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PLAINTIFF’S ACTION TO CANCEL AND DISCHARGE THE MORTGAGE ON THE GROUND THAT THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION HAD EXPIRED SHOULD HAVE BEEN DISMISSED, THE BANK UTTERLY REFUTED THE ALLEGATION WITH DOCUMENTS DEMONSTRATING THE DEBT HAD NEVER BEEN ACCELERATED; CLEAR EXPLANATION OF THE REQUIREMENTS FOR DISMISSAL BASED ON DOCUMENTARY EVIDENCE AND ACCELERATION OF A MORTGAGE DEBT (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive dissent, determined that the bank’s (Deutsche Bank’s) motion to dismiss the plaintiff’s RPAPL article 15 action to cancel and discharge the mortgage should have been granted. The bank had started foreclosure proceedings in 2007 and plaintiff alleged in the complaint that the statute of limitations had run. However, the 2007 action had been dismissed because the bank did not have standing at the time it was brought. The Second Department determined the documentary proof of the dismissal of the 2007 action demonstrated, as a matter of law, that the debt had never been accelerated and, therefore, the statute of limitations had never started running. The decision provides a succinct and clear explanation of the requirements for a dismissal based on documentary evidence and the requirements for accelerating a mortgage debt:

… [C]ontrary to the plaintiff’s contention and the opinion of our dissenting colleague, the commencement of the foreclosure action, which was dismissed on the ground that Deutsche Bank lacked standing, was ineffective to constitute a valid exercise of the option to accelerate the debt since Deutsche Bank did not have the authority to accelerate the debt at that time … . The plaintiff did not identify the specific time when the mortgage was actually, legally accelerated. Furthermore, the notices of default were nothing more than letters discussing acceleration as a possible future event, which do not “constitute an exercise of the mortgage’s optional acceleration clause” … . …

Consequently, the allegations in the complaint that the debt was accelerated as of April 30, 2007, the date when Deutsche Bank commenced the underlying foreclosure action, or prior to April 30, 2007, when the notices of default were sent, are utterly refuted by the documentary evidence submitted by Deutsche Bank, which included the written assignment of the mortgage [dated after April 30, 2007) “together with the . . . note” and the October 2009 order [dismissing the foreclosure action], in support of that branch of its motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint … . Moreover, Deutsche Bank, through the evidence it submitted with its motion, demonstrated that the plaintiff’s allegation that the statute of limitations to foreclose the subject mortgage had expired was “not a fact at all,” and that “it can be said that no significant dispute exists regarding it,” warranting dismissal of the complaint pursuant to CPLR 3211(a)(7) … . J & JT Holding Corp. v Deutsche Bank Natl. Trust Co., 2019 NY Slip Op 04366, Second Dept 6-5-19

 

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ALLEGEDLY OPERATING A TREE-TRIMMING BUSINESS WITHOUT A LICENSE AND ENTRUSTING THE TREE-TRIMMING TRUCK TO PLAINTIFF’S CO-WORKER, IF NEGLIGENT, WERE NOT PROXIMATE CAUSES OF PLAINTIFF’S INJURY, THE DANGEROUS CONDITION ON THE TRUCK WHICH CAUSED PLAINTIFF’S INJURY WAS OPEN AND OBVIOUS, AND THE ACCIDENT WAS AN ‘EXTRAORDINARY OCCURRENCE,’ SO THERE WAS NO DUTY TO WARN (SECOND DEPT).

The Second Department determined the allegations that defendants were operating a tree-trimming business without a license and negligently entrusted the tree-trimming to one Perez (with whom plaintiff worked) were not proximate causes of the injury. Plaintiff caught a ring on his finger on a spike on a metal step on the truck and his finger was severed. The court noted that the danger was open and obvious and the accident was an ‘extraordinary occurrence’ so there was no duty to warn:

“Evidence of negligence is not enough by itself to establish liability. It must also be proved that the negligence was [a proximate] cause of the event which produced the harm”… . Thus, ” liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes'” … . Further, “proximate cause is no less essential an element of liability because the negligence charged is premised in part or in whole on a claim that a statute or ordinance . . . has been violated” … .

… [E]ven if the defendants were negligent in operating a tree-trimming business without a license or in lending or renting or entrusting the truck to Perez, such negligent acts only furnished the occasion for the plaintiff’s accident … , but were not a proximate cause of the accident. The defendants additionally demonstrated, prima facie, that they did not have any “special knowledge concerning a characteristic or condition peculiar to [Perez] which render[ed] [his] use of the [truck] unreasonably dangerous,” as is required to establish a negligent entrustment cause of action … . In opposition, the plaintiff failed to raise a triable issue of fact as to either negligence or negligent entrustment.

With respect to the cause of action alleging a violation of the defendants’ duty to warn, the defendants demonstrated … that any danger posed by the stairs was open and obvious and known to the plaintiff from his prior use of the truck … . Moreover, the plaintiff’s accident was an “extraordinary occurrence” … . “[T]here is no duty to warn against an extraordinary occurrence, which would not suggest itself to a reasonably careful and prudent person as one which should be guarded against”… . Deschamps v Timberwolf Tree & Tile Serv., 2019 NY Slip Op 04133, Second Dept 5-29-19

 

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PLAINTIFF SUED DEFENDANT ATTORNEYS ALLEGING INACCURATE ADVICE CAUSED HER TO FILE FOR BANKRUPTCY, BECAUSE THE LEGAL MALPRACTICE ACTION ACCRUED WHEN PLAINTIFF FILED FOR BANKRUPTCY, THE LAWSUIT BECAME PART OF THE BANKRUPTCY ESTATE AND PLAINTIFF WAS THEREBY STRIPPED OF THE CAPACITY TO SUE (SECOND DEPT).

The Second Department determined plaintiff did not have the capacity to sue the defendant attorneys for legal malpractice. The lawsuit alleged the attorneys gave inaccurate advice which caused plaintiff to file for bankruptcy on March 20, 2012. Because plaintiff’s legal malpractice action accrued on the day she filed for bankruptcy, and the lawsuit was not listed as an asset, the lawsuit became part of the bankruptcy estate:

The commencement of a bankruptcy proceeding creates an “estate” that is comprised of “all legal or equitable interests of the debtor in property as of the commencement of the case” (11 USC § 541[a][1]…). “Upon the filing of a voluntary bankruptcy petition, all property which a debtor owns, including a cause of action, vests in the bankruptcy estate” … . “Although federal law determines when a debtor’s interest in property is property of the bankruptcy estate, property interests are created and defined by state law”… . Causes of action that accrue under state law prior to the filing of a bankruptcy petition, as well as those that accrue as a result of the filing, are property of the estate … . “[A] debtor’s failure to list a legal claim as an asset in his or her bankruptcy proceeding causes the claim to remain the property of the bankruptcy estate and precludes the debtor from pursuing the claim on his or her own behalf” … . Burbacki v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 2019 NY Slip Op 04128, Second Dept 5-29-19

 

INSURED DID NOT VIOLATE THE SUM POLICY BY SETTLING WITH THE OTHER DRIVER WITHOUT THE SUM CARRIER’S CONSENT, THE SUM CARRIER WAS INFORMED OF THE SETTLEMENT AND TOOK NO ACTION WITHIN 30 DAYS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the supplementary uninsured/underinsured motorist (SUM) carrier (petitioners) was not entitled to permanently stay arbitration on the ground that the injured party (appellant) had settled with other driver’s carrier without the SUM carrier’s consent. In fact the SUM carrier had notice of the settlement and took no action within 30 days. Therefore the settlement did not violate the SUM carrier’s policy:

… [T]he provisions of language set forth in Insurance Regulation 35-D (see 11 NYCRR 60-2.3), which must be included in all motor vehicle liability insurance policies in which SUM coverage has been purchased, require, inter alia, that where an insured advises the insurer of an offer to settle for the full amount of the tortfeasor’s policy, the insurer must either consent to the settlement or advance the settlement amount to the insured and assume the prosecution of the tort action within 30 days … . Where the insurer does not timely respond in accordance with such condition, the insured may settle with the tortfeasor without the insurer’s consent and without forfeiting his or her rights to SUM benefits … .

… The petitioners’ submissions demonstrated that the appellant executed a release … “after thirty calendar days actual written notice” to the petitioners, as provided for in Condition 10, which is required by Insurance Regulation 35-D to be part of the SUM endorsement. Consequently, the petitioners failed to establish that the appellant settled … in violation of a condition of the policy requiring the petitioners’ consent to settle. Unitrin Direct Ins. Co. v Muriqi, 2019 NY Slip Op 04178, Second Dept 5-29-19

 

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DESIGNATING PETITION PROPERLY INVALIDATED AND THE CANDIDATE’S NAME WAS PROPERLY STRUCK FROM THE PRIMARY BALLOT, THE CANDIDATE’S NAME APPEARED ON DESIGNATING PETITIONS FOR TWO DIFFERENT PUBLIC OFFICES WHICH PRESUMPTIVELY MISLED THE PUBLIC (SECOND DEPT).

The Second Department determined the designating petition was properly invalidated and the candidate’s name (Duffy) was properly removed from the primary ballot. The Second Department noted that the failure to include the index number on the order to show cause and the petition was a mistake which could be disregarded. The index number was on the request for judicial intervention which was served with the order to show cause and petition (CPLR 2001). The Second Department further noted that the petition met the strict pleading requirements for fraud by by virtue of the incorporation of another document (objections) by reference (CPLR 3016 (b) and 3014).:

… [T]he Supreme Court granted the petition to invalidate the petition designating Duffy as a candidate for Council Member and directed that Duffy’s name be removed from the primary ballot. The court found that Duffy and her agents did not intentionally seek to mislead enrolled party voters while gathering designating petition signatures, but that Duffy nevertheless knew that her name appeared simultaneously on two separate designating petitions for two different public offices, which presumptively misled enrolled voters as to which of the two public offices she was truly seeking. The court found that Duffy “failed to rebut this presumption by public action and/or filings in such a manner as to prevent election fraud.” * * *

… [T]he voters were misled, warranting the invalidation of the designating petition for Council Member. In circulating the designating petition for that office, Duffy deleted from the committee’s designating petition the name of a candidate who had been endorsed by the committee, substituted her name for the name of that candidate, and circulated the revised designating petition without the permission of Bouvier, whose name continued to appear on the designating petition. The designating petition, as altered and circulated, was “misleading in suggesting that the various candidates listed intended to run together” as a team … . While a single instance of adding another candidate’s name without consent, standing alone, has been found insufficient to warrant the invalidation of an entire designating petition … , this case involves much more than the mere addition of a name to a designating petition. Here, Duffy affirmatively altered an existing designating petition containing other names by substituting her own name in place of the name of a candidate who had been endorsed by the committee. Moreover, under the circumstances of this case, the problem of misleading voters was compounded by the simultaneous circulation of two designating petitions designating Duffy for two separate public offices … . Matter of Lynch v Duffy, 2019 NY Slip Op 04168, Second Dept 5-29-19

 

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THE CITY ALLOWED THE LOT TO BE USED FOR COMMUNITY GARDENS BUT NEVER UNEQUIVOCALLY DEDICATED THE LOT AS PARKLAND, THEREFORE THE PUBLIC TRUST DOCTRINE DID NOT APPLY AND THE CITY CAN DEVELOP THE LAND (SECOND DEPT).

The Second Department determined land used for a community garden (Lot 142) was never unequivocally dedicated as parkland by the city. Therefore the public trust doctrine did not prohibit the city from developing the land:

Under the public trust doctrine, a land owner cannot alienate land that has been impliedly dedicated to parkland without obtaining the approval of the legislature … . A party seeking to establish such an implied dedication to parkland and thereby successfully challenging the alienation of the land must show that (1) “[t]he acts and declarations of the land owner indicating the intent to dedicate his land to the public use [are] unmistakable in their purpose and decisive in their character to have the effect of a dedication and (2) that the public has accepted the land as dedicated to a public use” … . “It remains an open question whether the second prong . . . applies to a municipal land owner”… . Regardless, “[w]hether a parcel has become a park by implication is a question of fact which must be determined by such evidence as the owner’s acts and declarations, and the circumstances surrounding the use of the land” … . “[I]f a landowner’s acts are equivocal, or do not clearly and plainly indicate the intention to permanently abandon the property to the use of the public, they are insufficient to establish a case of dedication'”… .”The burden of proof rests on the party asserting that the land has been dedicated for public use” … .

Here, the defendants submitted evidence showing that the City’s actions and declarations did not unequivocally manifest an intent to dedicate Lot 142 as parkland. Their exhibits showed that the City permitted the community garden to exist on a temporary basis as the City moved forward with its plans to develop the parcel. Their exhibits also demonstrated that any management of Lot 142 by the City’s Department of Parks and Recreation was understood to be temporary and provisional … . Matter of Coney Is. Boardwalk Community Gardens v City of New York, 2019 NY Slip Op 04162, Second Dept 5-29-19

 

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NO EVIDENCE ICE ON WHICH PLAINTIFF SLIPPED AND FELL WAS FORMED BEFORE THE STORM, DEFENDANT ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the NYC Transit Authority (NYCTA) was entitled to summary judgment in this slip and fall case pursuant to the storm in progress rule. The evidence did not support plaintiff’s allegation that the ice had formed before the storm:

“Under the so-called storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” … . A defendant property owner may establish a prima facie case for summary judgment by presenting evidence that there was a storm in progress when the plaintiff allegedly slipped and fell … .

Here, the evidence that NYCTA submitted in support of its motion, including a transcript of the plaintiff’s testimony at her General Municipal Law § 50-h hearing, a transcript of the plaintiff’s deposition testimony, and certified climatological data, demonstrated, prima facie, that the subject accident occurred while a storm was in progress … . In this regard, the plaintiff testified that it was snowing at the time of the accident, and the certified climatological data confirms that testimony.

In opposition, the plaintiff failed to raise a triable issue of fact. Her contention that she slipped and fell on ice that existed prior to the storm that was in progress on the date of the accident was based on speculation and conjecture … . Indeed, the plaintiff presented no evidence, expert or otherwise, that the ice on which she fell was not produced by the storm in progress on the date of the accident … . Allen v New York City Tr. Auth., 2019 NY Slip Op 04121, Second Dept 5-29-19

 

DESIGNATING PETITION SHOULD HAVE BEEN VALIDATED, SUPREME COURT SHOULD NOT HAVE INVALIDATED TWO SIGNATURES BECAUSE THE CANDIDATE WAS NOT GIVEN THE OPPORTUNITY TO RESPOND TO THE ALLEGATION, MADE DURING CROSS-EXAMINATION AT A HEARING, THAT THE TWO SIGNATURES WERE INVALID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have invalidated two signatures on a designating petition because the candidate, Alfieri, was not given the opportunity to prepare a response to the claim the signatures were invalid. Those two signatures, combined with correcting a miscalculation of the number of signatures made by Supreme Court, gave Alfieri one more than the 1500 signatures required for a valid designating petition:

“The Supreme Court may entertain specific objections to signatures on a designating petition that were not asserted before a board of elections to the extent the [other party] was given adequate notice of which signatures on his or her designating petition are being challenged and the grounds thereof” … . Here, the invalidation petitioners served their bill of particulars raising additional objections …, prior to the commencement of the hearing on the validating and invalidating petitions. Consequently,  Alfieri had adequate notice of the invalidation petitioners’ grounds for objecting to the additional signatures identified in their bill of particulars to enable him to prepare his defense … .

With respect to the challenge of the 2 signatures that first arose during the cross-examination … , Alfieri was not given any notice that the Supreme Court would consider whether those signatures were made by the same person and then compare those signatures to the voters’ buff cards to determine whether the signatures on the designating petition matched those on the buff cards. Since the lack of notice deprived Alfieri of an opportunity to adequately prepare a response as to the validity of those 2 signatures, the court should not have invalidated those 2 signatures … . Matter of Alfieri v Bravo, 2019 NY Slip Op 04159, Second Dept 5-29-19

 

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WAIVER OF APPEAL INVALID, COURT NOT BOUND BY PURPORTED COMMITMENT TO A PARTICULAR SENTENCE AT THE TIME OF THE PLEA, PRESENTENCE REPORT INADEQUATE, SENTENCE REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s sentence and remitting for resentencing, determined defendant’s waiver of appeal was invalid and the sentencing court did not have sufficient information about the defendant at the time of sentencing. The presentence investigation report was incomplete, in part because there was no interpreter available. The Second Department further determined that the sentencing court could not be bound by a purported commitment to the prosecutor at the time of the plea to impose a particular sentence:

Given the defendant’s inexperience with the criminal justice system, the Supreme Court’s terse colloquy at the plea allocution was insufficient to advise the defendant of the nature of the right to appeal … . There is no indication in the record that the defendant understood the distinction between the right to appeal and the other trial rights that are forfeited incident to a plea of guilty … . Although the defendant signed a written waiver of the right to appeal, nothing in the record demonstrates that the document was translated for the defendant, who required the use of a Sinhala interpreter, before it was presented to him for signature … . …

“…. [A] sentence negotiated prior to the plea, and in most cases prior to receipt of a presentence report, does not automatically become the sentence of the court” … . The determination of an appropriate sentence requires the court to exercise its discretion “after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … . …

Most troubling … is that in preparing the presentence investigation report for the Supreme Court in advance of sentencing, the Department of Probation did not interview the defendant because it was “unable to secure an interpreter” on two scheduled dates for an interview. Thus, the presentence investigation report does not contain any information regarding the defendant’s mental status, educational background, employment history, or military background. The report indicates that the defendant’s physiological health was “unknown,” and that his psychological condition was “unavailable.” Even though the Department of Probation did not interview the defendant, the report indicates that the defendant “reported no use of controlled substances and/or alcohol.”

Under the circumstances here, the information contained in the record of the plea proceeding, the sentencing proceeding, and the presentence investigation report was insufficient for a sentencing court to exercise discretion in determining an appropriate sentence. People v Pelige, 2019 NY Slip Op 04204, Second Dept 5-29-19

 

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ALLEGED ASSAULT BY DOCTOR WAS OUTSIDE THE SCOPE OF THE DOCTOR’S EMPLOYMENT BY DEFENDANT HOSPITAL, THE ACTION AGAINST THE HOSPITAL PURSUANT TO THE DOCTRINE OF RESPONDEAT SUPERIOR SHOULD HAVE BEEN DISMISSED, TIME FOR SUMMARY JUDGMENT MOTION STARTED ANEW AFTER THE NOTE OF ISSUE WAS VACATED, FAILURE TO ATTACH PLEADINGS TO MOTION FOR SUMMARY JUDGMENT NOT FATAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this third-party assault case against the defendant hospital based upon an alleged sexual assault by an employee-doctor should have been dismissed. Because the alleged assault and battery was not in furtherance of defendant’s business, the doctrine of respondeat superior did not apply. The Second Department noted that the defendant’s motion for summary judgment was not untimely because the note of issue had been vacated, which started the time for summary judgment anew. The Second Department also noted that the failure to attach the pleadings to the motion for summary judgment was not fatal because they were attached to the reply:

Pursuant to CPLR 3212(b), a court will grant a motion for summary judgment when, viewing the evidence in the light most favorable to the opponent of the motion, it determines that the movant’s papers justify holding, as a matter of law, that the cause of action has no merit. “The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment” … . “An employee’s ations fall within the scope of employment where the purpose in performing such actions is to further the employer’s interest, or to carry out duties incumbent upon the employee in furthering the employer’s business'” … . “An act is considered to be within the scope of employment if it is performed while 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” … . Thus, where an employee’s actions are taken for wholly personal reasons, which are not job related, the challenged conduct cannot be said to fall within the scope of employment … .

A sexual assault perpetrated by an employee is not in furtherance of an employer’s business and is a clear departure from the scope of employment, having been committed for wholly personal motives … . Here, the evidence submitted by the defendants demonstrated that the doctor’s alleged conduct was not in furtherance of St. John’s business and was a departure from the scope of his employment, having been committed for wholly personal motives … . Montalvo v Episcopal Health Servs., Inc., 2019 NY Slip Op 04158, Second Dept 5-29-19

 

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