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Default for Failure to File Note of Issue Within 90 Days of Demand Properly Excused

In affirming Supreme Court’s denial of defendants’ motion to dismiss for failure to file and note of issue after a 90-day demand, the Second Department noted the court’s discretion in this area:

Where, as here, a plaintiff has been served with a 90-day demand pursuant to CPLR 3216(b)(3), that plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day period … . Here, the plaintiff failed to do either within the 90-day period. Therefore, in order to excuse his default, the plaintiff was required to demonstrate a justifiable excuse for his failure to timely file the note of issue or move to either vacate the demand or extend the 90-day period, as well as a potentially meritorious cause of action … . The determination of what constitutes a reasonable excuse lies within the discretion of the motion court … .

Nevertheless, CPLR 3216 is “extremely forgiving” …, in that it “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … . Thus, “the statute prohibits the Supreme Court from dismissing a complaint based on failure to prosecute whenever the plaintiff has shown a justifiable excuse for the delay, and potentially a meritorious cause of action” …, but depending on the circumstances, a plaintiff is not always required to establish both a justifiable excuse and a potentially meritorious cause of action to avoid such a dismissal … .

In this case, the plaintiff demonstrated that he did not intend to abandon the action and that there were ongoing discovery proceedings conducted during the time period involved. Belson v Dix Hills AC Inc, 2014 NY Slip Op 05144, 2nd Dept 7-9-14

 

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Defense of Lack of Personal Jurisdiction Is Not Waived by Making a Motion to Dismiss on that Ground/Process Server’s Testimony About Attempts to Locate Defendant Lacked Credibility

The Second Department determined the defendant did not waive the defense of lack of personal jurisdiction by submitting a motion to dismiss on that ground.  The court further determined that Supreme Court properly dismissed the complaint based upon the process server’s lack of credibility about his attempts to locate the defendant:

A defendant may waive the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss … . A defendant may also waive lack of personal jurisdiction by entering into a stipulation of settlement of the action … . Additionally, a defendant may waive lack of personal jurisdiction by making payments pursuant to a judgment or wage garnishment for a substantial period of time …  However, where the defendant’s only participation in the action is the submission of a motion to vacate a default judgment for lack of personal jurisdiction, the defense of lack of personal jurisdiction is not waived … . * * *

Service of process pursuant to the affix-and-mail provisions of CPLR 308(4) is only permitted where service by personal delivery under CPLR 308(1) or by delivery to a person of suitable age and discretion and a subsequent mailing pursuant to CPLR 308(2) “cannot be made with due diligence” (CPLR 308[4]). ” For the purpose of satisfying the due diligence requirement of CPLR 308(4), it must be shown that the process server made genuine inquiries about the defendant’s whereabouts and place of employment'” … . The process server’s testimony that he inquired as to the defendant’s whereabouts from a neighbor was not credible, since he was unable to provide any description of the neighbor—even a description of the neighbor’s sex. The affidavit of service referred to the “person spoken to,” but provided no further description, although spaces were provided to insert the person’s sex, skin color, hair color, approximate age, height, and weight.

The determination of the hearing court as to the credibility of the process server should not be disturbed since the hearing court had the advantage of seeing and listening to that witness. Cadlerock Joint Venture LP v Kierstedt, 2014 NY Slip Op 05147, 2nd Dept 7-9-14

 

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Jury’s Finding a Party Was at Fault But Such Fault Was Not the Proximate Cause of the Accident Should Not Have Been Set Aside as Inconsistent and Against the Weight of the Evidence

The Second Department determined plaintiff’s motion to set aside the verdict as contrary to the weight of the evidence should not have been granted.  Plaintiff was injured when he dove to catch a ball in an area which had poles sticking up out of the ground.  The plaintiff, who was 10 years old at the time, knew the poles were there.  The jury found that the property owner was at fault but that such fault was not the proximate cause of the accident.  The Second Department held that the verdict was not inconsistent and against the weight of the evidence:

“A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . ” [W]here there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view'” … . Here, a fair interpretation of the evidence supports the conclusion that the infant plaintiff’s own negligence was the sole proximate cause of his accident … . Henry v Town of Hempstead, 2014 NY Slip Op 05157, 2nd Dept 7-9-14

 

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Proof of “Physical Injury” Was Legally Insufficient

The Second Department determined the “physical injury” element of robbery in the second degree had not been proven:

“Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). The subject complainant testified that he sustained an injury to his left ring finger after he was attacked from behind and fell to the ground. The complainant went to the hospital after the incident, where his bruised finger was bandaged and placed in a splint, but X rays revealed no broken bones and there was no evidence presented that he was prescribed pain medication. A “bruise” was still present four years after the incident, but the complainant only testified generally that he felt pain on his hand and arms immediately after the incident, and he did not testify that the injury limited or diminished his ability to use his finger for any length of time. Under these circumstances, there was insufficient evidence from which a jury could infer that the complainant suffered substantial pain or impairment of physical condition … . People v Boney, 2014 NY Slip Op 05197, 2nd Dept 7-9-14

 

Surrogate’s Court Properly Declined to Suspend the Fiduciaries’ Letters Testamentary and Letters of Trusteeship Pending a Hearing to Determine the Contested Facts

The Second Department determined Surrogate’s Court properly declined to suspend the fiduciaries’ letters testamentary and letters of trusteeship pending the outcome of an accounting proceeding.  Although allegations of comingling property would support such a suspension, the allegations were contested and it would be an abuse of discretion to order the suspension without a hearing:

The removal of a fiduciary pursuant to SCPA 711 and 719 is equivalent to “a judicial nullification of the testator’s choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established” … .

Nevertheless, pursuant to SCPA 719(7), “letters [issued to a fiduciary] may be suspended, modified or revoked, or a lifetime trustee removed or his powers suspended or modified, without process. . . . [w]here he mingles the funds of the estate with his own or deposits them with any person, association or corporation . . . in an account other than as fiduciary” (SCPA 719[7] [emphasis added]). Fiduciary letters also may be suspended without process “[w]here any of the facts provided in 711 are brought to the attention of the court” (SCPA 719[10]).

However, as noted in Matter of Duke (87 NY2d 465),

“[w]hile the Surrogate is clearly granted the exceptional authority to summarily remove executors without the formality of commencing a separate proceeding, the authority to exercise the ultimate sanction summarily is not absolute. The Surrogate may remove without a hearing only where the misconduct is established by undisputed facts or concessions, where the fiduciary’s in-court conduct causes such facts to be within the court’s knowledge, or where facts warranting amendment of letters are presented to the court during a related evidentiary proceeding” (Matter of Duke, 87 NY2d at 472-473 [internal citations omitted; emphasis added]).

Thus, revoking a fiduciary’s letters without a hearing pursuant to SCPA 719 will constitute an abuse of discretion “where the facts are disputed, where conflicting inferences may be drawn therefrom . . . or where there are claimed mitigating facts that, if established, would render summary removal an inappropriate remedy” … .

Contrary to the appellants’ contention, the allegations in this case are sharply disputed and give rise to conflicting inferences regarding the Fiduciaries’ alleged misconduct. Matter of Mercer, 2014 NY Slip Op 05186, 2nd Dept 7-9-14

 

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Matter Determined After a Public Hearing, As Opposed to a Quasi-Judicial Evidentiary Hearing, Is Reviewed Under the “Arbitrary and Capricious,” Not “Substantial Evidence,” Standard/Village’s Higher Rate for Water Delivered to Customers Outside Its Borders Was Rational

The Second Department determined that, because there was a public hearing, not a quasi-judicial evidentiary hearing, on whether the village could charge a higher rate for water supplied outside its borders, Supreme Court should have determined the matter under the arbitrary and capricious standard. In applying that standard, the Second Department found the higher rate had a rational basis:

The Supreme Court erred in characterizing the proceeding as one in the nature of certiorari in which the “substantial evidence” inquiry applied (CPLR 7804[g]). Rate-making determinations may be considered “judicial in the sense that they are reviewable by certiorari or a proceeding in the nature of certiorari” where notice and a hearing are prescribed by statute … . However, “there are different types of hearings with different legal consequences” … . Here, the Village Code required the Board to conduct a hearing in advance of changing the rates it charged for water service, and the Board held a public hearing, as opposed to a quasi-judicial evidentiary hearing (see Code of the Village of Williston Park § 225-20[A]). As such, judicial review of the determination was limited to “whether the determination was affected by an error of law, or was arbitrary and capricious or an abuse of discretion, or was irrational” … . * * *

The Board’s determination to increase rates was rational, and was not arbitrary and capricious or illegal. A municipal water supplier may charge a higher rate to customers outside its borders, including other municipalities, so long as the difference has a rational basis … . Moreover, a municipal corporation operating a public water utility is entitled to earn a “fair return” on its investment in the utility’s facilities “over and above costs of operation and necessary and proper reserves” in addition to “an amount equivalent to taxes which [the utility], if privately owned, would pay to such municipal corporation” (General Municipal Law § 94; see NY Const art IX, § 1[f]). The actual rate the Board determined to charge also was rational … . In addition, the petitioner has not made any showing that the profits earned by the Incorporated Village of Williston Park under the new rate schedule, as compared to the “value of the property used and useful in such public utility service, over and above costs of operation and necessary and proper reserves,” were in excess of a “fair return” … . Matter of Board of Trustees of Inc Vil of Williston v Board of Trustees of Inc Vil of Williston Park, 2014 NY Slip Op 05179, 2nd Dept 7-9-14

 

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Off-Duty Corrections Officer Was Not Acting Within the Scope of His Employment When Decedent Was Shot

The Second Department determined that an off-duty corrections officer (Maldonado) was not acting within the scope of his employment when he shot and killed a man:

“Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment” … . “An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his [or her] employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment” … . However, an employer may not be held vicariously liable for its employee’s alleged tortious conduct if, at the time of the underlying incident, the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business … .

Here, the claimant’s decedent was shot by an off-duty New York State Corrections Officer, Emilio Maldonado, after a dispute. The record showed, inter alia, that Maldonado was assaulted by the claimant’s decedent and his brother following a traffic dispute. At the time of the incident, Maldonado was driving his personal vehicle, and was accompanied by family members. He was carrying his own privately-owned weapon as well as a badge. * * *

Although Maldonado testified in a related criminal action that he intended or planned to “cuff” and detain the assailants, it is undisputed that he never took any affirmative steps toward effecting a detention. In particular, he did not order the assailants to halt, and he did not physically attempt to handcuff or detain them. It is also undisputed that after the shooting, Maldonado did not attempt to detain the fleeing assailants. Under these circumstances, the claimant failed to raise a triable issue of fact as to whether Maldonado acted within the scope of his official duties… . Wood v State of New York, 2014 NY Slip Op 05173, 7-9-14

 

Petitioner Sufficiently Alleged She Is a Nonmarital Child of the Decedent—Probate Decree Properly Vacated

The Second Department determined Surrogate’s Court properly vacated a probate decree based upon petitioner’s assertion she is a nonmarital child of the decedent:

Here, the petitioner … sufficiently alleged that the decedent … “openly and notoriously acknowledged [her] as his own [child]” and, thus, she may be entitled to inherit from him (EPTL 4-1.2[a][2][C][ii]…). Accordingly, the Surrogate’s Court properly denied the executor’s motion pursuant to CPLR 3211(a) to dismiss the petition.

” Because vacatur disrupts the orderly process of administration and creates a continual aura of uncertainty and nonfinality, a probate decree will be vacated only in extraordinary circumstances'” … . “However, it is equally true that the Court should also be slow to say that an injustice may not be corrected'” … . “A petitioner seeking to vacate a probate decree must establish with some degree of probability that his claim is well founded, and that, if afforded an opportunity, he will be able to substantiate it'” … . An application to vacate a probate decree is committed to the discretion of the court … . Here, the petitioner showed with some degree of probability that she is a nonmarital child of the decedent and that, if afforded an opportunity, she will be able to substantiate her claim. Matter of Saginario, 2014 NY Slip Op 05192, 2nd Dept 7-9-14

 

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Complaint Stated Cause of Action for Legal Malpractice/Court Rejected Argument that Defect in Service Could Have Been Cured by Successor Counsel as Speculative

The Second Department determined the complaint sufficiently stated a cause of action for legal malpractice.  The court rejected the defendants’ argument that successor attorneys could have remedied the defect in service as speculative because, in order to remedy the defect, Supreme Court would have had to exercise discretion:

To establish a cause of action to recover damages for legal malpractice, a plaintiff must prove (1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care … . To establish proximate cause, it must be demonstrated that a plaintiff would have prevailed in the underlying action but for the attorney’s negligence … .

On a motion to dismiss pursuant to CPLR 3211(a)(7), the facts alleged in the complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory … . Grant v La Trace, 2014 NY Slip Op 05155, 2nd Dept 7-9-14

 

Block Falling from Pallet Covered Under Labor Law 240(1)/Criteria for Common Law Indemnification Explained

The Second Department determined injury from a stone block falling from a pallet was covered by Labor Law 240(1).  The court also explained the requirements for common law indemnification:

The defendants failed to establish their prima facie entitlement to judgment as a matter of law. Labor Law § 240(1) mandates that owners and contractors “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” The statute imposes absolute liability on owners and contractors whose failure to “provide proper protection to workers employed on a construction site” proximately causes injury to a worker … . The defendants failed to show that the injured plaintiff’s alleged injuries resulted from a general hazard encountered at a construction site and were not “the direct consequence of a failure to provide” an adequate device of the sort enumerated in Labor Law § 240(1) … . Those devices are intended to protect “against a risk arising from a physically significant elevation differential” (id. at 603). The defendants’ submissions did not establish that the accident was not the result of a failure to provide a protective device contemplated by the statute … . * * *

The key element of a cause of action for common-law indemnification is not a duty running from the indemnitor to the injured party, but rather, is a separate duty owed the indemnitee by the indemnitor … . ” Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine'”… . Desena v North Shore Hebrew Academy, 2014 NY Slip Op 05149, 2nd Dept 7-9-14

 

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