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New York Had Jurisdiction to Modify Pennsylvania Support Order

In finding that Family Court had jurisdiction to modify a Pennsylvania support order, the Second Department wrote:

The Uniform Interstate Family Support Act (hereinafter UIFSA), codified in article 5-B of the Family Court Act, provides, in pertinent part, that a party seeking to modify and/or enforce a child support order issued in another state “shall register that order in this state” (Family Ct Act § 580-609). The parties agree that the support order governing the father’s child support obligations, which was issued by the Court of Common Pleas of Montgomery County, Pennsylvania … (hereinafter the Pennsylvania support order) was registered in the Family Court, Suffolk County, pursuant to UIFSA …. The Family Court had jurisdiction to modify the Pennsylvania support order, upon registration thereof, since none of the parties resides in Pennsylvania, the petitioner mother does not reside in New York, and the respondent father, at all relevant times, was subject to personal jurisdiction in Suffolk County (see Family Ct Act § 580-611[a][1]). Matter of Gowda v Reddy, 2013 NY Slip Op 02577, 2011-06440, 2nd Dept, 4-17-13

 

Hearing Required for Motion for Resentencing

The Second Department explained the hearing requirement of Criminal Procedure Law 440.46 (re: a motion for resentencing) as follows:

CPL 440.46(3), provides, in pertinent part, that “[t]he provisions of section twenty three of chapter seven hundred thirty eight of the laws of two thousand four shall govern the proceedings on and determination of a motion brought pursuant to this section.” Section 23 of chapter 738 of the Laws of 2004 states, in pertinent part: “The court shall offer an opportunity for a hearing and bring the applicant before it. The court may also conduct a hearing, if necessary, to determine . . . any controverted issue of fact relevant to the issue of sentencing.” The defendant’s presence is not required where the court determines as a matter of law that a defendant is not entitled to relief pursuant to CPL 440.46 …. However, here, the People conceded that the defendant met the statutory requirements for relief pursuant to CPL 440.46, and the question before the court was whether substantial justice dictated that the motion should be denied. Thus, the defendant is entitled to appear before the court and to be given an opportunity to be heard .. . Since the defendant was not brought before the court, and there is no indication that he knowingly, intentionally, and voluntarily relinquished that right …, the order appealed from must be reversed, and the matter remitted to the County Court, Suffolk County, for a new determination of the defendant’s motion, to be made after affording him an opportunity to appear before the court, and, if necessary, conducting a hearing … . People v Allen, 2013 NY slip Op 02586, 2011-11680, Ind No 1087/98, 2nd Dept 4-17-13

 

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Fall After Coverage Ceased Not Covered, Even though Dangerous Condition Alleged to Have Existed Before Termination of Coverage

After the premises was sold it was removed from coverage under a Travelers insurance policy.  Plaintiff slipped and fell on the property ten days after coverage was removed.  Supreme Court determined Travelers was obligated to defend because it was alleged the injury was related to a dangerous condition that existed before the property was sold (when it was insured by Travelers).  In reversing, the Second Department wrote:

Here, the subject insurance policy, read as a whole, clearly and unambiguously provides that the duty to defend and indemnify will attach only to bodily injury caused by an “occurrence” that is covered by the policy and that occurs during the policy period … .Accordingly, Travelers made a prima facie showing of its entitlement to judgment as a matter of law by establishing that the bodily injury for which the plaintiff seeks a defense and indemnification occurred after the premises had been removed from coverage … .Contrary to the plaintiff’s contention, the … allegation that the accident was caused by a dangerous condition that existed on the premises before it was removed from coverage does not obligate Travelers to defend and indemnify it. Since the policy predicates coverage upon the sustaining of bodily injury during the policy period, it is immaterial that the negligent acts which allegedly caused the occurrence took place while the policy covering the premises was still in effect … .  Jericho Atrium Assoc v Travelers Prop Cas Co of Am, 2013 NY Slip Op 03461, 2nd Dept, 5-15-13

SLIP AND FALL

Only (No-Fault) “N-F 5” Form Triggers 30-Day Period to Deny or Pay a Claim

The Second Department, in a full-fledged opinion by Justice Austin, determined that the UB-04 (no-fault form) was not the functional equivalent of the N-F 5 (no-fault form).  Therefore, receipt by the no-fault carrier of the UB-04 form from the heath care provider did not trigger the 30-day period in which a no-fault insurer is required to pay or deny a claim.  Sound Shore Med Ctr v Ne York Cent Mut Fire Ins Co, 2013 NY Slip Op 02390, 2011-04975, Index No 7148/09, 2nd Dept, 4-10-13

 

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General Contractor’s Liability for Ice and Snow at Work Site/Criteria for Indemnification of General Contractor

In a common law negligence and Labor Law 200 action, the Second Department explained when a general contractor can be held liable for a dangerous condition.  Here the plaintiff was injured when he slipped on ice and snow at the work site.  The general contractor was seeking indemnification under a contract:

“[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor” …. ” Where, as . . . here, a plaintiff’s injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition'” …. [The general contractor] failed to establish, prima facie, that it lacked control over the work site or notice of the allegedly dangerous condition, thus precluding a finding, as a matter of law, that it was not negligent ….  Mikelatos v Theofilaktidis, 2013 NY Slip Op 02382, 2012-00163, Index No 19488/05, 2nd Dept 4-10-13

 

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Failure to Allege Negligent Provision of Medical Care in Notice of Claim Required Dismissal of Negligence Cause of Action; Failure to Allege Facts Demonstrating a Custom or Practice of Providing Inadequate Medical Care Required Dismissal of 1983 Causes of Action 

After a trial awarded the plaintiff over $17,000,000, the Second Department reversed determining (1) the negligent provision of medical care cause of action should have been dismissed because it was not included in the notice of claim, and (2) the 1983 causes of action should have been dismissed because they were not adequately pled in the complaint:

Here, the notice of claim failed to set forth any allegations of negligence on the part of the defendants regarding the deprivation of medical treatment to the plaintiff when he was in police custody. Therefore, the Supreme Court should have directed dismissal of so much of the complaint as alleged negligence, due to the plaintiff’s failure to file a proper notice of claim (see General Municipal Law § 50-e[2] … .  * * *

To hold a municipality liable under § 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy …. Similarly, where claims are asserted against individual municipal employees in their official capacities, there must be proof of a municipal custom or policy in order to permit recovery, since such claims are tantamount to claims against the municipality itself …. Here, the complaint failed to allege any facts from which it could be reasonably inferred that the defendants had a policy or custom of depriving medical treatment to persons in police custody ….  Vargas v City of New York, 2013 NY Slip Op 02391, 2011-02266, 2011-08980, 2011-09609, Index No 33215/07, 2nd Dept, 4-10-13

 

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Notice of Claim Deemed Insufficient to Allege Negligent Design or Construction of Road

The Second Department dismissed a complaint against a town because the notice of claim alleged “damages for negligence arising out of the use, operation, ownership, maintenance, custody, and control of Hynes Road” but did not allege defective design or negligent construction of a road, the specific theories alleged in the complaint:

A notice of claim which, inter alia, sufficiently identifies the claimant, states the nature of the claim and describes the time when, the place where, and the manner in which the claim arose, is a condition precedent to asserting a tort claim against a municipality … . While a claimant need not state “a precise cause of action in haec verba in a notice of claim” …, “a party may not add a new theory of liability which was not included in the notice of claim”… .

Here, the Town established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting proof that the notice of claim made no allegations that the Town defectively designed or negligently constructed the roadway where the accident occurred … .  Crew v Town of Beekman, 2013 NY Slip Op 02370, 2011-10932, Index No 7540/07, 2nd Dept, 4-10-13

HIGHWAYS AND ROADS

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Statute of Limitations Where Continuing Duty Allegedly Breached

The Second Department explained the application of the six-year “contract” statute of limitations where the duty alleged to have been breached is a continuing one:

“[W]here a duty imposed prior to a limitations period is a continuing one, the statute of limitations is not a defense to actions based on breaches of that duty occurring within the limitations period” …. Here, the alleged breach is of the defendant’s obligation to pay annual assessments to the plaintiff. Thus, a new breach occurred for statute of limitations purposes each year the defendant failed to make an allegedly required payment to the plaintiff …. Meadowbrook Farms Homeowners Assn, Inc v JZG Resources Inc, 2013 NY Slip Op 02381, 2011-089/10, Index No 839/10, 2nd Dept 4-10-13

 

 

Statute of Frauds Precluded Recovery for Both Contract and Quantum Meruit Causes of Action

The Second Department ruled that an oral contract, as well as a related quantum meruit claim, were not enforceable under the statute of frauds (General Obligations Law):

A party’s admission of the existence and essential terms of an oral agreement is sufficient to take the agreement out of the statute of frauds… . However, if the parties dispute “the very terms and conditions of the alleged oral” agreement, the statute of frauds applies … . In the instant case, the defendants deny that they agreed to pay the plaintiff compensation based upon a percentage of any particular number. Thus, the Supreme Court correctly determined that there was no admission by the defendants as to the essential terms of the alleged contract.

With respect to the second cause of action, which sought compensation in quantum meruit, General Obligations Law § 5-701(a)(10) specifically recites that the requirement of a writing executed by the party to be charged applies to bar enforcement not only of an oral agreement to pay compensation for services rendered in negotiating the sale or leasing of real estate or an interest in a business, but also of “a contract implied in fact or in law” covering the same subject matter.  Camhi v Tedesco Realty, LLC, 2013 NY Slip Op 02368, 2011-08356, 2012-02256, Index No 14472/10, 2nd Dept, 4-10-13

 

 

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Hearing Required to Determine If Complaint Properly Served

In remitting the case for a hearing to determine whether defendant was properly served with the complaint, the Second Department wrote:

Here, the affidavit of service of the plaintiff’s process server describing service of process on the defendant NES Medical Services of New York, P.C. (hereinafter NES), constituted prima facie evidence of proper service on NES … . In support of that branch of their motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against NES on the ground of lack of personal jurisdiction, the appellants submitted an affidavit stating that the person served was neither employed by, nor authorized to accept service for, NES. Where, as here, “there is a sworn denial of service by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing” …. Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a hearing on, and a new determination of, that branch of the appellants’ motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against NES on the ground of lack of personal jurisdiction. Rosario v NES Med Srvs of NY, PC, 2013 NY Slip Op 02388, 2011-10662, Index No 4465/11, 2nd Dept 4-10-13

 

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