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CONTRACTUALLY SHORTENED STATUTE OF LIMITATIONS ENFORCED.

The Second Department determined a shortened statute of limitations agreed to in a stock purchase contract was properly enforced. Plaintiff discovered that defendant had not paid the full purchase price for the stock, and brought a breach of contract action after the contractual statute of limitations had expired:

“Parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations” … . To be enforceable, such provision must be clear and unambiguous … . “Whether or not a writing is ambiguous is a question of law to be resolved by the courts” … . ” Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced'” … . …

Contrary to the plaintiff’s contention, the plain language of the provision limiting the time period to bring an “action based on any warranty, covenant or representation contained in this Agreement” is clear and unambiguous, and applies to the defendant’s covenant to pay … . This interpretation is consistent with the plain meaning of the contract and basic principles of contract construction that an interpretation which renders language in the contract superfluous cannot be supported … . Batales v Friedman, 2016 NY Slip Op 07615, 2nd Dept 11-16-16

 

CONTRACT LAW (CONTRACTUALLY SHORTENED STATUTE OF LIMITATIONS ENFORCED)/CIVIL PROCEDURE (CONTRACTUALLY SHORTENED STATUTE OF LIMITATIONS ENFORCED)/STATUTE OF LIMITATIONS (CONTRACTUALLY SHORTENED STATUTE OF LIMITATIONS ENFORCED)

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FAILURE TO FILE PROOF OF SERVICE IS A CORRECTABLE DEFECT, PETITION SHOULD NOT HAVE BEEN DENIED ON THAT GROUND.

The Second Department determined failure to file proof of service of a petition and notice of petition should not have resulted in the denial of the petition. The motion court raised the ground for denial itself. Rather than denying the petition, the motion court should have alerted the parties to the defect and allowed it to be cured:

“The failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004” … . Here, there is no dispute that the respondents were served with the notice of petition and petition, as they moved to dismiss on the ground that the petition failed to state a cause of action. At no time did they argue that the proceeding should be dismissed for failure to file proof of service. As such, the parties did not have an opportunity to address the purported failure to file proof of service, the ground upon which the Supreme Court relied in denying the petition and dismissing the proceeding, even though such defect is readily curable (see CPLR 2001, 2004). “The lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process” … . Therefore, the Supreme Court should have alerted the parties to the purported defect and afforded the appellant an opportunity to correct it, rather than denying the petition and dismissing the proceeding… . Matter of Meighan v Ponte, 2016 NY Slip Op 07653, 2nd Dept 11-16-16

CIVIL PROCEDURE (FAILURE TO FILE PROOF OF SERVICE IS A CORRECTABLE DEFECT, PETITION SHOULD NOT HAVE BEEN DENIED ON THAT GROUND)/SERVICE, PROOF OF (FAILURE TO FILE PROOF OF SERVICE IS A CORRECTABLE DEFECT, PETITION SHOULD NOT HAVE BEEN DENIED ON THAT GROUND)

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COURT PROPERLY AWARDED DECLARATORY JUDGMENT IN DEFENDANT’S FAVOR AS A MATTER OF LAW UPON DEFENDANT’S MOTION TO DISMISS.

The Second Department determined Supreme Court properly determined a declaratory judgment action in defendant’s favor as a matter of law in the context of defendant’s motion to dismiss:

A motion to dismiss a cause of action for declaratory relief generally “presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration” … . However, “where the court, deeming the material allegations of the complaint to be true, is nonetheless able to determine, as a matter of law, that the defendant is entitled to a declaration in his or her favor, the court may enter a judgment making the appropriate declaration” … . Here, deeming the material allegations of the complaint to be true and considering the documents that were attached to and made part of the complaint (see CPLR 3014), including the stipulation of settlement, the Supreme Court properly determined, as a matter of law, that defendant was entitled to a declaration in her favor … . Pilgrim v Pantorilla, 2016 NY Slip Op 07634, 2nd Dept 11-16-16

CIVIL PROCEDURE (COURT PROPERLY AWARDED DECLARATORY JUDGMENT IN DEFENDANT’S FAVOR AS A MATTER OF LAW UPON DEFENDANT’S MOTION TO DISMISS)/DECLARATORY JUDGMENT (COURT PROPERLY AWARDED DECLARATORY JUDGMENT IN DEFENDANT’S FAVOR AS A MATTER OF LAW UPON DEFENDANT’S MOTION TO DISMISS)

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COURT SHOULD NOT HAVE DENIED DISMISSAL/SUMMARY JUDGMENT MOTIONS ON A GROUND NOT RAISED IN OPPOSITION AND ON TECHNICAL GROUNDS WHICH SHOULD HAVE BEEN IGNORED.

The Second Department determined: (1) a motion for summary judgment should not have been denied based upon a ground not raised by any party in opposition; (2) a motion for summary judgment should not have been denied based on the failure to attach all of the parties’ pleadings to the motion papers; and (3) a motion should not have been denied because it was directed at an amended complaint which was never served, rather than the original complaint:

The Supreme Court erred in denying that branch of the … defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them due to their failure to provide all of the pleadings, as required by CPLR 3212(b). In this regard, the … defendants submitted the complaint and their answer, but did not submit the answers of the other defendants. The … plaintiffs, in opposition, did not contend that this branch of the … defendants’ motion should be denied due to the … defendants’ failure to fully comply with CPLR 3212(b). Consequently, the court should not have raised the issue on the … plaintiffs’ behalf … . Moreover, under the circumstances, the … defendants’ failure to submit the answers of the other defendants was a mere irregularity and, since no substantial right of any party was prejudiced, the court should have disregarded that defect and reached the merits of that branch of the … defendants’ motion … .

… [T]he court should have disregarded the error … in moving against the amended complaint instead of the original complaint, since it did not affect the merits or prejudice a substantial right of the … plaintiffs … . Mew Equity, LLC v Sutton Land Servs., LLC, 2016 NY Slip Op 07630, 2nd Dept 11-16-16

 

CIVIL PROCEDURE (COURT SHOULD NOT HAVE DENIED DISMISSAL/SUMMARY JUDGMENT MOTIONS ON A GROUND NOT RAISED IN OPPOSITION AND ON TECHNICAL GROUNDS WHICH SHOULD HAVE BEEN IGNORED)/SUMMARY JUDGMENT, MOTIONS FOR (COURT SHOULD NOT HAVE DENIED DISMISSAL/SUMMARY JUDGMENT MOTIONS ON A GROUND NOT RAISED IN OPPOSITION AND ON TECHNICAL GROUNDS WHICH SHOULD HAVE BEEN IGNORED)

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ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE.

The First Department determined the alleged victim of an assault was properly allowed to testify by Skype from Egypt. The victim had been prohibited from returning to the US from Egypt and the prosecutor had done everything possible to facilitate his return:

We conclude that, given the unusual circumstances of this case, and the prosecutor’s good faith, the People made the specific, individualized showing necessary to justify remote video testimony. The Confrontation Clause’s general guarantee of face-to-face testimony is not absolute … . Video testimony is permissible “provided there is an individualized determination that denial of physical, face-to-face confrontation is necessary to further an important public policy and the reliability of the testimony is otherwise assured” (People v Wrotten, 14 NY3d 33…). Moreover, in Wrotten, the Court of Appeals recognized that video testimony could be employed in circumstances other than those involving a vulnerable child witness or a witness who was too ill to appear in court, as was the case in Wrotten (id. at 39-40).

Defendant concedes that the two-way video testimony at issue “preserve[d] the essential safeguards of testimonial reliability” … . The dispositive question is whether the testimony was ” necessary to further an important public policy'” … , which, in this case, is “the public policy of justly resolving criminal cases” … , a showing that must be made by clear and convincing evidence … . People v Giurdanella, 2016 NY Slip Op 07577, 1st Dept 11-15-16

 

CRIMINAL LAW (ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE)/EVIDENCE (CRIMINAL LAW, ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE)/VIDEO, REMOTE TESTIMONY (CRIMINAL LAW, ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE/SKYPE (CRIMINAL LAW, ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE)

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STRICT LIABILITY OFFENSE CANNOT SERVE AS A PREDICATE FELONY FOR FELONY ASSAULT.

The First Department determined a strict liability offense cannot serve as a predicate felony for felony assault. The defendant was charged with the unauthorized practice of medicine (Education Law 6512) which resulted in the serious injury of one victim and the death of another. Because the Education Law offense is a strict liability offense (no mens rea requirement), it cannot serve as the basis for felony assault:

An assault committed during the course of a felony that causes serious physical injury to the victim may be charged as felony assault under Penal Law § 120.10(4). The Court of Appeals has explained that, under the doctrine of constructive malice, the mens rea element of the assault charge is satisfied by the mens rea element of the predicate felony … . …

Education Law § 6512(1) does not contain a mens rea element and solely requires a voluntary act of the unauthorized practice of medicine … . Accordingly, Supreme Court correctly held that the felony of the unauthorized practice of medicine cannot serve as a predicate felony to support the felony assault charges.

Further, although the Penal Law states that a “statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability” (Penal Law § 15.15[2]), the felony of unauthorized practice of medicine was created by the legislature as part of a comprehensive regulatory scheme to require licensing for occupations that pose safety risks to the public. These malum prohibitum crimes are generally construed as strict liability crimes, as a mens rea element would negatively affect enforcement of these statutes and minimize their impact … . People v Mobley, 2016 NY Slip Op 07576, 1st Dept 11-15-16

 

CRIMINAL LAW (STRICT LIABILITY OFFENSE CANNOT SERVE AS A PREDICATE FELONY FOR FELONY ASSAULT)/UNAUTHORIZED PRACTICE OF MEDICINE (STRICT LIABILITY OFFENSE CANNOT SERVE AS A PREDICATE FELONY FOR FELONY ASSAULT)/FELONY ASSAULT (STRICT LIABILITY OFFENSE CANNOT SERVE AS A PREDICATE FELONY FOR FELONY ASSAULT)

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EXCESSIVE ABSENTEEISM JUSTIFIED DENIAL OF BENEFITS.

The Third Department determined claimant’s excessive absenteeism justified the denial of unemployment insurance benefits. The fact claimant didn’t realize the last warning was a final warning did not excuse the behavior:

Excessive absenteeism, which continues despite repeated warnings, has been held to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits … . Here, it is undisputed that claimant was continually absent from work even after she was warned that further absences would result in disciplinary action, including discharge. Although claimant maintains that she did not realize that the last warning was her final one, this does not excuse her behavior under the circumstances presented. Matter of Mead (Commissioner of Labor), 2016 NY Slip Op 07374, 3rd Dept 11-10-16

UNEMPLOYMENT INSURANCE (EXCESSIVE ABSENTEEISM JUSTIFIED DENIAL OF BENEFITS)/ABSENTEEISM (EXCESSIVE ABSENTEEISM JUSTIFIED DENIAL OF BENEFITS)

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DISSATISFACTION WITH JOB ASSIGNMENTS NOT GOOD CAUSE FOR RESIGNING.

The Third Department upheld the board’s finding claimant did not demonstrate good cause to leave her job and therefore was ineligible for unemployment insurance benefits:

… [D]issatisfaction with job assignments or responsibilities has been held to not constitute good cause for resigning … . The Board credited the testimony of claimant’s supervisor regarding the reorganization and its effect upon claimant. Claimant’s title, grade, salary, work schedule and location were not being changed and, while there were changes in her job duties, her precise duties had not been finally determined due to the ongoing and preliminary nature of the reorganization.

Significantly, claimant did not attempt to speak with any of her supervisors before resigning to raise concerns or clarify the new job duties. The Board was free to reject claimant’s disputed testimony that she resigned as a result of ongoing retaliation … . Matter of Flint-Jones (Federal Reserve Bank of N.Y.–Commissioner of Labor), 2016 NY Slip Op 07368, 3rd Dept 11-10-16

 

UNEMPLOYMENT INSURANCE (DISSATISFACTION WITH JOB ASSIGNMENTS NOT GOOD CAUSE FOR RESIGNING)

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CLAIMANT’S CONNECTION TO A CORPORATION WAS NOT SUFFICIENT TO WARRANT FINDING HE WAS NOT TOTALLY UNEMPLOYED.

The Third Department determined claimant, who was listed as a principal of a corporation (Reel One), did not have a sufficient connection to the corporation to warrant the board’s decision claimant was not totally unemployed:

It is well settled that “[a] claimant who is a principal of an ongoing corporation will not be considered totally unemployed if he or she stands to benefit financially from its continued operation, no matter how minimal the activities performed on its behalf” … .

Here, there is no evidence that claimant performed any activities, however trivial, on behalf of Reel One in 2010 during the time period at issue. In addition, there is no evidence that claimant’s name appeared on any bank accounts or corporate documents. Claimant testified that his wife created Reel One as a nonprofit corporation in the 1990s before they were married and that she was the sole shareholder. Although claimant and his wife, who both had extensive journalism experience, were listed as principals of Reel One on its website, claimant testified that his wife provided this information for marketing purposes only and that the website functioned as a type of advertisement. There is no evidence that the website was actively used to transact business. Matter of Petrick (Commissioner of Labor), 2016 NY Slip Op 07363, 3rd Dept. 11-10-16

 

UNEMPLOYMENT INSURANCE (CLAIMANT’S CONNECTION TO A CORPORATION WAS NOT SUFFICIENT TO WARRANT FINDING HE WAS NOT TOTALLY UNEMPLOYED)

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DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK.

Defendant, Frasier, was driving to work in his own car when he was involved in a rear-end collision with plaintiff. Plaintiff sued defendant’s employer under the doctrine of respondeat superior. The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted. The defendant was not acting within the scope of his employment when the accident occurred:

As a general rule, an employee driving to and from work is not acting in the scope of his [or her] employment . . . Although such activity is work motivated, the element of control is lacking” … . “Although the issue whether an employee is acting within the scope of his or her employment generally is one of fact, it may be decided as a matter of law in a case such as this, in which the relevant facts are undisputed” … .

Contrary to plaintiffs’ contention, the mere fact that Frasier carried his own tools in his vehicle was insufficient to “transform the use of the automobile into a special errand [for defendant] or an extension of the employment” … . Moreover, the fact that Frasier drove a coworker to work that morning is of no significance because he was not directed to do so, and the carpool was based on the employees’ “personal arrangement” … . Finally, the fact that defendant paid for lodging for Frasier while he was at a remote work site also does not require a different finding inasmuch as defendant did not require its employees to stay at the procured hotel, and the employees did not have “to inform defendant of their whereabouts [outside of working hours]” … . Figura v Frasier, 2016 NY Slip Op 07525, 4th Dept 11-10-16

 

NEGLIGENCE (DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK)/EMPLOYMENT LAW (NEGLIGENCE, RESPONDEAT SUPERIOR, DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK)/RESPONDEAT SUPERIOR (DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK)

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