Latest decisions from the Appellate Division, Second Department
The Appellate Division, Second Department, addressed several rulings from the Kings County Supreme Court, dealing with issues such as procedural missteps, like failures to serve proper notices or authenticate documents, and challenges over personal jurisdiction and the sufficiency of evidence in cases ranging from personal injury and real estate disputes to contract breaches and discrimination claims. Brooklyn Eagle photo by Rob Abruzzese
Late notice of claim denied in injury case after reversal of Kings County decision
The Appellate Division, Second Department, reversed a Kings County Supreme Court ruling that granted a plaintiff’s motion to serve a late notice of claim against the City of New York.
The case involves an infant plaintiff who allegedly sustained injuries after falling from bleachers during a physical education class. Initially, the plaintiff’s claim focused on the maintenance of the bleachers, but an amended notice later added allegations of negligent supervision. The plaintiff filed the amended notice without court approval, prompting the defendants to appeal.
The Appellate Division found that the defendants did not have timely actual knowledge of the facts related to the newly asserted claims of negligent supervision. The court explained that knowledge of the injury alone, as reflected in investigation reports, did not provide the city with the essential facts necessary to defend against this new theory.
Additionally, the court concluded that the plaintiff failed to offer a reasonable excuse for the delay and did not demonstrate that the defendants were not prejudiced by the late filing. As a result, the court overruled the Kings County Supreme Court and denied the plaintiff’s motion, effectively preventing the new allegations of negligent supervision from proceeding in court.
~ P. v. City of New York ~
Partition action against Brooklyn property dismissed as Appellate Court reverses lower court’s ruling
The Appellate Division, Second Department, has reversed a Kings County Supreme Court decision that granted summary judgment in favor of 459 Washington Avenue, LLC, in a property dispute involving co-owners of a Brooklyn property. The lower court had ruled in favor of the plaintiffs, ordering the partition and sale of the property and dismissing the defendant’s counterclaims.
The appellate court found that the property is owned by the LLC, not by the individuals as tenants in common, and therefore, partition was not a remedy available under the law. The court also ruled that the defendant’s request to search the record and dismiss the complaint should have been granted, effectively ending the partition action.
~ 459 Washington Avenue, LLC v. Atkins ~
Hostile work environment claim dismissed in pregnancy discrimination case
The Appellate Division, Second Department, recently upheld a Kings County Supreme Court ruling that dismissed a hostile work environment claim brought by Digna Benitez against Jamaica Hospital Medical Center. Benitez alleged that the hospital discriminated against her based on her pregnancy, creating a hostile work environment in violation of the New York City Human Rights Law.
The appellate court ruled that the evidence, which centered on a single comment from Benitez’s supervisor, did not meet the threshold for a hostile work environment. The court found that the comment constituted a “petty slight” and did not rise to the level of harassment that would support such a claim.
In New York State, to establish a hostile work environment claim, a plaintiff must show that they were subjected to conduct or behavior that was severe or pervasive enough to create an intimidating, hostile or offensive work environment. New York City laws are more strict and allow for a wider range of behavior to be considered discriminatory, but it still requires more than minor annoyances.
As a result, the court affirmed the lower court’s decision to dismiss the claim, ruling that the jury’s original finding in Benitez’s favor on this issue was unsupported by the evidence.
~ Benitez v. Jamaica Hospital Medical Center ~
Appellate Court reinstates case against co-defendants in personal injury suit
The Appellate Division, Second Department, partially reversed a Kings County Supreme Court ruling in the personal injury case Cintron v. Carter. The case stemmed from an October 2013 car accident in which the plaintiff, Marisol Cintron, a passenger in Jouvonda Weeks’ vehicle, sustained injuries. Cintron filed a lawsuit in 2016, but her case was dismissed by the lower court due to her failure to prosecute after being served with a 90-day notice.
The appellate court upheld the dismissal against Weeks, agreeing with the Supreme Court that the plaintiff failed to demonstrate a meritorious cause of action, as she did not provide sufficient medical evidence of serious injury. However, the Appellate Division reversed the dismissal against the co-defendants, Tyreil Kawan Carter and Bonnie Carter, as they had not served a 90-day notice, a procedural requirement for dismissal. This ruling means that Cintron’s case against the Carters may proceed while the claim against Weeks remains dismissed.
~ Cintron v. Carter ~
Appellate ruling reopens foreclosure case as summary judgment denied
The Appellate Division, Second Department, has reversed two orders of the Kings County Supreme Court in a foreclosure action brought by Citimortgage Inc. against Andre Sultan.
The lower court had granted summary judgment in favor of Citimortgage, striking Sultan’s answer and appointing a referee to compute the amount owed. However, the Appellate Division found that Citimortgage failed to establish the defendant’s default in payment because the affidavit submitted did not properly authenticate the payment records. As a result, the court reversed the decision and denied the plaintiff’s motion for summary judgment.
By reversing the summary judgment, the Appellate Division has denied Citimortgage’s request to strike Sultan’s answer and appoint a referee to calculate the debt. This decision reopens the case, allowing Sultan to continue defending against the foreclosure action.
~ Citimortgage, Inc. v. Sultan ~
Document production ruling modified as Appellate Court orders detailed privilege log
The Appellate Division, Second Department, partially overruled a Kings County Supreme Court ruling regarding the production of a privilege log in a breach of fiduciary duty case. The case, Joseph v. Rassi, involved a plaintiff seeking damages against the controlling members of Legs Media, LLC, and Milk Agency, LLC. The plaintiff appealed after the lower court denied his request to compel the defendants to produce a detailed, document-by-document privilege log in accordance with CPLR 3122(b).
The appellate court ruled that the defendants had failed to comply with CPLR 3122(b) by not providing specific details about each withheld document and ordered them to produce a proper privilege log. However, the court upheld the lower court’s decision denying the plaintiff’s motion to disqualify the defendants’ attorney, finding that there was insufficient evidence to justify disqualification. This ruling modifies the original Kings County decision and enforces stricter document production standards.
~ Joseph v. Rassi ~
Montage Financial Group cleared in breach of contract case as dismissal upheld
The Appellate Division, Second Department, has upheld a Kings County Supreme Court decision that dismissed a breach of contract and related claims brought by Plymouth Capital LLC against Montage Financial Group Inc. The plaintiffs alleged that Montage and a former vice president of Plymouth, Brett Smith, wrongfully cut Plymouth out of a life insurance policy sale deal, and sought damages for breach of contract, tortious interference, and other claims.
The appellate court agreed with the lower court that Plymouth failed to sufficiently allege specific conduct by Montage that would support claims of tortious interference with contract or prospective business relations. Additionally, the court found that the plaintiffs did not establish the existence of a written agreement between Plymouth and Montage, as required by law. This decision affirms the dismissal of all claims against Montage in this case.
~ Plymouth Capital, LLC v. Montage Financial Group, Inc. ~
Malicious prosecution claim fails as court upholds stipulation against Fay Servicing
The Appellate Division, Second Department, upheld a Kings County Supreme Court decision that dismissed a malicious prosecution claim against Fay Servicing, LLC. The case, Stewart v. Christiana Trust, was based on plaintiffs Clarence Stewart and others seeking damages for malicious prosecution after their claims against Fay Servicing were discontinued. The plaintiffs’ attorney had previously stipulated in open court to discontinue the action without prejudice, and the court confirmed the stipulation in writing.
The plaintiffs later moved to vacate the stipulation, arguing it was improvidently made. However, the appellate court affirmed that stipulations made in open court are binding unless there is a showing of fraud, duress, or mistake. Finding no such evidence, the court ruled in favor of Fay Servicing, concluding that the stipulation should not be disturbed.
This decision affirms the Kings County Supreme Court’s ruling, rejecting the plaintiffs’ attempt to vacate the stipulation.
~ Stewart v. Christiana Trust ~
Personal jurisdiction lacking, Appellate Court dismisses case against New Point defendants
The Appellate Division, Second Department, upheld a Kings County Supreme Court decision dismissing a breach of contract lawsuit filed by Talk of the Town Realty Corp. against New Point Estate Family Limited Partnership and its general partners, Miron and Raisa Fayngersh. The court ruled that the defendants were never properly served with the summons and complaint, as there were no affidavits of service on file to confirm the action.
The plaintiff argued that the New Point defendants had waived their right to contest personal jurisdiction through a stipulation allegedly entered by the Cornerstone defendants’ attorney. However, the court found that the attorney did not represent the New Point defendants and lacked authority to act on their behalf. As a result, the Appellate Division affirmed the lower court’s decision to dismiss the case against the New Point defendants for lack of personal jurisdiction.
~ Talk of the Town Realty Corp v. New Point Estate Family Limited Partnership ~
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