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MORTGAGE WAS NOT ACCELERATED UNTIL THE FORECLOSURE ACTION WAS COMMENCED IN OCTOBER 2016; ACTION FOR THE INSTALLMENT PAYMENTS MISSED DURING THE SIX YEARS PRIOR TO OCTOBER 2016 IS TIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the mortgage was not accelerated until the foreclosure action was commenced in October, 2016. Therefore the action was not time-barred, except for the mortgages payments due but not paid more than six years prior to October 2016 (missed payments prior to October 2010):

… [C]ontrary to the defendant’s contention, he did not establish that the complaint should be dismissed on statute of limitations grounds through the notices sent to the defendant in February 2009 and May 2009, as those notices did not accelerate the mortgage. The notices indicated that acceleration was a possible future event, but did not constitute an exercise of the mortgage’s acceleration clause … . Rather, the mortgage was only accelerated in October 2016, when the plaintiff served the foreclosure complaint on the defendant seeking immediate payment of the balance of the principal indebtedness. Thus, the Supreme Court should not have granted dismissal of the complaint in its entirety as time-barred. Specifically, the defendant failed to show that the causes of action in the complaint, insofar as they relate to unpaid mortgage installments which accrued within the six-year period immediately preceding the plaintiff’s October 2016 commencement of this foreclosure action, to wit, the unpaid installments which accrued on or after October 6, 2010, were time-barred … .

However, where, as here, the mortgage was payable in installments, there are “separate causes of action for each installment accrued, and the Statute of Limitations [begins] to run, on the date each installment [becomes] due” … . Therefore, since the plaintiff alleged that the defendant made his last payment on mortgage in January 2009 and this action was not commenced until October 6, 2016, the defendant established that any unpaid installments of the mortgage which accrued before the six-year period prior to the plaintiff’s commencement of this mortgage foreclosure action, to wit, unpaid installments from January 2009 through October 5, 2010, are time-barred … . Ditech Fin., LLC v Reiss, 2019 NY Slip Op 06208, Second Dept 8-21-19

 

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PARTY AND ITS ATTORNEYS ORDERED TO PAY SANCTIONS FOR FAILING TO INFORM THE APPELLATE COURT OF THE SETTLEMENT OF ACTIONS ON APPEAL (SECOND DEPT).

The Second Department imposed sanctions on a party and its attorneys for failure to inform the appellate court of the settlement of matters on appeal:

… Gross Polowy, LLC, trial counsel for the respondent, is directed to pay a sanction in the [*2]sum of $1,000 to the Lawyers’ Fund for Client Protection of the State of New York … . …

… Day Pitney, LLP, appellate counsel for the respondent, is directed to pay a sanction in the sum of $250 to the Lawyers’ Fund for Client Protection of the State of New York … . …

… Bank of New York Mellon is directed to pay a sanction in the sum of $500, and shall deposit the sum of $500 with the Clerk of this Court for transmittal to the Commissioner of Taxation and Finance … . Bank of N.Y. Mellon v Smith, 2019 NY Slip Op 06228, Second Dept 8-13-19

 

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DEFENDANT SHOULD NOT HAVE BEEN DESIGNATED A PREDICATE SEX OFFENDER BASED UPON A MICHIGAN CONVICTION OF “BREAKING AND ENTERING AN OCCUPIED DWELLING WITH THE INTENT TO COMMIT CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE” (SECOND DEPT).

The Second Department determined defendant should not have been classified as a predicate sex offender based upon a Michigan conviction of breaking and entering an occupied dwelling with the intent to commit criminal sexual conduct in the second degree:

Supreme Court should not have, in effect, designated the defendant a predicate sex offender based upon his 1983 Michigan conviction. Where the prior conviction was in a jurisdiction other than New York State, the offense in the other jurisdiction must include all of the essential elements of a crime enumerated as a “sex offense” or “sexually violent offense” in the Correction Law or must require registration as a sex offender in the jurisdiction in which the conviction occurred  … . Although the crime of breaking and entering an occupied dwelling with the intent to commit criminal sexual conduct in the second degree in Michigan is equivalent to the offense of burglary in the second degree in New York … , burglary is not classified by the Correction Law as a “sex offense” or a “sexually violent offense” … , and the People did not rely on the 1983 Michigan conviction as constituting a sexually motivated felony. Moreover, the crime of which the defendant was convicted in 1983 is not considered a sex offense requiring registration as a sex offender in Michigan … . Accordingly, the designation of the defendant as a predicate sex offender was improper … . People v Smith, 2019 NY Slip Op 06181, Second Dept 8-21-19

 

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ALTHOUGH THE MEDICAL MALPRACTICE ACTION WAS COMMENCED IN DECEDENT’S NAME AFTER DECEDENT HAD DIED, THE ACTION WAS NOT A NULLITY AND WAS PROPERLY REVIVED WITHIN SIX MONTHS PURSUANT TO CPLR 205 (a); SUPREME COURT SHOULD NOT HAVE DISMISSED THE COMPLAINT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court and ruling on some issues of first impression, determined plaintiffs’ medical malpractice action should not have been dismissed. The decision is too detailed and comprehensive to be fairly summarized here. The medical malpractice action was started in 2013 in decedent’s name three months after decedent’s death. Supreme Court erroneously declared that action a nullity. The order dismissing the 2013 action did not include the reasons for the dismissal as is required by the statute. In a later order, Supreme Court attempted to supply the missing reason as “neglect to prosecute.” The Second Department held that the 2013 action was not a nullity and it was properly revived within six months of the dismissal. The subsequent attempt to provide the reason for the dismissal as “neglect to prosecute,” which would preclude reviving the action within six months, was ineffective. The Second Department’s summary of its holding states:

The plaintiff, pursuant to CPLR 205(a), was entitled to commence this action upon the termination of the 2013 action. The order dated November 6, 2015, directing the dismissal of the 2013 action did not set forth on the record a specific pattern of conduct constituting a neglect to prosecute required by CPLR 205(a) to preclude the commencement of subsequent litigation against the defendants, the plaintiff’s nonviable substitution motion does not constitute evidence of neglect to prosecute, and the erroneous naming of the decedent as a plaintiff in the 2013 action does not preclude the application of CPLR 205(a). In addition, CPLR 5019(a) is inapplicable, as the June 6, 2016, order cannot be utilized to substantively change the order dated November 6, 2015.

Accordingly, the judgment entered August 23, 2016, is reversed, on the law, the complaint is reinstated … . Sokoloff v Schor, 2019 NY Slip Op 06176, Second Dept 8-21-19

 

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TRIAL EVIDENCE SUPPORTED THE RULING THAT TWO FACIALLY AMBIGUOUS RELEASES EXECUTED BY PRIOR OWNER OF THE GAS STATION APPLIED TO THE CONTAMINATION OF THE PROPERTY BY LEAKED GASOLINE; THE CURRENT OWNER OF THE GAS STATION COULD NOT, THEREFORE, RECOVER THE CLEANUP COSTS FROM THE DEFENDANT GASOLINE SUPPLIER (SECOND DEPT).

The Second Department determined the trial evidence supported the ruling that two facially ambiguous releases executed by the (a gasoline supplier) and the former owner of the gas station precluded an action by plaintiff, the current owner of the gas station, to recover from defendant plaintiff’s expenditures for the cleanup of leaked gasoline.:

Where a releasee asserts a lack of liability based upon a general release, the burden of proof is on the releasor to show that “the general language of the release, valid on its face and properly executed, is to be limited because of a mutual mistake, or otherwise does not represent the intent of the parties” … . ” [I]t is not a prerequisite to the enforceability of a release that the releasor be subjectively aware of the precise claim he or she is releasing'” … . Thus, at a trial encompassing an assertion by a defendant that it is not liable for the damages claimed by the plaintiff due to a general release that contains equivocal language, rendering it ambiguous on its face, the plaintiff must be afforded an opportunity to establish that the releases were not intended to deprive him or her of the claimed damages … .

Here, although the releases were ambiguous on their faces as to whether they encompassed unknown claims for environmental contamination, the plaintiff failed to adduce evidence at the trial sufficient to support a finding that they did not, whereas the defendant adduced evidence showing that the releases were intended to be general releases. Burnside 711, LLC v Amerada Hess Corp., 2019 NY Slip Op 06165, Second Dept 8-21-19

 

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ZONING BOARD DID NOT CONSIDER ALL THE STATUTORY FACTORS; DENIAL OF APPLICATION FOR VARIANCES TO ALLOW NEW CONSTRUCTION ANNULLED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the zoning board did not consider all the statutory factors before rejecting Ressa-Cibants’ request for variances for new construction:

In determining whether to grant an area variance, a village zoning board must weigh the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community (see Village Law § 7-712-b[3][b] …). In making that determination, the board must consider: “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created; which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (Village Law § 7-712-b[3][b] … ).

Here, the record does not reflect that the Board weighed the benefit to Ressa-Cibants against the detriment to the health, safety, and welfare of the neighborhood by considering the five factors enumerated in the Village Law § 7-712-b(3)(b) … . In particular, the Board’s determinations do not reflect that the Board considered whether there was no feasible method to achieve the benefit sought by Ressa-Cibants without height and coverage area variances. Matter of Pangbourne v Thomsen, 2019 NY Slip Op 06159, Second Dept 8-21-19

 

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QUESTIONS OF FACT WHETHER THE “LAUNCH AN INSTRUMENT OF HARM” ESPINAL EXCEPTION APPLIED TO A CONTRACTOR AND WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE CONDITION ALLEGED TO HAVE CAUSED PLAINTIFF’S SLIP AND FALL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether defendant contractor launched an instrument of harm in this slip and fall case. Plaintiff alleged she tripped on a piece of masonite that had been placed over concrete that had just been poured. There was also a question of fact whether the property owner had constructive notice of the condition:

The … defendants’ submissions failed to eliminate all triable issues of fact as to whether Howell launched a force or instrument of harm through the failure to exercise reasonable care when its employee laid the subject masonite over the area of the floor where the self-leveling concrete had been poured … . …

The evidence proffered by the … defendants failed to demonstrate, prima facie, that the [defendants] lacked constructive notice of a hazardous condition on the premises. During an examination before trial, [defendant’s] operations director was asked about his inspection tour of the mall on the morning of the plaintiff’s fall. His repeated descriptions of what he “normally would” do and “probably would have” done are ambiguous as to whether he is describing a specific inspection, or merely describing general inspection policies and practices … . Pinto v Walt Whitman Mall, LLC, 2019 NY Slip Op 06157, Second Dept 8-21-19

 

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DEFENDANTS DID NOT SUBMIT THEIR CERTIFICATE OF INCORPORATION AND THE PRINTOUT FROM THE DEPARTMENT OF STATE WAS NOT IN ADMISSIBLE FORM; DEFENDANTS’ MOTION TO CHANGE VENUE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to change venue was not supported by admissible evidence and should have been denied:

“To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff’s choice of venue is improper and that its choice of venue is proper” … . To succeed on their motion here, the defendants were obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in Kings County … . Only if the defendants made such a showing were the plaintiffs required to establish, in opposition, via documentary evidence, that the venue they selected was proper … .

Here, the defendants failed to submit their certificate of incorporation. Contrary to the defendants’ contention, the computer printout they submitted in support of their motion from the website of the New York State Department of State, Division of Corporations was inadmissible, since it was not certified or authenticated, and it was not supported by a factual foundation sufficient to demonstrate its admissibility as a business record … . Therefore, the defendants failed to meet their initial burden of demonstrating that their principal office was located in Nassau County and that the plaintiffs’ choice of venue in Kings County was improper … . O.K. v Y.M. & Y.W.H.A. of Williamsburg, Inc., 2019 NY Slip Op 06156, Second Dept 8-21-19

 

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FAILURE TO PAY TAXES UNDER PROTEST PRECLUDES AN ACTION TO RECOVER THE PAYMENTS WHEN THE RELEVANT TAX RULE IS INVALIDATED (SECOND DEPT).

The Second Department determined plaintiff’s putative class action to have Nassau County disgorge fees collected pursuant to the Nassau County Administrative Code for tax map certification letters issued by the County Clerk for real estate closings was properly dismissed. It is not explicitly stated, but apparently the taxing rule under which the fees were collected had been invalidated at some point:

“The settled law is that the payment of a tax or fee cannot be recovered subsequent to the invalidation of the taxing statute or rule, unless the taxpayer can demonstrate that the payment was involuntary” … . Where the payment is “necessary to avoid threatened interference with present liberty of person or immediate possession of property, the failure to formally protest will be excused” … . “Further, where the payment of a tax or fee is based on a material mistake of fact, the payment may be recovered even if it was made without protest” … .

Here, it is undisputed that the plaintiff did not pay the fees under protest. Falk v Nassau County, 2019 NY Slip Op 06202, Second Dept 8-21-19

 

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DEFENDANT TRANSIT AUTHORITY’S NEGLIGENCE FURNISHED THE CONDITION FOR PLAINTIFF’S DECEDENT’S DEATH BUT WAS NOT THE CAUSE OF HIS DEATH, DEFENDANT’S MOTION TO SET ASIDE THE SUBSTANTIAL VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the substantial plaintiff’s verdict in this wrongful death case should have been set aside. It was alleged that the NYS Transit Authority was negligent in failing to make sure all passengers were off the subway train when the train reached the end of the line, requiring that it be repositioned in the relay tunnel. Plaintiff’s decedent, who was intoxicated, remained on the train. At some point he fell from the train in the relay tunnel and was killed:

… [V]iewing the evidence in the light most favorable to the plaintiffs, there is no valid line of reasoning and permissible inferences which could possibly lead rational people to conclude that the defendants’ alleged negligence was a proximate cause of the decedent’s injuries and death … . Even assuming that the defendants’ employees were negligent in failing to remove the decedent from the train before it was taken into the subject relay tunnel, the defendants’ negligence merely furnished the condition or occasion for the occurrence of the decedent’s fall from the train …  rather than being one of its proximate causes. While the record evidence supports the plaintiffs’ theory that the decedent was in the area between the two northernmost subway cars when he fell to the tracks below, the circumstances that led the decedent to be in that area, and the cause of the fall itself, remain unknown and, therefore, speculative … . Williams v New York City Tr. Auth., 2019 NY Slip Op 06187, Second Dept 8-21-19

 

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