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(1) PURSUANT TO THE PERMISSIVE COUNTERCLAIM RULE, THE DOCTRINE OF RES JUDICATA DID NOT APPLY, (2) PRETRIAL MOTION TO DISMISS IS RARELY APPROPRIATE WITHIN THE SIMPLIFIED SMALL CLAIMS PROCEDURE 3RD DEPT.

The Third Department, reversing County Court, determined the small claims action seeking damages for intentional infliction of emotional distress and malicious prosecution was not precluded by the doctrine of res judicata. The prior action between the same parties was a property dispute concerning a right-of-way. Although the small claims matter arose from the property dispute, pursuant to the permissive counterclaim rule, the doctrine of res judicata did not apply. The Third Department also determined the pretrial motion to dismiss the small claims matter should not have been granted, noting such a motion should rarely be entertained within the simplified small claims procedure:

The doctrine of res judicata provides that “‘once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'” … . Nevertheless, the permissive counterclaim rule operates to “save from the bar of res judicata those claims for separate or different relief that could have been but were not interposed in the parties’ prior action” so long as the second action is not based on “a preexisting claim for relief that would impair the rights or interests established in the first action” … .

A review of the record establishes that, although some of plaintiff’s allegations relate to events that predate the first action and are connected to defendants’ attempts in the first action to assert their rights as property owners, the monetary relief that plaintiff now seeks is different than the relief he obtained in the first action and would in no way impair the rights established by the first action. Thus, we find that County Court’s conclusion that the doctrine of res judicata bars plaintiff from raising his negligent infliction of emotional distress and malicious prosecution claims in this action was clearly erroneous … . Accordingly, we conclude that “substantial justice was not meted out according to the substantive law” as to these claims … .

We also find that County Court erred in addressing the merits of defendants’ pretrial motion to dismiss as it related to the malicious prosecution claim inasmuch as informal and simplified procedures govern small claims actions (see UCCA 1804), and pretrial motions to dismiss should rarely be entertained … . In light of the fact that plaintiff, who appears pro se, has not yet had the opportunity to present his evidence at a hearing, we find that substantial justice will best be served by remittal to City Court for a prompt trial … . Rackowski v Araya, 2017 NY Slip Op 05481, 3rd Dept 7-6-17

 

CIVIL PROCEDURE ((1) PURSUANT TO THE PERMISSIVE COUNTERCLAIM RULE, THE DOCTRINE OF RES JUDICATA DID NOT APPLY, (2) PRETRIAL MOTION TO DISMISS IS RARELY APPROPRIATE WITHIN THE SIMPLIFIED SMALL CLAIMS PROCEDURE 3RD DEPT)/RES JUDICATA (PURSUANT TO THE PERMISSIVE COUNTERCLAIM RULE, THE DOCTRINE OF RES JUDICATA DID NOT APPLY 3RD DEPT)/PERMISSIVE COUNTERCLAIM RULE (RES JUDICATA, PURSUANT TO THE PERMISSIVE COUNTERCLAIM RULE, THE DOCTRINE OF RES JUDICATA DID NOT APPLY 3RD DEPT)/SMALL CLAIMS (CIVIL PROCEDURE, PRETRIAL MOTION TO DISMISS IS RARELY APPROPRIATE WITHIN THE SIMPLIFIED SMALL CLAIMS PROCEDURE 3RD DEPT)/DISMISS, PRETRIAL MOTION TO (SMALL CLAIMS, PRETRIAL MOTION TO DISMISS IS RARELY APPROPRIATE WITHIN THE SIMPLIFIED SMALL CLAIMS PROCEDURE 3RD DEPT)/COUNTERCLAIMS (PURSUANT TO THE PERMISSIVE COUNTERCLAIM RULE, THE DOCTRINE OF RES JUDICATA DID NOT APPLY 3RD DEPT)

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CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT.

The Second Department determined the city defendants did not owe a duty of care to plaintiff’s decedent (Rennix) despite the misconduct of a city employee. The city employee, an emergency medical technician (EMT) named Jackson, was in a restaurant when a restaurant employee collapsed. Because Jackson was not supposed to be on a break, she did not attempt to help plaintiff’s decedent, who died before the ambulance arrived. Rennix was pregnant and her baby also died. Because there was no special relationship between the city and plaintiff’s decedent, the city was not liable:

A municipal emergency response system is a governmental function, and thus where an emergency medical technician is alleged to have been negligent while acting in this governmental capacity, the municipality cannot be held liable unless it owed a “special duty” to the injured party … . There are three recognized situations in which a special duty may arise: “(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … .

The plaintiffs contend that the first category applies to the circumstances here, and a special duty arose from Jackson’s violation of Penal Law § 195.00(2), which criminalizes official misconduct. * * *

Even assuming the plaintiffs could establish that Jackson was guilty of misconduct, the violation of Penal Law § 195.00(2) does not give rise to a special duty so as to impose tort liability. For a special duty to arise from the breach of a statutory duty, the governing statute must authorize a private right of action … . A private right of action “may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme”… .

Here, the plaintiffs’ claim fails at the first step of the analysis, as Rennix was not of a class for whose particular benefit the statute was enacted. Rennix v Jackson, 2017 NY Slip Op 05471, 2nd Dept 7-5-17

 

NEGLIGENCE (MUNICIPAL LAW, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)/MUNICIPAL LAW (NEGLIGENCE, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)/IMMUNITY (MUNICIPAL LAW, NEGLIGENCE, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)/SPECIAL RELATIONSHIP (MUNICIPAL LAW, NEGLIGENCE, CITY NOT LIABLE FOR A CITY EMT’S REFUSAL TO OFFER MEDICAL ASSISTANCE TO PLAINTIFF’S DECEDENT, A RESTAURANT EMPLOYEE WHO HAD COLLAPSED WHILE THE EMT WAS IN THE RESTAURANT 2ND DEPT)

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FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT.

The Second Department, reversing Supreme Court, determined defendant sex offender’s “for cause” challenge to a juror should have been granted in this civil commitment proceeding:

The record of the voir dire reveals that after the appellant’s counsel disclosed that the appellant previously had committed rapes and robberies against 11 different victims and had been dubbed “the Flatbush rapist” in 1991, a prospective juror repeatedly turned away from counsel, said “Wow” on numerous occasions, and acknowledged that she remembered the Flatbush rapist. She further expressed the concern that “I got too many granddaughters,” and when asked at various points if the appellant’s prior offenses might influence her ability to be fair, she remarked “I just went blank,” “I don’t know, I—it&mdash,” and “You know I’m looking at the man and I’m—I know his face, but that’s when he was young and I’m like, wow.” Significantly, the prospective juror never unequivocally asserted that she could be fair and impartial following these remarks. The appellant’s subsequent challenge to the prospective juror for cause was denied, and the appellant utilized a peremptory challenge to remove her from the panel.

The appellant contends that the denial of his for-cause challenge constituted error. We agree. Contrary to the State’s contention, this issue is preserved for appellate review, since the appellant exhausted his peremptory challenges before jury selection was completed (… Mental Hygiene Law § 10.07[b]; CPL 270.20[2]). Turning to the merits, CPL 270.20(1)(b) provides that a challenge for cause is authorized when a prospective juror “has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial.” Where a prospective juror’s responses raise serious doubt with regard to his ability to be impartial, that prospective juror must be excused absent an unequivocal statement on the record assuring that he or she can be fair and impartial… . Here, the equivocal responses of the prospective juror, along with her other remarks and expressions of concern, raised substantial doubt as to whether she could be fair and impartial in her evaluation of the case, triggering an obligation on the part of the Supreme Court to inquire further … . Matter of State of New York v Keith G., 2017 NY Slip Op 05444, 2nd Dept 7-5-17

 

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL COMMITMENT, FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT)/CRIMINAL LAW (MENTAL HYGIENE LAW, SEX OFFENDERS, CIVIL COMMITMENT, FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT)/SEX OFFENDERS (MENTAL HYGIENE LAW, CIVIL COMMITMENT, FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT)/CIVIL COMMITMENT (SEX OFFENDERS, MENTAL HYGIENE LAW, FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT)/JURORS (MENTAL HYGIENE LAW, SEX OFFENDERS, CIVIL COMMITMENT, FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT)/FOR CAUSE CHALLENGE (JURORS, MENTAL HYGIENE LAW, CIVIL COMMITMENT, SEX OFFENDERS, FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT)

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BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department determined the bank did not meet the requirements for the business records exception to the hearsay rule, the bank’s motion for summary judgment should not have been granted:

In support of its motion, the plaintiff relied upon the affidavit of Meldin Rhodes, assistant secretary of Nationstar Mortgage, LLC, the current loan servicer. Rhodes averred that “servicing records” showed that the notice of default was mailed to the defendant on November 2, 2011, and the RPAPL 1304 notice was mailed on December 28, 2012. Attached to Rhodes’s affidavit were copies of the notice of default and the RPAPL 1304 notice purportedly sent by Bank of America, N.A. (hereinafter BOA), the prior loan servicer, to the defendant.

The plaintiff failed to demonstrate the admissibility of the records relied upon by Rhodes under the business records exception to the hearsay rule (see CPLR 4518). Rhodes, an employee of the current loan servicer, did not aver that he was personally familiar with the record keeping practices and procedures of BOA, the prior loan servicer. Thus, Rhodes failed to lay a proper foundation for admission of records concerning service of the required notices, and his assertions based on these records were inadmissible … .

Inasmuch as the plaintiff failed to tender sufficient evidence to demonstrate the absence of triable issues of fact as to its strict compliance with RPAPL 1304 and the notice requirement in the mortgage, its motion should have been denied, without regard to the sufficiency of the opposition papers  … . Deutsche Bank Natl. Trust Co. v Carlin. 2017 NY Slip Op 05421, 2nd Dept 7-5-17

 

FORECLOSURE (EVIDENCE, BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, EVIDENCE, BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/EVIDENCE (FORECLOSURE, BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/HEARSAY (FORECLOSURE,  BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (FORECLOSURE,  BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET IN THIS FORECLOSURE ACTION, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)

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PLAINTIFF CONDOMINIUM OWNER STATED A CAUSE OF ACTION AGAINST THE CONDOMINIUM DEFENDANTS FOR VIOLATION OF THE FAIR HOUSING ACT 2ND DEPT.

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action for violation of the Fair Housing Act. Plaintiff, a condominium owner, alleged she was denied access to common areas of the defendants’ (Vista’s) condominium complex because of her ethnicity:

The Supreme Court … erred in granting that branch of the Vista defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the third cause of action to recover damages for housing discrimination in violation of the federal Fair Housing Act (42 USC § 3601 et seq.) insofar as asserted against them. That statute provides, in relevant part, that “it shall be unlawful . . . [t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin” (42 USC § 3604[b]). At the motion to dismiss stage, all that is required are sufficiently pleaded allegations that plaintiffs are part of a protected class and that defendants took actions against them that are forbidden by the Fair Housing Act on the basis of their membership in the protected class … . In this case, the complaint alleged, inter alia, that the Vista defendants discriminated against the plaintiff and her family “in an effort to prevent [them] from utilizing the facilities upon the common area,” and that the Vista defendants had engaged in a pattern of discrimination against the plaintiff and her family because they are of Hispanic descent. Accepting these allegations as true, and affording the plaintiff the benefit of every possible favorable inference, the complaint adequately stated a cause of action to recover damages for housing discrimination in violation of the Federal Fair Housing Act (42 USC § 3601 et seq.) insofar as asserted against the Vista defendants. Gutierrez v McGrath Mgt. Servs., Inc., 2017 NY Slip Op 05425, 2nd Dept 7-5-17

FAIR HOUSING ACT (PLAINTIFF CONDOMINIUM OWNER STATED A CAUSE OF ACTION AGAINST THE CONDOMINIUM DEFENDANTS FOR VIOLATION OF THE FAIR HOUSING ACT 2ND DEPT)/CONDOMINIUMS (FAIR HOUSING ACT, PLAINTIFF CONDOMINIUM OWNER STATED A CAUSE OF ACTION AGAINST THE CONDOMINIUM DEFENDANTS FOR VIOLATION OF THE FAIR HOUSING ACT 2ND DEPT)/DISCRIMINATION (FAIR HOUSING ACT, PLAINTIFF CONDOMINIUM OWNER STATED A CAUSE OF ACTION AGAINST THE CONDOMINIUM DEFENDANTS FOR VIOLATION OF THE FAIR HOUSING ACT 2ND DEPT)

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DEFENDANT CHARGED WITH INSURANCE FRAUD INVOLVING AIG, FOR CAUSE CHALLENGE TO JUROR WHO WORKED FOR AIG SHOULD HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing defendant’s convictions, determined the “for cause” challenge to a juror should have been granted. Defendant was charged with offenses related to insurance fraud. The insurer was AIG. The prospective juror worked for AIG:

Here, during the first round of jury selection, prospective juror No. 16 indicated that she worked for AIG. Upon inquiry by the defendant, the prospective juror explained that her job involved analyzing the financial policies for three divisions at AIG: “[a]sset management, financial services, and domestic life.” We note that, in response to the defendant’s questions, the prospective juror did not provide a completely unequivocal assurance that she could be fair and impartial. She thought that she could be fair and impartial, but conceded that there “may be” a conflict of interest from the defendant’s perspective, and that it might be better if she were on a different case so as to enable the defendant to feel “comfortable” that he “wouldn’t be prejudiced in any way.” Thereafter, the County Court denied the defendant’s for-cause challenge without asking the prospective juror any questions about her employment at AIG or how it might affect her ability to serve as a juror, notwithstanding that the court had an obligation to try and determine “[a]ll issues of fact or law arising on the challenge” (CPL 270.20[2]).

Contrary to the County Court’s determination, the prospective juror’s professional relationship with AIG, her employer, rendered her unsuitable for jury service and necessitated her removal for cause (see CPL 270.20[1][c]… ). We note that AIG drafted and funded the insurance check underlying several counts of the indictment, and AIG was the named complainant in the count alleging insurance fraud in the third degree. Under all the circumstances, there was a considerable risk that the prospective juror could unwittingly give undue credence to witnesses from AIG and her service would give rise to the perception that the defendant did not receive a fair trial … . People v Guldi, 2017 NY Slip Op 05459, 2nd Dept 7-5-17

 

CRIMINAL LAW (JURORS, FOR CAUSE CHALLENGE, DEFENDANT CHARGED WITH INSURANCE FRAUD INVOLVING AIG, FOR CAUSE CHALLENGE TO JUROR WHO WORKED FOR AIG SHOULD HAVE BEEN GRANTED 2ND DEPT)/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE,  DEFENDANT CHARGED WITH INSURANCE FRAUD INVOLVING AIG, FOR CAUSE CHALLENGE TO JUROR WHO WORKED FOR AIG SHOULD HAVE BEEN GRANTED 2ND DEPT)/FOR CAUSE CHALLENGE (CRIMINAL LAW, DEFENDANT CHARGED WITH INSURANCE FRAUD INVOLVING AIG, FOR CAUSE CHALLENGE TO JUROR WHO WORKED FOR AIG SHOULD HAVE BEEN GRANTED 2ND DEPT)

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EMPANELING AN ANONYMOUS JURY VIOLATED THE CRIMINAL PROCEDURE LAW AND WAS NOT HARMLESS ERROR 2ND DEPT.

The Second Department, in a full-fledged opinion by Justice Leventhal, reversing (over a dissent) defendants' convictions in a gang assault case, and granting leave for the People to appeal to the Court of Appeals, determined it was reversible error to empanel an anonymous jury. The trial judge explained his reasoning for not revealing the jurors' names as follows: “I know the last five years an increasing number of jurors told me that A, they feel uncomfortable walking in and out of the courtroom to their cars; B, they feel really uncomfortable giving their names, especially in violent felonies. And after speaking to [the Commissioner of Jurors] about it, she told me that's exactly the same feedback she gets, that jurors are uncomfortable about those two things, especially having their names in the courtroom. Now, my intent is to get as many jurors as we can possibly get to serve. And I think that because of that, I think that it limits the number of jurors that we get because they don't want to go through that worry and stress . . . about this because these are violent felonies. You know and I know we deal with this stuff every day, jurors don't. And that's the reason. It's not specifically this case, but that's the reason it's happening more and more and more often. So that's the reason.” The Second Department held the empaneling of an anonymous jury violated the criminal procedure law and the error was not harmless (the dissent argued the error was harmless):

The best evidence of the Legislature's intent is the text of the statute itself … . Where the statutory language is clear and unambiguous, a court should construe it so as to give effect to the plain meaning of the words used … .

CPL 270.15(1)(a) provides, in part, “the court shall direct that the names of not less than twelve members of the panel be drawn and called as prescribed by the judiciary law.”

CPL 270.15(1-a) provides:

“The court may for good cause shown, upon motion of either party or any affected person or upon its own initiative, issue a protective order for a stated period regulating disclosure of the business or residential address of any prospective or sworn juror to any person or persons, other than to counsel for either party. Such good cause shall exist where the court determines that there is a likelihood of bribery, jury tampering or of physical injury or harassment of the juror.”

Read together, these sections of CPL 270.15 prohibit a trial court from withholding the names of prospective jurors. The plain language of CPL 270.15(1)(a) provides that the names be called. CPL 270.15(1-a) allows for the issuance of a protective order regulating disclosure of addresses. It does not allow for the issuance of a protective order regulating disclosure of names. People v Flores, 2017 NY Slip Op 05457, 2nd Dept 7-5-17

CRIMINAL LAW (EMPANELING AN ANONYMOUS JURY VIOLATED THE CRIMINAL PROCEDURE LAW AND WAS NOT HARMLESS ERROR 2ND DEPT)/JURIES (CRIMINAL LAW, EMPANELING AN ANONYMOUS JURY VIOLATED THE CRIMINAL PROCEDURE LAW AND WAS NOT HARMLESS ERROR 2ND DEPT)/ANONYMOUS JURIES (CRIMINAL LAW, EMPANELING AN ANONYMOUS JURY VIOLATED THE CRIMINAL PROCEDURE LAW AND WAS NOT HARMLESS ERROR 2ND DEPT)

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NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT.

The Second Department, reversing the Court of Claims, determined a notice of intention to file a claim for medical malpractice was valid. A notice of intention to file a claim, unlike a notice of claim, may be filed by any “interested person,” here the wife of decedent (who was not representing the decedent’s estate at the time):

The claimant’s husband (hereinafter the decedent) was treated at Stony Brook University Hospital (hereinafter Stony Brook) from February 13, 2005, through March 3, 2005. The decedent was later treated at Mount Sinai Hospital from March 18, 2006, until his death on October 30, 2006. On April 19, 2006, the claimant, “as Proposed Guardian for” the decedent, filed a notice of intention to file a claim against the defendant State of New York to recover damages for medical malpractice that allegedly occurred while the decedent was treated at Stony Brook (hereinafter the notice of intention). On January 3, 2008, the claimant was granted letters of administration for the decedent’s estate. On January 11, 2008, the claimant filed a claim against the defendant to recover damages for medical malpractice, wrongful death, and loss of services.

The Court of Claims should have denied the defendant’s motion pursuant to Court of Claims Act §§ 10 and 11 to dismiss so much of the claim as sought to recover damages for the decedent’s conscious pain and suffering arising from medical malpractice. Contrary to the defendant’s contention and the court’s conclusion, the notice of intention filed by the claimant on April 19, 2006, was not invalid on the ground that the claimant lacked the authority to file it on behalf of the decedent, as the notice may be given by “any interested person” … . The Court of Appeals’ decision in Lichtenstein v State (93 NY2d 911) does not compel a different result, as that case involved the filing of a claim itself, as opposed to a notice of intention to file a claim. Matter of Dolce v State of New York, 2017 NY Slip Op 05434, 2nd Dept 7-5-17

COURT OF CLAIMS (NOTICE OF INTENTION TO FILE A CLAIM, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)/NOTICE OF INTENTION TO FILE A CLAIM (COURT OF CLAIMS, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)/TRUSTS AND ESTATES (COURT OF CLAIMS, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)

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CONDOMINIUM BOARD STATED BREACH OF CONTRACT CAUSES OF ACTION AGAINST THE FIRM WHICH INSPECTED THE CONDOMINIUMS DURING CONSTRUCTION 2ND DEPT.

The Second Department determined plaintiff, suing on behalf of condominium owners, had stated breach of contract causes of action against the defendant (KEPC) which had inspected the condominiums during construction on behalf of the developer (SDS). The complaint sufficiently alleged plaintiff was a third-party beneficiary of the oral contract between KEPC and SDS and was a successor-in-interest to the contract between KEPC and SDS:

A nonparty to a contract may maintain a cause of action alleging breach of contract only if it is an intended, and not a mere incidental, beneficiary of the contract … . However, “the identity of a third-party beneficiary need not be set forth in the contract or, for that matter, even be known as of the time of its execution” … . A party asserting rights as a third-party beneficiary must allege: (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for its benefit, and (3) that the benefit to it is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate it if the benefit is lost … . “In determining third-party beneficiary status, it is permissible for the court to look at the surrounding circumstances as well as the agreement” … .

Here, taking the allegations in the complaint as true and affording the plaintiff every favorable inference, the plaintiff sufficiently pleaded a cause of action against KEPC to recover damages for breach of contract on a third-party beneficiary theory… . Moreover, KEPC failed to come forward with competent documentary evidence that refuted, as a matter of law, the plaintiff’s allegation that it was a third-party beneficiary of its contract with SDS … .

Condominium unit owners may also be considered successors-in-interest to the condominium sponsor’s construction contracts under certain circumstances … . Whether a party is a successor-in-interest to the performance of a particular contract is generally a question of fact that depends on the circumstances of the case … . Board of Mgrs. of 100 Congress Condominium v SDS Congress, LLC, 2017 NY Slip Op 05414, 2nd Dept 7-5-17

 

CONTRACT LAW (CONDOMINIUM BOARD STATED BREACH OF CONTRACT CAUSES OF ACTION AGAINST THE FIRM WHICH INSPECTED THE CONDOMINIUMS DURING CONSTRUCTION 2ND DEPT)/THIRD-PARTY BENEFICIARY (CONTRACT LAW, CONDOMINIUM BOARD STATED BREACH OF CONTRACT CAUSES OF ACTION AGAINST THE FIRM WHICH INSPECTED THE CONDOMINIUMS DURING CONSTRUCTION 2ND DEPT)/SUCCESSOR-IN-INTEREST (CONTRACT LAW, CONDOMINIUM BOARD STATED BREACH OF CONTRACT CAUSES OF ACTION AGAINST THE FIRM WHICH INSPECTED THE CONDOMINIUMS DURING CONSTRUCTION 2ND DEPT)/CONDOMINIUMS (CONTRACT LAW, CONDOMINIUM BOARD STATED BREACH OF CONTRACT CAUSES OF ACTION AGAINST THE FIRM WHICH INSPECTED THE CONDOMINIUMS DURING CONSTRUCTION 2ND DEPT)

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TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT.

The Second Department determined the trial judge’s responses to an inconsistent verdict were inadequate and ordered a new trial , granting defendant’s motion to set aside the verdict. The jury, in this lead-paint poisoning case, found that the defendant property owner was negligent but that the negligence was not the proximate cause of the injury. However the jury went on to award plaintiff $250,000 in damages. The judge sent the jury back, instructing them that they could not award damages unless they found the negligence was the proximate cause of the injuries. The judge did not inform the jury they could adhere to their original finding on proximate cause. The jury returned a second verdict, this time finding defendant’s negligence was the proximate cause of the injuries:

Here, the jury’s first verdict was internally inconsistent when it awarded damages to the plaintiff despite finding that the defendant’s negligence was not a substantial factor in causing the plaintiff’s injuries … . Thus, the Supreme Court properly directed the jury to reconsider the verdict. Notwithstanding, the record supports the conclusion that the second round of deliberations resulted in an unreliable verdict … . Specifically, the court failed to provide clear instructions to the jury regarding how to proceed with respect to the interrogatories concerning damages if it again found that the defendant’s negligence was not a substantial factor in causing the plaintiff’s injuries. This failure may have induced the jury to decide, out of confusion or frustration, to simply forgo the issue altogether by finding that the defendant’s negligence was a substantial factor in causing the plaintiff’s injuries. Moreover, the court’s response to the jury note to simply follow the instructions on the new verdict sheet was inadequate. ” Even after reconsideration by the jury, a trial court has discretion to set aside a verdict which is clearly the product of substantial confusion among the jurors'” … . Under these circumstances, the court should have granted that branch of the defendant’s motion which was to set aside the second jury verdict and directed a new trial … . Cleveland v Djeu, 2017 NY Slip Op 05417, 2nd Dept 7-5-17

CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/NEGLIGENCE (CIVIL PROCEDURE, INCONSISTENT VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/TOXIC TORTS (LEAD PAINT, MOTION TO SET ASIDE VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/LEAD PAINT (MOTION TO SET ASIDE VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/VERDICT, MOTION TO SET ASIDE (TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/JURY INSTRUCTIONS (CIVIL PROCEDURE, INCONSISTENT VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)

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