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Courts Have Discretion to Grant Affirmative Relief in Absence of a Formal Cross-Motion

In a full-fledged opinion by Justice Balkin, the Second Department determined trial courts have the discretion to determine applications made in the absence of the formal requirements of a cross-motion.  In this case the defendant answered a motion for a default judgment demonstrating a reasonable excuse and a meritorious defense. Included in the answering papers was an application for leave to serve a late answer to compel plaintiff to accept the answer.  Supreme Court granted all the requested relief.  The plaintiff appealed on the ground that the affirmative relief should have been requested through a formal cross-motion.  The Second Department wrote:

Given the language of CPLR 2215, and the contexts in which it is applicable, the most reasonable interpretation of the statute is that a party seeking relief in connection with another party’s motion is, as a general rule, required to do so by way of a cross motion, at least to have a right that the request be determined on the merits. Otherwise, a party who seeks relief by way of a notice of cross motion would be in a position less favorable than that of a party who merely makes the request without a notice of cross motion: the party who makes a formal cross motion would be required to comply with the notice and service requirements and deadlines imposed by the statute, but a party seeking relief merely by requesting it would enjoy greater flexibility.

Nonetheless, courts retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215. Litigants, however, must be cognizant of an important distinction between the two situations: a party in compliance with CPLR 2215 is entitled to have its cross motion considered; a party not in compliance with the statute must hope that the court opts, in the exercise of its discretion, to entertain the request. Thus, we are in agreement with our colleagues in the Appellate Division, 3rd Department, who, in Fox Wander W. Neighborhood Assn. v Luther Forest Community Assn. (178 AD2d at 872), held that, even in the absence of an explicit notice of cross motion, the Supreme Court is not “prohibited” from entertaining the nonmoving party’s request for relief.  Fried v Jacob Holding Inc, 2013 NY Slip Op 05555, 2nd Dept 8-7-13

 

Complaint Can Not Be Deemed Dismissed in Absence of Final Judgment

In reversing Supreme Court, the Second Department determined a complaint had not been dismissed because no final judgment dismissing the complaint had been entered after an order vacating a default:

…[T]he Supreme Court issued an order granting the defendant’s motion to vacate his default in appearing and answering the complaint on the ground of lack of personal jurisdiction. However, no judgment dismissing the complaint on the ground of lack of personal jurisdiction was entered. The plaintiff subsequently moved to extend her time to serve the defendant with process in the action. …[T]he court denied the plaintiff’s motion on the ground that its prior order had dismissed the action and, thus, there was no pending action in which to grant an extension of time for service of process … . On her appeal from the August 13, 2012, order, the plaintiff contends that, inasmuch as there was no judgment dismissing the action, the action was pending when she moved to extend the time to serve the defendant with process. We agree. An action is deemed pending until there is a final judgment (see CPLR 5011…)… .  Cooke-Garrett v Hoque, 2013 NY Slip Op 05554, 2nd Dept 8-7-13

 

Supreme Court Does Not Have the Power to Dismiss a Complaint for Delay in Prosecution Absent 90-Notice (CPLR 3216)

The Second Department reversed Supreme Court’s dismissal of a complaint based on delay in prosecuting the action because the 90-day demand (CPLR 3216) had not been served on the plaintiff.  The First Department wrote:

CPLR 3216 permits a court to dismiss an action for failure to prosecute only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action. Here, the Supreme Court did not possess the power to dismiss this pre-note of issue action on the ground of a general lack of prosecution since the plaintiff had not received a 90-day demand pursuant to CPLR 3216(b) requiring the plaintiff to serve and file a note of issue … .  Armouth-Levy v New York City, 2013 NY Slip Op 05551, 2nd Dept, 8-7-13

 

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SORA Court Has Discretion to Deny Downward Departure Even When Mitigating Factor Demonstrated by Preponderance of Evidence

In affirming the SORA court’s denial of an application for a downward departure, the Second Department noted that even where the defendant makes a showing by a preponderance of the evidence in support of a mitigating factor, the court need grant the application:”

A sex offender’s successful showing by a preponderance of the evidence of facts in support of an appropriate mitigating factor does not automatically result in the relief requested, but merely opens the door to the SORA court’s exercise of its sound discretion upon further examination of all relevant circumstances'” … .  People v Martinez-Guzman, 2013 NY Slip Op 05561, 2nd Dept 8-7-13

 

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Automobile Policy Does Not Cover Injury to Passerby Bitten by a Dog Which Was Inside a Vehicle

In finding that the underinsured endorsement for automobile insurance did not cover injuries incurred when plaintiff was bitten by a dog through the window of a car as she walked past, the Second Department explained:

Use of an automobile encompasses more than simply driving it, and includes all necessary incidental activities such as entering and leaving its confines … . To satisfy the requirement that it arose out of the “ownership, maintenance or use of” a motor vehicle, the accident must have arisen out of the inherent nature of the automobile and, as such, inter alia, the automobile must not merely contribute to the condition which produces the injury, but must, itself, produce the injury … . “[T]he vehicle itself need not be the proximate cause of the injury,” but “negligence in the use of the vehicle must be shown, and that negligence must be a cause of the injury” … . “To be a cause of the injury, the use of the motor vehicle must be closely related to the injury” … .

Here, as a matter of law, Reyes’s injuries did not result from the inherent nature of Kazimer’s vehicle, nor did the vehicle itself produce the injuries. The injuries were caused by Kazimer’s dog, and the vehicle merely contributed to the condition which produced the injury, namely, the location or situs for the injury. Allstate established that a causal relationship between the car and the incident was lacking, and Reyes failed to rebut that showing … .  Matter of Allstate Ins Co v Reyes, 2013 NY Slip Op 05566, 2nd Dept 8-7-13

 

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Criteria for Prohibition Explained

In determining that prohibition did not lie to challenge the appointment of a special district attorney to investigate election law issues, the Second Department explained:

” [A]n article 78 proceeding in the nature of prohibition will not lie to correct procedural or substantive errors of law'” (Matter of Soares v Herrick, 20 NY3d 139, 145, quoting Matter of Schumer v Holtzman, 60 NY2d 46, 51). Rather, “the extraordinary remedy of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial capacity without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding of which it has jurisdiction” … . Even where prohibition is an available remedy, it ” is not mandatory, but may issue in the sound discretion of the court'” … . ” In exercising this discretion, various factors are to be considered, such as the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal or at law or in equity and the remedial effectiveness of prohibition if such an adequate remedy does not exist'” … .

Prohibition is an available remedy to void the improper appointment of a Special District Attorney pursuant to County Law § 701 when the Special District Attorney is performing the quasi-judicial act of representing the State in its efforts to bring individuals accused of crimes to justice … . However, it is not an available remedy when the Special District Attorney is performing the purely investigative function of investigating “suspicious circumstances” with a view toward determining whether a crime has been committed, since, in such circumstances, his or her acts are to be regarded as executive in nature … . Here, the WFP failed to establish that Special District Attorney Adler was performing a quasi-judicial act. Accordingly, prohibition does not lie.  Matter of Working Families Party v Fisher, 2013 NY slip Op 05578, 2nd Dept 8-7-13

 

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No Article 78 Review Where Petitioner Defaulted

The Second Department noted that there can be no Article 78 review where the petitioner defaulted in the administrative proceeding.  Only the denial of the request to vacate the default can be reviewed:

“[A] petitioner is not aggrieved by an administrative determination made on his [or her] default and may not seek to review such a determination”… . Although the petitioner is not entitled to CPLR article 78 review of the Review Board’s determination to sustain the charges and revoke its registration, which was made upon its default, the Review Board’s determination to deny its application to vacate the default may be reviewed… .  Matter of Tony’s Towing Serv Inc v Swarts, 2013 NY Slip Op 05577, 2nd Dept 8-7-13

 

Excessive Corporal Punishment Constituted Neglect and Derivative Neglect

In affirming Family Court’s determination that excessive corporal punishment constituted neglect and derivative neglect, the Second Department wrote:

Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare, the use of excessive corporal punishment constitutes neglect (…Penal Law § 35.10; Family Ct Act § 1012[f][i][B]). The Family Court’s finding of neglect as to the child Briana M., based upon the mother’s use of excessive corporal punishment, is supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]). The evidence demonstrated that the mother struck then-eight-year-old Briana with a belt numerous times, causing marks on her back and arms … .

The evidence, which established that the mother inflicted excessive corporal punishment on Briana, was sufficient to support the Family Court’s determination that the children Matthew M. and Alexis M. were derivatively neglected… . Matter of Matthew M (Fatima M), 2013 NY slip Op 05573, 2nd Dept 8-7-13

 

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Family Offense of Disorderly Conduct Established

The Second Department determined the family offense of disorderly conduct had been established by a fair preponderance of the evidence:

…[T]he petitioner established, by a fair preponderance of the evidence …, that the appellant, who …made verbal threats to the petitioner in the hallway of the Family Court building and physically blocked the petitioner’s car from exiting the parking lot of the Family Court, engaged in threatening behavior that recklessly created a risk of causing public inconvenience, annoyance, or alarm (see Penal Law § 240.20…… . Matter of Banks v Opoku, 2013 NY slip Op 05568, 2nd Dept 8-7-13

 

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Criteria for Accountant’s Liability to Third Parties in Absence of Contractual Relationship Explained

In finding that the complaint did not state a cause of action against an accountant for negligent misrepresentations made to third parties with no contractual relationship, the Second Department explained:

In certain circumstances, accountants may be held liable for negligent misrepresentations made to third parties with whom they have no contractual relationship, but who have relied to their detriment on inaccurate financial statements prepared by the accountant… . In order to establish such liability, the relationship between the accountant and the party must be found to approach privity, through a showing that the following prerequisites are satisfied: “(1) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants’ understanding of that party or parties’ reliance”… . Signature Bank v Holtz Rubenstein Reminick LLP, 2013 NY Slip Op 05564, 2nd Dept 8-7-13

 

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