Latest decisions from the Appellate Division, Second Department

September 11, 2024 Robert Abruzzese, Courthouse Editor

In the latest decisions out of the Appellate Division, Second Department, the court addressed a range of legal issues, including personal injury, vehicle collision liability, late notice of claim in medical malpractice, custody modification, medical malpractice appeal dismissal, foreclosure action restoration, breach of contract, and pension payment disputes. Brooklyn Eagle photo by Rob Abruzzese

Personal injury case against Long Island university overturned

The Appellate Division, Second Department has reversed a ruling from the Kings County Supreme Court in a case involving personal injuries sustained by a plaintiff at Long Island University’s Brooklyn campus. The appellate court ruled that the lower court erred in granting summary judgment in favor of the defendants.

Leslie Ogletree filed a lawsuit against Long Island University, claiming she was injured in 2017 when a door on the campus suddenly swung shut, causing her to fall. She argued that the university was negligent in maintaining the door. The Kings County Supreme Court had ruled in favor of the defendants and dismissed Ogletree’s complaint.

The Appellate Division, however, found that the defendants failed to establish that the door was not in a dangerous condition and that they did not have constructive notice of its potential hazard. The court noted that the defendants had not provided evidence of the door’s last inspection or maintenance prior to the incident. As a result, the appellate court denied the defendants’ motion for summary judgment, sending the case back for further proceedings.

~ Ogletree v. Long Island University ~

Appellate Division affirms denial of summary judgment in vehicle collision case

The Appellate Division, Second Department has upheld a Kings County Supreme Court decision denying summary judgment to defendants Anniversary Corp. and Awesome Management, Inc. in a personal injury case involving a vehicle collision.

The case stems from a December 2020 accident in Manhattan where a vehicle owned by the defendants collided with the plaintiff’s car. The defendants argued that their vehicle had been stolen and was operated without their permission at the time of the accident, seeking to dismiss the complaint based on this claim.

However, the appellate court affirmed the Supreme Court’s ruling, explaining that under New York’s Vehicle and Traffic Law § 388, there is a presumption that the vehicle was operated with the owner’s consent. The defendants failed to provide sufficient evidence to overcome this presumption. Specifically, the court held that the defendants did not establish a prima facie case showing their vehicle had only one authorized user or that it was stolen at the time of the incident. The case will continue, with the plaintiff’s personal injury claims remaining intact.

~ Mater v. Anniversary Corp. ~

Appellate Court affirms denial of late notice of claim in medical malpractice case

The Appellate Division, Second Department upheld a Kings County Supreme Court decision denying a petition to file a late notice of claim in a medical malpractice case against the New York City Health & Hospitals Corporation (NYCHHC).

The petitioner, Guerdie Bien Aime, sought to serve a late notice of claim after her child was diagnosed with cerebral palsy and other health conditions in 2018, which she alleged were caused by negligent care during her 2017 pregnancy and delivery at Kings County Hospital. The petition was filed in March 2021, approximately three-and-a-half years after the diagnosis.

Under New York’s General Municipal Law § 50-e(5), a notice of claim must be filed within 90 days of the alleged malpractice unless the court grants leave to file late. The petitioner argued that NYCHHC had actual knowledge of the claim based on hospital records and that the delay was excusable.

The court ruled that merely creating hospital records does not establish actual knowledge of a potential malpractice claim unless the records clearly indicate negligence. The court also found that the petitioner failed to show the delay did not substantially prejudice NYCHHC’s defense or provide a reasonable excuse for not filing sooner. The appellate court affirmed the Supreme Court’s decision to deny the petition, effectively dismissing the case.

~ Mtr of Aime v. New York City Health & Hospitals Corporation ~

Appellate Division upholds dismissal of father’s custody modification petition

The Appellate Division, Second Department affirmed the dismissal of a father’s petition to modify a custody arrangement without a hearing, upholding a decision by the Kings County Supreme Court.

Jeremy Aaron Masiello, the appellant, sought to modify a 2021 custody agreement that granted sole legal and physical custody of the child to the mother, Nicole Astol, and awarded him parental access every other weekend. Masiello filed the petition in January 2022, asking for joint custody.

The court ruled that in order to modify an existing custody arrangement, there must be a substantial change in circumstances to justify such a modification in the best interests of the child. The appellate court found that Masiello failed to provide evidence of any significant change. His claims were either related to events that occurred before the initial order or were deemed unsubstantiated. The court upheld the lower court’s decision to dismiss the petition without a hearing.

~ Mtr of Masiello v. Astol ~

Appeal dismissed in medical malpractice case against nursing facility

The Appellate Division, Second Department has dismissed an appeal by the plaintiff, Tammy Osby, in a medical malpractice lawsuit against Spring Creek Rehabilitation and Nursing Care Center, upholding a Kings County Supreme Court decision.

Osby initially filed the lawsuit, alleging medical malpractice, but the Kings County Supreme Court granted summary judgment in favor of Spring Creek in July 2019, dismissing the complaint. Osby attempted to appeal the decision, but her initial appeal was dismissed for failure to perfect. In August 2021, a clerk’s judgment was entered, finalizing the dismissal.

Osby appealed the clerk’s judgment, but the Appellate Division ruled that since the issues could have been raised in the prior, dismissed appeal, it would not reconsider the matter. The court dismissed the current appeal and awarded costs to the defendant. The court declined to impose sanctions against Osby, rejecting the defendant’s request based on claims of frivolous conduct. This decision affirms the original ruling in favor of Spring Creek Rehabilitation and Nursing Care Center.

~ Osby v. Spring Creek Rehabilitation and Nursing Care Center ~

Appellate Division Upholds Kings County ruling restoring foreclosure action to active calendar

The Appellate Division, Second Department has affirmed a Kings County Supreme Court decision to vacate a conditional order of dismissal and restore a foreclosure action filed by South Point, Inc. to the active calendar.

The case dates back to 2008 when South Point initiated a foreclosure action on a property in Brooklyn. In 2013, the court issued a conditional order of dismissal, directing that the case would be dismissed unless South Point took action within 90 days. When no action was taken, the case was dismissed in 2014, and the property was later transferred to the intervenor, Qassem M. Q. Rashed.

In 2020, South Point sought to vacate the 2013 dismissal and restore the case, arguing that the original dismissal was procedurally flawed. The Kings County Supreme Court granted South Point’s motion, and Rashed appealed. The Appellate Division upheld the decision, finding that the conditional dismissal failed to meet the statutory requirements under CPLR 3216, as no proper motion to dismiss was made and no dismissal order was entered. The foreclosure action has been restored to the active calendar.

~ South Point Inc. v. John ~

Appellate Division upholds default judgment in breach of contract case

The Appellate Division, Second Department affirmed a Kings County Supreme Court decision that denied the plaintiff’s request to vacate a default judgment entered against him in a breach of contract case.

Danister K. Rajaram filed a lawsuit in 2019, alleging that Shanta Indradai Singh breached the terms of a settlement. Singh counterclaimed, and Rajaram failed to reply. The Kings County Supreme Court granted Singh’s motion for a default judgment on her counterclaims after Rajaram did not oppose the motion.

Rajaram later sought to vacate the default judgment, citing law office failure as his excuse for not responding. The court rejected his argument, finding his explanation insufficient and lacking detail. The appellate court upheld the ruling, stating that without a reasonable excuse for the default, it was unnecessary to consider whether Rajaram had a potentially meritorious defense. The appeal from an earlier order denying reargument was also dismissed. Singh was awarded costs for the appeal.

~ Rajaram v. Singh ~

Ruling on breach of contract in dispute between Shulamith Schools upheld

The Appellate Division, Second Department has affirmed a Kings County Supreme Court decision holding Shulamith School for Girls of Brooklyn liable for breaching a settlement agreement regarding pension payments.

In 2013, Shulamith School for Girls, Inc., based in Cedarhurst, and Shulamith School for Girls of Brooklyn reached a settlement agreement to equally share the cost of pension payments for Rabbi Moshe Zwick, a longtime employee. The Cedarhurst school filed a lawsuit in 2021, alleging that the Brooklyn school had stopped making its share of the payments in 2017, leaving the Cedarhurst school to cover the full amount.

The Kings County Supreme Court granted summary judgment in favor of the Cedarhurst school on the issue of liability, and the Brooklyn school appealed. The Appellate Division upheld the ruling, finding that the Brooklyn school had breached its contractual obligation to continue making the pension payments. The court rejected the Brooklyn school’s argument that the plaintiff’s evidence violated the best evidence rule, stating that this issue pertained to damages, not liability. The Brooklyn school remains liable for the breach of contract.

~ Shulamith School for Girls Inc. v. Shulamith School for Girls of Brooklyn ~