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Mother’s Petition to Relocate Should Not Have Been Denied—Analytical Criteria Described

The Second Department determined Family Court should not have denied mother’s petition to relocate. The analytical criteria were described as: “When reviewing a custodial parent’s request for permission to relocate, the court’s primary focus must be on the best interests of the child … . Although each custodial parent’s request for relocation must be decided on its own merits, the factors to be considered include, but are not limited to, each parent’s reasons for seeking or opposing the move, the quality of the relationships between the children and each parent, the impact of the move on the quantity and quality of the children’s future contact with the noncustodial parent, the degree to which the lives of the custodial parent and the children may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the children through suitable visitation arrangements … . In relocation proceedings, this [the appellate court’s] authority is as broad as that of the hearing court, and a relocation determination will not be permitted to stand unless it is supported by a sound and substantial basis in the record …”. [quotations omitted] Matter of DeCillis v DeCillis, 2015 NY Slip Op 04126, 2nd Dept 5-13-15

 

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Online Promotion Which Offered a Coupon to Persons Who Provided His or Her Email Address Did Not Constitute an “Offer” Which Could Be “Accepted” to Create a Contract/In Light of the Disclaimers the Promotion Was Not “Deceptive” and Plaintiff Suffered No “Actual Injury” within the Meaning of the General Business Law

Plaintiff brought a putative class action alleging an act of deception in an online business promotion.  Defendants “offered to provide to visitors to their website who entered their email address a $1 coupon toward the purchase of their products and further promotional materials.” The complaint alleged the members of the class provided their email addresses but never received a coupon. The Second Department determined the complaint, which alleged breach of contract and a violation of General Business Law 349, was properly dismissed. Because the website indicated the supply of coupons was limited, there was no clearcut “offer” which could form a contract upon acceptance. The online promotion constituted only an “invitation for offers.” Because of the disclaimers, the promotion was not “deceptive” within the meaning of General Business Law 349. Nor did the plaintiff suffer any “actual injury” within the meaning of General Business Law 349:

…[T]he defendants made a prima facie showing that the online promotion did not constitute an offer. Rather, it constituted only an invitation for offers, in light of the fact that the promotion expressly stated that the supply of coupons was “limited.” In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, extrinsic evidence was not admissible to interpret the promotional materials under the circumstances herein … . The record thus showed as a matter of law that the promotion did not create the power of acceptance for consumers and, consequently, no unilateral contract was formed… . * * *

[Re: General Business Law 349], in addition to showing that the conduct was consumer oriented, “[a] prima facie case requires . . . a showing that [the] defendant is engaging in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof” … . “Whether a representation or an omission, the test is whether the allegedly deceptive practice is likely to mislead a reasonable consumer acting reasonably under the circumstances'” … . A plaintiff must also show that he or she suffered an actual injury, as a result of the deceptive act or practice… . …

…[T]he defendants … showed … that the plaintiff did not suffer any “actual injury,” for purposes of the General Business Law § 349 cause of action. To recover damages under General Business Law § 349, a plaintiff need not prove intent to defraud or justifiable reliance … . The plaintiff may not “set[ ] forth deception as both act and injury” … . Here, the record showed as a matter of law that the plaintiff suffered no actual injury, apart from the alleged deceptive act itself … . Amalfitano v NBTY, Inc., 2015 NY Slip Op 04077, 2nd Dept 5-13-15

 

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A Request for an Admission Which Goes to the Heart of the Litigation Is Improper—Defendant Should Have Been Allowed to Withdraw Its Admission that Its Employee Was Acting Within the Scope of His Employment When a Vehicle Accident Occurred

The Second Department determined Supreme Court should have allowed defendant to withdraw admissions made in response to a notice to admit. Plaintiff was involved in an accident with a vehicle driven by an employee of defendant, Islip Pizza.  In response to a notice to admit, the defendant stated that the employee was acting in the scope of his employment at the time of the collision. Because defendant’s liability, under the doctrine of respondeat superior, depended entirely on whether the employee was acting within the scope of his employment, the admission went to the heart of the matters at issue. A request for an admission which deals with an ultimate conclusion is improper (CPLR 3123 (a)). Defendant should have been allowed to withdraw it (CPLR 3123 (b)):

Under CPLR 3123(a), a party may serve upon another party a written request that it admit, among other things, “the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry” (CPLR 3123[a]). The legislative policy underlying CPLR 3123(a) is to promote efficiency in the litigation process by “eliminat[ing] from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. A notice to admit which goes to the heart of the matters at issue is improper” … . Furthermore, under CPLR 3123(b), a court may at any time permit a party to amend or withdraw any admission “on such terms as may be just” (CPLR 3123[b]…).  Altman v Kelly, 2015 NY Slip Op 04076, 2nd Dept 5-13-15

 

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Court Should Not Have Dismissed for “Neglect to Proceed”—Criteria Explained

Noting that CPLR 3216 is extremely forgiving and never requires dismissal based on “neglect to proceed,” the Second Department determined Supreme Court, under the facts, should not have dismissed the action.  A dual showing of a justifiable excuse for the delay and a meritorious cause of action is not strictly necessary to avoid dismissal:

While generally, the Supreme Court is prohibited from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a potentially meritorious cause of action (see CPLR 3216[e]…) , such a dual showing is not strictly necessary to avoid dismissal of the action … .

Under the circumstances of this case, including the minimal 4-day delay in filing the note of issue, the fact that the defendants demanded additional discovery subsequent to the court’s certification order containing the 90-day demand, the absence of any claim of prejudice, and the lack of evidence of a pattern of persistent neglect and delay in prosecuting the action or of any intent to abandon the action, the Supreme Court improvidently exercised its discretion in declining to excuse the plaintiffs’ failure to meet the deadline for filing the note of issue … . Rossi v Scheinbach, 2015 NY Slip Op 04110, 2nd Dept 5-13-15

 

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Corporate Officer May Be Personally Liable for Torts Committed in the Performance of Corporate Duties/Criteria for Determining a Motion to Dismiss for Failure to State a Cause of Action (Where Documentary Evidence Is Submitted) Explained

The Second Department determined defendant’s motion to dismiss for failure to state a cause of action was properly denied.  Plaintiff alleged he tripped and fell over a hole left when a for sale sign was removed. The defendant moved to dismiss alleging the property was owned by the corporation of which defendant was the sole shareholder.  The Second Department noted that an officer of a corporation may be personally liable for torts committed in the performance of corporate duties. The court explained its role in determining a motion to dismiss for failure to state a cause of action where documentary evidence is submitted: “When a defendant submits evidence in support of a motion to dismiss pursuant to CPLR 3211(a)(7), and the motion has not been converted into one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one … . “[U]nless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, . . . dismissal should not eventuate… ‘. [quotations omitted] Orlando v New York Homes By J & J Corp., 2015 NY Slip Op 04104, 2nd Dept 5-13-15

 

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Admissions in Pleadings, Including the Failure to Deny an Allegation, Are Always In Evidence for All Purposes in a Trial

In a trial stemming from an automobile accident, during deliberations the jury asked if there was any evidence a defendant, Kahn, was the driver of one of the vehicles.  The judge responded “no.”  Ultimately the jury found in favor of the defendant.  The Second Department determined the judge’s telling the jury there was no evidence the defendant was the driver was reversible error. The defendant’s answer to the complaint included admissions re: operation.  The court noted that the failure to deny an allegation in a complaint is an admission. Pleadings “are always in evidence for all purposes of the trial of an action:”

The Supreme Court committed reversible error when it advised the jury that there was no evidence in this case that would answer its question of whether Khan was the driver of the taxicab in which the plaintiff was a passenger. The failure to deny an allegation in a complaint constitutes an admission to the truth of that allegation (see CPLR 3018[a]…). “Facts admitted in a party’s pleadings constitute formal judicial admissions, and are conclusive of the facts admitted in the action in which they are made” … . Moreover, “admissions . . . in pleadings are always in evidence for all the purposes of the trial of [an] action” … . In response to the jury’s inquiry about whether Khan was the driver, the court should have informed the jury of Khan’s and Ali’s admissions in their answer concerning their operation and ownership of a certain vehicle which was involved in an accident … on the same date as the plaintiff’s accident and at the same location, so that the jury could draw its own inferences on this question. DeSouza v Khan, 2015 NY Slip Op 04085, 2nd Dept 5-13-15

 

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Question of Fact Whether Property Owners Owed a Duty to Protect Plaintiff from an Assault During a Fair on the Premises

he Second Department determined there was a question of fact whether the defendants, who held a fair on their premises, were liable to plaintiff who was attacked by two teenage boys during the fair. There was evidence a security guard had been notified that a fight was about to break out and did nothing:

“While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control” … . Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults … .

Here, the church defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence which demonstrated that the infant plaintiff’s injuries resulted from an unexpected and unforeseeable assault … . However, in opposition, the plaintiffs raised a triable issue of fact as to whether the assault of the infant plaintiff was unexpected and unforeseeable. The plaintiffs presented a transcript of the deposition testimony of the infant plaintiff’s girlfriend, who explained that, approximately 30 minutes before the subject incident, she spoke to a security guard at the fair and advised him that there was a “confrontation” and that it was “getting worse.” Bisignano v Raabe, 2015 NY Slip Op 04081, 2nd Dept 5-13-15

 

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“Lack of Capacity to Sue” Defense Waived If Not Raised in Pleadings/Court Should Not Have Decided Summary Judgment Motion by Searching the Record and Ruling On Issues Not Raised by Anyone

In the context of a suit alleging conversion stemming from the handling of an estate, the Second Department determined the “lack of capacity to sue” defense had been waived because it was not raised by defendant in his pleadings.  The court further determined Surrogate’s Court exceeded its powers when it went beyond the issues placed before it plaintiff’s summary judgment motion, searched the record and decided the motion in defendant’s favor on grounds not raised by anyone:

[The defendant] waived the defense of lack of capacity by failing to raise such defense in a pre-answer motion to dismiss or in his answer to the amended complaint in the action (see CPLR 3211[e]…).

… [O]n a motion for summary judgment, the court is limited to the issues or defenses that are the subject of the motion before the court … . “A motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense” … .

The Surrogate’s Court improperly searched the record and awarded summary judgment to [defendant] dismissing objections 1(i) and 9. [Plaintiff] moved for summary judgment on these objections solely on the grounds that he established that [defendant] converted funds from the father’s estate and failed to account for funds that the estate owed to [plaintiff]. [Defendant] did not cross-move for summary judgment dismissing those objections on the basis of the statute of limitations, nor did he argue it in opposition. In view of the limited scope of [plaintiff’s] motion, it was not appropriate to search the record and award summary judgment to [defendant] dismissing these objections upon arguments that were not raised … . Matter of Ray C., 2015 NY Slip Op 04134, 2nd Dept 5-13-15

 

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Criteria for Setting Aside a Verdict as Against the Weight of the Evidence Explained

The Second Department determined plaintiff’s motion to set aside the defense verdict as against the weight of the evidence was properly denied.  Plaintiff, a bicyclist, was injured when he struck the open door of defendant’s (Roche’s) vehicle.  Defendant testified the door was ajar, not fully open: “A jury verdict should be set aside as contrary to the weight of the evidence only if the jury could not have reached the verdict by any fair interpretation of the evidence … .  A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause … . [W]here there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view… . However, where a jury verdict with respect to negligence and proximate causation is irreconcilably inconsistent, because the only reasonable view of the evidence is that a defendant’s negligence was a proximate cause of the plaintiff’s injuries, that verdict must be set aside as contrary to the weight of the evidence … . In this case, it was within the jury’s province to credit Roche’s testimony that she did not open her car door into the plaintiff’s path. The jury reasonably could have concluded that Roche was negligent in some other respect—such as the positioning of her car or her act of leaving the door “slightly ajar”—but that, despite such negligence, the plaintiff should have been able to avoid the collision and, thus, his conduct was the sole proximate cause of the accident.” [quotations omitted] Membreno v Roche, 2015 NY Slip Op 04102, 2nd Dept 5-13-15

 

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A Conditional Judgment May Be Rendered On the Issue of Contractual Indemnity—The Party Seeking Contractual Indemnity Must Be Free from Negligence

Plaintiff was injured at a construction site when he fell from a ladder. The construction manager commenced a third-party action against the general contractor seeking contractual indemnification in the event the construction manager is liable to the plaintiff,. The Second Department noted that a ” ‘court may render a conditional judgment on the issue of contractual indemnity, pending determination of the primary action so that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed’ … . The party seeking contractual indemnification must establish that it was free from negligence and that it may be held liable solely by virtue of statutory or vicarious liability …”. Arriola v City of New York, 2015 NY Slip Op 04079, 2nd Dept 5-13-15

 

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