You are here: / Second Department

Tag Archive for: Second Department

CHINESE NATIONAL NOT DOMICILED IN NEW YORK, NO RELATIONSHIP BETWEEN THE ALLEGATIONS IN THE COMPLAINT AND DEFENDANT’S TRANSACTION OF BUSINESS IN NEW YORK, COMPLAINT PROPERLY DISMISSED FOR LACK OF JURISDICTION.

The Second Department determined the complaint against a Chinese national was properly dismissed for lack of jurisdiction. The court explained the law re: (1) the burdens of proof for the motion to dismiss, (2) the procedure when discovery is required to determine jurisdiction, (3) the definition of “domicile” and (4) the nature of business transactions which will provide New York with jurisdiction:

… [T]he plaintiffs failed to make a prima facie showing that the defendant was domiciled in New York at the time the action was commenced in July 2013. Evidence of the defendant’s ownership of a cooperative apartment in Queens is, on its own, insufficient to confer personal jurisdiction over him absent evidence of his intent to make the apartment his “fixed and permanent home” … . The record demonstrated that the defendant resided in Shanghai, China, while his wife and daughter resided in the cooperative apartment in Queens. It was undisputed that the defendant had not even visited New York since March 2013. * * *

The transaction of business is established where it is shown that a ” defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted'”… .

” Purposeful activities are those with which a defendant, through volitional acts, avails [himself or herself] of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws'” … . A single transaction in New York may suffice to invoke jurisdiction even if the defendant never enters the state, provided that the activity was purposeful and ” there is a substantial relationship between the transaction and the claim asserted'”… .  Indeed, absent ” some articulable nexus'” between a defendant’s purposeful business activities in the state and the plaintiff’s claims, personal jurisdiction pursuant to CPLR 302(a)(1) may not be exercised … .

Here, the sole purposeful activity cited by the plaintiffs in support of their argument that the defendant is subject to personal jurisdiction pursuant to CPLR 302(a)(1) is the employment relationship between Crystal Window and the defendant. However, the alleged wrongdoing upon which the complaint primarily is based occurred during the defendant’s employment with Huai’an Crystal, a Chinese company, prior to any employment with Crystal Window. Chen v Guo Liang Lu, 2016 NY Slip Op 07290, 2nd Dept 10-9-16

 

CIVIL PROCEDURE (CHINESE NATIONAL NOT DOMICILED IN NEW YORK, NO RELATIONSHIP BETWEEN THE ALLEGATIONS IN THE COMPLAINT AND DEFENDANT’S TRANSACTION OF BUSINESS IN NEW YORK, COMPLAINT PROPERLY DISMISSED FOR LACK OF JURISDICTION)/JURISDICTION (PERSONAL) (CHINESE NATIONAL NOT DOMICILED IN NEW YORK, NO RELATIONSHIP BETWEEN THE ALLEGATIONS IN THE COMPLAINT AND DEFENDANT’S TRANSACTION OF BUSINESS IN NEW YORK, COMPLAINT PROPERLY DISMISSED FOR LACK OF JURISDICTION)

, ,

GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTION AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT.

The Second Department determined a grievance involving a teacher was arbitrable under the collective bargaining agreement (CBA). The grievance was filed by the teachers’ association against the school district regarding the district’s starting a plenary action against a teacher under a faithless servant theory:

Here, the respondent, Locust Valley Teachers’ Association (hereinafter the LVTA), filed a grievance against the petitioner, Locust Valley Central School District (hereinafter the School District), regarding the commencement by the School District of a plenary action against a teacher formerly employed by the School District. The former teacher was a member of the LVTA. The applicable collective bargaining agreement (hereinafter CBA) between the parties provided that either party had the right to submit a grievance to arbitration, where that grievance was not resolved by the School District. The CBA defined a “grievance” as “a claimed violation, misinterpretation or inequitable application [of a] provision of th[e] Agreement.” In the plenary action, the School District sought, under a “faithless servant” theory, the forfeiture of all compensation earned by the subject teacher pursuant to the CBA during a period of time in which the teacher allegedly engaged in certain criminal conduct. That conduct ultimately resulted in the teacher’s plea of guilty to several criminal charges.

The School District has not identified any statutory, constitutional, or public policy prohibition against arbitrating the grievance. Further, in light of the fact that the grievance concerns the right of the School District to bring a plenary action seeking the equitable forfeiture of compensation paid to the teacher under the CBA, there exists a reasonable relationship between the grievance and the CBA. Therefore, the Supreme Court did not err in finding the grievance to be arbitrable pursuant to the CBA … . Locust Val. Cent. Sch. Dist. v Benstock, 2016 NY Slip Op 07299, 2nd Dept 11-9-16

 

ARBITRATION (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/EMPLOYMENT LAW (COLLECTIVE BARGAINING AGREEMENT, GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/EDUCATION-SCHOOL LAW (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/FAITHLESS SERVANT THEORY (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/TEACHERS (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)

, ,

PLAINTIFF’S ATTEMPT TO DEMONSTRATE STANDING FAILED BECAUSE THE SUBMITTED AFFIDAVIT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE; AFFIDAVIT SUBMITTED IN REPLY PAPERS CANNOT BE CONSIDERED.

The Second Department determined plaintiff loan service did not demonstrate standing to bring this foreclosure action. The affidavit submitted by the plaintiff did not meet the requirements of the business records exception to the hearsay rule. In addition, an affidavit submitted with the reply papers could not be considered:

…[T]he plaintiff relied on the affidavit of Jaclyn Holloway, an assistant secretary of Nationstar Mortgage, LLC (hereinafter Nationstar). Holloway alleged that, after the action was commenced, the plaintiff delivered the note to NationStar. She alleged that, “pursuant to the business records of [the plaintiff],” the plaintiff had physical possession of the note when it commenced the action. However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Holloway under the business records exception to the hearsay rule (see CPLR 4518[a]) since Holloway did not attest that she was personally familiar with the record-keeping practices and procedures of the plaintiff … . Consequently, Holloway’s allegations based on those records were inadmissible … , and, therefore, insufficient to meet the plaintiff’s prima facie burden to establish its standing … .

The plaintiff could not rely on the affidavit of its vice president to meet its prima facie burden since the affidavit was improperly submitted for the first time in its reply papers … . Aurora Loan Servs., LLC v Baritz, 2016 NY Slip Op 07154, 2nd Dept 11-2-16

 

FORECLOSURE (PLAINTIFF’S ATTEMPT TO DEMONSTRATE STANDING FAILED BECAUSE THE SUBMITTED AFFIDAVIT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE; AFFIDAVIT SUBMITTED IN REPLY PAPERS CANNOT BE CONSIDERED)/EVIDENCE (FORECLOSURE, PLAINTIFF’S ATTEMPT TO DEMONSTRATE STANDING FAILED BECAUSE THE SUBMITTED AFFIDAVIT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE; AFFIDAVIT SUBMITTED IN REPLY PAPERS CANNOT BE CONSIDERED)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (FORECLOSURE, PLAINTIFF’S ATTEMPT TO DEMONSTRATE STANDING FAILED BECAUSE THE SUBMITTED AFFIDAVIT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE; AFFIDAVIT SUBMITTED IN REPLY PAPERS CANNOT BE CONSIDERED)/CIVIL PROCEDURE (REPLY PAPERS, PLAINTIFF’S ATTEMPT TO DEMONSTRATE STANDING FAILED BECAUSE THE SUBMITTED AFFIDAVIT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE; AFFIDAVIT SUBMITTED IN REPLY PAPERS CANNOT BE CONSIDERED)/REPLY PAPERS (PLAINTIFF’S ATTEMPT TO DEMONSTRATE STANDING FAILED BECAUSE THE SUBMITTED AFFIDAVIT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE; AFFIDAVIT SUBMITTED IN REPLY PAPERS CANNOT BE CONSIDERED)/

,

SEARCH OF DEFENDANT’S CAR DEEMED A VALID INVENTORY SEARCH, CRITERIA EXPLAINED.

The Second Department, over an extensive dissent, determined the search of defendant’s car was a valid inventory search:

The critical issue in this case is whether the officers’ search of the car, which was conducted back at the police district headquarters and not at the arrest location, was a legitimate inventory search. We conclude that it was. The People introduced a copy of the relevant patrol guide section outlining the procedures for inventory searches. Everything was removed from the car, under the direction of a sergeant, and even items such as nail clippers were vouchered. A contemporaneous list was made of the items that were removed, and the list was introduced at the hearing. Copies of property clerk invoices also were admitted in evidence at the hearing. The testimony at the hearing established that the officers did not exercise discretion in removing items from the car, and that the search was not a ruse to recover incriminating evidence … . People v Lee, 2016 NY Slip Op 07081, 1st Dept 10-27-16

CRIMINAL LAW (SEARCH OF DEFENDANT’S CAR DEEMED A VALID INVENTORY SEARCH, CRITERIA EXPLAINED)/SEARCH AND SEIZURE (SEARCH OF DEFENDANT’S CAR DEEMED A VALID INVENTORY SEARCH, CRITERIA EXPLAINED)/INVENTORY SEARCH (SEARCH OF DEFENDANT’S CAR DEEMED A VALID INVENTORY SEARCH, CRITERIA EXPLAINED)

CELL PHONE TRANSMISSION EQUIPMENT TAXABLE UNDER REAL PROPERTY TAX LAW.

The Second Department, applying principles of statutory interpretation, determined that cell phone system equipment owned by T-Mobile was taxable under provisions of the Real Property Tax Law:

… T-Mobile’s fiber optic, T-1, and coaxial cables, as well as the connections between T-Mobile’s equipment and that of the local exchange carrier, are “lines” or “wires” within the meaning of RPTL 102(12)(i) and, thus, are taxable real property.

… [S]ince T-Mobile’s base transceiver station cabinets contain, among other things, primary and battery backup power systems and equipment for “[m]odify[ing] and retransmit[ting] . . . radio signals for landline retransmission via separate electrical conductors or fiber optics,” they can properly be characterized as “inclosures for electrical conductors” within the meaning of RPTL 102(12)(i).

Likewise, while T-Mobile’s rooftop antennas, which are flat and four to five feet in both length and width, cannot be characterized as “poles” within the ordinary understanding of that term, they can be properly characterized as “inclosures for electrical conductors” inasmuch as they are a part to the base transceiver station cabinet.

Further, the contention of the School District and the City that T-Mobile’s rooftop antennas can also be taxed as fixtures pursuant to RPTL 102(12)(b) is correct. Matter of T-Mobile Northeast, LLC v DeBellis, 2016 NY Slip Op 07031, 2nd Dept 10-26-16

 

REAL PROPERTY TAX LAW (CELL PHONE TRANSMISSION EQUIPMENT TAXABLE UNDER REAL PROPERTY TAX LAW)/TAX LAW (CELL PHONE TRANSMISSION EQUIPMENT TAXABLE UNDER REAL PROPERTY TAX LAW)/CELL PHONE TRANSMISSION EQUIPMENT (CELL PHONE TRANSMISSION EQUIPMENT TAXABLE UNDER REAL PROPERTY TAX LAW)/TAX LAW (CELL PHONE TRANSMISSION EQUIPMENT TAXABLE UNDER REAL PROPERTY TAX LAW

PLAINTIFF’S CONFLICTING EVIDENCE ABOUT WHEN THE PUDDLE WAS FIRST SEEN AND HOW LONG THE PUDDLE HAD BEEN ON THE FLOOR PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined plaintiff’s conflicting evidence about how long a puddle of water had been on defendant store’s floor precluded summary judgment, without regard for the sufficiency of defendant’s opposing papers. Plaintiff testified she didn’t see the puddle before she fell and she and her daughter had been shopping for 15 minutes prior to the fall. . Plaintiff’s daughter testified she saw the puddle when they first entered the store and they had been shopping for 45 minutes prior to the fall:

… [T]he plaintiff failed to make a prima facie showing of her entitlement to judgment as a matter of law on the issue of liability. The plaintiff’s submissions provided conflicting evidence with respect to how long the puddle had been on the floor prior to the plaintiff’s accident, and were insufficient to demonstrate, prima facie, that the defendant had actual notice of the puddle, or that it had existed for a sufficient length of time for the defendant’s employees to discover and remedy it. The plaintiff’s submissions also failed to demonstrate, prima facie, that she was free from comparative fault … . Hernandez v Conway Stores, Inc., 2016 NY Slip Op 07001, 2nd Dept 10-26-16

NEGLIGENCE (PLAINTIFF’S CONFLICTING EVIDENCE ABOUT WHEN THE PUDDLE WAS FIRST SEEN AND HOW LONG THE PUDDLE HAD BEEN ON THE FLOOR PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED)/SLIP AND FALL (PLAINTIFF’S CONFLICTING EVIDENCE ABOUT WHEN THE PUDDLE WAS FIRST SEEN AND HOW LONG THE PUDDLE HAD BEEN ON THE FLOOR PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED)/SUMMARY JUDGMENT (SLIP AND FALL, (PLAINTIFF’S CONFLICTING EVIDENCE ABOUT WHEN THE PUDDLE WAS FIRST SEEN AND HOW LONG THE PUDDLE HAD BEEN ON THE FLOOR PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED)

FAILURE TO FOLLOW STATUTORY SENTENCING PROCEDURES FOR A PERSISTENT FELONY OFFENDER RENDERED SENTENCE “ILLEGALLY IMPOSED.”

The Second Department, reversing Supreme Court, determined the failure to follow the statutory procedures for sentencing a persistent felony offender required that the motion to set aside the sentence be granted:

CPL 400.15 and 400.16 “govern the procedure that must be followed in any case where it appears that a defendant who stands convicted of a violent felony offense . . . has previously been subjected to two or more predicate violent felony convictions . . . and may be a persistent violent felony offender” (CPL 400.16[1]). Here, neither the People nor the Supreme Court complied with that mandatory procedure. Therefore, the sentence was “illegally imposed” (CPL 440.20[1]), regardless of whether the defendant is, in fact, a persistent violent felony offender (see Penal Law § 70.08[1]), and the Supreme Court should have granted the motion to set aside the sentence … . People v Rivera, 2016 NY Slip Op 07036, 2nd Dept 10-26-16

CRIMINAL LAW (FAILURE TO FOLLOW STATUTORY SENTENCING PROCEDURE FOR A PERSISTENT FELONY OFFENDER RENDERED SENTENCE “ILLEGALLY IMPOSED”)/SENTENCING (FAILURE TO FOLLOW STATUTORY SENTENCING PROCEDURE FOR A PERSISTENT FELONY OFFENDER RENDERED SENTENCE “ILLEGALLY IMPOSED”)/PERSISTENT FELONY OFFENDER (FAILURE TO FOLLOW STATUTORY SENTENCING PROCEDURE FOR A PERSISTENT FELONY OFFENDER RENDERED SENTENCE “ILLEGALLY IMPOSED”)

ALTHOUGH SUPREME COURT CORRECTLY SET ASIDE THE VERDICT AS THE PRODUCT OF SUBSTANTIAL CONFUSION, SUPREME COURT DID NOT HAVE THE POWER TO “REINSTATE” A PRIOR VERDICT THAT HAD NOT BEEN REPORTED TO THE JUDGE.

The Second Department, reversing Supreme Court, determined Supreme Court did not have the power to “reinstate” a “verdict” that had not been recorded in open court. When the jury first announced they had a verdict, the court officer, without reporting the verdict to the judge, handed the verdict sheet back to the jurors, pointing to directions on the sheet. After the judge accepted a subsequent verdict, the court officer informed the judge of the prior “verdict” and his interaction with the jurors:

“[A] trial court has discretion to set aside a verdict which is clearly the product of substantial confusion among the jurors” … . Here, the Supreme Court providently exercised its discretion in setting aside the jury’s verdict on the basis that it was the product of substantial confusion. However, the court erred in attempting to “reinstate” the jury’s original verdict as reported by the court officer. ” A verdict is not recognized as valid and final until it is pronounced and recorded in open court'” … . Under these circumstances, upon setting aside the verdict, the court should have granted the branch of the defendant’s motion which was for a new trial … . Kitenberg v Gulmatico, 2016 NY Slip Op 07004, 2nd Dept 10-26-16

CIVIL PROCEDURE (ALTHOUGH SUPREME COURT CORRECTLY SET ASIDE THE VERDICT AS THE PRODUCT OF SUBSTANTIAL CONFUSION, SUPREME COURT DID NOT HAVE THE POWER TO “REINSTATE” A PRIOR VERDICT THAT HAD NOT BEEN REPORTED TO THE JUDGE)/VERDICTS (CIVIL, ALTHOUGH SUPREME COURT CORRECTLY SET ASIDE THE VERDICT AS THE PRODUCT OF SUBSTANTIAL CONFUSION, SUPREME COURT DID NOT HAVE THE POWER TO “REINSTATE” A PRIOR VERDICT THAT HAD NOT BEEN REPORTED TO THE JUDGE)/JUROR CONFUSION (VERDICTS, CIVIL, ALTHOUGH SUPREME COURT CORRECTLY SET ASIDE THE VERDICT AS THE PRODUCT OF SUBSTANTIAL CONFUSION, SUPREME COURT DID NOT HAVE THE POWER TO “REINSTATE” A PRIOR VERDICT THAT HAD NOT BEEN REPORTED TO THE JUDGE)

PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS.

The Second Department determined plaintiff’s motion for summary judgment in this car accident case was properly denied because plaintiff did not demonstrate the absence of comparative fault:

There can be more than one proximate cause of an accident … . Accordingly, a plaintiff moving for summary judgment on the issue of liability in a personal injury action has the burden of establishing, prima facie, not only the defendant’s negligence, but also the absence of his or her comparative fault … . Here, although the plaintiff demonstrated that [defendant] was negligent … , the plaintiff failed to demonstrate the absence of his own comparative fault … . The plaintiff’s failure to satisfy his burden required the denial of his motion without regard to the sufficiency of the evidence that the defendants submitted in opposition … . Padilla v Biel, 2016 NY Slip Op 07009, 2nd Dept 10-25-16

NEGLIGENCE (PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS)/SUMMARY JUDGMENT (NEGLIGENCE, PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS)/COMPARATIVE NEGLIGENCE PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS)/VEHICLE ACCIDENTS (PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS)

ZONING BOARD DID NOT HAVE STATUTORY AUTHORITY TO IMPOSE DURATIONAL LIMIT ON PERMIT FOR A NONCONFORMING USE.

The Second Department, reversing Supreme Court, determined the zoning board did not have statutory authority to impose a durational limit on a permit allowing property in a residential zone to be used as a parking lot for the adjacent restaurant:

The Board did not have the authority to impose a durational limit on a permit granted pursuant to Town Code § 70-225(E). “Judicial review of a determination by a zoning board is generally limited to determining whether the action taken by the zoning board was illegal, arbitrary and capricious, or an abuse of discretion” … . “[W]here the issue involves pure legal interpretation of statutory terms, deference [to the board] is not required” … .

“[C]onditions imposed by a Board of Zoning Appeals must be authorized by the zoning ordinance” … . “[I]f a zoning board imposes unreasonable or improper conditions, those conditions may be annulled although the variance is upheld” … .

Here, Town Code § 70-225(E) does not explicitly provide the Board with the authority to impose durational limits upon permits granted pursuant to that section. Thus, it was improper for the Board to include a five-year durational limit on a permit granted pursuant to that provision, and the durational limit must be annulled … . Matter of Citrin v Board of Zoning & Appeals of Town of N. Hempstead, 2016 NY Slip Op 06827, 2nd Dept 10-19-16

 

ZONING (ZONING BOARD DID NOT HAVE STATUTORY AUTHORITY TO IMPOSE DURATIONAL LIMIT ON PERMIT FOR A NONCONFORMING USE)

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