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LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT).

The Second Department determined the motion to vacate a default judgment was properly denied because the law-office-failure excuse was insufficient:

” A party seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1), and thereupon to serve a late answer, must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action'” … . “Where a delay or default results from law office failure, a court may exercise its discretion to excuse that delay or default” (…see CPLR 2005). A claim of law office failure should be supported by a “detailed and credible” explanation of the default … . “[M]ere neglect” …  or “[b]are allegations of incompetence on the part of prior counsel”…  are insufficient to establish a reasonable excuse … .

Here, in support of their motion, the corporate defendants submitted an affidavit … , which alleged, without supporting evidence, that prior retained counsel had not informed him of the need to answer the complaint. Such a bare allegation is insufficient to establish a reasonable excuse for the corporate defendants' default … . Ferraro Foods, Inc. v Guyon, Inc., 2018 NY Slip Op 06515, Second Dept 10-3-18

CIVIL PROCEDURE (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 2005 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/DEFAULT JUDGMENT  (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/ATTORNEYS (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/LAW OFFICE FAILURE  (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT))

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DEFENDANT’S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant's motion to cancel and discharge the mortgage based upon the expiration of the statute of limitations should have been granted. The court noted that Supreme Court's imposition of an equitable mortgage was improper under the facts:

RPAPL 1501(4) provides that “[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage . . . has expired,” any person with an estate or interest in the property may maintain an action “to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom”… .

Here, the defendant established her prima facie entitlement to judgment as a matter of law on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge the mortgage by demonstrating that more than six years had passed since the mortgage was accelerated and therefore this foreclosure action was time-barred … . The plaintiff did not raise a triable issue of fact in opposition … . Thus, the Supreme Court should have granted that branch of the defendant's cross motion which was for summary judgment on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge the mortgage (see CPLR 213[4]; RPAPL 1501[4]…).

We disagree with the Supreme Court's determination to impose an equitable mortgage in favor of the plaintiff. The plaintiff never requested this relief, and the defendant was not afforded any notice nor an opportunity to be heard on this issue which amounted to a denial of the defendant's due process rights … . In any event, the doctrine of equitable mortgage is inapplicable to the circumstances of this case, where a legal written mortgage existed … . 21st Mtge. Corp. v Nweke, 2018 NY Slip Op 06509, Second Dept 10-3-18

FORECLOSURE (DEFENDANT'S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, DEFENDANT'S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, DEFENDANT'S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT))/EQUITABLE MORTGAGE  (DEFENDANT'S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT))

ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER’S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that, although defendants received timely notice of a lawsuit, they were never served with the summons and complaint. The affidavit of the process server demonstrated due diligence in a failure to serve defendants, residents of Israel, at a New York address. The default judgment, therefore, was a nullity:

CPLR 317 applies where a defendant was served by means other than personal delivery, did not receive notice of the action, and has a potentially meritorious defense… . Here, the defendants claimed they were never served. Therefore, they sought to vacate the default judgment against them pursuant to CPLR 5015(a)(4) for lack of personal jurisdiction. On this point, the affidavit of service of a process server generally constitutes prima facie evidence of proper service… . In this case, however, the process server submitted affidavits of exercising due diligence to attempt service, not affidavits of service.

If service is not made, the default judgment is a nullity … . If a defendant is not served, “notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court”… .

Since the defendants were not served, the defendants' motion to vacate so much of the judgment entered December 19, 2013, as was in favor of the plaintiff and against them in the principal sum of $676,928.23, and to dismiss the complaint insofar as asserted against them should have been granted. 2004 McDonald Ave. Corp. v KGYM Holdings Group, Inc., 2018 NY Slip Op 06508, Second Dept 10-3-18

CIVIL PROCEDURE (ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))/CPLR 317 (ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))/CPLR 5015  (ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))/DEFAULT JUDGMENT (CIVIL PROCEDURE, ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))/SERVICE OF PROCESS  (ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER'S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT))

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MOTION TO SET ASIDE THE CONVICTION PROPERLY DENIED, EVIDENCE IN AN UNSWORN PRESENTENCE REPORT DID NOT MEET THE STATUTORY CRITERIA FOR THE MOTION (SECOND DEPT).

The Second Department determined defendant's motion to set aside his conviction was properly denied. The defendant argued that the complainant's version of events as stated in the presentence report was newly discovered evidence because it differed from the complainant's trial testimony. The court held that the unsworn presentence report did not meet the statutory requirements for a motion to set aside a conviction:

The “power to grant a new trial on the ground of newly discovered evidence is of statutory origin and strict compliance with the statute is necessary” … . In support of the defendant's motion, he submitted his attorney's affirmation, to which the attorney attached a copy of the presentence report. However, the presentence report did not satisfy the requirement that the defendant submit sworn allegations in support of his motion (see CPL 330.40[2][a]).

A presentence report does not contain sworn allegations. Indeed, probation officers are directed, in preparing their report, to include “an analysis of as much of the information gathered in the investigation as the agency that conducted the investigation deems relevant to the question of sentence” (CPL 390.30[3][a]). It is not mandated, nor expected, that a presentence report include a verbatim account of the complainant's words. Indeed, some presentence reports do not contain victim impact statements. The presentence report is not sworn to by the probation officer who prepares the report. Accordingly, while a presentence report is deemed generally reliable for sentencing purposes, its information “need not always be credited” and at best constitutes “reliable hearsay” … .

Since the “moving papers [did] not contain sworn allegations of all facts essential to support the motion,” the Supreme Court was able to make its determination on the basis of the motion papers and, thus, did not err in failing to hold a hearing … . People v Windsor, 2018 NY Slip Op 06576, Second Dept 10-3-18

CRIMINAL LAW (MOTION TO SET ASIDE THE CONVICTION PROPERLY DENIED, EVIDENCE IN AN UNSWORN PRESENTENCE REPORT DID NOT MEET THE STATUTORY CRITERIA FOR THE MOTION (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, MOTION TO SET ASIDE THE CONVICTION PROPERLY DENIED, EVIDENCE IN AN UNSWORN PRESENTENCE REPORT DID NOT MEET THE STATUTORY CRITERIA FOR THE MOTION (SECOND DEPT))

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DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined defendant was improperly sentenced as a second felony offender. The issue was not preserved but was reviewed in the interest of justice:

The predicate felony statement filed by the People did not set forth the dates of the defendant’s incarceration since the commission of his prior felony in 1996, as required by CPL 400.21(2). Consequently, the People failed to establish a sufficient tolling period to qualify the defendant’s 1996 conviction as a predicate felony under Penal Law § 70.06(1)(b)(iv) and (v) … . People v Spencer, 2018 NY Slip Op 06574, Second Dept 10-3-18

CRIMINAL LAW (DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT))/SENTENCING  (DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT))/SECOND FELONY OFFENDER  (DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT))

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JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT’S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT).

The Second Department, reversing defendant's conviction, determined the jury should have been instructed on a lesser included offense, evidence of defendant's pretrial silence should not have been admitted, and there was misconduct on the part of the prosecutor. The prosecutorial misconduct issues were not preserved, but the issues were reviewed in the interest of justice. The prosecutorial misconduct alone justified reversal:

… [C]riminally negligent homicide, in addition to manslaughter in the second degree, is a lesser included offense of manslaughter in the first degree … , and, viewing the evidence in the light most favorable to the defendant, should have been charged. Had the jury credited the defendant's account of the incident, it reasonably could have concluded that the defendant did not intend to cause serious physical injury and that he failed to perceive that his conduct created a substantial and unjustifiable risk that death would occur … . …

… [T]the defendant correctly contends that the trial court erred in permitting the prosecutor to question him about his post-arrest silence, because, although the defendant initially responded to certain questions asked by the police, he effectively invoked his right to remain silent and offered no information regarding the essential facts of his involvement in the crime … . …

The defendant's contention that he was denied a fair trial due to the prosecutor's improper comments during summation is, for the most part, unpreserved for our review (see CPL 470.05[2]). However, we reach the issue as a matter of discretion in the interest of justice … . The prosecutor engaged in misconduct throughout his summation, inter alia, by continuously referring to the defendant as a liar, misstating evidence, denigrating the defense, shifting the burden of proof, attempting to arouse the sympathies of the jurors, and vouching for his witnesses' credibility … . The cumulative effect of the prosecutor's improper comments deprived the defendant of a fair trial … . People v Flores, 2018 NY Slip Op 06557, Second Dept 10-3-18

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/APPEALS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/LESSER INCLUDED OFFENSES (JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/PROSECUTORIAL MISCONDUCT  (JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))/INTEREST OF JUSTICE (CRIMINAL LAW, APPEALS, JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT'S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT))

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CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT).

The Second Department determined evidence of prior domestic abuse was properly admitted in this criminal contempt proceeding. The court explained the criteria for the admission of evidence of uncharged crimes and bad acts (Molineux evidence):

“[E]vidence of a defendant's uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant's propensity to commit the crime charged” … . Even where there is a proper nonpropensity purpose, “the decision whether to admit evidence of defendant's prior bad acts rests upon the trial court's discretionary balancing of probative value and unfair prejudice” … . Thus, “[a]dmissibility of evidence under these principles is determined by reference to a two-part inquiry . . . The first level of this inquiry requires the proponent of the evidence, as a threshold matter, to identify some issue, other than mere criminal propensity, to which the evidence is relevant . . . Once such a showing is made, the court must go on to weigh the evidence's probative worth against its potential for mischief to determine whether it should ultimately be placed before the fact finder. This weighing process is discretionary, but the threshold problem of identifying a specific issue, other than propensity, to which the evidence pertains poses a question of law”… .

Contrary to the defendant's contention, the County Court did conduct the requisite “two-part inquiry.” The court determined that evidence of the defendant's prior acts of abuse against the complainant were admissible “as relevant background material regarding the defendant's relationship with the complainant, to explain the issuance of a temporary order of protection, and as evidence of the defendant's motive and intent in the commission of the charged crimes” … . The court then concluded that the probative value of the evidence outweighed any prejudice to the defendant …. Furthermore, the court gave the jury appropriate limiting instructions, to which defense counsel did not object, as to the limited purpose for which that evidence was received … . People v Bittrolff, 2018 NY Slip Op 06551, Second Dept 10-3-18

CRIMINAL LAW (EVIDENCE, CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT)/MOLINEUX (CRIMINAL LAW, CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT))/UNCHARGED CRIMES AND BAD ACTS (CRIMINAL LAW, EVIDENCE, CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT))

SERVICE OF CLAIM BY REGULAR MAIL VIOLATED COURT OF CLAIMS ACT SECTION 11, CLAIM PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the claim in this traffic accident case was properly dismissed because it was served by regular mail:

On March 16, 2011, the claimant was driving on Sunrise Highway and, after missing his exit, attempted to cut across the strip of land separating Sunrise Highway from the exit ramp, losing control of his vehicle and sustaining injuries. After being granted permission to file a late notice of claim, the claimant served the claim on the State of New York by regular mail. The State moved for summary judgment dismissing the claim on the ground that service was improper, as it was not made in accordance with Court of Claims Act § 11. The claimant cross-moved for the court to deem its notice of claim timely served nunc pro tunc. The Court of Claims granted the motion and denied the cross motion. The claimant appeals, and we affirm.

We agree with the Court of Claims' determination to grant the State's motion for summary judgment dismissing the claim, as the claim was improperly served upon the State by regular mail rather than by personal service or certified mail as required by Court of Claims Act § 11 … . Costello v State of New York, 2018 NY Slip Op 06227, Second Dept 9-25-18

COURT OF CLAIMS (SERVICE OF CLAIM BY REGULAR MAIL VIOLATED COURT OF CLAIMS ACT SECTION 11, CLAIM PROPERLY DISMISSED (SECOND DEPT))/CIVIL PROCEDURE (SERVICE OF CLAIM BY REGULAR MAIL VIOLATED COURT OF CLAIMS ACT SECTION 11, CLAIM PROPERLY DISMISSED (SECOND DEPT))

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ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT).

The Second Department determined the action based upon exposure to lead in utero was properly dismissed. Plaintiff alleged his father’s clothes were saturated with lead at work:

At common law, employers have a duty to provide a safe workplace, but this duty has been limited to employees (see Labor Law § 200…). It has not, as the plaintiff contends, been extended to encompass individuals who were not employed at the worksite such as the plaintiff or his mother during her pregnancy … .

While “[a] landowner generally must exercise reasonable care, with regard to any activities which he carries on, for the protection of those outside of his premises'” … , the facts alleged in this case differ from those to which a landowner’s duty to exercise reasonable care for the protection of individuals off site has been held to extend … .

Contrary to the plaintiff’s contention, the alleged violations of Occupational Safety and Health Administration (hereinafter OSHA) regulations … , the Occupational Health and Safety Act of 1970 , specifically 29 USC § 654(a), and Labor Law § 27-a do not constitute negligence per se. The violation of OSHA regulations provides only evidence of negligence … . Moreover, neither the plaintiff nor his mother during her pregnancy belonged to the class intended to be protected by OSHA or its implementing regulations, 29 USC § 654(a), or Labor Law § 27-a, namely employees … . Campanelli v Long Is. Light. Co., 2018 NY Slip Op 06225, Second Dept 9-26-18

NEGLIGENCE (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/LABOR LAW-CONSTRUCTION LAW  (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/LABOR LAW (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/TOXIC TORTS  (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/ENVIRONMENTAL LAW  (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))

THE DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR STRIKING PLAINTIFF’S VEHICLE (SECOND DEPT).

The Second Department determined defendant in this rear-end collision case did not raise a question of fact about whether there was a nonnegligent explanation for striking plaintiff's vehicle:

… [T]he defendants submitted the affidavit of the defendant driver, which failed to provide a nonnegligent excuse for striking the rear of the plaintiff's vehicle. The defendant driver averred that the plaintiff's vehicle struck a vehicle in front of it and came to a short stop. According to the defendant driver, there was heavy, stop-and-go traffic at the time, and the vehicle he was operating was traveling approximately 5 to 10 miles per hour and was approximately 20 feet behind the plaintiff's vehicle when the plaintiff's vehicle stopped short. The defendant driver asserted that he could not stop his vehicle in time to avoid the impact. “While a nonnegligent explanation for a rear-end collision may include evidence of a sudden stop of the lead vehicle, vehicle stops which are foreseeable under the prevailing traffic conditions must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her vehicle and the vehicle ahead” … . Given the traffic conditions as related by the defendant driver, his assertion that the plaintiff's vehicle came to a sudden stop was insufficient to raise a triable issue of fact as to whether there was a nonnegligent explanation for the collision between the plaintiff's vehicle and the defendants' vehicle … . Arslan v Costello, 2018 NY Slip Op 06221, Second Dept 9-26-18

NEGLIGENCE (THE DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR STRIKING PLAINTIFF'S VEHICLE (SECOND DEPT))/TRAFFIC ACCIDENTS (THE DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR STRIKING PLAINTIFF'S VEHICLE (SECOND DEPT))/REAR-END COLLISIONS (THE DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR STRIKING PLAINTIFF'S VEHICLE (SECOND DEPT))

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