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ALTHOUGH THE MORTGAGE CONTINGENCY PROVISION OF THE PURCHASE CONTRACT WAS NO LONGER OPERABLE BECAUSE THE MORTGAGE COMMITMENT WAS REVOKED AFTER THE CONTINGENCY PERIOD HAD ELAPSED, THE SELLER’S BAD FAITH WARRANTED RETURN OF THE DOWN PAYMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff purchaser was entitled to return of the down payment after the bank refused to extend the mortgage commitment because the seller had not submitted an environmental report. Although the original mortgage-contingency clause was no longer operable (because the loan commitment had been extended pending receipt of the environmental report), it was the seller’s failure to provide the report, and not the actions or omissions of the purchaser, which resulted in the termination of the loan commitment:

“A mortgage contingency clause is construed to create a condition precedent to the contract of sale” … . “The purchaser is entitled to return of the down payment where the mortgage contingency clause unequivocally provides for its return upon the purchaser’s inability to obtain a mortgage commitment within the contingency period” … . “However, when the lender revokes the mortgage commitment after the contingency period has elapsed, the contractual provision relating to failure to obtain an initial commitment is inoperable, and the question becomes whether the lender’s revocation was attributable to any bad faith on the part of the purchaser” … . Rivkin v 1946 Holding Corp., 2023 NY Slip Op 04427, Second Dept 8-30-23

Practice Point: Here the mortgage commitment was revoked after the contingency period in the purchase contract had elapsed. Therefore the contingency provision was no longer operable. However, the seller was responsible for the revocation of the mortgage commitment for failure to submit an environmental report. Therefore the purchaser was entitled to return of the down payment.

 

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THE BANK’S FAILURE TO COMPLY WITH THE NOTICE-OF-FORECLOSURE REQUIREMENTS OF RPAPL 1304 CAN BE RAISED AT ANY TIME BEFORE THE JUDGMENT OF FORECLOSURE AND SALE (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the bank’s failure to comply with the notice provisions of RPAPL 1304 can be raised as a defense at any time before the judgment of foreclosure and sale. Here the defense was raised in opposition to the bank’s motion to confirm the referee’s report:

… “[F]ailure to comply with RPAPL 1304 is a defense that may be raised at any time prior to the entry of judgment of foreclosure and sale” … and thus, the defendants properly raised it in opposition to the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale.

“Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” … . RPAPL 1304 requires that the notice be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower … .

… The affidavit of Brittany Wilson, an officer of Wells Fargo Bank, N.A. … , the servicing agent of the plaintiff, was insufficient to establish that the plaintiff complied with RPAPL 1304. While Wilson attested that she was familiar with Wells Fargo’s records and record-keeping practices and that the plaintiff complied with RPAPL 1304 by mailing the required notices, which were attached to her affidavit, she failed to attest that she personally mailed the notices or that she was familiar with the mailing practices and procedures of Wells Fargo. Therefore, the plaintiff “failed to establish proof of standard office practice and procedures designed to ensure that items are properly addressed and mailed” … . U.S. Bank N.A. v Valencia, 2023 NY Slip Op 04426, Second Dept 8-30-23

Practice Point: The bank’s failure to demonstrate compliance with the notice of foreclosure requirements of RPAPL 1304 can be raised at any time before the judgment of foreclosure and sale.

 

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DISMISSAL OF THE HOSTILE WORK ENVIRONMENT CAUSES OF ACTION IN FEDERAL COURT DID NOT COLLATERALLY ESTOP PLAINTIFF’S HOSTILE WORK ENVIRONMENT CAUSE OF ACTION IN STATE COURT PURSUANT TO THE NEW YORK CITY HUMAN RIGHTS LAW (NYCHRL) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the dismissal of the hostile work environment causes of action by the federal court did not collaterally estop plaintiff’s hostile work environment cause of action in state court pursuant to the New York City Human Rights Law (NYCHRL):

Supreme Court erred in granting dismissal of the cause of action alleging hostile work environment pursuant to CPLR 3211(a)(5). The District Court analyzed the hostile work environment claims under the standards set by Title VII and NYSHRL, and determined that those claims were neither “pervasive” nor “extraordinarily severe.” Under NYCHRL, a claimant must only prove that they were “treated less well than other employees” because of their gender … . As the plaintiff’s allegations of sexual harassment and improper touching could constitute “more than petty slights and trivial inconveniences” without rising to the level of being severe and pervasive, Supreme Court should not have granted dismissal of this cause of action pursuant to the doctrine of collateral estoppel … . Domingo v Avis Budget Group, Inc., 2023 NY Slip Op 04463, Second Dept 8-30-23

Practice Point: The New York City Human Rights Law has less stringent standards for a hostile work environment cause of action than those required by the New York State Human Rights Law.

 

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PLAINTIFF IN THIS LEGAL MALPRACTICE ACTION WAS NOT REPRESENTED BY DEFENDANT ATTORNEY; PLAINTIFF ALLEGED HE WAS REQUIRED TO DEFEND A FAKE CUSTODY PETITION “FILED” BY DEFENDANT ATTORNEY; PLAINTIFF STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE AND A VIOLATION OF JUDICIARY LAW 487 DESPITE THE ABSENCE OF PRIVITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice action brought by a party who was not represented by the defendants should not have been dismissed. Plaintiff alleged the defendant attorney “filed” a fake custody petition for which plaintiff incurred $28,000 in attorney’s fees to defend against:

“While the complaint does not allege an attorney-client relationship between the plaintiff[ ] and the defendants, it sets forth a claim which falls within ‘the narrow exception of fraud, collusion, malicious acts or other special circumstances’ under which a cause of action alleging attorney malpractice may be asserted absent a showing of privity” … .

The Supreme Court further erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law § 487. As relevant here, Judiciary Law § 487 imposes civil liability on any attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive . . . any party.” Here, accepting the plaintiff’s allegations as true and giving the plaintiff the benefit of every possible favorable inference, the amended complaint adequately states a cause of action to recover damages for violation of Judiciary Law § 487 … . Garanin v Hiatt. 2023 NY Slip Op 04459, Second Dept 8-30-23

Practice Point: There are, as here, circumstances where a party who was not represented by the attorney can bring legal malpractice and “violation of Judiciary Law 487” actions against the attorney. Plaintiff alleged he was forced to defend against a fake custody petition “filed” by defendant attorney.

 

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EVEN THOUGH DEFENDANT’S PHYSICAL CONDITION WAS IN CONTROVERSY, DEFENDANT DID NOT WAIVE THE PHYSICIAN-PATIENT PRIVILEGE WITH RESPECT TO THE MEDICAL RECORDS CONCERNING SEXUALLY-TRANSMITTED DISEASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant did not waive the physician-patient privilege and, therefore, plaintiff was not entitled to defendant’s medical records which relate to sexually-transmitted disease:

“A party seeking to inspect a defendant’s medical records must first demonstrate that the defendant’s physical or mental condition is ‘in controversy’ within the meaning of CPLR 3121(a)” … . “Even where this preliminary burden has been satisfied, discovery may still be precluded where the information requested is privileged and thus exempt from disclosure pursuant to CPLR 3101(b)” … . Once the physician-patient privilege is validly asserted, it must be recognized, and the information sought may not be disclosed unless it is demonstrated that the privilege has been waived (see CPLR 3101[b]; * * *

… [I]n order to effect a waiver, a defendant must affirmatively assert the condition ‘either by way of counterclaim or to excuse the conduct complained of by the plaintiff'” … . * * *

The record was insufficient to establish that the defendant voluntarily disclosed any information to the plaintiff or other third parties which would have served as a waiver of privilege … . Hausman v Smith, 2023 NY Slip Op 04457, Second Dept 8-30-23

Practice Point: Even where a party’s physical condition is in controversy, the physician-patient privilege may preclude discovery of medical records concerning a condition which was not affirmatively asserted by that party.

 

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DEFENDANT SHOULD NOT HAVE BEEN PRECLUDED FROM PRESENTING EXPERT EVIDENCE AT TRIAL, PLAINTIFF WAS GIVEN ADEQUATE NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should not have been precluded from presenting expert evidence at trial. The Second Department noted that there is no rigid time requirement for the notice of the intent to present expert testimony and plaintiff was provided with the nature of the expert’s opinion prior to setting the trial date:

“CPLR 3101(d)(1)(i) requires a party, upon request, to identify the expert witnesses the party expects to call at trial” … . However, CPLR 3101(d)(1)(i) “does not require a response at any particular time or mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute” … .

Here, the defendant served his expert notice prior to a trial date being set, and thus it was not untimely … . Further, the notice was not deficient. It identified the expert witness, indicated that he was a vocational expert, and included the expert’s qualifications. Although the notice did not include the expert’s opinion and grounds for that opinion, that information was in the draft report that was received by the plaintiff prior to the trial date being set (see CPLR 3101[d]).

The defendant also complied with the requirements set forth in 22 NYCRR 202.16(g) by disclosing his expert witness shortly after the expert had been retained … and serving the expert report more than 60 days before trial (see 22 NYCRR 202.16[g][2]). Giovinazzo-Varela v Varela, 2023 NY Slip Op 04441, Second Dept 8-30-23

Practice Point: There is no strict time-limit for providing notice of the intent to present expert evidence and the nature of that evidence. Here defendant provided plaintiff with timely notice and the expert evidence should not have been precluded.

 

THE COLLAPSE OF A TRENCH IN WHICH PLAINTIFF WAS WORKING WAS AN ELEVATION-RELATED ACCIDENT COVERED BY LABOR LAW 240(1) (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, reversing Supreme Court, determined the collapse of a trench in which plaintiff was working was an elevation-related accident covered by Labor Law 240(1):

… [P]laintiff’s injuries were the direct consequence of defendants[‘] … failure to provide adequate protection against a risk arising from a physically significant elevation differential. Viewing the evidence in the light most favorable to those defendants, the trench was approximately six and a half-feet deep at the time of the incident. Plaintiff is five-and-a-half feet tall and was kneeling at the moment of the right wall’s collapse. There was, therefore, well over a one-foot height differential between the top of the earthen wall and the top of plaintiff’s head. That height differential cannot be characterized as de minimis in light of the extent of that differential, the amount of dirt that poured into the trench when the right wall collapsed suddenly, and the amount of force the dirt was capable of generating … . Moreover, the earthen wall, which required securing for the purposes of the undertaking, collapsed because of the effects of gravity, and the makeshift shoring plainly failed to provide adequate protection against the risk arising from the physically significant elevation differential. The harm to plaintiff flowed directly from the application of the force of gravity to the earthen wall; plaintiff’s injury is directly attributable to the risk posed by the physically-significant elevation differential … . Rivas v Seward Park Hous. Corp., 2023 NY Slip Op 04415, First Dept 8-24-23

Practice Point: The collapse of the inadequately secured wall of the trench in which plaintiff was working was an elevation-related, gravity-related accident covered by Labor Law 240(1). Plaintiff was entitled to summary judgment.

 

PLAINTIFF PLACED THE BOTTOM OF THE LADDER ON SMALL LANDSCAPING ROCKS WHICH GAVE WAY CAUSING PLAINTIFF TO FALL; DEFENDANTS DID NOT DEMONSTRATE PLAINTIFF’S ACTION WAS THE SOLE PROXIMATE CAUSE OF HIS FALL AND CONTRIBUTORY NEGLIGENCE IS NOT A DEFENSE; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this Labor Law 240(1) action should not have been granted on the ground plaintiff’s actions were the sole proximate cause of the ladder-fall. Plaintiff had placed the bottom of the ladder on top of small “landscaping” rocks and fell when the rocks gave way:

A plaintiff may be the sole proximate cause of his or her own injuries when, acting as a recalcitrant worker, he or she “(1) ‘had adequate safety devices available,’ (2) ‘knew both that’ the safety devices ‘were available and that [he or she was] expected to use them,’ (3) ‘chose for no good reason not to do so,’ and (4) would not have been injured had [he or she] ‘not made that choice'” … .

Here, UNF and Protection One [defendants] failed to establish, prima facie, that the plaintiff’s actions were the sole proximate cause of his injuries … . Although the plaintiff testified at his deposition that he could have placed the ladder in the driveway, where it would not have been resting on the rocks, he further testified that “it wasn’t safe for me to place it there, because that’s where trucks drive in.” Further, UNF and Protection One failed to submit evidence that the plaintiff’s injuries could have been prevented if the plaintiff had secured the ladder to the light pole with ties, which were available at Protection One’s depot, not the job site … . Iannaccone v United Natural Foods, Inc., 2023 NY Slip Op 04372, Second Dept 8-23-23

Practice Point: In a ladder-fall Labor Law 240(1) action, the defendant’s placing the ladder on small landscaping rocks which gave way was not deemed to be the sole proximate cause of the accident. Contributory negligence is not considered. Therefore defendants’ summary judgment motion should not have been granted.

 

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PLAINTIFF’S MOTION TO REARGUE MERELY REPEATED HER EARLIER ARGUMENTS AND DID NOT DEMONSTRATE THE COURT HAD OVERLOOKED OR MISUNDERSTOOD FACTS OR LAW; THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to reargue the summary judgment motion in this slip and fall case should not have been granted. Supreme Court had originally granted the city’s motion for summary judgment on the ground it did not have written notice of the dangerous condition. After the motion to reargue was granted, Supreme Court denied the city’s motion. Because the motion to reargue did not present new information and merely repeated the earlier arguments, it should have been denied:

A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d][2]). “Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision” … . However, “[a] motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided or to present arguments different from those originally presented” … . * * *

In support of her motion for leave to reargue, the plaintiff merely repeated her earlier arguments and did not demonstrate that the Supreme Court had overlooked or misapprehended any matter of fact or law in rendering the prior determination … . Hallett v City of New York, 2023 NY Slip Op 04367, Second Dept 8-23-23

Practice Point: A motion to reargue must be based on law or facts allegedly overlooked or misunderstood by the court. Here the motion merely repeated earlier arguments and, therefore, the motion should not have been granted.

 

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HERE THE LANGUAGE OF THE CONTRACT DID NOT MAKE IT “UNMISTAKABLY CLEAR” THAT THE LOSER WOULD PAY THE WINNER’S ATTORNEY’S FEES; THEREFORE THE FEE AWARD WAS REVERSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the plaintiffs, who prevailed in this contract action (based upon a license to repair damage to plaintiffs’ property), were not entitled to have the defendants pay their attorney’s fees because the contract did not explicitly so provide:

“Under the general rule, attorney’s fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule” … . “It is not uncommon, however, for parties to a contract to include a promise by one party to hold the other harmless for a particular loss or damage and counsel fees are but another form of damage which may be indemnified in this way” … . “When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” (id.). “The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances” .. . “Inasmuch as a promise by one party to a contract to indemnify the other for attorney’s fees incurred in litigation between them is contrary to the well-understood rule that parties are responsible for their own attorney’s fees, the court should not infer a party’s intention to waive the benefit of the rule unless the intention to do so is unmistakably clear from the language of the promise” … .

Here, the license did not provide for attorney’s fees for the instant litigation. Neither of the paragraphs in the license regarding attorney’s fees provided for attorney’s fees in litigation between the parties over alleged breaches of the license. Because the parties did not make “unmistakably clear” in the license that they intended to depart from the general rule that the losing party is not responsible for the winning party’s attorney’s fees, the Supreme Court erred in granting that branch of the plaintiffs’ motion which was for an award of attorney’s fees … . Giannakopoulos v Figame Realty Mgt., 2023 NY Slip Op 04364, Second Dept 8-23-23

Practice Point: The general rule is each party pays its own attorney’s fees. Any contract to the contrary must be “unmistakably clear,” not the case here.

 

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