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THE 90-DAY DEMAND REQUIRED BY CPLR 3216 WAS NOT PROVIDED BY THE COURT’S ORDER; THE ACTION SHOULD HAVE BEEN RESTORED TO THE ACTIVE CALENDAR WITHOUT A SHOWING OF MERIT; THE ISSUE, FIRST RAISED ON APPEAL, WAS PROPERLY CONSIDERED BY THE APPELLATE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action should have been restored to the active calendar because the 90-day demand required by CPLR 3216 was never provided. The issue was properly considered for the first time on appeal because, had the issue been raised below, it could not have been ignored:

Here, the order dated June 26, 2018 … directed the filing of a note of issue by June 29, 2018, but failed to provide the plaintiff with 90 days within which to comply with that directive. Thus, the order dated June 26, 2018, did not constitute a valid 90-day demand pursuant to CPLR 3216 … . Moreover, the order dated June 26, 2018, did not contain the requisite language advising that failure to file a note of issue would be the basis for a motion to dismiss … . …

Although the plaintiff’s contentions i… are raised for the first time on appeal, they may be reached, as they involve issues of law appearing on the face of the record that could not have been avoided if they had been raised at the proper juncture … . OneWest Bank, FSB v Segal, 2023 NY Slip Op 06146, Second Dept 11-29-23

Practice Point: The failure to provide the 90-demand required by CPLR 3216 is reversible error which can be raised for the first time on appeal.

 

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PETITIONER-REPORTER PREVAILED IN THE FOIL ACTION DESPITE THE AVAILABILITY OF SOME OF THE REQUESTED INFORMATION ON A PUBLIC WEBSITE; THEREFORE PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined petitioner-reporter’s request for an unredacted telephone directory for employees of the county police department should have been granted because the county did not demonstrate the information was exempt from disclosure. In addition, petitioner should have been awarded attorney’s fees and litigation costs because petitioner had prevailed in the FOIL action. The fact that some of the requested information (names and salaries of police officers, for example) was available on a public website, to which petitioner was referred, did not warrant a finding petitioner had not prevailed:

… Supreme Court improperly, in effect, denied that branch of the petition which was to compel the production of a NCPD [Nassau County Police Department] telephone directory, without redactions, insofar as asserted against the County and the NCPD, as those respondents failed to demonstrate the applicability of an exemption to disclosure warranting redaction of the telephone directory …, which did not contain any personal telephone or cell phone numbers (see Public Officers Law § 89[2-b][b]). * * *

… [T]he petitioner substantially prevailed in this proceeding by obtaining a significant portion of the records and information responsive to the FOIL request after the commencement of the proceeding … . Contrary to the respondents’ contention, the purported public availability of the requested records and information does not preclude a determination that the petitioner substantially prevailed … . Moreover, the record reflects that the respondents did not have a reasonable basis for the initial denial of the petitioner’s FOIL request in its entirety … . Matter of Lane v County of Nassau, 2023 NY Slip Op 06139, Second Dept 11-29-23

Practice Point: Unless the municipality can show the information sought by a FOIL request is exempt from disclosure the information must be disclosed.

Practice Point: The fact that information sought in a FOIL request is available on a public website, to which the petitioner is referred, does not preclude a finding that petitioner prevailed in the FOIL proceeding.

 

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PLAINTIFF STOOD UP FROM A DESK AND TRIPPED OVER THE BOTTOM DRAWER WHICH HAD PARTIALLY OPENED; THERE WERE QUESTIONS OF FACT WHETHER THE CONDITION WAS OPEN AND OBVIOUS AND WHETHER DEFENDANT HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence action alleging plaintiff stood up from a desk and tripped on the bottom desk drawer should not have been dismissed. The defendant did not demonstrate the condition was open and obvious and did not demonstrate it did not have actual or constructive notice of the condition:

According to the plaintiff, she was sitting behind a desk and when she got up, she tripped on the bottom desk drawer which, unbeknownst to her, had become ajar. …

A condition is open and obvious if it is “readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . …

A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected … . To meet its initial burden on the issue of lack of constructive notice, a defendant is required to offer evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s accident … .  Cosme v New York City Dept. of Educ., 2023 NY Slip Op 06026, Second Dept 11-22-23

Practice Point: Whether a condition is open and obvious depends on the totality of the circumstances. Here plaintiff alleged she didn’t know the bottom drawer of her desk had opened and she tripped over it when she stood up from the desk. There was a question of fact whether the condition was open and obvious. The fact that the defendant did not demonstrate when the desk had last been inspected raised a question of fact about whether the defendant had constructive notice of the condition.

 

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PLAINTIFF DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff in this foreclosure action did not demonstrate she had standing to bring it:

“A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced” … . The plaintiff can establish standing by attaching a properly endorsed note to the complaint when commencing the action . However, where an endorsement is on an allonge and not on the note itself, the plaintiff must establish that the allonge was “so firmly affixed to the note so as to become a part thereof” as required by UCC 3-202(2) at the time the action was commenced … . “Where there is no allonge or note that is either endorsed in blank or specially endorsed to the plaintiff, mere physical possession of a note at the commencement of a foreclosure action is insufficient to confer standing or to make a plaintiff the lawful holder of a negotiable instrument for the purposes of enforcing the note” … .

Here, the plaintiff failed to establish her status as holder of the note at the time the action was commenced. Although the note was executed in favor of the decedent, the copy of the note attached to the complaint contains two purported endorsements in favor of nonparties, and the plaintiff failed to show that an allonge containing an additional endorsement back to the decedent was firmly affixed to the note … . Thompson v Seay, 2023 NY Slip Op 06072, Second Dept 11-22-23

Practice Point: Where the note and the endorsements do not comply with the requirements of UCC 3-202, plaintiff has not demonstrated standing to bring the foreclosure action.

 

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A DRIVER WHO HAS THE RIGHT-OF-WAY IS ENTITLED TO ANTICIPATE OTHER DRIVERS WILL OBEY THE TRAFFIC LAWS REQUIRING THEM TO YIELD; HERE DEFENDANT ENTERED AN INTERSECTION WITH A GREEN LIGHT AND PLAINTIFF MADE A LEFT TURN IN FRONT OF HIM; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant driver demonstrated he had the right-of-way when he entered the intersection with and green light and plaint made a left turn in front of him. Defendant’s motion for summary judgment should have been granted:

“A driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield to the driver with the right-of-way” … . “Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … .

Here, the defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that he had the right-of-way, the plaintiff failed to yield the right-of-way, and the defendant did not have sufficient time to react in order to avoid the collision … . The defendant, as the driver with the right-of-way, was entitled to anticipate that the plaintiff would obey the traffic laws which required her to yield … . Smith v Trail, 2023 NY Slip Op 06070, Second Dept 11-22-23

Practice Point: A driver who fails to take evasive action can be contributorily negligent. But here defendant entered the intersection with a green light and plaintiff made a left turn in front of him. Plaintiff did not raise a question of fact whether defendant had time to take evasive action.

 

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THE UNION’S CHALLENGE TO THE DEDUCTION OF THE COST OF HEALTH INSURANCE FROM A VILLAGE POLICE OFFICER’S PAYCHECK WAS A BREACH-OF-CONTRACT ACTION FOR WHICH THE STATUTE OF LIMITATIONS BEGAN RUNNING ANEW FOR EACH PAYCHECK (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Brathwaite Nelson, determined the action by the union on behalf of a village police officer challenging the deduction of health insurance costs from each paycheck was a breach-of-contract action and the statute of limitations began running anew for each paycheck:

Teamsters Local 445 (hereinafter the Union) filed a demand for arbitration of a grievance against the Village of Maybrook alleging that the Village breached the parties’ collective bargaining agreement (hereinafter CBA) by deducting a certain amount from each paycheck of Sergeant Michael Maresca for health insurance costs. The Supreme Court granted the Village’s petition to permanently stay arbitration on the ground that the claim sought to be arbitrated was barred by the four-month statute of limitations applicable to CPLR article 78 proceedings. The principal issues raised on this appeal are (1) whether the underlying claim is in the nature of CPLR article 78 seeking review of an administrative determination or in the nature of breach of contract, and (2) if the latter, whether the claim is predicated on a single breach or a series of breaches that occurred with each paycheck. … [W]e determine that the nature of the claim is breach of contract and that the claim is predicated on a series of independent alleged breaches. Since the statute of limitations began anew as to each breach, we find that the claim to be arbitrated was not wholly time-barred. We therefore modify the order appealed from by … granting the Union’s cross-motion to the extent of compelling arbitration of so much of the grievance as was not time-barred. Matter of Village of Maybrook v Teamsters Local 445, 2023 NY Slip Op 06051, Second Dept 11-22-23

Practice Point: Here the union’s challenge to the deduction of the cost of health insurance from a village police officer’s paycheck was governed by the six-year statute of limitations for a breach of contract action, not the four-month statute of limitations for an Article 78 proceeding. The statute began running anew for each paycheck.

 

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UNSUBSTANTIATED COMPLAINTS AGAINST POLICE OFFICERS ARE NOT CATEGORICALLY EXEMPT FROM FOIL REQUESTS (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Brathwaite Nelson, determined “unsubstantiated complaints” against police officers are not categorically exempt from a FOIL request:

The petitioner publishes a daily newspaper in Long Island. Following the Legislature’s repeal of Civil Rights Law § 50-a, the petitioner made requests to the Nassau County Police Department (hereinafter the NCPD) pursuant to the Freedom of Information Law … to obtain certain law enforcement disciplinary records. … [T]he NCPD … withheld all documents relating to complaints that were not determined to be substantiated on the ground that such documents were categorically exempt from disclosure as an “unwarranted invasion of personal privacy” pursuant to Public Officers Law § 87(2)(b). We hold that records concerning unsubstantiated complaints or allegations of misconduct are not categorically exempt from disclosure as an unwarranted invasion of personal privacy, and the NCPD is required to disclose the requested records, subject to redactions with particularized and specific justification under Public Officers Law § 87(2) … . …

Former Civil Rights Law § 50-a provided a blanket shield from public disclosure for police officer personnel records, including records relating to disciplinary proceedings arising out of allegations of misconduct … . Effective June 12, 2020, the Legislature repealed Civil Rights Law § 50-a and amended the Public Officers Law to make specific provisions relating to the disclosure of law enforcement disciplinary records and the types of redactions to be made thereto prior to disclosure. Matter of Newsday, LLC v Nassau County Police Dept., 2023 NY Slip Op 06050, Second Dept 11-22-23

Practice Point: Pursuant to the repeal in 2020 of Civil Rights Law 50-a, unsubstantiated complaints against police officers are not categorically exempt from FOIL requests.

 

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THE PETITIONER MAKING THE FOIL REQUEST IS A LAW FIRM; THE FACT THAT THE FIRM’S CLIENT ALSO HAD STANDING TO MAKE THE FOIL REQUEST DID NOT DEPRIVE THE LAW FIRM OF STANDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 proceeding contesting the denial of petitioner’s FOIL request should not have been dismissed for lack of standing. Petitioner is a law firm seeking information on behalf of a client. The fact that the client could also make the FOIL request did not deprive the law firm of standing:

Supreme Court erred in concluding that the petitioner lacked standing to pursue this proceeding. The petitioner submitted the FOIL request to the Agency and its request was denied, both initially and on administrative appeal. Since the petitioner’s FOIL request was denied, it had standing to seek judicial review of the Agency’s determination … , regardless of whether it submitted the FOIL request, in whole or in part, on behalf of a client … . The petitioner’s standing was not extinguished by the fact that its client also would have had standing to commence a proceeding challenging the denial of the FOIL request … . Matter of Law Offs. of Cory H. Morris v Suffolk County, 2023 NY Slip Op 06046, Second Dept 11-22-23

Practice Point: Here a law firm made FOIL requests that were denied. The law firm then brought an Article 78 proceeding which was erroneously dismissed for lack of standing. The fact that the firm’s client had standing to bring the FOIL proceedings did not deprive the law firm of standing.

 

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FATHER IGNORED COMPULSORY DISCOVERY OF HIS FINANCIAL ABILITY TO PAY SUPPORT; FATHER IS PRECLUDED FROM OFFERING SUCH EVIDENCE IN THE SUPPORT PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Family Court, determined father should be precluded from presenting any evidence of his financial ability to pay support because he submitted no financial evidence in the discovery phase:

Family Court Act § 424-a “mandates the compulsory disclosure by both parties to a support proceeding of ‘their respective financial states,’ through the provision of tax returns, pay stubs, and sworn statements of net worth” … . “Where a respondent in a child support proceeding fails, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act § 424-a, ‘the court on its own motion or on application shall grant the relief demanded in the petition or shall order that, for purposes of the support proceeding, the respondent shall be precluded from offering evidence as to [the] respondent’s financial ability to pay support'” … .

Here, the father failed to provide a sworn statement of net worth, a tax return, or a pay stub, and he did not offer an explanation for his failure to do so. Since the father failed, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act [*2]§ 424-a, the Family Court was required to either grant the relief demanded in the petition or preclude the father from offering evidence as to his financial ability to pay support … . Under the circumstances of this case, the court should have precluded the father from offering evidence regarding his financial ability to pay support, and should have determined the amount of child support based on the needs of the child, as requested by the mother … . Matter of Grant v Seraphin, 2023 NY Slip Op 06044, Second Dept 11-22-23

Practice Point: In support proceedings, discovery of a party’s financial ability to pay support is compulsory. A party who fails to provide such discovery may be precluded from presenting any financial evidence.

 

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THERE WAS A SURPLUS AFTER THE FORECLOSURE SALE OF DEFENDANT’S PROPERTY; DEFENDANT HAD ENTERED A HOME EQUITY LINE OF CREDIT WITH CITIBANK; CITIBANK, NOT DEFENDANT, WAS ENTITLED TO THE SURPLUS FUNDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant, owner of the equity of redemption after a foreclosure sale of defendant’s property, was not entitled to the surplus funds after the sale. Defendant had entered a home equity line of credit with Citibank. Citibank was entitled to the surplus funds:

“‘[S]urplus money proceedings . . . are not collateral to the foreclosure, but are in the action itself[,] [a]nd the rights of lienors subsequent to the mortgage under foreclosure are before the court and must be protected as much as those of the owner of the property'” … . “‘Surplus money from a foreclosure sale is not a general asset of the owner of the equity of redemption, but stands in the place of the property for the purpose of distribution among those having vested interests in or liens on the property. The rights of the parties are fixed at the time of the foreclosure sale, and the rights of a second lienholder are transferred to any surplus'” … . “Under New York law, the lien of a junior mortgagee who is made a party to a foreclosure action brought by a senior mortgagee, although cut-off and extinguished as to the land, continues as a lien upon the surplus funds arising from the foreclosure” … . “‘[U]pon the foreclosure of the first mortgage, the lien of the second mortgage follow[s] the surplus into the hands of the [municipality’s] financial officer, and the remedy of the second mortgagee is to enforce his or her claim in the court by whose direction the foreclosure had taken place'” … . Maspeth Fed. Sav. & Loan Assn. v O’Connell, 2023 NY Slip Op 06037, Second Dept 11-22-23

Practice Point: In addition to the mortgage which was foreclosed, defendant property-owner had entered a home equity line of credit with Citibank. There were surplus funds after the foreclosure sale. Citibank, not defendant, was entitled to the surplus funds.

 

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