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AS LONG AS PLAINTIFF TAKES SOME ACTION THAT WOULD LEAD TO ENTRY OF A DEFAULT JUDGMENT WITHIN ONE YEAR AND NINETY DAYS OF THE DEFAULT, THE ACTION SHOULD NOT BE DISMISSED AS ABANDONED (SECOND DEPT).

The Second Department, reversing the sua sponte dismissal of the foreclosure complaint, noted that as long as a plaintiff initiates some action for the entry of judgment within one year and ninety days after a default, the action should not be dismissed as abandoned. Here the plaintiff made a request for judicial intervention within one year and ninety days:

… [P]laintiff demonstrated that, within one year after the defendants’ default, it filed a request for judicial intervention which sought a foreclosure settlement conference within the foreclosure action as mandated by CPLR 3408. “Where, as here, a settlement conference is a necessary prerequisite to obtaining a default judgment (see CPLR 3408[a], [m]), a formal judicial request for such a conference in connection with an ongoing demand for the ultimate relief sought in the complaint constitutes ‘proceedings for entry of judgment’ within the meaning of CPLR 3215(c)” … . Since the plaintiff demonstrated that it initiated proceedings for the entry of a judgment of foreclosure and sale within one year after the defendants’ default, it was not required to proffer a reasonable excuse or demonstrate a potentially meritorious cause of action (see CPLR 3215[c] …). US Bank N.A. v Jerriho-Cadogan, 2024 NY Slip Op 00790, Second Dept 2-14-24

Practice Point: Here in this foreclosure action the bank made a request for judicial intervention within one year and ninety days of the default. The action should not have been dismissed as abandoned.

 

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THE SEARCH WARRANT SEEKING CELL SITE LOCATION INFORMATION (CSLI) FROM THE NEW JERSEY CELL PHONE COMPANY WAS FAXED TO NEW JERSEY FROM NEW YORK; THEREFORE THE WARRANT WAS “EXECUTED” IN NEW YORK AND DID NOT VIOLATE THE NEW YORK CONSTITUTION OR CPL ARTICLE 690 (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice LaSalle, determined the search warrant for cell site location information (CSLI) was executed in New York, where the warrant was faxed from, not in New Jersey, where the T-Mobile records were located. Therefore there was no violation of the New York Constitution or Criminal Procedure Law 690.2-(1). The CSLI was used to place the defendant at the location of the stabbing at the time of the stabbing:

Just as the term “executed” is not defined in CPL article 700, it is also not defined in the New York Constitution or CPL article 690. Nevertheless, in determining where a warrant is “executed” within the meaning of CPL 700.05(4), the Court of Appeals looked to where the actions of the law enforcement officers took place. It follows that in determining where a search warrant is “executed” within the meaning of the New York Constitution and CPL 690.20(1), we similarly must look to where the actions of the law enforcement officers took place. Here, the action of the subject law enforcement officer—the act of faxing the search warrant to T-Mobile—took place in New York … .

The “core” of the Fourth Amendment is to “protect the right of privacy from arbitrary police intrusion” … . A service provider accessing and retrieving its subscribers’ CSLI and call detail information located in the service provider’s own business records does not implicate its subscribers’ right to privacy protected by the Fourth Amendment … . It is only when agents of the government act that the subscribers’ Fourth Amendment rights are implicated. Since the actions of the government’s agents that encroached on the defendant’s Fourth Amendment rights—the faxing of the warrant—took place in New York, we conclude that this is where the search warrant was executed. People v Riche, 2024 NY Slip Op 00785, Second Dept 2-14-24

Practice Point: Here a search warrant seeking cell site location information (CSLI), which was faxed from New York to the cell phone company in New Jersey, was “executed” in New York and therefore did not violate the New York Constitution or Criminal Procedure Law Article 690.

 

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THE STATEMENT GIVEN BY THE DEFENDANT WHEN HE WAS UNDER MEDICATION AT THE HOSPITAL SHOULD HAVE BEEN SUPPRESSED; AT TRIAL THE JURY SHOULD HAVE BEEN INSTRUCTED TO REJECT THE STATEMENT IF THEY FOUND IT WAS INVOLUNTARILY MADE; AND THE DEFENSE BATSON CHALLENGE TO THE EXCLUSION OF FOUR AFRICAN-AMERICAN PROSPECTIVE JURORS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined: (1) the statement given by the defendant when he was under medication at the hospital should have been suppressed; (2) at trial the judge should have instructed the jury to reject the statement if they found the statement was not voluntarily made; and (3) the defense Batson challenge to the prosecutor’s exclusion of four African-American prospective jurors should have been granted:

At the time of the interrogation, the defendant had recently been in a medically induced coma, had come out of surgery only hours before, and his condition “was still sufficiently serious that he was in the intensive care unit” … . The defendant “was lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus” when the detective approached him … . At the time of the police questioning, the defendant was drowsy from painkillers administered to him, his right arm was handcuffed to the hospital bed, and his left arm was bandaged and immobilized from the earlier surgery. The defendant was positioned upright so that the detective could question him, and when the defendant expressed that this caused him pain and requested medical assistance, the detective denied the request and coerced the defendant by stating that he would obtain medical assistance after he had questioned the defendant. * * *

Where, as here, the defendant has placed in issue the voluntariness of his statements to law enforcement officials, “the court must submit such issue to the jury under instructions to disregard such evidence upon a finding that the statement was involuntarily made” … . * * *

… [T]he record demonstrates that the articulated reasons were not applied equally to exclude other prospective jurors … . Under these circumstances, the prosecutor’s explanations as to the four prospective jurors were pretextual, and the defendant is entitled to a new trial on this ground … . People v Parker, 2024 NY Slip Op 00783, Second Dept 2-14-24

Practice Point: The statement given by defendant when he was under medication at the hospital should have been suppressed.

Practice Point: At trial, where defendant has placed the voluntariness of his statement in issue, the jury must be instructed to reject the statement if they find it was not voluntarily made.

Practice Point: Here the prosecutor accepted a juror who was a college student living at home but who was not African-American, and the prosecutor rejected four African-American prospective jurors because they were college students living at home with limited life experience. The Batson challenge should have been granted.

 

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THE APPELLANT RAISED A QUESTION OF FACT ABOUT WHETHER SHE WAS SERVED WITH THE SUMMONS AND COMPLAINT ENTITLING HER TO A HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the appellant had raised a question of fact about whether she was served with the summons and complaint requiring a hearing:

Here, the process server’s affidavit of service, in which he averred that he personally served the appellant, constituted prima facie evidence of valid service pursuant to CPLR 308(1) … . However, the Supreme Court erred in determining this branch of the motion without first conducting a hearing. The appellant demonstrated her entitlement to a hearing on the issue of service by submitting, among other evidence, her sworn denial, setting forth significant discrepancies between the description of the person allegedly served and the appellant’s physical appearance … . Under these circumstances, the appellant is entitled to a hearing on the issue of whether service was properly effected pursuant to the personal delivery provisions of CPLR 308(1) … . Matter of Rockman v Nassau County Sheriff’s Dept., 2024 NY Slip Op 00770, Second Det 2-14-24

Practice Point: Here, although plaintiff demonstrated proper service of process, the appellant raised a question of fact about whether she in fact was personally served by noting the process server’s description of the person served did not match her appearance.

 

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RESPONDENT MATERNAL UNCLE IN THIS CUSTODY PROCEEDING DID NOT EFFECTIVELY WAIVE HIS RIGHT TO COUNSEL; ORDER REVERSED (SECOND DEPT).

The Second Department, reversing Family Court in this custody action, determined respondent uncle did not waive his right to counsel:

Here, the maternal uncle had a statutory right to the assistance of counsel because he was a respondent in a child custody proceeding … . Although the record demonstrates that, at an appearance on the petition, the Family Court advised the maternal uncle of his right to retain counsel and his right to request an adjournment, it incorrectly informed him that “non parents in custody cases . . . are not entitled to assigned counsel.” The record also shows that while the maternal uncle indicated his desire to retain counsel and to adjourn the matter, he did not speak when the court and the father’s counsel discussed awarding the father temporary custody of the subject child with no visitation for the maternal uncle, and he exhibited confusion with respect to the purpose of the proceeding … . Under all of these circumstances, it cannot be said that the maternal uncle had a “sufficient awareness of the relevant circumstances and probable consequences” of proceeding without counsel … .

Furthermore, on the adjourned date, the Family Court erred in determining the merits of the father’s petition without first conducting a hearing … . Matter of Huasco v Chimborazo, 2024 NY Slip Op 00767, Second Dept 2-14-24

Practice Point: A respondent in a custody proceeding has a right to counsel. Here respondent did not explicitly waive his right to counsel and the order was reversed.

 

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PREMATURE AND SHOULD HAVE BEEN DENIED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case was premature and should have been denied:

A motion for summary judgment may be denied as premature where it appears that the facts essential to oppose the motion exist but cannot then be stated (see CPLR 3212[f] …). “A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” … .

Here, the plaintiff demonstrated that further discovery, including records of the United States Postal Service, a deposition of the plaintiff’s former coworker, and discovery related to hearsay statements that the alleged defect had been reported to the defendants, may result in the disclosure of evidence relevant to the issue of whether the defendants had notice of the alleged defective condition … . Knowles v 21-43 27th St., LLC, 2024 NY Slip Op 00759, Second Dept 2-14-24

Practice Point: Here the defendants’ motion for summary judgment was deemed premature; criteria explained.

 

FAILURE TO SUBMIT PROOF OF MAILING THE SUMMONS AND COMPLAINT PURSUANT TO CPLR 308 (2) IS A JURISDICTIONAL DEFECT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the failure to offer any proof of mailing the summons and complaint was a jurisdictional defect:

Plaintiff’s failure to comply with CPLR 308(2)’s mailing requirement was not a mere “technical infirmity” that may be overlooked by the court pursuant to CPLR 2001 … . “‘In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant — notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections'” … . The court found that a late mailing under CPLR 308(2) was not a mere technical infirmity, as it increased the likelihood that the defendant did not receive proper notice of the legal proceeding (id. at 1251). We likewise hold that a plaintiff’s complete failure to comply with CPLR 308(2)’s mailing requirement greatly increases the likelihood that a defendant will not receive the pleadings and have an opportunity to answer. Accordingly, plaintiff’s failure to offer proof of mailing under CPLR 308(2) was a jurisdictional defect requiring denial of plaintiff’s motion for a default judgment. Williams v MTA Bus Co., 2024 NY Slip Op 00692, First Dept 2-8-24

Practice Point: Both delivery and mailing of the summons and complaint is required to effect service of process pursuant to CPLR 308 (2). Failure to submit proof of mailing is a jurisdictional, not a technical, defect.

 

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WHERE THERE ARE UNRESOLVED QUESTIONS OF FACT CONCERNING ELIGIBILITY FOR WORKERS’ COMPENSATION BENEFITS THE WORKERS’ COMPENSATION BOARD HAS PRIMARY JURISDICTION AND MUST RULE BEFORE ANY RELATED ACTION CAN BE BROUGHT IN SUPREME COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Workers’ Compensation Board had primary jurisdiction and must rule on defendant’s eligibility for benefits before Supreme Court can hear an action by the insurer for reimbursement of no-fault payments made to defendant:

In July 2018, the subrogors of the plaintiff no-fault insurer, State Farm Mutual Automobile Insurance Company, allegedly were injured in a motor vehicle accident while traveling in a vehicle insured by the plaintiff. After the plaintiff provided payments for medical services on behalf of the subrogors, it learned that the subrogors had applied for workers’ compensation benefits and that the Workers’ Compensation Board had directed the defendant workers’ compensation insurer, Amtrust North America, Inc., to pay for necessary medical treatments for the subrogors. Thereafter, the plaintiff demanded that the defendant reimburse it for the full amount of no-fault benefits the plaintiff had provided on behalf of its subrogors. * * *

“[W]here the availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions” … . “Since ‘primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board'” … . State Farm Mut. Auto. Ins. Co. v Amtrust N. Am., Inc., 2024 NY Slip Op 00646, Second Dept 2-7-24

Practice Point: Where there are unresolved questions of fact about a party’s eligibility for Workers’ Compensation benefits, any action in Supreme Court should be transferred to the Workers’ Compensation Board, which is vested with primary jurisdiction.

 

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THE FORUM SELECTION CLAUSE IN THE NURSING HOME ADMISSION AGREEMENT WAS VALID AND ENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the forum selection clause in the nursing-home admission was valid and enforceable:

“‘A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court’ … . …

In opposition to the defendant’s prima facie showing of the parties’ agreement which includes a forum selection clause, the plaintiff was required to show that enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy, or that the forum selection clause was the result of fraud or overreaching … . Here, the plaintiff failed to do so. Johnson v Seagate Rehabilitation & Nursing Ctr., 2024 NY Slip Op 00620, Second Dept 2-7-24

Practice Point: To contest a forum selection clause in a nursing home admission agreement, the plaintiff must show that enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy, or that the forum selection clause was the result of fraud or overreaching.

 

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PURSUANT TO THE BUSINESS JUDGMENT RULE, INDIVIDUAL CONDOMINIUM BOARD MEMBERS MAY BE LIABLE FOR UNEQUAL TREATMENT OF SHAREHOLDERS IN THE ASSESSMENT OF COMMON CHARGES (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined individual condominium board members could be liable under the business judgment rule for unequal treatment of shareholders with respect to the assessment of common charges:

“The business judgment rule is applicable to the board of directors of cooperative and condominium corporations” … . The rule provides that “a court should defer to a [condominium] board’s determination ‘[s]o long as the board acts for the purposes of the [condominium], within the scope of its authority and in good faith'” … . Unequal treatment of shareholders is sufficient to overcome the directors’ insulation from liability under the business judgment rule … , and a director who participates in the commission of a tort committed by the board may be held individually liable … .

Here, the complaint sufficiently alleged a cause of action sounding in breach of fiduciary duty against the individual defendants. The complaint also sufficiently alleged a cause of action sounding in fraud against the individual defendants to the extent that the plaintiff seeks damages for the overassessment of common charges … . 72 Poplar Townhouse, LLC v Board of Mgrs. of the 72 Poplar St. Condominium, 2024 NY Slip Op 00606, Second Dept 2-7-24

Practice Point: Here the complaint stated causes of action for breach of fiduciary duty and fraud against individual condominium board members for unequal treatment of shareholders in the assessment of common charges.

 

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