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Certification Order Requiring Filing of Note of Issue in 70, Rather than 90, Days Could Not Be Basis of Dismissal

The Second Department determined that a certification order which required a note of issue be filed within 70 days, rather than 90 days, could not be the basis for dismissal of the action:

The certification order dated March 2, 2010, did not constitute a valid 90-day demand pursuant to CPLR 3216 because it directed the plaintiff to file a note of issue within 70 days, rather than 90 days, of the date of the order. Since the order failed to conform with a statutorily mandated condition precedent to dismissal of the action, the Supreme Court was not authorized to dismiss the action pursuant to CPLR 3216… . Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record, and could not have been avoided if brought to the attention of the Supreme Court… . Gu v Hatsis, 2013 NY Slip Op 03970, 2nd Dept, 6-5-13

 

Note of Issue Which States Discovery Not Complete Is a Nullity

The Second Department determined a note of issue which indicates discovery is not complete is a nullity:

Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial (see 22 NYCRR 202.21[a], [b]). While the filing of a note of issue within 90 days after service upon the plaintiff of a written demand to serve and file the note of issue precludes a court from dismissing the action …, here, the plaintiffs’ certificate of readiness stated, inter alia, that discovery proceedings now known to be necessary were not completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity, and that branch of the appellant’s motion which was to vacate the note of issue was properly granted… .  Furrukh v Forest Hills Hosp, 2013 NY Slip Op 03968, 2nd Dept, 6-5-13

 

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Failure to Allege Specific Facts to Rebut Process Server Affidavit Required Denial of Motion to Vacate Judgment w/o Hearing

The Second Department upheld Supreme Court’s denial of a motion to vacate a judgment on the ground defendant was not served.  No hearing was necessary because defendant did not swear to specific facts to rebut the facts in the process server’s affidavit:

“Although a defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits'”…. Since the appellant never denied the specific facts contained in the process server’s affidavit, no hearing was required… .  Bank of NY v Samuels, 2013 NY Slip Op 03958, 2nd Dept, 6-5-13

 

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Statute of Limitations for Fraud Applies to Forgery​

The Second Department noted that the statute of limitations provisions for fraud are applied to forgery:

Contrary to the plaintiff’s contention, the statute of limitations for a fraud cause of action applies to a cause of action alleging forgery … .The statute of limitations for a fraud-based cause of action requires that the action be commenced within six years after the allegedly fraudulent act or within two years after discovery, whichever is later….   Faison v Lewis, 2013 NY Slip OP 03813, 2nd Dept, 5-29-13

 

Fact Deed Not Recorded Did Not Rebut Presumption of Delivery and Acceptance of Deed​

In reversing Supreme Court, the Second Department determined the proof in this action to quiet title demonstrated that plaintiff’s decedent was the rightful owner of the subject property.  The Second Department noted the fact that the deed was not recorded did not overcome the presumption of delivery and acceptance of the deed:

Although the presumption of delivery and acceptance of a deed as of its date “must yield to opposing evidence…, here, no admissible evidence which would have overcome the presumption was presented in opposition to the evidence showing that the 1996 deed was executed in the presence of and delivered to the parties’ mutual attorney …. The fact that the deed was not recorded was not sufficient evidence to overcome the presumption of delivery of the deed to the attorney, the mutual agent of both parties, since recording is not required in order to transfer title to real property (see Real Property Law § 291). No evidence was presented that the delivery of the deed on the date of its execution was conditional.  Saline v Saline, 2012 NY Slip Op 03827, 2nd Dept, 5-29-13

 

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Erroneous Boundary Line Agreement Presents Triable Issue of Fact Re: Liability of Title Insurance Company

In reversing Supreme Court, the Second Department determined there was a triable issue of fact about whether the defendant title insurance company was liable for a defect in title (boundary line agreement) which resulted in plaintiffs owning half the property they thought they were purchasing:

…Chicago Title established, prima facie, that the defect in title fell within exclusion 3(c) of the policy, which excludes from coverage defects “resulting in no loss or damage to the insured claimant.” Chicago Title presented an affidavit from a certified real estate appraiser opining that the plaintiffs have not sustained any loss in property value as a result of the boundary line agreement. Indeed, Chicago Title’s appraiser opined that the boundary line agreement resulted in a benefit to the plaintiffs and added significant value to their property due to the government’s maintenance and nourishment of the beach. In opposition, however, the plaintiffs raised a triable issue of fact as to whether they suffered a loss or damages as a result of the defect in title. The plaintiffs submitted an affidavit of their certified real estate appraiser, who opined that the total loss to the plaintiffs of all title to the portion of their purchased premises lying to the south of the 188-foot line constituted a measurable diminution in the value of the plaintiffs’ purchase. In light of these conflicting expert opinions, there is a triable issue of fact as to whether the plaintiffs sustained a loss or damages as a result of the defect in title …. Nastasi v County of Suffolk, 2013 NY Slip Op 03824, 2nd Dept, 5-29-13

 

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Family Court Should Have Allowed Mother to Subpoena Medical Records to Rebut Allegations Against Her In Custody Proceeding​

The Second Department determined Family Court erred when it denied the mother’s subpoena for medical treatment records to rebut the allegations against her in a custody proceeding:

Under the particular facts of this case, the Family Court improvidently exercised its discretion when it did not sign a subpoena proffered by the mother so as to permit her the opportunity to present certain medical treatment records to rebut the allegations asserted against her. The subject medical treatment records were relevant to the issue of whether an award of physical custody to the father was in the best interests of the subject child, and should have been considered by the Family Court ….  Matter of Murphy v Lewis, 2013 NY Slip Op 03843, 2nd Dept, 5-29-13

 

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Emergency Doctrine Did Not Apply to Police Officer’s Striking Plaintiff with Patrol Car​

In reversing Supreme Court, the Second Department determined the emergency doctrine did not apply to a police officer’s striking the plaintiff with his patrol car and ordinary negligence principles applied:

In the instant case, Officer DeMarco acknowledged that he did not see the plaintiff until after he struck him with his car. His conduct – the failure to see that which was there to be seen – was not conduct specified in Vehicle and Traffic Law § 1104(b) as exempt from the rules of the road …. Accordingly, his conduct was governed by the principles of ordinary negligence …. In any event, since Officer DeMarco acknowledged at his deposition that, at the time he struck the plaintiff, he was “not aware of any emergency situation that needed to be addressed,” the common-law emergency doctrine is not applicable to this case. Accordingly, the fifth affirmative defense, which is based upon Vehicle and Traffic Law § 1104, and the sixth affirmative defense, which is based upon the common-law emergency doctrine, must be dismissed.

Under the principles of ordinary negligence, Officer DeMarco’s failure to see what was there to be seen established the plaintiff’s entitlement to judgment as a matter of law on the issue of liability… . Starkman v City of Long Beach, 2013 NY Slip Op 03829, 2nd Dept, 5-29-13

TRAFFIC ACCIDENTS

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Injury Not Connected to Accident; Motion to Set Aside Should Have Been Granted

In reversing Supreme Court and finding the motion to set aside the verdict should have been granted, the court determined there was no valid line of reasoning that led to the conclusion plaintiff’s serious injury was related to the car accident at issue:

Here, viewing the evidence in the light most favorable to the plaintiff, no valid line of reasoning and permissible inferences could possibly lead rational persons to conclude that the plaintiff’s alleged serious injury was causally related to the subject automobile accident. Given the evidence of the plaintiff’s previous injuries and degenerative condition at the time of the subject accident in 2005, the opinion of the plaintiff’s expert, who first started treating the plaintiff nearly three years after the subject accident, that the plaintiff’s injuries, as observed in 2008, were causally related to the subject accident in 2005, was speculative. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 4404 to set aside the jury verdict on the issue of damages and for judgment as a matter of law on the issue of serious injury. McDonald v Kohanfars, 2013 NY Slip Op 03821, 2nd Dept, 5-29-13

TRAFFIC ACCIDENTS

Failure to Eliminate Comparative Negligence Precluded Summary Judgment to Plaintiff In Car-Accident Action

In reversing the grant of summary judgment to the defendant in a car accident case, the Second Department noted there can be more than one proximate cause of an accident and defendant failed to demonstrate freedom from comparative fault:

“There can be more than one proximate cause of an accident”…. A driver who has the right-of-way may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in an intersection…. Indeed, a movant seeking summary judgment is required to make a prima facie showing that he or she is free from comparative…. Here, the transcripts of the deposition testimony of the plaintiff and the defendant, which were submitted in support of the defendant’s motion, raised a triable issue of fact as to what actions the defendant took in order to avoid the collision. Therefore, the defendant failed to establish her prima facie entitlement to judgment as a matter of law … .  Jones v Vialva-Duke, 2013 NY Slip Op 03816, 2nd Dept, 5-29-13

TRAFFIC ACCIDENTS

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