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THE LACK OF INFORMED CONSENT CAUSE OF ACTION IN THIS DENTAL MALPRACTICE CASE SHOULD NOT HAVE BEEN DISMSSED DESPITE PLAINTIFF’S SIGNING A CONSENT FORM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the lack of informed consent cause of action should not have been dismissed in this dental malpractice action:

To establish a cause of action for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to inform the patient of reasonably foreseeable risks and benefits associated with the treatment, and the alternatives thereto, that a reasonable medical practitioner would have disclosed under similar circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury (see Public Health Law § 2805-d …). “The mere fact that the plaintiff signed a consent form does not establish the defendants’ prima facie entitlement to judgment as a matter of law” … .

Here, although the injured plaintiff signed a consent form, the defendants submitted in support of their motion, inter alia, a transcript of the injured plaintiff’s deposition, during which she testified that the defendants never explained the risks of the tooth extraction or whether there were any alternatives … . Xiao Yan Ye v Din Lam, 2021 NY Slip Op 00895, Second Dept 2-10-21

 

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FAILURE TO INCLUDE THE LACK OF STANDING DEFENSE IN THE ANSWER IS NO LONGER DEEMED A WAIVER OF THE DEFENSE; DEFENDANT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN ALLOWED TO AMEND HER ANSWER (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant should have been allowed to amend her answer to add the lack of standing defense. Pursuant to RPAPL 1302-a the failure to include the lack of standing defense in the answer is no longer deemed waiver of the defense:

… [T]he defendant did not waive the affirmative defense of lack of standing. RPAPL 1302-a … provides that, notwithstanding the provisions of CPLR 3211(e), “any objection or defense based on the plaintiff’s lack of standing in a foreclosure proceeding related to a home loan, as defined in paragraph (a) of subdivision six of section thirteen hundred four of this article, shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss.” Under the circumstances of this case, the 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 … . Further, the defendant’s affidavit was sufficient to raise a triable issue of fact as to whether the plaintiff was the holder or assignee of the note at the time the action was commenced … . In response, the plaintiff failed to demonstrate its standing as a matter of law … . US Bank N.A. v Blake-Hovanec, 2021 NY Slip Op 00893, Second Department 2-10-21

 

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CVS, A DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION, HAD BEEN AWARDED SUMMARY JUDGMENT WHICH IS THE EQUIVALENT OF JUDGMENT AFTER TRIAL; DEFENDANT DOCTORS SHOULD NOT HAVE BEEN ALLOWED TO PRESENT EVIDENCE THAT CVS’S PROVIDING PLAINTIFF’S DECEDENT WITH THE WRONG DOSAGE OF MEDICINE MAY HAVE CONTRIBUTED TO HIS DEATH (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial in this medical malpractice case, determined the jury should not have heard evidence that CVS mistakenly gave plaintiff a double dose of a drug. CVS was a defendant but successfully moved for summary judgment prior to the trial:

… [T]he Supreme Court erred in permitting the jury to hear evidence that CVS Pharmacy, Inc. (hereinafter CVS), mistakenly gave the decedent a double dose of digoxin, and testimony from [defendant] Manvar that the double dose of digoxin predisposed the decedent to an arrhythmia that caused his cardiac arrest. CVS, a defendant in this action, was awarded summary judgment based on its argument that its error in giving the decedent a double dose of digoxin was not a substantial factor in causing the decedent’s cardiac arrest. As summary judgment is the “functional equivalent” of a trial, the court should have precluded [defendants] Huppert and Manvar from presenting evidence at trial that CVS’s negligence may have been a substantial factor in causing the decedent’s cardiac arrest … . Raineri v Lalani, 2021 NY Slip Op 00890, Second Dept 2-10-21

 

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DEFENDANT PLED GUILTY TO DRIVING WHILE IMPAIRED BY DRUGS, NOT ALCOHOL; DIRECTION TO INSTALL AN IGNITION INTERLOCK DEVICE APPLIES ONLY TO OFFENSES INVOLVING ALCOHOL (SECOND DEPT).

The Second Department, reversing (modifying) County Court, determined the offense to which defendant pled guilty did not involve alcohol and, therefore, the direction to install an ignition interlock device must be vacated:

… [T]he County Court improperly imposed an ignition interlock device requirement upon the defendant. The defendant pleaded guilty to aggravated driving while intoxicated in violation of Vehicle and Traffic Law § 1192(2-a)(b) for “[d]riving while ability impaired by drugs” (Vehicle and Traffic Law § 1192[4]). A court may impose an ignition interlock device as a condition of probation and conditional discharge only for offenses involving alcohol (see Penal Law § 65.10[2][k-1]). The defendant’s conviction here falls outside the scope of the statute authorizing the imposition of such a condition … . People v Miller, 2021 NY Slip Op 00868, Second Dept 2-10-21

 

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DETAILED EXPLANATION OF HOW MAILING OF THE RPAPL 1304 NOTICE CAN (SHOULD) BE PROVEN (SECOND DEPT).

The Second Department, in affirming the judgment of foreclosure in favor of Nationstar, offered a detailed explanation of how mailing of the RPAPl 1304 notice can be proven:

The Supreme Court … properly determined that … Nationstar proved sufficient mailing of the statutory 90-day preforeclosure notice as required by RPAPL 1304. RPAPL 1304(1) provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . , including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower (see RPAPL 1304[2]). Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action … . By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, “‘the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing,’ which can be ‘established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure'” … . The notice must also be in 14-point type … . Here, at the framed-issue hearing, Nationstar submitted evidence that a third-party vendor mailed the 90-day preforeclosure notice through the testimony of a witness who had personal knowledge of the vendor’s standard business practice with regard to sending the 90-day preforeclosure notice to borrowers, and who affirmed, based on the business records she reviewed regarding the subject loan, that the notices had been sent to the defendant in compliance with the requirements of RPAPL 1304 … . Notwithstanding the use of a third party to mail the 90-day preforeclosure notice, Nationstar tendered sufficient evidence demonstrating strict compliance with RPAPL 1304. Nationstar Mtge., LLC v Paganini, 2021 NY Slip Op 00852, Second Dept 2-10-21

 

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FAMILY COURT SHOULD HAVE APPOINTED AN ATTORNEY FOR THE CHILDREN IN THIS CONTESTED CUSTODY MATTER (SECOND DEPT).

The Second Department, reversing Family Court, determined an attorney should have been appointed for the children in this contested custody matter:

The appointment of an attorney for the child in a contested custody matter is “the strongly preferred practice” … . An attorney for the child “is tasked with advocating for the child’s wishes and best interests, precisely because the child has a real and vital interest in the outcome and a voice that should be heard”… . Nevertheless, the appointment of an attorney for the child “is discretionary, not mandatory” … . In making the determination whether the appointment of an attorney for the child is warranted, courts should consider, inter alia, the age of the child and the possibility of prejudice to the child … .

Here, the Family Court improvidently exercised its discretion in declining to appoint an attorney for the children in light of the ages of the children, ranging from 12 to 16 years old at the time of the hearing, the antagonistic nature of the parties’ relationship, and the parties’ conflicting assertions regarding each other’s conduct … . Matter of Weilert v Weilert, 2021 NY Slip Op 00850, Second Dept 2-10-21

 

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PLAINTIFF IN THIS TAX LIEN FORECLOSURE ACTION DID NOT DEMONSTRATE DEFENDANT WAS PROPERLY SERVED WITH THE NOTICE TO REDEEM; THEREFORE PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES FROM THE DEFENDANT (SECOND DEPT).

The Second Department determined plaintiff was not entitled to attorney’s fees in this tax lien foreclosure action because plaintiff did not demonstrate defendant was properly served with the notice to redeem:

Pursuant to Nassau County Administrative Code § 5-51.0(c), prior to the commencement of this action, the plaintiff was required to serve the defendant with a notice to redeem “by personal service, as defined in the Civil Practice Law and Rules of the State of New York” (see Nassau County Administrative Code § 5-51.0[a]). Here, the plaintiff purportedly served the defendant with the notice to redeem by “nail and mail” service (see CPLR 308[4]). However, contrary to the plaintiff’s contention, this service was ineffective, as the plaintiff failed to exercise the requisite due diligence in first attempting to serve the defendant pursuant to CPLR 308(1) or (2) … .

Where, as here, a plaintiff fails to properly serve the notice to redeem prior to commencing a foreclosure action, the plaintiff is precluded from recovering attorney’s fees from the person to whom the notice was required to be sent, provided that the person “offers to pay the penalties allowed by law at any time before final judgment is entered” (Nassau County Administrative Code § 5-51.0[f]). Here, the defendant offered to pay the penalties allowed by law in a letter … , nearly one month prior to entry of the final judgment … . DBW TL Holdco 2014, LLC v Kirk, 2021 NY Slip Op 00543, Second Dept 2-3-21

 

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THE JUDGMENT LIEN WAS NOT DOCKETED UNDER THE SELLER’S SURNAME; THEREFORE THE BUYER’S ACTION FOR A JUDGMENT QUIETING TITLE WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined plaintiff-buyer was entitled to judgment on his quiet title cause of action and to a declaration that the property is not subject to the defendant’s judgment lien. The judgment was not docketed under the seller’s surname:

… [T]he plaintiff demonstrated, prima facie, his entitlement to judgment as a matter of law on the cause of action to quiet title and for a declaration that the real property at issue is not subject to the defendant’s judgment lien. In support of his motion, the plaintiff submitted, among other things, the deposition transcript of a supervisor of the Docket Department of the Kings County Clerk’s Office (hereinafter the supervisor). The supervisor testified at her deposition that the judgment at issue was not docketed under “Paul”—the surname of the title owner of the property. Thus, no valid lien against the property was created (see CPLR 5018[c][1] …). Moreover, there is no dispute that the plaintiff had no actual or constructive notice of a judgment lien on the property … .

In opposition, the defendant failed to raise a triable issue of fact. Any alleged defects in the docketing procedure employed by the Kings County Clerk’s Office are not attributable to a bona fide purchaser of the property … . Charles v Berman, 2021 NY Slip Op 00542, Second Dept 2-3-21

 

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SETTLEMENT CONFESSIONS OF JUDGMENT WERE VALID AND SHOULD NOT HAVE BEEN VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the settlement confessions of judgment were valid and should not have been vacated. The Second Department noted that vacating a judgment entered by filing a confession of judgment requires bringing a plenary action, which the defendants did not do. But, because Supreme Court reached the merits, the Second Department reversed on the merits:

“Generally, a person seeking to vacate a judgment entered upon the filing of an affidavit of confession of judgment must commence a separate plenary action for that relief”… . Here, as acknowledged by the Supreme Court in its order, the grounds for vacatur relied upon by the defendants do not fall within an exception to the general rule. Accordingly, the court should have denied the defendants’ motion for failure to commence a plenary action … . However, the court did address the merits of the defendants’ motion, and in the interest of judicial economy, we also consider the merits.

“Construction of an unambiguous contract is a matter of law, and the intention of the parties may be gathered from the four corners of the instrument and should be enforced according to its terms” … . Here, contrary to the Supreme Court’s determination, there is no language in the merchant agreements limiting the plaintiff’s authority to file the settlement confessions of judgment. Moreover, the settlement agreement and settlement confessions of judgment clearly and unambiguously permitted the plaintiff to file the settlement confessions of judgment in the event the defendants breached the terms of the settlement agreement. Ace Funding Source, LLC v Myka Cellars, Inc., 2021 NY Slip Op 00538, Second Dept 2-3-21

 

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UNDER THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT PLAINTIFF MUST ARBITRATE HIS RACIAL DISCRIMINATION CLAIMS; AFTER THE UNION REFUSED TO ARBITRATE THE CLAIMS PLAINTIFF BROUGHT THE INSTANT HUMAN RIGHTS LAW CAUSES OF ACTION; THE COMPLAINT WAS STAYED PENDING ARBITRATION (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Christopher, determined plaintiff’s racial discrimination claims were subject to mandatory arbitration under the controlling collective bargaining agreement (CBA). The union had declined to pursue the arbitration of the discrimination claims and plaintiff then commenced the instant action pursuant to the NYS and NYC Human Rights Law. The opinion is to detailed to fairly summarize here. The plaintiff’s complaint was stayed pending arbitration:

“[A]rbitration must be preferred unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute” … . An agreement to arbitrate must be “clear, explicit and unequivocal” … . “Arbitration is a matter of contract, and arbitration clauses, which are subject to ordinary principles of contract interpretation, must be enforced according to their terms” … . * * *

… [I]n order for the plaintiff to be required to arbitrate his employment discrimination claims, the CBA must “clearly and unmistakably” waive the plaintiff’s right to proceed in a judicial forum … . Here, the mandatory arbitration clause “clearly and unmistakably” waives the plaintiff’s right to proceed in a judicial forum. It explicitly references the employment discrimination statutes that the plaintiff has alleged were violated, and states that “[a]ll such claims shall be subject to the grievance and arbitration procedure . . . as the sole and exclusive remedy for violations.” * * *

The Supreme Court’s determination to grant that branch of the defendants’ motion which was, in effect, pursuant to CPLR 3211(a) to dismiss the complaint was improper. “An agreement to arbitrate is not a defense to an action,” and “[t]hus, it may not be the basis for a motion to dismiss” … . However, upon granting that branch of the defendants’ motion which was to compel arbitration pursuant to CPLR 7503(a), the court should have stayed the action …, the order granting a motion to compel “shall operate to stay a pending . . . action.” Wilson v PBM, LLC, 2021 NY Slip Op 00593, Second Dept 2-3-21

 

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