You are here: / Second Department

Tag Archive for: Second Department

,

ALTHOUGH AURELIA S WAS PROPERLY FOUND TO BE AN INCAPACITATED PERSON, THE POWERS AWARDED THE GUARDIAN WERE TOO BROAD (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the powers awarded to the guardian of the incapacitated person, Aurelia S, were too broad:

… “[T]he determination of incapacity . . . shall consist of a determination that a person is likely to suffer harm because” (1) “the person is unable to provide for [his or her] personal needs and/or property management” and (2) “the person cannot adequately understand and appreciate the nature and consequences of such inability” (Mental Hygiene Law § 81.02[b] …). In reaching its determination, the court shall give primary consideration to the functional level and functional limitations of the person (see Mental Hygiene Law § 81.02[c]). Significantly, any guardian appointed shall be granted “only those powers which are necessary to provide for personal needs and/or property management of the incapacitated person in such a manner as appropriate to the individual and which shall constitute the least restrictive form of intervention” (Mental Hygiene Law § 81.02[a][2]).

… [T]he broad powers granted to the appointed guardian are inconsistent with the statutory requirement that the guardian be granted “only those powers which are necessary” and “which shall constitute the least restrictive form of intervention” (Mental Hygiene Law § 81.02[a][2] … ). Under the circumstances presented, the Supreme Court should have appointed a guardian only to manage Aurelia S.’s property and financial affairs, which shall have the following limited powers: (1) apply for, establish, and maintain eligibility for the maximum amount of government and private benefits; (2) marshal and manage income and assets; (3) enter into contracts, subject to prior court approval; (4) invest funds with the same authority as a trustee pursuant to EPTL 11-2.2; and (5) investigate any misappropriation of funds of Aurelia S. and take appropriate action. Matter of Aurelia S., 2020 NY Slip Op 04560, Second Dept 8-19-20

 

, ,

BANK DID NOT COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment should not have been granted in this foreclosure action because compliance with the notice requirements of RPAPL 1304 was not demonstrated:

RPAPL 1304 provides that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in the statute, such lender, assignee, or mortgage loan servicer must give notice to the borrower. The statute 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” … “and the plaintiff has the burden of establishing satisfaction of this condition” … . Here, although the plaintiff provided a photocopy of a “US Postal Service Receipt for Certified Mail” with a 20-digit number along with the purported 90-day notice, the receipt is undated and does not demonstrate that the notice was actually sent by certified mail more than 90 days prior to commencement of the action. The plaintiff also failed to submit sufficient evidence to demonstrate that the notice was sent by first-class mail. M&T Bank v Barter, 2020 NY Slip Op 04548, Second Dept 8-19-20

 

,

THE ISSUE ON A PRIOR APPEAL WAS WHETHER THE MOTION TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED; THE ISSUE HERE IS WHETHER THE MOTION TO DISMISS THE COMPLAINT SHOULD BE GRANTED; THE ISSUES ARE DIFFERENT AND THE LAW OF THE CASE DOCTRINE DOES NOT APPLY (SECOND DEPT).

The Second Department determined a prior appeal in this matter did not trigger the law of the case doctrine:

… Supreme Court’s determination that certain causes of action should be dismissed pursuant to CPLR 3211(a) was not precluded by this Court’s determination on a prior appeal that similar causes of action were not palpably insufficient nor patently devoid of merit … . The law of the case doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision, and to the same question in the same case … . On the prior appeal, we determined only that the plaintiffs’ proposed amendments were not so palpably insufficient as to warrant denial of the plaintiffs’ motion to amend. On an ensuing motion to dismiss, however, the standard is whether the facts as alleged fit within any cognizable legal theory … . Katz v Hampton Hills Assoc. Gen. Partnership, 2020 NY Slip Op 04545, Second Dept 8-19-20

 

, ,

TOWN LAW PREEMPTED BY STATE LAW RE THE DISCHARGE SETBACK FOR A BOW AND ARROW (SECOND DEPT).

The Second Department determined the town ordinance regulating the discharge setback for a bow and arrow was preempted by the conflicting provisions in Environmental Conservation Law (ECL) 11-0931:

The Town incorrectly contends that its ability to regulate the discharge setback of a bow and arrow is expressly authorized by Town Law § 130(27). That statute vests certain municipalities, including the Town, with the power to pass ordinances “prohibiting the discharge of firearms in areas in which such activity may be hazardous to the general public or nearby residents,” provided that “[t]hirty days prior to the adoption of any ordinance changing the five hundred foot rule, a notice must be sent to the regional supervisor of fish and game of the environmental conservation department, notifying him of such intention” (Town Law § 130[27]). However, that statute is premised upon a definition of the term “firearm” that does not include a bow and arrow.

The Town unpersuasively contends that it is free to define for itself the meaning of “firearm,” as used in Town Law § 130(27), so as to include “bow and arrow.” Although Town Law § 130(27) does not expressly define “firearm,” it can be readily inferred that the term is used in the same manner as in ECL 11-0931(4), which explicitly distinguishes between firearms and bows in setting forth discharge setback requirements (see ECL 11-0931[4][a][2]; see also 6 NYCRR 180.3[a] [defining “firearm” for purposes of ECL article 11]). Indeed, the mention of the “five hundred foot rule” in Town Law § 130(27) refers to the five-hundred-foot discharge setback required under ECL 11-0931(4). Construed in pari materia, these two statutory provisions employ the same terminology to regulate the same subject matter, and demonstrate that the Town may not regulate the discharge setback of a bow and arrow in a manner inconsistent with State law. Hunters for Deer, Inc. v Town of Smithtown, 2020 NY Slip Op 04542, Second Dept 8-19-20

 

,

THE STATE HIGHWAY LAW MAY HAVE IMPOSED A DUTY ON THE TOWN TO MAINTAIN THE SIDEWALK IN THIS SLIP AND FALL CASE; IN ADDITION, THE TOWN DID NOT DEMONSTRATE IT DID NOT HAVE WRITTEN NOTICE OF THE ALLEGED DEFECT AND DID NOT DEMONSTRATE THE DEFECT WAS TRIVIAL; THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the that action against the abutting landowner (Long Island Rail Road [LIRR} and Metropolitan Transportation Authority [MTA] in this sidewalk slip and fall case was properly dismissed, but the action against the Town should not have been dismissed. Notwithstanding the Town Code, the state Highway Law may require maintenance of the sidewalk by the Town. In addition the Town did not demonstrate that it did not have written notice of the alleged sidewalk defect:

LIRR and MTA demonstrated their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the alleged defect, did not make special use of the sidewalk, and did not breach a statutory duty to maintain the abutting sidewalk … . Moreover, LIRR and MTA “demonstrated, prima facie, that the sidewalk was not an area serving primarily for ingress and egress to a [train] station that is served by a single carrier but, rather, the area at issue is akin to a common area in a multi-carrier facility, for which [they] did not owe any duty of care to maintain” … . …

… [T]he plaintiffs raised a triable issue of fact as to the applicability of Highway Law § 140(18), which imposes a duty on the Town to maintain certain sidewalks adjacent to state highways and county roads … .

The Town failed to submit evidence that its employees or agents had specifically searched the records maintained by the Town Clerk to determine whether it had prior written notice of the alleged sidewalk defect, as per the requirements of its Town Code. In addition, the Town failed to establish, prima facie, that the alleged sidewalk defect was too trivial to be actionable … . Hanus v Long Is. Rail Rd., 2020 NY Slip Op 04541, Second Dept 8-19-20

 

, ,

THE DEFENSE DID NOT NEED TO PROVIDE PLAINTIFF WITH “EXPERT-OPINION” NOTICE OF ITS INTENT TO CALL PLAINTIFF’S TREATING PHYSICIAN TO TESTIFY THAT PLAINTIFF’S COGNITIVE DEFICITS WERE THE RESULT OF A PRIOR STROKE, NOT THE TRAFFIC ACCIDENT; THE DOCTOR’S TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED AND THE $2,000,000 VERDICT SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was no need for the defendants to give prior notification to the plaintiff of the defendants’ intent to call one of plaintiff’s treating doctors to testify about the cause of plaintiff’s cognitive deficits in this traffic accident case. The doctor would have testified the deficits were caused by a prior stroke. The testimony was precluded by Supreme Court because no “expert witness” notice had been provided to the plaintiff pursuant to CPLR 3101(d). The plaintiff was awarded $2,000,000 but the Second Department held the verdict should have been set aside:

A treating physician is permitted to testify at trial regarding causation, notwithstanding the failure to provide notice pursuant to CPLR 3101(d)(1) … .”Indeed, a plaintiff’s treating physician could testify to the cause of the injuries even if he or she had expressed no opinion regarding causation in his or her previously exchanged medical report'”… . Here, the Supreme Court should not have precluded the plaintiff’s treating physician from testifying regarding causation based on the defendants’ failure to provide notice pursuant to CPLR 3101(d)(1), as that provision does not apply to treating physicians … . Moreover, under the circumstances of this case, the error in precluding this testimony cannot be deemed harmless.

Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict on the issue of damages in the interest of justice and for a new trial on that issue. Duman v Scharf, 2020 NY Slip Op 04537, Second Dept 8-19-20

 

, ,

THE BANK’S COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1303 AND 1304 WAS NOT DEMONSTRATED IN THIS FORECLOSURE ACTION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE BANK (SECOND DEPT).

The Second Department determined plaintiff bank’s motion for summary judgment should not have been granted in this foreclosure action. There was a question of fact whether plaintiff complied with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1303, and plaintiff did not establish it complied with the notice requirements of RPAPL 1304:

… [D]efendant raised a triable issue of fact with respect to whether the RPAPL 1303 notice was in the proper form, as he asserted in his affidavit that the notice with which he was served “was on white colored paper, the same color papers as the summons and complaint and the heading entitled Help for Homeowners in Foreclosure’ was smaller than twenty-point type” … .

… [T]he affidavit of Lorene Alford Marsh, an Assistant Vice President of the plaintiff, was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304. Although Marsh attested that the 90-day notices of default were sent to the defendant by certified mail and first-class mail on March 8, 2013, and attached copies of those notices, the plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailings actually occurred … . Nor did Marsh attest that she had personal knowledge of the mailing practices of her employer at the time the RPAPL 1304 notices allegedly were sent. Instead, she merely stated that she had personal knowledge of the plaintiff’s procedures for creating and maintaining notices mailed in connection with the loan. Moreover, rather than establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed, Marsh, in her affidavit, merely described the mailing requirements listed in the statute … . Bank of Am., N.A. v Lauro, 2020 NY Slip Op 04531, Second Dept 8-19-20

 

, ,

ALTHOUGH PETITIONER DEMONSTRATED THE INMATE LACKED THE CAPACITY TO MAKE A REASONED DECISION ABOUT THE PROPOSED TREATMENT FOR SCHIZOPHRENIA, PETITIONER DID NOT DEMONSTRATE THE PROPOSED TREATMENT WAS NARROWLY TAILORED TO THE INMATE’S NEEDS (SECOND DEPT).

The Second Department, remitting the matter, determined that, although it was demonstrated the inmate lTyrone) lacked the capacity to make a reasoned decision about his treatment for schizophrenia, the petitioner did not demonstrate the proposed treatment was narrowly tailored to the inmate’s needs:

When seeking to administer a course of medication to a patient without that patient’s consent, a petitioner bear  the burden of demonstrating, by clear and convincing evidence, (1) the patient’s incapacity to make treatment decisions … , and (2) that “the proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest, taking into consideration all relevant circumstances, including the patient’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments” … . “Whether a mentally ill patient has the capacity to make a reasoned decision with respect to treatment is a question of fact for the hearing court, the credibility findings of which are entitled to due deference” … . … [T]e petitioner demonstrated by clear and convincing evidence that Tyrone lacks the capacity to make a reasoned decision with respect to the proposed treatment. …

However, the petitioner failed to demonstrate by clear and convincing evidence that the proposed treatment is narrowly tailored to preserve Tyrone’s liberty interest. Matter of Tyrone M., 2020 NY Slip Op 04478, Second Dept 8-12-20

 

, ,

IN LIGHT OF THE REVERSAL BY THE COURT OF APPEALS, PLAINTIFF HOME HEALTH CARE AIDES WERE NOT ENTITLED TO CLASS CERTIFICATION ON THE QUESTION WHETHER THEY SHOULD BE PAID FOR THE SLEEP AND BREAK HOURS DURING 24-HOUR SHIFTS (SECOND DEPT).

The Second Department, on remittal after reversal by the Court of Appeals, determined plaintiffs, home health care aides,  were not entitled to class certification on the question whether they were entitled to be paid for the sleep and break hours during 24-hour shifts. The Court of Appeals ruled that the NYS Department of Labor’s (DOL’s) finding that the flat-rate pay did not violate the Minimum Wage Order (Wage Order) was not irrational or unreasonable:

On March 26, 2019, the Court of Appeals reversed this Court’s decision and order, concluding that the DOL’s interpretation of the Wage Order did not conflict with the promulgated language and was not irrational or unreasonable … . The Court of Appeals remitted the matter to this Court to determine whether the plaintiffs’ class certification motion was properly denied, considering the DOL’s interpretation of the Wage Order as well as alternative bases for class certification asserted by the plaintiffs.

The proponent of a motion for class certification bears the burden of establishing the requirements of CPLR article 9 … . CPLR 901 sets forth five prerequisites to class certification. “These factors are commonly referred to as the requirements of numerosity, commonality, typicality, adequacy of representation and superiority” … . “A class action certification must be founded upon an evidentiary basis” … .

… [I]n light of the DOL’s interpretation of the Wage Order, the plaintiffs have failed to demonstrate entitlement to class certification on the question of whether the defendants violated the law by failing to pay them for all hours of a 24-hour shift. Although a worker must be paid minimum wage for the time he or she is “required to be available for work at a place prescribed by the employer,” under the DOL interpretation of the Wage Order, a worker is not considered to be “available for work at a place prescribed by the employer” during designated meal and sleep breaks, totaling 11 hours of a 24-hour shift … . Moreno v Future Health Care Servs., Inc., 2020 NY Slip Op 04473, Second Dept 8-12-20

 

, ,

DEFENDANT OFFERED MORE TO SETTLE THE ACTION THAN WAS AWARDED PLAINTIFF AFTER TRIAL; DEFENDANT WAS THEREFORE ENTITLED TO ATTORNEY’S FEES PURSUANT TO CPLR 3220 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant was entitled to attorney’s fees pursuant to CPLR 3220 in this breach of contract action. The defendant offered $950,000 to settle the action before trial and the plaintiff was awarded about $525,000:

CPLR 3220 provides, in relevant part, that, in an action to recover damages for breach of contract, at any time at least 10 days prior to trial, a defendant may make “a written offer to allow judgment to be taken against [it] for a sum therein specified, with costs then accrued, if the [defendant] fails in his defense.” If the plaintiff rejects the offer and thereafter “fails to obtain a more favorable judgment, [the plaintiff] shall pay the expenses necessarily incurred by the [defendant], for trying the issue of damages from the time of the offer” (CPLR 3220 … ). Here, since the defendant’s offer of $950,000 exceeded the plaintiff’s award of $524,253.92 and the plaintiff rejected that offer, the court should have awarded the defendant its expenses, including attorneys’ fees, incurred in trying the issue of damages from the date of its offer pursuant to CPLR 3220 … . Kirchoff-Consigli Constr. Mgt., LLC v Dharmakaya, Inc., 2020 NY Slip Op 04468, Second Dept 8-12-20

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy