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THE PETITION BROUGHT BY THE EXECUTOR PURSUANT TO SCPA 2103 SOUGHT DISCOVERY AND THE TURNOVER OF ANNUITY FUNDS WHICH HAD BEEN TRANSFERRED TO APPELLANT; THE SCPA 21O3 ACTION IS LIKE AN ACTION FOR CONVERSION OR REPLEVIN AND HAS A THREE-YEAR STATUTE OF LIMITATIONS; HERE THE MOTIONS TO AMEND THE ANSWERS TO ASSERT THE STATUTE OF LIMITATIONS DEFENSE AND FOR SUMMARY JUDGMENT ON THAT GROUND SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the appellant’s motion to amend their answers to assert the statute of limitations defense, and the summary judgment dismissing the petition on that ground should have been granted. The petition, brought by the executor pursuant to SCPA 2103, sought discovery and the turnover of funds from an annuity which had been distributed:

… [T]he Surrogate’s Court should have granted that branch of the appellants’ motion which was for leave to amend their answers to add the affirmative defense of the statute of limitations. The petitioner failed to demonstrate that she would be prejudiced or surprised by the proposed amendment. The petitioner also failed to demonstrate that the proposed amendment was palpably insufficient or patently devoid of merit.

“A discovery proceeding pursuant to SCPA article 21 has been likened to an action for conversion or replevin and a three-year statute of limitations has been applied” … . “A conversion cause of action accrues and the limitations period begins to run on the date the conversion allegedly occurred”… . Here, the appellants produced evidence … that the annuity funds at issue were withdrawn and deposited into a joint bank account … [and] then transferred into a personal account … on December 31, 2012, and January 3, 2013. Since the petition was not filed until June 23, 2016, the appellants demonstrated, prima facie, that the petitioner’s claim was time-barred.

… [T]he petition did not allege a cause of action sounding in fraud or breach of fiduciary duty. Moreover, even if the petition had alleged breach of fiduciary duty, the applicable statute of limitations would still be three years because the petition sought money damages only and fraud was not essential to the claim … . Matter of Chustckie, 2022 NY Slip Op 01452, Second Dept 3-9-22

Practice Point: An action by an executor of an estate pursuant to SCPA 2103 seeking the turnover of funds already distributed is in the nature of a conversion or replevin action and has a three-year statute of limitations.

 

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EVEN THOUGH PLAINTIFF DID NOT TIMELY FILE A NOTE OF ISSUE AND DID NOT COMPLY WITH A PRIOR DISCOVERY ORDER, THE JUDGE WAS WITHOUT AUTHORITY TO, SUA SPONTE, DISMISS THE COMPLAINT BECAUSE PLAINTIFF HAD NOT BEEN SERVED WITH A VAILD 90-DAY DEMAND TO FILE A NOTE OF ISSUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint on the ground plaintiff failed to timely file a note of issue and failed to comply with a prior discovery order because plaintiff had not been served with a valid 90-day notice:

The Supreme Court improperly, sua sponte, directed dismissal of the complaint on the ground that the plaintiff failed to timely file a note of issue and failed to comply with a prior discovery order of the court. Because the plaintiff was not served with a valid 90-day demand to file a note of issue pursuant to CPLR 3216(b)(3), the court had no authority to dismiss the complaint based on the failure to timely file a note of issue … . Further, the plaintiff’s alleged failure to comply with the discovery order did not constitute extraordinary circumstances warranting the sua sponte dismissal of the complaint … .Moreau v Cayton,, 2022 NY Slip Op 01450, Second Dept 3-9-22

Practice Point: The judge did not have the authority to, sua sponte, dismiss the complaint, even though plaintiff had not timely filed a note of issue and had not complied with a prior discovery order, because the plaintiff had not been served with a valid 90-day demand to file a note of issue.

 

PLAINTIFF ROOFER WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION BECAUSE HE FELL THROUGH AN UNPROTECTED HOLE IN THE ROOF WHICH WAS COVERED ONLY BY A SHEET OF BLACK PLASTIC; THE FACT THAT PLAINTIFF HAD UNTIED HIS SAFETY HARNESS SO HE COULD ASSIST A CO-WORKER DID NOT PRECLUDE SUMMARY JUDGMENT BECAUSE COMPARATIVE NEGLIGENCE IS NOT RELEVANT UNDER LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the fact that plaintiff untied his harness so he could assist a fellow roofer in another area of the roof did not preclude summary judgment in plaintiff’s favor on the Labor Law 240(1) cause of action. Plaintiff, when walking toward the co-worker he was going to assist, fell through a hole in the roof that was concealed by a sheet of black plastic:

… [T]he plaintiff established, prima facie, that Labor Law § 240(1) was violated and that the violation was a proximate cause of his injuries. The undisputed evidence established that the plaintiff was exposed to the elevation-related risk of the hole that was cut into the roof, that the hole through which the plaintiff fell was uncovered and unguarded, and that the location of the hole was concealed by an ice and water shield. The plaintiff established that the absence of protective equipment covering or guarding the hole was a proximate cause of his injuries. Indeed, in granting summary judgment on the issue of liability on the Labor Law § 241(6) cause of action, the Supreme Court found that the defendants failed to cover or guard the hole as required by the Industrial Code, and that such failure was a proximate cause of the plaintiff’s injuries. “[W]hen the evidence establishes the absence of any safety devices . . . the statutes’ [Labor Law § 240(1)] clear dictates have not been met. . . If proximate cause is established, the responsible parties have failed, as a matter of law, to ‘give proper protection'” … .

… [T]he defendants failed to raise a triable issue of fact as to whether there was a statutory violation and whether the plaintiff’s own conduct was the sole proximate cause of the accident … . Since the plaintiff established a violation of the statute and that the violation was a proximate cause of his fall, the plaintiff’s comparative negligence, if any, is not a defense to the Labor Law § 240(1) cause of action … . Mejia v 69 Mamaroneck Rd. Corp, 2022 NY Slip Op 01449, Second Dept 3-9-22

Practice Point: Plaintiff fell through an unprotected hole in the roof covered only by a sheet of black plastic. Even though he had untied his safety harness at the time of the fall, summary judgment on his Labor Law 240(1) cause of action was awarded by the appellate court because comparative negligence is not defense.

 

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WHEN THE PROPERTY OWNER DIED INTESTATE, THE DECEDENT’S INTEREST IN THE PROPERTY PASSED OUTSIDE THE ESTATE TO THE DISTRIBUTEES AS TENANTS IN COMMON; THEREFORE, THE PARTITION ACTION BY ONE OF THE TENANTS IN COMMON SHOULD NOT HAVE BEEN DISMISED ON THE GROUND AN ADMINISTRATOR OF THE ESTATE HAD BEEN APPOINTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the partition action by a party holding 50% ownership of real property formerly owned by decedent should not have been dismissed based on the appointment of an administrator for decedent’s estate. Decedent died intestate. His interest in the real property passed to the distributees upon his death and is therefore not part of the estate:

… [T]he decedent died intestate, possessed of the subject property, and leaving six distributees who became owners of the subject property as tenants in common at the time of the decedent’s death. In its complaint, LCD Holdings alleged that it had acquired a 50% interest in the subject property from deeds given by and through certain of those distributees, with the defendants—the decedent’s remaining distributees—holding the other 50% interest. Consequently, the subject property is not part of the administrable estate … . Under such circumstances, LCD Holding, as the alleged holder of a 50% interest in the subject property as a tenant in common with the defendants, had the right to maintain this action for the partition and sale of the subject property in the Supreme Court, Kings County (see RPAPL 901[1] … ). Accordingly, the court erred in, sua sponte, directing dismissal of the action without prejudice to the commencement of a proceeding for the same relief in the in Surrogate’s Court … . LCD Holding Corp. v Powell-Allen, 2022 NY Slip Op 01447, Second Dept 3-9-22

Practice Point: When a real-property owner dies intestate, the decedent’s interest in the property immediately passes outside the estate to the distributees as tenants in common. Here the partition action by one of the tenants in common should not have been dismissed when an administrator of the estate was appointed because the real property was not part of the administrable estate.

 

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THE BANK FAILED TO DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION; THERE WERE QUESTIONS OF FACT WHETHER THE “HOLDER (OF THE NOTE)” REQUIREMENTS OF THE UCC WERE MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing to bring the foreclosure action:

… [T]here was no evidence that the plaintiff is the assignee of note, and triable issues of fact exist as to whether the plaintiff was the holder of the note at the time the action was commenced. A promissory note is a negotiable instrument within the meaning of the Uniform Commercial Code (see UCC 3-104[2][d] …). A “holder” is “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession” (UCC 1-201[b][21][A] …). Where an instrument is endorsed in blank, it may be negotiated by delivery (see UCC 3-202[1]; 3-204[2] …). In the present case, there is a triable issue of fact as to whether the note was properly endorsed in blank by an allonge “so firmly affixed thereto as to become a part thereof” when it came into the possession of the plaintiff (UCC 3-202[2] …). …

The plaintiff’s reliance on the assignments of the mortgage is misplaced “because the mortgage is not the dispositive document of title as to the mortgage loan” … . HSBC Bank USA, N.A. v Herod, 2022 NY Slip Op 01444, Second Dept 3-9-22

Practice Point: To establish standing, a bank has to prove it was the “holder” of the promissory note within the meaning of the UCC at the time the foreclosure action was commenced. Here there were questions of fact whether the note in the bank’s possession was endorsed in blank by an attached “allonge” as required by the UCC.

 

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THE COUNTY WHERE PLAINTIFF AND DEFENDANT OWNED A SEASONAL SECOND HOME (WHERE DEFENDANT LIVED AFTER COVID REACHED NEW YORK CITY) WAS NOT THE PROPER VENUE FOR THE DIVORCE ACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Lasalle, reversing Supreme Court, determined the county where plaintiff and defendant owned a seasonal second home, and where defendant moved when COVID reached New York City, was not the proper venue for the divorce action:

The parties to this divorce action primarily resided in New York County, while maintaining a seasonal second home in Suffolk County. In March 2020, when the COVID-19 pandemic first reached New York City, the defendant retreated to the Suffolk County residence along with her pregnant and immunocompromised daughter and began spending more time there in order to assist the daughter during the pregnancy and after the child’s birth. In August 2020, the plaintiff commenced this action for a divorce and ancillary relief in Suffolk County, on the ground that the parties were residents of Suffolk County. The defendant moved pursuant to CPLR 510 and 511 for a change of venue, and the Supreme Court denied the motion.

This case presents the issue of whether sheltering in place in a seasonal home creates a sufficient degree of permanence to establish residency at that location. We hold that it does not under the circumstances of this case. Because the parties’ stays in Suffolk County were only seasonal and temporary, we hold that neither of them were residents of Suffolk County at the time of the commencement of the action. Accordingly, the Supreme Court should have granted the defendant’s motion pursuant to CPLR 510 and 511 to change the venue of the action from Suffolk County to New York County. Fisch v Davidson, 2022 NY Slip Op 01442, Second Dept 3-9-22

Practice Point: In this divorce action commenced in August 2020 (during the pandemic), the county were plaintiff and defendant owned a seasonal home, and where defendant moved when COVID reached New York City, was not the proper venue. New York County, where the couple primarily resided, was deemed the proper venue for the divorce proceedings.

 

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THE LOST NOTE AFFIDAVIT SUBMITTED BY THE BANK WAS INSUFFICIENT; THEREFORE THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION; DEFENDANTS’ MOTION TO AMEND THE ANSWER TO ASSERT THE LACK OF STANDING DEFENSE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate standing to bring the action and Supreme Court should have granted defendant’s motion to amend the answer to assert lack of standing as a defense:

… [I]n support of its motion for summary judgment, the plaintiff submitted … a lost note affidavit of a representative of the plaintiff’s loan servicer, to which was annexed a copy of the consolidated note. However, the affidavit was insufficient to establish the facts preventing the production of the note … . …

… Supreme Court should have granted that branch of the defendant’s cross motion which was pursuant to CPLR 3025(b) for leave to amend her answer to assert the affirmative defense of lack of standing … . Leave to amend a pleading should be freely granted (see CPLR 3025[b]). In the absence of prejudice or surprise to the opposing party, a motion to amend should be granted unless the proposed amendment is palpably insufficient or patently devoid of merit … .. “Mere lateness 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” … …. [T]he defendant did not waive the affirmative defense of lack of standing (see RPAPL 1302-a). Deutsche Bank Natl. Trust Co. v Kreitzer. 2022 NY Slip Op 01441, Second Dept 3-9-22

Practice Point: The bank was unable to demonstrate standing to bring the foreclosure action because the lost note affidavit was insufficient. Even a late motion to amend an answer should be granted if there is no prejudice to the plaintiff. Here the motion to add the lack of standing defense to the answer should have been granted.

 

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IN THIS POLICE-CAR TRAFFIC ACCIDENT CASE, THE MUNICIPALITY DID NOT DEMONSTRATE THE POLICE OFFICER’S SPECIFIC CONDUCT WAS EXEMPT FROM THE ORDINARY RULES OF THE ROAD PURSUANT TO VEHICLE AND TRAFFIC LAW 1104, AND DID NOT DEMONSTRATE THE OFFICER WAS NOT LIABLE UNDER THE ORDINARY RULES OF NEGLIGENCE; THE MUNICIPALITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant municipality did not demonstrate that the reckless disregard standard applied or that the police officer was not negligent in this police-car traffic accident case:

“[T]he reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b)” … . Even where there is no dispute that the driver was involved in an emergency operation of an authorized vehicle, where the injury-causing conduct did not fall within any of the categories of privileged conduct set forth in Vehicle and Traffic Law § 1104(b), the plaintiff’s claim is governed by principles of ordinary negligence … .

Here, the defendants failed to eliminate triable issues of fact as to whether [officer] Giandurco engaged in specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b) and whether the reckless disregard standard of care was therefore applicable … . The defendants also failed to establish, prima facie, that under principles of ordinary negligence, Giandurco was not at fault in the happening of the accident … . Cooney v Port Chester Police Dept., 2022 NY Slip Op 01440, Second Dept 3-9-22

Practice Point: Even if a police car is engaged in an emergency operation at the time of a traffic accident, the police officer’s conduct is not automatically judged under the reckless disregard standard for emergency vehicles in Vehicle and Traffic Law 1104. The officer’s specific conduct must fall within one of the the categories of privileged conduct in the statute. Otherwise the ordinary rules of negligence apply. At the summary-judgment stage, a municipality must demonstrate either that the specific conduct was exempt from the ordinary rules of negligence, or that the specific conduct was not culpable under the ordinary rules of negligent. Here the municipality did not demonstrate either one.

 

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THE TENANT HARASSMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED; SUPREME COURT HAD SUBJECT MATTER JURISDICTION FOR THAT CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying Supreme Court, determined the tenant harassment cause of action should not have been dismissed, noting that Supreme Court had subject matter jurisdiction for that cause of action:

… Supreme Court erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action, which alleged harassment in violation of Local Law No. 7 (2008) of City of New York (Administrative Code of City of NY § 27-2005[d]). Contrary to the court’s determination, the plaintiffs sufficiently pleaded that cause of action. Furthermore, the court was vested with subject matter jurisdiction to make a determination on that cause of action … .Akter v Zara Realty Holding Corp., 2022 NY Slip Op 01434, Second Dept 3-9-22

​Practice Point: Supreme Court has subject matter jurisdiction over a tenant harassment cause of action pursuant to the the NYC Administrative Code.

 

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DEFENDANTS WERE NOT SERVED WITH NOTICE OF THE FORECLOSURE SALE; THEIR MOTION TO VACATE THE FORECLOSURE SALE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this foreclosure action were entitled to service of the notice of the foreclosure sale. Because the defendants were not served with the notice, their motion to vacate the foreclosure sale should have been granted:

“Parties to an action involving the sale of real property pursuant to a judgment, who have appeared in the action and have not waived service, are entitled to have served upon them, pursuant to CPLR 2103, all papers in the action, including a notice of sale” … , a court is authorized to set aside a judicial sale within one year thereafter, for failure to comply with the requirement as to notice, but only if a substantial right of a party was prejudiced by the defect.

Here, the defendants established that they were prejudiced by the lack of notice of the sale inasmuch as they were deprived of the opportunity to protect their interest in the subject property … . 38-12 Astoria Blvd., LLC v Ramos, 2022 NY Slip Op 01433, Second Dept 3-9-22

Practice Point: Defendants who have appeared in a foreclosure action are entitled to notice of the foreclosure sale. Here defendants were not served with the notice of sale. Their motion to vacate the foreclosure sale should have been granted.

 

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