You are here: / Second Department

Tag Archive for: Second Department

,

PLAINTIFF JUDICIALLY ESTOPPED FROM IMPOSING A CONSTRUCTIVE TRUST ON REAL PROPERTY, PLAINTIFF STATED HE HAD NO INTEREST IN THE PROPERTY IN PRIOR BANKRUPTCY PROCEEDINGS (SECOND DEPT).

The Second Department determined plaintiff was judicially estopped from imposing a constructive trust on real property because he stated he had no interest in the property in prior bankruptcy proceedings:

Under the doctrine of judicial estoppel, also known as estoppel against inconsistent positions, a party may not take a position in a legal proceeding that is contrary to a position he or she took in a prior proceeding, simply because his or her interests have changed … . The doctrine applies only where the party secured a judgment in his or her favor in the prior proceeding … . This doctrine “rests upon the principle that a litigant should not be permitted . . . to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise'” … . “The doctrine is invoked to estop parties from adopting such contrary positions because the judicial system cannot tolerate this playing fast and loose with the courts”… .

Here, the plaintiff’s contention that he had an interest in the … property based on promises that [defendant]  made to the plaintiff … is contrary to his representation to the United States Bankruptcy Court … that he had no interest in real property. Based upon the plaintiff’s representations to the Bankruptcy Court, his debts were discharged. Therefore, we agree with the Supreme Court that this action is barred by the doctrine of judicial estoppel … . Bihn v Connelly, 2018 NY Slip Op 03956, Second Dept 6-6-18

​CIVIL PROCEDURE (JUDICIAL ESTOPPEL, PLAINTIFF JUDICIALLY ESTOPPED FROM IMPOSING A CONSTRUCTIVE TRUST ON REAL PROPERTY, PLAINTIFF STATED HE HAD NO INTEREST IN THE PROPERTY IN PRIOR BANKRUPTCY PROCEEDINGS (SECOND DEPT))/JUDICIAL ESTOPPEL (PLAINTIFF JUDICIALLY ESTOPPED FROM IMPOSING A CONSTRUCTIVE TRUST ON REAL PROPERTY, PLAINTIFF STATED HE HAD NO INTEREST IN THE PROPERTY IN PRIOR BANKRUPTCY PROCEEDINGS (SECOND DEPT))

DRAINAGE GRATE NEAR SOCCER FIELD DEEMED OPEN AND OBVIOUS, PLAINTIFF SOCCER PLAYER ASSUMED THE RISK OF INJURY RESULTING FROM HIS CLEAT GETTING STUCK IN THE GRATE (SECOND DEPT).

The Second Department determined plaintiff soccer player had assumed the risk of injury resulting from a cleat on his shoe getting stuck in a drainage grate near the soccer field. The drainage grate was deemed open and obvious:

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'” … . “This principle extends to those risks associated with the construction of the playing field and any open and obvious condition thereon”… .

Here, the defendants established their prima facie entitlement to judgment as a matter of law on the ground that the doctrine of primary assumption of risk barred the injured plaintiff’s recovery. The evidence submitted by the defendants included, inter alia, the pretrial testimony of the infant plaintiff that his accident occurred when he ran onto the drainage grate only a few feet from the edge of the field while he was retrieving a ball that had traveled out of bounds during the game. He further conceded that in order to gain access to the field, he had to walk over the silver-colored drainage grate that surrounded the perimeter of the field. Moreover, the photographs submitted in support of the motion confirmed the open and obvious nature of the grate, and there was no evidence that the grate was concealed or defective in any manner. O’Toole v Long Is. Jr. Soccer League, Inc., 2018 NY Slip Op 03853, Second Dept 5-30-18

​NEGLIGENCE (ASSUMPTION OF THE RISK , DRAINAGE GRATE NEAR SOCCER FIELD DEEMED OPEN AND OBVIOUS, PLAINTIFF SOCCER PLAYER ASSUMED THE RISK OF INJURY RESULTING FROM HIS CLEAT GETTING STUCK IN THE GRATE (SECOND DEPT))/ASSUMPTION OF THE RISK (SOCCER, DRAINAGE GRATE NEAR SOCCER FIELD DEEMED OPEN AND OBVIOUS, PLAINTIFF SOCCER PLAYER ASSUMED THE RISK OF INJURY RESULTING FROM HIS CLEAT GETTING STUCK IN THE GRATE (SECOND DEPT))/SOCCER (ASSUMPTION OF THE RISK, DRAINAGE GRATE NEAR SOCCER FIELD DEEMED OPEN AND OBVIOUS, PLAINTIFF SOCCER PLAYER ASSUMED THE RISK OF INJURY RESULTING FROM HIS CLEAT GETTING STUCK IN THE GRATE (SECOND DEPT))/SPORTS (ASSUMPTION OF THE RISK, DRAINAGE GRATE NEAR SOCCER FIELD DEEMED OPEN AND OBVIOUS, PLAINTIFF SOCCER PLAYER ASSUMED THE RISK OF INJURY RESULTING FROM HIS CLEAT GETTING STUCK IN THE GRATE (SECOND DEPT))

DEFENDANT RESTAURANT-BAR DEMONSTRATED ITS EMPLOYEE DID NOT KNOW THE DRIVER WAS UNDER 21, RESTAURANT-BAR ENTITLED TO SUMMARY JUDGMENT IN THIS DRAM SHOP ACT ACTION (SECOND DEPT).

The Second Department determined the restaurant/bar’s (Hacienda’s) motion for summary judgment in this Dram Shop Act action was properly granted. Plaintiff, a passenger in a car driven by Behler, was injured when the driver struck a guardrail. The driver, who was under 21, had been served alcohol at Hacienda. General Obligations Law (GOL) 11-101 (the Dram Shop Act) prohibits serving alcohol to persons under 21. The Second Department held there is a knowledge element of GOL 11-101 and Hacienda demonstrated it’s employee did not know the driver was under 21:

In 1983, the Legislature supplemented the Dram Shop Act by adding General Obligation Law § 11-100, which applies to any provider unlawfully furnishing alcoholic beverages to or unlawfully assisting in procuring alcoholic beverages for minors. Pursuant to Alcoholic Beverage Control Law § 65(1), it is unlawful to furnish an alcoholic beverage to any “person, actually or apparently, under the age of twenty-one years” … . “[L]iability under General Obligations Law § 11-100 may be imposed only on a person who knowingly causes intoxication by furnishing alcohol to (or assisting in the procurement of alcohol for) persons known or reasonably believed to be underage. While [General Obligations Law § ] 11-101 does not explicitly refer to knowledge, that same requirement must be inferred because the legislative history makes plain that section 11-100 was intended to parallel the Dram Shop Act” … . …

Hacienda established through the submission of the deposition testimony of its bartender that it did not have knowledge or reason to believe that the driver was under 21 years of age when it served alcoholic beverages to him. Ferber v Olde Erie Brew Pub & Grill, LLC, 2018 NY Slip Op 03827, Second Dept 5-30-18

​NEGLIGENCE (DRAM SHOP ACT, DEFENDANT RESTAURANT-BAR DEMONSTRATED ITS EMPLOYEE DID NOT KNOW THE DRIVER WAS UNDER 21, RESTAURANT-BAR ENTITLED TO SUMMARY JUDGMENT IN THIS DRAM SHOP ACT ACTION (SECOND DEPT))/DRAM SHOP ACT (DEFENDANT RESTAURANT-BAR DEMONSTRATED ITS EMPLOYEE DID NOT KNOW THE DRIVER WAS UNDER 21, RESTAURANT-BAR ENTITLED TO SUMMARY JUDGMENT IN THIS DRAM SHOP ACT ACTION (SECOND DEPT))/TRAFFIC ACCIDENTS (DRAM SHOP ACT, DEFENDANT RESTAURANT-BAR DEMONSTRATED ITS EMPLOYEE DID NOT KNOW THE DRIVER WAS UNDER 21, RESTAURANT-BAR ENTITLED TO SUMMARY JUDGMENT IN THIS DRAM SHOP ACT ACTION (SECOND DEPT))

, ,

ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT).

The Second Department determined the arbitrator’s award was irrational and violated CPLR 1209 in this no-fault insurance action. The injured child and his mother had assigned their rights to payment for health care services to the petitioner, Fast Care. Contrary to the arbitrator’s finding, arbitration was not sought by the injured child, which would have required a court order under CPLR 1209, but rather was sought by the assignee, Fast Care:

An arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeding his or her power; or (4) the failure to follow the procedures of CPLR article 75 … . In addition, an arbitration award may be vacated “if it violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power”… . An arbitration award may also be vacated where it is in ” explicit conflict'” with established laws and “the strong and well-defined policy considerations’ embodied therein”… .

We agree with the Supreme Court that the arbitrator’s award was irrational and in conflict with CPLR 1209, which applies “only where an infant is a party” to an arbitration proceeding … . The infant patient was not a party to the arbitration; rather, Fast Care, as the infant’s assignee, was the party that brought the arbitration … . Matter of Fast Care Med. Diagnostics, PLLC/PV v Government Employees Ins. Co., 2018 NY Slip Op 03831, Second Dept 5-30-18

​INSURANCE LAW (NO-FAULT, ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT))/ARBITRATION (NO-FAULT INSURANCE, ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT))/CIVIL PROCEDURE (NO-FAULT INSURANCE, ARBITRATION, ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT))/CPLR 1209 (NO-FAULT INSURANCE, ARBITRATION, ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT))

, ,

FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT).

The Second Department, dismissing the appeal as academic, determined Family Court was divested of subject matter jurisdiction in this guardianship proceeding because the child had turned 21. Mother had sought appointment as guardian in an effort to procure special immigrant juvenile status (SIJS) for the child:

“Generally, courts are precluded from considering questions which, although once live, have become moot by passage of time or change in circumstances'” … . Where, as here, a child who consented to the appointment of a guardian after his or her 18th birthday turns 21, the term of appointment of the guardian “expires on [the child’s] twenty-first birthday” (SCPA 1707[2]). Consequently, once the child turns 21, the court “is divested of subject matter jurisdiction, [and] cannot exercise such jurisdiction by virtue of an order nunc pro tunc” … . Thus, the guardianship petition cannot be granted at this juncture.

Furthermore, since guardianship status, which the Family Court can only grant to individuals under 21, is a condition precedent to a declaration allowing a child to seek SIJS, the petitioner’s motion for the issuance of an order declaring that the child is dependent on the court and making the requisite specific findings so as to enable him to petition for SIJS has also been rendered academic … . Matter of Vincenta E. V. v Alexander R. G., 2018 NY Slip Op 03849, Second Dept 5-30-18

​FAMILY LAW (FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/IMMIGRATION LAW (FAMILY LAW, FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/CIVIL PROCEDURE (FAMILY LAW, FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/SUBJECT MATTER JURISDICTION  (FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/JURISDICTION (FAMILY LAW, FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))

, , ,

EDUCATION LAW REQUIRES THAT PLAINTIFF FILE A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR AN ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION ALLEGING A VIOLATION OF THE NYS HUMAN RIGHTS LAW (SECOND DEPT)

The Second Department determined plaintiff was required, pursuant to the Education Law, to file a notice of claim in an action alleging a violation of the NYS Human Rights Law:

Contrary to the plaintiff’s contention, since her complaint seeks both equitable relief and the recovery of damages, the filing of a notice of claim within three months after her claim arose was a condition precedent to the maintenance of this action against the defendants Department of Education of the City of New York (hereinafter Department of Education) and Chancellor Carmen Fariña (see Education Law 3813[1]… ). In contrast to General Municipal Law §§ 50-e(1) and 50-i(1), Education Law § 3813(1) broadly requires the filing of a notice of claim as a condition precedent to an “action . . . for any cause whatever,” which includes the plaintiff’s causes of action pursuant to the New York State Human Rights Law (see Executive Law § 296). … Further, the plaintiff was not excused from the notice of claim requirement since her action does not seek to vindicate a public interest … , and does not seek judicial enforcement of a legal right derived through enactment of positive law … .

The Supreme Court improperly determined that the plaintiff was required to serve a notice of claim upon the defendant City of New York … . Nonetheless, since this action relates to the plaintiff’s employment with the Department of Education, the plaintiff failed to state a cause of action against the City, which is a legal entity distinct from the Department of Education … . Seifullah v City of New York, 2018 NY Slip Op 03867, Second Dept 5-30-18

​EDUCATION-SCHOOL LAW (NOTICE OF CLAIM, EDUCATION LAW REQUIRES THAT PLAINTIFF FILE A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR AN ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION ALLEGING A VIOLATION OF THE NYS HUMAN RIGHTS LAW (SECOND DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, EDUCATION LAW REQUIRES THAT PLAINTIFF FILE A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR AN ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION ALLEGING A VIOLATION OF THE NYS HUMAN RIGHTS LAW (SECOND DEPT))/MUNICIPAL LAW (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, EDUCATION LAW REQUIRES THAT PLAINTIFF FILE A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR AN ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION ALLEGING A VIOLATION OF THE NYS HUMAN RIGHTS LAW (SECOND DEPT))/EMPLOYMENT LAW (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, HUMAN RIGHTS LAW, EDUCATION LAW REQUIRES THAT PLAINTIFF FILE A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR AN ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION ALLEGING A VIOLATION OF THE NYS HUMAN RIGHTS LAW (SECOND DEPT))/HUMAN RIGHTS LAW (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, EDUCATION LAW REQUIRES THAT PLAINTIFF FILE A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR AN ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION ALLEGING A VIOLATION OF THE NYS HUMAN RIGHTS LAW (SECOND DEPT))

STATEMENTS POSTED ON FACEBOOK CONCERNING PLAINTIFF’S UNAUTHORIZED PARTIAL DEMOLITION OF A LANDMARK BUILDING WERE DEEMED NON-ACTIONABLE OPINION AND HYPERBOLE (SECOND DEPT).

The Second Department determined that defendant’s Facebook posts were non-actionable opinion in this defamation action. Defendant, without obtaining the required certificate, had begun to demolish a building which had been designated a landmark. Defendant posted pictures of the building with comments that the demolition was a crime, that the plaintiff was a vampire, and that plaintiff, rather than gutting the building and maintaining the facade, intended to demolish the building and put up condominiums:

The defendant established that [the] statements, which referred to the plaintiff’s actions in causing the demolition of the building as a “crime” and referred to the plaintiff as a “vampire,” constituted nonactionable opinion or rhetorical hyperbole … . …

… [T]he defendant asserted that the plaintiff had originally said that he would keep the building’s historic facade and gut the interior to convert the building into apartments. The defendant further stated that the plaintiff’s statement was “a lie” and that “[a]ll along he planned a big condo and he removed part of the metal roof and punched holes in it and failed to repair it so the elements would get in and slowly but surely destroy the building. This is known as demolition by intentional neglect.'” …

In distinguishing between statements of opinion and fact, the factors to be considered are: (1) whether the specific language at issue has a precise, readily understood meaning, (2) whether the statements are capable of being proven true or false, and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers that what is stated is likely to be opinion, not fact…  Even apparent statements of fact may assume the character of opinion when made in public debate where the audience may anticipate the use of rhetoric or hyperbole … . The question is not whether there is an isolated assertion of fact; rather, it is necessary to consider the writing as a whole, including its tone and apparent purpose, as well as the overall context of the publication, to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff … . Stolatis v Hernandez, 2018 NY Slip Op 03868, Second Dept 5-30-18

​DEFAMATION (STATEMENTS POSTED ON FACEBOOK CONCERNING PLAINTIFF’S UNAUTHORIZED PARTIAL DEMOLITION OF A LANDMARK BUILDING WERE DEEMED NON-ACTIONABLE OPINION AND HYPERBOLE (SECOND DEPT))/OPINION (DEFAMATION, (STATEMENTS POSTED ON FACEBOOK CONCERNING PLAINTIFF’S UNAUTHORIZED PARTIAL DEMOLITION OF A LANDMARK BUILDING WERE DEEMED NON-ACTIONABLE OPINION AND HYPERBOLE (SECOND DEPT))/HYPERBOLE (DEFAMATION, STATEMENTS POSTED ON FACEBOOK CONCERNING PLAINTIFF’S UNAUTHORIZED PARTIAL DEMOLITION OF A LANDMARK BUILDING WERE DEEMED NON-ACTIONABLE OPINION AND HYPERBOLE (SECOND DEPT))

,

DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, PETITION PROPERLY DENIED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, considering a question of first impression, determined a defendant can appeal, as of right, the denial of a petition to modify a Sex Offender Registration Act (SORA) risk classification. The Second Department further held that the petition was properly denied, in large part because defendant, who was 71 years old and in poor health, did not participate in any sex offender treatment programs and did not accept responsibility for his sex offenses:

… [N]othing in the language of Correction Law § 168-o(2) precludes this Court’s exercise of its broad authority and jurisdiction to entertain and decide the instant appeal. In the context of SORA, we have long recognized the significant impact upon the defendant’s liberty interest. Furthermore, we are cognizant of the ongoing responsibility and crucial importance in maintaining a balance between the procedural safeguards afforded to the defendant and the societal interests involved in protecting “the public from sex offenders” … . … [W]e hold that a sex offender may appeal from an order denying a petition for a downward modification of his risk level. People v Charles, 2018 NY Slip Op 03864, Second Dept 5-30-18

​CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, IN THIS CASE THE PETITION WAS PROPERLY DENIED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (APPEALS, DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, IN THIS CASE THE PETITION WAS PROPERLY DENIED (SECOND DEPT))/APPEALS (CRIMINAL LAW, SEX OFFENDER REGISTRATION ACT (SORA), APPEALS, DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, IN THIS CASE THE PETITION WAS PROPERLY DENIED (SECOND DEPT))

DEFENDANT WHO HAD APPEARED IN THE ACTION BUT HAD SINCE MOVED TO SOUTH CAROLINA COULD BE COMPELLED TO APPEAR AT TRIAL BY A SUBPOENA MAILED TO HIS NEW YORK ATTORNEY (FIRST DEPT).

The Second Department determined a trial subpoena issued to a defendant in a medical malpractice action compelled defendant’s attendance despite his having moved to South Carolina:

… [T]he plaintiffs mailed a subpoena to the office of the defendant’s attorneys, located in Mineola, New York. The subpoena commanded the defendant to appear at the trial of this action to give testimony as part of the plaintiffs’ direct case. The defendant moved to quash the subpoena, arguing that he was no longer subject to the jurisdiction of the court because he had moved from New York to South Carolina during the pendency of the action. The Supreme Court denied the motion, and the defendant appeals.

A court of record generally has the power “to issue a subpoena requiring the attendance of a person found in the state to testify in a cause pending in that court” (Judiciary Law § 2-b[1]). “Where the attendance at trial of a party or person within the party’s control can be compelled by a trial subpoena, that subpoena may be served by delivery in accordance with [CPLR 2103(b)] to the party’s attorney of record” (CPLR 2303-a). Here, the trial subpoena was properly served upon the defendant’s attorneys pursuant to CPLR 2303-a and 2103(b)(2). Contrary to the defendant’s contention, because he is a party to this action, over whom personal jurisdiction had been obtained, he is “found in the state” within the meaning of Judiciary Law § 2-b(1) … . Chicoine v Koch, 2018 NY Slip Op 03825, Second Dept 5-30-18

​CIVIL PROCEDURE (DEFENDANT WHO HAD APPEARED IN THE ACTION BUT HAD SINCE MOVED TO SOUTH CAROLINA COULD BE COMPELLED TO APPEAR AT TRIAL BY A SUBPOENA MAILED TO HIS NEW YORK ATTORNEY (FIRST DEPT))/SUBPOENAS (DEFENDANT WHO HAD APPEARED IN THE ACTION BUT HAD SINCE MOVED TO SOUTH CAROLINA COULD BE COMPELLED TO APPEAR AT TRIAL BY A SUBPOENA MAILED TO HIS NEW YORK ATTORNEY (FIRST DEPT))/TRIALS (SUBPOENAS, DEFENDANT WHO HAD APPEARED IN THE ACTION BUT HAD SINCE MOVED TO SOUTH CAROLINA COULD BE COMPELLED TO APPEAR AT TRIAL BY A SUBPOENA MAILED TO HIS NEW YORK ATTORNEY (FIRST DEPT))

DISMISSAL OF DEFENDANT’S COUNTERCLAIM FOR ADVERSE POSSESSION PROPERLY GRANTED, ELEMENTS OF PRE-AMENDMENT PROOF OF A CLAIM OF RIGHT APPLIED TO THE DISPUTED PROPERTY (SECOND DEPT).

he Second Department, after explaining the current law of adverse possession and finding that the prior (pre-amendment) law applied in this case, determined the defendant’s (Dominici’s) counterclaim seeking adverse possession of disputed property was properly dismissed:

… [T]he 2008 amendments to the adverse possession statutes contained in RPAPL article 5 (see id.) are not applicable where, as here, the alleged adverse possessor’s property right, as alleged, vested prior to the enactment of those amendments … . …

On October 1, 2012, the plaintiff became the titled owner of the property located at 541 Middle Country Road in Coram (hereinafter the 541 Property), which is adjacent to the property located at 543 Middle Country Road in Coram (hereinafter the 543 Property). The plaintiff had a survey taken on January 7, 2014, which showed that the owner of the 543 Property had encroached on a certain area of the 541 Property by paving, installing a fence, and putting a shed on the area. The president of the defendant, Michael Dominici, asserted in an affidavit that when he became the titled owner of the 543 Property in 1985, the paving and fence were already present, leading him to believe the disputed portion of the property belonged to the defendant. Dominici admitted that on August 18, 1990, he received a letter dated August 15, 1990, from the lawyer for the plaintiff’s predecessor-in-interest confirming a telephone call on August 13, 1990 (hereinafter together the 1990 letter and call), in which the lawyer notified Dominici of the encroachment and demanded that he vacate the disputed portion of the property or agree to a lease. Dominici further stated in his affidavit that he awaited further communication with proof of the claims. No further actions were taken with regard to the encroachment until 2014, when the plaintiff’s counsel sent Dominici a letter notifying him of the encroachment and warning of the commencement of an action to recover the disputed portion of the property if an agreement could not be reached. …

Under the pre-amendment law, in order to establish a claim to property by adverse possession, a claimant must prove, by clear and convincing evidence, that possession of the property was (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period … . While adverse possession is not a favored method of procuring title to real property, it is both a necessary and recognized method of acquiring title… . Further, under the law existing at the time the adverse possession by the defendant occurred, in order to defeat the claim of right, actual knowledge by the possessor as to who was the true owner was insufficient; an overt acknowledgment during the statutory period that ownership rested with another party was required … . Here, there was no “overt acknowledgment” by Dominici that ownership rested with another party. SLC Coram, LLC v 543 Middle Country Rd. Realty, LLC, 2018 NY Slip Op 03723, Second Dept 5-23-18

​REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (ADVERSE POSSESSION, DISMISSAL OF DEFENDANT’S COUNTERCLAIM FOR ADVERSE POSSESSION PROPERLY GRANTED, ELEMENTS OF PRE-AMENDMENT PROOF OF A CLAIM OF RIGHT APPLIED TO THE DISPUTED PROPERTY (SECOND DEPT))/ADVERSE POSSESSION (DISMISSAL OF DEFENDANT’S COUNTERCLAIM FOR ADVERSE POSSESSION PROPERLY GRANTED, ELEMENTS OF PRE-AMENDMENT PROOF OF A CLAIM OF RIGHT APPLIED TO THE DISPUTED PROPERTY (SECOND DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy