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THE COURT NEVER ENTERED AN ORDER RE: DEFENDANT’S MOTION TO DISMISS; THEREFORE THE TIME FOR DEFENDANT TO INTERPOSE AN ANSWER IN THIS FORECLOSURE ACTION NEVER STARTED TO RUN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the time for interposing an answer in this foreclosure action never started to run because the court never entered an order deciding defendant’s motion to dismiss:

The Supreme Court, however, erred in granting those branches of the plaintiff’s motion which were for leave to enter a default judgment against the defendant and for an order of reference. In the order … , the court held that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(3) in abeyance pending the framed-issue hearing, and the defendant therefore had until 10 days after service of notice of entry of the order deciding that branch of the motion to file an answer … . Since the court failed to issue an order deciding that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(3) prior to granting those branches of the plaintiff’s motion which were for leave to enter a default judgment against the defendant and for an order of reference, the defendant’s time to file an answer had not yet begun to run and the defendant therefore was not in default … .

Contrary to the plaintiff’s contention, the referee’s report cannot be considered a determination that, in effect, denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint … , as there is no evidence in the record that the parties consented to the reference, and the referee therefore lacked the authority to determine the issue of standing conclusively … . HSBC Bank USA, N.A.. v Sewell, 2021 NY Slip Op 05850, Second Dept 10-27-21

 

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PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO CONFORM THE PLEADINGS TO THE PROOF RE: PIERCING THE CORPORATE VEIL; DEFENDANT WAS PREJUDICED BY THE FAILURE TO PLEAD THE SUPPORTING ALLEGATIONS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff should not have been allowed to conform the pleadings to the proof re: piercing the corporate veil for two reasons: (1) defendant Chilled was prejudiced by the failure to plead facts supporting the alter ego theory; and (2) the proof at trial did not demonstrate Chilled was the alter ego of defendant EMB:

Chilled demonstrated that it was prejudiced in the preparation of its defense by the lack of notice that the plaintiff would seek to pierce EMB’s corporate veil or prove that Chilled was an alter ego of EMB … . In general, claims involving veil piercing or alter ego liability are fact-laden … . Chilled established that the lack of notice hindered its ability to present evidence that might have shown … that corporate formalities were respected or that EMB and Chilled dealt with each other at arms’ length. * * *

… [T]he plaintiff failed to establish that Chilled exercised complete domination over EMB in the transaction with the plaintiff … . …

,,, [T]he plaintiff failed to establish that Chilled used its alleged domination of EMB to commit a fraud or wrong against the plaintiff … . Americore Drilling & Cutting, Inc. v EMB Contr. Corp., 2021 NY Slip Op 05845, Second Dept 10-27-21

 

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THE TRIAL JUDGE DID NOT GIVE COUNSEL MEANINGFUL NOTICE OF A SUBSTANTIVE JURY NOTE; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, ordering a new trial, determined the trial judge did not give counsel meaningful notice of a substantive jury note:

Pursuant to CPL 310.30, when a trial court receives a substantive jury inquiry, the court has two separate duties: “the duty to notify counsel and the duty to respond”… . With regard to the former duty, the court must provide counsel “notice of the actual specific content of the jurors’ request” … . A “trial court’s failure to provide counsel with meaningful notice of a substantive jury note is a mode of proceedings error that requires reversal” … .

Here, although marked as a court exhibit, the trial transcript does not reflect that the Supreme Court showed or read verbatim to counsel a jury note, which stated: “We would like the DNA results in regards to the blood smear on the banister.” People v Carillo, 2021 NY Slip Op 05710, Second Dept 10-20-21

 

THE ENDORSEMENT RELIED UPON BY THE DEFENDANT INSURER TO EXCLUDE COVERAGE FOR AN OIL SPILL DID NOT MEET THE STRICT CRITERIA FOR AN EXCLUSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurer was not entitled to summary judgment on the ground the oil spill damage was covered by a policy exclusion. The policy endorsement relied on by defendant did not meet the strict criteria for an exclusion from coverage:

In order “to ‘negate coverage by virtue of an exclusion, an insurer must establish that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case'” … . “[P]olicy exclusions are given a strict and narrow construction, with any ambiguity resolved against the insurer” … . Here, in support of its motion for summary judgment, the defendant did not point to an applicable policy exclusion. Rather, the defendant relied on the ELF [Property Remediation for Escaped Liquid Fuel and Limited Lead and Escaped Liquid Fuel Liability Coverages] endorsement, which provided additional coverage for the remediation of escaped liquid fuel in limited circumstances not present here. Such argument is unavailing. On its face, the ELF endorsement is not an exclusion. While the defendant argues that the existence of the ELF endorsement compels the conclusion that the policy itself excludes coverage for escaped liquid fuel under any circumstances not specified in the endorsement, policy exclusions are “not to be extended by interpretation or implication” … . As such, the defendant failed to meet its initial burden of establishing, prima facie, that an exclusion not subject to any other reasonable interpretation applied in this case … . Mulle v Lexington Ins. Co., 2021 NY Slip Op 05707, Second Dept 10-20-21

 

WHERE RESPONDENTS MADE A PRE-ANSWER MOTION TO DISMISS, THE ULTIMATE RELIEF SOUGHT BY PETITIONER SHOULD NOT HAVE BEEN GRANTED; THE MATTER WAS REMITTED TO ALLOW RESPONDENTS TO ANSWER THE PETITION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that because respondents had made a pre-answer motion to dismiss petitioner’s cause of action, the motion court should not have granted the relief sought by petitioner. Rather the respondents should have been allowed to answer the petition:

… [T]he Supreme Court improperly awarded [petitioner] the ultimate relief sought on the second cause of action. Upon denying the respondents’ pre-answer motion to dismiss, the Supreme Court should have permitted the respondents to answer the petition (see CPLR 7804[f] …). … [W]e remit the matter … for the service and filing of an answer and the administrative record. Matter of O’Hara v Board of Educ., Yonkers City Sch. Dist., 2021 NY Slip Op 05703, Second Dept 10-20-21

 

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FAMILY COURT DID NOT MAKE THE REQUIRED INQUIRIES BEFORE DETERMINING NEW YORK DID NOT HAVE JURISDICTION OVER THIS NEGLECT PROCEEDING; MOTHER AND CHILD WERE IN CONNECTICUT, FATHER RESIDED IN NEW YORK (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court did not make the required inquiries before finding New York did not have jurisdiction over this neglect proceeding. Mother and child lived in Connecticut and father resided in Westchester County:

The Family Court’s jurisdiction in this child protective proceeding is governed by the Uniform Child Custody Jurisdiction and Enforcement Act … . Nevertheless, the court failed to make any determination as to whether, despite the child’s Connecticut residence at the time of the filing of the petition, it had jurisdiction under Domestic Relations Law § 76 on the basis that New York was the child’s “home state” … . The court further failed to determine whether it had temporary emergency jurisdiction under Domestic Relations Law § 76-c … .. In addition, although a criminal proceeding was allegedly pending in Connecticut, the court failed to determine whether a “proceeding concerning the custody of the child [had] been commenced in a court of another state having jurisdiction,” in which case the court would have been required to stay the proceedings and communicate with the court of the other state (Domestic Relations Law § 76-e[1] …). Finally, in the event that the court determined that it was an inconvenient forum and that Connecticut was the more appropriate forum, there is no indication that the court considered the required factors (see Domestic Relations Law § 76-f[2][a]-[h]). Moreover, upon such a finding, the court is required to “stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state” (Domestic Relations Law § 76-f[3]). Matter of Jenny M. (Thomas M.), 2021 NY Slip Op 05701, Second Dept 10-20-21

 

PLAINTIFF WAS STRUCK BY A BOARD FROM A DISMANTLED FENCE WHICH FELL OFF A FORKLIFT; DISMANTLING THE FENCE WAS A COVERED ACTIVITY AND THE ACCIDENT WAS THE RESULT OF A COVERED ELEVATION-RELATED HAZARD; SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE ACTION PROPERLY GRANTED (SECOND DEPT).

The Second Department determined plaintiff was properly awarded summary judgment on his Labor Law 240(1) cause of action. Plaintiff was struck by a board which fell off a forklift. The boards were part of a fence which was being dismantled. Dismantling the fence constituted “demolition” and “altering” within the meaning of the statute. And the accident involved an elevation-related risk:

… [T]he disassembly and removal of the boards from the soccer field was a partial dismantling of a structure (see 12 NYCRR 23-1.4[16]), and constituted “demolition” within the meaning of Labor Law § 240(1). Contrary to the defendant’s contention, the disassembly and removal of the boards was also a significant physical change to the configuration of the structure … , and constituted “altering” within the meaning of Labor Law § 240(1). The plaintiff’s role in hauling away the boards after they had been removed by the defendant was an act “ancillary” to the demolition and alteration of the field structure, and protected under Labor Law § 240(1) … . * * *

… [T]he plaintiff established that the forklift was being used to lift heavy soccer boards. The boards were stacked on top of the forks of the forklift, and lifted into the air so they could be transferred and stacked in the back of the box truck. The plaintiff testified at his deposition that a portion of the forklift had been removed so that it could fit through a certain doorway on the premises. At the time of the accident, the plaintiff and his coworkers were attempting to slide one of the boards from a stack on the raised forklift into the back of the truck. The stack was raised to a height of approximately 8 or 9 feet at the time of the accident. The plaintiff was struck in the head by a board, weighing approximately 200 pounds, when it slid sideways off the stack and over the cab of the forklift while the plaintiff stood at ground level. The plaintiff’s submissions … demonstrated that the forklift had been modified and lacked certain safety devices, including “load guides and/or guide rails,” which could have been used to “constrain the boards as they were moved from the elevated forks into the truck.” Hensel v Aviator FSC, Inc., 2021 NY Slip Op 05697, Second Dept 10-20-21

 

DURING THE FUNERAL PLAINTIFF (ALLEGEDLY) LEARNED DECEDENT’S BODY WAS NOT IN THE CASKET; THE LOSS OF SEPULCHER ACTION PROPERLY SURVIVED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined plaintiff’s loss of sepulcher action properly survived summary judgment. During the funeral plaintiff learned the casket was empty:

Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party, during the funeral service and burial intended for the decedent, the plaintiff became aware that the decedent’s body was not in the casket and the decedent’s body was not located for some period of time. Accordingly, the appellants failed to establish, prima facie, that their alleged actions or inactions did not interfere with the plaintiff’s possession of the decedent’s body and her right to find “solace and comfort in the ritual of burial” … . Gutnick v Hebrew Free Burial Socy. for the Poor of the City of Brooklyn, 2021 NY Slip Op 05696, Second Dept 10-20-21

 

QUESTION OF FACT WHETHER THE TRIPPING HAZARD WAS INHERENT IN PLAINTIFF’S JOB; THEREFORE THE LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSD (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the hazard which caused plaintiff to trip was inherent in his job. A sheet of plastic had been placed over a pipe:

Supreme Court should have denied those branches of the defendants’ motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action. “Owners and general contractors, and their agents, have a common-law duty to provide employees with a safe place to work,” and Labor Law § 200 “merely codified that duty” … . The duty does not extend “to hazards that are part of, or inherent in, the very work the employee is to perform or defects the employee is hired to repair” … . Here, the evidence submitted by the defendants did not eliminate triable issues of fact as to whether the placement of the plastic sheet on top of, as opposed to underneath, the installed pipe was a hazard that was part of, or inherent in, the work the injured plaintiff was hired to perform … . Fonck v City of New York, 2021 NY Slip Op 05693, Second Dept 10-20-21

 

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THE BANK’S FAILURE TO ATTACH THE BUSINESS RECORDS REFERRED TO IN THE FOUNDATIONAL AFFIDAVIT PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion for summary judgment in this foreclosure action should not have been granted. The affidavit of the loan servicer’s vice president (Lee) was deficient in content and did not identify or attach the records referenced:

Lee failed to aver to familiarity with the record-keeping practices and procedures of the entity that generated the records or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business … .

… [E]ven if Lee’s affidavit set forth a proper foundation for the admissibility of the unspecified records he relied on … , Lee “failed to identify the records upon which [ ]he relied in making the statements, and the plaintiff failed to submit copies of the records themselves” … . It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted … . Deutsche Bank Trust Co. Ams. v Miller, 2021 NY Slip Op 05690, Second Dept 10-20-21

Similar issues and result in Freedom Mtge. Corp. v Engel, 2021 NY Slip Op 05694, Second Dept 10-20-21

 

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