Latest decisions from the Appellate Division, Second Department

August 2, 2024 Robert Abruzzese, Courthouse Editor

The latest decisions from the Appellate Division, Second Department, address issues including denial of motion to dismiss in a personal injury case, dismissal of negligent hiring and loss of consortium claims in a hospital case, dismissal of a slip-and-fall case, partial overruling in a slander of title case, dismissal of an indemnification claim, and suspension of an attorney for professional misconduct. Eagle photo by Rob Abruzzese

Appellate Division affirms denial of motion to dismiss in personal injury case

The Appellate Division, Second Judicial Department, upheld a Kings County Supreme Court decision, rejecting a motion to dismiss a personal injury complaint against El Potrero Sport Bar, Inc. and 4602-4626 Greenpoint, LLC. The appellate court affirmed that the plaintiff, Jhovanny Disla, must file a note of issue to avoid dismissal.

Disla allegedly sustained injuries on Dec. 27, 2017, at premises owned and operated by the defendants. He commenced legal action in February 2018, and discovery concluded by February 2020. In August 2021, the defendants served a 90-day notice to place the matter on the trial calendar. Disla neither responded nor requested an extension within the stipulated period.

The defendants moved to dismiss the case under CPLR 3216 for failure to prosecute. The Kings County Supreme Court judge granted the motion only to the extent of instructing Disla to file a note of issue by Jan. 17, 2023. The defendants appealed, seeking full dismissal.

The Appellate Division concurred with the lower court’s decision. The court noted that CPLR 3216 permits, but does not mandate, dismissal for neglect to proceed. They found that since discovery was complete and no prejudice to the defendants was evident, the lower court did not abuse its discretion.

~ Disla v. El Potrero Sport Bar, Inc. ~

Dismissal of negligent hiring and loss of consortium claims in hospital case upheld

The Appellate Division, Second Judicial Department, has upheld a Kings County Supreme Court decision dismissing claims of negligent hiring and retention, as well as loss of consortium, in a lawsuit against Richmond University Medical Center. The decision, which affirms the lower court’s ruling, marks a significant outcome in the ongoing legal battle involving the hospital.

In a judgment entered on July 1, 2021, the Kings County Supreme Court dismissed several claims brought by Mohamed Abbas, who filed the lawsuit after the death of his wife, Barbara Abbas, in 2014. The suit, initiated in 2017, sought damages for medical malpractice, wrongful death, negligent hiring and retention, and loss of consortium, among others.

The defendants, Richmond University Medical Center, argued that the claims for medical malpractice and wrongful death were time-barred and that the remaining claims failed to state a cause of action. The Supreme Court agreed, dismissing the claims of negligent hiring and retention and loss of consortium.

The Appellate Division confirmed this decision and noted that the plaintiff’s amended complaint did not sufficiently allege that the hospital knew or should have known about any employee’s propensity for wrongful acts. The court also upheld the dismissal of the loss of consortium claim, stating it was derivative of the dismissed claims.

~ Abbas v. Richmond University Medical Center ~

Appellate Division upholds dismissal of slip-and-fall case

The Appellate Division, Second Judicial Department, upheld a decision from the Kings County Supreme Court dismissing a slip-and-fall lawsuit filed by Ralph Carmenati against Sea Park East, L.P.

In the case, Carmenati alleged that he sustained personal injuries after slipping on a wet substance while descending an interior stairway on the defendant’s property. The Kings County Supreme Court had previously granted the defendant’s motion for summary judgment, dismissing the complaint on the grounds that the defendant neither created the dangerous condition nor had actual or constructive notice of it.

The Appellate Division confirmed that the defendant met its burden of proof by demonstrating that the stairway had been inspected less than three hours before the incident, with no hazardous conditions found. The court concluded that this inspection timing was sufficient to establish the defendant’s lack of constructive notice, as the condition did not exist long enough to be discovered and remedied.

~ Carmenati v. Sea Park East, L.P. ~

Slander of title case partially overruled by Appellate Division

The Appellate Division, Second Judicial Department, has partially overruled a decision from the Kings County Supreme Court in a case involving slander of title and quiet title claims.

In the case, Kermit Irizarry filed a personal injury lawsuit against Patricia Rosselli and Joseph Passalacqua, among others, after allegedly falling on a sidewalk near their properties. Rosselli subsequently initiated a third-party action against the Passalacquas, seeking indemnification, slander of title damages, and to quiet title to her property.

The Kings County Supreme Court had denied the Passalacquas’ motion to dismiss the third-party complaint and their motion for leave to amend their answer. The Appellate Division upheld the lower court’s denial to dismiss the quiet title claim but reversed the decision regarding the slander of title claim.

Slander of title involves false statements that cast doubt on property ownership, causing financial loss; to prove it, the plaintiff must show false communication, malice, publication, and special damages. Quiet title aims to establish clear ownership of property by resolving disputes; to prove it, the plaintiff must show possession of the property, a cloud on title, a legal right to title, and specific allegations of adverse claims.

The court held that Rosselli failed to state a cause of action for slander of title as she did not adequately allege special damages resulting from the Passalacquas’ conduct. The appellate court determined that the alleged damages from the personal injury action could not have arisen from the claimed tortious conduct of filing a declaration that inaccurately described ownership of the property.

The court affirmed the denial of the motion to dismiss the quiet title claim and said that Rosselli adequately alleged the existence of a removable cloud on her property title. The court also upheld the denial of the Passalacquas’ motion to amend their answer, noting that their proposed statute of limitations defense was without merit.

~ Irrizarry v. Rosselli ~

Dismissal of Champion Mortgage’s indemnification claim upheld

The Appellate Division, Second Department, has upheld a Kings County Supreme Court decision dismissing Champion Mortgage’s cross-claim for indemnification against Grover & Fensterstock, P.C. and Amalgamated Bank.

In 2011, plaintiff Ernest Leak filed a negligence and fraud lawsuit related to a fraudulently obtained reverse mortgage. The Kings County Supreme Court had dismissed Champion Mortgage’s cross-claim for indemnification, which sought to hold Grover & Fensterstock, P.C. and Amalgamated Bank responsible for the damages.

The Appellate Division confirmed that to sustain a cause of action for common-law indemnification, the party seeking indemnity must prove that the proposed indemnitor’s negligence contributed to the damages. The court found that Champion Mortgage failed to raise a triable issue of fact, showing that Grover & Fensterstock, P.C. or Amalgamated Bank were negligent or had a special relationship with the plaintiff that would create a duty of care. Consequently, the court upheld the dismissal of Champion Mortgage’s indemnification claim.

~ Leak v. RBI Associates, Ltd. ~

Brooklyn lawyer suspended for misappropriating client funds

Kenneth F. Nwele, a Brooklyn-based attorney, has been suspended from practicing law for one year after a ruling by the Supreme Court of the State of New York, Appellate Division, Second Judicial Department. The disciplinary action follows findings of professional misconduct, including the misappropriation of client funds.

The Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts charged Nwele with three counts of professional misconduct. The charges included misappropriating escrow funds, failing to properly identify his escrow account, and practicing under a misleading firm name. Nwele admitted to these allegations, which involved improper handling of settlement funds from personal injury cases.

One notable case involved a $4,000 settlement for Ilona Abramovic, which was deposited into another attorney’s account, leading Nwele to issue checks from his escrow account against other clients’ funds. Another case saw a $20,000 settlement for Kenneth White, which was mistakenly entered into Nwele’s ledger and disbursed similarly. Nwele’s escrow account and firm name were not compliant with professional conduct rules, as his account was incorrectly labeled, and his firm name suggested he had associates when he did not.

The Special Referee overseeing the case confirmed all charges, acknowledging Nwele’s remorse and cooperation but noting his previous disciplinary history for similar misconduct. Despite Nwele’s efforts to correct his practices and evidence of his good character and community service, the court determined a one-year suspension was warranted.

Nwele’s suspension will begin on Aug. 30, 2024, during which he must refrain from practicing law, and he will not be eligible for reinstatement until at least May 30, 2025.

~ Matter of Nwele ~