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A LATE MOTION FOR SUMMARY JUDGMENT SHOULD NOT BE CONSIDERED ON THE MERITS ABSENT GOOD CAUSE FOR THE DELAY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiffs’ late motion for summary judgment should not have been considered on the merits:

CPLR 3212(a) provides, inter alia, that the court may set a date after which no motion for summary judgment may be made, and “[i]f no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.” “‘[G]ood cause’ in CPLR 3212(a) requires a showing of good cause for the delay in making the motion” … .

Here, the plaintiffs’ motion was, in effect, for summary judgment. The plaintiffs do not dispute that they did not file their motion within the period specified by CPLR 3212(a), and no good cause for the delay was shown. Thus, the Supreme Court erred in considering the motion on the merits … , and should have denied the motion. Bennett v State Farm Fire & Cas. Co., 2021 NY Slip Op 05687, Second Dept 10-20-21

 

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IN A FORECLOSURE ACTION, ANY DEFICIENCIES IN PLAINTIFF’S COUNSEL’S CERTIFICATE OF MERIT (CPLR 3012-B) CAN NOT BE THE BASIS FOR DEFENDANT’S MOTION TO DISMISS ALLEGING PLAINTIFF’S LACK OF STANDING (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, over a partial dissent, determined deficiencies in the certificate of merit filed by plaintiff’s counsel in this foreclosure action (pursuant to CPLR 3012-b) cannot be the basis for defendants’ motion to dismiss alleging plaintiff’s lack of standing:

This appeal implicates the extent to which there is interplay between a CPLR 3211(a) motion to dismiss in the context of a residential mortgage foreclosure action, the attorney certification requirements of CPLR 3012-b, and the moving party’s burden of proof. For reasons analyzed below, we hold that a defendant moving to dismiss a complaint on the ground of the plaintiff’s lack of standing does not meet the affirmative burden of proof by merely relying upon any defects that might exist with the certificate of merit submitted by the plaintiff’s attorney under CPLR 3012-b, or otherwise, if the certificate of merit fails to address all potential aspects of standing. * * *

… [I]n a mortgage foreclosure action, a motion to dismiss pursuant to CPLR 3211(a) on the ground of the plaintiff’s lack of standing is not necessarily determined based on the adequacy or inadequacy of the certificate of merit filed by the plaintiff’s counsel pursuant to CPLR 3012-b. … The complaint serves the legal purpose of giving notice to defendants of the transactions, occurrences, or series of transactions or occurrences intended to be proved, and the material elements of each cause of action … . The certificate of merit serves the ministerial and ethical purpose of requiring counsel to take good faith steps to assure that the action has merit, and to certify to the best of counsel’s knowledge, information, and belief that a reasonable basis exists for commencing the action and that the plaintiff has standing to recover on the note underlying the action.

Counsel’s reasonable beliefs contained in a certificate of merit are irrelevant to whether defendants, in moving to dismiss a complaint under CPLR 3211(a), establish their own defined burden of proof for the dispositive relief of dismissal. Wilmington Sav. Fund Socy., FSB v Matamoro, 2021 NY Slip Op 05741, Second Dept 10-20-21

 

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IN HIS MOTION TO WITHDRAW HIS PLEA TO CRIMINAL POSSESSION OF WEAPONS, DEFENDANT CLAIMED HE DID NOT KNOW THE WEAPONS, WHICH BELONGED TO SOMEONE ELSE, WERE STORED AT HIS MOTHER’S HOUSE, WHERE HE DID NOT RESIDE; THIS CLAIM OF INNOCENCE (POSSESSION WAS NOT “VOLUNTARY”) WAS SUFFICIENTLY SUPPORTED TO WARRANT A HEARING ON THE MOTION TO WITHDRAW THE PLEA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to withdraw his guilty plea. Defendant was charged with possession of weapons found in his mother’s house. In his motion to withdraw his plea he explained he did not reside in his mother’s house and the weapons, which belonged to someone else, were stored in the house without his knowledge or consent:

The defendant contended, in essence, that he did not voluntarily possess the weapons at issue. * * *

… [T]he defendant’s claim of innocence was “supported” by evidentiary submissions … , which “raised the possibility of a . . . defense” … . The defendant’s submissions provided “tenable support” … for his assertion that he did not voluntarily possess the weapons at issue because he was not “aware of his physical possession or control thereof for a sufficient period to have been able to terminate it” (Penal Law § 15.00[2]). * * *

Regardless of … the strength of the People’s case, the defendant was not required to affirmatively demonstrate his actual innocence in this procedural posture … . It is clear that “an arguable claim of innocence” … may alone provide a basis for granting a presentence motion to withdraw a plea, even where the evidence of innocence is “far from conclusive” … . People v Amos, 2021 NY Slip Op 05577, Second Dept 10-13-21

 

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PLAINTIFF WAS STRUCK BY A PIECE OF A BUILDING FACADE WHICH CAME LOOSE; PLAINTIFF SUED TWO DEFENDANTS WHO HAD DONE WORK IN THE ROADWAY NEAR THE BUILDING, ALLEGING THE EXCAVATION LOOSENED THE FACADE MATERIAL; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motions for summary judgment should not have been granted. Plaintiff was struck by a piece of the facade of a brownstone which came loose. Plaintiff sued Keyspan Energy Delivery and Harris Water Main and Sewer Contractors alleging excavation work done by the defendants near the building loosened the facade:

Keyspan established its prima facie entitlement to judgment as a matter of law … by demonstrating, through the submission of … an affidavit of a professional engineer, that its work in the roadway did not create the alleged dangerous condition … . However, in opposition, the plaintiffs raised triable issues of fact by submitting … an affidavit from a professional engineer that rebutted the opinion of Keyspan’s expert. …

Harris contracted with the building owners to complete work on a broken pipe connecting the building to the sewer line in the middle of the street. A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140). “[A]n exception to this rule applies where the contracting party, in failing to exercise reasonable care in the performance of contractual duties, launches a force or instrument of harm, such as by creating or exacerbating a dangerous condition” … . The plaintiffs alleged that the vibrations from Harris’s work in the roadway created or exacerbated the alleged dangerous condition on the facade of the subject building. Harris’s submissions, which did not include an expert affidavit from a professional engineer, were insufficient to establish, prima facie, that its work in the roadway did not create or exacerbate the dangerous condition … . Payne v Murray, 2021 NY Slip Op 05576, Second Dept 10-13-21

 

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PLAINTIFF POLICE OFFICER ALLEGED TWO FELLOW OFFICERS NEGLIGENTLY INJURED HIM WITH A TASER; PLAINTIFF CANNOT SUE HIS FELLOW OFFICERS IN TORT AND HIS EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determine plaintiff police officer’s petition for leave to file a late notice of claim should not have been granted and his complaint against two fellow police officers should have been dismissed. Plaintiff alleged the two officers negligently tased him. Plaintiff cannot sue the fellow officers in tort, and his exclusive remedy is Workers’ Compensation:

While a police officer can assert a common-law tort cause of action against the general public pursuant to General Obligations Law § 11-106(1), “liability against a fellow officer or employer can only be based on the statutory right of action in General Municipal Law § 205-e” … . General Municipal Law § 205-e(1) specifies that “nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers’ compensation law” … .

Under the Workers’ Compensation Law, “[t]he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee . . . when such employee is injured or killed by the negligence or wrong of another in the same employ” … . Thus, the Workers’ Compensation Law “offers the only remedy for injuries caused by [a] coemployee’s negligence” in the course of employment … . “[A] defendant, to have the protection of the exclusivity provision, must himself [or herself] have been acting within the scope of his [or her] employment and not have been engaged in a willful or intentional tort” … . Walsh v Knudsen, 2021 NY Slip Op 05607, Second Dept 10-13-21

 

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QUESTIONS OF FACT ABOUT THE LIABILITY OF THE ELEVATOR COMPANY UNDER A NEGLIGENT MAINTENANCE THEORY OR A RES IPSA LOQUITUR THEORY REQUIRED THE DENIAL OF THE COMPANY’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF ALLEGED THE ELEVATOR SUDDENLY ACCELERATED AND THEN STOPPED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the elevator company (Otis) was liable for injuries allegedly caused by the sudden acceleration and stop of the elevator under a negligent maintenance theory and a res ipsa loquitur theory:

The plaintiff’s expert, Patrick Carrajat, an elevator and escalator consultant, whose affidavit the plaintiff submitted in opposition to Otis’s summary judgment motion, concurred with McPartland’s [defendant’s expert’s] opinion that “the probable cause of the accident was a clipped interlock.” Carrajat disagreed, however, with McPartland’s contention that a clipped interlock was something Otis could not reasonably have been expected to prevent. In Carrajat’s view, proper inspection and maintenance would have revealed either improper adjustment, loosening or shifting, or excessive wear of certain components. Carrajat also explained why he disagreed with McPartland’s opinion that external factors, such as a person making contact with the hallway elevator doors or some sort of debris caught in the elevator’s “door sill,” could have caused the accident. …

The plaintiff also raised a triable issue of fact as to Otis’s liability under the doctrine of res ipsa loquitur by submitting proof that the sudden descent and abrupt stop of the elevator was an occurrence that would not ordinarily occur in the absence of negligence, that the maintenance and service of the elevator was in the exclusive control of Otis, and that no act or negligence on the part of the plaintiff contributed to the occurrence of the accident … . Syrnik v Board of Mgrs. of the Leighton House Condominium, 2021 NY Slip Op 05603, Second Dept 10-13-21

 

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AFTER STOPPING THE CAR OCCUPIED BY TEENAGERS AND ARRESTING THE DRIVER AND A PASSENGER, THE POLICE RELEASED THE CAR TO DEFENDANT WHO WAS NOT AUTHORIZED TO DRIVE A CAR WITH MORE THAN ONE PASSENGER UNDER 21; THE DEFENDANT DRIVER THEN HAD AN ACCIDENT: THERE IS A QUESTION OF FACT WHETHER THE POLICE BREACHED A SPECIAL DUTY OWED THE INJURED PLAINTIFF (SECOND DEPT). ​

The Second Department determined: (1) the action against the town police department should have been dismissed because the police department cannot be sued as an entity separate from the town; and (2) the action against the town properly survived summary judgment. The police had stopped a car occupied by teenagers and arrested the driver and one passenger for possession of marijuana. The police then released to car to defendant Tatavitto who was not authorized to drive a car with more than one passenger under 21. Tatavitto then had an accident. There was a question of fact whether the town breached a special duty owed to plaintiff by allowing Tatavitto to drive the car:

… [A] special duty has four elements: “‘(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative conduct'” … . Here, there was direct contact between the officers and the occupants of the vehicle. The Town defendants failed to eliminate triable issues of fact as to whether the officers, through their affirmative acts, assumed an affirmative duty to the plaintiff, whether the officers had reason to believe that releasing the vehicle to Tatavitto would permit him to drive the vehicle in violation of law, which increased the risk of an accident, and whether their conduct “lulled” the plaintiff into a false sense of security and induced him either to relax his own vigilance or forgo other avenues of protection—which was not offered by the officers—and thereby placed him in a worse position than he would have been had the officers never assumed any duty to him … . Stevens v Town of E. Fishkill Police Dept., 2021 NY Slip Op 05602, Second Dept 10-13-21

 

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PLAINTIFF RELIED ON BUSINESS RECORDS WHICH WERE NOT PRODUCED TO DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s proof of standing was insufficient because it was based on business records which were not produced:

[The] assertion that the plaintiff’s predecessor in interest was the holder of the note when it commenced this action is based upon unproduced business records, and is therefore not probative on the issue of the plaintiff’s standing … .Thus, the plaintiff failed to establish, prima facie, that it had standing to commence this action. SK Indus., LLC v Jackson, 2021 NY Slip Op 05601, Second Dept 10-13-21

 

PLAINTIFF ALLEGED HE WAS STRUCK BY A BRICK WHICH RICOCHETED OUT OF A CHUTE USED FOR DUMPING DEBRIS FROM THE UPPER FLOORS OF A BUILDING UNDERGOING DEMOLITION; THE CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT ON LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant general contractor’s motion for summary judgment on the Labor Law 240(1) and 241(6) causes of action should not have been granted. During the demolition of a building plaintiff (allegedly) was struck by a brick which ricocheted out of a chute used for dumping debris from the upper floors:

The debris that was being removed from the building was thrown down the elevator chute, and the plaintiff’s injuries were caused by materials which descended from a higher floor and ricocheted out of the chute into the area where the plaintiff was working. The protections of Labor Law § 240(1) are implicated because the plaintiff’s injuries were caused either by the inadequacy of the chute in protecting him from the elevation-related risk resulting from the disposal of the debris down that chute, or the failure to employ other safety devices for the removal of the debris, which might have provided the necessary protection … . …

In support of that branch of its motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action, [the contractor] failed to demonstrate, prima facie, that 12 NYCRR 23-1.7(a)(1), 23-1.20(a), 23-2.5(a), and 23-3.3(e) did not apply to the facts of this case, or that the alleged violations of these provisions were not a proximate cause of the plaintiff’s alleged injuries … . Rivas-Pichardo v 292 Fifth Ave. Holdings, LLC, 2021 NY Slip Op 05600, Second Dept 10-13-21

 

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THE PEOPLE DID NOT DEMONSTRATE DEFENDANT WAS RESPONSIBLE FOR INTIMIDATING WITNESSES SUCH THAT OUT-OF-COURT STATEMENTS BY THOSE WITNESSES WERE ADMISSIBLE; THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO EXERCISE PEREMPTORY CHALLENGES TO JURORS ALREADY ACCEPTED BY THE DEFENSE (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined (1) the People did not demonstrate the defendant was responsible for the intimidation of witnesses by others; and (2), the People should not have been allowed to exercise peremptory challenges to jurors after those jurors had been accepted by the defense:

“The purpose of a Sirois hearing is to determine whether the defendant has procured a witness’s absence or unavailability through his own misconduct, and thereby forfeited any hearsay or Confrontation Clause objections to admitting the witness’s out-of-court statements” … . The People must “present legally sufficient evidence of circumstances and events from which a court may properly infer that the defendant, or those at defendant’s direction or acting with defendant’s knowing acquiescence, threatened the witness” … . “At a Sirois hearing, the People bear the burden of establishing, by clear and convincing evidence, that the defendant has procured the witness’s absence or unavailability” … .

… [T]he People’s evidence did not establish that the defendant controlled the individuals who threatened the witness or that the defendant influenced or persuaded any individual to threaten the witness or his family … . …

The Supreme Court committed reversible error when it permitted the People to exercise peremptory challenges to prospective jurors after the defendant and his codefendant exercised peremptory challenges to that same panel of prospective jurors … . This procedure violated “the one persistently protected and enunciated rule of jury selection—that the People make peremptory challenges first, and that they never be permitted to go back and challenge a juror accepted by the defense” … . People v Burgess, 2021 NY Slip Op 05580, Second Dept 10-13-21

 

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