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ALTHOUGH THE PARTIES WERE DIVORCED IN COLORADO, THEY AND THEIR CHILDREN RESIDE IN NEW YORK; THE SUPPORT MAGISTRATE SHOULD NOT HAVE APPLIED COLORADO LAW IN DETERMINING FATHER’S SUPPORT OBLIGATION (SECOND DEPT).

The Second Department, reversing Family Court, determined the support magistrate should not have applied Colorado law. Although the parties were divorced in Colorado, the parties and the children all reside in New York:

“The Uniform Interstate Family Support Act . . . , ‘adopted in New York as article 5-B of the Family Court Act, grants continuing, exclusive jurisdiction over a child support order to the state that issued the order'” … . “As relevant herein, the issuing state loses such jurisdiction where none of the parties or children continue to reside in that state” … . Here, it is undisputed that the parties and their children reside in New York and that the mother registered the Colorado support order in this state. Thus, the Family Court, Westchester County, had jurisdiction to adjudicate the proceeding … .

Further, Family Court Act § 580-613(b) provides that, in a modification proceeding brought pursuant to section 580-613(a), the court “shall apply . . . the procedural and substantive law of this state” … . Here, the Support Magistrate improperly applied Colorado law in calculating the father’s modified support obligation … . Accordingly, the Family Court should have granted the mother’s objections. Matter of O’Connor v Shaw, 2024 NY Slip Op 06046, Second Dept 12-4-24

Practice Point: Here the parties were divorced in Colorado but they and their children reside in New York. New York has jurisdiction over the support proceedings. The Support Magistrate should not have applied Colorado law to the support calculation.

 

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THE MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM AND THE MOTION FOR LEAVE TO RENEW SHOULD HAVE BEEN GRANTED IN THIS MEDICAL MALPRACTICE ACTION AGAINST THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (NYCHHC); CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for leave to file a late notice of claim against the New York City Health and Hospitals Corporation (NYCHHC) for medical malpractice, as well as the motion for leave to renew based upon recently disclosed medical records, should have been granted:​

… [P]etitioner established a reasonable excuse for the delay, to wit, the serious medical condition of the infant, which required hospitalization of the infant after his birth, feeding through a feeding tube, and numerous medical appointments while the condition of the infant was being assessed … . Considering the overall circumstances, including the petitioner’s natural predisposition to be more concerned with the infant’s medical condition and the treatment those injuries required, rather than with commencing legal action during the prescribed time period, the delay in serving a late notice of claim should have been excused … . Further, in support of that branch of the petitioner’s motion which was for leave to renew the petition, the petitioner submitted her medical records and an expert’s affidavit, which established that NYCHHC had actual knowledge of the essential facts constituting the claim since the alleged malpractice was apparent from an independent review of the medical records … . The medical records were not submitted earlier because, although the petitioner sought her medical records in August 2022, she only received those records on December 22, 2022 … . Further, the medical records were voluminous.

Since the conduct at issue was fully documented in the medical records, the petitioner made an initial showing that NYCHHC was not prejudiced by the delay in serving the notice of claim … , and, in response, the NYCHHC made no showing of prejudice. ​​​​​Matter of Bergado v New York City Health & Hosps. Corp., 2024 NY Slip Op 06039, Second Dept 12-4-24

Practice Point: Here the mother of the injured infant proffered an adequate excuse for failing to timely file a notice of claim in this medical malpractice action against the NYC Health and Hospitals Corporation (NYCHHC) and demonstrated the NYCHHC had timely notice of the nature of the action and suffered no prejudice from the delay through the medical records.

Practice Point: The motion for leave to renew was properly based upon mother’s recent receipt of medicals records not previously provided.

 

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THE JUDGE SHOULD NOT HAVE DENIED THE MOTION TO DISMISS THE ARTICLE 78 PETITION/COMPLAINT AND THEN CONSIDERED THE MERITS OF THE PETITION/COMPLAINT WITHOUT ALLOWING RESPONDENT TO INTERPOSE AN ANSWER; THE JUDGE SHOULD NOT HAVE DISMISSED THE PETITION/COMPLAINT ON GROUNDS NOT ADDRESSED BY THE UNDERLYING ADMINSTRATIVE RULING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge could not deny the motion to dismiss the Article 78 petition/complaint and then consider the merits and dismiss the petition/complaint before allowing the respondent to interpose an answer. In addition, the court did not have the authority to consider issues not addressed by the underlying administrative ruling. The action was brought by an owner of shares in a cooperative (petitioner) against the co-op board (respondent) which denied petitioner’s application to convert an office to a residential unit:

… Supreme Court erred by considering the merits of the petition/complaint and, in effect, denying the petition/complaint and dismissing the proceeding/action, after it denied the co-op’s motion, inter alia, pursuant to CPLR 3211(a) to dismiss the petition/complaint. In a CPLR article 78 proceeding, if a motion to dismiss the petition is denied, “the court shall permit the respondent to answer” … . Here, the court should not have decided the merits of the petition seeking relief under CPLR article 78, as the co-op had not yet filed an answer … , and it cannot be said, on this record, “that the facts are so fully presented in the parties’ papers that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer” … .

Moreover, under all the circumstances, including that issue had not been joined and that branch of the co-op’s motion which pursuant to CPLR 3211(a) to dismiss the petition/complaint was not converted into a motion for summary judgment, there was no basis for the Supreme Court, in effect, to dismiss the proceeding/action after concluding that the co-op was not entitled to dismissal of the petition/complaint pursuant CPLR 3211(a) … .

Further, it has “long been the rule that judicial review of an administrative determination is limited to the grounds presented by the agency at the time of its determination” … . A reviewing court is “powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” … . Here, when the Supreme Court, in effect, affirmed the board’s denial of the application, the court improperly “surmise[d] or [*3]speculate[d] as to how or why” the board reached its determination and improperly relied on grounds not mentioned in the denial letter … . Matter of 195 N. Vil. Ave., LLC v 195 Apts., Inc., 2024 NY Slip Op 06037, Second Dept 12-4-24

Practice Point: Once a judge denies a motion to dismiss a petition/complaint, the merits of the petition/complaint should not be considered before the respondent interposes an answer.

Practice Point: A judge reviewing an administrative ruling cannot decide the merits on grounds not addressed by the administrative ruling.

 

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CPLR 3216 IS A FORGIVING STATUTE WHICH ALLOWS BUT DOES NOT REQUIRE DISMISSAL OF THE COMPLAINT FOR FAILURE TO COMPLY WITH A 90-DAY NOTICE; HERE PLAINTIFFS PRESENTED AN ADEQUATE EXCUSE AND DEMONSTRATED THE ACTION HAS MERIT; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint should not have been dismissed on “neglect to proceed” grounds after plaintiffs’ failure to comply with the 90-day notice:

“CPLR 3216 is an extremely forgiving statute which never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … . In opposition to a motion to dismiss pursuant to CPLR 3216, a plaintiff may still avoid dismissal if he or she demonstrates “a justifiable excuse for the failure to timely abide by the 90-day demand, as well as the existence of a potentially meritorious cause of action” … . “Thus, even when all of the statutory preconditions are met, including plaintiff’s failure to comply with the 90-day requirement, plaintiff has yet another opportunity to salvage the action simply by opposing the motion to dismiss with a justifiable excuse” and proof of a potentially meritorious cause of action … .

Here, the plaintiffs’ belief that the action remained stayed in the absence of some affirmative act by the Supreme Court, although erroneous, constituted a justifiable excuse under the circumstances for their failure to respond to the defendant’s 90-day notice. Notably, the 90-day notice was sent only three months after the stay had been lifted, and the record does not otherwise contain evidence of a pattern of persistent neglect or delay in prosecuting the action or an intent to abandon the action … . Furthermore, the plaintiffs established the existence of a potentially meritorious cause of action sounding in strict products liability … . Holness v Gigglesworld Corp., 2024 NY Slip Op 06031, Second Dept 12-4-24

Practice Point: CPLR 3216 is a forgiving statute which allows but does not require the dismissal of a complaint for failure to comply with a 90-day notice. Here plaintiffs presented an adequate excuse and demonstrated a meritorious cause of action. The complaint should not have been dismissed.

 

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PLAINTIFF DID NOT PROVE DEFENDANT OWNER OF DEFENDANT CORPORATION WAS PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT BY SUBSTITUTE SERVICE; EVEN PROPER SUBSTITUTE SERVICE WOULD NOT BE SUFFICIENT TO ACQUIRE PERSONAL JURISDICTION OVER A CORPORATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant owner of defendant corporation (Tatiana Batin) and the corporation (Godess … Spa …) were not properly served with the summons and complaint in this action alleging an employee of defendant corporation sexually abused plaintiff during a massage:

… [P]laintiff failed to demonstrate by a preponderance of the evidence that Batin was properly served with the summons and complaint pursuant to CPLR 308(2). The hearing evidence established that the address at which Batin was purportedly served pursuant to CPLR 308(2) was neither her actual dwelling place nor her usual place of abode as of the purported date of service … . Contrary to the Supreme Court’s determination, “‘[e]ven if a defendant eventually acquires actual notice of the lawsuit, actual notice alone will not sustain the service or subject a person to the court’s jurisdiction when there has not been compliance with prescribed conditions of service'” … .

… [P]laintiff failed to demonstrate by a preponderance of the evidence that Goddess was properly served pursuant to CPLR 311(a)(1), which required delivery of the summons and complaint to “an officer, director, managing or general agent, or . . . any other agent authorized . . . to receive service.” “Personal service on a corporation must be made to one of the persons authorized by the statute to accept service, and an attempt to serve such person by substitute service pursuant to CPLR 308(2) or (4) will be insufficient to acquire jurisdiction over the corporation” … . Here, even assuming, arguendo, that Batin had been properly served pursuant to CPLR 308(2), substituted service upon her pursuant to CPLR 308(2) would be insufficient to acquire personal jurisdiction over Goddess, as CPLR 311(a)(1) requires personal service directly upon a corporate representative … . Flatow v Goddess Sanctuary & Spa Corp., 2024 NY Slip Op 06029, Second Dept 12-4-24

Practice Point: At the hearing plaintiff did not prove defendant owner of defendant corporation was properly served with the summons and complaint by substitute service.

Practice Point: Personal jurisdiction over a corporation cannot be acquired by substitute service.

 

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THERE IS NO NOTICE OF CLAIM REQUIREMENT FOR A TORT ACTION AGAINST A CHARTER SCHOOL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a plaintiff is not required to serve a notice of claim for a tort action against a charter school. Here the infant plaintiff was injured on the playground of a charter school (Evergreen) and Supreme Court dismissed the case because no notice of claim had been served on the school:

… [A]s explained in this Court’s recent opinion and order in A.P. v John W. Lavelle Preparatory Charter Sch. (228 AD3d 138), Education Law § 3813(2) and General Municipal Law § 50-e do not require service of a notice of claim prior to commencement of a tort action against a charter school … . Accordingly, the defendants were not entitled to summary judgment dismissing the complaint insofar as asserted against Evergreen based upon the plaintiffs’ failure to serve Evergreen with a notice of claim … . L.R. v Evergreen Charter Sch., 2024 NY Slip Op 05998, Second Dept 11-27-24

Practice Point: A plaintiff bringing a tort action against a charter school is not required to serve a notice of claim.

 

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A COURT’S POWER TO SEARCH THE RECORD AND AWARD SUMMARY JUDGMENT TO A NONMOVING PARTY IS LIMITED TO THE CAUSES OF ACTION OR ISSUES IN THE MOTIONS BEFORE IT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that a court’s power to search the record and award summary judgment to a nonmoving party is constrained by the causes of action or issues raised in the motions before it:

Although the court has the authority to search the record and grant summary judgment to a nonmoving party (see CPLR 3212[b] …), the “power to search the record and afford a nonmoving party summary relief is not . . . boundless” … . Thus, “a court may search the record and grant summary judgment in favor of a nonmoving party only with respect to a cause of action or issue that is the subject of the motions before the court” … . Here, the court improperly considered an issue that was not the subject of the motion before it … . Mejia v 69 Mamaroneck Rd. Corp., 2024 NY Slip Op 05974, Second Dept 11-27-24

Practice Point: A court cannot search the record and award summary judgment to a nonmoving party on a cause of action or an issue not raised in the motions before it.​

 

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ALTHOUGH THE ALLEGATION PLAINTIFF STOPPED SUDDENLY DOES NOT REBUT THE PRESUMPTION THE REAR DRIVER WAS NEGLIGENT IN A REAR-END COLLISION, THE REAR-DRIVER’S ALLEGATION THE PLAINTIFF STOPPED SUDDENLY FOR NO APPARENT REASON CREATES A QUESTION OF FACT ON THE ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants’ claim that plaintiff stopped suddenly for no apparent reason supported defendant’s comparative-negligence affirmative defense in this rear-end collision case:

The Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment dismissing the defendants’ affirmative defense alleging comparative negligence. In support of his motion, the plaintiff submitted his affidavit, in which he averred that his vehicle, after having been stopped at an intersection for approximately 20 to 30 seconds, was struck in the rear by the defendants’ vehicle. Thus, the plaintiff established, prima facie, that he was not at fault in the happening of the accident … . In opposition, however, the defendants raised a triable issue of fact as to whether the plaintiff was comparatively at fault in the happening of the accident because he stopped suddenly for no apparent reason … . Martinez v Colonna, 2024 NY Slip Op 05971, Second Dept 11-27-24

Practice Point: In a rear-end collision, defendant’s allegation plaintiff stopped suddenly does not rebut the presumption defendant was negligent. But defendant’s allegation plaintiff stopped suddenly for no apparent reason raises a question of fact in support of defendant’s comparative-negligence affirmative defense.

 

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THE LANDOWNER ABUTTNG A SIDEWALK IN NYC HAS A NONDELEGABLE DUTY TO MAINTAIN THE SIDEWALK; HERE THE LANDOWNER FAILED TO DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF ICE AND SNOW ON THE SIDEWALK BECAUSE IT DID NOT AVER WHEN THE SIDEWALK WAS LAST INSPECTED OR CLEANED PRIOR TO THE SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant landowner’s motion for summary judgment in this sidewalk ice and snow slip and fall case should not have been granted. The landowner failed to demonstrate it did not have constructive notice of the presence of snow and ice:

Section 7-210 of the Administrative Code of the City of New York imposes a nondelegable duty on certain landowners, which includes 149-53 14th Avenue, LLC, to maintain sidewalks abutting their land, including the removal of snow and ice …  “[T]he duty applies with full force notwithstanding an owner’s transfer of possession to a lessee or maintenance agreement with a nonowner” … . Landowners, however, are not strictly liable for all personal injuries that occur on the abutting sidewalk, as “section 7-210 adopts a duty and standard of care that accords with traditional tort principles of negligence and causation” … .

“A defendant property owner moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition” … .  “A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it” … . “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the defendants failed to establish, prima facie, that 149-53 14th Avenue, LLC, did not have constructive notice of the alleged snow and ice condition that caused the plaintiff to fall. The evidence submitted by the defendants failed to establish when the sidewalk was last cleaned or inspected relative to when the plaintiff fell … . Marinis v Loschiavo, 2024 NY Slip Op 05970, Second Dept 11-27-24

Practice Point: Pursuant to the NYC Administrative Code a landowner abutting a sidewalk has a nondelegable duty to maintain the sidewalk, which includes removal of ice and snow. The landowner can demonstrate it did not have constructive notice of the presence of ice and snow by proof the sidewalk was inspected or cleaned close in time to the slip and fall, not the case here.

 

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IN THIS LEGAL MALPRACTICE ACTION, THE PLAINTIFF NEED NOT SHOW SHE ACTUALLY SUSTAINED DAMAGES TO SURVIVE A MOTION TO DISMISS (SECOND DEPT). ​

The Second Department, reversing Supreme Court’s dismissal of a legal malpractice complaint, noted that the plaintiff need not show she actually sustained damages to survive a dismissal motion:

The plaintiffs alleged … that they retained the defendants to represent them in an action to recover damages for personal injuries the plaintiff … allegedly sustained in a motor vehicle accident (hereinafter the underlying action) and that due to the defendants’ failures to pursue a theory based on a violation of Vehicle and Traffic Law § 509(3), the plaintiffs were not able to obtain a verdict in their favor in the underlying action. * * *

To state a cause of action to recover damages for legal malpractice, “a plaintiff must allege that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney’s negligence” … . “A plaintiff is not obligated to show, on a motion to dismiss, that it actually sustained damages … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … . Kowalski v Gold Benes, LLP, 2024 NY Slip Op 05967, Second Dept 11-27-24

Practice Point: In this legal malpractice case, the court noted the plaintiff need not show she actually sustained damages to survive a motion to dismiss.​

 

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