Brooklyn Heights

Latest decisions from the Appellate Division, Second Department

July 10, 2024 Robert Abruzzese, Courthouse Editor
The Appellate Division, Second Department, addressed issues of compliance with discovery orders, the validity of appeal waivers, the timeliness of motions, the proper application of the relation-back doctrine, the handling of judicial diversion program terminations, and the imposition of concurrent versus consecutive sentences. Eagle photo by Rob Abruzzese
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Appeals Court overturns ruling striking plaintiff’s complaint in personal injury case

The Appellate Division, Second Judicial Department, has reversed a Kings County Supreme Court decision that had dismissed Michael White’s personal injury lawsuit against Bical Development, Inc., Kristal Automall and Redcom Design & Construction, LLC.

White’s lawsuit, filed in December 2017, sought damages for injuries he allegedly sustained from a fall off a ladder at Bical’s property. The lower court had struck White’s complaint after the defendants argued he failed to comply with a discovery order requiring the production of certain digital photographs and information about different social security numbers. 

However, the Appellate Division found that White had adequately complied with the discovery order and that the defendants did not prove he willfully failed to comply. As a result, the Appellate Division ruled that the complaint should not have been dismissed, effectively reinstating White’s lawsuit and allowing it to proceed in court.

– White v. Bical Development, Inc. –

Appeals Court affirms denial of motion to dismiss in Wells Fargo foreclosure case

The Appellate Division, Second Department, has upheld a Kings County Supreme Court decision denying Fitzpatrick Stewart’s motion to dismiss a foreclosure complaint brought by Wells Fargo Bank, NA.

In an action initiated to foreclose a mortgage on property in Brooklyn, Stewart, the defendant, failed to answer the complaint but engaged in settlement conferences for three years. During these conferences, a loan modification was offered, and Stewart made several payments. However, the modification was never finalized, and the special referee overseeing the settlement found that Wells Fargo had negotiated in bad faith, warranting sanctions.

In March 2022, Stewart moved to dismiss the complaint on several grounds, including the plaintiff’s alleged failure to comply with RPAPL 1304 and seeking to vacate his default in answering the complaint. Stewart argued that the settlement conferences and the plaintiff’s bad-faith negotiations excused his default.

The Supreme Court, Kings County, denied Stewart’s motion, leading to his appeal. The Appellate Division found that Stewart’s participation in settlement conferences and the plaintiff’s bad-faith negotiations did not provide a reasonable excuse for his default. The court noted that Stewart failed to explain how these circumstances prevented him from answering the complaint before engaging in settlement conferences or in the nine years since the conferences concluded.

– Wells Fargo Bank NA v. Stewart –

Appeals Court upholds denial of motion to preclude evidence in Transit Authority case

The Appellate Division, Second Department, has upheld a Kings County Supreme Court decision denying a motion by the New York City Transit Authority, Metropolitan Transportation Authority, MTA Bus Company and Clement Beckles to preclude evidence in a personal injury lawsuit filed by Krystal S. Samaroo.

Samaroo filed the lawsuit seeking damages for injuries allegedly sustained in a motor vehicle accident on March 5, 2016, involving a commuter bus operated by Beckles. The defendants moved to preclude Samaroo from offering evidence on damages or, alternatively, to strike the note of issue and compel compliance with outstanding discovery demands related to a subsequent accident Samaroo was involved in on Dec. 18, 2018.

The Supreme Court, Kings County, denied the motion, and the defendants appealed. The Appellate Division affirmed the lower court’s decision, stating that the defendants failed to demonstrate that Samaroo willfully and contumaciously refused to comply with discovery demands. The appellate court found that Samaroo had provided necessary HIPAA authorizations and that the defendants’ dissatisfaction with the response did not justify the drastic remedy of preclusion.

Additionally, the court held that the defendants’ motion to vacate the note of issue was untimely and that they did not provide evidence of unusual or unanticipated circumstances since its filing that would warrant such action. As a result, the Appellate Division upheld the decision of the Kings County Supreme Court, allowing Samaroo to present evidence on the issue of damages at trial.

– Samaroo v. New York City Transit Authority –

Appeals Court reverses decision adding Volmar Construction as defendant

The Appellate Division, Second Department, has reversed a Kings County Supreme Court decision that allowed Glenson Rowe to amend his complaint to add Volmar Construction Inc. as a defendant in his personal injury lawsuit.

Rowe filed the lawsuit in October 2016 against 4601 Second Ave, LLC, seeking damages for injuries he allegedly sustained from a fall off scaffolding on Nov. 23, 2014. The lawsuit cited violations of Labor Law §§ 200, 240(1), and 241(6). In April 2019, Rowe moved to amend his complaint to include Volmar Construction, Inc., the general contractor and lessee of part of the premises, as a defendant.

The Supreme Court, Kings County, granted Rowe’s motion, but Volmar appealed. The Appellate Division found that Rowe’s motion was made outside the three-year statutory limitations period and that the “relation-back” doctrine did not apply. The court ruled that Rowe failed to demonstrate that 4601 Second Ave and Volmar Construction shared the same jural relationship, meaning they did not have identical defenses available under the Labor Law. As a result, the appellate court determined that the claims against Volmar could not relate back to the initial filing date against 4601 Second Ave.

The Appellate Division’s decision reverses the lower court’s ruling, denying Rowe’s motion to amend the complaint to add Volmar Construction, Inc. as a defendant.

– Rowe v. 4601 Second Ave, LLC –

Appeals Court rules sentences must run concurrently due to lack of separate intent

The Appellate Division, Second Department, has modified a Kings County Supreme Court decision regarding J. McKinney, convicted of attempted assault in the second degree and attempted criminal possession of a weapon in the third degree.

The defendant was sentenced to consecutive indeterminate terms of one to three years for each conviction following his guilty plea. On appeal, they argued that the sentences should run concurrently. The appellate court agreed, noting that the facts did not support consecutive sentences as there was no evidence that the defendant attempted to possess a loaded firearm before forming the intent to commit a crime with it.

The Appellate Division modified the sentence, ruling that the terms should run concurrently. Additionally, the court vacated the imposition of a mandatory surcharge and fees based on the people’s consent and in the interest of justice. This decision upholds part of the Kings County Supreme Court’s judgment but adjusts the sentencing to reflect concurrent terms.

– People v. J. McKinney –

Appeals Court upholds waiver of appeal and concurrent sentencing

The Appellate Division, Second Department, has upheld three judgments from the Kings County Supreme Court convicting D. Guin of multiple charges, including burglary and bail jumping, and affirming the sentences imposed.

The defendant was convicted of burglary in the third degree under Superior Court Information No. 884/20, burglary in the second degree under Superior Court Information No. 980/20, and bail jumping in the second degree under Indictment No. 2201/20, following his guilty pleas. The Appellate Division ruled that Guin had knowingly, voluntarily and intelligently waived his right to appeal, which precluded appellate review of his contention that the Supreme Court had improperly terminated his participation in a judicial diversion program.

Despite Guin’s waiver of the right to appeal, the court noted that his contention regarding the improper delegation of authority during sentencing was unpreserved for appellate review. The Appellate Division also stated that the Supreme Court had properly considered various recommendations and statements, as well as Guin’s criminal history when terminating his participation in the judicial diversion program.

The appellate court also addressed Guin’s argument on the excessiveness of the sentence imposed for the burglary in the second-degree conviction. The Supreme Court had excluded this challenge from Guin’s waiver of the right to appeal. The Appellate Division concluded that the sentence was not excessive.

– People v. D. Guinv –


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