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THE DEFAULT LETTER, WHICH INDICATED THE MORTGAGE DEBT WOULD BE ACCELERATED AT A SPECIFIC FUTURE DATE IF THE DEFAULT WERE NOT CURED, DID NOT ACCELERATE THE DEBT; THEREFORE THE STATUTE OF LIMITATIONS DID NOT START RUNNING AND THE FORECLOSURE ACTION WAS TIMELY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the mortgage debt was not accelerated by a letter indicating the debt would be accelerated on a specific future date if the arears were not paid:

… [T]he issue is whether the May 2008 default letter was an acceleration event that triggered the statute of limitations. We hold that is was not. Thus, the second action, commenced in October 2014, was timely. To that end, the May 2008 letter provided that, if the default was not cured “on or before June 10, 2008, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time.” Since this letter was “‘merely an expression of future intent that fell short of an actual acceleration,’ which could ‘be changed in the interim'” … , it did not accelerate the debt … . “[T]he letter did not seek immediate payment of the entire, outstanding loan, but referred to acceleration only as a future event, indicating the debt was not accelerated at the time the letter was written” … . Further, the May 2008 letter specifically discussed other non-acceleration options for defendant, including a repayment plan or loan modification, which plaintiff, as the holder of the note, should be able to do “without running the risk of being deemed to have taken the drastic step of accelerating the loan” … . Thus, the statute of limitations was not triggered until the debt was accelerated by the commencement of the first action in February 2009 … , rendering the commencement of the second action, in October 2014, timely as it was within the six-year statute of limitations …  . GMAT Legal Tit. Trust 2014-1, Us Bank Natl. Assn. v Wood, 2021 NY Slip Op 01455, Third Dept 3-11-21

 

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BUDGETARY CONCERNS RELATED TO THE COVID-19 PANDEMIC JUSTIFED THE DENIAL OF CERTIFICATION TO CONTINUE SERVING ON THE BENCH TO 46 SUPREME COURT JUSTICES WHO REACHED THE MANDATORY RETIREMENT AGE OF 70 IN 2020 (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Lynch, over a partial dissent, determined the Administrative Board of the NYS Unified Court System did not act arbitrarily and capriciously when it denied certification to 46 of 49 Supreme Court Justices who reached the age of 70 in 2020. Retirement at age 70 is mandated by the NYS Constitution. But certification to continue serving on the bench can be granted by the Board. Here the Board based its decision to deny certification to 46 justices on budgetary concerns resulting from the COVID-19 pandemic:

The Board minutes explain that the Board “declined to certify 46 of the 49 [Justices] applying for certification owing to current severe budgetary constraints occasioned by the coronavirus pandemic. Three [Justices], having specialized additional assignments[,] were certified.” The Board’s certification of three applicants reflects both an individualized assessment and a recognition — “at least impliedly” — that additional judicial services are necessary … . …”[W]hether the services of a particular Justice are ‘necessary to expedite the business of the court’ encompasses much more than a mechanical inquiry into the size of the courts’ docket divided by the number of Justices” … . Certainly, it should be recognized that the continued services of the petitioner Justices would advance the needs of the court in managing an expanding caseload. That positive contribution, however, is not the deciding factor, as the Board is charged with balancing the costs of certification with the overall needs of the court system … . … [T]he Board made the extremely difficult judgment call that certification would prove too costly under the economic dilemma presented. … [C]ertification would significantly disrupt overall court operations given that the alternative savings mechanism would require more than 300 layoffs of nonjudicial personnel. Achieving the proper balance for the court system was for the Board to determine. … In our view, the Board acted in accord with the governing standard and within the scope of its broad authority in basing its ultimate decision on the overall needs of the court system. Matter of Gesmer v Administrative Bd. of the N.Y. State Unified Ct. Sys., 2021 NY Slip Op 01376, Third Dept 3-9-21

 

WHETHER PLAINTIFF USED ONE OR BOTH HANDS TO MANIPULATE A HOSE WHILE STANDING ON A LADDER WHICH COLLAPSED OR SLIPPED WAS RELEVANT ONLY TO COMPARATIVE NEGLIGENCE, WHICH IS NOT A BAR TO RECOVERY PURSUANT TO LABOR LAW 240 (1) (THIRD DEPT).

The Third Department, over a dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff alleged he fell from an A-frame ladder which collapsed, slipped or otherwise failed to support him. Plaintiff was using a hose to insert insulation and was supposed to keep one hand on the ladder at all times. Defendant argued plaintiff demonstrated at his deposition that he had both hands on the hose. The majority held, even if plaintiff used both hands to manipulate the hose, that would constitute comparative negligence which is not a bar to recovery:

… [D]efendant relied upon plaintiff’s deposition testimony, in which he averred that he chose a wooden, A-frame ladder, which he described as “sturdy,” and placed so it was steady and free from “wiggling.” Plaintiff testified that, while standing on the steps of the ladder, he maintained a three-point safety stance, with his feet and one arm in contact with the ladder, and his other hand holding the hose that fed the insulation into the building’s overhang. Plaintiff indicated that the ladder began to move forward, causing him to fall and sustain injuries. Defendant argued that this testimony established that the ladder “was adequate and properly placed” … , and that the testimony about plaintiff keeping one hand in contact with the ladder contradicted gestures he made during the deposition, where he seemed to indicate that “both [of his] hands [were] cupped around an imaginary hose,” thus posing issues of fact.

As Supreme Court found, the deposition testimony is not clear as to whether plaintiff maintained the three-point safety stance while on the ladder. Nonetheless, even if this disputed issue was resolved against plaintiff, this would merely present a factual question as to his potential comparative negligence, which “does not relieve defendant[] of liability under Labor Law § 240 (1)” … . Bennett v Savage, 2021 NY Slip Op 01306, Third Dept 3-4-21

 

COUNTY COURT’S TELLING DEFENDANT HIS SENTENCE WOULD BE ENHANCED IF HE DID NOT COOPERATE WITH THE PROBATION DEPARTMENT DID NOT ADEQUATELY INFORM DEFENDANT HIS STATEMENT IN THE PROBATION INTERVIEW THAT HE DID NOT REMEMBER THE BURGLARY WOULD TRIGGER AN ENHANCED SENTENCE; SENTENCE VACATED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined that County Court’s telling defendant he would enhance defendant’s sentence if defendant did not cooperate with the Probation Department did not adequately inform defendant his sentence would be enhanced if he told the Probation Department he did not remember the burglary to which he entered a plea:

Prior to adjourning the matter for sentencing, County Court stated to defendant, “It’s important that you cooperate with the Probation Department . . ., because if you . . . didn’t cooperate with the presentence investigation report, then I could enhance the sentence and sentence you to more time.” County Court did not, however, expressly advise defendant (and defendant, in turn, did not agree) that he must provide truthful answers to the Probation Department, refrain from making statements that were inconsistent with his sworn statements during the plea colloquy and/or avoid any attempt to minimize his conduct in the underlying burglary … . Further, County Court summarily denied defendant’s oral motion to withdraw his plea upon this ground and, despite defendant’s request for a hearing, County Court made no further inquiry as to defendant’s allegedly inconsistent statements; rather, County Court simply concluded that defendant’s stated inability to recall the burglary at the time of his interview with the Probation Department constituted a failure to “cooperate” in the preparation of the presentence investigation report. Given the subjective nature of the court’s requirement that defendant “cooperate” with the Probation Department and the court’s corresponding lack of further inquiry, County Court erred in imposing an enhanced sentence without first affording defendant an opportunity to withdraw his plea … . People v Ackley, 2021 NY Slip Op 01293, Third Dept 3-4-21

 

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THE FORMER SURROGATE, NOW IN PRIVATE PRACTICE, CANNOT REPRESENT A CLIENT IN A CASE WHICH WAS BEFORE HER AS SURROGATE (THIRD DEPT).

The Third Department, reversing Surrogate’s Court, over a two-justice dissent, determined the former Surrogate, who is now in private practice, cannot represent a client in a proceeding which was before her as Surrogate:

Respondent contends that Surrogate’s Court erred in not granting her motion to disqualify petitioner’s counsel. We agree. Just as a judge may not preside over a case that he or she was previously involved in as an attorney (see Judiciary Law § 14; 22 NYCRR 100.3 [E] [1] [b] [i]), an attorney may not appear for a client in a case that he or she previously presided over as a judge (see Judiciary Law § 17; … see also Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.12 [a]). To that end, Judiciary Law § 17 provides that a “former judge or surrogate shall not act as attorney or counsellor in any action, claim, matter, motion or proceeding, which has been before him [or her] in his [or her] official character.” This prohibition is “absolute” and “establishes a bright-line disqualification rule” … . By our reading, this statute clearly operates to disqualify petitioner’s counsel — who previously presided as the Surrogate over the probate of decedent’s will and the issuance of letters testamentary and letters of trusteeship to respondent — from now representing petitioner in his claims against respondent involving the same estate and the same trust … . To the extent that Surrogate’s Court determined that Rules of Professional Conduct (22 NYCRR 1200.00) rule 1.12 (a) would permit the former Surrogate to represent petitioner in this matter — a finding with which we do not agree — this rule cannot be relied upon to permit a representation agreement that is otherwise precluded by Judiciary Law § 17. Matter of Gordon, 2021 NY Slip Op 01294, Third Dept 3-4-21

 

THE PETITION SEEKING TO TERMINATE FATHER’S PARENTAL RIGHTS, WITH THE GOAL OF FREEING THE CHILD FOR ADOPTION, AND THE CONCURRENT PERMANENCY PLAN TO RETURN THE CHILD TO THE CUSTODY OF MOTHER, HAD CONFLICTING END GOALS; THE PETITION TO TERMINATE FATHER’S PARENTAL RIGHTS SHOULD THEREFORE HAVE BEEN DIMSISSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the end goals of two concurrent proceedings were contradictory and therefore the petition to terminate father’s parental rights should have been dismissed. The abandonment/termination of parental rights petition, which sought to free the child for adoption, was brought in the face of a permanency plan which sought to return the child to the custody of mother:

Respondent [father] contends that the abandonment proceeding, seeking to terminate his parental rights, was improperly brought against him as the permanency plan in place at the time of the hearing with respect to the mother was to return the child to the mother. We agree. … The statutory purpose of an abandonment proceeding is to free the child for adoption by terminating the parents’ rights to the child. Because this proceeding sought to terminate the rights of one parent in the face of an existent permanency plan that sought to reunite the child with the other parent, it did not serve that purpose. In circumstances such as this, dismissal of the petition is mandated … . Matter of Xavier XX. (Godfrey YY.), 2021 NY Slip Op 01295, Third Dept 3-4-21

 

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THE DEFAULT NOTIFICATION LETTER DID NOT ACCELERATE THE DEBT BECAUSE IT DID NOT STATE THE DEBT WAS DUE AND PAYABLE IMMEDIATELY; THE BANK DID NOT DEMONSTRATE THE PROPER MAILING OF THE RPAPL 1304 NOTICE (THIRD DEPT)

The Third Department, reversing Supreme Court, determined plaintiff bank was not entitled to summary judgment in this foreclosure action. The court held the action had never been dismissed pursuant to CPLR 3216 because no 90-day notice requiring the filing of a note of issue had been given. The foreclosure action was timely because the letter which defendants argued had accelerated the debt did not unambiguously state that the full mortgage debt had become due and payable immediately. However proof of the mailing of the the RPAPL 1304 notice was not sufficient:

The December 28, 2009 letter advised Mausler [defendant] that he was in default and that he could cure this default by making a payment “within thirty days from the date of this letter.” The letter further stated that “[i]f you do not cure this default within the specified time period, your obligation for payment of the entire unpaid balance of the loan will be accelerated and become due and payable immediately” … . Additionally, the letter provided that if the amount due was not paid, “foreclosure proceedings may commence to acquire the [p]roperty by foreclosure and sale” … . The Court of Appeals, however, recently explained that such language does not evince an intent by the noteholder to “seek immediate payment of the entire, outstanding loan, but referred to acceleration only as a future event”… . Accordingly, contrary to defendants’ contention, the December 2009 letter did not constitute a valid acceleration of the debt so as to trigger the applicable statute of limitations. …

Plaintiff relies on the affidavit from the loan servicing associate to demonstrate compliance with RPAPL 1304. The associate, however, “did not attest to familiarity with or provide any proof of the mailing procedures utilized by the party that allegedly mailed the RPAPL 1304 notice” … . Wilmington Trust, Natl. Assn. v Mausler, 2021 NY Slip Op 01296, Third Dept 3-4-21

 

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A STIPULATION OF SETTLEMENT FOR WHICH A JUDGMENT WAS ENTERED AFTER DECEDENT’S DEATH MAY NOT BE ENTERED IN DECEDENT’S NAME PURSUANT TO CPLR 5016 (d); THEREFORE THE JUDGMENT IS NOT ENTITLED TO PRIORITY IN SETTLING THE ESTATE (THIRD DEPT).

The Third Department, over a dissent, determined a stipulation of settlement in favor of decedent which was the basis of a judgment entered after decedent’s death cannot, pursuant to CPLR 5016 (d), be entered in his or her own name, and therefore is not entitled to priority in settling the estate:

An “accepted offer to compromise pursuant to [CPLR] 3221” (CPLR 5016 [d]) refers to a precise mechanism, which allows a party against whom a claim is asserted, 10 days before trial, to “serve upon the claimant a written offer to allow judgment to be taken against him [or her] for a sum or property or to the effect therein specified, with costs then accrued. If within [10] days thereafter the claimant serves a written notice that he [or she] accepts the offer, either party may file the summons, complaint and offer, with proof of acceptance, and thereupon the clerk shall enter judgment accordingly” (CPLR 3221). Here, there was no written offer or written acceptance; rather, the stipulation occurred on the record before Supreme Court, and the filing in the Clerk’s Office occurred after petitioner secured the judgment and order from Supreme Court … .

We decline to adopt the broad interpretation of CPLR 5016 (d), as petitioner urges … . The Legislature, in creating CPLR 5016 (d), set forth three distinct situations where a post-mortem judgment may be entered against the decedent in his or her own name, thus bestowing priority to the creditor. None of these three provisions was met here. Matter of Uccellini, 2021 NY Slip Op 01303, Third Dept 3-4-21

 

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CARRIER PROPERLY ORDERED TO PAY FOR CLAIMAINT’S PAIN TREATMENT WITH MEDICAL MARIJUANA (THIRD DEPT).

The Third Department, in a comprehensive opinion by Justice Egan, determined the Workers’ Compensation Board properly issued a variance allowing coverage for medical marijuana for treatment of claimant’s pain. The opinion is too detailed to fairly summarize here. The carrier’s federal conflict preemption and statutory (Public Health Law) exemption arguments were rejected:

“The federal preemption doctrine has its roots in the Supremacy Clause of the United States Constitution, and federal preemption of state laws generally can occur in three ways: where Congress has expressly preempted state law, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law, or where federal law conflicts with state law” … . At issue here is conflict preemption, “which occurs when compliance with both federal and state law is a physical impossibility, or where the state law at issue . . . stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” … .

* * * [R]equiring the carrier to reimburse claimant … does not serve to subvert, in any way, the principal purposes of the Controlled Substances Act in combating drug abuse and controlling “the legitimate and illegitimate traffic in controlled substances” … , particularly where, as here, claimant was validly prescribed and authorized to use medical marihuana by his pain management specialist to both treat his chronic pain and reduce his reliance on opiates. Matter of Quigley v Village of E. Aurora, 2021 NY Slip Op 01174, Third Dept 2-25-21

 

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PLAINTIFFS’ ACTION STEMMING FROM PFOA CONTAMINATION PROPERLY SURVIVED SUMMARY JUDGMENT; THE DOCTRINE OF PRIMARY JURISDICTION DID NOT APPLY; QUESTIONS OF FACT RAISED ABOUT THE DUTY OF CARE, PROXIMATE CAUSE, PRIVATE NUISANCE, TRESPASS AND PUNITIVE DAMAGES (THIRD DEPT).

The Third Department determined plaintiffs’ complaint in this PFOA contamination case properly survived defendant’s motion for summary judgment. The court found that the doctrine of primary jurisdiction did not apply, defendant owed plaintiffs a duty of care, defendant did not demonstrate it did not proximately cause the alleged injuries, there was a question of fact on the private nuisance and trespass causes of action, and the punitive damages claim was proper. With respect to the doctrine of primary jurisdiction, the court wrote:

[The] doctrine “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views”… . Defendant argues that the various regulatory agencies, who have the requisite expertise, have been investigating the matter at issue and that the recovery sought by plaintiffs is already being provided by these agencies. We disagree. Although defendant points to an announcement that the Department of Health will be providing medical monitoring, this announcement merely stated that a study was being proposed and that, if funded, the study would last for five years. Contrary to defendant’s representation, there was no definitive statement that the medical monitoring would be provided. As to the remediation of plaintiffs’ private wells, the consent order and other announcements, upon which defendant relies, do not address all of the relief requested by plaintiffs in the second amended complaint. Accordingly, defendant’s argument is without merit. Burdick v Tonoga, Inc, 2021 NY Slip Op 01178, Third Dept 2-25-21

 

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