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SEPARATE TRIALS WERE HELD ON THE TORT AND BREACH OF CONTRACT ACTIONS STEMMING FROM DAMAGE TO PLAINTIFFS’ BUILDING CAUSED BY RENOVATION OF DEFENDANT’S NEIGHBORING BUILDING; THE DAMAGES AWARDED IN EACH ACTION WERE BASED UPON THE SAME EVIDENCE OF THE COST OF REPAIR AND ALTERNATE LIVING EXPENSES BUT THE AMOUNTS OF THE AWARDS DIFFERED; SUPREME COURT PROPERLY ENTERED THE DAMAGES AWARDED IN THE BREACH OF CONTRACT ACTION, PLUS INTEREST AND ATTORNEY’S FEES, AS THE APPEALABLE FINAL JUDGMENT (FIRST DEPT).

The First Department, in an extensive opinion by Justice Moulton, addressed several unusual issues stemming from the allegation the renovation of defendant’s neighboring property damaged plaintiffs’ property. Two separate trials were held: a jury trial on tort (negligence) claims; and a nonjury trial on breach of contract claims (i.e., the contract allowing defendants access to plaintiffs’ property to facilitate the renovation). In the nonjury breach of contract action plaintiffs were awarded $6,255,007 for repair costs and $1,152,000 for alternate living expenses. In the jury trial (tort action) plaintiffs were awarded $5,000,000 for repair and $500,000 for alternate living expenses. The issues decided in plaintiff’s appeal are: the breach of contract judgment is appealable as a final judgment; Supreme Court properly precluded expert testimony on the loss of market value in plaintiffs’ home. The issues decided in defendant’s cross appeals are: Supreme Court properly denied defendant’s motion to set aside the breach of contract judgment and adopt the jury’s tort judgment; plaintiffs were entitled to conditional contractual indemnification from defendant. The final judgment which was entered used the breach of contract (nonjury trial) damages, plus interest and attorney’s fees totaling over $12 million. With respect to whether the judgment was appealable as a final judgment, the court wrote:

Our conclusion that the contract judgment is a final judgment starts with the definition of a judgment. “A judgment is the determination of the rights of the parties in an action or special proceeding and may be either interlocutory or final” (CPLR 5011; see also CPLR 105 [k] [“The word ‘judgment’ means a final or interlocutory judgment”]). “[A] fair working definition of the concept can be stated as follows: a ‘final’ order or judgment is one that disposes of all of the causes of action between the parties in the action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters”  … . Shah v 20 E. 64th St., LLC, 2021 NY Slip Op 04587, First Dept 7-29-21

 

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NONE OF THE ESPINAL EXCEPTIONS APPLIED TO THE DEFENDANT FIRE SAFETY AND SECURITY CONTRACTOR IN THIS SLIP AND FALL CASE; THEREFORE THE CONTRACTOR’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED; THE ISSUE WAS PROPERLY CONSIDERED ON APPEAL, DESPITE THE FAILURE TO RAISE IT BELOW, BECAUSE IT CONCERNED A QUESTION OF LAW (FIRST DEPT).
PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION IN THIS FALLING OBJECT CASE; QUESTION OF FACT ON HIS LABOR LAW 241 (6) CAUSE OF ACTION (FIRST DEPT).
COURT DID NOT CONDUCT SEARCHING INQUIRY INTO DEFENDANT’S REQUEST TO PROCEED PRO SE, CONVICTION REVERSED (FIRST DEPT).
DOCTRINE OF DEFINITENESS WAS PROPERLY NOT APPLIED, DOLLAR-AMOUNT OF THE FEE AT ISSUE COULD BE DETERMINED BY INDUSTRY PRACTICE.
DISMISSAL OF ACTIONS STEMMING FROM THE MADOFF PONZI SCHEME AFFIRMED PURSUANT TO THE DOCTRINE OF IN PARI DELICTO (COURT WILL NOT RESOLVE A DISPUTE BETWEEN TWO WRONGDOERS).
TWO TO THREE FOOT FALL OF HEAVY STEEL PLATE WHICH WAS BEING HOISTED IS COVERED UNDER LABOR LAW 240 (1), HEIGHT DIFFERENTIAL NOT DE MINIMUS (FIRST DEPT).
NYC HUMAN RIGHTS LAW PROTECTS AGAINST TERMINATION BASED UPON AN EMPLOYEE’S MARRIAGE TO A PARTICULAR PERSON WHO HAD LEFT TO WORK FOR A COMPETITOR, THERE WAS NO NEED TO ALLEGE THAT THE EMPLOYER WAS BIASED AGAINST MARRIED COUPLES GENERALLY (FIRST DEPT).
DEFENDANT’S FAILURE TO DEMONSTRATE WHEN AREA WHERE PLAINTIFF FELL WAS LAST INSPECTED OR CLEANED REQUIRED DENIAL OF DEFENSE SUMMARY JUDGMENT MOTION.

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