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CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED, MULTIPLE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT).

The Fourth Department determined members of the Buffalo Jills, cheerleaders for the Buffalo Bills football team, were properly certified as a class to bring an action alleging Labor Law violations (failure to compensate) and fraud. The Fourth Department noted that evidence submitted in the reply papers was properly considered because the defendants had the opportunity to address the evidence and further noted Supreme Court properly certified three law firms as class counsel:

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Class action is appropriate only if all five of the requirements are met … , and the burden of establishing those requirements is on the party seeking certification … . The first prerequisite is that the class must be so numerous that joinder of all of its members is impracticable (see CPLR 901 [a] [1]). …

The second prerequisite is that there are common questions of law or fact that predominate over questions affecting only individual members (see CPLR 901 [a] [2]). …

The third prerequisite is that the class representatives’ claims are typical of the claims of the class (see CPLR 901 [a] [3]). …

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The fourth prerequisite is that the class representatives will fairly and adequately protect the interest of the class (see CPLR 901 [a] [4]). …

The fifth prerequisite is that class action is the superior method to fairly and efficiently adjudicate the controversy (see CPLR 901 [a] [5]).  …

… Once the section 901 (a) prerequisites have been met, a court must consider the class members’ interest in prosecuting individual actions; the impracticality or inefficiency of prosecuting or defending separate actions; the extent and nature of any separate action already pending; the desirability of the forum; and the difficulties likely to be encountered in managing a class action (see CPLR 902…) …

… [T]he court properly certified three law firms as class counsel. It is within the court’s discretion to allow representation by more than one counsel … . Ferrari v The Natl. Football League, 2017 NY Slip Op 06755, Fourth Dept 9-29-17

 

CIVIL PROCEDURE (CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED, THREE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT))/EMPLOYMENT LAW (CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED, THREE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT))/ATTORNEYS (CLASS ACTION,  CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED, THREE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT))/REPLY PAPERS (CIVIL PROCEDURE, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED (FOURTH DEPT))/CLASS ACTIONS (EMPLOYMENT LAW, (CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, THREE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT))

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SUPREME COURT SHOULD NOT HAVE AWARDED SUMMARY JUDGMENT ON A CAUSE OF ACTION (ACCOUNT STATED) NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the award of attorney’s fees and 18% interest in this breach of contract action was error. Summary judgment cannot be granted by the court, sua sponte, on a ground (account stated) not raised in the motion papers:

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… [T]he court erred in awarding attorney’s fees and prejudgment interest at the rate of 18% based on an unpleaded account stated theory. The record establishes that plaintiff neither pleaded an account stated theory nor moved for summary judgment on that ground … . It is well settled that, generally, a party may not obtain summary judgment on an unpleaded cause of action… , but there is an exception to that general rule where the proof supports such a cause of action and the opposing party has not been misled to its prejudice … . Here, we conclude that defendant was substantially prejudiced by the court’s sua sponte reliance on the unpleaded account stated theory … . Indeed, we note that plaintiff’s moving and reply papers did not even mention that theory, nor did they mention attorney’s fees or interest at the rate of 18% per annum … .

We conclude that the court further erred in searching the record pursuant to CPLR 3212 (b) and granting summary judgment on an account stated theory to plaintiff, the moving party. Although a court has the authority to search the record and grant summary judgment to a nonmoving party (see id.), that authority is applicable “only with respect to a [claim] or issue that is the subject of the motions before the court”… . Here, plaintiff was the moving party and an account stated theory was not the subject of the motion before the court. Diamond Roofing Co., Inc. v PCL Props., LLC, 2017 NY Slip Op 06745, Fourth Dept 9-29-17

 

CIVIL PROCEDURE (SUPREME COURT SHOULD NOT HAVE AWARDED SUMMARY JUDGMENT ON A CAUSE OF ACTION (ACCOUNT STATED) NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/CONTRACT LAW (SUPREME COURT SHOULD NOT HAVE AWARDED SUMMARY JUDGMENT ON A CAUSE OF ACTION (ACCOUNT STATED) NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/SUMMARY JUDGMENT  (SUPREME COURT SHOULD NOT HAVE AWARDED SUMMARY JUDGMENT ON A CAUSE OF ACTION (ACCOUNT STATED) NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/JUDGES  (SUPREME COURT SHOULD NOT HAVE AWARDED SUMMARY JUDGMENT ON A CAUSE OF ACTION (ACCOUNT STATED) NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))

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SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the petitioner-county’s motion to permanently stay arbitration should not have been granted. The respondent-union filed a grievance on behalf of a part-time sheriff’s dispatcher when another dispatcher was made full-time:

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The Court of Appeals has set forth a two-pronged test to determine “whether a grievance is arbitrable” (Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, 278 [Johnstown] …). In the first prong of the test, known as “the may-they-arbitrate’ prong,” we “ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … . If we conclude that arbitration is not prohibited, we move to the second prong, known as “the did-they-agree-to-arbitrate’ prong,” in which we “examine the CBA to determine if the parties have agreed to arbitrate the dispute at issue” … .

Here, petitioner does not contend that arbitration of [the dispatcher’s] grievance is prohibited, and we therefore are concerned only with the second prong of the Johnstown test. With respect to that issue, “[i]t is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim”… . Furthermore, “[w]here, as here, there is a broad arbitration clause and a reasonable relationship’ between the subject matter of the dispute and the general subject matter of the parties’ [CBA], the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them’ ” … . Matter of Lewis County (CSEA Local 1000, AFSCME, AFL-CIO, Lewis County Sheriff’s Empls. Unit #7250-03, Lewis County Local 825), 2017 NY Slip Op 06743, Fourth Dept 9-29-17

 

ARBITRATION (COLLECTIVE BARGAINING AGREEMENT, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/EMPLOYMENT LAW (COLLECTIVE BARGAINING AGREEMENT, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/MUNICIPAL LAW  (COLLECTIVE BARGAINING AGREEMENT, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/COLLECTIVE BARGAINING AGREEMENT (ARBITRATION, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/UNIONS (ARBITRATION, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))

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SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a matter concerning the proper pay for a teacher was arbitrable under the collective bargaining agreement (CBA). The school districts (petitioner’s) motion to permanently stay arbitration should not have been granted:

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… [R]espondent (union) filed a grievance on behalf of one of its members, a teacher, alleging that petitioner had violated the provisions of the CBA that require petitioner to maintain salary schedules in an ethical manner, to adjust teacher salaries based on graduate credits earned, and to abide by the salary schedules. …

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It is well settled that courts must apply a two-part test to determine whether a matter is subject to arbitration under a CBA … . “First, the court must determine whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance’ ” … . If there is no such prohibition, the court must examine the CBA to determine “whether the parties in fact agreed to arbitrate the particular dispute” … . …

… [T]he arbitration of disputes concerning public school teachers’ salaries is not proscribed by law or public policy, and thus only the second prong is at issue … .

… The dispute concerns whether petitioner placed the teacher at the correct step of the salary schedule and paid her properly based on the graduate credits that she earned, and thus it is reasonably related to the general subject matter of the CBA …  Issues concerning whether the CBA supports a grievance arising from the initial placement of a new employee on the salary schedule, as opposed to the proper payment of an existing employee, “are matters involving the scope of the substantive [CBA] provisions and, as such, are for the arbitrator” to resolve … . … [T]he clause in the CBA stating that an arbitrator has “no power to alter, add to, or detract from” the CBA does not render the dispute nonarbitrable … . Matter of Thousand Is. Cent. Sch. Dist. v Thousand Is. Educ. Assn., 2017 NY Slip Op 06759, Fourth Dept 9-29-17

ARBITRATION (EMPLOYMENT LAW, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/EMPLOYMENT LAW (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/EDUCATION-SCHOOL LAW  (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/TEACHERS (EMPLOYMENT LAW, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/UNIONS (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/COLLECTIVE BARGAINING AGREEMENT (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))

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DEFENDANT SAID HE WOULD NOT GO TO THE POLICE STATION WITHOUT A PARENT OR AN ATTORNEY, THAT CONSTITUTED AN ASSERTION OF HIS RIGHT TO COUNSEL, SUBSEQUENT STATEMENT SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant had asserted his right to counsel by saying he would not go to the police station without a parent or an attorney. Therefore the motion to suppress the subsequent statement should have been granted. Before the defendant went to the station, the police, at defendant’s request, took the defendant to see a man defendant described as like a father to him. The man accompanied the police and defendant to the station and spoke with the defendant before the defendant waived his rights a made a statement:

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In People v Stroh (48 NY2d 1000, 1001), the defendant told the police that “he would like to have either an attorney or a priest to talk to, to have present.’ ” The Court held that, “[b]y making this request, [the defendant] asserted his right to counsel” (id.). We see no relevant distinction in the facts presented in this case, and we are therefore constrained to conclude that the statements made by defendant to the detective at the police station must be suppressed because defendant asserted his right to counsel. …

We conclude that the court’s error is not harmless inasmuch as there is a “reasonable possibility that the error might have contributed to defendant’s conviction” … . We therefore grant that part of the omnibus motion seeking to suppress the statements made by defendant at the police station … , and we grant a new trial … . People v Lewis, 2017 NY Slip Op 06776, Fourth Dept 9-29-17

 

CRIMINAL LAW (DEFENDANT SAID HE WOULD NOT GO TO THE POLICE STATION WITHOUT A PARENT OR AN ATTORNEY, THAT CONSTITUTED AN ASSERTION OF HIS RIGHT TO COUNSEL, SUBSEQUENT STATEMENT SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT SAID HE WOULD NOT GO TO THE POLICE STATION WITHOUT A PARENT OR AN ATTORNEY, THAT CONSTITUTED AN ASSERTION OF HIS RIGHT TO COUNSEL, SUBSEQUENT STATEMENT SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, DEFENDANT SAID HE WOULD NOT GO TO THE POLICE STATION WITHOUT A PARENT OR AN ATTORNEY, THAT CONSTITUTED AN ASSERTION OF HIS RIGHT TO COUNSEL, SUBSEQUENT STATEMENT SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/SUPPRESSION (CRIMINAL LAW, STATEMENT, DEFENDANT SAID HE WOULD NOT GO TO THE POLICE STATION WITHOUT A PARENT OR AN ATTORNEY, THAT CONSTITUTED AN ASSERTION OF HIS RIGHT TO COUNSEL, SUBSEQUENT STATEMENT SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))/RIGHT TO COUNSEL (CRIMINAL LAW, SUPPRESSION, DEFENDANT SAID HE WOULD NOT GO TO THE POLICE STATION WITHOUT A PARENT OR AN ATTORNEY, THAT CONSTITUTED AN ASSERTION OF HIS RIGHT TO COUNSEL, SUBSEQUENT STATEMENT SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT))

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ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT).

The Third Department determined the fact that defendant was not required to register as a sex offender under the law of Washington state did not affect the requirement that he register in New York. The Full Faith and Credit Clause was not implicated:

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Defendant argues that requiring him to register in New York when a Washington court order relieved him of the obligation to register in that state violates the Full Faith and Credit Clause (see US Const, art IV, § 1). However, this clause is designed “to avoid conflicts between [s]tates in adjudicating the same matters” … and “is not implicated where the issue decided by a court in [another] state is different from the issue being decided by a New York court” … . Here, Washington and New York have each separately adjudicated the risks posed by defendant to their respective citizens, and each state has imposed sex offender registration requirements pursuant to the governing sex offender registration laws in each state and, accordingly, neither state has adjudicated the “same matter” in violation of the Full Faith and Credit Clause .., .

… [F]ull faith and credit principles do not require New York to assign an offender the same risk level as that imposed by the jurisdiction where the conviction occurred … . …

… [Because] each state is assessing the risks posed to its own citizens and vulnerable populations and applying its own registration laws, the courts are not adjudicating the “same matters” in violation of the Full Faith and Credit Clause … . People v Hlatky, 2017 NY Slip Op 06693, Third Dept 9-28-17

 

CRIMINAL LAW (ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA)  (ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT)/CONSTITUTIONAL LAW (FULL FAITH AND CREDIT CLAUSE, ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))/FULL FAITH AND CREDIT CLAUSE (SEX OFFENDER REGISTRATION ACT, ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))

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ADOPTION OF CHILD BORN TO A SURROGATE WHILE THE PARTNERS WERE LEGALLY MARRIED UNDER BRITISH LAW WAS PROPERLY VACATED, DURING THE ADOPTION PROCEEDINGS THE COURT WAS MISINFORMED ABOUT ONE OF THE PARTNER’S INVOLVEMENT WITH THE CHILD (FIRST DEPT).

The First Department determined Family Court properly vacated an adoption because one of the parties (Ming) who had parental rights was not notified of the adoption proceedings and the court was not fully or accurately informed of Ming’s involvement with the child. Ming was legally married to Marco under British law. Both Ming and Marco had contributed sperm and a surrogate carried the baby. The child was conceived with Marco’s sperm and Marco was ultimately awarded custody. After Ming moved back to England, Carlos, Marco’s new partner, adopted the child. It was that adoption which was properly vacated:

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It is undisputed that Ming and Marco’s marriage in the UK was effective as of August 2008. New York courts as a matter of comity will recognize such out-of-state marriages … . The child was born in 2014, as the result of jointly executed surrogacy agreements, at a time when the couple was considered legally married, thus giving rise to the presumption that the child is the legitimate child of both Marco and Ming .,, . After the child was born, Marco, Ming and the child lived together as a family, and the couple took affirmative steps in the UK to establish Ming’s parental rights in accordance with UK law. Under these circumstances, the Missouri judgment in 2014 awarding Marco sole and exclusive custody of the child, as opposed to the egg donor and surrogate, was insufficient to rebut the presumption of legitimacy.

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… Marco and Ming were deemed legally married when they embarked on the surrogacy process to have a child together .., . Accordingly, the child was born in wedlock, and Ming was entitled to notice of the adoption proceeding … . …

… The adoption petition required petitioner to give a sworn statement that the child to be adopted was not the subject of any proceeding affecting his or her custody or status. Even though petitioner was aware of the Florida divorce action before finalization of the adoption, he failed to disclose the action to the court, instead averring in a supplemental affidavit that there had been no change in circumstances “whatsoever” since the filing of the adoption petition. Matter of Maria-Irene D., 2017 NY Slip Op 06716, First Dept 9-28-17

 

FAMILY LAW (ADOPTION OF CHILD BORN TO A SURROGATE WHILE THE PARTNERS WERE LEGALLY MARRIED UNDER BRITISH LAW WAS PROPERLY VACATED, DURING THE ADOPTION PROCEEDINGS THE COURT WAS MISINFORMED ABOUT ONE OF THE PARTNER’S INVOLVEMENT WITH THE CHILD (FIRST DEPT))/ADOPTION (ADOPTION OF CHILD BORN TO A SURROGATE WHILE THE PARTNERS WERE LEGALLY MARRIED UNDER BRITISH LAW WAS PROPERLY VACATED, DURING THE ADOPTION PROCEEDINGS THE COURT WAS MISINFORMED ABOUT ONE OF THE PARTNER’S INVOLVEMENT WITH THE CHILD (FIRST DEPT))/MARRIAGE  (ADOPTION OF CHILD BORN TO A SURROGATE WHILE THE PARTNERS WERE LEGALLY MARRIED UNDER BRITISH LAW WAS PROPERLY VACATED, DURING THE ADOPTION PROCEEDINGS THE COURT WAS MISINFORMED ABOUT ONE OF THE PARTNER’S INVOLVEMENT WITH THE CHILD (FIRST DEPT))

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RELIABILITY OF CONFIDENTIAL INFORMANT NOT INDEPENDENTLY ASSESSED BY HEARING OFFICER, DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT).

The Third Department determined the disciplinary determination must be annulled and expunged because the hearing officer did not independently assess the credibility of an informant:

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“A disciplinary determination may be based upon hearsay confidential information provided that it is sufficiently detailed and probative for the Hearing Officer to make an independent assessment of the informant’s reliability”… . Here, the Hearing Officer, without informing petitioner, interviewed the correction officer who investigated the incident and authored the misbehavior report about the information obtained from the confidential informant. Although the correction officer attested to the informant’s past reliability, the substance of the information gleaned from the informant was too vague and insufficiently detailed to allow the Hearing Officer to independently assess the reliability or credibility of the informant … . Because the confidential information was instrumental in finding petitioner guilty of the charges, the determination is not supported by substantial evidence and must be annulled … . Matter of Fields v Annucci, 2017 NY Slip Op 06697, Third Dept 9-28-17

 

DISCIPLINARY HEARINGS (INMATES) (RELIABILITY OF CONFIDENTIAL INFORMANT NOT INDEPENDENTLY ASSESSED BY HEARING OFFICER, DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT))/EVIDENCE (DISCIPLINARY HEARINGS, INMATES, RELIABILITY OF CONFIDENTIAL INFORMANT NOT INDEPENDENTLY ASSESSED BY HEARING OFFICER, DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT))

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MOTION FOR DIRECTED VERDICT MADE BEFORE PLAINTIFF CLOSED ITS CASE SHOULD NOT HAVE BEEN GRANTED, MOTION FOR DIRECTED VERDICT BASED UPON PLAINTIFF’S ADMISSIONS PROPERLY GRANTED, INDEMNIFICATION AGREEMENT VOID UNDER GENERAL OBLIGATIONS LAW (FIRST DEPT).

The First Department, reversing (in part) Supreme Court, determined one of defendant’s motions for a directed verdict was premature because plaintiff had not finished presenting proof, a second motion for a directed verdict was properly granted based upon admissions made by plaintiff’s witness, and a cross-claim based upon an indemnification agreement failed because the agreement purported to indemnify a party for its own negligence (in violation of the General Obligations Law). With respect to the premature motion for a directed verdict, the court wrote:

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“Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions.”

In interpreting this provision, this Court has held that the requirement that a party opposing a directed verdict motion must have closed its presentation of evidence “must be strictly enforced” (Griffin v Clinton Green S., LLC, 98 AD3d 41, 46 [1st Dept 2012]). Further, we have held that “the grant of a dismissal [pursuant to CPLR 4401] prior to the close of the opposing party’s case will be reversed as premature, even if the ultimate success of the opposing party in the action is improbable” … . This Court in Griffin emphasized the importance of each party being “afford[ed] . . . a day in court” … . * * *

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[Defendant] essentially asks us to endorse a system whereby a party can make a directed verdict motion at any time during trial, so long as the party opposing the motion has put in some unspecified quantum of evidence that, though it may not have been everything the opposing party intended to put in, was sufficient for the trial court to determine that there were no issues of fact and it could decide for the movant as a matter of law. We decline to do so. 11 Essex St. Corp. v Tower Ins. Co. of N.Y., 2017 NY Slip Op 06709, First Dept 9-28-17

 

CIVIL PROCEDURE (MOTION FOR DIRECTED VERDICT MADE BEFORE PLAINTIFF CLOSED ITS CASE SHOULD NOT HAVE BEEN GRANTED, MOTION FOR DIRECTED VERDICT BASED UPON PLAINTIFF’S ADMISSIONS PROPERLY GRANTED (FIRST DEPT))/DIRECTED VERDICT, MOTION FOR  (MOTION FOR DIRECTED VERDICT MADE BEFORE PLAINTIFF CLOSED ITS CASE SHOULD NOT HAVE BEEN GRANTED, MOTION FOR DIRECTED VERDICT BASED UPON PLAINTIFF’S ADMISSIONS PROPERLY GRANTED (FIRST DEPT))CONTRACT LAW (INDEMNIFICATION AGREEMENT VOID UNDER GENERAL OBLIGATIONS LAW (FIRST DEPT))/GENERAL OBLIGATIONS LAW (INDEMNIFICATION AGREEMENT VOID UNDER GENERAL OBLIGATIONS LAW (FIRST DEPT))/INDEMNIFICATION AGREEMENT  (INDEMNIFICATION AGREEMENT VOID UNDER GENERAL OBLIGATIONS LAW (FIRST DEPT))/EVIDENCE  (MOTION FOR DIRECTED VERDICT MADE BEFORE PLAINTIFF CLOSED ITS CASE SHOULD NOT HAVE BEEN GRANTED, MOTION FOR DIRECTED VERDICT BASED UPON PLAINTIFF’S ADMISSIONS PROPERLY GRANTED (FIRST DEPT))

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PLAINTIFF DID NOT DEMONSTRATE HE WAS READY WILLING AND ABLE TO PURCHASE THE PROPERTY, SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had not met the proof requirements for specific performance of a real estate contract:

“To prevail on a cause of action for specific performance of a contract for the sale of real property, a plaintiff purchaser must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, that the vendor was able to convey the property, and that there was no adequate remedy at law” … . In moving for summary judgment on a complaint seeking specific performance of a contract, the plaintiff purchaser must submit evidence demonstrating financial ability to purchase the property in order to demonstrate that it was ready, willing, and able to purchase such property… . In the absence of such evidence, a plaintiff purchaser’s motion for summary judgment in its favor on a cause of action for specific performance should be denied due to the plaintiff purchaser’s failure to meet its initial burden … . “When a purchaser submits no documentation or other proof to substantiate that it had the funds necessary to purchase the property, it cannot prove, as a matter of law, that it was ready, willing, and able to close” … .

Here, the plaintiff failed to establish, prima facie, that he was ready, willing, and able to purchase the subject property, since he did not submit any evidence demonstrating his financial ability to close the transaction … . Grunbaum v Nicole Brittany, Ltd., 2017 NY Slip Op 06638, Second Dept 9-27-17

REAL ESTATE (PLAINTIFF DID NOT DEMONSTRATE HE WAS READY WILLING AND ABLE TO PURCHASE THE PROPERTY, SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CONTRACT LAW (REAL ESTATE, SPECIFIC PERFORMANCE, PLAINTIFF DID NOT DEMONSTRATE HE WAS READY WILLING AND ABLE TO PURCHASE THE PROPERTY, SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SPECIFIC PERFORMANCE (REAL ESTATE, PLAINTIFF DID NOT DEMONSTRATE HE WAS READY WILLING AND ABLE TO PURCHASE THE PROPERTY, SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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