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JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge deprived defendant of a fair trial by asking questions of witnesses and interrupting cross-examination:

The principle restraining the court’s discretion is that a trial judge’s “function is to protect the record, not to make it” (… . Indeed, when the trial judge interjects often and indulges in an extended questioning of witnesses, even where those questions would be proper if they came from trial counsel, the trial judge’s participation presents significant risks of prejudicial unfairness … . Accordingly, while a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on “the function or appearance of an advocate” … .

Here, the Supreme Court interjected itself into the questioning of witnesses more than 50 times, asking more than 400 questions. The court elicited step-by-step details from several officers regarding their observations and actions during their apprehension of the defendant. In addition, the court elicited and assisted in developing facts damaging to the defense on direct examination of the People’s witnesses, bolstering the witnesses’ credibility. The court also interrupted cross-examination and generally created the impression that it was an advocate on behalf of the People. People v Hinds, 2018 NY Slip Op 02804, Second Dept 4-25-18

​CRIMINAL LAW (JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT))/JUDGES (CRIMINAL LAW, JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT))

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JUDGE DID NOT RULE ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, APPEAL HELD IN ABEYANCE, MATTER REMITTED FOR APPOINTMENT OF NEW COUNSEL AND A RULING ON THE MOTION (SECOND DEPT).

The Second Department held the appeal in abeyance because the defendant’s pro se motion to withdraw his plea was not ruled on. The matter was sent back for a ruling after defendant was assigned new counsel:

… [T]he County Court erred in failing to consider the defendant’s oral pro se application at the resentence proceeding to withdraw his plea of guilty. There is no indication in the record that the court ruled on the defendant’s motion. The court neither granted nor denied it on the record before us. As CPL 470.15(1) serves as a legislative restriction on this Court’s power to review issues not ruled upon by the trial court … , the court’s failure to rule on the motion precludes our review of the issue raised by the defendant’s appeal … . Accordingly, the matter must be remitted … for further proceedings on the defendant’s motion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and thereafter a report to this Court on the motion and whether the defendant established his entitlement to withdrawal of his plea of guilty. People v Rovinsky, 2018 NY Slip Op 02814, Second Dept 4-25-18

CRIMINAL LAW (PLEA, WITHDRAWAL OF, JUDGE DID NOT RULE ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, APPEAL HELD IN ABEYANCE, MATTER REMITTED FOR APPOINTMENT OF NEW COUNSEL AND A RULING ON THE MOTION (SECOND DEPT))/APPEALS (CRIMINAL LAW, FAILURE TO RULE, JUDGE DID NOT RULE ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, APPEAL HELD IN ABEYANCE, MATTER REMITTED FOR APPOINTMENT OF NEW COUNSEL AND A RULING ON THE MOTION (SECOND DEPT))/PLEA, MOTION TO WITHDRAW (CRIMINAL LAW, APPEALS, JUDGE DID NOT RULE ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, APPEAL HELD IN ABEYANCE, MATTER REMITTED FOR APPOINTMENT OF NEW COUNSEL AND A RULING ON THE MOTION (SECOND DEPT))

JUDGE DID NOT MAKE IT CLEAR THAT DEFENDANT’S SENTENCE INCLUDED A PERIOD OF POSTRELEASE SUPERVISION, PLEA VACATED AND MATTER REMITTED (SECOND DEPT).

The Second Department, vacating defendant’s plea, determined the judge did not make clear the sentence included a period of postrelease supervision:

A trial court has the constitutional duty to advise a defendant, before pleading guilty, of the direct consequences of a plea of guilty, including any period of postrelease supervision… . Although the court is not required to engage in any particular litany when allocuting the defendant, the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant… . Here, the record does not make clear that at the time the defendant entered his plea, he was aware that the terms of the County Court’s promised sentence included a period of postrelease supervision … . Accordingly, the judgment must be reversed, the plea vacated, and the matter remitted… . People v James, 2018 NY Slip Op 02805, Second Dept 4-25-18

​CRIMINAL LAW (SENTENCING, JUDGE DID NOT MAKE IT CLEAR THAT DEFENDANT’S SENTENCE INCLUDED A PERIOD OF POSTRELEASE SUPERVISION, PLEA VACATED AND MATTER REMITTED (SECOND DEPT))/SENTENCING (POSTRELEASE SUPERVISION, JUDGE DID NOT MAKE IT CLEAR THAT DEFENDANT’S SENTENCE INCLUDED A PERIOD OF POSTRELEASE SUPERVISION, PLEA VACATED AND MATTER REMITTED (SECOND DEPT))/POSTRELEASE SUPERVISION (SENTENCING,  JUDGE DID NOT MAKE IT CLEAR THAT DEFENDANT’S SENTENCE INCLUDED A PERIOD OF POSTRELEASE SUPERVISION, PLEA VACATED AND MATTER REMITTED (SECOND DEPT))

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AN ACTION AGAINST A NOT FOR PROFIT CORPORATION FOR BREACH OF A FIDUCIARY DUTY MUST ALLEGE THE FAILURE TO ACT IN GOOD FAITH ON BEHALF OF THE CORPORATION OR ITS MEMBERS, NOT, AS HERE, THE FAILURE TO ACT IN A MEMBER’S PERSONAL BEST INTEREST (SECOND DEPT).

The Second Department noted that an action against a not for profit corporation (here a yacht club) for breach of a fiduciary duty must allege the failure to act in good faith on behalf of the corporation or its members, not the failure to act in good faith in a member’s (plaintiff’s) personal best interest. The board had excluded plaintiff’s domestic partner, who was not a member, from the club:

The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct … . The directors of a not-for-profit corporation like the Club “have the fiduciary obligation to act on behalf of the corporation in good faith and with reasonable care so as to protect and advance its interests” … . Here, however, the complaint did not allege that the Club defendants failed to act in good faith on behalf of the Club or its members’ collective interests, but merely alleged that they failed to act in [plaintiff’s] personal best interest … . Accordingly, the complaint did not state a cause of action to recover damages for breach of fiduciary duty. Nachbar v Cornwall Yacht Club, 2018 NY Slip Op 02795, Second Dept 4-25-18

​CORPORATION LAW (AN ACTION AGAINST A NOT FOR PROFIT CORPORATION FOR BREACH OF A FIDUCIARY DUTY MUST ALLEGE THE FAILURE TO ACT IN GOOD FAITH ON BEHALF OF THE CORPORATION OR ITS MEMBERS, NOT, AS HERE, THE FAILURE TO ACT IN A MEMBER’S PERSONAL BEST INTEREST (SECOND DEPT))/NOT FOR PROFIT CORPORATION (AN ACTION AGAINST A NOT FOR PROFIT CORPORATION FOR BREACH OF A FIDUCIARY DUTY MUST ALLEGE THE FAILURE TO ACT IN GOOD FAITH ON BEHALF OF THE CORPORATION OR ITS MEMBERS, NOT, AS HERE, THE FAILURE TO ACT IN A MEMBER’S PERSONAL BEST INTEREST (SECOND DEPT))/YACHT CLUB (CORPORATION LAW, AN ACTION AGAINST A NOT FOR PROFIT CORPORATION FOR BREACH OF A FIDUCIARY DUTY MUST ALLEGE THE FAILURE TO ACT IN GOOD FAITH ON BEHALF OF THE CORPORATION OR ITS MEMBERS, NOT, AS HERE, THE FAILURE TO ACT IN A MEMBER’S PERSONAL BEST INTEREST (SECOND DEPT)/FIDUCIARY DUTY (CORPORATION LAW, AN ACTION AGAINST A NOT FOR PROFIT CORPORATION FOR BREACH OF A FIDUCIARY DUTY MUST ALLEGE THE FAILURE TO ACT IN GOOD FAITH ON BEHALF OF THE CORPORATION OR ITS MEMBERS, NOT, AS HERE, THE FAILURE TO ACT IN A MEMBER’S PERSONAL BEST INTEREST (SECOND DEPT))

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AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion to defend an action pursuant to CPLR 317 should not have been granted. The affidavit alleging defendant moved its office and failed to notify the secretary of state of the move (and therefore did not receive the summons) was deemed insufficient:

CPLR 317 provides that a person served with a summons, other than by personal delivery to him or her, who does not appear, may be allowed to defend the action within one year after he or she obtains knowledge of entry of the judgment upon a finding of the court that he or she did not personally receive notice of the summons in time to defend and has a potentially meritorious defense … . “The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317” … . Here, the defendant Grand Slam Ventures, LLC (hereinafter Grand Slam), failed to establish that it did not personally receive notice of the summons in time to defend the action. The affidavit of Grand Slam’s managing member averring that Grand Slam moved its office to an unspecified address in 2010, five years before the action was commenced, and failed to update its address on file with the Secretary of State, was not sufficiently detailed or substantiated to establish lack of actual notice of the action … . Moran v Grand Slam Ventures, LLC, 2018 NY Slip Op 02776, Second Dept 4-25-18

​CIVIL PROCEDURE (SERVICE OF PROCESS, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))/SERVICE OF PROCESS (CPLR 317, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))/CPLR 317 (SERVICE OF PROCESS, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))/EVIDENCE (SERVICE OF PROCESS, CPLR 317, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))

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CONTRACTUAL AGREEMENT TO A ONE YEAR STATUTE OF LIMITATIONS FOR A BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN ENFORCED, PLAINTIFF HAD NO CONTROL OVER WHEN THE DEFENDANT COULD TAKE AN ACTION WHICH BREACHED THE CONTRACT, HERE THE ALLEGED BREACH BY DEFENDANT DIDN’T TAKE PLACE UNTIL AFTER THE LIMITATIONS PERIOD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, under the facts, the contractual provision creating a one year statute of limitations for a breach of contract action was not fair and should not have been enforced. It was not the duration of the limitations period that was deemed unfair, rather it was the defendant’s lack of control over the actions by the plaintiff which could be deemed to have breached the contract:

There is nothing inherently unreasonable about the one-year period of limitation, to which the parties here freely agreed … . “The problem with the limitation period in this case is not its duration, but its accrual date” … . It is neither fair nor reasonable to require that an action be commenced within one year from the date of the plaintiff’s substantial completion of its work on the project, while imposing a condition precedent to the action that was not within the plaintiff’s control and which was not met within the limitations period. “A limitation period’ that expires before suit can be brought is not really a limitation period at all, but simply a nullification of the claim” … . The limitation period in the subcontract conflicts with the conditions precedent to payment becoming due to the plaintiff, which, under the circumstances of this case, acted to nullify any claim the plaintiff might have for breach of the subcontract. Therefore, interpreting the subcontract against the defendant, which drafted the agreement … , we find that the one-year limitation period is unenforceable under the circumstances here … . D&S Restoration, Inc. v Wenger Constr. Co., Inc., 2018 NY Slip Op 02768, Second Dept 4-25-18

​CIVIL PROCEDURE (CONTRACTUAL AGREEMENT TO A ONE YEAR STATUTE OF LIMITATIONS FOR A BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN ENFORCED, PLAINTIFF HAD NO CONTROL OVER WHEN THE DEFENDANT COULD TAKE AN ACTION WHICH BREACHED THE CONTRACT, HERE THE ALLEGED BREACH BY DEFENDANT DIDN’T TAKE PLACE UNTIL AFTER THE LIMITATIONS PERIOD (SECOND DEPT))/STATUTE OF LIMITATIONS (CONTRACTUAL AGREEMENT TO A ONE YEAR STATUTE OF LIMITATIONS FOR A BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN ENFORCED, PLAINTIFF HAD NO CONTROL OVER WHEN THE DEFENDANT COULD TAKE AN ACTION WHICH BREACHED THE CONTRACT, HERE THE ALLEGED BREACH BY DEFENDANT DIDN’T TAKE PLACE UNTIL AFTER THE LIMITATIONS PERIOD (SECOND DEPT))/CONTRACT LAW (STATUTE OF LIMITATIONS, CONTRACTUAL AGREEMENT TO A ONE YEAR STATUTE OF LIMITATIONS FOR A BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN ENFORCED, PLAINTIFF HAD NO CONTROL OVER WHEN THE DEFENDANT COULD TAKE AN ACTION WHICH BREACHED THE CONTRACT, HERE THE ALLEGED BREACH BY DEFENDANT DIDN’T TAKE PLACE UNTIL AFTER THE LIMITATIONS PERIOD (SECOND DEPT))

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FAILURE TO TIMELY FILE A CONSENT TO CHANGE ATTORNEY DID NOT JUSTIFY THE DENIAL OF A MOTION BROUGHT BY THE NEW ATTORNEY, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the failure to file a consent to change attorney form was not a reason to deny the motion brought by new counsel, and the motion to vacate plaintiff’s default should have been granted because the process server was not able to produce his log book:

CPLR 321(b)(1) provides that an attorney of record may be changed by filing a consent to change attorney signed by the retiring attorney and the party. Notice must be given to adverse parties. In this case, it appears that at the time the defendant’s motion for leave to renew and reargue was made, no consent to change attorney had been filed. A technical failure to comply with CPLR 321(b), however, does not render the acts of the new attorney a nullity … . In this case, the plaintiff claims no prejudice, and the consent to change attorneys was filed while the motion was still pending … . Thus, contrary to the plaintiff’s contention, the belated compliance with CPLR 321(b) was not a basis to deny the defendant’s motion … .

At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence … . The plaintiff failed to meet that burden. Where a process server has no independent recollection of events, a process server’s logbook may be admitted in evidence as a business record … . Here, however, the logbook was not produced in court or introduced in evidence. Thus, there was no evidence—other than the process server’s description of a business record not before the court, which the process server claimed he was unable to locate—to support the claim that service occurred at 7:05 p.m., when the person who allegedly received the papers was present to receive them. Sperry Assoc. Fed. Credit Union v John, 2018 NY Slip Op 02823, Second Dept 4-25-18

​CIVIL PROCEDURE (CONSENT TO CHANGE ATTORNEY, FAILURE TO TIMELY FILE A CONSENT TO CHANGE ATTORNEY DID NOT JUSTIFY THE DENIAL OF A MOTION BROUGHT BY THE NEW ATTORNEY, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/ATTORNEYS  (CONSENT TO CHANGE ATTORNEY, FAILURE TO TIMELY FILE A CONSENT TO CHANGE ATTORNEY DID NOT JUSTIFY THE DENIAL OF A MOTION BROUGHT BY THE NEW ATTORNEY, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/CONSENT TO CHANGE ATTORNEY (FAILURE TO TIMELY FILE A CONSENT TO CHANGE ATTORNEY DID NOT JUSTIFY THE DENIAL OF A MOTION BROUGHT BY THE NEW ATTORNEY, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/EVIDENCE (VACATE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/SERVICE OF PROCESS (VACATE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))/LOG BOOK (SERVICE OF PROCESS, VACATE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT))

ONE YEAR SUSPENSION OF PETITIONER’S DRIVER’S LICENSE SHOCKED ONE’S SENSE OF FAIRNESS, SUPREME COURT REVERSED, MATTER REMITTED TO THE COMMISSIONER OF MOTOR VEHICLES FOR IMPOSITION OF A 60 DAY SUSPENSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a one year suspension of petitioner’s driver’s license shocked one’s sense of fairness and remitted the matter to the Commissioner of Motor Vehicles to impose a 60 day suspension (the facts were not described):

“An administrative penalty must be upheld unless it is so disproportionate to the offense . . . as to be shocking to one’s sense of fairness,’ thus constituting an abuse of discretion as a matter of law”… . This Court has no discretionary authority or interest of justice jurisdiction to review the penalty imposed in a CPLR article 78 proceeding … . Here, under the unique facts and circumstances of this particular case, the penalty imposed of a one-year suspension of the petitioner’s driver license was so disproportionate to the offense as to be shocking to one’s sense of fairness, thus constituting an abuse of discretion as a matter of law … . Matter of Clapp v Fiala, 2018 NY Slip Op 02778, Second Dept 4-25-18

ADMINISTRATIVE LAW (ONE YEAR SUSPENSION OF PETITIONER’S DRIVER’S LICENSE SHOCKED ONE’S SENSE OF FAIRNESS, SUPREME COURT REVERSED, MATTER REMITTED TO THE COMMISSIONER OF MOTOR VEHICLES FOR IMPOSITION OF A 60 DAY SUSPENSION (SECOND DEPT))/DRIVER’S LICENSE (ONE YEAR SUSPENSION OF PETITIONER’S DRIVER’S LICENSE SHOCKED ONE’S SENSE OF FAIRNESS, SUPREME COURT REVERSED, MATTER REMITTED TO THE COMMISSIONER OF MOTOR VEHICLES FOR IMPOSITION OF A 60 DAY SUSPENSION (SECOND DEPT))/SUSPENSION, DRIVER’S LICENSE, ONE YEAR SUSPENSION OF PETITIONER’S DRIVER’S LICENSE SHOCKED ONE’S SENSE OF FAIRNESS, SUPREME COURT REVERSED, MATTER REMITTED TO THE COMMISSIONER OF MOTOR VEHICLES FOR IMPOSITION OF A 60 DAY SUSPENSION (SECOND DEPT))/MOTOR VEHICLES, COMMISSIONER  (ONE YEAR SUSPENSION OF PETITIONER’S DRIVER’S LICENSE SHOCKED ONE’S SENSE OF FAIRNESS, SUPREME COURT REVERSED, MATTER REMITTED TO THE COMMISSIONER OF MOTOR VEHICLES FOR IMPOSITION OF A 60 DAY SUSPENSION (SECOND DEPT))

COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint stated a cause of action to quiet title:

“To maintain a cause of action to quiet title [to real property], a plaintiff must allege actual or constructive possession of the property and the existence of a removable cloud on the property, which is an apparent title to the property, such as in a deed or other instrument, that is actually invalid or inoperative” … . …

Here, the complaint alleged, in relevant part, that the plaintiff acquired title to the subject property pursuant to a deed dated September 10, 2008, from nonparty Joon Asset Mgmt. Corp. (hereinafter Joon). The complaint also alleged that the plaintiff is in possession of the property and that there exists a removable cloud on the property in the form of a deed dated January 7, 2008, and recorded November 6, 2008, purporting to convey title to the property from Joon to the defendant Edna Rios. The complaint further alleged that the deed to Rios was invalid and part of a fraudulent scheme, and that Rios’s role in the scheme was that of a “straw buyer.” The complaint sought to adjudge the deed dated January 7, 2008, to be a fraudulent deed, the plaintiff to be the holder of an undivided fee interest in the premises pursuant to the deed dated September 10, 2008, and Rios to be barred from all claims to any estate or interest in the premises.

Accepting these allegations as true, the complaint pleads a viable cause of action to quiet title … . Nurse v Rios, 2018 NY Slip Op 02640, Second Dept 4-18-18

​REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (QUIET TITLE, COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT))/QUIET TITLE (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT))/DEEDS (QUIET TITLE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT))/FRAUD (QUIET TITLE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT))

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PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim should not have been granted. Petitioner’s decedent was transported from a nursing home to a hospital by a town ambulance. He was pronounced dead at the hospital. Petitioner sought to file a notice of claim against the town one month after the deadline for the wrongful death cause of action (the deadline is 90 days following the appointment of a representative of the estate) and 11 months after the deadline for the medical malpractice and Public Health Law causes of action:

The petitioner failed to provide a reasonable excuse for her failure to serve a timely notice of claim. The failure of the petitioner and her attorneys to review the medical records and ascertain a claim against the appellants in a timely manner is not an acceptable excuse … .

Furthermore, the petitioner failed to submit evidence establishing that the appellants acquired actual knowledge of the facts constituting the claims within 90 days or a reasonable time thereafter. The petitioner provided no records or documentation in support of the petition demonstrating such actual knowledge on the part of the appellants … . The notice of claim was served on the appellants together with the petition more than 1 month after the 90-day statutory period applicable to the wrongful death claim had elapsed and 11 months after the 90-day statutory period applicable to the remaining claims had elapsed. This service occurred too late to provide the appellants with actual knowledge of the essential facts constituting the claims within a reasonable time after the expiration of the applicable statutory period … .

Inasmuch as the petitioner failed to present any evidence or plausible argument that the appellants have not been substantially prejudiced by the delay, the appellants never became required to make “a particularized evidentiary showing” that they were substantially prejudiced … . Matter of Mangino v Town of Mamaroneck, 2018 NY Slip Op 02625, Second Dept 4-18-18

​NEGLIGENCE (MUNICIPAL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))/TRUSTS AND ESTATES (NEGLIGENCE, MUNICIPAL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))/NOTICE OF CLAIM (NEGLIGENCE, MUNICIPAL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))/WRONGFUL DEATH (MUNICIPAL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))

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