Failure to file the affidavit of service not jurisdictional

Buist v Bromley Co., LLC, 2017 NY Slip Op 04417 (2d Dept. 2017)

” The failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion'” (Matter of Meighan v Ponte, 144 AD3d 917, 918, quoting Khan v Hernandez, 122 AD3d 802, 803; see CPLR 2001, 2004). Here, there is no reason to believe that the defendants did not properly and timely serve Minard in compliance with the so-ordered stipulation dated December 8, 2014. Moreover, the defendants promptly requested permission to correct the irregularity in filing the affidavit of service after learning that it was filed in the wrong office, and there was no allegation or indication of prejudice to the plaintiff as a result of the requested correction. Under these circumstances, the Supreme Court improvidently exercised its discretion in denying the defendants’ application for an extension of time to file the affidavit of service in the Clerk’s office, and thereupon denying their motion for summary judgment on the ground that they failed to file proof of service in that office

The reasons some Brooklyn Judges will come up with to avoid deciding a motion

The plight of Chimps

Matter of Nonhuman Rights Project, Inc. v Lavery,  2017 NY Slip Op 04574 (1st Dept. 2017)

(1) “The gravamen of petitioner’s argument that chimpanzees are entitled to habeas relief is that the human-like characteristics of chimpanzees render them “persons” for purposes of CPLR article 70. This position is without legal support or legal precedent.”

(2) “The asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions. Petitioner does not suggest that any chimpanzee charged with a crime in New York could be deemed fit to proceed, i.e., to have the “capacity to understand the proceedings against him or to assist in his own defense”

(3) “While petitioner’s avowed mission is certainly laudable, the according of any fundamental legal rights to animals, including entitlement to habeas relief, is an issue better suited to the legislative process”

Wrong subdivision in traffic ticket still actionable

People v Husain (Shanzeb), 2017 NY Slip Op 27195 (App. Term 2d Dept. 2017)

“It has been held that where an information charges a violation of the wrong section of a statute, this may be disregarded as surplusage if the information fully advises the defendant of the acts relied upon to constitute the alleged violation, and if the acts charged are clearly referable to the offense of which the defendant has been convicted. . . . All that is necessary is that the information shall state the crime charged with such accuracy that the defendant may know the [*2]offense which it is claimed he has committed” (People v Love, 306 NY 18, 23 [1953]). Further, as a general rule, “misnomers” in designating the offense charged are not jurisdictional and may be corrected by amendment”

Every client will tell you that the “traffic ticket has an error” and it must be dismissed.  Tell the client: not necessarily.

Party does not have a basis to use CPLR 321(c) as a sword against now unrepresented party

Lion Button Co. v Jachs NY, LLC, 2017 NY Slip Op 50773(U)(App. Term 2d Dept. 2017)

(1) ” Under the terms of the stipulation, defendant agreed to pay plaintiff $1,100 by a date certain in settlement of the action, failing which plaintiff would give defendant written notice of its default, whereupon defendant would have seven days to cure its default. In the event that defendant failed to cure its default, plaintiff would be entitled to enter judgment against defendant for the full amount demanded in the complaint, plus interest, costs and disbursements. Four days before the stipulated payment due date, plaintiff moved to vacate the stipulation of settlement and to restore the matter to the trial calendar, on the ground that defendant, which is a limited liability company, had not been represented by counsel when it had entered into the stipulation of settlement.”

(2) “We do not consider plaintiff’s argument, made for the first time on appeal, that, under CPLR 321 (c), the action should automatically have been stayed following the death of defendant’s attorney, and that the stipulation the parties entered into was therefore a nullity, since the purpose of CPLR 321 (c) is to protect a litigant who has been deprived of counsel through no fault of his own (see Moray v Koven & Krause, Esqs., 15 NY3d 384, 389 [2010]), and not to be used, after the fact, as a sword by a litigant which was not even potentially prejudiced by its adversary’s lack of counsel.

Sometimes, we see arguments made regarding CPLR 321(c) when there is a wholesale change in counsel.  The Court’s viewpoint is that CPLR 321(c) is not to be used as a sword against an unrepresented party.

DMV license suspensions upheld – Deference

Matter of Acevedo v New York State Dept. of Motor Vehs., 2017 NY Slip Op 03690 (2017)

Upon a conviction for a violation of Section 1192 of the VTL, the statute requires certain periods of revocation. The periods of revocation increase based upon the amount of prior Convictions.  But, the statute is self explanatory and sets forth a Legislative prerogative as to the nature and extend of license revocation for a violation of VTL 1192.

The Executive branch, upon application of VTL 510(1), promulgated regulations that at first blush, second blush and third blush conflict with the VTL with regard to license revocations,

According to the Court: “The Appellate Division panels determined that DMV did not exceed its regulatory authority because “it did not act on its own ideas of public policy, but rather implemented the Legislature’s policies of promoting highway safety” (Acevedo, 132 AD3d at 119), and because the Regulations represented “an appropriate discretionary determination by the Commissioner” (Carney, 133 AD3d at 1152-1153). The court also held that the Regulations do not conflict with the Vehicle and Traffic Law, and that they were not impermissibly applied retroactively to petitioners’ applications.”

But at the end of the day, the Court did held that the broad powers of the DMV allow regulations to be drafted that conflict with the VTL.

The analogy here is that the Court of Appeals has held that DFS opinion letters, even if they conflict with the Ins. Law or Ins. Dept. regulations, will be given complete deference.  Acevedo could stand for the proposition that Ins. Dept regulations that conflict with the Ins. Law could still be enforceable.  It is interesting.

MVAIC issues

No timely notice of claim or leave to file a late notice of  claim

SML Acupuncture P.C. v MVAIC, 2017 NY Slip Op 50539(U)(App. Term 1st Dept. 2017)

(1) “MVAIC’s submissions in support of its motion for summary judgment established, prima facie, that there had been no timely filing of a notice of claim and that leave had not been sought to file a late notice of claim (see Insurance Law § 5208 [a],[c]), and, thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from defendant had not been satisfied”

(2)  “In opposition, plaintiff failed to raise any triable issue. MVAIC’s failure to timely deny the claim does not preclude it from asserting a lack of coverage defense”

Did not notify the police within 24-hours

Karina K. Acupuncture PC v MVAIC, 2017 NY Slip Op 50537(U)(App. Term 1st Dept. 2017)

Defendant MVAIC demonstrated entitlement to summary judgment dismissing this action for first-party no-fault benefits, having established that plaintiff’s assignor failed to comply with the statutory requirement that notice of the accident be given “to a police, peace, or judicial officer” within 24 hours of the occurrence (Insurance Law § 5208[a][2][A]). Defendant’s submissions include the notice of intent to make claim, which does not indicate when, if at any point, the underlying accident was reported to the police, and affidavits demonstrating that repeated requests were made to the assignor for proof that the accident was reported and that the assignor never provided such proof

Omega Diagnostic Imaging, PC v MVAIC, 2017 NY Slip Op 50568(U)(App. Term 1st Dept. 2017)

“The documentary evidence adduced at trial established that the assignor was not a covered person entitled to no-fault benefits from MVAIC because he failed to report the accident “to a police, peace or judicial officer” within 24 hours of the occurrence (Insurance Law § 5208[a][2][A]; Canty v Motor Veh. Acc. Indem. Corp., 95 AD2d 509, 511 [1983]; Pomona Med. Diagnostics, P.C. v MVAIC, 34 Misc 3d 131[A], 2011 NY Slip Op 52347[U][App Term, 1st Dept 2011]). Indeed, twelve days after the accident, the assignor responded to a question on the notice of intention to make claim form asking “when the accident was reported to the police,” by stating “no police w[ere] called” (cf. Matter of Country Wide Ins. Co. [Russo], 201 AD2d 368, 370 [1994]). Plaintiff failed to rebut this evidence by showing that the accident was, in fact, reported to the police within 24 hours or that it “was not reasonably possible to make such a report or that it was made as soon as was reasonably possible” (see Insurance Law § 5202[a][2][B]”

These are just not easy cases when the injured person seemingly goes out of his way or her way to make life miserable for their PI attorney.

45-day rule denial not sustianed

Utopia Equip. Inc. v Chubb Indem. Ins. Co., 2017 NY Slip Op 50540(U)(App. Term 1st Dept. 2017)

“The affidavit of defendant’s claims adjuster failed to describe defendant’s “regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims” (Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]), and was inadequate to demonstrate that plaintiff’s bills were not timely received within the 45—day period (see SMB Med. P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50719[U] [App Term, 1st Dept 2015])”

A day at the beach.

Starkman v City of Long Beach, 2017 NY Slip Op 02077 (2d Dept. 2017)

This one is scary.  You are sitting at a beach and you get run over and end up with two cervical fusion surgeries.  Here are the facts:

(1)

“On May 26, 2010, the defendant Paul DeMarco, a City of Long Beach Police Officer, was patrolling the beach in a patrol car when he struck and ran over the plaintiff, who was lying on the beach in a lounge chair. The plaintiff was taken to the hospital where imaging tests revealed that he had sustained three broken ribs and fractures of the transverse processes of the C6, C7, and T1 vertebrae. The imaging also revealed what was described as “degenerative changes” of the spine including herniations of the cervical discs at the C5-C6 and C6-C7 levels along with osteophysis, [*2]disc space narrowing, and narrowing of the spinal canal.

The plaintiff subsequently was examined by an orthopedic surgeon and 17 months after the accident he underwent a multi-level cervical fusion surgery to treat the disc herniations that were believed to be causing continued neurological pain. When the bone failed to properly fuse, a second surgery was performed 15 months later which successfully fused the vertebrae. The plaintiff, however, continued to experience neck and back pain.”

(2)

“The jury returned a verdict finding that the plaintiff had sustained damages consisting of $100,000 for past medical expenses, $200,000 for past loss of earnings, $500,000 for past pain and suffering, $200,000 for future medical expenses over 18 years, $450,000 for future loss of earnings over 14 years, and $750,000 for future pain and suffering over 35 years.”

(3)

“a written stipulation consenting to increase the verdict as to damages for past pain and suffering from the principal sum of $500,000 to the principal sum of $750,000, and for future pain and suffering from the principal sum of $750,000 to the principal sum of $1,500,000, and to the entry of an appropriate amended judgment accordingly; in the event that the defendants so stipulate, then the judgment, as so increased and amended, is affirmed, without costs or disbursements.”

Conclusion

I will never look at a day out on the beach again.

 

Employee of Defendant is allowed to remain in court room

Perry v Kone, Inc., 2017 NY Slip Op 01395

“However, a new trial is required due to the Supreme Court’s error in excluding a witness from the courtroom and in prohibiting the witness from communicating with defense counsel during the trial as to any matter. The witness at issue was an employee of the defendant and the representative it had designated to assist in the defense of this action. Under these circumstances, and in the absence of extenuating circumstances, the witness was entitled to remain in the courtroom throughout the trial (see Yellow Book of N.Y., L.P. v Cataldo, 81 AD3d 638, 639; American Print. Converters v JES Label & Tape, 103 AD2d 787; Carlisle v County of Nassau, 64 AD2d 15, 18-19). Further, the court’s decision to prohibit defense counsel from communicating at all with the witness, who was knowledgable about the technical aspects of elevator mechanics and maintenance that were the subject of the testimony of the plaintiff’s expert, compromised the defendant’s ability to assist in and present its defense (see People v Santana, 80 NY2d 92, 99; Carlisle v County of Nassau, 64 AD2d at 20). Accordingly, a new trial should have been granted in the interest of justice (see CPLR [*3]4404[a]).”

Must the claim rep be relegated to the benches in Civil Kings?  I have seen this line of cases previously and it makes sense.

The wrong way to evict a tenant

People v Grohoske, 2017 NY Slip Op 00617 (1st Dept. 2017)

I get it: the rent is too damn high.  That does not mean you can engage in self-help.  The opinion started with the line: “It also provides a lesson to those who believe that the summary proceedings available under the Real Property Actions and Proceedings Law to lawfully evict tenants are not summary enough.”

“[C]alvin replied quickly, advising Lawson that his failure to pay the rent resulted in a termination of the agreement. He advised Lawson to be out of the apartment by the end of October and said that he was going to submit a wage garnishment for Lawson’s unpaid rent. Calvin said he arranged with another person to rent the room as of the end of October.

According to Calvin, to clean and prepare the apartment for the new tenant’s occupancy at the end of October, Calvin and his mother (both then in Texas) decided to come to New York. On October 29, 2013, the two of them flew from Texas to New York. Upon arrival, they purchased a new door lock at a Home Depot for the room that he had rented to Lawson, with the hope of changing the lock while Lawson was out of the apartment.

At about 10:30 p.m. that day, Calvin and his mother, defendant Diann Grohoske (Diann), arrived at the apartment. Lawson testified that he was in bed, naked, with the lights off, watching Downton Abbey on his computer, when Calvin charged into the room, straddled Lawson on the bed and began punching him in the face; there was also testimony that Calvin “kneed” Lawson in the face. Lawson testified that Diann walked into the room carrying a gun; Diann denied having a gun at any time. According to Lawson, Diann instructed Lawson to get dressed and then to get down on the floor on his knees where Calvin applied duct tape to his wrists so that they would be bound behind his back like handcuffs. Duct tape was also placed around his chest so that his arms were held to his side. Calvin secured Lawson’s cat Pookie in a cardboard box, securing it with duct tape. Lawson said that they also took his cell phone and wallet, which assertion Calvin and Diann denied. Lawson protested to these events by stating to Calvin and Diann that he had “squatter’s rights” to the room, and that Calvin had to proceed to landlord-tenant court to obtain an order of eviction before throwing him out. To this, Lawson asserts that Calvin responded, “That’s not how we do it in Texas.”

Calvin and Diann led Lawson downstairs. He was placed in the front passenger seat of Calvin’s rental car, with Diann sitting behind him and Calvin in the driver’s seat. Calvin put the duct-taped box containing the cat into the trunk of the car. According to Calvin, he had offered to drop Lawson at a shelter, but Lawson refused because a shelter would not be able to accommodate both him and Pookie the cat. According to Lawson, they proceeded onto the New Jersey Turnpike with Calvin driving and Diann sitting behind him with a gun to the back of his head. At about 12:50 a.m. the car left the New Jersey Turnpike and traveled across the Betsy Ross Bridge into Philadelphia. They eventually arrived at a deserted area in Philadelphia, where Calvin pulled over, and together Calvin and Diann forced Lawson out of the car and threw the cat box out on the street from the trunk. According to Lawson, he was shoved against a fence, and Diann cut some of the duct tape off him and told him, “[I]f you ever come back you are dead.” Calvin and his mother then drove away.

Lawson was able to free himself of the remaining duct tape and began to open the cat box. Apparently Pookie the cat was frightened by the experience of being boxed in an automobile trunk, because as Lawson tried to open the box, the cat jumped out and ran off, never to be seen again.

Ultimately, Lawson located a police station, and reported the unusual events. It was then about 1:20 a.m. The right side of Lawson’s face was red and the right front of his glasses were broken and the right lens of his glasses had popped out. A residue of duct tape was found in the area where he had been dropped off.”

Both landlord and mom were convicted of kidnapping and robbery and were sentenced to very significant prison sentences.

The lesson – Do not rent property in New York City and expect to be able to evict a non-paying tenant for a lengthy period of time.