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PLAINTIFF, DECEDENT’S SON, SIGNED THE NURSING HOME ADMISSION AGREEMENT WHEN HIS FATHER, WHO HAD DEMENTIA, WAS ADMITTED; THE NURSING HOME DID NOT DEMONSTRATE PLAINTIFF, BY SIGNING THE ADMISSION AGREEMENT, HAD THE AUTHORITY TO BIND DECEDENT TO ARBITRATION OF DECEDENT’S NEGLIGENCE/PERSONAL INJURY ACTION AGAINST THE NURSING HOME (SECOND DEPT). ​

he Second Department, reversing Supreme Court, determined defendant nursing home did not demonstrate plaintiff had the authority to bind the decedent to arbitration concerning the decedent’s negligence/personal injury action against the nursing home. Plaintiff is the decedent’s son who signed the admission agreement when his father, who suffered from dementia, was admitted. The nursing home did not present sufficient proof of plaintiff’s authority to sign the admission agreement on decedent’s behalf:

A party seeking to compel arbitration must establish “the existence of a valid agreement to arbitrate” … . Here, the defendants failed to meet that burden because they did not submit sufficient evidence of the plaintiff’s authority to bind the decedent to arbitration at the time he signed the admission agreement on the decedent’s behalf. Most significantly, the defendants failed to submit the instrument through which the plaintiff allegedly derived his authority to bind the decedent to arbitration … . Evidence showing that the plaintiff represented to the defendants that he held a power of attorney when signing the admission agreement was insufficient to establish that he, in fact, held such authority as a matter of law … . Contrary to the defendants’ further contention, neither the plaintiff’s status as the decedent’s son … , nor his apparent willingness to be the decedent’s “responsible party” under the terms of the admission agreement … , have any bearing on his authority to bind the decedent to arbitration…. . Wolf v Hollis Operating Co., LLC, 2022 NY Slip Op 06954, Second Dept 12-7-22

Practice Point: Plaintiff, decedent’s son, signed the nursing-home admission agreement when decedent, who had dementia, was admitted. The nursing home did not demonstrate plaintiff, by signing the agreement, had the authority to bind decedent to arbitration of decedent’s negligence/personal injury action against the nursing home. The fact that plaintiff represented that he had power of attorney for decedent was not enough.

 

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THE AMENDMENT TO THE FAMILY COURT ACT WHICH PRECLUDES A FINDING OF NEGLECT BASED SOLELY ON MARIJUANA USE SHOULD BE APPLIED RETROACTIVELY; HOWEVER HERE THERE WAS SUFFICIENT EVIDENCE OF MOTHER’S NEGLECT OF THE CHILD BASED UPON HER “ABUSE” (AS OPPOSED TO “USE”) OF MARIJUANA (SECOND DEPT). ​

​The Second Department, in a full-fledged opinion by Justice Zayas, determined (1) the amendment to the Family Court act precluding a finding of neglect based solely on marijuana use should be applied retroactively, and (2) the evidence mother neglected the child based upon abuse of marijuana was sufficient:

The 2021 amendment should not be interpreted as preventing any reliance on the misuse of marihuana, no matter how extensive or debilitating, to establish a prima facie case of neglect. After all, the statute still encompasses the misuse of other legal substances, such as alcoholic beverages and prescription drugs. Based on the plain language of the statute, the 2021 amendment does not prevent a court from finding that there has been a prima facie showing of neglect where the evidence establishes that the subject parent has, in fact, repeatedly misused marihuana in a manner that “has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality” … . Such a finding is not based on “the sole fact” that the parent “consumes cannabis” … .

… In its order, the Family Court expressly determined that the mother had misused marihuana and “clearly had a substantial impairment of judgment, and/or substantial manifestation of irrationality and was disoriented and/or incompetent.” Since this finding was not based on “the sole fact” that the mother “consumes cannabis” (Family Ct Act § 1046[a][iii]), it provided a sufficient basis on which to apply the presumption of neglect arising from repeated misuse of drugs that is articulated in the statute, as amended … . Matter of Mia S. (Michelle C.), 2022 NY Slip Op 06932, Second Dept 12-7-22

Practice Point: The amendment of the Family Court Act to preclude a finding of neglect based solely on use of marijuana should be applied retroactively. But the amendment does not preclude a finding of neglect based on the “abuse,” as opposed to “use,” of marijuana.

 

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THE EVIDENCE FATHER NEGLECTED THREE OF THE CHILDREN BY THROWING AN OBJECT AT MOTHER AND YELLING AT MOTHER WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence father neglected three of the children by throwing an object at mother and yelling at mother was insufficient:

Family Court providently exercised its discretion in determining that the out-of-court statements of Tawdrea G., Terel R., and Micah M. G. to an ACS caseworker that the father threw an object at the mother cross-corroborated each other, and that the record as a whole demonstrated by a preponderance of the evidence that the physical, mental, or emotional condition of Tawdrea G., Terel R., and Micah M. G. was impaired or was in danger of becoming impaired when the father threw an object at the mother in their presence … .

However, the Family Court erred in determining that a preponderance of the evidence established that the father neglected Tyresse M., Makai G., Tamera P.-C. M., or Divine K. M., based on the father throwing an object at the mother. There was no evidence that Tyresse M., Makai G., Tamera P.-C. M., or Divine K. M. witnessed that event. Moreover, there was insufficient evidence to establish that the physical, emotional, or mental condition of Tyresse M., Makai G., Tamera P.-C. M., or Divine K. M., was impaired or placed in imminent danger of impairment based on that incident … .

The Family Court also erred in determining that a preponderance of the evidence established that the father neglected any of the children by verbally abusing the mother in the presence of the children. While it was inappropriate for the father to yell at the mother in the presence of the children, the evidence concerning those arguments was insufficient to establish that the children’s physical, mental, or emotional condition was impaired or in imminent danger becoming impaired … . Matter of Divine K. M. (Andre G.), 2022 NY Slip Op 06929, Second Dept 12-7-22

Practice Point: There was no evidence three of the children were present when father threw an object at mother and there was no evidence the children’s physical, mental, or emotional condition was impaired by father’s yelling at mother. The relevant neglect findings were reversed.

 

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THE ARBITRATOR’S RULING IN THIS STATUTORY, COMPULSORY ARBITRATION WAS ARBITRARY AND CAPRICIOUS, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitrator’s ruling in this no=fault insurance case was arbitrary and capricious, noting that judicial review of statutory, compulsory arbitration is more stringent than review of a voluntary agreement to arbitrate. Plaintiff GEICO paid the injured driver’s no-fault benefits and sought reimbursement from the insurer of the loaner car involved in the accident. The arbitrator denied reimbursement and the Second Department reversed:

Where, as here, the obligation to arbitrate arises through a statutory mandate, the arbitrator’s determination is subject to “closer judicial scrutiny” under CPLR 7511(b) than it would receive had the arbitration been conducted pursuant to a voluntary agreement between the parties … . To be upheld, an award in a compulsory arbitration proceeding “must have evidentiary support and cannot be arbitrary and capricious” … . “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation'” … . …

The arbitrator’s interpretation of the rental agreement … as relieving [defendant insurance company] of its obligation to provide mandatory personal injury protection (hereinafter PIP) coverage was contrary to 11 NYCRR part 65, which provides … that all motor vehicle insurance policies must contain a mandatory PIP endorsement; expressly sets forth the language of the PIP endorsement; permits deviations from the prescribed language only upon prior approval; and prohibits any release, express or implied, from mandatory or optional PIP benefits … . Matter of GEICO Gen. Ins. Co. v Wesco Ins. Co., 2022 NY Slip Op 06926, Second Dept 12-7-22

Similar issues and result in Matter of Wesco Ins. Co. v GEICO Indem. Co., 2022 NY Slip Op 06933, Second Dept 12-7-22

​Practice Point: The Second Department explained that the criteria for judicial review of statutory, compulsory arbitration is more stringent than for judicial review of arbitration by voluntary agreement.

 

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PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY A PRIEST WHILE ATTENDING DEFENDANT’S SCHOOL; THE COMPLAINT STATED CAUSES OF ACTION FOR NEGLIGENT HIRING, NEGLIGENT SUPERVISION AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this Child Victims Act action alleging sexual abuse by a priest while plaintiff was attending defendant’s parish school stated causes of action for negligent hiring, negligent supervision and intentional infliction of emotional distress. “The complaint alleged .* * * the priest … was an employee and/or an agent of the defendant, that the defendant had knowledge that the priest was abusing students, including the plaintiff, or that he had the propensity to abuse, and that the sexual abuse of the plaintiff occurred during school activities and during times at which the plaintiff was under the defendant’s supervision and care, custody, and control.”:

An employer can be held liable under theories of negligent hiring, retention, and supervision where the complaint alleges that “the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Causes of action alleging negligence based upon negligent hiring, retention, or supervision are not statutorily required to be pleaded with specificity … .

… [A] school “has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians” … .

… [T]reating the allegations in the complaint as true, including that the defendant had knowledge of the priest’s sexual abuse of the plaintiff and other children and concealed that abuse, and giving the plaintiff the benefit of every possible favorable inference, the alleged conduct would be sufficiently outrageous in character and extreme in degree to set forth a cause of action for intentional infliction of emotional distress … . Novak v Sisters of the Heart of Mary, 2022 NY Slip Op 06814, Second Dept 11-30-22

Practice Point: In an action pursuant to the Child Victims Act, plaintiff alleged he was sexually abused by a priest while attending defendant’s school. The complaint alleged defendant knew about the abuse. The complaint causes of action for negligent hiring, negligent supervision and intentional infliction of emotional distress.

 

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THE PROPERTY OWNER, MCWHITE, HAD BEEN DISMISSED FROM THE ORIGINAL FORECLOSURE ACTION AND HER INTEREST IN THE PROPERTY HAD NOT BEEN EXTINGUISHED BY THE JUDGMENT OF FORECLOSURE WHICH FALSELY NAMED HER AS A DEFENDANT; THE REFEREE’S DEED-HOLDER DID NOT STATE A CAUSE OF ACTION FOR REFORECLOSURE AGAINST MCWHITE AND MCWHITE WAS ENTITLED TO SUMMARY JUDGMENT ON HER QUIET TITLE CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s deed-holder’s (I & I’s) complaint failed to state a cause of action for reforeclosure (RPAPL 1503, 1523) against McWhite, the owner of the subject property. McWhite had been dismissed from the original foreclosure action because plaintiff never moved for a default judgment. The foreclosure plaintiff was aware McWhite was not included in the foreclosure when it filed its judgment, which falsely indicated McWhite’s interest in the property had been extinguished. McWhite was entitled to summary judgment on her quiet title action:

Under the circumstances of this case, I & I failed to state a cause of action against McWhite for reforeclosure because the defect in the foreclosure action was due to the willful neglect of the foreclosure plaintiff as a matter of law. The underlying objective of foreclosure actions is “to extinguish the rights of redemption of all those who have a subordinate interest in the property and to vest complete title in the purchaser at the judicial sale” … . The defect in the underlying foreclosure action was that McWhite’s interest was not validly extinguished in the judgment of foreclosure and sale due to her effective dismissal from the action. … [T]he foreclosure plaintiff here knew that McWhite had been effectively dismissed from the action and that the judgment of foreclosure and sale could not validly extinguish her interest in the premises. The foreclosure plaintiff nevertheless made a conscious decision to proceed to judgment and sale without validly extinguishing McWhite’s known interest … . * * *

Here, the judgment of foreclosure and sale was void as to McWhite and the foreclosure sale did not transfer her interest in the premises to I & I. Moreover, McWhite established, prima facie, that the foreclosure action accelerated the mortgage debt, that the foreclosure action was dismissed as abandoned pursuant to CPLR 3215(c), and the commencement of a new foreclosure action would be time-barred by the applicable six-year statute of limitations (see CPLR 213[4] … ). In opposition, I & I failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of McWhite’s motion which was for summary judgment on the complaint in the quiet title action. McWhite v I & I Realty Group, LLC, 2022 NY Slip Op 06795, Second Dept 11-30-22

Practice Point: Here the foreclosure plaintiff was aware the owner of the subject property, McWhite, had been dismissed from the original foreclosure action because plaintiff never moved for a default judgment. Yet the foreclosure plaintiff filed the judgment of foreclosure falsely indicating McWhite’s interest in the property had been extinguished. The owner of the referee’s deed therefore could not bring a reforecloscure action (RPAPL 1503, 1523) against McWhite and McWhite was entitled to summary judgment on her quite title action.

 

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PLAINTIFF’S DISCOVERY-RELATED ACTIONS WERE NOT WILLFUL AND CONTUMACIOUS SUCH THAT THE COMPLAINT SHOULD HAVE BEEN DISMISSED; HOWEVER PLAINTIFF’S DISCOVERY DELAYS WARRANTED VACATING THE NOTE OF ISSUE AND PAYMENT OF $3000 TO DEFENDANTS’ ATTORNEY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint in this traffic accident case should not have been dismissed as a discovery sanction. But defendant’s motion to vacate the note of issue due to plaintiff’s delay in disclosing prior relevant injuries should have been granted. In addition the appellate court ordered plaintiff’s attorney to pay defendants’ attorney $3000:

Supreme Court improvidently exercised its discretion in granting the defendants’ motion to the extent of directing dismissal of the complaint pursuant to CPLR 3126(3). Although the plaintiff initially failed to provide authorizations for the release of medical records relating to pertinent injuries which pre-date the subject accident, the plaintiff did provide date-restricted authorizations for the release of medical records relating to pertinent injuries approximately one week after the defendants requested them. … [D]efendants did not clearly demonstrate that the plaintiff’s discovery-related conduct was willful and contumacious … .

However, in light of the plaintiff’s delay in disclosing information about prior injuries that bear on the controversy and would assist preparation for trial … . the Supreme Court should have granted the defendants’ motion to the extent of vacating the note of issue … , directing the plaintiff to provide the defendants with authorizations permitting the release of medical records relating to pertinent injuries which pre-date the subject accident, and directing the plaintiff’s attorney to pay the sum of $3,000 to the defendants’ attorney….. Lopez v Maggies Paratransit Corp., 2022 NY Slip Op 06793, Second Dept 11-30-22

Practice Point: Here in this traffic accident case plaintiff’s delays in providing information about prior relevant injuries warranted vacating the note of issue and payment of $3000 by plaintiff’s attorney to defendants’ attorney.

 

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THE ALLEGEDLY DEFAMATORY STATEMENTS MADE IN A KOREAN-LANGUAGE CHAT ROOM WERE PROTECTED BY QUALIFIED PRIVILEGE, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the statements alleged to be defamatory were protected by qualified privilege. Plaintiff is an organization established to act as a liaison between the Korean-American community and the NYC Police Department. The statements were made in a Korean language chat group where the management of the organization was discussed:

The defendant established, prima facie, that his alleged statements are subject to a qualified privilege. Qualified privilege applies to a statement “when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned” … . Application of the privilege depends on whether “the relation of the parties [is] such as to afford reasonable ground for supposing an innocent motive for giving the information, and to deprive the act of an appearance of officious intermeddling with the affairs of others” … . Here, the alleged statements were made in a password-controlled, members-only chat group, and involved the management of the members’ organization. Such circumstances fall within the scope of the qualified privilege … .

A plaintiff may defeat the qualified privilege with a showing of either common-law malice (spite or ill will), or actual malice (knowledge of the falsity of the statement or reckless disregard for the truth) … . Here, the plaintiffs failed to submit any evidence that the defendant was motivated by malice alone in making the alleged statements … . They similarly failed to submit any evidence that the defendant knew the alleged statements were false or acted with a reckless disregard for their truth … . Joo Tae Yoo v Choi, 2022 NY Slip Op 06791, Second Dept 11-30-22

Practice Point:  Qualified privilege applies to  an allegedly defamatory statement “when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned” … . Qualified privilege will be defeated if is demonstrated the statements were made with “common law malice” (ill will or spite) or “actual malice (knowledge of the falsity of the statement or reckless disregard for the truth).

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST THE DIOCESE; PURSUANT TO THE CHILD VICTIMS ACT, PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY A PRIEST WHEN HE WAS 15 TO 16 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant Diocese’s motion to dismiss the intentional infliction of emotional distress cause of action should not have been granted. Plaintiff, pursuant to the Child Victims Act, alleged he was sexually abused by a priest when he was 15 to 15 years old:

“The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress” … . Here, treating as true the plaintiff’s allegations in the second amended complaint, that the defendants had knowledge of the priest’s sexual abuse of the plaintiff and other children, yet concealed the abuse and permitted it to continue, and according the plaintiff the benefit of every possible favorable inference, the alleged conduct was sufficiently outrageous in character and extreme in degree to set forth a cause of action for intentional infliction of emotional distress … . The plaintiff also sufficiently alleged a causal connection between the defendants’ alleged outrageous conduct and the plaintiff’s injuries … . Moreover, this cause of action is not duplicative of the cause of action seeking to recover damages for negligence … . Eskridge v Diocese of Brooklyn, 2022 NY Slip Op 06788, Second Dept 11-30-22

Practice Point: Here the complaint stated a cause of action for intentional infliction of emotional distress against the Diocese based on the alleged sexual abuse of plaintiff by a priest, criteria explained.

 

THE DEFENDANT INTERPOSED COUNTERCLAIMS OF AN EQUITABLE NATURE AND THEREBY WAIVED A JURY TRIAL ON ALL CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s making equitable counterclaims waived a jury trial on all causes of action:

Where, as here, a defendant interposes counterclaims of an equitable nature related to a cause of action asserted in the complaint, the defendant waives a jury trial on all causes of action, whether legal or equitable in nature … . Accordingly, the Supreme Court should have granted the plaintiff’s motion to strike the defendant’s demand for a jury trial. … . Conwell Props., Inc. v DAG Rte. Six, LLC, 2022 NY Slip Op 06785, Second Dept 11-30-22

Practice Point: Where a defendant interposes counterclaims which are equitable in nature, the defendant waives a jury trial on all causes of action.

 

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