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DECEDENT DIED INTESTATE, COTENANTS’ INTERESTS IN THE REAL PROPERTY VESTED UPON DEATH, COTENANTS COULD THEREFORE CONVEY THEIR INTERESTS IN THE PROPERTY, SURROGATE’S COURT SHOULD NOT HAVE SET ASIDE DEEDS (SECOND DEPT). ​

The Second Department, reversing Surrogate’s Court, determined deeds executed by decedent’s cotenants should not have been set aside. Because decedent died intestate, the cotenants’ interests in the real property vested upon death and the cotenants could validly convey their interests in the property:

The Surrogate’s Court should not have granted those branches of the petition which sought to set aside the subject deeds and to determine that title to the subject property was vested in the decedent’s estate. When the decedent died intestate, title to the subject property automatically vested in her distributees as tenants in common … . “[W]hen a cotenant who has a partial interest in real property executes a deed that purports to convey full title to the property, the deed is not entirely void; rather, the deed is effective, but only to the extent of conveying the grantor’s interest in the property” … . Matter of Blango, 2018 NY Slip Op 07721, Second Dept 11-14-18

REAL PROPERTY LAW (DECEDENT DIED INTESTATE, COTENANTS’ INTERESTS IN THE REAL PROPERTY VESTED UPON DEATH, COTENANTS COULD THEREFORE CONVEY THEIR INTERESTS IN THE PROPERTY, SURROGATE’S COURT SHOULD NOT HAVE SET ASIDE DEEDS (SECOND DEPT))/TRUSTS AND ESTATES (REAL PROPERTY, COTENANTS, DECEDENT DIED INTESTATE, COTENANTS’ INTERESTS IN THE REAL PROPERTY VESTED UPON DEATH, COTENANTS COULD THEREFORE CONVEY THEIR INTERESTS IN THE PROPERTY, SURROGATE’S COURT SHOULD NOT HAVE SET ASIDE DEEDS (SECOND DEPT))/TENANTS IN COMMON (TRUSTS AND ESTATES, COTENANTS’ INTERESTS IN THE REAL PROPERTY VESTED UPON DEATH, COTENANTS COULD THEREFORE CONVEY THEIR INTERESTS IN THE PROPERTY, SURROGATE’S COURT SHOULD NOT HAVE SET ASIDE DEEDS (SECOND DEPT))/TRUSTS AND ESTATES (REAL PROPERTY LAW, COTENANTS’ INTERESTS IN THE REAL PROPERTY VESTED UPON DEATH, COTENANTS COULD THEREFORE CONVEY THEIR INTERESTS IN THE PROPERTY, SURROGATE’S COURT SHOULD NOT HAVE SET ASIDE DEEDS (SECOND DEPT))/DEEDS (TRUSTS AND ESTATES, TENANTS IN COMMON, COTENANTS’ INTERESTS IN THE REAL PROPERTY VESTED UPON DEATH, COTENANTS COULD THEREFORE CONVEY THEIR INTERESTS IN THE PROPERTY, SURROGATE’S COURT SHOULD NOT HAVE SET ASIDE DEEDS (SECOND DEPT))

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LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT).

The Second Department affirmed Family Court’s denial of father’s petition for downward modification of maintenance and support and the rejection of father’s claim he was denied effective assistance of counsel. The court noted that father did not demonstrate he was not at fault for losing his job and that, because father did not have a right to counsel for these proceedings, he was required to show extraordinary circumstances in support of his ineffective assistance claim:

A party seeking a downward modification of his or her spousal maintenance and child support obligations set forth in a judgment of divorce must establish a substantial change in circumstances … . Loss of employment may constitute a substantial change in circumstances where the termination occurred through no fault of the party seeking modification and he or she diligently sought re-employment commensurate with his or her earning capacity… . Here, the father failed to establish that the termination of his employment did not occur though his own fault … , or that he diligently sought new employment commensurate with his qualifications and experience. Accordingly, we agree with the Family Court’s denial of the father’s objections to the Support Magistrate’s finding that the father was not entitled to a downward modification of his support obligations… .

The father contends that he was deprived of the effective assistance of counsel. Since the father did not have the right to assigned counsel in this support modification proceeding… , he must establish the existence of extraordinary circumstances in order for his claim of ineffective assistance of counsel to be entertained… . Here, the father failed to establish the existence of any extraordinary circumstances to warrant entertaining such a claim … . Matter of Berg v Berg, 2018 NY Slip Op 07720, Second Dept 11-14-18

FAMILY LAW (MAINTENANCE, SUPPORT, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/MAINTENANCE (FAMILY LAW, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/SUPPORT FAMILY LAW, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/ATTORNEYS (FAMILY LAW, INEFFECTIVE ASSISTANCE, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (FAMILY LAW, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/RIGHT TO COUNSEL (FAMILY LAW, INEFFECTIVE ASSISTANCE, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))

ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing Family Court, determined that the Family Court judge exhibited bias against the father in this maintenance and support arrears proceeding and the matter was remitted to Family Court before a different judge. Although father had completed the period of incarceration imposed, the commitment order was deemed appealable because of the stigma attached to violating support obligations. The court noted that father should have pbjected and moved to recuse the judge to preserve the bias claim, but the court considered the argument in the interest of justice:

“[W]hen a claim of bias is raised, the inquiry on appeal is limited to whether the judge’s bias, if any, unjustly affected the result to the detriment of the complaining party'” … . Here, the record reflects that when the parties appeared before the Family Court Judge, the Judge took an adversarial stance toward the father and made numerous improper remarks to him … . The Judge told the father, among other things, that he “symbolizes everything that’s wrong with the world today,” and that he was “[s]elfish, self-interested, [and] self-seeking.” The Judge repeated similar remarks multiple times during the proceeding. The Judge also called the father “lazy” and “arrogant,” and remarked that he was “the last guy that [the Judge would] want to be in a fox hole with” because he would “fold like a cheap suit.” The Judge compared the father’s accumulation of arrears to “an arsonist that starts a fire that kills one person, that kills ten.” Additionally, the Judge made the matter personal by comparing the father’s experiences to the Judge’s own. For instance, the Judge described his own past misfortune, and detailed how he picked himself up to became a judge. At the conclusion of the proceeding, the Judge committed the father to four times the period of incarceration recommended by the Support Magistrate. Under the circumstances, the bias of the Family Court Judge apparently unjustly affected the result of the proceeding to the detriment of the father. Matter of Berg v Berg, 2018 NY Slip Op 07719, Second Dept 11-14-18

FAMILY LAW (JUDICIAL BIAS, APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/JUDGES (BIAS, APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/APPEALS (JUDICIAL BIAS, PRESERVATION, ACADEMIC APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/STIGMA (APPEALS, FAMILY LAW, ACADEMIC APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/INTEREST OF JUSTICE  (JUDICIAL BIAS, APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/BIAS (JUDGES, FAMILY LAW, APPEALS, , ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))

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QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the continuous representation doctrine tolled the statute of limitations. Defendant attorney (Weiss) were hired by plaintiff to bring a personal injury action. The legal malpractice action was filed more than three years after the statute had run on the personal injury case:

The complaint alleged that after the plaintiff executed the retainer agreement, Weis informed the plaintiff that the defendants were going to commence a personal injury and products liability action against the owner of the table saw, the manufacturer of the table saw, and ” everyone that touched the table saw'” until it was sold to the homeowner; the personal injury claim was ” worth millions of dollars'”; and it “would take up to seven (7) years to resolve” the personal injury claim. The complaint further alleged that from approximately September 2008 to late 2008, the plaintiff contacted Weis approximately every two weeks to inquire about the status of the personal injury claim. Weis allegedly advised the plaintiff to ” put the case on the back burner as it was going to take a long time to resolve,'” and that Weis ” had the plaintiff’s contact information,'” and ” if he needed the plaintiff, he would contact him.'” The complaint also alleged that between approximately late 2008 and July 2014, the plaintiff called the defendants’ law office every six to eight months to check on the status of the personal injury claim and spoke to a secretary each time. The complaint alleged that on July 29, 2014, the plaintiff went to the defendants’ office and asked Weis “when his court date was” because “it was getting close” to the seven-year “anniversary of the accident.” Weis allegedly told the plaintiff that he had ” no case,'” and that Weis thought the plaintiff had ” disappeared.'” …

… [T]the plaintiff raised a question of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations until July 29, 2014, when Weis allegedly informed the plaintiff that he did not have a case. Upon entering into the retainer agreement, the plaintiff and the defendants reasonably intended that their professional relationship of trust and confidence, focused upon the personal injury claim, would continue. The complaint adequately alleged that the plaintiff was “left with the reasonable impression” that the defendants were, “in fact, actively addressing [his] legal needs” until that date. The allegations in the complaint failed to reflect, as a matter of law, that the plaintiff knew or should have known that the defendants had withdrawn from representation on the personal injury claim more than three years before the legal malpractice action was commenced … . Schrull v Weis, 2018 NY Slip Op 07769, Second Dept 11-14-18

LEGAL MALPRACTICE (QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))/CIVIL PROCEDURE (LEGAL MALPRACTICE, CONTINUOUS REPRESENTATION DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))/CONTINUOUS REPRESENTATION DOCTRINE (LEGAL MALPRACTICE, QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))/ATTORNEYS (LEGAL MALPRACTICE, CONTINUOUS REPRESENTATION DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, CONTINUOUS REPRESENTATION DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT))

DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER THERE EXISTS A NONNEGLIGENT EXPLANATION FOR THIS REAR END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear end collision case should not have been granted. Although plaintiff made out a prima facie case (because there is no longer any need to demonstrate freedom from comparative fault in the motion papers), defendant alleged plaintiff suddenly changed lanes and stopped suddenly:

The plaintiff is no longer required to show freedom from comparative fault in order to establish his prima facie entitlement to judgment as a matter of law on the issue of liability… . A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle … . However, the inference of negligence may be rebutted by evidence that the accident was caused by the lead vehicle abruptly changing lanes in front of the rear vehicle and then slowing down or coming to a sudden stop … .

Here, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability. Although the plaintiff submitted evidence that his vehicle was struck in the rear by the defendants’ vehicle, he also submitted the deposition testimony of the defendant driver that the plaintiff’s vehicle changed lanes abruptly in front of defendants’ vehicle and then came to a sudden stop. Under these circumstances, the plaintiff’s submissions failed to eliminate triable issues of fact as to whether the defendant driver was negligent. The deposition testimony of the defendant driver, if true, would constitute a nonnegligent explanation for the rear-end collision into the plaintiff’s vehicle … . Any inconsistencies in the deposition testimony of the defendant driver, and the other evidence submitted in support of the motion, did not render the defendant driver’s deposition testimony incredible as a matter of law or unworthy of belief, but rather, raised issues of credibility to be resolved by the factfinder … . Merino v Tessel, 2018 NY Slip Op 07717, Second Dept 11-14-18

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER THERE EXISTS A NONNEGLIGENT EXPLANATION OF THIS REAR END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS ( DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER THERE EXISTS A NONNEGLIGENT EXPLANATION OF THIS REAR END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAR END COLLISIONS (DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER THERE EXISTS A NONNEGLIGENT EXPLANATION OF THIS REAR END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT).

The Second Department determined plaintiff’s motion for leave to file a late notice of claim was properly granted. Apparently plaintiff had fallen. The ambulance call report, prepared by defendants, indicated that plaintiff had limited response in her lower body. Plaintiff was rendered a partial quadriplegic. Expert opinions submitted in support of the motion were based upon a review of the ambulance report and concluded that plaintiff should have been immobilized and her injuries would not have been so severe if she had been immobilized. The Second Department explained that where malpractice is apparent from and independent review of the records, the records constitute timely actual knowledge of the essential facts constituting the claim:

While the ambulance call report, without more, does not establish actual knowledge of a potential injury where the record does not evince that the medical staff, by its acts or omissions, inflicted any injury … , where malpractice is apparent from an independent review of the medical records, those records constitute “actual notice of the pertinent facts” … . Here, the plaintiff submitted the expert opinions of Paul Werfel and Robert E. Todd. Werfel, a certified paramedic and professor of clinical emergency medicine at Stony Brook University, reviewed the medical records, including the appellants’ ambulance report. In his affidavit, Werfel stated that, in his “opinion to a reasonable degree of EMT standards,” Rescue Squad “failed to use spinal precautions and/or follow required EMT protocols as it relates to mobilizing and placing a patient on a stretcher who has a high index of having sustained a spinal cord injury.” Werfel further averred that Rescue Squad and NDP failed to comply with required protocols when transferring the plaintiff to the hospital. … Inasmuch as the ambulance report, upon independent review, suggested injury attributable to malpractice, it provided the appellants with actual knowledge of the essential facts constituting the claim … .

Furthermore, the plaintiff made an initial showing that the appellants were not prejudiced by the delay in serving a notice of claim inasmuch as the appellants acquired actual knowledge of the essential facts of the claim via their own ambulance report … . Ballantine v Pine Plains Hose Co., Inc., 2018 NY Slip Op 07697, Second Dept 11-14-18

NEGLIGENCE (MEDICAL MALPRACTICE, MUNICIPAL LAW, WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))/MEDICAL MALPRACTICE (MUNICIPAL LAW, WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))/MUNICIPAL LAW (NOTICE OF CLAIM, NEGLIGENCE, MEDICAL MALPRACTICE, WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))/EVIDENCE (LATE NOTICE OF CLAIM, MUNICIPAL LAW, NEGLIGENCE, MEDICAL MALPRACTICE,  WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))/NOTICE OF CLAIM  (MUNICIPAL LAW, WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))

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VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant employer should not have been allowed to amend its answer to assert a release from liability for plaintiff’s injury based on plaintiff’s signing a “Volunteer Agreement.” The Volunteer Agreement purported to release the employer from any liability for injury to plaintiff on the job. Plaintiff was struck by a forklift operated by defendant’s employee. The release violated public policy:

While leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b] …), here, the proposed amendment was patently devoid of merit … . New York courts have long found agreements between an employer and an employee attempting to exonerate the employer from liability for future negligence whether of itself or its employees or limiting its liability on account of such negligence void as against public policy … .

As observed by the Court of Appeals more than a century ago, “[t]he state is interested in the conservation of the lives and of the healthful vigor of its citizens, and if employers could contract away their responsibility at common law, it would tend to encourage on their part laxity of conduct in, if not an indifference to, the maintenance of proper and reasonable safeguards to human life and limb” … . Contrary to the defendant’s contentions, the public policy considerations applicable to paid employees also apply to a volunteer employee, such as the plaintiff herein. The purported release contained in the “Volunteer Agreement” is void as against public policy. Richardson v Island Harvest, Ltd., 2018 NY Slip Op 07768, Second Dept 11-14-18

EMPLOYMENT LAW (VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CONTRACT LAW (EMPLOYMENT LAW, VOLUNTEER AGREEMENT, RELEASE FROM LIABILITY, VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (EMPLOYMENT LAW, VOLUNTEER AGREEMENT, RELEASE FROM LIABILITY, VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/RELEASE (NEGLIGENCE, EMPLOYMENT LAW, VOLUNTEER AGREEMENT, RELEASE FROM LIABILITY, VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/VOLUNTEER AGREEMENT (EMPLOYMENT LAW, VOLUNTEER AGREEMENT, RELEASE FROM LIABILITY, VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (AMEND ANSWER, VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3025 (AMEND ANSWER, (EMPLOYMENT LAW, VOLUNTEER AGREEMENT, RELEASE FROM LIABILITY, VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/ANSWER (AMEND, (EMPLOYMENT LAW, VOLUNTEER AGREEMENT, RELEASE FROM LIABILITY, VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court determined plaintiff should have given defendant the opportunity to cure an inadvertent failure to make a monthly payment pursuant to stipulation of settlement. Defendant had repaid much of the debt and, based on the default, would owe more than twice the amount that remained to be paid:

… Supreme Court should have granted the alternate branch of the defendant’s motion, which was, in effect, to preclude the plaintiff from enforcing the default provision of the stipulation without affording the defendant a reasonable opportunity to cure his default. “Under almost any given state of facts, where to enforce a stipulation would be unjust or inequitable or permit the other party to gain an unconscionable advantage, courts will afford relief” … .

Here, the defendant’s default was inadvertent and minor in nature when measured against the harsh result that would be obtained upon literal enforcement of the default provision in the stipulation… . Insofar as the plaintiff failed to offer the defendant any opportunity to cure his default before seeking to recover the full amount due under the judgment, the plaintiff’s conduct could be interpreted as an attempt to take advantage of a technical default to obtain payment of the far greater sum which the plaintiff had originally sought, but agreed to forgo as part of the settlement … . RCS Recovery Servs., LLC v Mensah, 2018 NY Slip Op 07766, Second Dept 11-14-18

DEBTOR-CREDITOR (DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT))/STIPULATION OF SETTLEMENT (DEBTOR-CREDITOR, DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT))/LOANS  (DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT))/DEFAULT (LOAN PAYMENTS, DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT))/CURE (LOANS, DEFAULT, DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT))/CONTRACT LAW (STIPULATION OF SETTLEMENT, DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT))

, , ,

UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the shareholder derivative action against HSBC (bank) alleging breach of a fiduciary duty to implement money laundering prevention safeguards should not have been dismissed. The nominal defendant, HSBC Holdings, is organized under the laws of the United Kingdom and is headquartered in London. The motion to dismiss alleged the failure to seek permission for the action from the English High Court, as well as the failure to demonstrate the futility of seeking redress from the corporation, and the doctrine of forum non conveniens, required dismissal of the complaint. The Second Department held that the rule requiring permission of the English court was procedural and therefore the law of the forum (New York), not the United Kingdom, applied. The Second Department further held that the complaint demonstrated the futility of first seeking redress from the corporation and New York was the proper forum:

… [T]he Court of Appeals decided Davis v Scottish Re Group Ltd. (30 NY3d 247), which held that a Cayman Islands court rule requiring plaintiffs in shareholder derivative actions to first apply to the Cayman Islands Grand Court for leave to continue the action is a procedural rule of the Cayman Islands, and “therefore does not apply where, as here, a plaintiff seeks to litigate his derivative claims in New York” … . … Based upon the analysis set forth in Davis, we find that the judicial-permission requirement set forth in the UK Companies Act is a procedural rule applicable only in England and Wales, or Northern Ireland. …

As an alternative ground for affirmance … , the nominal defendants contend that the plaintiff lacks standing under New York law pursuant to Business Corporation Law § 626(c) because the amended complaint fails to allege that the plaintiff made efforts to secure initiation of the action by the board itself or set forth the reasons for not making such effort … . * * *

In view of the illegal purpose, magnitude, and duration of the alleged wrongdoing, as well as the identity of beneficiaries to the transactions, the allegations were such that the transactions should have come to the attention of senior management and the board of directors … . * * *

… [G]iven that the allegations of wrongdoing occurred in New York, that only 21 of the 75 individual defendants live and work outside of New York, and that 3 of the nominal defendants are either incorporated or headquartered in New York, the Supreme Court providently exercised its discretion in determining that the nominal defendants were not entitled to dismissal on the ground of forum non conveniens [CPLR 327]. Mason-Mahon v Flint, 2018 NY Slip Op 07716, Second Dept 11-14-18

CORPORATION LAW (UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/CIVIL PROCEDURE (CORPORATION LAW, UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/BANKING LAW  (UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/FIDUCIARY DUTY (CORPORATION LAW, UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/SHAREHOLDER DERIVATIVE ACTION (UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/MONEY LAUNDERING (BANKING LAW, UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/CPLR 327  (UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/BUSINESS CORPORATION LAW 626 (UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))

,

EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conspiracy conviction, determined the evidence of defendant’s participation was legally insufficient:

… [T]he People in this case were required, inter alia, to establish that the defendant entered into an agreement that was specifically intended to result in the death of Friday (count one) and Morris (count two) … . While the record evidence, viewed in the light most favorable to the People, showed that the defendant conspired with others to retaliate against rival gang members for the recent shooting death of a member of the S.N.O.W. Gang, there was no direct or circumstantial evidence tying this defendant to any plan specifically intended to kill either Friday or Morris. Among other things, the defendant was not present at an alleged planning meeting in a park, at which many of the coconspirators were arrested. Moreover, the defendant is not listed as a participant in any social media discussions in which other S.N.O.W. Gang members named Friday and Morris as possible targets for retaliatory action. For this reason, the defendant’s timely motion for a trial order of dismissal should have been granted, and the indictment dismissed insofar as asserted against him … . People v Lucas, 2018 NY Slip Op 07755, Second Dept 11-14-18

CRIMINAL LAW (EVIDENCE, CONSPIRACY, EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, CONSPIRACY, EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONSPIRACY (EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/LEGALLY INSUFFICIENT EVIDENCE (CRIMINAL LAW, EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRIAL ORDER OF DISMISSAL (CRIMINAL LAW, EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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