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French Court Never Had Personal Jurisdiction Over New York Defendant/Service Not Accomplished In Accordance with Hague Convention

The Second Department determined a foreign (French) judgment could not be enforced in New York because the plaintiff did not demonstrate the French court had personal jurisdiction over the defendant.  The defendant was not served in the French action in accordance with the Hague convention:

…[A] foreign country judgment is not conclusive, and thus may not be recognized, if (1) it was “rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law” or (2) “the foreign court did not have personal jurisdiction over the defendant” (CPLR 5304[a][1]…). A plaintiff seeking enforcement of a foreign country judgment bears the burden of making a prima facie showing that the mandatory grounds for nonrecognition do not exist … .

Here, the plaintiff failed to make a prima facie showing that the Superior Court of Paris had personal jurisdiction over the defendant. Pursuant to the Hague Convention, service in a signatory country may be made, inter alia, “by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory” (20 UST 361[5][a]). In the United States, the methods prescribed for service under the Hague Convention are set forth in Rule 4(e)(1) and (2) of the Federal Rules of Civil Procedure … . Rule 4(e)(1) authorizes service to be made by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made,” and Rule 4(e)(2) sets forth three specific authorized methods of service. …[P]laintiff submitted the affidavit of a process server indicating that service was effected by delivering the writ of summons to a person of suitable age and discretion at the defendant’s place of business in New York. Delivery of the summons to a person of suitable age and discretion at the defendant’s actual place of business is a state law method of service authorized by CPLR 308(2), and thus permissible under Rule 4(e)(1). However, CPLR 308(2) additionally requires that the summons be mailed to either the defendant’s last known address or actual place of business, and personal jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been complied with … . Since the affidavit of the plaintiff’s process server did not aver that the writ of summons was additionally mailed to the defendant, it was insufficient to establish, prima facie, that service was properly effected pursuant to CPLR 308(2) …, and therefore conformed to Rule 4(e)(1). Daguerre, S.A.R.L. v Rabizadeh, 2013 NY Slip Op 08587, 2nd Dept 12-26-13

 

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Family Court Has No Power to Add to Terms of Remittitur

The Second Department determined Family Court had failed to comply with the terms of its remittitur.  On appeal, the Second Department previously determined that the mother’s commitment to jail for failure to comply with a court order should be reduced from six months to 30 days.  Family Court then committed the mother to 30 days but added she was not to receive allowances for good behavior.  Because the “no allowances for good behavior” was not part of the appellate remittitur, that portion of Family Court’s order was invalid:

Upon a remittitur, a court is ” without power to do anything except to obey the … mandate of the higher court'” … . Here, the Family Court erred in failing to adhere to the terms of this Court’s remittitur by including in the amended order of commitment a provision directing that the mother would not receive time allowances for good behavior. We note that, although the mother is eligible for such time allowances (see Correction Law § 804-a[1]… ), the determination as to whether they should be granted is to be made by the person in charge of the institution where she is committed (see Correction Law § 804-a[3]… . Accordingly, we remit the matter to the Family Court, Nassau County, for the issuance of a second amended order providing that the mother is to be committed to the Nassau County Correctional Facility for a term of 30 days “unless sooner discharged according to law.”  Matter of Cunha v Urias, 2013 NY Slip Op 08624, 2nd Dept 12-26-13

 

 

Zoning Board Should Have Made Every Effort to Accommodate Religious Use/Zoning Board’s Denial of Variances Annulled and Variances Granted

The Second Department affirmed Supreme Court’s determination annulling a zoning board’s denial of variances to allow parking for a religious organization (and granting the variances).  The court noted that religious organizations are not exempt from zoning regulation, but the Board was obligated to make an effort to accommodate the religious use (which it did not do):

The Board’s denial of the petitioner’s applications was arbitrary and capricious. “[W]hile religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for a religious use than an application for another use and every effort to accommodate the religious use must be made” … . A local zoning board is required to “suggest measures to accommodate the proposed religious use while mitigating the adverse effects on the surrounding community to the greatest extent possible” … .

Here, the record reflects that the Board voted to deny the petitioner’s applications without making any attempt to accommodate the proposed religious use… . Matter of Gospel Faith Mission Intl Inc v Weiss, 2013 NY Slip Op 08439, 2nd Dept 12-18-13

 

 

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Prima Facie Proof Requirements for Entitlement to Payment of “No-Fault” Medical Expenses Clarified

In a full-fledged opinion by Justice Rivera, over the partial dissent by two justices, the Second Department resolved a conflict in its authority regarding what a medical provider must demonstrate to make out a prima facie case of entitlement to payment for medical treatment under the no-fault regime.  In Art of Healing Medicine PC v Travelers Home & Mar Ins Co (55 AD3d at 64), the Second Department wrote that “[t]he plaintiffs [ ] medical service providers failed to demonstrate the admissibility of their billing records under the business records exception to the hearsay rule”… . Based upon that language in “Art of Healing…,” several Appellate Term decisions “found that the plaintiff failed to establish its prima facie burden where it relied upon the affidavit of a biller who did not possess personal knowledge of the plaintiff’s business practices and procedures so as to establish that the claim forms annexed to the plaintiff’s moving papers were admissible under the business records exception to the hearsay rule…”.  In the instant case, the Second Department rejected that interpretation and reiterated that all a medical provider must demonstrate to make out a prima facie case is the submission of the proper billing forms and the failure to deny or pay the claim within the statutory period:

The requirement in Insurance Law § 5106(a) that a claimant must submit “proof of the fact and amount of the loss sustained” in order to trigger the 30-day period in which to pay or deny a claim refers to the contents of the billing forms, not the merits of the claim. * * *

The “how” evidentiary component of the plaintiff’s proof is met by, inter alia, the affidavit of a billing agent or an employee of the medical provider; that is, someone with personal knowledge of the plaintiff’s billing methods … . The billing agent will (1) attest that he/she personally sent the billing forms to the insurer, that the insurer received the same, and that the insurer failed to pay or deny the claim within the requisite 30-day period, or (2) set forth the procedures customarily utilized in the ordinary course of its business regarding the mailing/receipt of such forms and that the insurer failed to pay or deny the claim within the requisite 30-day period. As part of its prima facie showing, the plaintiff is not required to show that the contents of the statutory no-fault forms themselves are accurate or that the medical services documented therein were actually rendered or necessary. Stated another way, the plaintiff is not required to establish the merits of the claim to meet its prima facie burden. To the extent that Art of Healing imposes a “business record” requirement obliging the plaintiff to establish the truth or the merits of the plaintiff’s claim, we overrule Art of Healing. Viviane Etienne Med Care PC v Country-Wide Ins Co, 2013 NY Slip Op 08430, 2nd Dept 12-18-13

 

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Civil Contempt Does Not Include the Element of Willfulness/Adverse Inference May Be Drawn Re: Assertion of Privilege Against Self-Incrimination in Civil Contempt Proceeding

In a full-fledged opinion by Justice Angiolillo, the Second Department cleared up some confusion created by conflicting authority concerning whether willfulness was an element of civil contempt.  The defendant was held in contempt based upon his failure to deposit the proceeds of the sale of marital property with the court. The Second Department concluded willfulness is not an element of civil contempt.  In addition, the Second Department explained that the defendant’s assertion of his Fifth Amendment privilege against self-incrimination in the contempt proceedings did not preclude the court from drawing an adverse inference and did not relieve the defendant of his burden of proof:

…[W]e conclude that, for the plaintiff to prevail on her motion to hold the defendant in civil contempt, she was required to prove by clear and convincing evidence “(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct” … . The use of the words “willful” and “willfully” in some of our cases involving civil contempt …, should not be construed to import the element of willfulness into a civil contempt motion made pursuant to Judiciary Law § 753(A)(3). “It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party” … . * * *

“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them” … . “In New York, unlike the rule in a criminal case, a party’s invocation of the privilege against self-incrimination in a civil case may be considered by the finder of the facts in assessing the strength of the evidence offered by the opposing party on the issue which the witness was in a position to controvert” … .  El-Dehdan v El-Dehdan, 2013 NY Slip Op 08404, 2nd Dept 12-18-13

 

 

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Prosecutorial Misconduct and Defense Counsel’s Ineffectiveness Required Reversal

The Second Department reversed defendant’s conviction, in the interest of justice, finding the prosecutor’s improper comments during summation deprived defendant of a fair trial. In addition, the Second Department determined defense counsel was ineffective in eliciting inadmissible expert testimony detrimental to the defense and failing to object to the prosecutor’s misconduct:

Re: prosecutorial misconduct during summation, the Second Department wrote:

In summing up, a prosecutor “must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … . At trial, the defendant presented evidence concerning his cooperation with law enforcement authorities in drug cases against the complainants’ mother to establish that the complainants had a motive to fabricate their allegations against him. During summation, the prosecutor improperly referred to such evidence as “an elaborate attempt to distract [the jury] from the real issues in this case” … . The prosecutor also inaccurately stated that the defendant, who had testified on his own behalf, needed “a clarification about which child’s vagina he did or did not touch,” when the defendant, in fact, had asked whether the question concerned his paramour, the complainants’ mother. In addition, the prosecutor made an irrelevant and inflammatory argument intended to convince the jury that the … defendant’s denials of the sexual abuse allegations in the indictment were implicit admissions that he had abused the complainants outside the periods of time designated for the charged crimes … .Furthermore, the prosecutor impugned the defendant’s right to testify and improperly suggested that he lied on the stand, when she referred to him as “an opportunist” who “took the stand, and . . . said what he thought he had to to save himself” … . Finally, the prosecutor impermissibly vouched for the credibility of a witness based on his position as a law enforcement officer … . The cumulative effect of these improper comments deprived the defendant of a fair trial … .

Re: the ineffectiveness of defense counsel, the Second Department wrote:

During cross-examination by defense counsel, the People’s expert on child sexual abuse accommodation syndrome offered testimony that the truthfulness of a child’s disclosure of sexual abuse could be analyzed by looking at whether the content is specific and not age-appropriate knowledge. Despite the fact that this testimony was inadmissible …, and favorable to the People, defense counsel inexplicably asked the expert to elaborate, eliciting highly damaging testimony that a child’s allegations of oral sexual conduct, sexual contact between males, or reciprocal contact would be “rather unique and idiosyncratic,” and more believable than “just a global statement that I was touched.” Thus, defense counsel intentionally elicited inadmissible and unduly prejudicial testimony during cross-examination … . Defense counsel also was deficient in failing to object to the prosecutor’s improper remarks during summation … . The cumulative effect of defense counsel’s errors deprived the defendant of the effective assistance of counsel … . Accordingly, the judgment must be reversed and a new trial ordered for this reason as well. People v Mehmood, 2013 NY Slip Op 08461, 2nd Dept 12-18-13

 

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Conviction Under Accomplice Liability Theory Reversed After a Weight of the Evidence Analysis

The Second Department reversed defendant’s conviction for criminal sale of a controlled substance under an accomplice liability theory, finding the conviction against the weight of the evidence. The officer who purchased the drugs assumed, based on circumstantial evidence, the drugs were supplied to the seller by the defendant (who was in a vehicle with the seller and a woman) but did not actually see any transaction between the defendant and the seller:

Although the officer testified that, based upon his training and experience as an undercover officer who had made over 500 buys, he believed that the codefendant received drugs from the defendant inside the vehicle, he admitted that he did not observe an exchange of money or drugs between the codefendant and the defendant. People v Curry, 2013 NY Slip Op 08455, 2nd Dept 12-18-13

 

 

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Defaulting Defendant Forfeits the Right to Discovery Re: Inquest on Damages

The Second Department determined that a defaulting defendant could not compel plaintiff to submit to an independent medical examination:

Although ” a defaulting defendant is entitled to present testimony and evidence and cross-examine the plaintiff’s witnesses at the inquest on damages,’ a defendant forfeits the right to discovery by defaulting in answering the complaint” … . Contrary to the Supreme Court’s determination, the defendant was not entitled to any further discovery, since its right to discovery was forfeited by its default in answering the complaint .. . Accordingly, the Supreme Court erred in denying the plaintiff’s cross motion for a protective order and directing him to submit to an independent medical examination. Kolonlowski v Daily News LP, 2013 NY Slip Op 08230, 2nd Dept 12-11-13

 

Under the Facts, a Stairwell Partially Covered by a Piece of Wood Was Not an Unreasonably Dangerous Condition

The Second Department determined that a stairwell leading to the basement of defendant’s restaurant, which was partially covered by a piece of wood, did not constitute an unreasonably dangerous condition.  Plaintiff fell down the stairwell after leaving a nearby bar by the back door and climbing over a fence:

A landowner has a duty to maintain his or her premises in a reasonably safe condition to prevent foreseeable injuries … . The scope of such duty is determined in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk … . “Absent a hazardous condition or other circumstance giving rise to an obligation to provide exterior lighting for a particular area, landowners are generally not required to illuminate their property during all hours of darkness’”… .

[Defendant] submitted evidence demonstrating that it was not aware of any other prior similar incidents or injuries on its premises and that there was no access between the rear of its premises and the rear portions of the stores situated to the west of it, which included the subject bar. Additionally, [defendant’s] submissions demonstrated that the restaurant was closed at the time of the incident, that the back door of the restaurant was locked, and that none of [defendant’s] employees was at the premises. Thus, [defendant] established, prima facie, that under the circumstances of this case, the basement stairwell partially covered by a piece of wood did not constitute an unreasonably dangerous condition … . In opposition, the plaintiff failed to raise a triable issue of fact. Assefa v Bam, 2013 NY Slip Op 08220, 2nd Dept 12-11-13

 

Proof of Value of Property For Purposes of Entering a Deficiency Judgment Not Sufficient

The Second Department determined that the mortgage lender failed to submit adequate proof of the value of the property for purposes of entering a deficiency judgment:

RPAPL 1371(2) permits a mortgage lender to enter a deficiency judgment for the amount owed “less the market value as determined by the court or the sale price of the property whichever shall be the higher.” “The mortgagee has the initial burden to make a prima facie showing of the fair market value of the property as of the foreclosure sale date” … . An affidavit by a “licensed real estate appraiser setting forth his [or her] opinion as to the fair market value of the premises on the date of the foreclosure sale, and stating in conclusory fashion that his [or her] opinion was based upon his [or her] personal inspection of the subject premises, examination of the neighborhood, a review of sales and rentals of comparable properties, and general economic trends and expenses data,” without describing the subject premises or appending evidence of comparable sales and market date, is not sufficient … . In the instant case, the plaintiff relied upon such a conclusory affidavit, two exterior photographs of the front and side of the subject premises, and information purportedly indicating the average sale price of properties in the relevant zip code area, without explaining how those average prices related to the appraiser’s conclusion that the fair market value of the subject property on the date of the foreclosure sale was $550,000. The plaintiff’s submission was, thus, insufficient to meet its burden of establishing that it was entitled to a deficiency judgment. Eastern Sav Bank FSB v Brown, 2013 NY Slip Op 08228, 2nd Dept 12-11-13

 

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