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CRITERIA FOR AN EXTENSION OF TIME TO SERVE A SUMMONS AND COMPLAINT PURSUANT TO CPLR 306-b EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion pursuant to CPLR 306-b to extend the time to serve the defendant should have been granted and explained the criteria:

CPLR 306-b provides, in pertinent part, that “[s]ervice of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action. . . . If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.”

“The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant”… . CPLR 306-b “empowers a court faced with the dismissal of a viable claim to consider any factor relevant to the exercise of its discretion. No one factor is determinative—the calculus of the court’s decision is dependent on the competing interests of the litigants and a clearly expressed desire by the Legislature that the interests of justice be served” … .

Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion pursuant to CPLR 306-b for an extension of time to serve the defendant with the summons and complaint in the interest of justice, considering, inter alia, the expiration of the statute of limitations, the meritorious nature of the plaintiff’s cause of action, the plaintiff’s prompt request for the extension, and the lack of demonstrable prejudice to the defendant … . U.S. Bank N.A. v Viera, 2020 NY Slip Op 05549, Second Dept 10-7-2

 

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A SINGLE PROMOTING PRISON CONTRABAND CONVICTION FOUR YEARS BEFORE DID NOT SUPPORT A TEN POINT ASSESSMENT FOR UNSATISFACTORY CONDUCT; RISK LEVEL REDUCED FROM TWO TO ONE (SECOND DEPT).

The Second Department determined the 10 point assessment for unsatisfactory conduct was not supported and reduced defendant’s risk level from two to one:

… [T]he record does not contain clear and convincing evidence to support the assessment of 10 points under risk factor 13, for “unsatisfactory” conduct while confined, based upon his conviction of the class A misdemeanor of promoting prison contraband in the second degree (Penal Law § 205.20). This conviction constituted the sole act of misconduct while confined cited by the People, and it occurred approximately four years before the SORA hearing, prior to the defendant’s transfer to State prison. Since the defendant’s misconduct was neither recent nor repeated, the assessment of points for that misdemeanor was not supported by the record … . People v Hernandez, 2020 NY Slip Op 05540, Second Dept 10-7-20

 

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ROBBERY AND ASSAULT SECOND CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OF THE EVIDENCE OF PHYSICAL INJURY (SECOND DEPT).

The Second Department, reducing defendant’s convictions, determined the robbery and assault second degree convictions were against the weight of the evidence because of the weakness of the evidence of physical injury. The convictions were reduced to robbery and assault third degree:

“Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). …

Here, the victim gave testimony about an incident in which the defendant attacked her and forcibly stole property from her. During the incident, the defendant pushed the victim down onto a bed, bound her wrists with a coaxial cable, placed the cable around her neck, and placed her in a choke hold with his arm across her throat. After the incident, the victim had an indentation on her wrist where the cord had been tied, her wrist was sore and had redness, and she had a red mark on her neck. She was “pretty numb” at the time and was not experiencing pain. She declined to go to the hospital. A few days later, she had difficulty swallowing and her throat was “kind of sore” for “[j]ust a couple of days.” When she testified before the grand jury, approximately one week after the incident, she was asked if she had any pain or discomfort, and she answered, “just the muscle in my arm.” Under these particular facts, the weight of the evidence does not support a finding that the victim suffered impairment of physical condition or substantial pain. Accordingly, we reduce the conviction of robbery in the second degree to robbery in the third degree … . People v Tactikos, 2020 NY Slip Op 05535, Second Dept 10-7-20

 

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ALTHOUGH THE EVIDENCE WAS DEEMED LEGALLY SUFFICIENT TO SUPPORT THE CONVICTIONS STEMMING FROM AN ATTACK ON THE COMPLAINANT, THOSE CONVICTIONS WERE DEEMED AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OR ABSENCE OF IDENTIFICATION EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined: (1) the evidence of a sexual touching of complainant by defendant captured on video in the laundromat was legally insufficient; (2) the evidence that defendant attacked the complainant after she left the laundromat was legally sufficient; (3) but the convictions stemming from the attack on the complainant after she left the laundromat were against the weight of the evidence because of the weakness or absence of identification evidence. So this is a rare decision where the evidence was explicitly found legally sufficient but the related convictions were found to be against the weight of the evidence:

Viewing the evidence in the light most favorable to the prosecution, here, there was legally sufficient evidence to support the defendant’s convictions of sexual abuse in the first degree and criminal obstruction of breathing or blood circulation. The surveillance video footage showed the defendant leaving the laundromat just after the complainant had left. Both the complainant and the defendant were shown walking down Woodhaven Boulevard, and the defendant’s clothing matched the complainant’s description of the clothes worn by her assailant. Therefore, a rational juror could have concluded that the defendant was the perpetrator of the assault on the complainant that occurred near her home.

However, the evidence was not legally sufficient to support the defendant’s conviction of sexual abuse in the third degree. …

… [O]ur viewing of the video recording taken inside the laundromat did not establish that the contact between the defendant and the complainant as he was exiting the laundromat was of a sexual nature. At best, the video was ambiguous as to the nature of the touching depicted. * * *

In the face of the markedly disparate descriptions offered by the detectives and the complainant, and in the absence of an in-court identification, the verdict of the jury finding the defendant guilty of sexual abuse in the first degree and criminal obstruction of breathing or blood circulation was against the weight of the evidence … . People v Kassebaum, 2020 NY Slip Op 05529, Second Dept 10-7-20

 

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CO-DEFENDANT’S REDACTED STATEMENT SHOULD NOT HAVE BEEN ALLOWED IN EVIDENCE, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the co-defendant’s redacted admission should not have been admitted in evidence:

… [W]e agree with the defendant that, under the instant circumstances, the Supreme Court’s admission of codefendant Jason Villanueva’s redacted statement to the police violated the rule articulated in Bruton v United States (391 US 123), because the subject redaction would have caused the jurors to “realize that the confession refers specifically to the defendant” or to one of the other nonconfessing codefendants … . In addition, the error was not harmless. “[I]t cannot be said that ‘there is no reasonable possibility that the erroneously admitted [statement] contributed to the conviction'” … , given that the statement was inconsistent with the defendant’s justification defense, and the court failed to give the jurors a proper limiting instruction to only consider the statement against Villanueva. People v Casares, 2020 NY Slip Op 05520, Second Dept 10-7-20

 

NATURE OF AN INGRESS AND EGRESS EASEMENT EXPLAINED (SECOND DEPT).

The Second Department discussed the elements of an easement for ingress and egress only:

“Express easements are governed by the intent of the parties” … . “As a [result], where the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder” … . “Indeed, an owner of land that is burdened by an express easement for ingress and egress ‘may narrow it, cover it over, gate it or fence it off, [as] long as the easement holder’s right of passage is not impaired'” … . Panday v Allen, 2020 NY Slip Op 05519, Second Dept 10-7-20

 

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THE CIVIL SERVICE LAW, NOT THE COLLECTIVE BARGAINING AGREEMENT, CONTROLS THE TERMINATION OF AN INJURED FIREFIGHTER ABSENT FOR MORE THAN A YEAR DUE TO THE INJURY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the Civil Service Law, not the collective bargaining agreement, controlled the termination of an injured firefighter who had been absent for more than a year due to the injury:

Civil Service Law § 71 provides that where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the worker’s compensation law, “he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.” The legislature provided that the state civil service commission shall “prescribe and amend suitable rules and regulations for carrying into effect the provisions of this chapter,” including “rules for . . . leaves of absence” (Civil Service Law § 6[1]). The Department of Civil Service has promulgated implementing regulations for Civil Service Law § 71, including detailed procedures for notifying an employee of the right to a one-year leave of absence during continued disability, and notifying an employee of an impending termination following the expiration of that one-year period and the right to a hearing and to apply for a return to duty (see 4 NYCRR 5.9). Here, the specific directives of Civil Service Law § 71 and 4 NYCRR 5.9 leave no room for negotiation of the procedures to be followed prior to the termination of an employee’s employment upon the exhaustion of the one-year period of leave. Therefore the presumption in favor of collective bargaining is overcome … . Matter of City of Long Beach v New York State Pub. Empl. Relations Bd., 2020 NY Slip Op 05504, Second Dept 10-7-20

 

THE LATE SUMMARY JUDGMENT MOTION AND THE EXCUSE OFFERED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the late summary judgment motion and an excuse offered in reply papers should not have been considered:

Pursuant to CPLR 3212, courts have “considerable discretion to fix a deadline for filing summary judgment motions,” so long as the deadline is not “earlier than 30 days after filing the note of issue or (unless set by the court) later than 120 days after the filing of the note of issue, except with leave of court on good cause shown” … . As a general matter, a court should not consider a good cause argument proffered by a movant if it is presented for the first time in reply papers … . Here, it is undisputed that the defendant moved for summary judgment approximately 30 days after the date set by the Supreme Court without seeking leave of the court or offering an explanation showing good cause for the delay in their moving papers. As a result, the court improvidently exercised its discretion in considering that branch of the defendant’s motion which was for summary judgment dismissing the complaint insofar as asserted against it and in considering the good cause arguments raised for the first time in the defendant’s reply papers … . O’Neil v Environmental Prods. Corp., 2020 NY Slip Op 05516, Second Dept 10-7-20

 

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THE REFEREE RELIED ON HEARSAY TO DETERMINE THE AMOUNT OWED IN THIS FORECLOSURE ACTION; SUPREME COURT SHOULD NOT HAVE CONFIRMED THE REFEREE’S REPORT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence relied upon by the referee to determine the amount owed to plaintiff bank in this foreclosure action did not meet the requirements of the business records exception to the hearsay rule. The bank’s motion for summary judgment should not have been granted:

With respect to the amount due to the plaintiff, the referee based his findings on an affidavit of Jillian Thrasher, a vice president of Ocwen Loan Servicing, LLC (hereinafter Ocwen), the servicer of the subject loan. …

“A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . Here, Thrasher’s affidavit was insufficient to establish a proper foundation for the admission of a business record pursuant to CPLR 4518(a), because she failed to attest that she was personally familiar with the record-keeping practices and procedures of her employer, Ocwen, the entity that generated the subject business records. Accordingly, she failed to demonstrate that the records relied upon in her affidavit were admissible under the business records exception to the hearsay rule … . Thus, Thrasher’s affidavit, upon which the referee relied, “constituted inadmissible hearsay and lacked probative value” on the issue of the amount due and owing to the plaintiff, including the amount of interest due for the relevant period … , and the Supreme Court erred in confirming the report. The error in relying on hearsay evidence was not harmless, as the referee’s determination is not substantially supported by other evidence in the record … . IndyMac Fed. Bank, FSB v Vantassell, 2020 NY Slip Op 05495, Second Dept 10-7-20

 

AFTER OBTAINING AN UNPAID JUDGMENT AGAINST THE INSURED, PLAINTIFF PROPERLY SUED THE INSURER WHICH HAD DISCLAIMED COVERAGE ALLEGING THE INSURED HAD REFUSED TO COOPERATE; THE PROOF OF THE INSURED’S ALLEGED FAILURE TO COOPERATE WAS NOT SUFFICIENT TO RAISE A QUESTION OF FACT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST THE INSURER WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, in a comprehensive decision explaining the law, determined plaintiff properly sued the defendant’s insurer after obtaining an unpaid judgment against the insured. The insurer argued it had properly disclaimed coverage because the insured did not cooperate by answering questions. However, the insurer’s submissions did not demonstrate the insured’s failure to cooperate and plaintiff was entitled to summary judgment against the insurer:

[The] statutory right, presently codified at Insurance Law § 3420, among other things, “grants an injured party a right to sue the tortfeasor’s insurer, but only under limited circumstances—the injured party must first obtain a judgment against the tortfeasor, serve the insurance company with a copy of the judgment and await payment for 30 days” … . “Compliance with these requirements is a condition precedent to a direct action against the insurance company” … . * * *

Here, the insurer contended that [the insured’s] principal, Michael Stoicescu, refused to cooperate and thereby breached the subject policy. The insurer did not allege that any other individuals associated with [the insured]  failed to cooperate. Although the insurer claimed that Stoicescu refused to cooperate in the underlying action, it is undisputed that he appeared for an examination before trial where he testified at length … . The insurer failed to identify any information that Stoicescu refused to disclose, or any document that he refused to provide in connection with the underlying action … . The insurer’s contention that Stoicescu refused to respond to certain telephone calls and letters was insufficient to show “an attitude of willful and avowed obstruction” … . Furthermore, although the insurer submitted evidence to show that, after years of litigation, Stoicescu had stated during one or more telephone calls that he would not attend a trial in the underlying action, any such statements were made before a date for the trial had even been set … , and the insurer did not allege that Stoicescu actually failed to appear for any required court appearance … . DeLuca v RLI Ins. Co., 2020 NY Slip Op 05487, Second Dept 10-7-20

 

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