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EVIDENCE DID NOT SUPPORT THE APPOINTMENT OF MOTHER AS GUARDIAN OF FRITZ, A PERSON SUFFERING FROM SCHIZOPHRENIA, HOWEVER MOTHER IS NOT PRECLUDED FROM SEEKING ANY APPROPRIATE ASSISTANCE FOR FRITZ (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the petition for an the appointment of a guardian for Fritz, a person suffering from schizophrenia, should not have been granted on the evidence presented:

The Supreme Court may appoint a guardian for a person if the court determines that the appointment is necessary to provide for the person’s personal needs or to manage his or her property and financial affairs, and the person either agrees to the appointment or is incapacitated … . In determining whether the appointment of a guardian is necessary, the court must consider the report of a court evaluator as well as the sufficiency and reliability of resources that may be available to provide for personal needs or property management absent the appointment of a guardian … . A determination of incapacity must be based on clear and convincing evidence and must consist of a determination that a person is likely to suffer harm because he or she is unable to provide for personal needs or property management and cannot adequately understand and appreciate the nature and consequences of such inability … . Moreover, a guardian should be appointed only as a last resort, where no available resources or other alternative will adequately protect the alleged incapacitated person … .

Here, the evidence at the hearing consisted only of the petitioner’s (Fritz’s mother’s) testimony regarding Fritz G.’s mental illness, and a cursory report and testimony of the court evaluator, who had only one brief conversation with Fritz G. by telephone. This evidence failed to establish that Fritz G. was incapacitated. Moreover, the Supreme Court failed to consider less restrictive options than appointment of a guardian. Accordingly, that branch of the petition which was to have the petitioner appointed as the guardian of the person of Fritz G. should have been denied. Nevertheless, it was clear from the petitioner’s testimony that Fritz G. is in need of assistance, and the parties’ attorneys specifically mentioned the possibility of assisted outpatient treatment to address those needs. The petitioner’s failure to establish, on this record, the necessity of Mental Hygiene Law article 81 guardianship does not preclude her from seeking any appropriate assistance for Fritz G. Matter of Fritz G., 2018 NY Slip Op 05592, Second Dept 8-1-18

MENTAL HYGIENE LAW (EVIDENCE DID NOT SUPPORT THE APPOINTMENT OF MOTHER AS GUARDIAN OF FRITZ, A PERSON SUFFERING FROM SCHIZOPHRENIA, HOWEVER MOTHER IS NOT PRECLUDED FROM SEEKING ANY APPROPRIATE ASSISTANCE FOR FRITZ (SECOND DEPT))/GUARDIANSHIP (EVIDENCE DID NOT SUPPORT THE APPOINTMENT OF MOTHER AS GUARDIAN OF FRITZ, A PERSON SUFFERING FROM SCHIZOPHRENIA, HOWEVER MOTHER IS NOT PRECLUDED FROM SEEKING ANY APPROPRIATE ASSISTANCE FOR FRITZ (SECOND DEPT))

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RELEASE, WHICH PURPORTED TO COVER FUTURE MALPRACTICE ACTIONS STEMMING FROM THE FIRST ADMISSION TO THE HOSPITAL, DID NOT COVER A MALPRACTICE ACTION STEMMING FROM A SECOND ADMISSION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a release, which purported to cover future actions in a medical malpractice suit resulting from a hospital (NSUH) admission, did not preclude a second suit that arose from a second hospital admission:

The parties settled Action No. 1 … and executed … a release that released NSUH “and all . . . related business entities . . . and all . . . employees, physicians, [and] servants, . . . from all past, present and future [*2]claims, demands, obligations, actions, causes of action, wrongful death or bodily or personal injury claims . . . of any kind whatsoever, whether known or unknown, based upon any legal or equitable theory, . . . which the RELEASORS, their heirs, executors, administrators . . . hereafter can, shall, or may now have, or may hereafter accrue or otherwise be acquired, against RELEASEES for, upon, or by reason or any actual or alleged act, omission, transaction, practice, conduct, occurrence, or other matter . . . from the beginning of the world to the day of the date of this RELEASE” (hereinafter the release). * * *

Contrary to the Supreme Court’s determination, NSUH failed to establish, as a matter of law, that the release executed by the parties settling Action No. 1 was intended to preclude the plaintiff from recovering for claims that allegedly arose during and as a result of the second admission, which were not yet in dispute at the time the release was executed … . While the plaintiff may have been aware of the incident giving rise to Action No. 2 when she signed the release, any such awareness is insufficient, itself, to establish that the release was intended to cover any potential claims which were not the subject of Action No. 1. Chiappone v North Shore Univ. Hosp., 2018 NY Slip Op 05569, Second Dept 8-1-18

MEDICAL MALPRACTICE (RELEASE, WHICH PURPORTED TO COVER FUTURE MALPRACTICE ACTIONS STEMMING FROM THE FIRST ADMISSION TO THE HOSPITAL, DID NOT COVER A MALPRACTICE ACTION STEMMING FROM A SECOND ADMISSION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, RELEASE, WHICH PURPORTED TO COVER FUTURE MALPRACTICE ACTIONS STEMMING FROM THE FIRST ADMISSION TO THE HOSPITAL, DID NOT COVER A MALPRACTICE ACTION STEMMING FROM A SECOND ADMISSION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CONTRACT (RELEASE, WHICH PURPORTED TO COVER FUTURE MALPRACTICE ACTIONS STEMMING FROM THE FIRST ADMISSION TO THE HOSPITAL, DID NOT COVER A MALPRACTICE ACTION STEMMING FROM A SECOND ADMISSION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/RELEASE (RELEASE, WHICH PURPORTED TO COVER FUTURE MALPRACTICE ACTIONS STEMMING FROM THE FIRST ADMISSION TO THE HOSPITAL, DID NOT COVER A MALPRACTICE ACTION STEMMING FROM A SECOND ADMISSION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT).

The Second Department determined plaintiff’s employment discrimination action was properly dismissed on collateral estoppel grounds. Plaintiff had brought a discrimination action in federal court which was dismissed. The Human Rights Law (NYCHRL) causes of action in state court, alleging the same facts as alleged in the federal case, were therefore properly dismissed. Defendants were not entitled to dismissal of the breach of contract and quantum meruit causes of action. Because the defendants submitted evidence in support of their motion to dismiss , the motion court treated it as a motion for summary judgment (before issue was joined). The court noted that defendants did not make out a prima facie case in their motion papers. Therefore the sufficiency of plaintiff’s papers need not be considered. The court also explained that where there is a question about the existence of a contract, a quantum meruit cause of action may be brought and the plaintiff is not required to elect his or her remedies:

Here, the factual determinations made by the federal courts with regard to the causes of action alleging discrimination, retaliation, and hostile work environment under Title VII were determinative of the plaintiff’s identical claims asserted in this action pursuant to NYCHRL

CPLR 3211(c) provides, “[u]pon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment.” Although the path the defendants took in moving pursuant to CPLR 3211(c) was procedurally questionable, they charted their own course in this instance. There was no need to give the plaintiff an opportunity to file additional papers because the defendants failed to establish their prima facie entitlement to judgment as a matter of law by failing to tender sufficient evidence to eliminate any issues of fact with respect to those causes of action. Accordingly, the defendants were properly denied summary judgment, without regard to the sufficiency of the opposition papers … . Karimian v Time Equities, Inc., 2018 NY Slip Op 05583, Second Dept 8-1-18

EMPLOYMENT LAW (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/CIVIL PROCEDURE (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/CPLR 3211 (C) (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/HUMAN RIGHTS LAW (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/CONTRACT LAW (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))/QUANTUM MERUIT (COLLATERAL ESTOPPEL DOCTRINE REQUIRED DISMISSAL OF HUMAN RIGHTS LAW CAUSES OF ACTION WHERE THE FACTS ALLEGED WERE THE SAME AS IN A FEDERAL EMPLOYMENT DISCRIMINATION ACTION WHICH WAS DISMISSED, PRE-ANSWER MOTION FOR SUMMARY JUDGMENT PURSUANT TO CPLR 3211 (c) PROPERLY DENIED, BREACH OF CONTRACT AND QUANTUM MERUIT CAUSES OF ACTION PROPERLY PLED (SECOND DEPT))

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MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT).

The Second Department determined plaintiffs’ motion to vacate the dismissal of their medical malpractice action, which had been automatically dismissed pursuant to CPLR 3404, was properly denied:

The plaintiff … allegedly was injured at the time of his birth in April 1995, as a result of the defendants’ negligence. In 1997, the plaintiffs commenced an action against the defendants … . It is undisputed that on September 26, 2003, the action was marked off the trial calendar upon the plaintiffs’ request so that the plaintiffs’ counsel could amplify the bill of particulars based on the injured plaintiff’s recent psychological evaluations. Later, the action was automatically dismissed pursuant to CPLR 3404. By notice of motion dated November 12, 2015, the plaintiffs moved to vacate the dismissal of the action and to restore the action to the trial calendar. * * *

Here, the plaintiffs failed to demonstrate a reasonable excuse for their more than 12-year delay in moving to restore the action to the trial calendar. The plaintiffs failed to adequately explain why it took more than 12 years from the time the action was marked off the trial calendar to ascertain the effects of the injuries that the injured plaintiff allegedly sustained at birth … . Furthermore, in light of the plaintiffs’ inactivity regarding the action during the more than 12-year period prior to moving to restore the action to the trial calendar, the plaintiffs failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed … . Moreover, the plaintiffs failed to demonstrate that the defendants would not be prejudiced if the case were to be restored to the trial calendar, given the 20-year and 7-month delay between the date this action accrued and the date of the plaintiffs’ motion to restore … . Hagler v Southampton Hosp., 2018 NY Slip Op 05579, Second Dept 8-1-18

CIVIL PROCEDURE (MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT))/MEDICAL MALPRACTICE (CIVIL PROCEDURE, MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT))/CPLR 3404 (MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT))

FAILURE TO USE FEDERAL EXPRESS’S OVERNIGHT DELIVERY RENDERED SERVICE UNTIMELY, EVEN THOUGH SERVICE WOULD HAVE BEEN TIMELY IF THE PAPERS HAD BEEN MAILED (SECOND DEPT).

The Second Department determined Supreme Court should not have deemed service by Federal Express timely. The statute, CPLR 2103 (b)(6) , states that service is effective when the papers are deposited with Federal Express for overnight delivery. Here the Federal Express weekly delivery service was used:

Contrary to the Supreme Court’s determination, CPLR 2103(b)(2) does not apply to render BAC’s motion timely since BAC did not attempt service of its motion by using “the post office or official depository under the exclusive care and custody of the United States Postal Service within the state” (CPLR 2103[f][1]). Rather, BAC utilized Federal Express. CPLR 2103(b)(6) provides that “[s]ervice by overnight delivery service shall be complete upon deposit of the paper . . . into the custody of the overnight delivery service for overnight delivery” … . The record demonstrates that BAC failed to use Federal Express’s overnight delivery service, and instead deposited its papers with Federal Express on Friday for weekday delivery on Monday. Accordingly, the court should have denied BAC’s motion as untimely. Moran v BAC Field Servs. Corp., 2018 NY Slip Op 05586, Second Dept 8-1-18

CIVIL PROCEDURE (SERVICE, FAILURE TO USE FEDERAL EXPRESS’S OVERNIGHT DELIVERY RENDERED SERVICE UNTIMELY, EVEN THOUGH SERVICE WOULD HAVE BEEN TIMELY IF THE PAPERS HAD BEEN MAILED (SECOND DEPT))/FEDERAL EXPRESS (CIVIL PROCEDURE, SERVICE, FAILURE TO USE FEDERAL EXPRESS’S OVERNIGHT DELIVERY RENDERED SERVICE UNTIMELY, EVEN THOUGH SERVICE WOULD HAVE BEEN TIMELY IF THE PAPERS HAD BEEN MAILED (SECOND DEPT))/CPLR 2103 (SERVICE, FAILURE TO USE FEDERAL EXPRESS’S OVERNIGHT DELIVERY RENDERED SERVICE UNTIMELY, EVEN THOUGH SERVICE WOULD HAVE BEEN TIMELY IF THE PAPERS HAD BEEN MAILED (SECOND DEPT))

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INSTRUCTION TO FOLLOW UP IS NOT PART OF A CONTINUING COURSE OF TREATMENT, RELATION BACK DOCTRINE DOES NOT APPLY TO DEFENDANTS DELIBERATELY OMITTED FROM THE ACTION, MEDICAL MALPRACTICE CAUSES OF ACTION TIME-BARRED (SECOND DEPT).

The Second Department determined that the instruction to follow up did not constitute a continuing course of treatment and the statute of limitations, therefore, was not tolled in this medical malpractice action. The court further found that the relation-back doctrine did not apply to defendants who were deliberately omitted from the action:

“Under the continuous treatment doctrine, the 2½ year [limitations] period does not begin to run until the end of the course of treatment, when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint'” … . Here, the plaintiff has not raised a triable issue of fact as to whether this toll applies. The diagnostic services performed by Buscaglia were discrete and complete, and not part of a course of treatment … . As to Watkins, the mere statement on the decedent’s transfer summary that the decedent should “follow-up” with “Dr. Watkins’ clinic” as an outpatient in two or three months did not evince a continued course of treatment where no follow-up appointment was actually scheduled, and the decedent thereafter received treatment at other hospitals … .

The plaintiff also failed to raise a triable issue of fact as to the applicability of the relation back doctrine … . That doctrine requires the plaintiff to demonstrate, among other things, that the new defendants knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been commenced against them as well … . “When a plaintiff intentionally decides not to assert a claim against a party known to be potentially liable, there has been no mistake and the plaintiff should not be given a second opportunity to assert that claim after the limitations period has expired” … . Here, there was no showing of a mistake concerning the defendants’ identities, which would have prevented the plaintiff from commencing an action against them before the statute of limitations expired … . Yanez v Watkins, 2018 NY Slip Op 05622, Second Dept 8-1-18

MEDICAL MALPRACTICE (INSTRUCTION TO FOLLOW UP IS NOT PART OF A CONTINUING COURSE OF TREATMENT, RELATION BACK DOCTRINE DOES NOT APPLY TO DEFENDANTS DELIBERATELY OMITTED FROM THE ACTION, MEDICAL MALPRACTICE CAUSES OF ACTION TIME-BARRED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, INSTRUCTION TO FOLLOW UP IS NOT PART OF A CONTINUING COURSE OF TREATMENT, RELATION BACK DOCTRINE DOES NOT APPLY TO DEFENDANTS DELIBERATELY OMITTED FROM THE ACTION, MEDICAL MALPRACTICE CAUSES OF ACTION TIME-BARRED (SECOND DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, INSTRUCTION TO FOLLOW UP IS NOT PART OF A CONTINUING COURSE OF TREATMENT, RELATION BACK DOCTRINE DOES NOT APPLY TO DEFENDANTS DELIBERATELY OMITTED FROM THE ACTION, MEDICAL MALPRACTICE CAUSES OF ACTION TIME-BARRED (SECOND DEPT))/CONTINUING COURSE OF TREATMENT (MEDICAL MALPRACTICE, INSTRUCTION TO FOLLOW UP IS NOT PART OF A CONTINUING COURSE OF TREATMENT, RELATION BACK DOCTRINE DOES NOT APPLY TO DEFENDANTS DELIBERATELY OMITTED FROM THE ACTION, MEDICAL MALPRACTICE CAUSES OF ACTION TIME-BARRED (SECOND DEPT))/RELATION BACK DOCTRINE (INSTRUCTION TO FOLLOW UP IS NOT PART OF A CONTINUING COURSE OF TREATMENT, RELATION BACK DOCTRINE DOES NOT APPLY TO DEFENDANTS DELIBERATELY OMITTED FROM THE ACTION, MEDICAL MALPRACTICE CAUSES OF ACTION TIME-BARRED (SECOND DEPT))

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DEFENDANT LANDLORD DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ALLEGEDLY DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined defendant landlord’s motion for summary judgment in this slip and fall case was properly denied. Defendant did not not demonstrate it was an out-of-possession landlord and did not demonstrate it did not create or have notice of the allegedly dangerous condition:

The lease contained a provision obligating the defendant to maintain the interior and exterior public portions of the building, and required the nonparty tenant to make nonstructural repairs. The lease also provided that the defendant reserved the right to re-enter the premises for purposes of, inter alia, inspecting the premises and making repairs. …

“An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct”… . “Even if a defendant is considered an out-of-possession landlord who assumed the obligation to make repairs to its property, it cannot be held liable for injuries caused by a defective condition on the property unless it either created the condition or had actual or constructive notice of it”… .

Here, the defendant failed to demonstrate, prima facie, that it was an out-of-possession landlord that did not have a contractual duty under the lease to maintain the subject exterior door, doorway, and stairwell, or to repair the alleged defects therein that caused the plaintiff’s accident … . Moreover, the defendant failed to demonstrate, prima facie, that it did not create the allegedly defective conditions, and that it did not have actual or constructive notice of them … . Washington-Fraser v Industrial Home for the Blind, 2018 NY Slip Op 05620, Second Dept 8-1-18

NEGLIGENCE (LANDLORD-TENANT, SLIP AND FALL, DEFENDANT LANDLORD DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ALLEGEDLY DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/LANDLORD-TENANT (SLIP AND FALL, DEFENDANT LANDLORD DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ALLEGEDLY DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/SIP AND FALL (LANDLORD-TENANT, DEFENDANT LANDLORD DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ALLEGEDLY DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/OUT-OF-POSSESSION LANDLORD (SLIP AND FALL, DEFENDANT LANDLORD DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ALLEGEDLY DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/LEASE (SLIP AND FALL, DEFENDANT LANDLORD DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ALLEGEDLY DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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LEASE TRANSFERRED RESPONSIBILITY FOR MAINTENANCE OF ENTIRE PREMISES TO TENANT, DEFENDANT OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined that defendant out-of-possession landlord’s motion for summary judgment in this parking lot slip and fall case was properly granted:

“An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or course of conduct'” … . A landlord who has transferred possession and control generally is not liable for injuries caused by dangerous conditions on the property … .

In support of its motion for summary judgment dismissing the complaint, the defendant submitted a copy of the lease between it and Cold Spring Hills. The lease provided that the maintenance of the entire premises, including the parking lot, was the responsibility of Cold Spring Hills. The evidence submitted in support of the motion shows that the defendant was an out-of-possession landlord and that Cold Spring Hills performed the maintenance of the entire premises. Vicchiarelli v Cold Spring Hills Realty Co., LLC, 2018 NY Slip Op 05619, Second Dept 8-1-18

NEGLIGENCE (LANDLORD-TENANT, SLIP AND FALL, LEASE TRANSFERRED RESPONSIBILITY FOR MAINTENANCE OF ENTIRE PREMISES TO TENANT, DEFENDANT OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, LEASE TRANSFERRED RESPONSIBILITY FOR MAINTENANCE OF ENTIRE PREMISES TO TENANT, DEFENDANT OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (LANDLORD-TENANT, LEASE TRANSFERRED RESPONSIBILITY FOR MAINTENANCE OF ENTIRE PREMISES TO TENANT, DEFENDANT OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE (SECOND DEPT))/OUT-OF-POSSESSION LANDLORD (NEGLIGENCE, SLIP AND FALL, LEASE TRANSFERRED RESPONSIBILITY FOR MAINTENANCE OF ENTIRE PREMISES TO TENANT, DEFENDANT OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE (SECOND DEPT))/LEASE (NEGLIGENCE, SLIP AND FALL, OUT-OF-POSSESSION LANDLORD, LEASE TRANSFERRED RESPONSIBILITY FOR MAINTENANCE OF ENTIRE PREMISES TO TENANT, DEFENDANT OUT-OF-POSSESSION LANDLORD ENTITLED TO SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE (SECOND DEPT))

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ALTHOUGH THE LACK OF STANDING DEFENSE TO A FORECLOSURE ACTION IS WAIVED IF NOT ASSERTED IN THE ANSWER OR A PRE-ANSWER MOTION TO DISMISS, IT MAY BE ADDED TO AN ANSWER AMENDED BY LEAVE OF COURT (SECOND DEPT).

The Second Department, in the context of a foreclosure action, determined that, although the lack of standing defense is waived if not asserted in the answer or a pre-answer motion to dismiss, the defense can be added in an answer amended by leave of court:

“[A]n argument that a plaintiff lacks standing, if not asserted in the defendant’s answer or in a pre-answer motion to dismiss the complaint, is waived pursuant to CPLR 3211(e)” … . “Defenses waived under CPLR 3211(e) can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025(b), as long as the amendment does not cause the other party prejudice or surprise resulting from the delay, and is not palpably insufficient or patently devoid of merit”… . “The decision of whether to allow an amendment is committed almost entirely to the [motion] court’s discretion'” … .

Here, in opposition to that branch of the defendant’s motion which was for leave to amend his answer to add the affirmative defense of lack of standing, the plaintiff failed to demonstrate the existence of any prejudice or surprise that would result from the amendment, or that the proposed affirmative defense was palpably insufficient or patently devoid of merit … . U.S. Bank Trust, N.A. v Carter, 2018 NY Slip Op 05618, Second Dept 8-1-18

 

CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT).

The Second Department determined plaintiff in this slip and fall case was not entitled to a default judgment and defendant’s cross motion to compel acceptance of a late answer was properly granted:

On July 28, 2015, the plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she fell down a stairway leading to the basement of premises owned by the defendant. According to an affidavit of service, the defendant was served with the summons and complaint on September 1, 2015, when it was delivered to a person of suitable age and discretion at his residence. The affidavit of service also provided that the summons and complaint were mailed to the defendant’s residence on September 2, 2015. On or about March 3, 2016, the defendant served a late answer, which the plaintiff rejected as untimely. The plaintiff subsequently moved pursuant to CPLR 3215(f) for leave to enter a default judgment against the defendant on the issue of liability. The defendant opposed the motion and cross-moved, inter alia, pursuant to CPLR 3012(d) to compel the plaintiff to accept his late answer. The defendant argued that he was not properly served, that his delay in answering the complaint was brief, that he had a potentially meritorious defense, and that the case should proceed on the merits. Stavola v Bodd. 2018 NY Slip Op 05617, Second Dept 8-1-18

CIVIL PROCEDURE (CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT))/CPLR 3215 (CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT))/CPLR 3212 (CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT))/ANSWER (CROSS MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER PROPERLY GRANTED (SECOND DEPT))

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