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DISCHARGE OF SWORN JUROR WITHOUT CONDUCTING AN APPROPRIATE INQUIRY AND WITHOUT SEEKING INPUT FROM COUNSEL WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED.

The Second Department determined the court’s discharging a sworn juror without allowing counsel to be heard was an abuse of discretion requiring reversal and a new trial. The juror became upset when she learned the defendant was a relative of a person she sees every day. With counsel’s permission, the trial judge interviewed the juror alone. The judge discharged her without conducting a proper inquiry, without first explaining to counsel what was discussed and without hearing from both counsel on what should be done:

 

As a matter of procedure, the court, at a minimum, should have informed all parties of the substance of the in camera interview and provided each side with an opportunity to be heard before making its determination to discharge the sworn juror (… cf. CPL 270.35[2][b]). Contrary to the defendant’s contention, however, this procedural error, standing alone, was not inherently prejudicial … . Nevertheless, affording all sides an opportunity to be heard in this case might well have allowed counsel to oppose the court’s proposed disposition before it became a fait accompli. Further questioning of the juror might have revealed the underlying reasons for her uncertainty, thereby assisting the court in making an informed decision as to whether discharge of the juror was warranted.

Based on the Supreme Court’s very limited questioning of the subject juror, we find that the court improvidently exercised its discretion in discharging her. Assuming, as both parties contend, that the court’s authority to discharge the sworn juror must be considered under CPL 270.35 …, the court made little effort to ascertain whether the juror could, in fact, deliberate fairly and render an impartial verdict. In making such an important determination with respect to a sworn juror, “the court may not speculate as to possible partiality of the juror based on her equivocal responses. Instead, it must be convinced that the juror’s knowledge will prevent her from rendering an impartial verdict” … . People v Owens, 2016 NY Slip Op 00993, 2nd Dept 2-10-16

 

CRIMINAL LAW (DISCHARGE OF SWORN JUROR WITHOUT PROPER INQUIRY AND INPUT FROM COUNSEL WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED)/JURORS (CRIMINAL LAW, DISCHARGE OF SWORN JUROR WITHOUT PROPER INQUIRY AND INPUT FROM COUNSEL WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED)

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COURT SHOULD NOT HAVE REJECTED NEGOTIATED STIPULATION SETTLING THE ACTION WITH ONE PLAINTIFF AND PROCEEDING TO TRIAL WITH THE OTHER PLAINTIFF.

The Second Department determined Supreme Court should not have rejected a stipulation which settled the personal injury action with respect to one of the plaintiffs and allowed the matter to proceed to trial with respect to another plaintiff. The Second Department explained the deference which should be accorded a negotiated stipulation:

 

” [P]arties to a civil dispute are free to chart their own litigation course and, in so doing, they may stipulate away statutory, and even constitutional rights'” … . The subject stipulation of settlement was made after negotiations among counsel for the respective parties, and the litigants agreed to its terms. In consenting to the stipulation, these parties fashioned the basis upon which their particular controversy would be resolved by providing for the termination of the action with respect to [one plaintiff] and the continuation of the action with respect [the other]… . Astudillo v MV Transp., Inc., 2016 NY Slip Op 00915, 2nd Dept 2-10-16

 

CIVIL PROCEDURE (NEGOTIATED STIPULATION SHOULD NOT HAVE BEEN REJECTED BY THE COURT)/STIPULATION (NEGOTIATED STIPULATION SHOULD NOT HAVE BEEN REJECTED BY THE COURT)/NEGLIGENCE (NEGOTIATED STIPULATION SHOULD NOT HAVE BEEN REJECTED BY THE COURT)

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COMPLAINT NAMING DECEDENT, RATHER THAN DECEDENT’S REPRESENTATIVE, AS A DEFENDANT WAS A NULLITY; THE DEFECT COULD NOT BE REMEDIED BY AMENDING THE COMPLAINT.

The Second Department determined plaintiff’s action should have been dismissed as a nullity. The defendant in this car-accident action had died before the complaint was filed. Therefore the complaint was a nullity. The defect could not be remedied by amending the complaint to name the decedent’s estate:

In this action to recover damages for alleged injuries arising from a vehicular accident, the plaintiff did not commence this action against the operator of the offending vehicle until several months after the operator died. Since “[a] party may not commence a legal action or proceeding against a dead person” … , the action was a nullity from its inception, and the plaintiff was instead required to commence an action against the personal representative of the decedent’s estate … . Moreover, the plaintiff’s attempt to amend the caption of the void complaint to designate the decedent’s estate as the defendant was invalid … . The plaintiff never properly commenced an action against the decedent’s personal representative, and the time within which to do so had expired prior to the defendant’s motion for summary judgment. Krysa v Estate of Qyra, 2016 NY Slip Op 00940, 2nd Dept 2-10-16

CIVIL PROCEDURE (COMPLAINT NAMING DECEDENT RATHER THAN DECEDENT’S REPRESENTATIVE AS A DEFENDANT WAS A NULLITY AND THE DEFECT COULD NOT BE REMEDIED BY AMENDING THE COMPLAINT)/TRUSTS AND ESTATES (COMPLAINT NAMING DECEDENT RATHER THAN DECEDENT’S REPRESENTATIVE AS A DEFENDANT WAS A NULLITY AND THE DEFECT COULD NOT BE REMEDIED BY AMENDING THE COMPLAINT)

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DEFENDANT’S MOTION TO CHANGE VENUE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED.

The Second Department determined defendant’s motion for change of venue should have been granted. The court noted that the sole residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation:

 

“[T]o prevail on a motion pursuant to CPLR 510(1) to change venue, a defendant must show that the plaintiff’s choice of venue is improper, and also that the defendant’s choice of venue is proper” … . The venue of an action is proper in the county in which any of the parties resided at the time of commencement (see CPLR 503[a]…). “[T]he sole residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation, despite its maintenance of an office or facility in another county” … . Matoszko v Kielmanowicz, 2016 NY Slip Op 00942, 2nd Dept 2-10-16

 

CIVIL PROCEDURE (MOTION TO CHANGE VENUE SHOULD HAVE BEEN GRANTED)/CORPORATION LAW (RESIDENCE OF DOMESTIC CORPORATION FOR VENUE PURPOSES IS COUNTY DESIGNATED ON CERTIFICATE OF INCORPORATION)/VENUE (MOTION TO CHANGE VENUE SHOULD HAVE BEEN GRANTED)/VENUE (RESIDENCE OF DOMESTIC CORPORATION FOR VENUE PURPOSES IS COUNTY DESIGNATED ON CERTIFICATE OF INCORPORATION)

BROKER NOT ENTITLED TO COMMISSION, MOTION TO SET ASIDE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED.

The Second Department determined the motion to set aside the jury verdict finding plaintiff was entitled to a broker’s commission for the sale of defendant’s property should have been granted. The court explained the relevant criteria:

 

To prevail on a cause of action to recover a commission, the broker must establish (1) that it is duly licensed, (2) that it had a contract, express or implied, with the party to be charged with paying the commission, and (3) that it was the procuring cause of the sale … . “[T]he duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until that is done his right to commissions does not accrue” … . To establish that a broker was the procuring cause of a transaction, the broker must establish that there was “a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction and the consummation” … . Where, as here, the broker is not involved in the negotiations leading up to the completion of the deal, the broker must establish that it ” created an amicable atmosphere in which negotiations proceeded or that [it] generated a chain of circumstances that proximately led to the sale'” … . * * *

Here, there was no valid line of reasoning which could have led to the conclusion that the plaintiff was the procuring cause of the sale.  Douglas Elliman, LLC v Silver, 2016 NY Slip Op 00675, 2nd Dept 2-3-16

 

REAL ESTATE (BROKER NOT ENTITLED TO COMMISSION)/BROKERS, REAL ESTATE (NOT ENTITLED TO COMMISSION)/COMMISSIONS, REAL ESTATE (BROKER NOT ENTITLED TO COMMISSION)

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FAILURE TO ADDRESS THE CREATION-OF-THE-DEFECT THEORY OF RECOVERY REQUIRED DENIAL OF DEFENDANT-VILLAGE’S SUMMARY JUDGMENT MOTION.

The Second Department, in this slip and fall case, determined that the village’s failure to address plaintiff’s allegation that the village created the dangerous condition (a one-inch higher portion of a sidewalk) required the denial of the village’s motion for summary judgment. [Another example of a defense summary judgment motion which did not affirmatively address every possible theory of recovery.] The court explained the relevant law:

 

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . The bill of particulars alleged that the Village affirmatively created the dangerous condition which caused the accident. Therefore, in order to establish its prima facie entitlement to judgment as a matter of law, the Village had to demonstrate, prima facie, both that it did not have prior written notice of the defect, and that it did not create the defect … . The Village established, prima facie, that it did not have prior written notice of the defect, but it failed to establish, prima facie, that it did not affirmatively create the alleged defect … . Therefore, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact. McManus v Klein, 2016 NY Slip Op 00704, 2nd Dept 2-3-16

 

NEGLIGENCE (LIABILITY ALLEGED UNDER COMMON-LAW NEGLIGENCE  AND RES IPSA LOQUITUR, DEFENDANT’S FAILURE TO ADDRESS EVERY ELEMENT OF THOSE THEORIES REQUIRED DENIAL OF SUMMARY JUDGMENT)/RES IPSA LOQUITUR (DEFENDANT’S FAILURE TO ADDRESS EVERY ELEMENT RES IPSA LOQUITUR THEORY OF RECOVERY RREQUIRED DENIAL OF SUMMARY JUDGMENT)

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EXPERT AFFIDAVITS, SUBMITTED SOLELY ON THE ISSUE OF PROXIMATE CAUSE OF PLAINTIFF’S INJURIES, SHOULD HAVE BEEN ACCEPTED BY THE COURT, EVEN THOUGH THE EXPERTS WERE NOT QUALIFIED TO ASSESS WHETHER THE DEFENDANT CHIROPRACTOR DEVIATED FROM THE APPROPRIATE STANDARD OF CARE.

The Second Department, in a full-fledged opinion by Justice Dillon, determined affidavits by an orthopedist and a radiologist (Dr. Meyer and Dr. Coyne) submitted in support of defendant’s motion for summary judgment should have been accepted by Supreme Court as admissible evidence of proximate cause of plaintiff’s back injury, even though the orthopedist and radiologist were not qualified to offer an opinion on whether defendant chiropractor deviated from the appropriate standard of care. Supreme Court had rejected the affidavits on the ground the orthopedist and radiologist were not qualified to assess the level of care provided by the defendant chiropractor. However, the affidavits addressed only the issue of proximate cause, stating that plaintiff’s injuries pre-dated the alleged negligent treatment by the chiropractor. Because the assessment of proximate cause was within the orthopedist’s and radiologist’s areas of expertise, the affidavits were admissible. However, the denial of the defendant’s motion for summary judgment was affirmed because the defendant’s affidavit stating he did not deviate from the proper standard of chiropractic care was conclusory:

 

Physicians offering opinions in medical, dental, podiatric, chiropractic, or other specialty malpractice actions must establish their credentials in order for their expert opinions to be considered by courts. They do so by being specialists in the field that is the subject of the action, or if not specialists in the same field, then by possessing the requisite skill, training, education, knowledge, or experience from which it can be assumed that the opinion rendered is reliable … . Thus, when a physician offers an expert opinion outside of his or her specialization, a foundation must be laid tending to support the reliability of the opinion rendered … .

Here, the opinions of Dr. Meyer and Dr. Coyne would not be admissible on the issue of the defendant’s alleged deviation or departure from the standard of chiropractic care, as neither physician indicated any familiarity with the standards of chiropractic practice. However, the opinions of Dr. Meyer and Dr. Coyne were not proffered to address the issue of whether the defendant deviated or departed from the relevant chiropractic standard of care. Rather, the affirmations of both physicians were clearly and narrowly drawn to address only the separate element of proximate cause. Bongiovanni v Cavagnuolo, 2016 NY Slip Op 00638, 2nd Dept 2-3-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, EXPERT AFFIDAVITS SHOULD HAVE BEEN ACCEPTED ON NARROW ISSUE OF PROXIMATE CAUSE)/MEDICAL MALPRACTICE (EXPERT AFFIDAVITS SHOULD HAVE BEEN ACCEPTED ON THE NARROW ISSUE OF PROXIMATE CAUSE)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT AFFIDAVITS SHOULD HAVE BEEN ACCEPTED ON THE NARROW ISSUE OF PROXIMATE CAUSE)/EXPERT OPINION (MEDICAL MALPRACTICE, EXPERT AFFIDAVITS SHOULD HAVE BEEN ACCEPTED ON THE NARROW ISSUE OF PROXIMATE CAUSE)

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HOLDER OF SECOND MORTGAGE COULD PROPERLY SUE ONLY ON THE UNDERLYING DEBT WITHOUT BRINGING FORECLOSURE PROCEEDINGS.

The Second Department determined plaintiff bank, the holder of a second mortgage on defendant’s residence to secure an equity loan, could sue to recover on the underlying debt, without bringing foreclosure proceedings. Because defendant’s ownership and possession of his residence was not at risk in the lawsuit, the protections afforded a homeowner by the foreclosure procedure were not applicable:

 

Where a creditor holds both a debt instrument and a mortgage which is given to secure the debt, the creditor may elect either to sue at law to recover on the debt, or to sue in equity to foreclose on the mortgage (… see generally RPAPL 1301). Here, contrary to the Supreme Court’s determination, the clear and unequivocal language of the parties’ agreement did not limit the plaintiff’s options to recover in the event of a default, and did not require that the plaintiff commence only a foreclosure action … . …

Accordingly, the plaintiff was free to commence the instant action to recover damages, and the protections afforded to homeowners under the foreclosure laws are inapplicable to this action, since the defendant’s ownership and possession of his residence are not at risk in this lawsuit. Wells Fargo Bank, N.A. v Goans, 2016 NY Slip Op 00710, 2nd Dept 2-3-16

 

MORTGAGES (SECOND MORTGAGE TO SECURE HOME EQUITY LOAN, BANK CAN SUE ON DEBT WITHOUT BRINGING FORECLOSURE PROCEEDINGS)/FORECLOSURE (SECOND MORTGAGE TO SECURE HOME EQUITY LOAN, BANK CAN SUE ON DEBT WITHOUT BRINGING FORECLOSURE PROCEEDINGS)/HOME EQUITY LOAN (SECOND MORTGAGE TO SECURE HOME EQUITY LOAN, BANK CAN SUE ON DEBT WITHOUT BRINGING FORECLOSURE PROCEEDINGS)/DEBTOR-CREDITOR (SECOND MORTGAGE TO SECURE HOME EQUITY LOAN, BANK CAN SUE ON DEBT WITHOUT BRINGING FORECLOSURE PROCEEDINGS)

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DSS FAILED TO DEMONSTRATE DILIGENT EFFORTS TO STRENGTHEN PARENTAL RELATIONSHIP, TERMINATION OF FATHER’S PARENTAL RIGHTS REVERSED.

The Second Department, reversing Family Court, determined the Department of Social Services (DSS) did not make diligent efforts to strengthen the relationship between father and the children before seeking termination of the father’s parental rights on the ground of permanent neglect:

 

In proceedings to terminate parental rights based on permanent neglect, the agency must first establish, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen the parental relationship with the child (see Social Services Law § 384-b[7][a]…). The efforts must include reasonable attempts at providing counseling, scheduling regular visitation with the child, providing other services to the parent to overcome the particular problems that separated the parent from his or her child, and informing the parent of his or her child’s progress (see Social Services Law § 384-b[7][f]…). The court “shall also consider the particular constraints, including but not limited to, limitations placed on family contact and the unavailability of social or rehabilitative services to aid in the development of a meaningful relationship between the parent and his or her child, that may impact the parent’s ability to substantially and continuously or repeatedly maintain contact with his or her child and to plan for the future of his or her child” (Social Services Law § 384-b[7][a]).

Here, DSS failed to meet its initial burden of demonstrating that it exercised diligent efforts to strengthen the parental relationship between the father and his children … . DSS’s evidence demonstrated that its caseworkers’ focus was on the mother’s relationship with the children, as she was the initial subject of the proceedings and the father was not a party thereto. Further, although the evidence adduced at the fact-finding hearing showed that the DSS caseworkers advised the father to seek unsupervised visitation with the children since the supervised visits were positive, the evidence also showed that DSS did not support such unsupervised visitation and was aware that the father’s access to the children was limited by the order of protection. Moreover, although DSS scheduled supervised visits between the father and the children and provided the father with notices of regularly scheduled permanency hearings and service plan reviews, it did little more to determine the particular problems facing the father with respect to the return of his children and did not make affirmative, repeated, and meaningful efforts to assist him in overcoming these handicaps before it commenced these proceedings … . Further, DSS’s evidence demonstrated that the father satisfied all requests that DSS made of him, which included attending a parenting class and marriage counseling, and showed himself to be a loving and appropriate parent at the supervised visitation sessions.  Matter of Gabriel B. S.-P. (Anonymous) (Franklin S. (Anonymous)), 2016 NY Slip Op 00645, 2nd Dept 2-3-16

 

FAMILY LAW (DSS DID NOT MAKE DILIGENT EFFORTS TO STRENGTHEN PARENTAL RELATIONSHIP, TERMINATION OF PARENTAL RIGHTS REVERSED)/PARENTAL RIGHTS (TERMINATION REVERSED, DSS DID NOT MAKE DILIGENT EFFORST TO STRENGTHEN RELATIONSHIP)/TERMINATION OF PARENTAL RIGHTS (REVERSED, DSS DID NOT MAKE DILIGENT EFFORTS TO STRENGTHENN RELATIONSHIP)

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FRAUD CAUSE OF ACTION STEMMING FROM THE SIGNING OF A DOCUMENT WITHOUT READING IT DISMISSED AS TIME BARRED; RELEVANT STATUTES OF LIMITATIONS AND BURDENS OF PROOF EXPLAINED.

The Second Department determined plaintiff’s cause of action for fraud was time-barred because it accrued when she signed the allegedly fraudulent document without reading it. The court explained the two statutes of limitations which apply to fraud and the related burdens of proof in a motion to dismiss:

 

An action alleging fraud must be commenced within “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” (CPLR 213[8]; see CPLR 203[g]…). “On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired” … . “The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period”… .

Where a plaintiff relies upon the two-year discovery exception to the six-year limitations period, ” [t]he burden of establishing that the fraud could not have been discovered prior to the two-year period before the commencement of the action rests on the plaintiff who seeks the benefit of the exception'” * * *  … [A]lthough “mere suspicion” will not substitute for knowledge of the fraudulent act …, a plaintiff may not ” shut his [or her] eyes to facts which call for investigation … .

Here, the gravamen of the plaintiff’s complaint is fraud in the factum, that she was induced to sign documents without being advised of their contents … . However, “[a] party who signs a document without any valid excuse for not having read it is conclusively bound’ by its terms” … . In this case, the plaintiff admitted that she neither read nor inquired about the contents of the documents upon which she relies to establish the fraud before she signed them, yet she failed to proffer any valid excuse for her failure to do so. Under these circumstances, the plaintiff is conclusively presumed to have agreed to the terms of those documents … and, accordingly, cannot establish that she lacked knowledge from which she could have discovered the alleged fraud with reasonable diligence … . Cannariato v Cannariato, 2016 NY Slip Op 00650, 2nd Dept 2-3-16

 

FRAUD (TWO STATUTES OF LIMITATIONS EXPLAINED)/FRAUD (SIGNING DOCUMENT WITHOUT READING IT)/CONTRACT LAW (SIGNING DOCUMENT WITHOUT READING CONSTITUTES AGREEMENT)/CIVIL PROCEDURE (PROOF BURDENS RE: MOTION TO DISMISS FRAUD CAUSE OF ACTION AS TIME-BARRED)/STATUTES OF LIMITATIONS (FRAUD)

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