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EVIDENCE OF VOYEURISTIC DISORDER SHOULD NOT HAVE BEEN CONSIDERED IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING; THE HARE PSYCHOPATHY CHECKLIST-REVISED (PCL-R) WAS PROPERLY RELIED UPON (SECOND DEPT).

The Second Department, affirming the finding that appellant sex offender required civil management, found that the expert’s (Charder’s) testimony about appellant’s voyeuristic-disorder diagnosis should not have been credited. The Second Department further held the Frye hearing demonstrated that the Hare Psychopathy Checklist-Revised (PCL-R) is widely accepted and used in the psychological and psychiatric communities:

… [W]e agree with the appellant that Charder’s testimony regarding her diagnosis of a voyeuristic disorder should not have been credited. Charder admitted that her diagnosis of a voyeuristic disorder was inconsistent with the diagnostic criteria contained in section 302.82 of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Although her decision to apply an alternative definition of voyeuristic disorder does not necessarily render this diagnosis insufficient to establish a mental abnormality … , Charder failed to clearly set forth the diagnostic criteria that she utilized in diagnosing the appellant under this alternative definition of voyeuristic disorder … , and she otherwise failed to explain the basis of her opinion that certain conduct attributed to the appellant was “voyeuristic,” thus rendering such testimony conclusory … . * * *

… [T]he evidence adduced at the Frye hearing demonstrated that the PCL-R has enjoyed long and widespread use within the psychological and psychiatric communities as a tool to measure psychopathy. Even the expert witness called by the appellant to testify at the Frye hearing acknowledged that the PCL-R is generally accepted for this purpose. Although there was evidence adduced at the hearing indicating that the PCL-R has been criticized for a lack of “inter-rater reliability” and having an “allegiance effect,” the evidence adduced at the hearing showed that such problems could be effectively mitigated through proper training. Similarly, although there was evidence indicating that the PCL-R was not designed to function as a direct and stand-alone test of whether an individual has a mental abnormality within the meaning of the statute, expert testimony established that it could nevertheless “contribute to an assessment of the presence of mental abnormality.” Matter of State of New York v Marcello A., 2020 NY Slip Op 01067, Second Dept 2-13-20

 

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DISMISSAL OF THE ACTION SEEKING OVERTIME PAY IN FEDERAL COURT ON THE GROUND NO NOTICE OF CLAIM WAS FILED DID NOT PRECLUDE, PURSUANT TO THE DOCTRINE OF RES JUDICATA, AN ACTION IN SUPREME COURT SEEKING PERMISSION TO FILE A LATE NOTICE OF CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dismissal of the action concerning overtime pay in federal court, on the ground no notice of claim had been filed, did not preclude the action in Supreme Court seeking leave to file a late notice of claim:

… [T]he federal court dismissed the New York Labor Law claims for failure to file a timely notice of claim (see County Law § 52; General Municipal Law § 50-e). …

… [S]o much of the petition as sought leave to deem the late notice of claim timely served nunc pro tunc is not barred by the doctrines of collateral estoppel and res judicata. Although collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue which was raised and decided in a prior action or proceeding … , the issue of whether the petitioners could obtain leave to deem the late notice of claim timely served nunc pro tunc pursuant to General Municipal Law § 50-e(5) was not litigated or decided by the 2017 federal order. As the issue was not litigated, the petitioners are not precluded from raising it … .

Res judicata also is inapplicable to so much of the petition as sought leave to deem the late notice of claim timely served nunc pro tunc. “Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding” … . Since the federal court was without jurisdiction to determine whether the petitioners could obtain leave to deem the late notice of claim timely served nunc pro tunc (see General Municipal Law § 50-e[7]), the petitioners are not precluded by the doctrine of res judicata from seeking a determination of this issue … . Matter of Chodkowski v County of Nassau, 2020 NY Slip Op 01058, Second Dept 2-13-20

 

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ORDERS ISSUED WHEN THE STAY PURSUANT TO CPLR 321(c) WAS IN EFFECT, DUE TO THE INABILITY OF PETITIONER’S COUNSEL TO CONTINUE FOR MEDICAL REASONS, SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, reversing Surrogate’s Court, determined that orders issued when a stay was in effect pursuant to CPLR 321(c), due to the inability of petitioner’s counsel to continue for medical reasons, should have been vacated. The petitioner is Oleg Cassini’s (the fashion designer’s) wife and the underlying matter is the heavily litigated (to say the least) administration of his estate. The opinion is overwhelming in its detail and cannot be fairly summarized here:

On these appeals, we consider the interplay between CPLR 321(b)(2), which permits the attorney of record for a party to withdraw by order of the court, with the court having the ability to stay proceedings pending substitution of new counsel, and CPLR 321(c), which automatically and effectively suspends all proceedings against a party whose attorney becomes incapacitated until 30 days after notice to appoint another attorney has been served upon that party. In this contentious, complex estate litigation, the Surrogate’s Court determined, in the context of a motion by the attorneys for the petitioner to withdraw from representing her, that the attorney primarily responsible for the matter had become unable to continue to represent the petitioner due to health reasons. While the Surrogate’s Court relieved counsel and provided for a 30-day stay of proceedings, it failed to require that the adverse parties serve the orders relieving counsel upon the litigant whose counsel was permitted to withdraw. The adverse parties themselves failed to serve the orders and also to serve the petitioner with a notice to appoint new counsel. However, several months later, the petitioner appeared with prospective new counsel at a court conference and was advised by the court that a trial would be conducted some six weeks later, regardless of whether the petitioner was present and regardless of whether the petitioner had representation. This was, under the circumstances, the practical equivalent of more than 30 days’ notice to the litigant to appoint new counsel. In conformity with the controlling statutory and decisional authorities, and to protect the litigant’s right to legal representation, we conclude that the judicial determinations rendered in between the Surrogate’s Court determination of incapacity and its subsequent practical notification of a deadline to appoint counsel should be vacated. Matter of Cassini, 2020 NY Slip Op 01057, Second Dept 2-13-2o

 

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THE APPEAL OF THE DENIAL OF PETITIONER’S REQUEST FOR AN ADJOURNMENT TO OBTAIN COUNSEL WAS NOT MOOT, DESPITE THE FACT THE TRIAL WAS HELD AND COMPLETED IN PETITIONER’S ABSENCE; THE ADJOURNMENT SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, reversing Surrogate’s Court, determined petitioner’s motion for an adjournment to obtain new counsel should have been granted and the appeal of the denial of an adjournment was not moot. The matter was before Surrogate’s Court for an accounting in the estate of Oleg Cassini, who died in 2006. At the time of the request for an adjournment three attorneys had withdrawn from the case. The trial went ahead without the presence of petitioner, Oleg Cassini’s wife Marrianne, and without counsel for petitioner:

An appeal is not moot “[w]here the case presents a live controversy and enduring consequences potentially flow from the order appealed from” … . On the other hand, “[a]n appeal is moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment'” … . Here, enduring consequences flow from the order appealed from since, absent a reversal of the order appealed from, the Surrogate’s Court’s determination after a trial in which Marianne did not participate will bind the parties. * * *

The Surrogate was rightly concerned about the lengthy history of delay in this case, just as we are. However, there was no evident urgency that required the trial to start on July 25, 2016, as opposed to 60 days later, and any prejudice to the objectants could have been readily addressed by appropriate orders dealing with the administration of the estate and its assets. In the overall context of this long-running litigation, an adjournment of 60 days to allow Marianne’s prospective counsel, McKay, to prepare for the trial should have been granted. Indeed, the failure [*6]to grant it has resulted in additional delay and expense in the conclusion of this estate. Given our preference that matters be determined on their merits, and the absence of any indication on this record that Marianne’s motion for an adjournment was made solely for the purpose of delay, the Surrogate’s Court should not have rejected the request out of hand. Matter of Cassini, 2020 NY Slip Op 01056, Second Dept 2-13-20

 

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ALTHOUGH THE LEASE DID NOT IMPOSE A DUTY ON THE TENANT TO MAINTAIN THE SIDEWALK, THE VILLAGE CODE DID; THE TENANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant tenant’s (Invite Health’s) motion for summary judgment in this sidewalk slip and fall case should not have been granted. Although, under the lease, the tenant had no duty to maintain the sidewalk, the village code imposed that duty on owners and tenants:

Here, Code of the Village of New Hyde Park § 165-40.1 requires “owners, tenants or other persons occupying or entitled to the possession and control of any lands, whether vacant or improved” to, among other things, maintain the abutting public sidewalk “in a good state of repair and free and clear of any physical defects or other unsafe, hazardous or dangerous obstructions, encumbrances or conditions” and imposes joint and several liability upon them for injuries caused by their breach of that duty (see Code of the Village of New Hyde Park §§ 1-18, 165-40.1). Given the Code’s imposition of an obligation on a tenant or occupant to maintain an abutting public sidewalk, Invite Health, as a tenant and occupant of the abutting property, had a statutory duty to maintain the public sidewalk where the accident occurred (see Code of the Village of New Hyde Park §§ 1-18, 165-40.1 …) . As such, the mere fact that Invite Health had no duty under the lease agreement to maintain the abutting sidewalk was not dispositive of the issue of whether it owed the injured plaintiff a duty of care. Mule v Invite Health at New Hyde Park, Inc., 2020 NY Slip Op 00869, Second Dept 2-5-20

 

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PETITIONERS, SIMPLY BY VIRTUE OF BEING RESIDENTS OF THE VILLAGE, HAD STANDING TO CHALLENGE THE VILLAGE BOARD’S ALLEGED VIOLATION OF THE OPEN MEETINGS LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Rivera, determined petitioners, as members of the public and residents of the Village of Mamaroneck, had standing to challenge an alleged violation of the Open Meetings Law. Petitioners alleged the Village Board did not provide proper notice of the meeting, improperly entered a closed executive session and failed to accurately record the minutes of the meeting:

The purpose of the Open Meetings Law and the intent of the Legislature in enacting that law dictate that the harm or injury is the alleged unlawful exclusion of the public from a municipal meeting. The Open Meetings Law plainly confers upon the public the right to attend certain meetings of public bodies (see Public Officers Law § 100). Consistent therewith, the harm or injury of being excluded from municipal meetings that should be open to the public is sufficient to establish standing in cases based upon alleged violations of the Open Meetings Law … . If the analysis and determination of the Supreme Court were allowed to stand, a petitioner/plaintiff would have to demonstrate an additional personal damage or injury to his or her civil, personal, or property rights in order to assert a violation of the Open Meetings Law. This would, in effect, interject a counterintuitive restriction upon the general citizenry’s access and participatory freedoms to attend certain meetings of a public body. Such a requirement or condition would undermine, erode, and emasculate the stated objective of this statute, which was designed to benefit the citizens of this state and the general commonweal, assure the public’s right to be informed, and prevent secrecy by governmental bodies. Matter of McCrory v Village of Mamaroneck Bd. of Trustees, 2020 NY Slip Op 00864, Second Dept 2-5-20

 

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AN EMAIL EXCHANGE WAS INSUFFICIENT TO RESTART THE STATUTE OF LIMITATIONS FOR AN OTHERWISE TIME-BARRED DEBT PURSUANT TO GENERAL OBLIGATIONS LAW 17-101 (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined that an email exchange did not acknowledge a debt owed to decedent such that the statute of limitations started anew when the exchange took place in 2015. Any action on the debt was time barred:

Jean M. Hollis (hereinafter Jean) died in October 2015, and was survived by six children. Jean’s will, which was admitted to probate in February 2016, provided that “[i]n the event that any of my surviving children shall be indebted to me at the time of my demise, . . . then such indebtedness shall be deducted from any bequest made to said children.” In January 2016, Paul James Hollis (hereinafter the decedent), one of Jean’s children, died, and his wife, Bernadette Hollis (hereinafter Bernadette), was appointed administrator of his estate. In September 2016, the respondent Peter H. Hollis (hereinafter Peter), as an executor of Jean’s estate, filed a notice of claim against the decedent’s estate alleging that it was indebted to Jean’s estate in the sum of $147,265.35, representing the sum of $146,765.35 borrowed by the decedent from Jean between April 2005 and January 2008, and an additional loan made by Jean to the decedent in December 2011 in the sum of $500. …

The subject email arguably acknowledged that the decedent owed a pre-existing debt to Jean, inasmuch as it stated that he had been “informed” by his sister, Jeanine Hollis, that “[he] owe[s] around $140,000 to Mom.” Although the subject email initially stated that “I have every intention of paying this debt,” it then went on to state that “there are some mitigating circumstances that I would like to note sometime in the near future.” In an email sent the next day, the decedent stated “I just want the process to be fair and not arbitrary.” Since the subject email contained language inconsistent with an intention on the part of the decedent to pay the alleged debt, the court erred in concluding that the subject email renewed the statute of limitations pursuant to General Obligations Law § 17-101 … . Matter of Hollis, 2020 NY Slip Op 00860, Second Dept 2-5-20

 

ALTHOUGH DEFENDANT PROVED IT IS ENGAGED IN THE BUSINESS OF LEASING VEHICLES AND THE VEHICLE INVOLVED IN THE TRAFFIC ACCIDENT WAS LEASED AT THE TIME, DEFENDANT DID NOT PROVE THE CONDITION OF THE VEHICLE; THEREFORE DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT UNDER THE GRAVES AMENDMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the truck rental company’s (MTLR’s) motion for summary judgment in this traffic accident case should not have been granted. Although MTLR proved that the truck was rented out at the time of the accident, it failed to offer any proof of the condition of the truck:

… [T]he Graves Amendment provides “that the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle by reason of being the owner of the vehicle for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner)'” … . However, where “a plaintiff seeks to hold a vehicle owner liable for the alleged failure to maintain a rented vehicle” … , the vehicle owner is not afforded protection under the Graves Amendment if it fails to demonstrate that it did not negligently maintain its vehicle … .

Here, MTLR failed to meet its prima facie burden demonstrating its entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it. Although MTLR submitted evidence showing that it owned the subject vehicle, that it was engaged in the business of leasing vehicles, and that the subject accident occurred during the period of the rental … , MTLR failed to submit any admissible evidence demonstrating the condition of the vehicle at the time of delivery or at any time up to the happening of the accident … . Couchman v Nunez, 2020 NY Slip Op 00844, Second Dept 2-5-20

 

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DEFENDANTS RAISED A QUESTION OF FACT ABOUT WHETHER THEY WERE SERVED WITH THE SUMMONS AND COMPLAINT AND PLAINTIFF FAILED TO PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. Defendants raised a question of fact whether they were served with the summons and complaint and plaintiff failed to prove compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304:

… [T]he defendants submitted the affidavit of Vicki Erani, in which she expressly averred that she was never served. She also averred that, on Thursdays, which was the day of the week of the alleged service, she customarily was away from her residence, assisting her mother with errands. The defendants also submitted the affidavit of Vicki Erani’s mother confirming that Vicki Erani spent every Thursday with her. The defendants also submitted evidence that, in 2016, this particular process server’s application to renew his license as an individual process server had been denied by the New York City Department of Consumer Affairs on the basis that he had falsified affidavits of service. The defendants’ submissions rebutted the presumption of proper service established by the process server’s affidavit … . * * *

… [T]he plaintiff failed to establish, prima facie, that it complied with RPAPL 1304 because neither of the affidavits submitted by the plaintiff of two of its vice presidents asserted personal knowledge of the purported mailing and neither vice president made the requisite showing that she was familiar with the plaintiff’s mailing practices and procedures to establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . The plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailing actually happened. 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 … . Citimortgage, Inc. v Erani, 2020 NY Slip Op 00843, Second Dept 2-5-20

 

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DEFENDANT DEFAULTED; SUPREME COURT SHOULD NOT HAVE CONSIDERED LIABILITY ISSUES AT THE INQUEST TO DETERMINE DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have considered issues of liability because defendant had defaulted and thereby admitted liability:

In this action, inter alia, to recover damages for personal injuries, the defendant failed to appear or answer the complaint. In an order … , the Supreme Court granted the plaintiff’s unopposed motion for leave to enter a default judgment against the defendant and directed an inquest on the issue of damages. After conducting the inquest, the court … determined that the plaintiff had failed to establish, prima facie, that the defendant was negligent and that her negligence was a substantial factor in causing the plaintiff’s injuries, and thereupon, sua sponte, directed the dismissal of the complaint.

By defaulting, the defendant admitted “all traversable allegations in the complaint, including the basic allegation of liability” … . As such, the sole issue to be determined at the inquest was the extent of the damages sustained by the plaintiff, and the Supreme Court should not have considered issues of liability … . Arluck v Brezinska, 2020 NY Slip Op 00839, Second Dept 2-5-20

 

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