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Recommencement of A Dismissed Action Pursuant to CPLR 205 (a) Not Allowed Where Prior Action Was Dismissed for Neglect to Prosecute

The Second Department determined that dismissal of plaintiff's action for neglect to prosecute precluded the commencement of another identical action pursuant to CPLR 205 (a):

The Supreme Court correctly concluded that a prior action commenced by the plaintiff against the defendant, which asserted the same causes of action, was dismissed for the plaintiff's failure to obtain personal jurisdiction over the defendant and neglect to prosecute, and that the order of dismissal entered in that action adequately set forth the conduct of the plaintiff that constituted the neglect and demonstrated a general pattern of delay in proceeding (see CPLR 205[a]). Accordingly, the court properly concluded that the plaintiff could not avail herself of CPLR 205(a), which provides that, under certain circumstances, an action that has been dismissed, albeit not on the merits, may be recommenced within six months after its dismissal… . Webb v Greater NY Auto Dealers Assn Inc, 2014 NY Slip Op 09121, 2nd Dept 12-31-14


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Default Judgment of Foreclosure Cannot Be Collaterally Attacked in a Plenary Proceeding/Former Property Owner Cannot Contest Sale of Property After Default Judgment of Foreclosure

The Second Department noted that petitioner, Amona, could not bring a plenary action (an Article 78/declaratory judgment proceeding) after a tax foreclosure proceeding in which she defaulted and which resulted in the sale of her property.  Amona's only recourse was a motion to vacate the judgment of foreclosure.  However, Amona's default in the foreclosure action precluded any action to contest the sale of the property:

The Supreme Court properly granted the Conservancy's motion, in effect, to dismiss the petition/complaint. The relief sought herein by Amona should have been pursued by way of a motion to vacate the judgment pursuant to CPLR 317 or CPLR 5015(a) in the in rem tax lien foreclosure proceeding … . “A plenary action or proceeding for such relief does not lie and must be dismissed” … . Since Amona has improperly sought to collaterally attack the judgment by way of this proceeding/action, the Supreme Court properly, in effect, dismissed the proceeding/action.

Moreover, Amona's default in the foreclosure action forever barred and foreclosed her of “all right, title, and interest and equity of redemption in and to the parcel” in which she had had an interest (RPTL 1131). Thus, Amona has no standing to contest the County's sale of the property … (see RPTL 1136[3]…).  Matter of Amona v County of Orange, 2014 NY Slip Op 09125, 2nd Dept 12-31-14

 

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In an Action Stemming from an Automobile Accident, Having Granted a Default Judgment, Supreme Court Should Not Have Directed Plaintiff to Accept a Late Answer and Allowed Discovery Re: Damages–A Defaulting Defendant Is Not Entitled to Discovery

The Second Department determined Supreme Court, having granted plaintiff's motion for a default judgment on liability in an automobile-accident case, should have also granted plaintiff's motion for an inquest on damages.  Supreme Court should not have ordered plaintiff to accept a late answer and allowed discovery on damages:

Having granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendants on the issue of liability, the Supreme Court should have directed an inquest on damages. Since serious injury “is decidedly an issue of damages, not liability” …, the plaintiff will be required to present prima facie proof at the inquest that she sustained a serious injury. However, while the defendants are “entitled to present testimony and evidence and cross-examine the plaintiff's witnesses at the inquest on damages” …, they may not conduct discovery with respect to the issue of damages, since defaulting defendants forfeit the right to discovery … . Rudra v Friedman, 2014 NY Slip Op 09117, 2nd Dept 12-31-14


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Procedure Under Civil Rights Law for Disclosure of Police Personnel Records Described

The Second Department determined plaintiff was entitled to the audiotapes of interviews of police officers which were attached to a report about a high-speed chase that resulted in the death of plaintiff's decedent.  Plaintiff's decedent was killed when the vehicle the police were chasing crashed into plaintiff's decedent's house:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution . . . of an action.” However, Civil Rights Law § 50-a, which codifies the standards for the disclosure of police personnel records …, provides that a police officer's “personnel records, used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review . . . except as may be mandated by lawful court order” (Civil Rights Law § 50-a[1]). Prior to issuing such an order, the court is obligated to conduct an in camera review of the requested file, “and make a determination as to whether the records are relevant and material in the action before” it, and, upon such a finding “the court shall make those parts of the record found to be relevant and material available to the persons so requesting” (Civil Rights Law § 50-a[3]).

Here, the order dated March 22, 2013, indicated that the Supreme Court had reviewed “the reports sought . . . and all documentation annexed thereto” before concluding that there was “relevant and material” information contained therein (emphasis added). Accordingly, the plaintiff met his burden for compelling disclosure pursuant to Civil Rights Law § 50-a, and the court properly directed the County to disclose the IAB report. However, we perceive no reason why the plaintiff should have been denied access to the audiotapes of the interviews which were identified in the attachments to the IAB report … . The plaintiff should be permitted to hear the actual interviews of the officers regarding the accident, and not only read the IAB report's summaries thereof, since the interviews were the main source material for the IAB report and were incorporated by reference therein … .

“The party opposing disclosure carries the burden of demonstrating that the requested information falls squarely within the exemption'” … . The County has not offered any explanation as to why the audiotapes should not be discoverable, especially since it has already disclosed all of the other source material identified in the attachments to the IAB report. Calhoun v County of Suffolk, 2014 NY Slip Op 09095, 2nd Dept 12-31-14


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Testimony Insufficient to Overcome Presumption Photo Arrays, Which Were Not Preserved, Were Unduly Suggestive—Subsequent Line-Up, Which Included Persons Much Older than Defendant, Was Unduly Suggestive—New Trial Ordered

The Second Department determined both identification procedures were unduly suggestive and ordered a new trial.  The People did not preserve the photo arrays and the testimony about the photo arrays was insufficient to overcome the presumption the arrays were suggestive.  The subsequent line-up included persons much older that the 18-year-old defendant and, therefore, was unduly suggestive:

The Supreme Court erred in denying that branch of the defendant's omnibus motion which was to suppress identification testimony. The People's failure to preserve the original photographic arrays viewed by the complainants gave rise to a presumption of suggestiveness, and the People did not present sufficient evidence to rebut that presumption … . The fact that the police failed to preserve the arrays viewed by the complainants does not warrant suppression in and of itself. However, the detective's testimony at the suppression hearing as to how the computerized procedure operated was insufficiently detailed to establish its fairness … . The detective gave inconsistent testimony regarding what age criteria he entered in the computer system to generate each photo array. Furthermore, he did not recall how many screens either complainant viewed before each of them recognized the defendant, or how long it took each to make an identification. Therefore, the evidence did not overcome the presumption that the arrays were suggestive … . Although the police had not yet focused on any particular suspect, it cannot be said that the sheer volume of photographs viewed was sufficient to dispel any inference of suggestiveness, as it is unknown how many photographs were viewed by the complainants … .

We need not address whether the subsequent lineup was sufficiently attenuated in time from the photo identification procedure to nullify any possible taint, because the lineup procedure was also unduly suggestive … . While there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance, the other individuals in the lineup should sufficiently resemble the defendant so that there is no substantial likelihood that the defendant would be singled out for identification … . Upon our review of a photograph of the lineup viewed by the complainants, it is apparent that the defendant and one of the fillers appear to be of similar ages, but the other three fillers appear visibly older than the defendant … . The age disparity was sufficiently apparent as to orient the viewer toward the defendant as a perpetrator of the crimes charged … . People v Robinson, 2014 NY Slip Op 09024, 2nd Dept 12-24-14

 

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Requirements for Common Law Indemnification and Contribution Causes of Action Explained

The Second Department, in the context of a legal malpractice action, explained the requirements for common law indemnification and contribution.  The motions to dismiss at issue were brought by the third-party defendant law firm (M & S) against the third-party plaintiff law firm (Danna).  The Second Department determined Danna's common law indemnification cause of action should have been dismissed because Danna's alleged liability was not purely vicarious and Danna's contribution action properly survived dismissal because Danna alleged M & S's legal malpractice contributed to plaintiff's damages:

“The principle of common law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party” … . “Common-law indemnification is warranted where a defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is purely vicarious” … . “Thus, a party which has actually participated in the wrongdoing is not entitled to indemnification” … . Here, the plaintiffs' claims against the Danna defendants in the instant legal malpractice action are based upon the Danna defendants' representation of the plaintiffs in an accounting proceeding they commenced in the Superior Court of New Jersey (hereinafter the New Jersey proceeding). * * * …[T]he documentary evidence submitted by M & S in support of its motion conclusively established that any liability on the part of the Danna defendants for legal malpractice was not solely passive and purely vicarious. Accordingly, the Supreme Court should have granted that branch of M & S's motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action for common-law indemnification in the third-party complaint insofar as asserted against it.

As to the contribution cause of action, ” [i]n determining whether a valid third-party claim for contribution exists, the critical issue is whether the third-party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiff's damages'” … . ” [T]he remedy may be invoked against concurrent, successive, independent, alternative and even intentional tortfeasors'” … . “A defendant attorney may seek contribution from a subsequently retained attorney, to the extent that the subsequently retained attorney's negligence may have contributed to or aggravated the plaintiff's injuries” … . Contrary to M & S's contentions, the Supreme Court properly denied those branches of its motion which were pursuant to CPLR 3211(a) to dismiss the contribution cause of action in the third-party complaint insofar as asserted against it, since the defendants third-party plaintiffs properly stated a cause of action alleging that M & S's legal malpractice contributed to the plaintiff's damages, and documentary evidence did not conclusively establish a complete defense to that cause of action… . Bivona v Damma & Assoc PC, 2014 NY Slip Op 08947, 2nd Dept 12-24-14

 

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Petitioner, Who Was Not a Biological or Adoptive Parent of the Child, Was Adjudicated a Parent in a Support Proceeding Brought by the Respondent—Under the Doctrine of Judicial Estoppel, Petitioner Was Deemed a Parent in a Subsequent Custody/Visitation Proceeding Brought by the Petitioner

The Second Department determined a determination that petitioner (Arriago) was the child's parent in a support proceeding precluded the respondent (Dukoff) from arguing petitioner was not the child's parent in a subsequent custody/visitation proceeding.  Arriago and Dukoff were domestic partners in a same-sex relationship.  Arriago was artificially inseminated and gave birth to the child.  After successfully seeking child support from Arriago because Arriago was a parent of the child, Dukoff argued that Arriago did not have standing, as neither the biological or adoptive parent, to bring the custody/visitation proceeding.  Family Court disagreed and awarded Arriago visitation:

Dukoff … argues that the court's conclusion that Arriaga had standing to commence this [custody/support] proceeding is contrary to the Court of Appeals' holdings in Debra H. v Janice R. (14 NY3d 576) and Matter of Alison D. v Virginia M. (77 NY2d 651). We disagree with Dukoff's contentions.

Domestic Relations Law § 70(a) provides, in part, that “either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and [the court] may award the natural guardianship, charge and custody of such child to either parent . . . as the case may require” (emphasis added). This statute has also been construed to grant standing to ” either parent'” to apply for a writ of habeas corpus to determine the issue of visitation rights … . In Debra H., the Court of Appeals reaffirmed its holding …  that the term “parent” in Domestic Relations Law § 70 encompasses only the biological parent of a child or a legal parent by virtue of adoption and that a “de facto parent” or “parent by estoppel” could not seek visitation with a child who is in the custody of a fit parent (Debra H. v Janice R., 14 NY3d at 590 [internal quotation marks and emphasis omitted]…). In Debra H., however, the Court analyzed the significance of the civil union the parties had entered into in Vermont prior to the child's birth. The Court determined that, under Vermont law, a child born during a civil union was a child of both partners. Thus, it concluded, Debra H. was the child's parent under Vermont law. As a matter of comity, the Court recognized her as the child's parent under New York law as well, thereby conferring standing for her to seek visitation and custody at a best interests hearing (see Debra H. v Janice R., 14 NY3d at 601).

The Court of Appeals noted that recognizing Debra H. as a parent did not conflict with the public policy of New York and would not “undermine the certainty that Alison D. promises biological and adoptive parents and their children,” since “whether there has been a civil union in Vermont is as determinable as whether there has been a second-parent adoption. And both civil union and adoption require the biological or adoptive parent's legal consent, as opposed to the indeterminate implied consent featured in the various tests proposed to establish de facto or functional parentage” (Debra H. v Janice R., 14 NY3d at 600-601). At the heart of the Court's reasoning in Debra H. was a desire to provide a bright-line rule affording certainty and predictability to parents and children. The Court expressed concern that an equitable estoppel hearing would create protracted litigation on the issue of standing.

In this proceeding, Arriaga asserts that she has standing as a parent of the child pursuant to the doctrine of judicial estoppel. Under that doctrine, ” a party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed'” … .

The concerns expressed by the Court of Appeals in Debra H. are not implicated in the present case, where Arriaga invoked the doctrine of judicial estoppel, not equitable estoppel. No hearing was required to decide whether the doctrine of judicial estoppel applies in this case, nor did the determination involve a “complicated” or “nonobjective test” (Debra H. v Janice R., 14 NY3d at 594). Just as in Debra H., whether Arriaga was adjudicated a parent of the child was “as determinable as whether there has been a second-parent adoption” (id. at 600).

Moreover, just as in second-parent adoptions, the adjudication of Arriaga as a parent of the child required the biological mother's affirmative legal consent, “as opposed to the indeterminate implied consent featured in the various tests proposed to establish de facto or functional parentage” (id. at 600-601). Indeed, here, Dukoff was the party who sought to have Arriaga adjudicated a parent. Although Dukoff did not consent to adjudicating Arriaga a parent of the child for the purposes of visitation rights, the biological mother in Debra H. also did not do so.  Matter of Arriaga v Dukoff, 2014 NY Slip Op 08990, 2nd Dept 12-24-14

 

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“Detained Sex Offender,” Under Article 10, Applies Equally to Lawfully and Unlawfully Detained Sex Offenders

In the course of affirming the finding that appellant was a dangerous sex offender who must be civilly confined, the Second Department noted that Article 10 of the Mental Hygiene Law, which applies to “detained sex offenders,” applies equally to lawfully and unlawfully detained sex offenders.  The court went on to briefly describe the relevant analytical criteria and proof burden:

The appellant's contention that this proceeding was “jurisdictionally flawed” because he did not meet the definition of a detained sex offender is without merit. The appellant was incarcerated upon his conviction of attempted sodomy in the first degree pursuant to Penal Law § 110.00 and former Penal Law § 130.50 at the time that this proceeding was commenced (see Mental Hygiene Law § 10.03[g][1]). The Court of Appeals has made it clear that the statutory language of Mental Hygiene Law article 10 does not distinguish between lawfully and unlawfully detained sex offenders … . * * *

A “dangerous sex offender requiring confinement” is defined under Mental Hygiene Law article 10 as “a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (Mental Hygiene Law § 10.03[e]). The State must establish by clear and convincing evidence that the appellant is a dangerous sex offender requiring confinement (see Mental Hygiene Law § 10.07[f]). Matter of State of New York v Abdul A, 2014 NY Slip OP 09006, 2nd Dept 12-24-14

 

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Evidence of General Cleaning Practices Is Not Sufficient to Demonstrate the Absence of Constructive Notice

The Second Department noted that the absence of construction notice of a dangerous condition in a slip and fall case cannot be demonstrated by evidence of general cleaning procedures, as opposed to specific evidence when the area in question was inspected and cleaned:

In a slip-and-fall case, a defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the allegedly hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . With respect to the issue of constructive notice, to meet its initial burden, “the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.” “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … . Sesina v Joy Lea Realty LLC, 2014 NY Slip OP 08976, 2nd Dept 12-24-14

 

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Failure to Notify Insured of Change in Coverage for Fire Insurance (In Violation of Insurance Law 3425 (d)) May Constitute a Deceptive Business Practice Under General Business Law 349

The Second Department determined that the insurer's (Quincy's) failure to notify the insured of a change in a the coverage afforded by a homeowner's policy (in violation of Insurance Law 3425 (d)) supported a cause of action for deceptive business practices under General Business Law 349. Quincy had notified the insured's broker of the change, but not the insured:

The elements of a cause of action to recover damages for deceptive business practices under General Business Law § 349 are that the defendant engaged in a deceptive act or practice, that the challenged act or practice was consumer-oriented, and that the plaintiff suffered an injury as a result of the deceptive act or practice … . ” Intent to defraud and justifiable reliance by the plaintiff are not elements of the statutory claim” … . Conduct has been held to be sufficiently consumer-oriented to satisfy the statute where it constituted a standard or routine practice that was “consumer-oriented in the sense that [it] potentially affect[ed] similarly situated consumers” … .

Here, Quincy's submissions failed to demonstrate, prima facie, that its failure to comply with the notice requirements set forth in Insurance Law § 3425(d) did not constitute a deceptive business practice. Quincy, in its submissions, admitted that it sought to change and reduce coverage by eliminating a particular endorsement to its New York homeowners' insurance policies, including the plaintiffs' insurance policy. Upon the plaintiffs' renewal of the policy, Quincy eliminated the endorsement, but failed to notify those insureds of that change in the manner prescribed by the Insurance Law. Moreover, the plaintiffs, who continued to seek full replacement costs in relation to the fire that destroyed their home, were clearly injured by the lack of notice that they were underinsured. Valentine v Quincy Mut Fire Ins Co, 2014 NY Slip Op 08984, 2nd Dept 12-24-14

 

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