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CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the continuing wrong doctrine operated to toll the statute of limitations in this breach of contract/breach of warranty of habitability action involving damage to plaintiff’s cooperative apartment during a 2004 renovation. Plaintiff alleged the damage had never been repaired and brought his action in 2016. The Second Department held that the continuing wrong doctrine tolled the statute of limitations but damages were recoverable for only the six years preceding the commencement of the action:

The continuing wrong doctrine “is usually employed where there is a series of continuing wrongs and serves to toll the running of a period of limitations to the date of the commission of the last wrongful act” … . “In contract actions, the doctrine is applied to extend the statute of limitations when the contract imposes a continuing duty on the breaching party” … . Here, the plaintiff alleged that the damage to his unit persisted and had not been repaired, and that such breach constituted a continuing breach of the defendants’ contractual duty to keep the building in good repair and to provide habitable premises … . However, where, as here, the sole remedy sought for the alleged continuing contractual breaches is monetary damages, the plaintiff’s recovery must be limited to damages incurred within the six years prior to commencement of the action … . Garron v Bristol House, Inc., 2018 NY Slip Op 04533, Second Dept 6-20-18

​CONTRACT LAW (CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))/STATUTE OF LIMITATIONS (CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))/COOPERATIVES (CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))/HABITABILITY, WARRANTY OF  (CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))

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MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for a change of venue on discretionary grounds was not brought in the correct county and should not have been granted. The issue was properly before the appellate court despite not having been raised below:

It is undisputed that, pursuant to CPLR 503(a), venue of the Ulster County Action is properly in Ulster County, where Bacci, one of the Ulster plaintiffs, resided at the time the action was commenced … . A motion to change venue on discretionary grounds, unlike motions made as of right, must be made in the county in which the action is pending, or in any county in that judicial district, or in any adjoining county (see CPLR 2212[a]…). The Fenstermen parties, therefore, were required to make a motion pursuant to CPLR 510(3) either in Ulster County, where the Ulster County Action was pending, in another county in the 3rd Judicial District, or in a county contiguous to Ulster County (see CPLR 2212[a] …). Since Ulster County and Nassau County are not contiguous, and Nassau County is not in the 3rd Judicial District, the Fensterman parties’ motion to change venue pursuant to CPLR 510(3) based on discretionary grounds was improperly made in the Supreme Court, Nassau County … . Although not argued by the parties in the Supreme Court, Nassau County, but argued on appeal, we reach this issue in the exercise of our discretion because it appears on the face of the record and could not have been avoided or explained if raised in the Supreme Court … . Fensterman v Joseph, 2018 NY Slip Op 04532, Second Dept 6-20-18

​CIVIL PROCEDURE (MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))/CPLR 503 (MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))/CPLR 2212  (MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))/VENUE  (MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))/APPEALS (CIVIL PROCEDURE, VENUE, MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT))

GENERAL CONTRACTOR DID NOT EXERCISE SUFFICIENT SUPERVISORY CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200 OR COMMON LAW NEGLIGENCE (SECOND DEPT).

The Second Department determined plaintiff’s knee injury stemming from carrying a heavy beam down stairs was not covered under Labor Law 240 (1). The court further found that defendant general contractor (Talisen) did not exercise sufficient supervisory control over plaintiff’s work to be liable under Labor Law 200 or common law negligence:

Labor Law § 200 codifies the common-law duty imposed on an owner or a general contractor to provide construction site workers with a safe place to work … . Where a plaintiff’s claims implicate the means and methods of the work, an owner or a contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the performance of the work. General supervisory authority to oversee the progress of the work is insufficient to impose liability… . ” A defendant has the authority to control the work for the purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed'” … . If the challenged means and methods of the work are those of a subcontractor, and the owner or contractor exercises no supervisory control over the work, no liability attaches under Labor Law § 200 or the common law … .

In this case, Talisen met its prima facie burden of demonstrating a lack of sufficient supervisory control over the plaintiff’s work to subject it to liability under either Labor Law § 200 or common-law negligence. In support of its motion, Talisen presented the deposition testimony of its project superintendent as well as the owner of Premier showing that decisions regarding the means and methods for carrying the beam were the responsibility of Premier. In opposition, the plaintiff failed to raise a triable issue of fact. Sullivan v New York Athletic Club of City of N.Y., 2018 NY Slip Op 04591, Second Dept 6-20-18

​LABOR LAW-CONSTRUCTION LAW (GENERAL CONTRACTOR DID NOT EXERCISE SUFFICIENT SUPERVISORY CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200 OR COMMON LAW NEGLIGENCE (SECOND DEPT))/GENERAL CONTRACTOR (LABOR LAW-CONSTRUCTION LAW, GENERAL CONTRACTOR DID NOT EXERCISE SUFFICIENT SUPERVISORY CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200 OR COMMON LAW NEGLIGENCE (SECOND DEPT))

KNEE INJURY CAUSED BY CARRYING A HEAVY STEEL BEAM DOWN STAIRS IS NOT A COVERED ACCIDENT UNDER LABOR LAW 240 (1) (SECOND DEPT).

The Second Department, modifying Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly granted and defendant’s (Premier’s) motion for summary judgment dismissing the Labor Law 240 (1) cause of action should have been granted. Plaintiff injured his knee carrying a heavy steel beam down some stairs. The court held that the incident was not encompassed by Labor Law 240 (1):

… [T]he plaintiff did not establish his prima facie entitlement to judgment as a matter of law, since he failed to demonstrate that his injury was caused by an elevation-related hazard encompassed by Labor Law § 240(1). The plaintiff’s evidence demonstrated that the cause of his injury was the weight of the beam he was carrying. The mere fact that the plaintiff was injured by the weight of a heavy object being lifted or carried does not give rise to liability pursuant to Labor Law § 240(1) … . The Court of Appeals has “repeatedly held, implicitly and explicitly, that it is not enough that a plaintiff’s injury flowed directly from the application of the force of gravity to an object or person, even where a device specified by the statute might have prevented the accident” … . Accordingly, the Supreme Court properly denied the plaintiff’s cross motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).

Premier established its prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action through evidence that the plaintiff was injured by the weight of the beam as opposed to an elevation-related risk … . Sullivan v New York Athletic Club of City of N.Y., 2018 NY Slip Op 04590, Second Dept 6-20-18

​LABOR LAW-CONSTRUCTION LAW (KNEE INJURY CAUSED BY CARRYING A HEAVY STEEL BEAM DOWN STAIRS IS NOT A COVERED ACCIDENT UNDER LABOR LAW 240 (1) (SECOND DEPT))

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NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT).

The Second Department determined no special relationship had been formed between the police department and plaintiff’s decedent, who was killed by her husband after she alerted the police he had contacted her in violation of an order of protection. The husband had previously taken plaintiff’s decedent and their two teenage daughters hostage and threatened them with knives and a shotgun. The police department was immune from suit:

Generally, “a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection” … . When a cause of action alleging negligence is asserted against a municipality, and the municipality is exercising a governmental function, the plaintiff must first demonstrate that the municipality owed a special duty to the injured person … . The elements required to establish such a duty are: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that, while the police endeavored to contact the husband in order to instruct him not to further communicate with the decedent, the police did not promise to arrest the husband and the decedent could not have justifiably relied upon assurances of police protection … . Axt v Hyde Park Police Dept., 2018 NY Slip Op 04298, Second Dept 6-13-18

​NEGLIGENCE (MUNICIPAL LAW, POLICE, NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, POLICE, NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT))/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, POLICE, NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, POLICE, NEGLIGENCE, IMMUNITY, NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF’S DECEDENT AND THE POLICE DEPARTMENT, PLAINTIFF’S DECEDENT WAS KILLED BY HER HUSBAND SHORTLY AFTER SHE REPORTED TO THE POLICE THAT HER HUSBAND HAD CONTACTED HER IN VIOLATION OF AN ORDER OF PROTECTION (SECOND DEPT))

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MOTION TO AMEND NOTICE OF CLAIM TO CORRECT THE ADDRESS OF THE ACCIDENT TWO YEARS AFTER THE CLAIM ACCRUED PROPERLY DENIED, PLAINTIFF DID NOT SHOW DEFENDANT WAS NOT PREJUDICED BY THE WRONG ADDRESS (SECOND DEPT).

The Second Department determined plaintiff’s motion to amend the notice of claim, two years after the claim accrued, to add the correct address of the accident was properly denied. Plaintiff did not demonstrate the failure to provide the correct address did not prejudice the NYC Housing Authority (defendant):

A motion for leave to amend a notice of claim may be granted provided that the error in the original notice of claim was made in good faith and the municipality has not been prejudiced thereby … .

Here, the plaintiff failed to meet her initial burden of demonstrating the absence of prejudice to the defendant arising from the plaintiff’s incorrect description of the accident location… . The plaintiff relied solely on the transient nature of the condition that allegedly caused her to fall to support her contention that the defendant did not suffer prejudice. The plaintiff did not allege that there were any witnesses to the incident or to the condition complained of, that the plaintiff received any medical assistance at the site, or that the accident was reported to anyone so as to give the defendant actual knowledge of the essential facts constituting the claim within the statutory period or a reasonable time thereafter … . Jenkins v New York City Hous. Auth., 2018 NY Slip Op 04313, Second Dept 6-13-18

​NEGLIGENCE (MUNICIPAL LAW, MOTION TO AMEND NOTICE OF CLAIM TO CORRECT THE ADDRESS OF THE ACCIDENT TWO YEARS AFTER THE CLAIM ACCRUED PROPERLY DENIED, PLAINTIFF DID NOT SHOW DEFENDANT WAS NOT PREJUDICED BY THE WRONG ADDRESS (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, MOTION TO AMEND NOTICE OF CLAIM TO CORRECT THE ADDRESS OF THE ACCIDENT TWO YEARS AFTER THE CLAIM ACCRUED PROPERLY DENIED, PLAINTIFF DID NOT SHOW DEFENDANT WAS NOT PREJUDICED BY THE WRONG ADDRESS (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, MOTION TO AMEND NOTICE OF CLAIM TO CORRECT THE ADDRESS OF THE ACCIDENT TWO YEARS AFTER THE CLAIM ACCRUED PROPERLY DENIED, PLAINTIFF DID NOT SHOW DEFENDANT WAS NOT PREJUDICED BY THE WRONG ADDRESS (SECOND DEPT))

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BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT).

The Second Department, reversing a bench trial verdict in Supreme Court, determined defendant transit authority was not liable for plaintiff’s slip and fall on black ice upon exiting defendant’s bus:

The defendant, as a common carrier, “owe[d] a duty to alighting passenger[s] to stop at a place where [they] may safely disembark and leave the area” … , and towards that end “to exercise reasonable and commensurate care in view of the dangers to be apprehended” … . However, whether the defendant has breached its duty to provide a passenger a safe place to alight from the bus will depend on whether the bus driver could have observed the dangerous condition from the driver’s vantage point… . Here, there was no evidence that the bus driver was aware of or reasonably should have been aware of the ice in the roadway. The fact that it was cold and there was a pile of snow near the rear exit does not create a basis to conclude that the bus driver should have known of the dangerous condition … . Guzman v New York City Tr. Auth., 2018 NY Slip Op 04310, Second Dept 6-13-18

​NEGLIGENCE (MUNICIPAL LAW, BUSES, BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT))/MUNICIPAL LAW (BUSES, BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT))/BUSES (NEGLIGENCE, MUNICIPAL LAW, BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT))/SLIP AND FALL (NEGLIGENCE, MUNICIPAL LAW, BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT))

BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT).

In a rear-end collision case involving three cars and motions and cross motions for summary judgment, the Second Department carefully laid out the burdens of proof on summary judgment motions in this context, as well as the applicability of comparative negligence in this context. The plaintiff’s car was stopped and was struck in the rear by the Ramos car. Ramos alleged the Nisanov car was on the shoulder and the collision happened when Ramos avoided collision with the Nisanov car. The Nisanov defendants alleged plaintiff was comparatively negligent. The court held that the plaintiff was entitled to summary judgment in the action against Ramos, and plaintiff was entitled to summary judgment dismissing the affirmative defense of the Nisamov defendants alleging plaintiff’s comparative negligence:

A plaintiff moving for summary judgment on a cause of action asserted in a complaint generally has the burden of establishing, prima facie, “all of the essential elements of the cause of action”… . By contrast, a defendant moving for summary judgment dismissing one of the plaintiff’s causes of action may generally sustain his or her prima facie burden “by negating a single essential element” of that cause of action … . To defeat summary judgment, the nonmoving party need only rebut the prima facie showing made by the moving party so as to demonstrate the existence of a triable issue of fact … . …

Ramos’s version of the accident raised a triable issue of fact as to whether Dayan Nisanov was free from fault in the happening of the accident… . Accordingly, we agree with the Supreme Court’s determination to deny that branch of the Nisanov defendants’ cross motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that they were not at fault in the happening of the accident. …

Inasmuch as the deposition testimony of Dayan Nisanov and the plaintiff indicated that Dayan Nisanov was not negligent in the operation of his vehicle, while the deposition testimony of Ramos indicated that Dayan Nisanov was negligent in the operation of his vehicle, the plaintiff’s submissions failed to eliminate all triable issues of fact as to whether Dayan Nisanov was negligent and, if so, whether any such negligence caused or contributed to the accident … . Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the complaint insofar as asserted against the Nisanov defendants … .

Although a plaintiff need not demonstrate the absence of his or her own comparative negligence to be entitled to partial summary judgment as to a defendant’s liability… , the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant’s affirmative defense of comparative negligence  … . Poon v Nisanov, 2018 NY Slip Op 04365, Second Dept 6-13-18

​NEGLIGENCE (BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))/TRAFFIC ACCIDENTS (BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))/REAR-END COLLISIONS  (BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))/SUMMARY JUDGMENT (TRAFFIC ACCIDENTS, BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))/COMPARATIVE NEGLIGENCE (TRAFFIC ACCIDENTS, BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))

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PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank was not entitled to summary judgment in this foreclosure action because the proof of mailing of the required notice did not meet the requirements of Real Property Actions and Proceedings Law (RPAPL) 1304:

… [T]he plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304. “[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” … . Here, contrary to the plaintiff’s contention, the “affidavit of mailing” of a vice president for loan documentation of its loan servicer was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304, as the loan servicer did not provide proof of a standard office mailing procedure and provided no independent proof of the actual mailing … . US Bank N.A. v Sims, 2018 NY Slip Op 04374, Second Dept 6-13-18

​FORECLOSURE (NOTICE, PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, MAILING, NOTICE, PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MAILING (FORECLOSURE,  PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT).

The Second Department determined plaintiff’s action for conversion and breach of a fiduciary duty was timely. Plaintiff was the beneficiary of a structured settlement with payments which were to begin in 1998 and continue for the rest of his life. Defendant, who was the custodian of the structured settlement while plaintiff was minor, did not inform the plaintiff of the settlement and used the funds for her own purposes. The Second Department held that conversion sounds in fraud. Therefore the six-year statute of limitations applied and the statute did not begin to run until plaintiff became aware of fraud in 2013:

Contrary to the defendant’s contentions, since the cause of action for conversion is based upon fraud, it is governed by the statute of limitations period for fraud set forth in CPLR 213(8) … . The limitations period for fraud under CPLR 213(8) also applies to the breach of fiduciary duty causes of action inasmuch as the allegations of fraud are essential to those claims … .

Pursuant to CPLR 213(8), “the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it.” “A cause of action based upon fraud accrues, for statute of limitations purposes, at the time the plaintiff possesses knowledge of facts from which the fraud could have been discovered with reasonable diligence'” … .

Here, the plaintiff established that he could not, with reasonable diligence, have discovered the fraud until 2013, when he learned for the first time that he was the beneficiary of a structured settlement from which he was entitled to receive millions of dollars in monthly and periodic lump-sum payments. Monteleone v Monteleone, 2018 NY Slip Op 04317, Second Dept 6-13-18

​FRAUD (STATUTE OF LIMITATIONS, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/CONVERSION  (STATUTE OF LIMITATIONS, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, FRAUD, CONVERSION, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/STATUTE OF LIMITATIONS (FRAUD, CONVERSION, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/FRAUD (STATUTE OF LIMITATIONS, CONVERSION, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/CONVERSION (STATUTE OF LIMITATIONS, FRAUD,  SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/CPLR 213 (STATUTE OF LIMITATIONS, FRAUD, CONVERSION, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))

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