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NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW NOT DEMONSTRATED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not demonstrate it met the notice requirements of the Real Property Actions and Proceedings Law (RPAPL):

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… [P]laintiff submitted an affidavit of its vice president, who averred that he had reviewed the business records, maintained in the regular course of business by the plaintiff, relating to [the] loan. Based upon his review, he averred that the RPAPL 1304 notice was “sent in accordance with New York RPAPL 1304” on January 10, 2011. This unsubstantiated and conclusory statement was insufficient to establish that the required RPAPL 1304 notice was mailed … by registered or certified mail and also by first-class mail… . Further, since the plaintiff was not an assignee of the mortgage at the time the notice allegedly was served, the basis of the vice president’s knowledge is unclear … .

Moreover, [defendant] raised a triable issue of fact with respect to whether the RPAPL 1303 notice was in the proper form … . Central Mtge. Co. v Abraham, 2017 NY Slip Op 03929, 2nd Dept 5-17-17

FORECLOSURE (NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW NOT DEMONSTRATED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED)/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW NOT DEMONSTRATED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (FORECLOSURE, NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW NOT DEMONSTRATED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED)

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FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN.

The Second Department, reversing Family Court, determined, in the absence of a fact-finding proceeding, father should not have been deemed to have derivatively neglected his children based solely upon his guilty plea to endangering the welfare of one of his children:

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“A criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct” … . Family Court Act § 1012(f)(i) defines a neglected child as one “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care” … by, inter alia, “unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof.” Here, since the father’s conviction for endangering the welfare of a child was based upon the same acts alleged to constitute neglect, the father’s conviction established, prima facie, that Blima M. was a neglected child … . …

However, the Family Court erred in granting that branch of ACS’s [Administration for Children’s Services’] motion which was for summary judgment determining that the father derivatively neglected Hersh M., Jacob M., Aron M., Moshe M., and Dina M. While proof of the neglect of one child shall be admissible evidence on the issue of the neglect of any other child of, or the legal responsibility of, the respondent … , a finding of abuse or neglect as to one sibling does not mandate a finding of derivative abuse or neglect as to the other siblings … . Matter of Blima M. (Samuel M.), 2017 NY Slip Op 03954, 2nd Dept 5-17-17

 

FAMILY LAW (FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN)/NEGLECT (FAMILY LAW, FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN)/DERIVATIVE NEGLECT (FAMILY LAW, FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN)/CRIMINAL LAW (ENDANGERING THE WELFARE OF A CHILD, FAMILY LAW, FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN)

FATHER’S MOTION TO VACATE THE DEFAULT DISMISSAL OF HIS VISITATION PETITION SHOULD HAVE BEEN GRANTED, LIBERAL POLICY IN FAVOR OF VACATING DEFAULT NOTED.

The Second Department, reversing Family Court, determined father’s motion to vacate the default dismissal of his visitation petition should have been granted. The court noted the liberal policy in favor of vacating defaults in this context:

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In custody proceedings pursuant to Family Court Act article 6, this Court has adopted a liberal policy in favor of vacating defaults… . Under the circumstances presented here, and in light of the policy favoring resolution on the merits in child custody proceedings, the father demonstrated a reasonable excuse for his failure to appear on March 1, 2016 … . The father’s absence was not willful. Notably, the father had never missed any prior scheduled Family Court appearances and had been compliant with all of the court’s directives. Moreover, there was no indication that a final determination of the petitions pending before the court would occur on the March 1, 2016, date. Finally, the father filed his motion to vacate within two months of the default. Under the totality of these circumstances, the court improvidently exercised its discretion in denying the father’s motion to vacate the March 2016 orders on the ground that his excuse for his absence was not reasonable … . Matter of Lemon v Faison, 2017 NY Slip Op 03953, 2nd Dept 5-17-17

FAMILY LAW (FATHER’S MOTION TO VACATE THE DEFAULT DISMISSAL OF HIS VISITATION PETITION SHOULD HAVE BEEN GRANTED, LIBERAL POLICY IN FAVOR OF VACATING DEFAULT NOTED)/DEFAULT (FAMILY LAW, FATHER’S MOTION TO VACATE THE DEFAULT DISMISSAL OF HIS VISITATION PETITION SHOULD HAVE BEEN GRANTED, LIBERAL POLICY IN FAVOR OF VACATING DEFAULT NOTED)

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REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff, seeking payment of a note, did not submit proof of the payment history of the note in admissible form (requirements of the business records exception to the hearsay rule not met). Therefore plaintiff’s motion for summary judgment should not have been granted:

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… [T]he plaintiff failed to demonstrate the admissibility of the records relied upon by its account officer under the business records exception to the hearsay rule (see CPLR 4518[a]), and thus, failed to establish a default in payment under the note. “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . Here, the plaintiff’s account officer did not allege that she was personally familiar with HSBC’s record keeping practices and procedures, and thus failed to lay a proper foundation for the admission of records concerning the payment history under the note … . Inasmuch as the plaintiff’s motion was based on evidence that was not in admissible form, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law … . Cadlerock Joint Venture, L.P. v Trombley, 2017 NY Slip Op 03927, 2nd Dept 5-17-17

CIVIL PROCEDURE (BUSINESS RECORDS EXCEPTION TO HEARSAY RULE, REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (BUSINESS RECORDS EXCEPTION TO HEARSAY RULE, REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED)/DEBTOR-CREDITOR (BUSINESS RECORDS EXCEPTION TO HEARSAY RULE, REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED)

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CAUSE OF ACTION BASED UPON A LOAN PAYABLE UPON DEMAND ACCRUES WHEN THE LOAN IS MADE.

The Second Department determined plaintiff’s causes of action based upon loans repayable on demand accrued when the loan was made, rendering them time-barred, despite the provision that payment became due three months after a demand for payment:

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Here, the parties’ agreement … provided that the sums loaned to the defendants were repayable on demand. Accordingly, the plaintiff possessed a legal right to demand payment at the time that each loan was advanced to the defendants, and the statute of limitations began to run at each of those respective times … . Contrary to the plaintiff’s contention, the three-month period for repayment following a demand did not constitute a condition that had to be fulfilled before the right to final payment arose… . Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss as time-barred so much of the first cause of action as was predicated upon loans that allegedly were made more than six years prior to the commencement of the action. Elia v Perla, 2017 NY Slip Op 03930, 2nd Dept 5-17-17

CIVIL PROCEDURE (STATUTE OF LIMITATIONS, CAUSE OF ACTION BASED UPON A LOAN PAYABLE UPON DEMAND ACCRUES WHEN THE LOAN IS MADE)/DEBTOR-CREDITOR (LOAN PAYABLE UPON DEMAND, CAUSE OF ACTION BASED UPON A LOAN PAYABLE UPON DEMAND ACCRUES WHEN THE LOAN IS MADE)

SURROGATE’S COURT SHOULD HAVE CARRIED OUT WHAT DECEDENT CLEARLY INTENDED, DESPITE THE DEFECT IN THE MEANS CHOSEN TO EFFECT HIS INTENT.

The Second Department, reversing Surrogate’s Court, determined the intent of the decedent was clear from the will and trust documents and should be carried out. The will and trust documents indicated decedent wished the sole asset of his estate, an IRA, be distributed 1/3 to his wife and 2/3 to his daughter. Decedent intended that a living trust he had set up receive the IRA, which all parties agreed was not possible:

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The wife … contends that pursuant to the terms of the Will, no Testamentary Trust was created into which the IRA proceeds could be transferred, because the Living Trust was neither terminated nor ineffective at the time of the decedent’s death. Such a constrained reading of the Will illustrates “the aptness of Judge Learned Hand’s wise and trenchant observation that courts should be wary of making a fortress out of the dictionary,’ since there is no more likely way to misapprehend the meaning of language . . . than to read the words literally, forgetting the object which the document as a whole’ seeks to achieve” … .

The drafter of the Will testified at his deposition that the decedent not only specifically intended to place the IRA proceeds into the Living Trust, but that the IRA was, in fact, “[t]he only asset” intended to fund the Living Trust. It is undisputed, however, that the Living Trust could not receive the IRA. Under the circumstances, it is evident that the Living Trust was ineffective in carrying out the very purpose for which it was created. Therefore, under the alternative disposition and residuary provisions of article SECOND of the Will, the Testamentary Trust became available to receive the IRA proceeds (see EPTL 13-3.3[a][2]), and it follows that the decedent’s beneficiary designation with respect to the IRA can, and must, be enforced as written, and the order appealed from must be reversed. Matter of Perlman, 2017 NY Slip Op 03957, 2nd Dept 5-17-17

 

TRUSTS AND ESTATES (SURROGATE’S COURT SHOULD HAVE CARRIED OUT WHAT DECEDENT CLEARLY INTENDED, DESPITE THE DEFECT IN THE MEANS CHOSEN TO EFFECT HIS INTENT)

QUESTION OF FACT WHETHER RENUNCIATION OF INHERITANCE WAS INVALID.

The Second Department determined Surrogate’s Court should not have granted the administrator’s (decedent’s father’s) motion for summary judgment dismissing the objections of the decedent’s niece and nephew (objectants) on the ground the niece and nephew did not have standing. Initially decedent’s father, who was entitled to inherit all of decedent’s estate, renounced his inheritance. He then argued the renunciation was invalid and summary judgment was granted in his favor on that ground. The Second Department held there was a question of fact whether the renunciation was invalid:

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Surrogate’s Court erred in granting the petitioner’s cross motion for summary judgment dismissing the objections at issue based on a finding that the objectants lacked standing to challenge the accounting. Where, as here, a decedent who died intestate was survived by a parent but no spouse and no issue, the whole of the decedent’s estate would be distributed to the surviving parent pursuant to EPTL 4-1.1(a)(4). In that event, the objectants, who would not be distributees, would lack standing as persons interested in the estate … . However, EPTL 2-1.11(c)(1) provides, in part, that any beneficiary of a disposition “may renounce all or part of such beneficiary’s interest.” Further, EPTL 2-1.11(g) provides that “[a] renunciation may not be made under this section with respect to any property which a renouncing person has accepted . . . For purposes of this paragraph, a person accepts an interest in property if such person voluntarily transfers or encumbers, or contracts to transfer or encumber all or part of such interest, or accepts delivery or payment of, or exercises control as beneficial owner over all or part thereof, or executes a written waiver of the right to renounce, or otherwise indicates [an] acceptance of all or part of such interest.” Here, the petitioner failed to establish, prima facie, that his renunciation of his interest in the estate was invalid, resulting in him being the sole distributee and the objectants lacking standing as not being persons interested in the estate. The petitioner adduced no evidence to demonstrate that he accepted an interest in the estate by exercising control over it as its beneficial owner prior to his irrevocable renunciation of his interest pursuant to EPTL 2-1.11. Matter of Kaplan, 2017 NY Slip Op 03750, 2nd Dept 5-10-17

TRUSTS AND ESTATES (RENUNCIATION, QUESTION OF FACT WHETHER RENUNCIATION OF INHERITANCE WAS INVALID)/RENUNCIATION (INHERITANCE, QUESTION OF FACT WHETHER RENUNCIATION OF INHERITANCE WAS INVALID)/INHERITANCE (TRUSTS AND ESTATES, RENUNCIATION,  QUESTION OF FACT WHETHER RENUNCIATION OF INHERITANCE WAS INVALID)

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CONTINUOUS TREATMENT TOLLS THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION WHEN THE INITIAL ERRONEOUS DIAGNOSIS IS OUTSIDE THE STATUTE AND THE CONTINUED TREATMENT WAS BY OTHER DOCTORS IN THE GROUP.

The Second Department determined there was a question of fact whether the continuous treatment doctrine applied to render this medical malpractice action timely. The court noted that the doctrine applies when the allegedly incorrect diagnosis occurred outside the statute of limitations and the continued treatment is not by the original doctor, but by other doctors in the group:

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The continuous treatment doctrine tolls the statute of limitations for medical malpractice actions 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 … .  With respect to failure-to-diagnose cases, a physician “cannot escape liability under the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, where [he or she] treated the patient continuously over the relevant time period for symptoms that are ultimately traced to that condition” … . The continuous treatment doctrine may be applied to a physician who has left a medical practice by imputing to him or her the continued treatment provided by subsequent treating physicians in that practice … . Matthews v Barrau, 2017 NY Slip Op 03738, 2nd Dept 5-10-17

NEGLIGENCE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT TOLLS THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION EVEN WHEN THE INITIAL ERRONEOUS DIAGNOSIS IS OUTSIDE THE STATUTE AND THE CONTINUED TREATMENT WAS BY OTHER DOCTORS IN THE GROUP)/MEDICAL MALPRACTICE (CONTINUOUS TREATMENT DOCTRINE, CONTINUOUS TREATMENT TOLLS THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION EVEN WHEN THE INITIAL ERRONEOUS DIAGNOSIS IS OUTSIDE THE STATUTE AND THE CONTINUED TREATMENT WAS BY OTHER DOCTORS IN THE GROUP)/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT TOLLS THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION EVEN WHEN THE INITIAL ERRONEOUS DIAGNOSIS IS OUTSIDE THE STATUTE AND THE CONTINUED TREATMENT WAS BY OTHER DOCTORS IN THE GROUP)

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PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT.

The Second Department determined defendant doctors’ motion for summary judgment in this orthopedic surgery medical malpractice action was properly granted. Plaintiff’s expert was a radiologist and did not demonstrate familiarity with the standard of care for orthopedic surgeons:

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… [W]here, as here, ” a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered'” … . The plaintiff’s expert, a board-certified radiologist, did not indicate any familiarity with the standards of orthopedic care. Donnelly v Parikh, 2017 NY Slip Op 03731, 2nd pt 5-10-17

NEGLIGENCE (PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)/MEDICAL MALPRACTICE (PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)/EVIDENCE (EXPERT OPINION, MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, A RADIOLOGIST, DID NOT INDICATE FAMILIARITY WITH THE STANDARD OF CARE FOR ORTHOPEDIC SURGEONS, SURGEON-DEFENDANTS PROPERLY GRANTED SUMMARY JUDGMENT)

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WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS.

The Second Department determined the defendants had demonstrated at a collateral source hearing that plaintiff will receive $205 per week in Workers’ Compensation benefits for the rest of her life. Even though the benefits were awarded after an unrelated 2002 accident, the damages awards for past and future lost income were reduced by $205 per week from the time of the 2010 accident (plaintiff was planning to return to work, and thereby lose the benefits, at the time of the 2010 accident):

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In “[a]ctions for personal injury . . . where the plaintiff seeks to recover for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, evidence shall be admissible for consideration by the court to establish that any such past or future cost or expense was or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source, except for life insurance and those payments as to which there is a statutory right of reimbursement” (CPLR 4545[a]). The legislative intent of CPLR 4545(a) is to “eliminat[e] plaintiffs’ duplicative recoveries” … .. “The moving defendant bears the burden of establishing an entitlement to a collateral source reduction of an award for past or future economic loss” … .

“Reasonable certainty is understood as involving a quantum of proof that is greater than a preponderance of evidence but less than proof beyond a reasonable doubt. Each of the four judicial departments has interpreted reasonable certainty’ as akin to the clear and convincing evidence standard, that the result urged by the defendant be highly probable'” … . In order to determine whether a party has established with “reasonable certainty” a payment by a collateral source, the defendants first “must establish with reasonable certainty that the plaintiff has received, or will receive, payments from a collateral source” … , and, second, “that collateral source payments which have been or will be received by the plaintiff must be shown to specifically correspond to particular items of economic loss awarded by the trier of fact” … . “Each case involving potential future collateral source reductions to awards for economic loss must be judged on its own unique facts and merits” … . McKnight v New York City Tr. Auth., 2017 NY Slip Op 03740, 2nd Dept 5-10-17

 

NEGLIGENCE (WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)/CIVIL PROCEDURE (COLLATERAL SOURCE, DAMAGES, NEGLIGENCE, WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)/WORKERS’ COMPENSATION (NEGLIGENCE, DAMAGES, COLLATERAL SOURCE, WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)/COLLATERAL SOURCE (CIVIL PROCEDURE, NEGLIGENCE, DAMAGES, WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)/DAMAGES (CIVIL PROCEDURE, NEGLIGENCE, DAMAGES, WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)

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