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Criteria for Common Carrier Liability for Injury Caused by a Sudden Stop Explained (Not Met Here)

In affirming the grant of summary judgment to the defendant transit authority, the Second Department explained the circumstances under which a common carrier may be liable for injuries to a passenger caused by a sudden stop:

To prevail on a cause of action alleging that a common carrier was negligent in stopping a bus, a plaintiff must prove that the stop was unusual and violent, rather than merely one of the sort of ‘jerks and jolts commonly experienced in city bus travel’… . Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent … . There must be ‘objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant’ … . In seeking summary judgment dismissing the complaint, … common carriers have the burden of establishing, prima facie, that the stop was not unusual and violent … .  Alandette v New York City Tr. Auth., 2015 NY Slip Op 03113, 2nd Dept 4-15-15

 

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Insurer Not Estopped from Disclaiming Coverage Four Years After the Claim—No Prejudice to Insured and Disclaimer Supported by Policy Exclusion

The Second Department determined summary judgment was properly granted to the insurer, despite the passage of four years between the loss of business income claim and the disclaimer.  The policy excluded coverage for business income loss related to the “enforcement of any ordinance or law regulating the construction, use, or repair of any property.”  Although the initial business interruption was caused by vandals damaging the business premises, the delay in reopening was related to the requirement that the insureds obtain a certificate of occupancy.  The lack of a certificate of occupancy was discovered when the building inspector was alerted to the damage caused by the vandalism and the insureds were told they could not reopen until a certificate of occupancy was issued. The Second Department explained that even an unreasonable delay in disclaiming coverage (four years here) will not invalidate the disclaimer unless the insured had been prejudiced.  No prejudice was demonstrated and the disclaimer was supported by the policy exclusion:

An insurer’s delay in giving notice of disclaimer of coverage, even if unreasonable, will not estop the insurer from disclaiming unless the insured has suffered prejudice from the delay … . Since the record reveals no such prejudice, nor is any such prejudice alleged by the plaintiffs, the Merchants defendants established, prima facie, that the disclaimer was effective … . In opposition, the plaintiffs failed to raise a triable issue of fact.

Moreover, the policy of insurance here clearly and unambiguously excludes coverage for losses caused directly or indirectly by the enforcement of any ordinance or law regulating the construction, use, or repair of any property. This provision excludes coverage for losses, including business income losses, caused by the enforcement of the law and, here, it was the enforcement of the Building Code by the Town’s Building Department which prevented the plaintiff from utilizing the premises to engage in their dental business without a proper certificate of occupancy … . Accordingly, the [insurer] established, prima facie, that [it] properly disclaimed, as excluded under the terms of the policy, the loss of business income claim. In opposition, the plaintiffs failed to raise a triable issue of fact. Ira Stier, DDS, P.C. v Merchants Ins. Group, 2015 NY Slip Op 03128, 2nd Dept 4-15-15

 

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Village Not Liable for Failure to Place a Crossing Guard at a Particular Intersection—Placement of Crossing Guards Is a “Discretionary,” Not “Ministerial,” Government Action—No Liability Absent Special Relationship to Plaintiff

Infant plaintiff was struck by a car as he was crossing a street after leaving school.  There was no crossing guard at the intersection where infant plaintiff was struck, but there were crossing guards at nearby intersections.  The Second Department determined that the placement of crossing guards was a “discretionary,” not a “ministerial” action.  “[D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result … “.  The municipality (village) was not liable absent a special relationship with the infant plaintiff apart from a duty to the general public:

“Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” … . ” [D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'” … . The assignment of crossing guards to intersections falls within the definition of a discretionary function … .

Here, the Village established its prima facie entitlement to judgment as a matter of law by demonstrating that its actions were discretionary. Although the Village had assigned crossing guards to certain intersections near the school, its decision not to post a crossing guard at the subject intersection does not give rise to liability on the part of the Village … . McCants v Hempstead Union Free School Dist., 2015 NY Slip Op 03136, 2nd Dept 4-15-15

 

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Failure to Submit Lease to Show No Contractual Obligation to Remove Ice And Snow Precluded Summary Judgment to Defendant Out-of-Possession Landlord—Evidence First Submitted in Reply Papers Properly Not Considered

The Second Department determined defendant out-of-possession landlord was not entitled to summary judgment in a slip and fall case because it did not submit the lease and therefore did not demonstrate the absence of any obligation to remove ice and snow.  The court noted that it could not consider evidence presented for the first time in reply papers:

An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct” … . Here, the plaintiff did not allege that the landlord’s duty was statutory or based on a course of conduct. Thus, to prevail on its motion, [defendant] was required to demonstrate, prima facie, that it had not retained control over the premises, or that it had no contractual duty to remove snow and ice from the area where the plaintiff allegedly slipped and fell. [Defendant] failed to sustain this burden because it failed to submit a copy of the lease between it and the entity that was the tenant of the subject premises at the time of the accident … .  Poole v MCPJF, Inc., 2015 NY Slip Op 03142, 2nd Dept 4-15-15

 

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Failure to State in the Notice of Claim that Defendant Created the Icy Condition on the Sidewalk, or that the Condition Was the Result of Defendant’s Negligence, Required Dismissal of the Complaint

The Second Department determined summary judgment dismissing the complaint in a slip and fall case was appropriate because the notice of claim did not set forth the legal theory upon which the suit was based:

A notice of claim which, inter alia, sufficiently identifies the claimant, states the nature of the claim, and describes the time when, the place where, and the manner in which the claim arose, is a condition precedent to asserting a tort claim against a municipality (see General Municipal Law § 50-e[1][a]…). While a claimant need not state “a precise cause of action in haec verba in a notice of claim” …, the notice of claim must at least adequately apprise the defendant that the claimant would seek to impose liability under a cognizable theory of recovery … . Moreover “a party may not add a new theory of liability which was not included in the notice of claim” … . Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting proof that the notice of claim made no allegations that the ice patch on which the plaintiff slipped and fell was created by its snow removal operation, or existed by virtue of its negligence … . Steins v Incorporated Vil. of Garden City, 2015 NY Slip Op 03149, 2nd Dept 4-15-15

 

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Criteria for Respondeat Superior (Scope of Employment) Liability Succinctly Explained

The Second Department determined summary judgment was properly denied to the defendant employer.  The employee was test driving a competitor’s car in connection with his job at a Mercedes dealership when the employee was involved in an accident.  The Second Department determined the employer failed to demonstrate the employee was not acting within the scope of his employment at the time of the accident.  The court explained the relevant law:

Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment” … . “An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his [or her] employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment” … . “An employer, however, cannot be held vicariously liable for its employee’s alleged tortious conduct if the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business at the time of the incident … . Zwibel v Midway Automotive Group, 2015 NY Slip Op 03154, 2nd Dept 4-15-15

 

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CIVIL PROCEDURE A Stay Which Was to Last “45 Days from the Service” of an Order Never Expired Because the Order Was Never Served/Argument that the Stay Never Started Because the Order Was Not Served Rejected

While defendant’s motion for summary judgment was pending, plaintiff’s counsel moved to withdraw. The motion was granted and the court ordered the case stayed “for 45 days from the service…” of the order dismissing plaintiff’s attorney.  Plaintiff was not served with the order and defendant’s summary judgment motion was subsequently granted in plaintiff’s absence.  The First Department determined that the orders issued pursuant to the summary judgment motion were a nullity.  The 45 day stay never expired because the order granting the stay was never served on the plaintiff.  The defendant’s argument that the stay never started because the order was not served was rejected:

After his former counsel was granted leave to withdraw, the action was stayed by court order and operation of CPLR 321(c). Because Plaintiff was never served with the order dismissing his attorney, the 45 day stay never expired. Defendant cannot avoid the stay by arguing that it did not go into effect until served on plaintiff, since the failure to serve the order cannot accrue to defendant’s benefit.  Matos v City of New York, 2015 NY Slip Op 03074, 1st Dept 4-14-15

 

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Although the Agreements at Issue Set Up an Investment Fund (Targeting Brazil) in the Cayman Islands, the Fact that the Agreements Were Negotiated, Drafted and Executed in New York Conferred Personal Jurisdiction Over the Defendant Fund

The First Department, in a full-fledged opinion by Justice Acosta, over a partial dissent, determined that the complaint should not have been dismissed for lack of personal jurisdiction over the defendant investment fund.  Although the agreements in question set up the investment fund in the Cayman Islands, targeting investments in Brazil, the agreements were negotiated, drawn up and executed in New York.  Because the claims arose “from defendants’ transaction of business in New York, CPLR 302(a)(1) confer[red] personal jurisdiction over defendants.” The court explained that “[d]etermining whether long-arm jurisdiction exists under the “transacts business” provision of CPLR 302(a)(1) … is a two-pronged inquiry: “a court must decide (1) whether the defendant transacts any business in New York and, if so, (2) whether [the] cause of action aris[es] from such a business transaction” … . [In addition] [t]he assertion of personal jurisdiction must … be predicated on a defendant’s “minimal contacts” with New York to comport with due process … :”

Under New York’s long-arm jurisdiction statute, “a court may exercise personal jurisdiction over any non-domiciliary . . . who . . . transacts any business within the state” (CPLR 302[a][1]). “By this single act statute . . . proof of one transaction in New York is sufficient to invoke jurisdiction . . . so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” … . Determining whether long-arm jurisdiction exists under the “transacts business” provision of CPLR 302(a)(1), therefore, is a two-pronged inquiry: “a court must decide (1) whether the defendant transacts any business in New York and, if so, (2) whether [the] cause of action aris[es] from such a business transaction” … . “In effect, the arise-from’ prong limits the broader transaction-of-business’ prong to confer jurisdiction only over those claims in some way arguably connected to the transaction” … .

The assertion of personal jurisdiction must also be predicated on a defendant’s “minimal contacts” with New York to comport with due process … . This requires an examination of the “quality and the nature of the defendant’s activity” and a finding of “some act by which the defendant purposefully avails itself of the privilege of conducting activities within [New York], thus invoking the benefits and protection of its laws” … . * * *

… [P]laintiff alleges that Citibank’s lawyers drafted the documents in New York. … “[T]he nature and purpose of a solitary business meeting conducted for a single day in New York may supply the minimum contacts necessary to subject a nonresident participant to the jurisdiction of our courts” … . [The drafting of the agreements] was not a “purely ministerial” act of merely executing a contract in New York that had been negotiated elsewhere, which would likely be insufficient to confer personal jurisdiction … . * * *

Finding that New York courts have personal jurisdiction over defendants in this case also comports with due process. “So long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there, due process is not offended if that party is subjected to jurisdiction . . . …. . Such is the case before us. Defendants had sufficient minimum contacts with New York by purposefully entering the state to negotiate and execute contracts … . Wilson v Dantas, 2015 NY Slip Op 03088, 1st Dept 4-14-15

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A Party Alleging Fraudulent Inducement to Enter a Contract May Both Seek to Avoid Terms of the Contract (Here a Jury-Waiver Clause) and Rely on the Contract in Defense of Breach of Contract Allegations/Criteria for Negligent Misrepresentation Cause of Action Explained in Some Depth (Criteria Not Met Here)

The First Department, over a dissent, determined a party claiming it was fraudulently induced to enter a contract is entitled to a jury trial despite the jury-trial waiver in the contract. Because a party alleging fraudulent inducement can either seek rescission or stand on the contract and seek damages, the party may both seek to avoid terms in the contract (here the jury-waiver clause) and rely on the contract as a defense to breach of contract allegations. The court also found that the counterclaim for negligent misrepresentation was properly dismissed because the existence of a confidential or fiduciary or other special relationship (approaching privity), which would justify reliance on representations, was not demonstrated.  The criteria for negligent misrepresentation was described in some depth:

…[A]contractual jury waiver provision is inapplicable to a fraudulent inducement cause of action that challenges the validity of the underlying agreement … . …  In cases where the fraudulent inducement allegations, if proved, would void the agreement, including the jury waiver clause, the party is entitled to a jury trial on the claim … .

…”[A] defrauded party to a contract may elect to either disaffirm the contract by a prompt rescission or stand on the contract and thereafter maintain an action at law for damages attributable to the fraud” … . As a result, a party alleging fraudulent inducement that elects to bring an action for damages, as opposed to opting for rescission may, under certain circumstances, still challenge the validity of the agreement … .

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“A claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information” … . In commercial cases “a duty to speak with care exists when the relationship of the parties, arising out of contract or otherwise, [is] such than in morals and good conscience the one has the right to rely upon the other for information” … . Reliance on the statements must be justifiable, and “not all representations made by a seller of goods or a provider of services will give rise to a duty to speak with care” (id.). “Rather, liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified” (id.). In order to impose tort liability in a commercial case, “there must be some identifiable source of a special duty of care” … . …[A] special duty will be found “if the record supports a relationship so close as to approach that of privity” … . Generally, however, an arm’s-length business relationship between sophisticated parties will not give rise to a confidential or fiduciary relationship that would support a cause of action for negligent misrepresentation … . J.P. Morgan Sec. Inc. v Ader, 2015 NY Slip Op 03071, 1st Dept 4-14-15

 

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Failure to Empanel the First Six Jurors Chosen by the Parties Justified Setting Aside the Verdict

The Third Department upheld Supreme Court’s setting aside the verdict in a medical malpractice case after the jury had found “no cause for action.”  A rule in the Third Judicial District allowed the clerk to randomly select the jurors and alternates.  The plaintiff moved to set aside the verdict because the first six jurors chosen by the parties were not empanelled by the clerk, as required by CPLR 4105.  Under the CPLR jurors 1 through 6 should have constituted the jury and jurors 7 and 8 should have been designated the alternate jurors. The clerk selected jurors 1, 2, 3, 4, 5 and 8.  The Third Department perceived no abuse of discretion in setting aside the verdict:

After having determined that its application of the Third Judicial District rule contravened plaintiff’s substantial right to empanel the first six jurors that had been selected by the parties, pursuant to the “mandatory procedure” set forth in CPLR 4105, Supreme Court exercised its discretion and granted plaintiff’s motion to set aside the verdict and order a new trial in the interest of justice. In the absence of evidence that the court abused such discretion, we will not disturb Supreme Court’s determination in that regard … . Piacente v Bernstein, 2015 NY Slip Op 03009, 3rd Dept 4-9-15

 

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