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THE FEDERAL OFFENSE DID NOT REQUIRE THAT THE FIREARM BE OPERABLE BUT THE NEW YORK OFFENSE DOES; THEREFORE THE FEDERAL OFFENSE IS NOT A PREDICATE OFFENSE FOR SENTENCING PURPOSES; THE DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER; ALTHOUGH THE ISSUE WAS NOT PRESERVED, IT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the federal felony was not equivalent to a New York felony and therefore could not serve as a predicate offense. Defendant, therefore, should not have been sentenced as a second felony offender. Although the issue was not preserved, it was considered on appeal in the interest of justice:

The defendant’s contention that his prior federal conviction of unlawful possession of a firearm in violation of 18 USC § 922(g)(l) did not qualify as a predicate New York felony pursuant to Penal Law § 70.06 is unpreserved for appellate review … . However, we reach the issue in the exercise of our interest of justice jurisdiction … .

“An out-of-state felony conviction qualifies as a predicate felony under Penal Law § 70.06 only if it is for a crime whose elements are equivalent to those of a felony in New York” … . Here, the defendant’s predicate crime does not require as one of its elements that the firearm be operable (see 18 USC § 922[g][1] …) and, thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Cabassa, 2020 NY Slip Op 06282, Second Dept 11-4-20

 

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PETITIONERS, INMATES AT A CORRECTIONAL FACILITY, RAISED ALLEGATIONS COGNIZABLE IN HABEAS CORPUS REGARDING THE FACILITY’S RESPONSE TO COVID-19; SUPREME COURT SHOULD NOT HAVE REFUSED TO ISSUE AN ORDER TO SHOW CAUSE WHY THE PETITIONERS SHOULD NOT BE RELEASED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioners, inmates at Otis Correctional Facility, had made allegations with respect to the facility’s response to COVID-19 which were cognizable in habeas corpus. Therefore Supreme Court should not have refused to issue an order to show cause why the inmates should not be released:

… [T]he petition alleged that the inmates were being unlawfully imprisoned in violation of the Eighth Amendment of the United States Constitution because, in light of certain physical conditions and attributes specific to them as well as unalterable conditions of incarceration at Otisville, there were no measures that could be taken to protect them from the grave risk of death or serious illness posed by the COVID-19 virus while they were incarcerated in that facility. Thus, the petitioner alleged, the only remedy to cure the illegality of the inmates’ detention would be their immediate release. Contrary to the respondents’ contention and the conclusion of the Supreme Court, these allegations are properly cognizable in habeas corpus … . Accordingly, the court should not have refused to issue an order to show cause why the inmates should not be released (see CPLR 7003[a]). People ex rel. Tse v Barometre, 2020 NY Slip Op 06280, Second Dept 11-4-20

 

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IN THIS WRONGFUL DEATH ACTION AGAINST DEFENDANT RESIDENTIAL CARE FACILITY, PLAINTIFF’S DECEDENT DID NOT SIGN THE ADMISSION AGREEMENT AND DECLINED TO HAVE IT READ TO HER; PLAINTIFF’S DECEDENT’S SON, WHO HAD POWER OF ATTORNEY, REFUSED TO SIGN THE AGREEMENT; THE FACILITY CAN NOT ENFORCE THE ARBITRATION CLAUSE IN THE AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitration clause in the defendant residential care facility’s (Richmond Center’s) admission agreement could not be enforced on behalf of plaintiff’s decedent. Plaintiff’s decedent was unable to sign the admission agreement and blinked twice for “no” when asked if she wanted the agreement read to her. Her son, William, had power of attorney but refused to sign the agreement. The facility therefore could not enforce the arbitration clause of the admission agreement in this wrongful death action:

“[A]n arbitration clause in a written agreement is enforceable, even if the agreement is not signed, when it is evident that the parties intended to be bound by the contract” … . “‘The manifestation or expression of assent necessary to form a contract may be by word, act, or conduct which evinces the intention of the parties to contract'” … . “A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate” … .

Here, Richmond Center failed to demonstrate that the resident, or William as her representative, by word, act, or conduct evinced an intention to be bound by the terms of the arbitration agreement. Since the evidence failed to show a clear, explicit, and unequivocal agreement to arbitrate, the plaintiff may not be compelled to arbitrate … . Pankiv v Richmond Ctr. for Rehabilitation & Specialty Healthcare, 2020 NY Slip Op 06279, Second Dept 11-4-20

 

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THE TRUSTEES DID NOT DEMONSTRATE THE AVAILABILITY OF THE STATUTE OF LIMITATIONS OR LACHES DEFENSES TO THE ACTION SEEKING AN ESTATE ACCOUNTING; THE TRUSTEES DID NOT OPENLY REPUDIATE THEIR FIDUCIARY OBLIGATIONS AND, THEREFORE, THE TIME DID NOT BEGIN TO RUN FOR EITHER DEFENSE (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the action seeking an estate accounting should not have been dismissed as untimely because the statute of limitations had not been triggered by an open repudiation of the trustees’ fiduciary obligations. A similar open repudiation is necessary for a laches defense as well:

A proceeding to compel an accounting by a fiduciary is governed by a six-year statute of limitations (see CPLR 213[1]). “It is well settled that the statutory clock begins to run when the trustee openly repudiates his [or her] fiduciary obligations” or there is a judicial settlement of the fiduciary’s account … . “For a trustee to invoke a Statute of Limitations defense, a mere lapse of time is insufficient without proof of an open repudiation” … . There must be proof of a repudiation by the fiduciary “‘which is clear and made known to the beneficiaries'” … , “viewed in the light of the circumstances of the particular case” … . The party seeking the benefit of the statute of limitations defense bears the burden of proof on the issue of open repudiation  … . “Where there is any doubt on the record as to the conclusive applicability of a Statute of Limitations defense, the motion to dismiss the proceeding should be denied” … . Matter of Eisdorfer, 2020 NY Slip Op 06258, Second Dept 11-4-20

 

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PLAINTIFF BANK MOVED FOR AN ORDER OF REFERENCE WITHIN ONE YEAR; DESPITE THE WITHDRAWAL OF THE MOTION, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, SUA SPONTE, PURSUANT TO CPLR 3215 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint in this foreclosure action should not have been, sua sponte, dismissed for failure to take steps to procure a default judgment within one year. Plaintiff moved for an order of reference within one year. It doesn’t matter that the motion was withdrawn:

Pursuant to CPLR 3215(c), “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c)  … . “Rather, it is enough that the plaintiff timely takes ‘the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference’ to establish that it ‘initiated proceedings for entry of a judgment within one year of the default,’ for the purposes of satisfying CPLR 3215(c)” … .

Here, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference in May 2010, within one year of the defendants’ default … . In such cases, the complaint should not be dismissed pursuant to CPLR 3215(c), even if, as here, the plaintiff’s motion is later withdrawn … . Deutsche Bank Natl. Trust Co. v Hasan, 2020 NY Slip Op 06243, 11-4-20

 

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THE NOTICE OF INTENTION TO FILE A CLAIM DID NOT SUFFICIENTLY IDENTIFY THE LOCATION OF THE SLIP AND FALL, RENDERING THE FILING OF THE CLAIM UNTIMELY (SECOND DEPT).

The Second Department determined the Court of Claims properly dismissed the claim in this slip and fall case. The notice of intention to file a claim did not sufficiently identify the location of the slip and fall:

A claim to recover damages for personal injuries shall be filed and served upon the Attorney General within 90 days after the claim accrued, unless within 90 days, the claimant serves upon the Attorney General a written notice of intention to file a claim, in which event the claim shall be filed and served upon the Attorney General within two years after the accrual of such claim (see Court of Claims Act § 10[3] … ). The Court of Claims Act requires a claim to specify, among other things, “the time when and place where” the claim arose (Court of Claims Act § 11[b] … ). A notice of intention to file a claim must also include a statement as to when and where the claim arose … . …

… [T]he notice of intention to file a claim failed to describe the location of the alleged accident with sufficient specificity to satisfy the requirements of Court of Claims Act § 11(b) as the generalized description did not give notice as to where on the path the accident occurred … . Moreover, “‘[t]he State is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11′” … . Further, lack of prejudice to the State is immaterial … .

As the notice of intention was deficient, it did not serve to extend the claimant’s time to file and serve a claim beyond the 90-day statutory period (see Court of Clams Act § 10[3] … ). Therefore, the claimant’s claim, which was filed approximately one year after accrual of the claim, was untimely … . Criscuola v State of New York, 2020 NY Slip Op 06241, Second Dept 11-4-20

 

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DEFENDANT HOTEL PROPERLY FOUND NEGLIGENT FOR FAILING TO PROVIDE ADEQUATE SECURITY IN THIS THIRD-PARTY ASSAULT CASE; HOWEVER THE HOTEL SHOULD NOT HAVE BEEN APPORTIONED 100% OF THE FAULT (SECOND DEPT).

The Second Department determined the evidence supported plaintiff’s verdict in this third-party assault action, but the defendant hotel should not have been found 100% at fault for failure to provide adequate security. 35% of the fault should have been apportioned to the shooter. Plaintiff was in a car in the hotel parking lot when he was shot by third-party defendant Williams:

… [The plaintiff made out a prima facie case of negligence at trial, and the jury’s finding in this regard was not against the weight of the evidence. The plaintiff established that the defendants employed almost no security measures in the parking lot where the shooting took place, and that in light of the history of criminal activity in the parking lot, the defendants should have been aware of the “likelihood of conduct on the part of third [parties]” that would “endanger the safety” of visitors to the parking lot … .

However, the apportionment of 100% of the fault in the happening of the shooting to the defendants was not supported by a fair interpretation of the evidence … . An apportionment of 65% of the fault to the defendants and 35% of the fault to Williams better reflects a fair interpretation of the evidence … .  Carter v BMC-HOJO, Inc., 2020 NY Slip Op 06237, Second Dept 11-4-20

 

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DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION GRANTED IN THE INTERESTS OF SUBSTANTIAL JUSTICE; THE EVIDENCE SUGGESTED DEFENDANT WAS THE VICTIM OF A SCHEME TO DEFRAUD; SUPREME COURT, HOWEVER, SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT (SECOND DEPT).

The Second Department determined defendant’s decedent’s (Renda’s) motion to vacate a default judgment in this foreclosure action should have been granted in the interests of substantial justice. There was evidence Renda was the victim of a scheme to defraud and foreclosure triggers the equitable powers of the court. Supreme Court should not have, sua sponte, dismissed the complaint, however:

… [W]e find that the defendant is entitled to vacatur of her default in the interests of substantial justice. “In addition to the grounds set forth in section 5015(a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice” … . “A foreclosure action is equitable in nature and triggers the equitable powers of the court” … . “Once equity is invoked, the court’s power is as broad as equity and justice require” … .

Here, the evidence submitted strongly suggests that Renda was the victim of a scheme to defraud … .

… [T]he Supreme Court erred in, sua sponte, directing dismissal of the complaint. Here, there were no extraordinary circumstances warranting the sua sponte dismissal, and there is no indication that the court gave the parties an opportunity to be heard regarding the dismissal of the complaint … . Caridi v Tanico, 2020 NY Slip Op 06236, Second Dept 11-4-20

 

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INFANT PLAINTIFF WAS A PASSENGER ON DEFENDANTS’ ALL TERRAIN VEHICLE (ATV), DRIVEN BY DEFENDANTS’ DECEDENT, WHO WAS INTOXICATED, WHEN THE ATV CRASHED INTO A TREE; THE NEGLIGENT SUPERVISION CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; THERE IS NO COMMON LAW “NEGLIGENT PROVISION OF ALCOHOL TO A MINOR” CAUSE OF ACTION IN NEW YORK; SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED ON THE NEGLIGENCE CAUSE OF ACTION BASED ON THE VIOLATION OF THE VEHICLE AND TRAFFIC LAW; CAUSES OF ACTION FIRST ADDRESSED IN PLAINITIFFS’ REPLY PAPERS PROPERLY DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) there is no common law cause of action in New York for negligent provision of alcohol to a minor; (2) summary judgment should have been granted on the negligence cause of action against the estate of the infant driver and owner of the all terrain vehicle (ATV); and (3) the negligent supervision cause of action properly survived summary judgment. Infant plaintiff was a passenger on the ATV driven by defendants’ decedent, who was intoxicated, when the ATV struck a tree. The court noted that the two causes of action which plaintiffs addressed only in their reply papers were properly dismissed:

… [T]he Supreme Court should have granted the plaintiffs’ cross motion for summary judgment on the issue of the liability of Nicola Trivigno [ATV owner} and Frankie’s [defendants’ decedent’s] estate. A plaintiff is no longer required to show freedom from comparative fault in order to establish his or her prima facie entitlement to judgment as a matter of law on the issue of liability … . A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law …  Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by presenting evidence that Frankie operated the ATV while intoxicated in violation of the Vehicle and Traffic Law (see Vehicle and Traffic Law § 1192). Frankie’s negligence is imputed to Nicola Trivigno, who was the owner of the ATV which was being driven by Frankie with Nicola Trivigno’s permission … . Abtey v Trivigno, 2020 NY Slip Op 06233, Second Dept 11-4-20

 

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PLAINTIFFS FOUND OUT WELL INTO THE CONTRACT FOR GAS-MAIN WORK THAT THE REQUESTED INSURANCE COVERAGE HAD NOT BEEN PROVIDED; THE DECLARATORY JUDGMENT CAUSE OF ACTION WAS PROPERLY DISMISSED BECAUSE IT DEPENDED ON A CIRCUMSTANCE THAT MAY NOT OCCUR; THE NEGLIGENT PROCUREMENT CAUSE OF ACTION WAS PROPERLY DISMISSED FOR LACK OF DAMAGES; THE BREACH OF CONTRACT CAUSE OF ACTION WAS SUPPORTED BY NOMINAL DAMAGES; THE FRAUD AND NEGLIGENT MISREPRESENTATION CAUSES OF ACTION WERE SUPPORTED BY A SPECIAL RELATIONSHIP WITH THE INSURANCE BROKER AND DETRIMENTAL RELIANCE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the plaintiffs’ causes of action for declaratory relief and negligent procurement were properly dismissed but the causes of action for breach of contract and fraud and negligent misrepresentation should not have been dismissed. Plaintiffs contracted with Con Ed to work on a gas main and requested insurance coverage for the project from defendants. Well into the project plaintiffs learned that they were not insured and they procured coverage elsewhere for a much higher premium. The declaratory judgment cause of action sought a declaration that defendants would be responsible if plaintiffs are sued for damage done when plaintiffs were uninsured. Because that circumstance may never occur the declaratory judgment cause of action was properly dismissed. The negligent procurement cause of action was properly dismissed because there were no damages. The breach of contract cause of action should not have been dismissed because nominal damages will support it. The fraud and negligent misrepresentation causes of action should not have been dismissed because a special relationship between plaintiffs and the insurance broker had been sufficiently alleged:

” … Nominal damages allow vindication of those rights” … . … “[A]ctual damages are not an essential element” of a breach of contract cause of action … .

… “Where a special relationship develops between the broker and client, [the] broker may be liable . . . for failing to advise or direct the client to obtain additional coverage” … . “… [T]hree ‘exceptional situations’ … may give rise to such a special relationship: ‘(1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on'” … . … The plaintiffs, at a minimum, claim to have suffered damages when they, on two occasions, made bids for long-term contracts to perform gas main repair work for Con Ed that were priced, in part, based on the defendants’ alleged misrepresentations as to the price of insurance coverage for that work. AB Oil Servs., Ltd. v TCE Ins. Servs., Inc., 2020 NY Slip Op 06232, Second Dept 11-4-20

 

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