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October Page II

Summaries of recently released decisions to be included in the next issue of the Digest (uncorrected)



Primary Assumption of Risk Prohibited Suit by Student Softball Player Injured When Struck by the Ball


The Second Department determined an eighth-grade experienced softball player assumed the risk of being hit by the ball, noting that the supervisor’s temporary absence from the field was not the proximate cause of the injury.  The court provided a thorough explanation of the primary assumption of risk doctrine:


Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity … . Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation … . Since the determination of the existence and scope of a duty of care requires "an examination of plaintiff's reasonable expectations of the care owed him [or her] by others" …, the plaintiff's consent does not merely furnish the defendant with a defense, it eliminates the duty of care that would otherwise exist. Accordingly, when a plaintiff assumes the risk of participating in a sporting event, "the defendant is relieved of legal duty to the plaintiff; and being under no duty, he [or she] cannot be charged with negligence" … . It is not necessary to the application of the doctrine that the injured plaintiff should have foreseen the exact manner in which the injury occurred "so long as he or she is aware of the potential for injury of the mechanism from which the injury results"… . Cruz v Longwood Cent Sch Dist, 2013 NY Slip Op 06541, 2nd Dept 10-9-13



Triable Issues of Fact in Lawsuit Against Bus Company and Property Owner for Slip and Fall on a Speed Bump

In reversing Supreme Court and reinstating the complaint, the Second Department determined there were triable questions of fact whether plaintiff was negligently allowed to step off a bus onto a speed bump, causing her to fall, and whether the property owner (JQ) allowed a dangerous condition (speed bump) to exist:


The [bus company] defendants failed to establish, prima facie, that they fulfilled the duty to alighting passengers to stop at a place where they may safely disembark and leave the area … . Triable issues of fact exist as to whether the driver was aware, or reasonably should have been aware, of the presence of a speed bump in the subject location, whether the speed bump constituted a dangerous condition, and whether the driver should have stopped the bus at the designated stop or another location not adjacent to a speed bump … . There is also a triable issue of fact as to whether the driver failed to see that which should have been seen through the reasonable use of one's senses and was, therefore, negligent… . The injured plaintiff's failure to positively state whether sand on the speed bump contributed to her fall was not fatal to her cause of action, because the evidence was sufficient to permit a finding based on logical inferences from the record, and not speculation alone, that the placement of the bus was a proximate cause of the accident, regardless of whether there was sand on the speed bump … .


The JQ defendants, as owners and operators of the office complex, which was open to the public, had a nondelegable duty to provide the public with reasonably safe premises and a safe means of ingress and egress … . This duty may not be delegated by the owner to its agents or employees, or to an independent contractor … . The plaintiffs need not establish that the JQ defendants had notice of the alleged dangerous condition, as it was allegedly created by the JQ defendants or their agent … . The JQ defendants failed to establish, prima facie, that they did not create a dangerous condition on the premises in placing the speed bump, or causing it to be placed, in the subject location. There are triable issues of fact as to whether the speed bump constituted a dangerous condition or was readily visible to a disembarking bus passenger, given its location near the bus stop, and given the conflicting testimony as to whether the speed bump was painted yellow … . Furthermore, triable issues of fact exist as to whether the circumstances were such as to render the subject speed bump a trap for the unwary … . Some visible hazards, because of their nature or location, are likely to be overlooked. The facts here do not warrant concluding as a matter of law that the speed bump was so obvious that it would necessarily have been noticed by any careful observer, so as to make any warning superfluous… . Grizzell v JQ Assoc LLC, 2013 NY Slip Op 06544, 2nd Dept 10-9-13



Valid Cause of Action Stated in Slip and Fall Suit Against Abutting Property Owner for Obstruction in Sidewalk (Gas Cap Cover)


The Second Department reversed Supreme Court and determined the slip and fall complaint stated a cause of action against the owner of property abutting a sidewalk.  In the sidewalk was a gas cap cover, owned by a utility, and concrete on top of the gas cap created raised area which was alleged to have caused plaintiff to fall.  A Long Beach City Ordinance imposed a duty upon abutting landowners to remove obstructions. The defendant relied heavily on cases construing New York City’s sidewalk law, which differed from the more broadly worded Long Beach ordinance:


The Charter imposes broad obligations on abutting landowners with respect to the condition of sidewalks, and also provides for tort liability on those landowners: 


"The owner . . . of lands fronting or abutting on any street . . . shall make, maintain and repair the sidewalk . . . adjoining his lands and shall keep such sidewalk . . . free and clear of and from snow, ice and all other obstructions. Such owner . . . shall be liable for any injury or damage by reason of omission, failure or negligence to make, maintain or repair such sidewalk . . . or to remove snow, ice or other obstructions therefrom, or for a violation or nonobservance of the ordinances relating to making, maintaining and repairing sidewalks . . . and the removal of snow, ice and other obstructions from sidewalks" (Charter § 256 …).


The Code of Ordinances of the City of Long Beach defines "sidewalk" as "any portion of a street between the curbline and the adjacent property line, intended for the use of pedestrians, excluding parkways" (Code of Ordinances of the City of Long Beach § 1-2). Here, the gas cap was located entirely within a sidewalk flag and was level with the sidewalk, and therefore apparently was intended to be traversed by pedestrians. Thus, the plaintiff contends, the concrete above the gas cap is covered by Long Beach's sidewalk law, at least to the extent that it may have been an "obstruction" on the sidewalk. Klau v Belair Bldg LLC, 2013 NY Slip Op 06548, 2nd Dept 10-9-13





Affirmative Defense of Recoupment Not

Extinguished by Bankruptcy Sale


In affirming Supreme Court’s denial of a motion to dismiss a recoupment affirmative defense, the First Department noted the defense is not extinguished by a bankruptcy sale:


The affirmative defense of recoupment is not an "interest" that is extinguishable by a "free and clear" sale under the Bankruptcy Code … . Further * * * [d]efendant's recoupment defense arises out of the same transaction (i.e., the same contract) that forms the basis for plaintiff's action against defendant… . Hispanic Ind Tel Sales LLC v Unaa Vez Mas LP, 2013 NY Slip Op 06518, 1st Dept 10-8-13







Statement Protected by “Common Interest

Privilege”/Tortious Interference Action Can Only Be Brought Against a Stranger to the Contract


The First Department affirmed the dismissal of a complaint alleging defamation and tortious interference with contract.  The court explained that the statement made by a management employee was protected by the common interest privilege and only a stranger to a contract can bring a tortious interference claim:


Defendant…'s statement that plaintiff was "deliberately sabotaging" defendant[‘s] IT redesign project was protected by the common-interest privilege because it constituted a communication "made to persons who have some common interest in the subject matter" …, namely, the people working on the IT system redesign. The statement is also protected as one made by a "management employee[] having responsibility to report on the matter in dispute" … . Plaintiff's allegations of malice, in an effort to overcome the common-interest privilege, amount to little more than "mere surmise and conjecture" … . 


Plaintiff's tortious interference claims … were also properly dismissed. "It is well established that only a stranger to a contract, such as a third party, can be liable for tortious interference with a contract" … . Ashby v ALM Media LLC, 2013 NY Slip Op 06497, 1st Dept 10-8-13






Charging Lien on Settlement Award

Allowed---Attorney Withdrew By Mutual Consent


In affirming the validity a charging lien on a settlement award on behalf of an attorney who had withdrawn from the case upon mutual consent the Second Department wrote:


"Pursuant to Judiciary Law § 475, [w]hen an action is commenced, the attorney appearing for a party obtains a lien upon his or her client's causes of action . . . This lien attaches to any final order or settlement in the client's favor'" … . " Where an attorney's representation terminates upon mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains his or her right to enforce the statutory lien'" … . Here, the plaintiff established, prima facie, that his representation … was terminated upon mutual consent, and that there had been no misconduct, discharge for cause, or unjustified abandonment on his part. Tangredi v Warsop, 2013 NY Slip Op 06559, 2nd Dept 10-9-13






Funeral-Expense Award from NYS Crime Victims Board Should Not Have Been Reduced by 50% Based on the Victim’s Alleged Involvement in Criminal Activity


The Second Department determined that the reimbursement of funeral expenses from the NYS Crime Victims Board should not have been reduced by 50% on the ground that the victim engaged in conduct contributing to the crime.  The court wrote:


… [G]eneral knowledge that narcotics sellers are subject to a greater risk of being violently murdered is not sufficient to supply a record-based relationship between the subject homicide and the victim’s alleged conduct. Under the particular circumstances of this case, the [Office of Victim Services] determination affirming the decision reducing the petitioner’s award by 50% based upon a finding that the victim engaged in culpable conduct “logically and rationally related to the crime by which the victim was victimized” (9 NYCRR 525.3[b]) was “taken without sound basis in reason or regard to the facts”… . Matter of Cox v Office of Victim Servs, 2013 NY Slip Op 06566, 2nd Dept 10-9-13







Dispositional Hearing Should Have Been Held After Neglect Finding


In a neglect proceeding, the Second Department noted a dispositional hearing was required before entering a dispositional order:


…Family Court erred in issuing the orders of disposition without first conducting a dispositional hearing (see Family Ct Act §§ 1045, 1047[a], 1052[a]…). "A dispositional hearing must be held as a condition precedent to the entry of a dispositional order" … . "A dispositional hearing is required so as to permit the Family Court to make an informed determination, from amongst the dispositional alternatives, which is consistent with the best interests of the . . . children" … . At a dispositional hearing, "due process requires that the parties be provided an adequate opportunity to offer evidence" (…see Family Ct Act § 1011). Here, the Family Court did not allow the mother to testify, failed to adduce any evidence from the father, to whom it released two of the children, and conducted no inquiry into dispositional alternatives before making its determination.  Matter of Monique M, 2013 NY Slip Op 06577, 2nd Dept 10-9-13







In a Sexual Abuse Proceeding---Effects of Victim’s Exercise of Privilege Against Self-Incrimination and Exclusion of Appellant During Testimony of Victim Explained


In a sexual abuse case, the Second Department affirmed Family Court’s finding of abuse and noted the effect of Judith C.Z.’s exercise of her privilege against self-incrimination and the effect of the appellant’s exclusion from the courtroom during the testimony Judith C. Z.:


The failure of [a witness] to testify does not permit the trier of fact to speculate about what his [or her] testimony might have been nor does it require an adverse inference. It does, however, allow the trier of fact to draw the strongest inference against him [or her] that the opposing evidence in the record permits" … . Under the circumstances presented here, we find no basis to disturb the Family Court's refusal to draw the negative inference urged by the appellant … . 


The appellant's further contention that the Family Court erred in excluding him from the courtroom during the testimony of Judith C. Z. is without merit. The Family Court reasonably concluded that Judith C. Z. would suffer emotional trauma if compelled to testify in front of the appellant …, and, after properly weighing the respective rights and interests of the parties, thereafter providently exercised its discretion in permitting her to testify via a two-way closed-circuit television set-up. "Because the appellant's attorney was present during the child's testimony and cross-examined her on the appellant's behalf, neither the appellant's due process right nor his Sixth Amendment right of confrontation was violated by his exclusion from the courtroom during the child's testimony" … .  Matter of Michael U…, 2013 NY Slip Op 06583, 2nd Dept 10-9-13






Neither Plaintiff Nor Intervenor Bank Had Standing

to Determine Validity of Mortgage


The Second Department determined neither the original plaintiff, nor the bank which attempted to intervene in the action, had standing in an action to determine the validity of a mortgage.  Plaintiff was not the mortgagee and the bank submitted no proof that the note was physically delivered to it, a necessary element of a valid assignment:


The plaintiff failed to establish that either it, or the party it wished to substitute as the plaintiff, had standing to maintain the action. Standing requires an inquiry into whether a litigant has "an interest . . . in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant's request" … . "In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced" … . The instant action, although not an action to foreclose the subject mortgage, was brought on behalf of the purported mortgagee, inter alia, for a judgment declaring the validity of the subject mortgage. The documentary evidence submitted by the appellant in support of her motion to dismiss the complaint established conclusively that the plaintiff was not the mortgagee, a fact which the plaintiff conceded. …


The plaintiff sought to defeat the appellant's motion to dismiss the complaint by cross-moving, in effect, to amend the complaint to substitute U.S. Bank as the plaintiff. "[A]n amendment which would shift a claim from a party without standing to another party who could have asserted that claim in the first instance is proper since such an amendment, by its nature, does not result in surprise or prejudice to the defendants who had prior knowledge of the claim and an opportunity to prepare a proper defense" (…CPLR 1002[a], 3025[b]). Here, however, the plaintiff failed to show that U.S. Bank had standing and could have asserted the claim in the first instance. The plaintiff submitted only a document executed by MERS, as nominee for the lender Opteum, purporting to assign the mortgage and note to U.S. Bank. To establish the validity of such an assignment, evidence must be submitted establishing that the note was either physically delivered to MERS or assigned to MERS by the lender prior to the commencement of the action … . The plaintiff failed to submit any such evidence. Midland Mtge Co v Imtiax, 2013 NY Slip Op 06550, 2nd Dept 10-9-13






Concept of an Equitable Mortgage Explained/Affirmative Defenses Left Out of Original Complaint (Waived) Can Be Included in Amended Complaint


The Second Department explained the concept of an “equitable mortgage” and noted that affirmative defenses waived pursuant to CPLR 3211(e) can be included in a complaint amended by leave of court:

New York law allows the imposition of an equitable lien if there is an express or implied agreement that there shall be a lien on specific property … . "While [a] court will impose an equitable mortgage where the facts surrounding a transaction evidence that the parties intended that a specific piece of property is to be held or transferred to secure an obligation, it is necessary that an intention to create such a charge clearly appear from the language and the attendant circumstances" … .
Here, the defendant initially did not raise in his answer a defense based upon lack of personal jurisdiction, lack of standing or a capacity to sue, or the statute of limitations. Hence, those affirmative defenses were waived at that point (see CPLR 3211[e]). However, defenses waived under CPLR 3211(e) can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025(b) so long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay and is not palpably insufficient or patently devoid of merit (see CPLR 3025[b]…). " Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine'"… .  Deutsche Bank Trust Co Ams v Cox, 2013 NY slip Op 06543, 2nd Dept 10-9-13



No Element of Intent in Constructive Possession of Contraband


The First Department determined there was no “intent” element to the constructive possession of contraband.  The marijuana and stun gun at issue were in an apartment defendant shared with his aunt and nephew. The defendant argued that, even if he was fully aware the items were in the apartment, the People were required to prove that he intended to exercise dominion and control over them.  The court wrote:


In defendant's view, even if he was fully aware that there was contraband in the apartment he shared with his aunt and nephew, and even if he had unfettered control over the areas where the contraband was located, he was not guilty of possessing it since he merely tolerated his drug-dealing nephew's use of the apartment as a repository for the contraband and had nothing else to do with it. We disagree. 


There is no element of intent in constructive possession. A long line of authority makes clear that knowing constructive possession of tangible property is established where the People prove knowledge that the property is present and "a sufficient level of control over the area in which the contraband [was] found" … People v Rodriguez, 2013 NY Slip Op 06495, 1st Dept 10-8-13



Denial of For Cause Juror Challenge Required Reversal


The First Department reversed defendant’s conviction because the trial court erroneously denied a “for cause” juror challenge:

The court erred in denying defendant's challenge for cause to a prospective juror who stated his belief and concern that he recognized defendant from his neighborhood, along with his fear that he would "run into" defendant or his friends. After being apprised of defendant's address, the panelist expressed an increased concern, resulting from the fact that he lived near that address. The panelist also expressed a "feeling of defendant's guilt," because he believed the neighborhood was "infected with drugs and drug dealers," After further inquiry regarding whether the panelist could follow the law and remain impartial, he ultimately stated, "I'll try. . . . I can't promise you anything. . . ." Viewing his statements in context and as a whole, they did not amount to an unequivocal assurance of impartiality… .  People v Tavarez, 2013 NY Slip Op 06515, 1st Dept 10-8-13




Elements of Several Computer Crimes Described


In a full-fledged opinion by Justice Saxe, the First Department affirmed defendant’s convictions for computer trespass, computer tampering, unlawful duplication of computer related material, and criminal possession of computer related material.  Defendant was on disability leave from his employer Time Warner when he used/installed software to gain access to passwords and log-in information.  The First Department took the opportunity to discuss the proof requirements for the elements of these offenses, some of which have little or no appellate authority.  With respect to the “without authorization” and “computer material” elements of computer trespass, the court wrote:


The term "without authorization" is defined as "access of a computer service by a person without permission . . . or after actual notice to such person, that such access was without permission" (Penal Law § 156.00[8]). While there is apparently no appellate authority on this point, the question of how to prove that use of a computer was not authorized was addressed in People v Klapper (28 Misc 3d 225 [Crim Ct, NY County 2010]), which considered a charge of unauthorized use of a computer (Penal Law § 156.05). The Klapper court held that no allegations supported the claim that the defendant's access was unauthorized, because for access to be without authorization, the defendant must have had knowledge or notice that access was prohibited or "circumvented some security device or measure installed by the user" (28 Misc 3d at 230). Of course, here, evidence fully supports the finding that defendant gained access to Time Warner's computers when he was unauthorized to do so. There is proof that Time Warner announced in its employee handbook that employees on disability leave were prohibited from entering the building, and the company deactivated those employees' access cards; this establishes that defendant had actual notice that he lacked authorization to enter the building and to use the company's computers. * * *


As to whether the information defendant gained access to constituted "computer material" for purposes of Penal Law § 156.10, the statutory definition of the term includes "any computer data or computer program" that "is not and is not intended to be available to anyone other than the person . . . rightfully in possession thereof . . . and which accords or may accord such rightful possessors an advantage over competitors or other persons who do not have knowledge or the benefit thereof" (Penal Law § 156.00[5]). With the use of user log-in information and passwords obtained through his installation of the keystroke-logging program Winvestigator, defendant was able to access information not intended to be available to anyone but the rightful user, namely, Time Warner and its authorized employees. Specifically, he gained access to … confidential information about customers' accounts, including address, phone number, subscription, service call records, and billing and payment information, as well as a list of any problems customers reported or services they requested. Customer information … is the sort of information that businesses have an interest in protecting and keeping away from competitors …. Accordingly, it qualifies as computer data that is not intended to be available to anyone other than the rightful possessor and that gives (or may give) the rightful possessor an advantage over competitors. People v Puesan, 2013 NY Slip Op 06530, 1st Dept 10-8-13



Imposition of Enhanced Sentence for

Defendant’s Tardiness Disallowed


The Second Department determined Supreme Court should not have imposed an enhanced sentence on the ground defendant was late appearing for his sentencing:


The transcript of the plea proceeding does not indicate that the defendant was given any instructions as to what time he was to appear for sentencing; rather, he was told that he must "com[e] to court on the sentence date." Under these circumstances, the imposition of an enhanced sentence, without affording the defendant an opportunity to withdraw his plea of guilty, was error… . People v Blades, 2013 NY Slip Op 06584, 2nd Dept 10-9-13




Defendant’s 440.46 Motion for Resentencing

Should Not Have Been Denied


In finding defendant’s motion for resentencing pursuant to CPL 440.46 should have been granted, the Second Department explained the relevant criteria:


Although resentencing is not mandatory, there is a statutory presumption in favor of resentencing (see L 2004, ch 738, § 23; CPL 440.46[3]…). Under the circumstances of this case, the factors relied upon by the Supreme Court in denying the motion--the defendant's criminal history and parole violations--are insufficient to overcome the statutory presumption. The instant offense and many of the defendant's prior offenses consisted of low-level drug crimes, and none of the defendant's recent convictions involved violence or weapons …. The defendant had no disciplinary infractions in prison, and had several positive accomplishments … . While the defendant's parole violations were a relevant consideration …, they were only one factor to consider, and did not mandate denial of the defendant's motion …. Under all of the circumstances presented here, "the presumption that the defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like that committed by the defendant was excessively harsh, has not been rebutted" … . People v Green, 2013 NY Slip Op 06588, 2nd Dept 10-9-13





Cross-Examination About Omission from Witness’

Statement to Police Should Have Been Allowed


The Second Department concluded the trial court should have allowed the cross-examination of a witness about a physical characteristic of the defendant the witness had not mentioned to the police:


"[A] witness may not be impeached simply by showing that he [or she] omitted to state a fact, or to state it more fully at a prior time" … . However, impeachment by omission is permissible when the witness omits a critical fact … . "An omission of fact at a prior time is insufficient for impeachment purposes unless it is shown that at th[at] prior time the witness' attention was called to the matter and that he [or she] was specifically asked about the facts embraced in the question propounded at trial'" … . " [C]urtailment [of cross-examination] will be judged improper when it keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony'" … . Here, given the eyewitness's testimony which demonstrated that the defendant's "squinting," "partly closed" left eye was a significant factor in his identifying the defendant as the assailant, the trial court erred in precluding the defendant from cross-examining the eyewitness about his omission of this observation of the assailant's appearance when he described the assailant to the police… . People v Greene, 2013 NY Slip Op 06589, 2nd Dept 10-9-13






Affidavit Supporting Motion to Strike Did Not Demonstrate

Good Faith Effort to Resolve Issue with Opposing Counsel


In finding the defendant’s cross-claim should not have been struck as a sanction for failure to appear for depositions, the First Department noted that the affidavit in support of the motion to strike did not demonstrate a good faith effort to resolve the matter with opposing counsel:


A party moving to strike a pleading pursuant to CPLR 3126 is required to submit an affirmation that counsel for the moving party has made "a good faith effort to resolve the issues raised by the motion" with opposing party's counsel (Uniform Rules for Trial Cts [22 NYCRR] 202.7). To be deemed sufficient, the affirmation must state the nature of the efforts made by the moving party to reconcile with opposing counsel (22 NYCRR 202.7[c]…). 


Here, [defendant] GSY's affirmation of its good faith effort to resolve the dispute with [cross-claim defendant] Shavolian did not substantively comply with the requirements of 22 NYCRR 202.7 … . In its affirmation in support of the motion to strike, GSY stated that it made "good faith efforts to proceed with disclosure," pointing to a letter it faxed to Shavolian's counsel. There is nothing in the letter, which was written before the continued deposition date, indicating that GSY's counsel actually conferred with Shavolian's lawyer in a good faith attempt to resolve the dispute… .  241 Fifth Ave Hotel LLC v GSY Corp, 2013 NY Slip Op 06514, 1st Dept 10-8-13



Ineffective Electronic Filing Can Be Corrected Pursuant

to CPLR 2001 After Statute of Limitations Expired


In a full-fledged opinion by Justice Dillon, the Second Department reversed Supreme Court’s denial of plaintiff’s motion, pursuant to CPLR 2001, to allow the filing and serving of a summons and complaint after the statute of limitations had expired. Plaintiff had timely attempted to file the summons and complaint using a new electronic filing system in Westchester County. It turned out that plaintiff’s counsel had mistakenly used a “practice” filing system designed to familiarize users with electronic filing and the summons and complaint was never actually filed in time.  The Second Department determined plaintiff’s motion to be allowed to cure the mistake under CPLR 2001 should have been granted after explaining that, in this case, CPLR 2001 should be to correct an error without concern for whether the defendant would be prejudiced by the correction:


The defendant argues that the plaintiff's e-filing error cannot be corrected, as doing so would prejudice the defendant by depriving her of a viable statute of limitations defense. However, we conclude that under a proper reading of CPLR 2001, the issue of prejudice to the defendant need not be reached. 


More specifically, we believe that many reported cases in New York reflect a misreading of the language of CPLR 2001. Judicial discretion and the absence of prejudice are not requirements that must be applied in a combined fashion. Rather, a close reading of the statute reveals that CPLR 2001 recognizes two separate forms of potential relief to address mistakes, omissions, defects, or irregularities in the filing of papers. The statute distinguishes between the "correction" of mistakes and the "disregarding" of mistakes, and each invokes a different test. Courts may "correct[ ]" mistakes "upon such terms as may be just" (CPLR 2001). The statute then says, set off by an "or," that mistakes may be "disregarded" if a substantial right of a party is not prejudiced … . Thus, a "correction" of a mistake appears to be subject to a broader degree of judicial discretion without necessary regard to prejudice, whereas a complete "disregarding" of a mistake must not prejudice an opposing party. … The distinction between simply correcting a mistake and overlooking a mistake makes sense, as a party seeking to wholly disregard a filing mistake may understandably be expected to bear a higher burden than a party seeking a mere correction. 


A secondary inquiry, therefore, is whether the plaintiff's request for a nunc pro tunc recognition of his filing in the NYSCEF "practice" system amounts to a mere correction that may be permitted upon terms that may be just, or whether it constitutes a full-scale disregard of the filing error that, in order to be permitted, requires a showing that the defendant will not be prejudiced by the disregard. 


… [Here] [t]he "filing" was performed in a mistaken manner and method, which courts are permitted to correct on terms that may be just … . Therefore, the plaintiff was under no burden to demonstrate an absence of prejudice to the defendant. In contrast, excusing a clearly untimely filing would constitute the disregarding of an error, which could not be permitted because it would be prejudicial to a defendant to deprive it of a legitimate statute of limitations defense. Grskovic v Holmes, 2013 NY Slip Op 06545, 2nd Dept 10-9-13







Plaintiff Should Have Been Allowed to Amend Complaint

to Allege City Had Notice of Sidewalk Defect


In a slip and fall case, the plaintiff did not allege the city had notice of the defect and sought to amend the complaint to add the allegation.  The Second Department determined plaintiff should have been allowed to amend:


… [T]he Supreme Court erroneously granted that branch of the City's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the plaintiff had failed to plead prior written notice of the alleged sidewalk defect. Instead, under the facts of this case, the Supreme Court should have granted the plaintiff's cross motion and permitted him to amend the pleadings and the notice of claim to add an allegation that the City received prior written notice of the alleged sidewalk defect where, as here, the amendment would not prejudice or surprise the City (see CPLR 3025; General Municipal Law § 50-e[6]…).  Perez v City of New York, 2013 NY Slip Op 06553, 2nd Dept 10-9-13







Similar Pending Lawsuit Properly Dismissed—Two Lawsuits Sought Declaratory Judgment Re: Duty to Defend and Indemnify


The Second Department determined Supreme Court properly dismissed an action for a declaratory judgment re: an insurance company’s duty to defend and indemnify because of its similarity to another pending action:


Where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211(a)(4) on the ground that there is another action pending … . "The critical element is that both suits arise out of the same subject matter or series of alleged wrongs" … . Under the circumstances of this case, upon the record that existed at the time the Supreme Court issued the order appealed from, the court providently exercised its discretion in granting that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(4) … . Scottsdale Ins Co v Indemnity Ins Corp RRG, 2013 NY Slip Op 06557, 2nd Dept 10-9-13






Registered Voter Could Not Intervene In Suit to Determine Constitutionality of Local Term-Limit Law


The Second Department affirmed Supreme Court’s denial of a “registered voter’s” [Nichol’s] motion to intervene in an action to determine the constitutionality of a local law concerning term limits for public offices.  The court explained:


Upon a timely motion, a person is permitted to intervene in an action as of right when, among other things, "the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment" (CPLR 1012[a][2]…). Additionally, the court, in its discretion, may permit a person to intervene, inter alia, "when the person's claim or defense and the main action have a common question of law or fact" (CPLR 1013). " However, it has been held under liberal rules of construction that whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013 is of little practical significance [and that] intervention should be permitted where the intervenor has a real and substantial interest in the outcome of the proceedings'" … . 


Here, contrary to Nichols's contention, the Supreme Court properly denied his motion for leave to intervene in the action as a defendant. Although Nichols, who describes himself as a "registered voter in the County of Suffolk and an active supporter of [his] constitutional right to pass and enforce term limit legislation," may indeed be interested in defending the local law in question, he failed to demonstrate that he has a "real and substantial interest" in the action … . Moreover, as the Supreme Court appropriately noted, he failed to show that any interest he did have would not be adequately represented by the defendant … . Accordingly, the court properly denied Nichols's motion for leave to intervene. Spota v County of Suffolk, 2013 NY Slip Op 06558, 2nd Dept 10-9-13

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