Michael F. Dillon

This case involved a residential mortgage foreclosure action brought by Wilmington Savings Fund Society against defendants Joanne Matamoro and Andreas Jennings. The defendants moved under CPLR 3211(a) to dismiss the complaint, arguing that the plaintiff lacked standing because it was not the holder of the note and the chain of assignments was defective. The Supreme Court denied the motion, but the Appellate Division, Second Department, reversed and granted dismissal. The court reasoned that the plaintiff's certificate of merit and supporting documents failed to establish standing under UCC rules, as there was no proof the plaintiff possessed an indorsed note or that MERS had authority to assign it, and the plaintiff's opposition did not raise a triable issue of fact. The decision emphasized that CPLR 3012-b requires plaintiffs to provide all documentation supporting standing at commencement.

propertyprocedure

This case involved a mortgage foreclosure action brought by Wilmington Savings Fund Society against homeowners Joanne Matamoro and Andreas Jennings, alleging default on a note originally issued by Fieldstone Mortgage Company and secured by a mortgage later assigned through intermediaries to the plaintiff. The defendants moved under CPLR 3211(a) to dismiss the complaint, primarily arguing that the plaintiff lacked standing because it was not the holder of the note at commencement and the chain of assignments was defective, as MERS had no authority to assign the note. The Appellate Division reversed the Supreme Court's denial of the motion, holding that the plaintiff's own documents attached to the certificate of merit under CPLR 3012-b demonstrated a lack of standing, since there was no indorsement on the note payable to Fieldstone and no evidence that the plaintiff or its predecessors were holders within the meaning of the UCC. The court further reasoned that the plaintiff could not rely on post-commencement evidence or an opportunity to cure, as the statute required all supporting documentation of creditor status at the time of filing.

propertyprocedure

The case involved a construction worker who claimed injuries from a malfunctioning hoist elevator and sued the site owner, construction managers, and contractor for negligence and violations of Labor Law sections 200, 240(1), and 241(6). After his workers' compensation claim was denied by an ALJ—who found the alleged accident did not occur—and that denial was affirmed by the Workers' Compensation Board, the defendants sought and obtained leave to amend their answer to assert collateral estoppel and then won summary judgment dismissing the complaint. The Appellate Division affirmed, holding that the administrative determination that no accident happened was identical to the core issue in the personal injury action and that the plaintiff had received a full and fair opportunity to litigate it through testimony, representation by counsel, cross-examination, and argument. The court concluded that these facts barred relitigation of the claim under collateral estoppel principles.

torts & liabilityprocedure

The case concerned a 2001 Civil Court judgment awarding B.Z. Chiropractic no-fault benefits from Allstate Insurance, which did not specify a postjudgment interest rate, and a subsequent effort by B.Z. to obtain a declaration that interest accrued at 2% per month compounded under Insurance Law provisions. Allstate had paid only the principal plus standard interest after an Appellate Term order noted that the CPLR 5004 rate applied instead, leading B.Z. to commence a hybrid turnover proceeding and declaratory action in Supreme Court. The Appellate Division addressed whether dicta in the Appellate Term decision had preclusive effect under res judicata, collateral estoppel, or law of the case, holding that such dicta carries no binding force and that a final judgment cannot be collaterally attacked in a later proceeding to alter or declare its interest terms. The court therefore declined to issue the requested declaration in favor of the 2% rate.

procedurebusiness & regulatory

This case was a residential mortgage foreclosure action brought by Wells Fargo against defendant Seema Kurian after she defaulted on her loan. The core dispute on appeal concerned whether the automatic stay under CPLR 321(c) was violated when the plaintiff's summary judgment motion was filed after the defendant's original attorney was suspended from practice but before any notice to appoint new counsel was served; new counsel for the defendant appeared shortly afterward and opposed the motion on the merits. The Appellate Division affirmed the denial of the defendant's later motion to vacate the foreclosure judgment, holding that the defendant had waived the protections of the statutory stay by retaining and appearing through new counsel while the stay was in effect and by failing to raise the stay issue in her opposition papers. The court distinguished prior precedent where no new counsel had appeared and the stay had not been waived.

procedureproperty

This case involved a mortgage foreclosure action brought by Wells Fargo against Seema Kurian after she defaulted on her loan. The defendant's original attorney was suspended from practice, triggering an automatic stay under CPLR 321(c), but the plaintiff moved for summary judgment without first serving notice to appoint new counsel. The defendant later retained new counsel who opposed the motion and participated in the proceedings without raising the stay issue at the time. The court affirmed the denial of the defendant's motion to vacate the foreclosure judgment, holding that the defendant had waived the protections of the statutory stay through her affirmative conduct in hiring and using new counsel. The core reasoning focused on principles of waiver, distinguishing this case from prior precedent where no such participation occurred.

propertyprocedure

The case involved a lawsuit by the family of a woman killed and her son injured in a 2007 attack by her ex-boyfriend inside a New York City Housing Authority building, alleging negligence in failing to repair a broken front door lock that allowed the attacker entry. The trial court denied NYCHA's motion for summary judgment, and the Appellate Division affirmed that denial. The court held that a targeted attack does not automatically constitute an independent intervening cause relieving the property owner of liability; instead, the issue of whether the broken lock proximately contributed to the incident by making criminal activity foreseeable presents a triable question of fact for a jury. The decision rejected a categorical distinction between targeted and random attacks for purposes of proximate cause analysis in premises security cases.

torts & liabilityproperty

In this divorce action, the husband sued for divorce on no-fault grounds and moved for summary judgment to dismiss the wife's counterclaim alleging adultery under Domestic Relations Law § 170(4), which was tied to financial terms in a post-nuptial agreement. The Appellate Division reversed the Supreme Court's denial of the motion and granted summary judgment dismissing the counterclaim. The court reasoned that the husband's and the alleged paramour's affidavits denying any sexual relationship were sufficient to shift the burden, and the wife's opposing affidavit failed to raise a triable issue of fact by showing both inclination and opportunity for adultery. It further held that the wife's testimony was admissible under CPLR 4502(a) to rebut the denial but did not meet the evidentiary threshold, and discovery on grounds is generally not permitted absent egregious fault.

family lawprocedure

This case arose from a personal injury action stemming from a rear-end car collision, where the defendants moved to disqualify the plaintiffs' counsel due to an alleged conflict of interest in representing both the driver and passengers. The trial court orally granted the disqualification, struck the case from the calendar, and imposed a stay, but declined to sign either a transcript or a formal order that could be appealed. The plaintiffs then moved to compel the court to issue an appealable order under CPLR 2219 and 22 NYCRR 202.48, which the Supreme Court denied. The Appellate Division affirmed the denial, holding that while CPLR 2219 requires courts to issue signed orders implementing decisions, the proper remedy for a court's refusal to do so is a mandamus proceeding under CPLR article 78, which was untimely here, and that no appealable paper had been created.

proceduretorts & liability

This case involved a mortgage foreclosure dispute where the borrower moved to dismiss a 2015 action as time-barred under CPLR 213(4) after a prior 2009 foreclosure action had accelerated the full debt and was later discontinued in 2013. The trial court denied the motion, holding that the discontinuance automatically revoked the acceleration and reset the limitations period. The Appellate Division reversed, ruling that the second action was untimely because the mere discontinuance of the first action, without additional evidence of de-acceleration such as acceptance of installment payments or withdrawal of the demand for full payment, did not revoke the 2009 acceleration. The court reasoned that established principles governing debt acceleration and revocation do not require inquiry into the holder's subjective intent, and the six-year statute began to run upon the initial election to accelerate.

propertyprocedure

The case involved a plaintiff who sued a medical center for injuries sustained after donating blood, alleging negligence in screening and monitoring procedures. The defendant moved to dismiss the complaint for the plaintiff's failure to file a certificate of merit as required by CPLR 3012-a for medical malpractice actions. The court determined that the claims sounded in medical malpractice rather than ordinary negligence because they involved questions of medical standards and expertise. However, the court decided that the appropriate remedy was to grant the plaintiff an extension of time to file the certificate rather than dismiss the action, as the failure appeared to be in good faith and the statute's purpose is to deter frivolous suits without mandating dismissal for noncompliance.

proceduretorts & liabilityhealthcare

This case involved a medical malpractice action brought by Margot Sokoloff on behalf of her deceased husband against several healthcare providers. The decedent had died before the 2013 action was filed, rendering it a nullity, and after the court dismissed that action, the plaintiff commenced a second identical action in 2015 following her appointment as estate administrator. The lower court dismissed the 2015 action, but the Appellate Division reversed, holding that CPLR 205(a) permitted refiling within six months because the dismissal of the first action was not based on neglect to prosecute, the erroneous naming of the decedent as plaintiff did not bar the extension, and the substitution motion did not constitute neglect. The court also found that CPLR 5019(a) could not be used to retroactively alter the dismissal order's basis.

proceduretorts & liability

The case involved property owners who lost their parcels through a county tax foreclosure proceeding after failing to pay real property taxes, followed by the county's sale of the properties to new owners. The plaintiffs sued under RPAPL article 15 to challenge the foreclosure judgment and sales as void due to alleged defects in the timing and method of serving and filing the foreclosure pleadings. The Supreme Court denied the plaintiffs' motion for summary judgment and dismissed the complaint. On appeal, the Appellate Division dismissed the appeal as untimely under CPLR 5513(a), holding that the 30-day period to appeal begins when any party serves the order with written notice of entry, as the statute's reference to service by "a party" is not limited to the prevailing party and applies to all parties in the action.

propertyproceduretaxes

The case involved a defendant who was observed jumping a subway turnstile, pushed a police officer down stairs while fleeing, and pleaded guilty to attempted assault in the second degree in exchange for a sentence of 1.5 to 3 years as a second felony offender. Assigned counsel filed an Anders brief seeking to withdraw from the appeal on the ground that there were no nonfrivolous issues, but the brief did not discuss the defendant's waiver of the right to appeal during the plea. The Appellate Division held that the omission did not render the brief deficient because the waiver issue was inconsequential on these facts. The court independently reviewed the record and affirmed the judgment, concluding that the plea was knowing, voluntary, and intelligent and that the sentence was the statutory minimum and thus not excessive.

criminal lawprocedure

This case concerned a homeowner's action under RPAPL 1501(4) to cancel and discharge a mortgage and note on the ground that the six-year statute of limitations had expired after the lender accelerated the debt in 2008 and later dismissed its foreclosure action without refiling. The lender moved to dismiss, contending that its 2014 letter de-accelerating the note and restoring installment payments was timely and valid. The Appellate Division ruled that a lender may revoke its prior election to accelerate absent substantial prejudice to the borrower, that no such prejudice existed where the borrower had occupied the property for years without payments, and that the trial court therefore erred in granting dismissal; the plaintiff's cross-motion for summary judgment was also denied.

propertyprocedure

The case was a shareholder derivative action brought in Supreme Court alleging corporate mismanagement, misappropriation of funds, breach of fiduciary duty, and related equitable claims. The Supreme Court erroneously transferred the action under CPLR 325(d) to Civil Court, which lacked subject matter jurisdiction over the claims; Civil Court tried the case and entered a $115,000 judgment. The Supreme Court later retransferred the action under CPLR 325(b) and entered its own judgment adopting the Civil Court findings. The Appellate Division held that retransfer was permissible but that the Civil Court judgment was void for lack of jurisdiction and could not be adopted or given effect by the Supreme Court, reversing the judgment and remitting for further proceedings.

procedure

The case involves Frank H. Banks, who was denied parole by the New York State Board of Parole after an interview on his third application. Following an Article 78 proceeding that ordered a de novo hearing, the Board conducted a new interview with updated records and again denied release, prompting the lower court to hold the Board's chairperson in civil contempt and annul the denial. The Appellate Division reversed, ruling that the Board had complied with the order by following Executive Law § 259-i procedures, which distinguish between a parole hearing and interview, and that the lower court lacked jurisdiction to annul the new determination absent a separate Article 78 challenge.

criminal lawprocedure

This case involved commercial tenants who, after receiving notices to cure alleged lease violations such as permit issues and fire hazards, sued their landlord seeking declaratory judgments that the leases remained in effect and that no violations existed, along with injunctive relief and damages. The leases included a clause waiving the tenants' right to bring declaratory judgment actions regarding lease provisions or notices, specifying that disputes should be resolved via summary proceedings. The court held that this waiver was enforceable, denied the tenants' request for a Yellowstone injunction, and granted the landlord summary judgment dismissing the complaint. The core reasoning was that the waiver resulted from arm's-length negotiations between sophisticated parties in a commercial context and did not violate public policy because the tenants retained other legal remedies.

business & regulatorypropertyprocedure

The case involved a plaintiff suing her chiropractor for alleged malpractice, claiming that forceful spinal adjustments on two dates caused a C5-C6 disc herniation requiring surgery. The defendant moved for summary judgment, supported by his own affidavit and affirmations from an orthopedic surgeon and radiologist stating that the treatments did not deviate from standards of care and that the disc damage was preexisting and degenerative rather than caused by the adjustments. The trial court denied the motion on the ground that the defendant's experts lacked a foundation in chiropractic care. The appellate court affirmed the denial but on different reasoning: it held that physicians from other specialties may opine on proximate cause within their own fields, the defendant's experts adequately addressed causation, but the defendant failed to make a prima facie showing of no deviation from the standard of care because his affidavit was conclusory and did not define the applicable standards; the plaintiff's radiologist raised a triable issue on causation.

healthcareproceduretorts & liability

This case involves a rear-end collision in Brooklyn where a garbage truck struck a stopped passenger van, injuring the plaintiff who was a seat-belted passenger in the van's last row. The plaintiff sued the van's owners and operator (Sunjet defendants) as well as the truck's owner and driver (D&D and Gutierrez), and moved for summary judgment on liability against the truck defendants. The trial court granted that motion, but the appellate court reversed, denying summary judgment because the truck defendants raised triable issues of fact regarding whether the collision was an unavoidable accident due to oil on the roadway and whether the van's operator contributed to the accident through its positioning. The court reasoned that while these factual disputes precluded full summary judgment on liability, the plaintiff's freedom from comparative fault was incontrovertible on the record as an innocent passenger, allowing for a limited order under CPLR 3212(g) to establish that fact for trial purposes.

torts & liabilityprocedure