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THE AIDING AND ABETTING FRAUD AND JUDICIARY LAW CAUSES OF ACTION WERE PRECLUDED BY THE NOERR-PENNINGTON DOCTRINE; THE FRAUDULENT INDUCEMENT CAUSE OF ACTION DID NOT ALLEGE RELIANCE (SECOND DEPT).

The Second Department determined the aiding and abetting fraud and Judiciary Law 487 causes of action were barred by the Noerr-Pennington doctrine (see Mine Workers v Pennington, 381 US 657; Eastern Railroad Presidents Conference v Noerr Motor Freight, Inc., 365 US 127), and the complaint did not state a cause of action for fraudulent inducement:

“The Noerr-Pennington doctrine protects the right under the First Amendment to the United States Constitution to petition the government for governmental action, including through litigation and activity incidental to litigation” … . …

… Supreme Court properly concluded that the causes of action alleging that the defendants aided and abetted fraud and violated Judiciary Law § 487 were barred by the Noerr-Pennington doctrine. The Noerr-Pennington doctrine applied to these causes of action insofar as they were based upon litigation and activities that were incidental to litigation, and the pertinent allegations did not fit within either the “sham” or the “corruption” exceptions to the Noerr-Pennington doctrine … . …

Where a cause of action is based upon misrepresentation or fraud, “the circumstances constituting the wrong shall be stated in detail” (CPLR 3016[b]). Here, the allegations in the complaint failed to sufficiently allege justifiable reliance, and therefore failed to state a cause of action for fraudulent inducement … . Louie’s Seafood Rest., LLC v Brown, 2021 NY Slip Op 06167, Second Dept 11-10-21

 

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QUESTIONS OF FACT ABOUT THE APPLICABILITIY OF THE ASSUMPTION OF THE RISK DEFENSE AND THE VALIDITY OF THE RELEASE UNDER THE GENERAL OBLIGATIONS LAW PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT FITNESS CENTER; ALLEGEDLY, PLAINTIFF WAS INJURED WHEN THE TRAINER INSTRUCTED HIM TO ATTEMPT A BALANCING EXERCISE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were question of fact about whether the defendant fitness center could assert the assumption of the risk defense, or whether the released executed by plaintiff was valid pursuant to the General Obligations Law:

The defendant failed to establish … the plaintiff assumed the risk of injury when he unsuccessfully attempted the balancing exercise. The deposition testimony … raises questions of fact as to whether the trainer exposed the plaintiff to an unassumed risk. Specifically, the trainer allegedly encouraged the plaintiff to attempt the exercise after he expressed that he could not perform it, by allegedly offering verbal reassurances such as “I’m right here,” which the plaintiff mistakenly believed meant that the trainer would catch him or stabilize him if he began to fall … .

The defendant also failed to establish … the plaintiff’s claims are barred by the release the plaintiff executed. The defendant failed to demonstrate the inapplicability of General Obligations Law § 5-326, which would render the release void, as the defendant’s evidence did not establish as a matter of law that its facility was not a “gymnasium” within the meaning of that statute … . Haggerty v Northern Dutchess Hosp., 2021 NY Slip Op 06162, Second Dept 11-10-21

 

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ALTHOUGH THE ISSUES ON APPEAL COULD HAVE BEEN RAISED IN AN APPEAL WHICH WAS DISMISSED FOR FAILURE TO PROSECUTE, THE COURT EXERCISED ITS JURISDICTION TO CONSIDER THE INSTANT APPEAL; THE MOTION FOR A JUDGMENT AS A MATTER OF LAW WAS BROUGHT BEFORE PLAINTIFF CLOSED HER CASE AND THEREFORE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the defense judgment as a matter of law in this medical malpractice case, determined: (1) although the issues could have been raised in the appeal of the original judgment which was dismissed for failure to prosecute, the Second Department exercised its jurisdiction to consider the issues in this appeal from the denial of the motion to reargue; (2) the motion for a judgment as a matter of law was premature (made before plaintiff closed her case) and therefore should not have been granted:

… [A]s a general rule we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, we have the inherent jurisdiction to do so … . Here, the plaintiff appealed from the March 29, 2018 judgment entered in favor of the defendants, and that appeal was dismissed for lack of prosecution. Nevertheless, under the circumstances, including that the appeal from the judgment was still pending at the time the notice of appeal was filed from the subject order made upon reargument, we exercise our jurisdiction to review the issues properly raised on the appeal from the order … . …

“A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” … . Here, the defendants’ motions for judgment as a matter of law dismissing the complaint were made before the close of the plaintiff’s case, and were not based upon admissions by the plaintiff. Fuchs v Long Beach Med. Ctr., 2021 NY Slip Op 06153, Second Dept 11-10-21

 

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THE JUDGE SHOULD NOT HAVE DISMISSED THE COMPLAINT SUA SPONTE; ALTHOUGH DEFENDANT WAS NOT SERVED, DEFENDANT’S APPEARANCE PRO SE WAIVED ANY LACK-OF-JURISDICTION ARGUMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint and noted that a party (Taddeo) who has not been served, but who appears in the action pro se, has waived a lack-of-jurisdiction argument:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Moreover, a ministerial dismissal, made without notice and without benefit of further judicial review, is erroneous … . Under such circumstances, the court should direct the parties to show cause why the complaint should not be dismissed, and enter a formal order of dismissal on notice to the parties… .

Here, the Supreme Court never ordered the plaintiff to show cause why its failure to serve [defendant] should not result in the dismissal of the complaint. The court had only directed the plaintiff to provide certain information, and the plaintiff did so.

The Supreme Court also erred in concluding that the failure to serve [defendant] constituted a jurisdictional defect. “An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him [or her], and therefore confers personal jurisdiction over him [or her], unless he [or she] asserts an objection to jurisdiction either by way of motion or in his [or her] answer” . Here, by filing a pro se answer that did not include an objection to jurisdiction, Taddeo waived any argument that the court lacked personal jurisdiction over him … . Bayview Loan Servicing, LLC v Taddeo, 2021 NY Slip Op 06147, Second Dept 11-10-21

 

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THE JUDGE DID NOT MAKE THE REQUIRED INQUIRY RE: DEFENDANT’S WAIVER OF THE RIGHT TO COUNSEL IN THIS CUSTODY PROCEEDING BEFORE ALLOWING DEFENDANT TO PROCEED WITHOUT AN ATTORNEY; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new custody hearing, determined the judge did not make the required inquiry before allowing defendant to waiver her right to counsel:

The parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child must be advised “before proceeding that he or she has the right to be represented by counsel of his or her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the court in any case where he or she is financially unable to obtain the same” (Family Ct Act § 262[a][v]; see Judiciary Law § 35[8] …). A party may waive the right to counsel, provided he or she makes a knowing, voluntary, and intelligent waiver of that right … . Here, the Supreme Court failed to conduct the requisite inquiry before allowing the defendant to proceed pro se with regard to the hearing and determination of the defendant’s motions to modify and/or vacate the custody order … . Wondemagegehu v Edem, 2021 NY Slip Op 06213, Second Dept 11-10-21

 

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THE INSTRUCTION THAT MOTHER NOT “EXPOSE” THE CHILD TO ACTIVITIES NOT IN KEEPING WITH THE CHILD’S FAITH, WHICH IMPLICITLY REQUIRED THAT THE CHILD NOT BE “EXPOSED” TO MOTHER’S LGBTQ IDENTITY, IS NOT ENFORCEABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the instruction that mother not “expose” the child to activities not in keeping with religious requirements during periods of her parental access was unenforceable. Mother identified as a member of the LGBTQ community, and considered herself an Orthodox Jew:

… [A] court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle. “… ‘[I]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise'” … . A religious upbringing provision “should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely” … . Thus, where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken … .

… [T]he challenged restriction does not expressly require the plaintiff to herself comply with the rules of the child’s Orthodox Jewish Chasidic faith during periods of parental access. … [T]he provision in forbidding her to “expose” the child to any activities which violate the child’s Orthodox Jewish Chasidic faith has the same effect … . The only way for the plaintiff to ensure her compliance with the restriction is for her to comply with all religious requirements of the child’s faith during her periods of parental access, lest she “expose” the child to activities not in keeping with those religious requirements. … The defendant [father] was especially concerned that the child would be exposed to people involved in a “gay lifestyle” … . Such restrictions on a parent’s ability to “express oneself and live freely” go beyond requiring a noncustodial parent to support and enable the child’s religious practices, and impermissibly infringe on the noncustodial parent’s rights … . Weichman v Weichman, 2021 NY Slip Op 06211, Second Dept 11-10-21

 

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FAILURE TO COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 CAN BE RAISED AT ANY TIME; HERE IT WAS RAISED IN OPPOSITION TO THE MOTION TO CONFIRM THE REFEREE’S REPORT; THE PROOF OF COMPLIANCE WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court’s grant of summary judgment to the bank in this foreclosure action, noted that the failure to comply with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 can be raised at any time. Here it was raised in opposition to the bank’s motion to confirm the referee’s report:

… [T]he plaintiff failed to establish that it complied with the requirements of RPAPL 1304. The affidavits of Armenia L. Harrell and La’Shana Farrow, both of whom are officers of Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the servicing agent of the plaintiff, were insufficient to establish that the plaintiff complied with RPAPL 1304. Both Harrell and Farrow attested that they were familiar with Wells Fargo’s records and record-keeping practices. Farrow averred, inter alia, that the plaintiff complied with RPAPL 1304 by mailing the required notices. The record indicates that the 90-day notices appear to have been mailed by ASC (America’s Servicing Company). However, neither Harrell or Farrow attest that they personally mailed the notices or that they were familiar with the mailing practices and procedures of ASC. Therefore, they failed establish proof of standard office practice and procedures designed to ensure that items are properly addressed and mailed … . Moreover, the plaintiff failed to send individually addressed notices to each borrower; rather, the 90-day notices were jointly addressed to the [defendants]. U.S. Bank N.A. v Krakoff, 2021 NY Slip Op 06209, Second Dept 11-10-21

 

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AWARDING A PARENT DECISION-MAKING AUTHORITY FOR ANY MAJOR CHILD-RELATED ISSUE IS TANTAMOUNT TO MODIFYING A CUSTODY ARRANGEMENT TO AWARD SOLE CUSTODY TO THE DECISION-MAKING PARENT; SUPREME COURT SHOULD HAVE HELD A HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the custody arrangement should not have been modified in the absence of a hearing. The court noted that the award of decision-making authority for any major child-related issue on which the parties cannot agree is tantamount to the award of sole custody:

The Supreme Court erred by, in effect, granting, without a hearing, that branch of the defendant’s motion which was to modify the parties’ stipulation of settlement and judgment of divorce so as to award her sole legal custody of the child to the extent of awarding her final decision-making authority as to any major child-related issue about which the parties could not agree, and denying that branch of the plaintiff’s cross motion which was to modify the stipulation of settlement and judgment of divorce so as to award him sole legal custody. “‘[A] court may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'” … . … There can be no question that the award of final decision-making authority is not “dramatically unlike” the relief requested, as decision making is part and parcel to legal custody. … [T]he court erred in granting this award without a hearing. The court’s determination that “neither party has established change in circumstances warranting an award of sole custody to either parent” is incongruous with the court’s determination to award the defendant final decision-making authority. Since it appears that the court believed that the parties made an evidentiary showing of a change in circumstances demonstrating a need for a change of decision-making authority to ensure the child’s best interests, a hearing on that issue was required … .  Trazzera v Trazzera, 2021 NY Slip Op 06208, Second Dept 11-10-21

 

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A NOTICE OF CLAIM IS NOT A PLEADING AND THEREFORE NEED NOT BE ANNEXED TO A SUMMARY JUDGMENT MOTION; ALTHOUGH PLAINTIFF IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION ESTABLISHED HE FELL FROM A SCAFFOLD, HE DID NOT ESTABLISH THE FALL WAS DUE TO INADEQUATE SAFETY EQUIPMENT; HIS MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED ON THAT GROUND (SECOND DEPT).

The Second Department determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) and 2411 (6) scaffold-fall case was properly denied on evidentiary grounds, but it was not properly denied because the notice of claim was not included with the motion papers. Although the pleadings must be annexed to a summary judgment motion, a notice of claim is not a pleading. The motion was properly denied on evidentiary grounds because it was not demonstrated the fall was the result of a failure to provide adequate safety equipment:

While the defendant correctly contends that CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, a notice of claim is not a pleading … . …

… [T]he plaintiff relies solely on his General Municipal Law § 50-h hearing testimony and his deposition testimony, which merely established that he fell from a scaffold. The plaintiff failed to address whether there were scaffold rails, possible tie off points for a harness, or some alternative fall protection. Without more, the plaintiff’s testimony that he “moved [his] foot” to the left, causing him to step off of the scaffold and into an “empty space,” and that “there was nothing there because [he] stepped on it and . . . thought it was something solid” are insufficient … . Torres v New York City Hous. Auth., 2021 NY Slip Op 06207, Second Dept 11-10-21

 

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DEFENDANT’S UNLAWFUL IMPRISONMENT CONVICTION MERGED WITH OFFENSES OF WHICH DEFENDANT WAS ACQUITTED; ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL, THE CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, applying the merger doctrine and considering the unpreserved issue in the interest of justice, determined the unlawful imprisonment conviction must be vacated:

[Defendant was convicted] of coercion in the first degree, unlawful imprisonment in the first degree, criminal obstruction of breathing or blood circulation, menacing in the second degree, reckless endangerment in the second degree, unlawful fleeing a police officer in a motor vehicle in the third degree, and reckless driving … . * * *

… [U]pon exercising our interest of justice jurisdiction, we conclude that the merger doctrine precludes the defendant’s conviction of unlawful imprisonment in the first degree because the confinement of the complaining witness in the defendant’s car was only the incidental means to the accomplishment of the conduct underlying the counts of which the defendant was acquitted … . Thus, the conviction of unlawful imprisonment in the first degree must be vacated and that count of the indictment dismissed. The defendant’s unpreserved contention that the merger doctrine applies to other offenses for which he was convicted is without merit … . People v Sims, 2021 NY Slip Op 06200, Second Dept 11-10-21

 

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