Recent decisions from the Appellate Division, Second Department

November 29, 2024 Robert Abruzzese, Courthouse Editor

The home of the Appellate Division, Second Department, on Monroe Place in Brooklyn Heights. Eagle file photo by Rob Abruzzese

Lack of diligence in identifying defendants leads to case dismissal

The Appellate Division, Second Department, reversed a Kings County Supreme Court decision and dismissed a false arrest and unlawful search case against three NYPD officers, citing the plaintiff’s failure to identify the defendants within the statute of limitations.

The lawsuit, filed under 42 U.S.C. § 1983, accused officers Manuel Maria, Gaetjeans Doxy and Miguel Figueroa of constitutional violations stemming from a 2014 incident. The plaintiff argued that he was unable to identify the officers until after the limitations period due to delays in obtaining discovery from the City of New York.

The appellate court ruled that the plaintiff did not exercise due diligence in identifying the defendants before the statute of limitations expired. It also rejected the plaintiff’s attempt to apply the relation-back doctrine, noting that the City of New York was not “united in interest” with the officers because it cannot be held vicariously liable for their alleged actions under § 1983.

The court dismissed the claims against the officers, overturning the Supreme Court’s earlier denial of the defendants’ motion to dismiss.

~ Agosto v. Maria ~

Court rejects motion to dismiss legal malpractice case

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision denying a motion to dismiss a legal malpractice lawsuit against Marc Wohlgemuth & Associates, P.C. The appellate court ruled that the firm failed to provide sufficient documentary evidence to refute the plaintiff’s allegations or conclusively establish a defense as a matter of law.

The lawsuit, filed in 2021 by Aaron Berger, claims that Wohlgemuth’s representation in a personal injury case constituted legal malpractice. Wohlgemuth sought dismissal under CPLR 3211(a)(1) and (7), arguing that the allegations fell outside the scope of their representation and were insufficient to support a malpractice claim.

The court held that legal malpractice plaintiffs are not required to explicitly plead that alleged malpractice falls within the agreed scope of representation and that defendants seeking dismissal must present evidence conclusively disproving the claims. The court affirmed the denial of the motion to dismiss.

~ Berger v. Lewis Johs Avallone Aviles, LLP ~

Adverse possession claims in property dispute sent back for trial

The Appellate Division, Second Department, partially reversed a Kings County Supreme Court decision in a property dispute involving claims of adverse possession. The appellate court reinstated claims by defendant Enid Aiken and the Davis Family REH Master Series, LLC, finding unresolved issues of fact that require further litigation.

The case concerns a Brooklyn property originally owned by two co-tenants. After one co-tenant, David Foote, passed away in 1977 without heirs coming forward, Aiken and her family managed the property for decades. In 2016, the Public Administrator of Kings County sued for partition and sale, representing Foote’s estate. Aiken claimed sole ownership of the property through adverse possession, while the Davis parties asserted an ownership interest via deeds from alleged heirs of Foote.

To succeed on adverse possession claims, a party must show hostile, actual, open, exclusive and continuous possession for at least 20 years. The appellate court found that neither Aiken nor the Davis parties provided sufficient evidence to prove their claims as a matter of law.

The court upheld the denial of Aiken’s motion for summary judgment on her adverse possession claims and reversed the Supreme Court’s dismissal of her third-party claims against the Davis parties, sending both sides back to court to resolve the factual disputes.

~ Buckheit v. Aiken ~

Improper service voids foreclosure action against Brooklyn homeowner

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision dismissing a foreclosure action against Brooklyn homeowner Joseph Leitman due to improper service of legal papers. The appellate court affirmed that Citimortgage, Inc. failed to comply with New York’s strict requirements for serving process.

The court required the plaintiff to follow the rules in CPLR 308(2) by delivering legal papers to someone at the defendant’s home who is mature and responsible enough to pass them along. It also ruled that even if the defendant knows about the lawsuit, improper service does not give the court jurisdiction.

Citimortgage sought to foreclose on Leitman’s property, serving the summons and complaint on “E. L.,” a family member at Leitman’s home. However, Leitman argued that E. L. lacked the necessary maturity and discretion for valid service under CPLR 308(2), citing medical evidence that E. L. had significant developmental delays. Citimortgage did not dispute these claims, instead contending that Leitman was aware of the action and had no defense against it.

The court ruled that personal jurisdiction requires service to comply strictly with statutory methods, and mere awareness of a lawsuit is insufficient to establish jurisdiction. The decision leaves Citimortgage unable to proceed with its foreclosure case against Leitman.

~ Citimortgage, Inc. v. Leitman ~

Negligent hiring claims stand against Jehovah’s Witnesses in abuse case

The Appellate Division, Second Department, partially upheld a Kings County Supreme Court decision in a lawsuit brought under the Child Victims Act, allowing claims of negligent hiring, retention and supervision against the Watchtower Bible and Tract Society of New York, Inc., and Christian Congregation of Jehovah’s Witnesses to proceed.

The plaintiff alleges she was sexually abused as a child by Elder Verdajo, an employee or agent of the defendants, during activities they organized. The defendants sought to dismiss the claims, arguing the complaint failed to state a valid cause of action.

The appellate court ruled that the complaint sufficiently alleged that the defendants knew or should have known of Verdajo’s potential risk to children and that the abuse was foreseeable. However, the court dismissed the claim of negligent failure to provide a safe environment, finding it duplicative of the negligent hiring claim. The lawsuit will continue on the remaining claims.

~ Doe v. Watchtower Bible and Tract Society of Pennsylvania ~

Court denies renewal in mortgage foreclosure case

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision denying a motion to renew by defendant Chidi Eze in a foreclosure case brought by JPMorgan Chase Bank. The appellate court ruled that Eze failed to demonstrate a change in law that would have altered the prior decision.

Eze sought to renew his earlier cross-motion for summary judgment to dismiss the foreclosure complaint, citing a recent appellate ruling, Bank of America, N.A. v Kessler. However, the appellate court found that the cited decision had since been reversed by the New York Court of Appeals, rendering it inapplicable.

The court explained that a motion to renew requires either new facts or a change in law that would materially affect the prior outcome. In this case, Eze failed to meet that standard, and the denial of his motion was affirmed. The foreclosure case against him will proceed.

~ JPMorgan Chase Bank, National Association v. Eze ~

MTA ordered to provide GPS records in bus accident case

The Appellate Division, Second Department, upheld a Kings County Supreme Court decision compelling the MTA Bus Company and related defendants to produce GPS records and bus route documents for a bus involved in a 2017 accident. The appellate court affirmed that the requested records could provide evidence relevant to the plaintiff’s claims.

The case arises from a December 2017 incident in which the plaintiff, a bus passenger, was injured when the bus collided with a New York City Police Department vehicle. The plaintiff argued that GPS data and bus route documents would help establish the bus’s position and movements at the time of the accident, shedding light on whether its location contributed to the collision and her injuries.

The court ruled that the plaintiff met the standard under CPLR 3101(a) by demonstrating that the requested records were material and necessary for preparing her case. It said that discovery must be “reasonably calculated” to produce relevant evidence, a standard the plaintiff satisfied in this instance.

~ Smith-Percival v. MTA Bus Company ~