You are here: / Second Department

Tag Archive for: Second Department

, ,

AN “INTEREST OF JUSTICE” EXTENSION OF TIME TO SERVE A DEFENDANT HAS DIFFERENT CRITERIA THAN A “GOOD CAUSE” EXTENSION; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s request for more time to serve the defendant in this foreclosure action should have been granted. The different criteria for an “interest of justice” versus a “good cause” request for an extension is explained:

Pursuant to CPLR 306-b, a court may, in the exercise of its discretion, grant a motion for an extension of time within which to effect service for good cause shown or in the interest of justice … . “Good cause requires a showing of reasonable diligence in attempting to effect service” … . “[I]n deciding whether to grant a motion to extend the time for service in the interest of justice, the court must carefully analyze the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter” … . Under the interest of justice standard, “the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to [the] defendant” … .

… The plaintiff demonstrated that the action was timely commenced, that service was timely attempted and was believed by the plaintiff to have been made within 120 days after the commencement of the action but was subsequently found to be defective, that the statute of limitations had expired, and that the extension of time would not prejudice the defendant as the defendant had actual notice of the action … . Wells Fargo Bank, N.A. v Boakye-Yiadom, 2023 NY Slip Op 01026, Second Dept 2-22-23

Practice Point: An “interest of justice” extension of time to serve a defendant has different criteria than a “good cause” extension. The criteria are explained.

 

, ,

IF PLAINTIFF MOVED FOR SUMMARY JUDGMENT IN THIS ACTION TO SET ASIDE A DEED PLAINTIFF WOULD HAVE HAD TO PROVE THE DEED WAS FORGED; TO WIN A MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE, HOWEVER, THE DEFENDANT MUST UTTERLY REFUTE PLAINTIFF’S ALLEGATION THE DEED WAS FORGED WHICH DEFENDANT FAILED TO DO HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (Golden Bridge’s) motion to dismiss this action to set aside a deed (allegedly forged) should not have been granted. The decision clearly lays out the subtle but crucial differences in proof requirements between a defendant’s motion to dismiss based on documentary evidence and a a plaintiff’s motion for summary judgment.

On February 3, 2004, the plaintiff acquired title to real property located in Brooklyn. In 2017, the property was transferred to the defendant Rutland Development Group, Inc. (hereinafter Rutland), by the deed that is the subject of this action. Rutland granted the defendant Golden Bridge, LLC (hereinafter Golden Bridge), a mortgage on the property in exchange for the sum of $625,000. * * *

“On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate … . A motion to dismiss a complaint based upon CPLR 3211(a)(1) may be granted “only where the documentary evidence utterly refutes [a] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . …

Here, in support of its motion, Golden Bridge submitted … a notary’s certificate of acknowledgment attesting that the plaintiff had appeared before him … , and executed the subject deed or acknowledged her execution thereof, a resolution by Rutland authorizing the plaintiff to borrow a sum of money from Golden Bridge on Rutland’s behalf, and bank checks … . Although Golden Bridge did proffer some evidence that the plaintiff may have received consideration as a result of the transfer of the property, Golden Bridge’s evidentiary submissions were insufficient to utterly refute the plaintiff’s allegations that the deed and other relevant documents were forged, she received no consideration, and she did not have any relationship to Rutland (see CPLR 4538 …). On a motion for summary judgment, the plaintiff would have had to proffer evidence so clear and convincing as to amount to a moral certainty, in order to rebut the presumption, based on the notary’s certificate of acknowledgment, that the deed was duly executed (see CPLR 4538 …). Here, however, on a motion to dismiss the complaint pursuant to CPLR 3211(a), the questions are whether the plaintiff has a cause of action and whether Golden Bridge conclusively established a defense as a matter of law. Aleyne v Rutland Dev. Group, Inc.,2023 NY Slip Op 00975, Second Dept 2-22-23

Practice Point: Here in this action to set aside a deed as forged, the proof requirements for a plaintiff’s motion for summary judgment and defendant’s motion to dismiss based on documentary evidence were compared. In the summary judgment motion, plaintiff would have to prove the deed was forged. In the motion to dismiss, the defendant must produce documentary evidence which utterly refutes plaintiff’s allegation the deed was forged–two very different standards of proof.

 

, ,

DEFENDANT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN ALLOWED TO AMEND THE ANSWER DESPITE THE FAILURE TO MAKE A PRE-ANSWER MOTION TO DISMISS; THE DEFENDANT GETS A SECOND CHANCE TO ADD AN AFFIRMATIVE DEFENSE IF THE COURT GRANT’S LEAVE TO AMEND (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant in this foreclosure action should have been allowed to amend the answer:

… Supreme Court … should not have denied that branch of the defendant’s cross-motion which was for leave to amend his answer to assert an affirmative defense alleging lack of compliance with the condition precedent in the mortgage agreement requiring a notice of default. In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b] …). Lateness alone is not a barrier to the amendment … . “‘It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine'” … . Moreover, although a defense is generally waived under CPLR 3211(e) where not raised in an answer or made the subject of a motion to dismiss, it can be interposed in an answer amended by leave of court pursuant to CPLR 3025(b) … . Wall St. Mtge. Bankers, Ltd. v Berquin, 2023 NY Slip Op 01025, Second Dept 2-22-23

Practice Point: The court can grant a defendant leave to amend an answer where the defendant did not make a pre-answer motion to dismiss on the ground which is the subject of the amendment. In other words, if the defendant fails to make a pre-answer motion to dismiss and the initial answer does not include the affirmative defense which could have been the basis of a motion to dismiss, the defendant gets another chance in an amendment of the answer by leave of court.

 

, ,

PLAINTIFF’S COUNSEL EXPLAINED THAT THE RETURN DATE FOR DEFENDANT’S SUMMARY JUDGMENT MOTION WAS MISCALEDARED AS THE DATE FOR SUBMISSION OF OPPOSITION PAPERS; IT WAS AN ABUSE OF DISCRETION TO DENY PLAINTIFF’S MOTION TO VACATE THE SUMMARY JUDGMENT ORDER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court abused its discretion in denying plaintiff’s motion to vacate the order granting summary judgment to defendant in this slip and fall case. Plaintiff’s counsel explained that the return date had been mistakenly calendared as the date for the submission of opposition papers:

In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for the default as well as a potentially meritorious opposition to the motion … . Here, the plaintiff’s excuse of law office failure was reasonable … , and she also demonstrated that she had a potentially meritorious opposition to the defendant’s motion … .

Under the circumstances of this case, including that the scheduling error by counsel for the plaintiff was brief, isolated, and unintentional, with no evidence of wilful neglect … , and considering the strong public policy in favor of resolving cases on the merits … , the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to vacate the … order … . Valesquez v Landino, 2023 NY Slip Op 01023, Second Dept 2-22-23

Practice Point: Here plaintiff’s counsel offered a reasonable excuse for missing the date for submission of opposition papers. Supreme Court abused its discretion in denying plaintiff’s motion to vacate the summary judgment order.

 

, , ,

IN THIS CHILD VICTIMS ACT LAWSUIT ALLEGING PLAINTIFF WAS ABUSED BY A SCHOOL JANITOR, THE SOCIAL SERVICES LAW 413 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE JANITOR WAS NOT “A PERSON LEGALLY RESPONSIBLE” FOR PLAINTIFF’S CARE; THEREFORE THE SCHOOL HAD NO DUTY TO REPORT THE ABUSE PURSUANT TO THE SOCIAL SERVICES LAW (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Social Services Law cause of action in this Child Victims Act complaint should have been dismissed. Plaintiff alleged she was abused by a school janitor and the defendant school violated Social Services Law 413 by not reporting the abuse. Social Services Law 413 applies only to a “person legally responsible” for the plaintiff’s care:

… [T]he Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action, alleging a violation of Social Services Law § 413. Since the janitor was not a “person legally responsible” for the plaintiff’s care within the meaning of Family Court Act § 1012(e), the defendants had no duty under Social Services Law § 413(1)(a) to report the alleged abuse of the plaintiff by the janitor (see Social Services Law § 412[1] …). Sullivan v Port Wash. Union Free Sch. Dist., 2023 NY Slip Op 01022, Second Dept 2-22-23

Practice Point: Pursuant to Social Services Law 413 a school is under a duty to report abuse by a person legally responsible for a student’s care. That statute did not apply here in this Child Victims Act lawsuit alleging abuse by a school janitor.

 

, ,

THE TENANT WAS NOT ENTITLED TO A YELLOWSTONE INJUNCTION BECAUSE THE RELIEF WAS SOUGHT AFTER THE DEADLINE IN THE NOTICE TO CURE; THAT DEADLINE WAS CONTROLLED BY THE LEASE AND THEREFORE WAS NOT EXTENDED BY THE COVID-RELATED EXECUTIVE ORDERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the tenant was not entitled to a Yellowstone injunction because the relief was not sought before the deadline in the notice to cure, which is controlled by the lease. The time-limit extensions in response to COVID do not apply to the notice-to-cure deadline which is contractual:

… [T]he landlord served a notice to cure on the tenant on May 15, 2020, and the cure period ended on June 1, 2020, in accordance with the terms of the lease. When the tenant did not cure the alleged defects, the landlord served a notice of termination on June 2, 2020. The tenant commenced this action and moved for a Yellowstone injunction on June 15, 2020, well after the cure period expired.

Executive Order 202.8, and the subsequent orders extending that order, did not toll the cure period since the cure period, set by contract, was not “prescribed by [a] procedural law[ ] of the state” or “any other statute, local law, ordinance, order, rule, or regulation” (9 NYCRR 8.202.8). Moreover, filing of new non-essential matters through the New York State Courts Electronic Filing System was available in the five New York City counties, including Kings County, as of May 25, 2020 … . Prestige Deli & Grill Corp. v PLG Bedford Holdings, LLC, 2023 NY Slip Op 01019, Second Dept 2-22-23

Practice Point: The deadlines extended by the COVID Executive Orders do not apply to contractual deadlines (here the deadline for seeking a Yellowstone injunction after the tenant’s receipt of a notice to cure).

 

, ,

THIS BREACH OF CONTRACT, QUASI CONTRACT, UNJUST ENRICHMENT COMPLAINT SHOULD HAVE BEEN DISMISSED; PLAINTIFF SCHOOL BUS COMPANY WAS SEEKING PAYMENT FOR THE MONTHS THE SCHOOLS WERE CLOSED DUE TO COVID-19 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this breach of contract, quasi contract, unjust enrichment complaint should have been dismissed. Defendant school-bus company was demanding payment for those months the schools were closed due to COVID-19:

… [T]he complaint failed to specify the provision of the parties’ contract that was allegedly breached … . … [N]o provision was identified which would permit the plaintiff to demand payment from the defendant in exchange for merely remaining available to provide transportation services … . In addition, the evidentiary material submitted by the plaintiff in opposition to the defendant’s motion failed to remedy this defect in the complaint … .

… “[T]he existence of a valid contract governing the subject matter generally precludes recovery in quasi contract for events arising out of the same subject matter” … . “[T]he theory of unjust enrichment lies as a quasi-contract claim. It is an obligation the law creates in the absence of an agreement” … . “An unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim” … .

“The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” … . “A plaintiff must show that (1) the other party was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the [defendant] to retain what is sought to be recovered” … . Here, the complaint fails to sufficiently allege that the defendant was enriched or otherwise received a benefit at the plaintiff’s expense to support a cause of action for quasi contract sounding in restitution or unjust enrichment … . Pierce Coach Line, Inc. v Port Wash. Union Free Sch. Dist., 2023 NY Slip Op 01018, Second Dept 2-22-23

Practice Point: An unjust enrichment cause of action will not fly if there is a contract covering the same subject matter (here there was such a contract). Unjust enrichment sounds in equity and addresses when it is unfair for a party to retain what the other party is seeking to recover. The defendant school district was not unjustly enriched by not paying the plaintiff school bus company for those months when the school was closed due to COVID.

 

,

DEFENDANT WAS NOT FREE TO LEAVE AFTER A STREET STOP AND WAS INTERROGATED WITHOUT HAVING BEEN AFFORDED THE MIRANDA WARNINGS; THE DEFENDANT’S STATEMENTS SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court and suppressing defendant’s statements, determined defendant was in custody after a street stop and was interrogated without the Miranda warnings:

At a pretrial suppression hearing, a police officer testified … he stopped the defendant and another male, both of whom matched the description of individuals suspected of leaving the scene of a motor vehicle accident where a motorcyclist had been struck. At that time, the defendant and the other male were detained and were not “free to leave.” Further, at least ten police vehicles responded to the location, along with several officers.

Thereafter, without advising the defendant of his Miranda rights … , a state trooper asked the defendant his name and performed a “quick cursory pat down” of the defendant’s person. The state trooper then engaged in what he indicated was a “more detailed conversation” with the defendant. Specifically, the state trooper inquired whether the defendant was the operator of the subject vehicle. According to the state trooper, in response thereto, the defendant initially admitted that he was the operator of that vehicle, but then “quickly corrected himself and stated that he took the train” to the location. The state trooper proceeded to ask the defendant additional details relating to the train trip, including “which train he took to that location, which stop he got off at, and where his trip began.” The state trooper testified that the defendant “couldn’t give . . . an answer to any of those questions.” At the time that the state trooper asked these questions, the defendant was placed with his hands on the hood of a police car. Additionally, the “entire street was pretty much blocked off by police vehicles.” People v Trice, 2023 NY Slip Op 01015, Second Dept 2-22-23

Practice Point: Here the defendant was stopped on the street and several police vehicles and ten police officers were at the scene. A state trooper questioned him while defendant was standing with his hands on the hood of a police car. The defendant was in custody and had not been afforded the Miranda warnings. His statements should have been suppressed.

 

,

THE EXPERTS WHO TESTIFIED THE SEIZED SUBSTANCES CONTAINED HEROIN OR COCAINE RELIED ON COMPARISONS WITH STANDARD SAMPLES IN THEIR LABS BUT NO EVIDENCE WAS OFFERED TO DEMONSTRATE THE ACCURACY OF THE SAMPLES; THEREFORE THE EXPERTS’ OPINIONS RELIED ON EVIDENCE NOT IN THE RECORD; CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing the convictions which relied on expert evidence that the seized substances contained cocaine or heroin, determined the experts relied on evidence which was not in the record. Therefore a proper foundation had not been laid for the conclusions that the substances contained cocaine and heroin:

Here, each of the People’s five experts testified to arriving at the conclusion that the substance tested was either heroin or cocaine by comparing the substance with a standard sample in the laboratory that was known to be heroin or cocaine. When questioned about the accuracy of the known standard, the experts testified generally that the sample reference material was obtained from chemical manufacturers. Some of the experts testified that the samples came with certifications, which might have established the sample’s accuracy, but no such certifications were offered into evidence. Some of the experts testified that the sample reference material generally is tested upon arrival at the laboratory, but none of the experts could testify to personal knowledge of the testing of the known standard that she or he used in this case, and the People did not introduce any evidence establishing that such independent testing had occurred. …

Although an expert’s testimony that a substance contains a narcotic drug may be admissible when it is not based solely upon comparative tests using known standards, but is also based on other tests not involving known standards, or other facts in evidence … , here, two of the experts relied solely upon the comparative tests, and their testimony should have been stricken …. Further, while the other three experts testified that before using the comparative tests to confirm the identity of the substance, she or he employed one or more presumptive tests, each of those presumptive tests merely demonstrated the possibility that cocaine or heroin might be present in the substance, but did not confirm the presence of the narcotic drug. It was the comparison to the known standard that enabled each expert to conclude that the substance tested was heroin or cocaine … . People v Ramis, 2023 NY Slip Op 01013, Second Dept 2-22-23

Practice Point: If an expert’s opinion relies on information that is not in the record, a proper foundation for the opinion has not been laid. Here the experts’ opinions that seized substances contained cocaine and heroin were based on comparison with samples in the lab, but no evidence demonstrating the accuracy of the samples was presented.

 

, , ,

PLAINTIFF’S DAUGHTER SHOULD NOT HAVE BEEN APPOINTED TO SERVE AS THE INTERPRETER FOR HER MOTHER’S DEPOSITION IN THIS MEDICAL MALPRACTICE CASE; THE CRITERIA FOR ALLOWING A RELATIVE TO SERVE AS AN INTERPRETER ARE EXPLAINED (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Wooten, determined the plaintiff’s daughter should not have been appointed an interpreter for plaintiff’s deposition in this medical malpractice action. The opinion lays out the criteria for when a relative could be allowed to act as an interpreter:

… [W]e hold that the appointment of an individual to serve as interpreter for a relative or to serve as interpreter in an action or proceeding in which the interpreter has personal knowledge of the relevant facts is only permissible under exceptional circumstances. In evaluating whether such circumstances are present, courts must consider the following: (1) whether sufficient information has been disclosed by the party in need of an interpreter to the court and to opposing parties so as to allow for a thorough search for a disinterested interpreter; (2) whether an exhaustive and meaningful search has been conducted for a disinterested interpreter; (3) whether the potential interpreter is the least interested individual available to serve as interpreter; and (4) whether the potential interpreter is capable of objectively translating the testimony verbatim, which may only be assessed after the court has conducted an inquiry of the potential interpreter. Unless the court is satisfied that each of these four elements has been satisfied, then the potential interpreter must not be permitted to serve as interpreter in view of the “danger that [the] witness’ [testimony] will be distorted through interpretation,” “either consciously or subconsciously” … .Zhiwen Yang v Harmon, 2023 NY Slip Op 00893, Second Dept 2-15-23

Practice Point: Here the plaintiff’s daughter should not have been appointed to serve as the interpreter for her mother’s deposition in this med mal case. The court laid out guidelines for the extraordinary circumstances in which a party’s relative may act as the interpreter.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy