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JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED A PRELIMINARY INJUNCTION IN THIS TRADEMARK INFRINGEMENT CASE, CORPORATE OFFICERS PROPERLY SUED IN THEIR INDIVIDUAL CAPACITIES (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that defendants’ motion to dismiss the trademark infringement, trademark dilution and unfair competition causes of action was properly denied. The court noted that the complaint properly alleged torts by defendants in their individual capacities without alleging facts supporting piercing the corporate veil. The Second Department held that the judge, sua sponte, should not have granted the preliminary injunction:

” [P]reliminary injunctive relief is a drastic remedy which will not be granted unless a clear right thereto is established under the law and the undisputed facts upon the moving papers, and the burden of showing an undisputed right rests upon the movant'” … . “As a general rule, the decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court” … . “In exercising that discretion, the Supreme Court must determine if the moving party has established: (1) a likelihood of success on the merits, (2) irreparable harm in the absence of an injunction, and (3) a balance of the equities in favor of the injunction” … . ” [A]bsent extraordinary circumstances, a preliminary injunction will not issue where to do so would grant the movant the ultimate relief to which he or she would be entitled in a final judgment'” … .

The plaintiff did not request a preliminary injunction  … [T]he record in this case lacks evidence establishing, among other things, irreparable harm or extraordinary circumstances warranting a preliminary injunction that would, in effect, depart from the status quo and grant the plaintiff its ultimate relief … . The evidence at this stage further fails to demonstrate that the plaintiff possesses a likelihood of success on the merits … . The court therefore improvidently exercised its discretion in sua sponte awarding preliminary injunctive relief to the plaintiff. Emanuel Mizrahi, DDS, P.C. v Angela Andretta, DMD, P.C., 2019 NY Slip Op 02315, Second Dept 3-27-19

 

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PLAINTIFF’S PROOF OF STANDING IN THIS FORECLOSURE ACTION WAS NOT IN ADMISSIBLE FORM, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence that the plaintiff had standing in this foreclosure action did not meet the requirements of the business records exception to the hearsay rule and plaintiff’s summary judgment motion should not have been granted:

In support of its motion, the plaintiff relied on the affidavit of Gabriel De Souza, a contract management coordinator for Ocwen Loan Servicing, LLC (hereinafter Ocwen), which serviced the subject mortgage for the plaintiff. De Souza indicated that his knowledge of this case was based on his “review of the business records,” and asserted that the plaintiff was “in possession of the Note at the time of commencement of this action.” He did not indicate that the business records of the plaintiff had been incorporated into Ocwen’s business records. Moreover, the plaintiff failed to demonstrate the admissibility of the assertions made by De Souza or the records relied upon by him under the business records exception to the hearsay rule (see CPLR 4518[a] … ). Inasmuch as the plaintiff’s motion was based on evidence that was not in admissible form, it failed to establish its prima facie entitlement to judgment as a matter of law … . Deutsche Bank Natl. Trust Co. v Lee, 2019 NY Slip Op 02313, Second Dept 3-27-19

 

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COURT SHOULD HAVE INQUIRED INTO FATHER’S ELIGIBILITY FOR ASSIGNED COUNSEL IN THE CONTEMPT PROCEEDINGS STEMMING FROM FATHER’S FAILURE TO PAY CHILD SUPPORT, FATHER WAS DEPRIVED OF HIS RIGHT TO COUNSEL, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, ordering a new hearing, determined father was deprived of is right to counsel in a contempt proceeding stemming from his failure to pay child support:

A respondent in a contempt proceeding before the Family Court “has the right to the assistance of counsel,” including “the right to have counsel assigned by the court” if “he or she is financially unable to obtain the same” (Family Ct Act § 262[a]). “Where a party indicates an inability to retain private counsel, the court must make inquiry to determine whether the party is eligible for court-appointed counsel” … . “The deprivation of [a parent’s] fundamental right to counsel requires reversal, without regard to the merits of [his or] her position” … .

We agree with the father’s contention that he was deprived of his right to counsel. After the Support Magistrate adjourned the hearing for the express purpose of allowing the father to retain counsel, the father appeared at the next hearing date without counsel and informed the Support Magistrate that he could not afford to hire an attorney because he had lost his job following the last court date. The Support Magistrate should have inquired into the father’s current financial circumstances, including his expenses, to determine whether he had become eligible for assigned counsel … . After the matter was referred to the Family Court, the court should have inquired into the father’s financial circumstances, including his expenses, to determine whether he was eligible for assigned counsel in light of his contention that he could not afford to retain an attorney because he was unemployed … . Although the court later assigned the father an attorney, the court failed to provide the “attorney a reasonable opportunity to appear,” as the court assigned the attorney midway through the final court appearance, after the fact-finding hearing had concluded, after the Support Magistrate had made its credibility and factual findings, and after the court had decided to incarcerate the father … . Indeed, the court denied the assigned attorney’s request for an adjournment … . Matter of Worsdale v Holowchak, 2019 NY Slip Op 02104, Second Dept 3-20-19

 

THERE WAS NO SHOWING THAT THE ALLEGEDLY DISABLED PERSON WAS NOT COMPETENT IN 2015 WHEN THE SHORT FORM POWER OF ATTORNEY WAS EXECUTED, THEREFORE THE ATTORNEY-IN-FACT HAD THE AUTHORITY TO CREATE A SUPPLEMENTAL NEEDS TRUST FOR THE ALLEGEDLY DISABLED PERSON (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the short form power of attorney executed in 2015 by Delaney, an allegedly disabled person, was valid and allowed the attorney-in-fact, Pacchiana, to set up a supplemental needs trust for Delaney:

To be valid, a statutory short form power of attorney must “[b]e signed and dated by a principal with capacity, with the signature of the principal duly acknowledged in the manner prescribed for the acknowledgment of a conveyance of real property” (General Obligations Law § 5-1501B[1][b] … ). “Capacity” is defined as the “ability to comprehend the nature and consequences of the act of executing and granting, revoking, amending or modifying a power of attorney, any provision in a power of attorney, or the authority of any person to act as agent under a power of attorney” (General Obligations Law § 5-1501[2][c]). “A party’s competence to enter into a transaction is presumed, even if the party suffers from a condition affecting cognitive function, and the party asserting incapacity bears the burden of proof'” … . “The incapacity must be shown to exist at the time the pertinent document was executed” … . Such incapacity was not shown here … .

Pacchiana, as Delaney’s attorney-in-fact, had the authority to commence a proceeding in the Surrogate’s Court for the creation of a supplemental trust in Delaney’s behalf (see General Obligations Law § 5-1502H …). Matter of Delaney, 2019 NY Slip Op 02090, Second Dept 3-20-19

 

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PRIOR PUBLIC USE DOCTRINE PRECLUDED CONDEMNATION OF LAND ALREADY SUBJECT TO A PUBLIC USE BECAUSE THE PROPOSED USE WOULD INTERFERE WITH THE EXISTING PUBLIC USE (SECOND DEPT).

The Second Department, reversing the condemnation of a parcel of land owned by the city, determined that the proposed new use of the land would interfere with its current public use as a bus depot, a violation of the prior public use doctrine:

… [T]he proposed condemnation is prohibited under the doctrine of prior public use. Under the doctrine of prior public use, land already devoted to a public use may not be condemned absent legislative authority for the particular acquisition at issue … . However, land already devoted to a public use may be condemned without legislative authority ” where the new use would not materially interfere with the initial use'” … . The Agency does not contest that the subject parcel is devoted to a public use, or that there exists no legislative authority for the proposed condemnation … . Thus, the subject parcel may not be condemned unless the new use would not materially interfere with the existing public use … .

The Agency’s proposed condemnation of the subject parcel for the purpose of returning the parcel to productive use in furtherance of urban renewal would materially interfere with its existing public use as a bus depot. … Accordingly, the Agency’s determination to condemn the subject parcel must be rejected. Matter of City of New York v Yonkers Indus. Dev. Agency, 2019 NY Slip Op 02087, Second Dept 3-20-19

 

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DEFENDANT DID NOT ELIMINATE QUESTIONS OF FACT CONCERNING WHETHER IT HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE ALLEGEDLY DANGEROUS CONDITION IN THIS ESCALATOR SLIP AND FALL CASE, ANY CONFLICT IN PLAINTIFF’S TESTIMONY DID NOT RENDER IT INCREDIBLE AS A MATTER OF LAW, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in the escalator slip and fall case should not have been granted:

The defendant’s submissions, which included a transcript of the plaintiff’s deposition testimony, failed to eliminate all triable issues of fact as to whether the defendant had actual or constructive notice of the allegedly dangerous condition of the escalator steps … . Furthermore, the plaintiff testified at his deposition that he slipped and fell on a wet step while he was riding an escalator. In light of this testimony, it cannot be said that the plaintiff was unable to identify the cause of his accident … . Contrary to the defendant’s contention, the plaintiff’s deposition testimony was not incredible as a matter of law, and any conflict in the testimony or evidence presented merely raised an issue of fact for the factfinder to resolve … . Kerzhner v New York City Tr. Auth., 2019 NY Slip Op 02077, Second Dept 3-20-19

 

DEFENDANT DRIVER HAD ONLY TWO SECONDS TO REACT TO FORKLIFT WHICH ENTERED THE ROADWAY BLOCKING THE RIGHT-OF-WAY, DRIVER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, NO COMPARATIVE NEGLIGENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver was entitled to summary judgment in this traffic accident case. Defendant driver (Kim) had only two seconds to react when a forklift entered the roadway blocking the right-of-way:

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . A driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield to the driver with the right-of-way … . A driver traveling with the right-of-way may nevertheless be found partially responsible for an accident if he or she did not use reasonable care to avoid the accident. “Although a driver with a right-of-way . . . has a duty to …  use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … .

Here, Kim established his prima facie entitlement to judgment as a matter of law by demonstrating that the driver of the forklift negligently entered the roadway mid-block from in front of a parked truck without yielding the right-of-way to Kim, and that such negligence was the sole proximate cause of the accident. The evidence submitted in support of the motion … demonstrated that Kim had, at most, two seconds to react before the forklift struck the passenger side of his vehicle. Thus, Kim demonstrated that he was not negligent for failing to avoid colliding with the forklift … . Jeong Sook Lee-Son v Doe, 2019 NY Slip Op 02073, Second Dept 3-20-19

 

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S EXPERT’S AFFIDAVIT WAS CONCLUSORY AND SPECULATIVE AND IMPROPERLY RAISED AN ISSUE NOT DISCERNABLE FROM THE PLAINTIFF’S BILL OF PARTICULARS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice action should have been granted because the plaintiff’s expert affidavit was conclusory and speculative. The court noted that plaintiff’s expert raised an issue that was not discernable from the plaintiff’s bill of particulars and therefore should not have been considered:

…[T]he defendant established his prima facie entitlement to judgment as a matter of law by submitting an expert affirmation indicating that the treatment and care given to the plaintiff by the defendant on May 13, 2013, did not deviate from accepted community standards of practice, that the plaintiff’s infection, which occurred more than four months after that visit, was too remote in time to have been proximately caused by the defendant’s treatment, and that the defendant had the plaintiff’s informed consent for the procedure.

In opposition, the plaintiff submitted, inter alia, an affirmation of her expert, who opined that the defendant did not follow the good and accepted podiatric standard of care because although the defendant tested the plaintiff’s foot pulse and found it to be low, the defendant did not refer the plaintiff to a vascular surgeon. We agree with the defendant that this assertion was not readily discernable from the allegations in the plaintiff’s bill of particulars, and, thus, was a new theory of liability that should not have been considered by the Supreme Court … . Iodice v Giordano, 2019 NY Slip Op 02072, Second Dept 3-20-19

 

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DEFECTIVE A-FRAME LADDER ENTITLED PLAINTIFF TO SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION, STATEMENTS IN MEDICAL RECORDS WERE INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department determined plaintiff was entitled to summary judgment in this Labor Law 240 (1) action. Plaintiff fell from an A-frame ladder which had a defective locking mechanism. The court noted that the evidence in the medical records did not raise a question of fact because the statements in the records were not admissible. The hearsay statements were not attributable to the plaintiff and had nothing to do with treatment:

The plaintiff’s deposition testimony established, prima facie, that the defendant, as the general contractor, violated Labor Law § 240(1) by providing a ladder with a defective lock, which caused the ladder to collapse and the plaintiff to fall to the ground … .

… [T]he notations in the hospital records upon which the defendant relies were not attributed to the plaintiff. As the defendant failed to offer evidence sufficiently connecting the plaintiff to the statements in the hospital records, the party admission exception to the hearsay rule does not apply … . Moreover, none of the notations were germane to the plaintiff’s diagnosis or treatment and, at trial, would not be admissible for their truth under the business records exception to the hearsay rule (see CPLR 4518 … ). While hearsay statements may be used to oppose motions for summary judgment, they cannot, as here, be the only evidence submitted to raise a triable issue of fact … . Gomez v Kitchen & Bath by Linda Burkhardt, Inc., 2019 NY Slip Op 02070, Second Dept 3-20-19

 

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NONPARTY SUBPOENA PROPERLY QUASHED BECAUSE IT DID NOT PROVIDE THE REASONS FOR THE REQUESTED DISCLOSURE, QUESTIONS OF FACT WHETHER STIPULATION OF SETTLEMENT WAS UNCONSCIONABLE AND WHETHER PLAINTIFF EXECUTED THE STIPULATION UNDER DURESS (SECOND DEPT).

The Second Department, modifying Supreme Court in this divorce action, determined: (1) the subpoena for a nonparty was defective because the reasons for the disclosure were not provided; (2) the stipulation of settlement was not demonstrated to be unconscionable as a matter of law; and (3) there were questions of fact whether the stipulation was signed under duress:

Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty where the matter sought is material and necessary to the prosecution or defense of an action … . A party seeking discovery from a nonparty must apprise the nonparty of the circumstances or reasons requiring disclosure (see CPLR 3101[a][4] … ). Here, we disagree with the Supreme Court’s determination that the testimony sought from the nonparty was utterly irrelevant [the nonparty was a women with whom defendant allegedly had an affair]. However, we agree with the court’s determination that the subpoenas were defective since, among other things, the defendant failed to provide the nonparty with the required explanation of the circumstances or reasons requiring disclosure either on the face of the subpoenas or in any accompanying material (see CPLR 3101[a][4] … ). Accordingly, we agree with the court’s granting of the nonparty’s motion to quash the subpoenas. Gandham v Gandham, 2019 NY Slip Op 02069, Second Dept 3-20-19

 

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