Page 24 - WCBA Appellate Practice Committee CLE May 2024-Handout

the tree pits at the accident site did not cause or create the defective condition which allegedly caused
the plaintiff’s injury.

Jenack v Goshen Operations, LLC, 222 AD3d 36 (opinion by Ford, J.).

Public Health Law § 2801-d provides patients in nursing homes with increased powers to enforce their
rights to adequate treatment and care by providing them with a private right of action to sue for
damages and other relief and enabling them to bring such suits as class actions. This opinion addressed
the suitability of class action status for patients who received sub-par care in different ways. The court
held that while differing individual circumstances or injuries may be fatal to class certification for
negligence claims, it is sufficient for a plaintiff to prove that questions regarding violations of contract,
statute, regulation, code, or rule predominate to satisfy the commonality requirement of CPLR 901 (a)
(2) in a case, such as here, alleging a violation of Public Health Law § 2801-d. Plaintiffs also established
the superiority requirement of CPLR 901 (a) (5) as the putative class members were all residents of
defendants' nursing home when the alleged decline in services occurred. Moreover, a class action met
other tests for class action status under CPLR 901 and 902 such as commonality, numerosity, and
practicality.

Bank of N.Y. Melon v DeMatteis, 222 AD3d 1 (opinion by Connolly).

In an action to foreclose a mortgage commenced against a defendant bankruptcy debtor, and defendant
non-debtor who had acquired the mortgaged property prior to the filing of the debtor's bankruptcy
petition, plaintiff failed to raise a question of fact as to whether the mortgaged property was property of
the debtor's estate, and whether the automatic bankruptcy stay of 11 USC § 362 (a) (1) tolled the
statute of limitations for commencing the mortgage foreclosure action against the non-debtor.
Although there are limited circumstances under which the automatic stay may be extended to a non-
debtor, here, plaintiff did not invoke those circumstances and instead argued that the mortgaged
property was considered property of the debtor's bankruptcy estate. The bankruptcy estate includes all
legal or equitable interests of the debtor in property as of the commencement of the case, wherever
located and by whomever held (see 11 USC § 541 [a] [1]). The mere fact that the debtor owned the
mortgaged property before he filed for bankruptcy did not satisfy plaintiff's burden of raising a question
of fact as to the debtor's legal or equitable interest in the mortgaged property at the time the
bankruptcy proceeding was commenced.

Matter of R.M. v C.M., __ AD3d __, 2024 WL 1184370, 2024 Sip Op. 01545 (Opinion by Barros).

The “extreme risk protection” statute of CPLR Art. 63-A is constitutional. It permits the seizure of
weapons from a person in the event there is reason to believe that the possessor is likely to cause
serious harm to self or others. Unlike Mental Hygiene Law 9.39(a), where an opinion is needed from a
physician for a risk confinement, the absence of a physician for an extreme risk protection order does
not violate due process given procedural safeguards in the statute; namely, a CPLR 6343 hearing within
a prompt 3 to 6 day window, a clear and convincing evidentiary burden upon the state, a one-year cap

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