Court Filings

The Appellate Division reversed a Supreme Court foreclosure judgment because the bank never obtained personal jurisdiction over the homeowner. Nationstar served the summons and complaint by leaving them with the homeowner's former attorney, who lacked authority to accept service. The court held the homeowner timely preserved the jurisdiction defense and that service on a former lawyer does not satisfy statutory service rules. Because service was defective, the foreclosure judgment, referee confirmation, and sale direction were vacated and the complaint dismissed for lack of personal jurisdiction.

The Appellate Division affirmed the Supreme Court's order granting Lalezarian Properties, LLC's motion for summary judgment dismissing the plaintiff's amended complaint in a slip-and-fall personal injury action. The plaintiff, a security guard who slipped on ice in an underground garage, sued the alleged property owner. The court held that Lalezarian showed it did not own, manage, operate, or control the property and thus cannot be liable for the hazardous condition, and the plaintiff failed to raise a triable issue of fact. The court therefore properly granted the defendant's motion upon reargument.

The Appellate Division, Second Department, reversed a Supreme Court order that had allowed Con-Kel Landscaping to reargue and then obtain summary judgment dismissing the plaintiff's personal injury claims. The plaintiff slipped on ice in an underground garage and sued Con-Kel, the snow-removal contractor. The appellate court held Con-Kel improperly raised for the first time on a reargument motion the argument that the plaintiff would be precluded from testifying (and thus could not make a case). Because reargument cannot present new legal theories or facts not previously offered, the reargument should have been denied and the grant of summary judgment vacated. Costs were awarded to the plaintiff.

The Appellate Division affirmed a Supreme Court order denying Margaret Liu’s motion to vacate a 2018 default judgment awarding Shau Chung Hu $1,480,636.50 in a hybrid proceeding seeking, among other relief, ownership and rescission relating to Lowbet Realty Corp. The Court held Liu’s CPLR 5015(a)(1) motion was untimely because it was made more than one year after service of the judgment, and that her claimed excuse—lack of personal service of the petition—failed because she had filed a notice of appearance and never challenged jurisdiction. The court also rejected relief under CPLR 317 because Liu had appeared in the action.

The Appellate Division reversed part of a Supreme Court judgment in a proceeding to confirm a master arbitration award where Integrated Specialty ASC, LLC sought no-fault benefits and attorneys' fees. The court held the trial court erred by awarding only $1,000 under the no-fault fee regulation and by failing to award additional fees for the CPLR article 75 confirmation proceeding. The appellate court awarded the regulatory maximum fee of $1,360 and remanded for the trial court to determine the amount of additional attorneys' fees under 11 NYCRR 65-4.10(j)(4) and then enter an amended judgment.

The Appellate Division affirmed a judgment awarding the claimant $15,508,705 as just compensation after the MTA condemned a Queens retail property for elevator renovations at the Flushing Main Street station. Following a nonjury trial, the trial court accepted the claimant's appraisal, which treated the property's highest and best use as one-story retail with development potential and relied on a nearby comparable sale to set a 2.5% capitalization rate. The court rejected the MTA's appraisal, which used a 6.5% cap rate based on national strip-center data and less comparable local transactions, finding the trial court's valuation was within the experts' ranges and adequately explained by the evidence.

The Appellate Division affirmed a lower court judgment that annulled the Town/Village of Harrison Planning Board's denial of BKP Harrison, LLC's application for amended site plan approval to replace a restaurant with a new restaurant and drive-through. The court held the board's denial was arbitrary and capricious because it relied on speculative traffic predictions, subjective doubts about the applicant honoring delivery-hour commitments, an improper interpretation of zoning (a power reserved to code enforcement and the zoning board of appeals), and a traffic study not shared with the applicant. The appellate court therefore ordered the planning board to grant the application.

The Appellate Division affirmed the lower court's refusal to award additional attorneys' fees to Smart Choice Medical, P.C. after Smart Choice filed its fee submission late and then sought permission to renew based on an argument that the court's briefing schedule postdated its deadline. The court held that Smart Choice's asserted “new” factual basis was actually available earlier and that it failed to offer a reasonable justification for not presenting that information earlier. Because the renewal standard under CPLR 2221(e) was not met, the trial court did not abuse its discretion in denying renewal or awarding additional fees.

The Appellate Division affirmed a Supreme Court judgment refusing to award additional attorneys' fees to Citimed Surgery Center, LLC. Citimed had been directed to file a motion for fees within 30 days after a May 11, 2023 order, but filed late and did not explain the delay. The court denied Citimed's motions as untimely, relying on precedent that court-ordered time frames must be respected to preserve the integrity of judicial orders. Because the second motion was filed beyond the 30-day period, the appellate court held the denial was proper and affirmed.

The Appellate Division affirmed the Supreme Court's judgment confirming a master arbitration award in favor of Bay Ridge Surgi-Center, LLC and refusing to award Bay Ridge additional attorney fees under 11 NYCRR 65-4.10(j)(4). Bay Ridge had sought relief after failing to appear for oral argument and moved to vacate that portion of the prior order and to obtain fees; the court denied the CPLR 5015(a)(1) motion and reargument request. The court held Bay Ridge could not use reargument to raise the fee claim for the first time and that Bay Ridge failed to submit the contemporaneous time records required to justify an award of additional fees.

The Appellate Division, Second Department affirmed the Supreme Court's order granting the plaintiff summary judgment on liability and dismissing the defendants' affirmative defense of comparative negligence in a rear-end collision case. The plaintiff showed he was slowing for a red light when the defendant's vehicle struck his car from behind, establishing a presumption of the defendant's negligence. The defendants' evidence that the plaintiff made a sudden stop and that their car skidded on wet pavement did not provide a sufficient nonnegligent explanation or show the skid was unavoidable, so no triable issue of fact was created.

The Appellate Division, Second Department affirmed a judgment dismissing the plaintiff Alejandro Perez Barranco's claims under Labor Law §§ 240(1) and 241(6) arising from a 2017 ladder fall. The court held the homeowner's exemption protected defendant Marina Fronshtein because the property was a one-family residence and she did not direct or control the work. The court also held defendant Marat Fronshtein was entitled to dismissal under the Workers' Compensation Law exclusivity provision because he and the injured plaintiff were coemployees acting within the scope of employment. The defendants' cross-appeal was rendered academic.

The Appellate Division reversed the trial court and granted summary judgment to defendants Eric and Leslie Gulkis in a personal injury action alleging liability under General Obligations Law § 11-100. The plaintiff claimed he was assaulted by an underage guest, Hellerman, at a party hosted at the Gulkis defendants' home and alleged the hosts unlawfully furnished alcohol to the minor. The appellate court held the hosts showed the minor was not intoxicated at the time of the assault and the plaintiff produced no evidence of intoxication, so the statutory claim against the hosts fails as a matter of law.

The Appellate Division, Second Department reversed a Supreme Court order that had dismissed a fraud, breach of contract, and breach of the covenant of good faith and fair dealing complaint against Madison Realty Capital and related defendants. The lower court had dismissed the action based on a release in a forbearance agreement and for failure to plead fraud, but the appellate court held the plaintiffs could amend as of right and that their amended complaint raised questions of fact whether the release was unfairly obtained and whether defendants made intentional misrepresentations to induce the plaintiffs to enter agreements. Accordingly, the defendants' CPLR 3211 motion to dismiss was denied.

The Appellate Division modified a Supreme Court order in a personal-injury action arising from a table-saw accident. The court held that the lower court erred by granting summary judgment dismissing the Labor Law § 241(6) claim against the property owners (the Cremoux defendants) and by denying leave for the contractor (Scott Bavosa Construction Corp.) to amend its third-party answer. The court found triable issues about whether the homeowner exemption applied and whether Industrial Code violations occurred, and it concluded the insurer-subrogation/antisubrogation defense Bavosa sought to add was not palpably insufficient.

The Appellate Division modified and affirmed in part a Kings County order in a personal-injury action arising from a worker's fall when perimeter safety netting gave way. The court reversed the trial court's grant of summary judgment that had dismissed contractual indemnification claims against the plaintiff's employer, Lippolis, and otherwise affirmed the denials of summary judgment for the defendants and third-party plaintiffs against subcontractor Monolithic. The court held triable issues remained about whether the injuries arose from Monolithic's work, whether the defendants were free from negligence, and whether Monolithic failed to procure required additional-insured coverage.

The Appellate Division, Second Department affirmed the Supreme Court's denial of the Reinholds' motion to vacate a March 23, 2022 order that granted JPMorgan Chase leave to enter a default judgment in a mortgage foreclosure. The Reinholds had not answered the foreclosure complaint and did not oppose the plaintiff's motion for default; they later sought relief under CPLR 5015(a) claiming law-office failure and that prior counsel had misled them. The court found their submissions inadequate to show a reasonable excuse for the defaults and therefore properly denied vacatur without reaching whether they had meritorious defenses.

The Appellate Division reversed a Nassau County Supreme Court order and granted the plaintiff leave to enter a default judgment on liability in a slip-and-fall personal injury case. The defendant failed to timely answer the complaint; when he served a late answer the plaintiff rejected it and moved for default judgment. The trial court had compelled the plaintiff to accept the late answer, but the appellate court found the defendant did not show a reasonable excuse for the delay (his counsel had no personal knowledge and the insurer’s affidavit was inadequate) and thus the trial court abused its discretion.

The Appellate Division affirmed the Supreme Court’s grant of summary judgment to the Suffolk County Comptroller in an action converted from a CPLR article 78 proceeding. The court held that Suffolk County may assess hotel and motel occupancy taxes under chapter 523, article II of the Suffolk County Code on the plaintiff’s Fire Island rental property for stays of under 30 consecutive days. The court reasoned that the state enabling statute grants broad authority to impose an occupancy tax and that the statutory and local definitions of “hotel or motel” are sufficiently broad to include the plaintiff’s short-term rentals.

The Appellate Division, Second Department affirmed the trial court's March 7, 2022 order granting defendant Dr. Cassandra B. Simmons summary judgment and dismissing the medical malpractice and lack-of-informed-consent claims against her. The court concluded Simmons met her initial burden by submitting expert affirmation, records, and depositions showing no departure from the standard of care and that she disclosed risks, benefits, and alternatives. The plaintiff's opposing expert was deemed conclusory, speculative, and failed to address Simmons's expert's specific assertions, so no triable issue of fact was shown.

The Appellate Division affirmed a jury verdict and judgment awarding Lueray Dowdy damages for injuries from a slip-and-fall at the Brooklyn Hospital Center cafeteria. The jury found the hospital 60% at fault and the plaintiff 40% at fault, and awarded substantial sums for past and future pain and suffering and future medical expenses. The court rejected the hospital's posttrial challenges to the liability finding, fault apportionment, damages awards, and request for a collateral source hearing, but it modified the judgment to delete a provision directing payment of an attorney fee directly from the defendant to the plaintiff's counsel.

The Appellate Division, Second Department affirmed the Supreme Court's order denying the defendants' motion to vacate a May 25, 2023 judgment and an August 22, 2022 stipulation of settlement in favor of Diesel Funding, LLC. The dispute arose from a receivables-purchase agreement where the lender purchased future receivables for $850,000 and could debit daily sales until receiving $1,274,150; parties later agreed to a settlement that allowed the plaintiff to enter judgment on default. The court concluded the transaction was not a usurious loan because repayment was not absolutely fixed and the agreement included daily-percentage payments, reconciliation procedures, and no finite term or bankruptcy-triggered default.

The Appellate Division reversed two Supreme Court orders that had granted Deutsche Bank summary judgment and an order of reference in a mortgage foreclosure against Andrew Benson. The bank submitted affidavits about mailing required 90-day RPAPL 1304 notices; a later affidavit said the servicer mailed the notices in-house, but an earlier affidavit had stated a third-party vendor did the mailings. The court found the contradiction created a triable issue about strict compliance with RPAPL 1304 and that the plaintiff’s counsel’s reply did not cure the discrepancy, so summary judgment was improper.

The Appellate Division, Second Department affirmed the Supreme Court's order granting the City of New York's motion for summary judgment dismissing the plaintiff's personal-injury claim. The plaintiff said she tripped in a pothole in a crosswalk; the City showed it had no prior written notice of the specific defect under the City's Pothole Law. The court found the Big Apple map entries did not put the City on notice of a defect at the exact location of the fall, and the plaintiff did not raise a triable issue that the City created the defect or that an exception applied.

The Appellate Division affirmed a Supreme Court order denying Brooklyn 7 Realty, Inc.'s late renewal motion to reopen and vacate a 2019 foreclosure judgment. Brooklyn 7 sought leave in 2023 to renew its opposition to confirmation of a referee's report, to vacate the foreclosure and dismiss the complaint as time-barred, or to amend its answer to assert a statute-of-limitations defense. The court held the renewal motion was untimely because it was made long after the judgment was entered and after the deadline to appeal had passed, so the lower court properly denied the motion without reaching the parties' other arguments.

The Appellate Division, Second Department reversed a Supreme Court order that had granted summary judgment dismissing a negligence complaint against defendant Kathleen P. Wallace. The plaintiff alleged injuries from a facial treatment Wallace performed while employed by David's New Beginnings, LLC. The appellate court held that Wallace was not entitled to dismissal simply because the employer might be vicariously liable; an employee can be personally liable for torts even if the employer is also liable. Because Wallace did not meet her initial summary judgment burden, the court denied her motion.

The Appellate Division affirmed a judgment dismissing the plaintiffs' consolidated personal-injury claims against defendant Montgomery Realty Associates. After a liability trial, the jury found for Montgomery; the plaintiffs moved to set aside that verdict and for judgment as a matter of law, but the trial court denied the motion. The appellate court held there was sufficient evidence to support the jury verdict because the fire resulted from the contractor's means and methods (use of a torch) rather than a defective condition of the building, so the landlord was not liable as a matter of law under the general rule for independent contractors and applicable exceptions did not apply.

The Appellate Division, Second Department reversed a trial court order and granted summary judgment to defendants Dr. Steven Athanail and Lutheran Medical Center in a medical malpractice suit. The plaintiff alleged the defendants failed to timely diagnose and treat a colonic perforation after a May 2016 hospital admission, but the defendants produced expert proof showing no departure from the standard of care. The plaintiff's opposing expert offered only conclusory and speculative assertions and failed to confront the defendants' experts with specific, record-supported reasoning, so no triable issue of fact existed.

The Appellate Division reviewed plaintiffs’ appeals from two Supreme Court orders in a dispute over whether plaintiffs (children from the decedent’s first marriage) are entitled to the decedent’s 50% interest in unimproved Martha’s Vineyard property. The court held that the trial court should not have dismissed the complaint on its own motion, but it affirmed the denial of the plaintiffs’ request for a preliminary injunction because the plaintiffs failed to show irreparable harm. The appeal of the denial of reargument was dismissed as not appealable. The case is remanded for further proceedings on the complaint.

The Appellate Division affirmed the Supreme Court's January 22, 2024 order in a mortgage foreclosure action brought by Bank of America against Muhammad and Zubaida Sarwar. The trial court granted the bank summary judgment on the complaint as to the Sarwars, struck two affirmative defenses/counterclaims alleging a fraud/conspiracy and that bank employees facilitated illegal activity, and ordered reference. The appellate court agreed that Muhammad was precluded from testifying because he failed to complete his deposition as directed, declined to consider his affidavit, and found the defendants failed to raise a triable issue that the named bank employees had actual or apparent authority to bind the bank. Costs were awarded to the bank.