartments. But because the warrant described the premises as a single residence, it was overbroad:

Unlike the warrant in Hansen [38 NY2d 17], which authorized the search of two obviously separate places—a home and a vehicle—the language of the warrant in this case was ambiguous, and failed to clearly delineate whether it authorized a search of a single residence or two separate residences. The warrant did refer to the premises as a “two-family home,” with a “right main entrance” that led to “a living room, a kitchen, and bedrooms,” and a “left main entrance,” which led to “a set of stairs that lead up to a living room, a kitchen and bedrooms,” which may have suggested that the building contained two separate apartments. Yet, the warrant referred to the premises as the “Subject Location” and “the residence,” and instead of using words like “apartment” or “unit,” it referred to the rooms on the first floor as being “at the residence,” and referred to the rooms on the second floor as being “at the rear of the residence.”

In light of this ambiguity, a reviewing court could not determine that the warrant authorized the search of two separate places without impermissibly engaging in “retrospective surgery, dehors the language of the warrant, [to] cut away the illegal portions of the area to be searched and by judicially revised description save evidence recovered from a more narrowly limited area” … . People v Capers, 2023 NY Slip Op 01011, Second Dept 2-22-23

Practice Point: The Court of Appeals has held that where a warrant describes two distinct areas to be searched, a vehicle and a residence for example, and the search of one of the areas was not supported by probable cause, the warrant may be severed. Here, although there were two entrances to the premises, it was described as a single residence and therefore was not severable.

 

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THE PETITION TO STAY ARBITRATION PENDING A FRAMED ISSUE HEARING SHOULD HAVE BEEN GRANTED IN THIS UNINSURED MOTORIST TRAFFIC ACCIDENT CASE; PROCEDURAL CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for a stay of arbitration pending a framed issue hearing should have been granted in this uninsured motorist traffic accident case:

“The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay” … . “Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing” … . “Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue” … .

Here, the appellants concede that Infinity [petitioner insurer] satisfied its prima facie burden of showing sufficient evidentiary facts to establish a preliminary issue that would justify a stay of arbitration. In support of its petition, Infinity submitted, inter alia, an affidavit from its investigator, who stated that he found that a claim for property damage was previously made to GEICO arising out of the subject accident … . In opposition, the appellants raised issues of fact as to whether GEICO’s insured was involved in the accident … . Matter of Infinity Indem. Ins. Co. v Leo, 2023 NY Slip Op 01003, Second Dept 2-22-23

Practice Point: The procedural criteria for a determining a petition for a stay of arbitration pending a framed issue hearing in an uninsured motorist traffic accident case are explained.

 

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FAMILY COURT ABUSED ITS DISCRETION IN FAILING TO CONDUCT AN IN CAMERA INTERVIEW WITH THE CHILD BEFORE DENYING MOTHER’S PETITION FOR IN-PERSON PARENTAL ACCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined the denial of mother’s petition for in-person parental access was not supported by the record, in part because the judge did not conduct an in camera interview with the child:

The Family Court’s determination, in effect, denying that branch of the mother’s petition which was for in-person parental access lacked a sound and substantial basis in the record. “The decision to conduct an in camera interview to determine the best interests of the child is within the discretion of the hearing court” … . Here, the court improvidently exercised its discretion in failing to conduct an in camera interview of the child, particularly given the mother’s testimony that the child’s fear of visiting her in person was due to outside influence … . The child is of such an age and maturity that his preferences are necessary to create a sufficient record to determine his best interests … . Matter of Badal v Wilkinson, 2023 NY Slip Op 00997, Second Dept 2-22-23

Practice Point: Here Family Court should have conducted an in-person interview with the child before denying mother’s petition for in-person parental access. The failure to conduct the interview was deemed an abuse of discretion.

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WHERE ONE OF TWO RELATED FORECLOSURE ACTIONS IS SUBJECT TO A MERITORIOUS MOTION TO DISMISS AS TIME-BARRED, IT IS AN ABUSE OF DISCRETION TO GRANT A MOTION TO CONSOLIDATE THE TIME-BARRED ACTION WITH THE TIMELY ACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court, determined that where one action is subject to a meritorious motion to dismiss as time-barred, it is an abuse of discretion for a judge to grant a motion to consolidate that action with another which is timely:

… [B]oth actions are to foreclose on the same mortgage securing the same debt owed by the same defendant. However, in our view, a precondition for merging two or more actions is that each action should itself be viable, meaning that neither is confronted with a pending—and apparently meritorious—motion to dismiss. Once the defendant here met her burden of establishing, prima facie, that the time in which to commence the 2017 action had expired, it became the plaintiff’s burden to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period. The plaintiff could not meet that shifted burden by merely asserting that the 2017 action will become timely once it is merged with the timely 2008 action. The purpose of consolidation under CPLR 602(a) is not to provide a party with a procedural end run around a legal defense applicable to one of the actions. In our opinion, in such instances, judicial discretion should not be used to cure the untimeliness of one action by tethering it to a related timely action. We hold, as an issue of apparent first impression that, in this case, the Supreme Court improvidently exercised its discretion in granting consolidation and that, in general, consolidation should be denied where one of the cases to be consolidated is subject to a meritorious motion to dismiss…. . HSBC Bank USA, N.A. v Francis, 2023 NY Slip Op 00992, Second Dept 2-22-23

Practice Point: Here there were two related foreclosure actions. One was subject to dismissal as time-barred and the other was timely. The two should not be consolidated as an end-run around the statute of limitations.

 

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SUPREME COURT HAD THE POWER TO APPOINT THE PUBLIC ADMINISTRATOR TO REPRESENT THE ESTATE IN THIS TRAFFIC ACCIDENT CASE; DEFENSE COUNSEL REPRESENTED THE INSURER, NOT THE DEFENDANT ESTATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should have granted plaintiff’s motion to appoint the Public Administrator to represent the defendant estate in this traffic accident case. Defense counsel represented the insurance company, not the estate:

… [C]ounsel’s affirmation stated that he “was retained by Truck Insurance Exchange to represent the interests of their insured Arthur Ketterer herein.” Under these circumstances, moving counsel lacked authority to represent the defendant estate … . …

In appropriate circumstances, the Supreme Court is empowered to appoint a temporary administrator, in order to “avoid delay and prejudice in a pending action” … . Such a determination is addressed to the broad discretion of the court … . Here, a Surrogate’s Court decree appointed the Public Administrator to represent the estate of Arthur C. Ketterer in a related prior action. That decree did not expressly grant to the Public Administrator the authority to represent the defendant estate in this action. Under these circumstances, the plaintiff’s cross-motion should have been granted, and we remit the matter to the Supreme Court, Kings County, for the appointment of a temporary administrator to represent the defendant in the instant action … . Franco v Estate of Arthur C. Ketterer, 2023 NY Slip Op 00988, Second Dept 2-22-23

Practice Point: Here in this traffic accident case, defense counsel represented the insurer, not the defendant estate. Therefore Supreme Court had the authority, upon plaintiff’s motion, to appoint the Public Administrator to represent the estate.

 

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PLAINTIFF IN THIS LABOR LAW 240(1) AND 241(6) ACTION WAS STRUCK BY A PIPE WHICH FELL AS IT WAS BEING HOISTED FROM A TRUCK; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S MOTION TO ADD THE VIOLATION OF ADDITIONAL INDUSTRIAL CODE PROVISIONS TO THE BILL OF PARTICULARS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ summary judgment motion in this Labor Law 240(1) and 241(6) action should not have been granted and plaintiff’s motion to amend the bill of particulars should have been granted. Plaintiff was unloading pipes from a flatbed truck when a pipe which was being lifted by an excavator came loose and fell on plaintiff’s leg:

“With respect to falling objects, Labor Law § 240(1) applies where the falling of an object is related to ‘a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured'” … . “[A] plaintiff must show that, at the time the object fell, it was being hoisted or secured, or that the falling object required securing for the purposes of the undertaking” … . A plaintiff must also show that “the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … . * * *

Supreme Court improvidently exercised its discretion in denying the plaintiff’s cross-motion pursuant to CPLR 3025(b) for leave to amend the bill of particulars to allege certain additional violations of sections of the Industrial Code with regard to the Labor Law § 241(6) cause of action. The plaintiff made a showing of merit, and the proposed amendment did not prejudice the defendants and did not involve new factual allegations or raise new theories of liability … . Castano v Algonquin Gas Transmission, LLC, 2023 NY Slip Op 00983, Second Dept 2-22-23

Practice Point: As long as no additional facts are involved, a motion to amend the pleadings to add Industrial Code violations (re: a Labor Law 241(5) action) should be granted, even after the note of issue has been filed (absent prejudice).

 

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QUESTION OF FACT WHETHER THE POLICE OFFICER ACTED IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN HE ATTEMPTED TO MAKE A U-TURN TO PURSUE A VEHICLE AND STRUCK PLAINTIFF’S CAR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this police-car traffic accident case did not demonstrate the defendant officer (Hughes) did not act with reckless disregard for the safety for the safety of others when he attempted a U-turn and struck plaintiff’s car:

“Conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b) includes disregarding regulations governing the direction of movement or turning in “specified directions” … . Here, the defendants established, prima facie, that Hughes’s conduct in attempting to execute a U-turn to pursue a suspected violator of the law was exempted from the rules of the road by Vehicle and Traffic Law § 1104(b)(4), and that, as a result, his conduct was governed by the reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) … .

… The reckless disregard standard “requires evidence that ‘the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” … . …  Hughes testified that after the offending vehicle passed him, he took his eyes off the road and looked into his left side mirror to see the offending vehicle’s license plate number. When he resumed looking straight ahead, the plaintiff’s vehicle was less than half a car length in front of him. Although Hughes testified that he applied the brakes once he saw the plaintiff’s vehicle, the plaintiff testified that the collision occurred when Hughes turned sharply into the path of the plaintiff’s vehicle and then accelerated. … Hughes did not activate his turn signal, lights, or siren before he started the U-turn. … [D]efendants’ submissions presented a triable issue of fact as to whether Hughes was reckless in attempting to make a U-turn without taking precautionary measures to avoid causing harm to others … . Bourdierd v City of Yonkers, 2023 NY Slip Op 00981, Second Dept 2-22-23

Practice Point: The evidence that the police officer took his eyes off the road in front of him before attempting a U-turn and striking plaintiff’s car raised a question of fact whether the officer acted in reckless disregard of the safety of others (Vehicle & Traffic Law 1104).

 

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AN AFFIDAVIT FROM A WITNESS TO THIS REAR-END TRAFFIC ACCIDENT STATING THAT PLAINTIFF WAS BACKING UP AT THE TIME DEFENDANT’S CAR STRUCK PLAINTIFF’S RAISED ONLY A QUESTION OF PLAINTIFF’S COMPARATIVE FAULT WHICH WILL NOT DEFEAT PLANTIFF’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end traffic accident case should have been granted. The affidavit of a witness stating that plaintiff was backing up when defendant’s car struck it raised an issue of comparative negligence, which is no longer a bar to summary judgment:

“A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” … . As such, “[a] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision” … . “A nonnegligent explanation includes, but is not limited to, sudden or unavoidable circumstances” … . “[V]ehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows” … . “A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability”… .

… [T]he plaintiff submitted an affidavit in which he averred that his vehicle was at a full stop when it was struck in the rear by the defendants’ vehicle … . In opposition, the defendants failed to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . The defendants submitted an affidavit … a witness to the accident … who stated that he saw the plaintiff’s vehicle backing up while the defendants’ vehicle was moving forward and, as a result, the front of the defendants’ vehicle made contact with the rear of the plaintiff’s vehicle. … [The]statement that the plaintiff’s vehicle was backing up … was insufficient to raise a triable issue of fact because that statement related only to the plaintiff’s comparative fault … . An v Abbate, 2023 NY Slip Op 00977, Second Dept 2-22-23

Same result (but no comparative negligence evidence) in another rear-end traffic accident case: Balgobin v McKenzie, 2023 NY Slip Op 00978, Second Dept 2-22-23

Practice Point: Here a witness to the rear-end traffic accident provided an affidavit stating plaintiff was backing up when defendant struck the rear of plaintiff’s car. The affidavit raised a question of plaintiff’s comparative fault which was not enough to defeat plaintiff’s motion for summary judgment.

 

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A JUDGE HAS DISCRETION TO DENY A MOTION FOR A DEFAULT JUDGMENT ON THE GROUND THE CAUSE OF ACTION HAS NOT BEEN SHOWN TO BE VIABLE; HERE THE ALLEGATIONS IN THE COMPLAINT, WHICH ARE DEEMED ADMITTED, STATED A VIABLE CAUSE OF ACTION AND THE MOTION FOR A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in a case related to Aleyne v Rutland Dev. Group, Inc.,2023 NY Slip Op 00975, Second Dept 2-22-23 (also summarized in the Digest), determined plaintiff’s motion for a default judgment in this action to set aside a deed as forged should have been granted:

… [T]he plaintiff correctly contends that the motion for leave to enter a default judgment against Rutland was timely filed. The plaintiff served Rutland with the summons and complaint on March 25, 2019, pursuant to Business Corporation Law § 306 via service on the Secretary of State. Rutland defaulted by failing to appear or answer the complaint within 30 days (see CPLR 320[a]; 3012[c]). The plaintiff would have been required to take proceedings for the entry of a default judgment against Rutland within one year of the default, by April 24, 2020 (see id. § 3215[c]). However, time limitations in civil actions were tolled by executive order from March 20, 2020, until November 3, 2020 … . Since the plaintiff filed the motion on October 6, 2020, it was timely.

… “A plaintiff seeking leave to enter a default judgment under CPLR 3215 must file proof of: (1) service of a copy or copies of the summons and the complaint, (2) the facts constituting the claim, and (3) the defendant’s default” (…See CPLR 3215[f]). “[D]efaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” … . However, “‘a court does not have a mandatory, ministerial duty to grant a motion for leave to enter a default judgment, and retains the discretionary obligation to determine whether the movant has met the burden of stating a viable cause of action'” … .

… [Plaintiff’s] submissions, including her affidavit in which she denied signing the deed and other documents related to the transfer of the property, were sufficient to demonstrate that her causes of action, insofar as asserted against Rutland, were viable … . Alleyne v Rutland Dev. Group, Inc., 2023 NY Slip Op 00976,Second Dept 2-22-23

Practice Point: A judge has the discretion to deny a motion for a default judgment if the plaintiff has not demonstrated the action was viable. Here the allegations in the complaint, which are deemed admitted by the failure to answer, stated a viable cause of action and the default judgment should have been awarded.

 

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