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JUDGE’S SUA SPONTE DISMISSAL OF THE FORECLOSURE COMPLAINT WAS NOT WARRANTED; NO EXTRAORDINARY CIRCUMSTANCES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to vacate the sua sponte dismissal of the foreclosure complaint should have been granted:

… [I]n a status conference order … , the Court Attorney Referee … directed the plaintiff to file an application seeking an order of reference by the date of the final status conference. Following the final status conference … , the Court Attorney Referee … determined that the plaintiff failed to show good cause for its failure to move for an order of reference as directed, and recommended that the action be dismissed. … [T]he Supreme Court directed dismissal of the complaint. …

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with any extraordinary circumstances warranting a sua sponte dismissal of the complaint … . Indeed, at the time the plaintiff was directed to file an application for an order of reference, an order of reference, as well as a judgment of foreclosure and sale, had already been issued. Bank of N.Y. v Ramirez, 2020 NY Slip Op 05024, Second Dept 9-23-20

 

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MOTION TO DISMISS THE BREACH OF CONTRACT ACTION BASED ON DOCUMENTARY EVIDENCE PURSUANT TO CPLR 3211 (a)(1) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant condominium-board-of-managers’ motion to dismiss plaintiff condominium-owner’s complaint based on documentary evidence should have been granted:

The plaintiff commenced this action against the defendant Board of Managers … (hereinafter the Board) … challenging the Board’s allocation of common expenses, after the Condominium’s first year of operation, in accordance with the first-year budget set forth in the Condominium offering plan. The plaintiff alleged that this method of allocating common expenses following the Condominium’s first year was a breach of the Board’s contractual duties and resulted in an overassessment of common charges to the plaintiff. * * *

As to the breach of contract cause of action, “[t]o succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Here, the Condominium offering plan, declaration, and bylaws (hereinafter collectively the governing documents) utterly refuted the plaintiff’s factual allegations and conclusively established a defense as a matter of law to the breach of contract cause of action. In particular, the plaintiff admitted in the amended complaint that the common charges assessed to its unit since the inception of its ownership have been in accordance with the allocations set forth in “Schedule B — First Year’s Budget,” contained in the offering plan. The plaintiff’s allegation that the Board was obligated to reallocate the common expenses after the first year of the Condominium’s operation, based upon an assessment of the commercial unit owners’ actual use of and benefit from the services and other items covered by the common expenses, is refuted by the governing documents. Those documents do not provide for an assessment of actual use and benefits, but rather, specify that, on at least a yearly basis, the Board will “allocate and assess [the] Common Charges amongst the Unit Owners in accordance with allocations set forth in the First Year’s Budget.” 189 Schermerhorn Owners Co., LLC v Board of Mgrs. of the Be@Schermerhorn Condominium, 2020 NY Slip Op 05021, Second Dept 9-23-20

 

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DESPITE THE ALLEGATION THAT THE DRIVER HAD LOGGED OFF THE UBER APP PRIOR TO THE PEDESTRIAN-VEHICLE ACCIDENT, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON THE VICARIOUS LIABILITY THEORY; THE UNEMPLOYMENT INSURANCE APPEAL BOARD’S FINDING THAT THE DRIVER WAS EMPLOYED BY UBER WAS NOT ENTITLED TO PRECLUSIVE EFFECT; ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this pedestrian-vehicle accident case, determined: (1) a ruling by the Unemployment Insurance Appeal Board finding that defendant driver was an employee of defendant Uber was not entitled collateral-estoppel effect pursuant to Labor Law 623( 2); (2) although the Labor Law 623(2) argument was not raised below, it raised a question of law which could not have been avoided below and therefore was considered on appeal; (3) the claim that defendant driver had logged off the Uber app at the time of the accident did not warrant summary judgment in favor of Uber on the vicarious liability theory:

An action may be considered to be within the scope of employment, thus rendering an employer vicariously liable for the conduct, when “the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment” … . Whether an employee was acting within the scope of his or her employment is generally a question of fact for the jury … .

Here, contrary to Uber’s contention, the averments [that the driver] had logged off of the Uber app 40 minutes before the accident were simply insufficient, without more, to eliminate all questions of fact as to whether Hussein was acting within the scope of his alleged employment with Uber at the time of the incident … . Uy v Hussein, 2020 NY Slip Op 05080, Second Dept 9-23-30

 

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PLAINTIFF BANK DID NOT DEMONSTRATE STRICT COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 AND THEREFORE WAS NOT ENTITLED TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION; DEFENDANT’S MERE DENIAL OF RECEIPT OF THE NOTICE DID NOT WARRANT SUMMARY JUDGMENT IN DEFENDANT’S FAVOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the RPAPL 1304 notice requirements and, therefore, the bank’s motion for summary judgment in this foreclosure action should not have been granted. Defendant’s denial of receipt of the RPAPL 1394 notice, however, was not enough to warrant summary judgment in favor of defendant:

“‘Although not jurisdictional, proper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a residential foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition'” … . …

… [A]lthough the plaintiff submitted a copy of the 90-day notice purportedly sent to [defendant], the plaintiff failed to submit an affidavit of service or other proof of mailing by the post office establishing that the plaintiff properly sent the notice by registered or certified mail and first-class mail pursuant to RPAPL 1304 … . Since the plaintiff failed to provide evidence of the actual mailing, or evidence 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 plaintiff failed to establish its strict compliance with RPAPL 1304 … . TD Bank, N.A. v Roberts, 2020 NY Slip Op 05074, Second Dept 9-23-20

 

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AS A MATTER OF PUBLIC POLICY AN INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION CANNOT BE BROUGHT AGAINST A GOVERNMENTAL ENTITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant city’s motion for summary judgment in this false arrest and imprisonment, malicious prosecution, civil rights violation, negligent hiring and retention and intentional infliction of emotional distress action should have been granted, in large part because there was probable cause for defendant’s arrest. The court noted that an intentional infliction of emotional distress cause of action cannot be brought against a municipality:

… [T]he defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for intentional infliction of emotional distress, since “[i]t is well settled that public policy bars claims sounding in intentional infliction of emotional distress against a governmental entity” … . Rapuzzi v City of New York, 2020 NY Slip Op 05067, Second Dept 9-23-30

 

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BECAUSE THE TRIAL JUDGE OMITTED A PORTION OF THE BURGLARY JURY INSTRUCTIONS AND THE PEOPLE DID NOT OBJECT, THE PEOPLE ARE HELD TO THE PROOF REQUIRED BY THE INCOMPLETE INSTRUCTIONS; THE BURGLARY CONVICTION WAS THEREFORE AGAINST THE WEIGHT OF THE EVIDENCE; DEFENSE COUNSEL’S FAILURE TO MAKE A SPEEDY TRIAL MOTION DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE BECAUSE THE ISSUE WAS NOT CLEAR-CUT AND DISPOSITIVE (SECOND DEPT).

The Second Department, reversing the burglary conviction as against the weight of the evidence, determined the People were held to the proof required by the the jury instructions to which the People did not object. The portion of the instructions which explained that entry into a private area of a building after entering the building through a public area constitutes unlawful entry was left out. Because the defendant entered the building through a public entrance, the People did not prove unlawful entry as charged to the jury. The Second Department also held that defense counsel’s failure to make a speedy trial motion did not constitute ineffective assistance because it was not clear the motion would succeed:

While the failure to make a meritorious speedy trial motion can constitute ineffective assistance of counsel … , the speedy trial violation must have been “clear-cut and dispositive” … . In other words, the motion must not only be meritorious … , it generally must not require resolution of novel issues, or resolution of whether debatable exclusions of time are applicable … . Here, the issue cannot be fairly characterized as “clear-cut and dispositive” so as to render defense counsel ineffective for failing to make such a motion … . * * *

The testimony at trial was unequivocal that the defendant and two cohorts entered the subject premises, a self-storage facility, during business hours, using the entrance designated for use by the public. The defendant’s entry into the premises was therefore lawful … . While the defendant’s subsequent act of entering a nonpublic area of the premises could constitute an unlawful entry (see Penal Law § 140.00[5] … ), in light of the Supreme Court’s charge omitting that portion of the instruction elaborating upon license and privilege as it applies to nonpublic areas within public places, and asking the jury whether the defendant unlawfully entered the premises generally, it was factually insufficient to prove that the defendant’s entry was unlawful. People v McKinnon, 2020 NY Slip Op 05056, Second Dept 9-23-30

 

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OWNER OF OWNER-OCCUPIED TWO-FAMILY RESIDENCE IS EXEMPT FROM LIABILITY FOR A SIDEWALK SLIP AND FALL PURSUANT TO THE NYC ADMINISTRATIVE CODE AND WAS NOT LIABLE UNDER THE COMMON LAW; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this sidewalk slip and fall case, determined defendant property owner was exempt from liability under the administrative code and common law:

“Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner, except for sidewalks abutting one-, two-, or three-family residential properties that are owner occupied and used exclusively for residential purposes” ( … see Administrative Code of City of NY § 7-210[b]). Here, the defendants established, prima facie, that the subject property abutting the public sidewalk was a two-family, owner-occupied residence, and thus, that they are entitled to the exemption from liability for owner-occupied residential property … .

The defendants also established that they could not be held liable for the plaintiff’s alleged injuries under common-law principles. “Absent the liability imposed by statute or ordinance, an abutting landowner is not liable to a passerby on a public sidewalk for injuries resulting from defects in the sidewalk unless the landowner either created the defect or caused it to occur by special use” … . The defendants established, prima facie, that they did not create the defective condition that allegedly caused the plaintiff’s fall or make a special use of that area of the sidewalk … . Osipova v London, 2020 NY Slip Op 05053, Second Dept 9-23-30

 

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MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION FOR FAILURE TO STATE A CAUSE OF ACTION SHOULD BE TREATED AS A MOTION FOR A DECLARATORY JUDGMENT IN DEFENDANT’S FAVOR; TWO CAUSES OF ACTION NOT INCLUDED IN THE NOTICE OF CLAIM PROPERLY DISMISSED ON THAT GROUND (SECOND DEPT).

The Second Department determined the motion to dismiss the declaratory judgment action should have been treated as a motion for a declaration in the defendant’s favor. The action concerned fines imposed on plaintiff home-owner by NYC for the alleged failure to have the in-home elevator inspected once a year. Plaintiff alleged the relevant regulations were unconstitutional. Plaintiff also included causes of action for breach of contract and promissory estoppel. The contract and estoppel causes of action were dismissed because they were not included in plaintiff’s notice of claim. The regulations were deemed constitutional. With regard to the declaratory judgment cause of action and the notice of claim, the court wrote:

“‘A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'” … . “[W]here a cause of action is sufficient to invoke the court’s power to ‘render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy’ (CPLR 3001; see CPLR 3017[b]), a motion to dismiss that cause of action should be denied” … . However, upon a motion to dismiss for failure to state a cause of action, a court may reach the merits of a properly pleaded cause of action for a declaratory judgment where “‘no questions of fact are presented [by the controversy]'” … . Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action “should be treated as one seeking a declaration in [the] defendant’s favor and treated accordingly” … . * * *

A timely notice of claim is a condition precedent to maintaining an action against the City of New York (see Administrative Code § 7-201 … ). Here, the notice of claim attached to the complaint fails to include any allegations relating to the plaintiff’s causes of action to recover damages for breach of contract and promissory estoppel … . Neuman v City of New York, 2020 NY Slip Op 05052, Second Dept 9-23-30

 

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INSTEAD OF DISMISSING THE PETITION FOR FAILURE TO INCLUDE A NECESSARY PARTY, SUPREME COURT SHOULD HAVE ORDERED THE PARTY SUMMONED PURSUANT TO CPLR 1001 (b) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking review of the village planning board’s decision re: petitioner’s application for approval of a subdivision should not have been dismissed. Because the planning board’s decision affected another landowner (160 South Ocean, LLC) Supreme Court dismissed the petition for failure to include a necessary party. The Second Department held Supreme Court should have ordered the party summoned pursuant to CPLR 1001 (b):

160 South Ocean, LLC, is a necessary party to this proceeding (see CPLR 1001[a]) subject to the jurisdiction of the court, and therefore, the Supreme Court should have “order[ed] [it] summoned,” rather than denying the petition and dismissing the proceeding for failure to join a necessary … party (CPLR 1001[b] …). Accordingly, we reinstate the petition and remit the matter to the Supreme Court, Suffolk County, for further proceedings, including a determination on the merits of the respondents’ motion, inter alia, to dismiss the petition … . Matter of Mulford Bay, LLC v Rocco, 2020 NY Slip Op 05050, Second Dept 9-23-30

 

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QUESTION OF FACT WHETHER DEFENDANT PROPERTY OWNER HAD NOTICE OF THE ALLEGED ELEVATOR MISALIGNMENT PROBLEM WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the elevator was functioning properly and whether defendant had actual or constructive knowledge of the misalignment which allegedly caused plaintiff’s slip and fall:

… [T]he property defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing, through the deposition testimony of their witnesses and an expert affidavit, that no complaints were ever made about misalignment of the elevator, that routine inspections of the building by employees did not reveal the presence of such a condition, and that an inspection conducted of the elevator three days before the accident did not reveal any defects that would cause misalignment.

… [T]he plaintiff submitted, among other things, an affidavit from her mother, who then resided in the building, asserting that during the month preceding the accident, she observed misalignment of the elevator “almost every day,” and that, in response to a complaint about misalignment by another resident, a member of the condominium’s Board of Managers had acknowledged the problem in her presence … . The plaintiff also submitted evidence demonstrating the documented occurrence of prior similar incidents of misalignment, and an unsatisfactory inspection report for the elevator, completed three days before the accident, which, according to the plaintiff’s expert, and contrary to the averment of the property defendants’ expert and other witnesses, evinced defects which would cause misalignment. The plaintiff’s evidence was sufficient to raise a triable issue of fact as to whether the property defendants had notice of the allegedly defective condition that caused the plaintiff’s accident … . Napolitano v Jackson “78” Condominium, 2020 NY Slip Op 04955, Second Dept 9-16-20

 

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