Deference to government powerSkepticism of government power
Opinion in [2] rejects extending federal immunity to private assignees, demonstrating skepticism of broad government power claims. Bank of Am., N.A. v. Reid ↗
Appellate Division of the Supreme Court of the State of New York — appointed by Andrew Cuomo
Criminal Court of the City of New York — appointed by Matthew T. Crosson
Party: Democratic →Judicial Studies, University of Nevada-RenoForensic Examination, Touro CollegeInternational Relations and American Politics, New York UniversityJD, New York Law SchoolBA, CUNY John Jay College of Criminal JusticePHD, University of Nevada-Reno
This case involved a mortgage foreclosure action in which Bank of America, as successor to BAC Home Loans Servicing, sought to foreclose on property owned by Patricia Reid. The bank had accelerated the debt in a prior 2010 foreclosure action, but that suit was dismissed; the bank filed this new action in 2018. The defendant raised a statute of limitations defense under CPLR 213(4)'s six-year period, while the bank argued it was immune as an assignee of HUD and the FHA. The Appellate Division affirmed the denial of summary judgment to the bank, holding that federal immunity from state statutes of limitations applies only when a federal agency held the mortgage and possessed the right to foreclose, not merely when the loan was insured by federal agencies. Because the evidence showed only insurance by HUD/FHA without any assignment of foreclosure rights, the action was time-barred.
The case involved a medical malpractice and wrongful death action brought by the plaintiff on behalf of his decedent against Westchester Health Care Corporation and Westchester Medical Center, among others, alleging that the defendants' staff failed to timely diagnose and treat the decedent's heart attack in January 2008, leading to his eventual death in 2011. After a jury verdict awarded the plaintiff damages including $1,000,000 for the decedent's emotional pain and suffering characterized as pre-impact terror and a separate $1,000,000 for pain and suffering and loss of enjoyment of life, the defendants moved to set aside portions of the verdict. The Appellate Division held that the award for pre-impact terror was inappropriate and duplicative in this medical malpractice context, as the fear occurred after the heart attack (which the defendants did not cause) and extended over more than three years until death, unlike traditional accident cases. The court modified the judgment by vacating the $1,000,000 emotional pain and suffering award, affirmed the judgment as modified, and remitted the matter for entry of an amended judgment.
In this personal injury action, plaintiff Gladys Yan sued defendants who owned and managed a property after she allegedly tripped and fell in a tree well, fracturing her wrist; she claimed the fall resulted from poorly maintained pavers and exposed roots, but a medical record from treating physician assistant Alejandro F. Molina noted she had reported tripping while attempting to enter her car. The defendants sought to compel an Arons authorization allowing an informal ex parte interview of Molina specifically about the plaintiff's statement on the cause of the accident. The Appellate Division, Second Department, affirmed the Supreme Court's denial of that request, holding that Arons v. Jutkowitz permits such authorizations only for information related to diagnosis and treatment of the injury, not for statements about the accident's cause. The court reasoned that granting the request would constitute an unwarranted extension of Arons, especially since the injury did not arise from medical treatment, and noted that other CPLR article 31 discovery tools remain available to obtain the information.
In this personal injury case, plaintiff Frank Morejon was injured when a piece of concrete fell from the sidewalk area above a subway platform in Brooklyn, and he sued the New York City Transit Authority, the MTA, and the City of New York alleging negligence in maintaining the station and sidewalk, including that the City created a dangerous condition. The City moved for summary judgment dismissing the claims against it, relying on the prior written notice requirement under the Administrative Code, but the Supreme Court denied the motion. On appeal, the Appellate Division affirmed the denial, holding that the City failed to make a prima facie showing that it did not cause or create the alleged defect, as its motion papers included street opening permits for tree pits in the area during the relevant period and it did not submit evidence ruling out that the work created the hazard. The court noted that this case fell outside the burden-shifting framework of Smith v City of New York because the City did not argue lack of prior written notice on appeal, leaving the create-or-cause exception as the relevant issue. The decision turned on the standards for summary judgment motions and the exceptions to prior written notice laws in municipal tort cases.
This case involved a plaintiff who slipped and fell at LaGuardia Airport in May 2019 and sued the Port Authority of New York and New Jersey in November 2020 for personal injuries, after serving a notice of claim in August 2020. The lower court dismissed the complaint against the Port Authority for failure to comply with the conditions in McKinney's Unconsolidated Laws § 7107, which requires both commencing an action within one year of accrual and serving notice of claim at least 60 days before suit. The Appellate Division reversed, holding that executive orders issued during the COVID-19 pandemic tolled the one-year commencement deadline, making the November 2020 filing timely. The court further reasoned that the notice-of-claim deadline under § 7107 is measured from the date of commencement rather than the date of accrual, so serving the notice 82 days before the timely commencement satisfied the statute's conditions precedent.
In Mercado v. Schwartz, a patient sued her physician and medical practice for damages arising from a hysterectomy performed to remove an Essure contraceptive device. The defendants sought to enforce a clause in a pre-surgery "Agreement as to Resolution of Concerns" that would have allowed each side to depose the opposing party's expert witnesses at least 120 days before trial. The Appellate Division held the clause void and unenforceable because it conflicted with New York public policy governing discovery and expert testimony in malpractice actions, the defendants had waived enforcement by entering a later preliminary conference order, and the agreement as a whole was unenforceable since other restrictive provisions were not severable. The court therefore affirmed the trial court's declaration that the deposition provision was invalid.