Latest decisions from the Appellate Division, Second Department

October 11, 2024 Robert Abruzzese, Courthouse Editor
The Appellate Division, Second Department, recently upheld rulings in several cases, including dismissing a medical malpractice claim over failure to consider a patient’s history, affirming a custody decision with expanded visitation rights, upholding a default judgment in a foreclosure case, denying a motion to dismiss a counterclaim on standing, and tolling interest due to delay in prosecuting a mortgage foreclosure. Photo: Rob Abruzzese/AP
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Malpractice suit dismissed over alleged failure to consider patient’s medical history 

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision that dismissed a medical malpractice and lack-of-informed-consent lawsuit filed by the estate of Ralph Carter against Dr. Jonathan Ellant, New York Eye and Ear Infirmary, Dr. Joseph Hubert Paul and Dr. Alexander Slotwiner. The court ruled that the defendants met the standard of care and that any alleged departures were not the cause of Carter’s injuries.

The case stemmed from two cataract surgeries that Carter underwent in late 2013. After the second procedure, Carter suffered a stroke and was left permanently disabled until his death in 2018. The plaintiff, representing Carter’s estate, alleged that the defendants failed to adequately consider Carter’s atrial fibrillation before clearing him for surgery.

The court held that the defendants provided sufficient evidence, including expert testimony, demonstrating that the treatments were appropriate and within the accepted standard of care. Additionally, the Appellate Division found that the plaintiff’s experts did not present enough evidence to create a triable issue, as their opinions were speculative and lacked specific rebuttals to the defendants’ arguments.

The Second Department also dismissed the claim of lack of informed consent, noting that the defendants provided thorough preoperative information and obtained proper consent. The court emphasized that the plaintiff failed to show that a reasonable person, fully informed, would have refused the surgeries.

~ Mattocks v. Ellant ~

Father’s custody request denied, but visitation rights expanded

The Appellate Division, Second Department, upheld a Kings County Family Court decision denying G.E.C.’s request for sole legal and physical custody of his child while modifying his visitation rights to include more time during holidays and summer vacations.

The case began in 2017 when G.E.C., who moved to Pennsylvania, sought sole custody of his child, who lives in Brooklyn with the mother, Y.H.R. After a hearing, the Family Court granted Y.H.R. sole custody, allowing G.E.C. visitation on alternate weekends.

The legal issue focused on whether awarding sole custody to Y.H.R. was in the child’s best interests. The court considered several factors: the stability of the child’s current home environment, each parent’s ability to meet the child’s needs, and the level of cooperation between the parents. Due to the high conflict and lack of effective communication, joint custody was deemed unfeasible.

While affirming the custody ruling, the Second Department found that the existing visitation schedule was inadequate. The court expanded G.E.C.’s parental access to include four consecutive weeks during summer, equal time during school breaks, and shared holidays, remanding the matter back to the Family Court to finalize the specific details and travel arrangements.

~ Mtr of Cornielle v. Rosado ~

Default judgment in foreclosure case upheld after defendants’ delay

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision granting OneWest Bank a default judgment in a foreclosure case against homeowners Roland and Florence Villafana. The court found that the Villafanas’ failure to respond to the complaint for more than five years, combined with their active participation in litigation, prevented them from seeking to dismiss the action as abandoned.

The legal issue involved whether the defendants were entitled to dismissal under CPLR 3215(c), which allows a court to dismiss a complaint if a plaintiff does not seek a default judgment within a year. The Villafanas argued that the bank’s failure to act in a timely manner justified the dismissal of the foreclosure action. However, the court ruled that the Villafanas waived their right to seek dismissal by engaging in litigation instead of promptly raising the issue of abandonment.

The Second Department held that OneWest Bank met the requirements for a default judgment, which included proving proper service, establishing the facts of the case, and showing the defendants’ default. The court also noted that the Villafanas could not raise a standing defense because they failed to provide a reasonable excuse for their delayed response. The decision affirms the Kings County Supreme Court’s order, allowing OneWest Bank to proceed with the foreclosure against the property.

~ Onewest Bank, FSB v. Villafana ~

Standing to enforce purchase option not proven

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision that denied SMG Automotive Holdings LLC’s attempt to dismiss a counterclaim questioning its standing to purchase a commercial property in Brooklyn. The court found that SMG’s evidence failed to conclusively refute the claims raised by Brooklyn Store LLC, the property owner.

The dispute arose from a 2017 agreement in which SMG subleased the property from Kings Automotive Holdings LLC and received an option to purchase the property. When SMG attempted to exercise this purchase option in 2021, the parties could not agree on the property’s fair market value. SMG sued for a declaratory judgment affirming its right to purchase, while Brooklyn Store counterclaimed, arguing that SMG lacked standing to enforce the purchase option.

The legal issue on appeal centered on whether SMG’s motion to dismiss, based on documentary evidence, met the standard under CPLR 3211(a)(1). For such a motion to succeed, the evidence must definitively refute the opposing party’s claims. The Second Department ruled that SMG’s evidence, including agreements between the parties, did not meet this burden because other parts of the record contradicted SMG’s position. The denial of the motion allows the Brooklyn Store to continue challenging SMG’s standing in the ongoing litigation.

~ SMG Automotive Holdings, LLC v. Brooklyn Store, LLC ~

Interest accrual on mortgage loan halted due to delay

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision that partially granted Brenth Daniel’s motion to toll interest on a mortgage loan held by Wells Fargo Bank, citing the bank’s extensive delays in prosecuting the foreclosure action. The court found that Wells Fargo’s unexplained inaction over several years justified suspending interest accumulation for significant periods.

The case began in 2009 when Wells Fargo’s predecessor initiated a foreclosure action against Daniel for a property in Brooklyn. After obtaining an initial order of reference in 2019, Wells Fargo sought a judgment of foreclosure and sale. Daniel countered by arguing that the bank’s prolonged delays should prevent it from collecting interest accrued during periods of inaction.

The legal issue centered on whether the delays, which spanned multiple years and included gaps from 2010 to 2014 and again from 2014 to 2017, warranted the suspension of interest. Under New York law, courts can toll interest if the plaintiff unreasonably delays prosecuting a foreclosure, even if the conduct is not deemed wrongful. The Second Department agreed that Wells Fargo failed to provide any justification for these delays, affirming the Supreme Court’s order to toll interest during those periods.

~ Wells Fargo Bank, N.A. v. Daniel ~





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