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The Breach of Contract Cause of Action Which Was Based Upon Clauses Which Merely Stated the Common Law Standard of Care for Professionals Was Duplicative of the Professional Malpractice Cause of Action and Should Have Been Dismissed/Proper Measure of Damages for Negligent/Defective Building Design Is the Cost of Remediation

Plaintiff hospital alleged that the seismic retrofit of one of the hospital buildings would not operate as intended and sued the architectural firm which designed the retrofit under breach of contract and professional malpractice theories.  Plaintiff prevailed on both causes of action in a non-jury trial. The Third Department determined Supreme Court should have dismissed the breach of contract cause of action because it was duplicative of the professional malpractice cause of action. The only relevant clauses in the contract held the architectural firm to the common law standard for professionals.  Breach of those clauses, therefore, duplicated the professional malpractice cause of action. The Third Department affirmed the professional malpractice verdict and the award of damages, 1.7 million, which reflected the cost of remediation:

The contract does contain two clauses regarding defendant’s performance. They provide that defendant’s “services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the [w]ork,” and “shall be provided . . . in a manner consistent with the standards of care and skill exhibited in its profession for projects of this nature, type and degree of difficulty.” These provisions simply incorporate into the contract the common-law standard of care for a professional. “Making such ordinary obligations express terms of an agreement does not remove the issue [of a violation thereof] from the realm of negligence . . ., nor can it convert a malpractice action into a breach of contract action” … . Inasmuch as a breach of contract cause of action based on the violation of these particular contract provisions would be duplicative of a professional malpractice cause of action, Supreme Court should have dismissed plaintiff’s breach of contract cause of action. * * *

We reject defendant’s contention that plaintiff’s proposed amount of damages constitutes economic waste. The proper measure of damages due to the defective design of a building is the cost to remedy the defect, unless such amount is “grossly and unfairly out of proportion to the good to be attained” by fixing the building … . The defects here were not trivial, but were substantial as to the seismic function of the building, such that plaintiff was entitled to damages in the amount necessary to remediate the defects … . Mary Imogene Bassett Hosp. v Cannon Design, Inc., 2015 NY Slip Op 03016, 3rd Dept 4-9-15

 

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Where It Was Not Clear that Grand Jury Proceedings in Which a County Employee Was Directed to Appear Involved a Criminal Matter, as Opposed to Civil Misconduct or Neglect, the County Was Required to Pay for the Employee’s Defense Pursuant to Public Officers Law Section 18

The Third Department affirmed Supreme Court’s ruling that petitioner, a county employee, was entitled to attorney’s fees pursuant to Public Officers Law section 18 in connection his appearances in grand jury proceedings.  The county argued that the statute only requires payment for the defense of an employee “in [a] civil action or proceeding” and a grand jury proceeding is criminal in nature.  The Third Department noted that the district attorney would not divulge the nature of the grand jury proceedings and grand juries can be convened to consider noncriminal misconduct or neglect by public employees.  Therefore the employee was entitled to attorney’s fees for his defense:

Respondent failed to demonstrate what the object of the grand jury proceeding was, readily admitting that the District Attorney had not made his “intentions [known] in relation to the potential for criminal charges.” While grand juries may indict a person for a criminal offense (see CPL 1.20 [18]; 190.60 [1]), they are also empowered “to make presentments as to noncriminal misconduct or neglect by public officers and employees” … . Thus, because there is no indication that criminal charges are [*3]actually being contemplated, Supreme Court properly “reject[ed] respondent’s claim that because the [g]rand [j]ury proceeding[s] could have resulted in criminal charges against petitioner, the proceeding[s] [were] not civil in nature” … . “Any other holding would defeat the clear intent of the statute, which insulates public employees from litigation expenses arising out of their employment” … . Matter of Mossman v County of Columbia, 2015 NY Slip Op 03005, 3rd Dept 4-9-15

 

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Employer Did Not Exercise Sufficient Control over Claimant’s Work—Finding that Claimant Was an Employee Was Not Supported

The Third Department reversed the Unemployment Insurance Appeal Board’s ruling that claimant was an employee of Stacy Blackman Consulting (SBC).  The court explained: “Claimant … executed an agreement that designated him an independent contractor. He further negotiated his own fee, was not reimbursed for expenses, and was not provided with any benefits. SBC did not train, supervise or otherwise direct claimant in the performance of his work, although it did require him to turn over whatever application materials he had helped prepare. SBC also did not perform any substantive review of claimant’s work, did not require him to attend any meetings or consult with it, and allowed him to decline assignments and take time off as he saw fit. Moreover, while the parties’ agreement required claimant to keep sample application materials provided by SBC confidential and imposed restrictions on his ability to work for competitors in the field, the president of SBC testified without contradiction that she had never enforced those provisions and had permitted claimant to work elsewhere. ”  Matter of Jhaveri (Commissioner of Labor), 2015 NY Slip Op 03019, 3rd Dept 4-9-15

The Third Department reversed the Unemployment Insurance Board’s ruling that claimant was an employee of Encore, an event staffing company which refers persons, called brand ambassadors,  to clients who want to promote a product at an event. The court wrote: “…[T]he pertinent inquiry is whether Encore exercised control “over the results produced or the means used to obtain those results, with control over the latter being the more important factor to consider” … Here, the evidence reveals that Encore retained little or no control over either the means or results of the work performed by the brand ambassadors. Significantly, Encore did not conduct interviews, auditions or background checks, did not review credentials or set the rate of pay, did not provide training or supervision at events, did not establish work schedules, did not supply equipment, clothing or props and did not evaluate performance. Notably, it was the clients who directed the brand ambassadors by providing them with instruction on how to promote the specific products or services.” Matter of Lee (Commissioner of Labor), 2015 NY Slip Op 03022, 3rd Dept 4-9-15

 

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Criteria for an Application for a Use Variance Explained—Not Met Here

The Third Department reversed Supreme Court’s dismissal of a petition to annul the zoning board of appeals’ grant of a use variance to the respondent.  Respondent operates a manufacturing facility in a residential zone.  The facility pre-dated the ordinance making the zone exclusively residential.  The Third Department, in a previous appeal, determined that an addition to the manufacturing facility constituted an unlawful expansion of a nonconforming use.  Thereafter the respondent procured a use variance from the zoning board of appeals.  In concluding the use variance must be annulled, the Third Department explained that the applicant for a use variance must demonstrate the property cannot “yield a reasonable return if used for any of the purposes permitted as it is currently zoned…”.  In this case, the respondent was required to show that using the property for manufacturing without using the disputed addition would not yield a reasonable return. And the respondent was required to demonstrate that converting the entire property, not just the disputed addition, to residential use would not yield a reasonable return.  The respondent indicated only that the addition would be used to store old equipment and only attempted to demonstrate that conversion of the disputed addition (not the entire property) to residential use would not yield a reasonable return. Neither showing was sufficient:

An applicant for a use variance bears the burden of demonstrating, among other things, that the property cannot yield a reasonable return if used for any of the purposes permitted as it is currently zoned (see Town Law § 267-b [2] [b]…). Where, as here, a use variance is sought to expand a nonconforming use, “the applicant must demonstrate that the land cannot yield a reasonable return if used as it then exists or for any other use allowed in the zone” … . Such an inability to yield a reasonable return must be established through the submission of “dollars and cents” proof with respect to each permitted use (… .

Since the operation of the industrial manufacturing facility, as it existed at the time the prohibitory zoning ordinance was enacted in 1983, was a nonconforming use that was permitted to continue because the property was devoted to such a use before the ordinance took effect, it was a use that was permitted in that zone. Further, the property is located in an R1 residential district and, thus, residential uses were also permitted in that zone. Therefore, respondents had the burden of proving that their property could not yield a reasonable return if used as a presently existing nonconforming use — i.e., as a manufacturing facility without use of the addition for manufacturing purposes — or if used for any residential use … . Respondents’ proof was insufficient to meet either of these showings.

With regard to whether the property could yield a reasonable rate of return if continued to be used for manufacturing purposes without utilizing the 800-square-foot addition, the evidence presented at the hearing established that the addition is used to house older equipment that has been replaced by more advanced, efficient equipment. * * *

Even if there were sufficient proof to demonstrate an inability to realize a reasonable return on the property if used as it presently exists for manufacturing purposes, no evidence was presented as to the financial implications of converting the entire property to residential use, [*3]which is a use permitted in that zone. While financial evidence was presented on the cost of converting the addition to a residential use, “[it] is . . . with respect to the whole tract that reasonableness of return is to be measured”… . The fact that respondents’ application for a use variance was limited to the addition is of no moment; the inquiry as to an inability to realize a reasonable return may not be segmented to examine less than all of an owner’s property rights subject to a regulatory regime … . Matter of Nemeth v Village of Hancock Zoning Bd. of Appeals, 2015 NY Slip Op 03008, 3rd Dept 4-9-15

 

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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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Venue Was Not Proper—However, Because the Party Seeking the Change of Venue Did Not Comply With the Statutory Procedure, Whether to Grant a Change of Venue Was Discretionary—In the Exercise of Discretion, Change of Venue Was Properly Denied

Respondent law firm filed a default judgment prematurely (re: attorney’s fees) and immediately took steps freeze petitioner’s assets. Petitioner started the instant proceeding in Ulster County pursuant to CPLR 5240 seeking a protective order and vacation of all the enforcement devices used by the law firm.  The law firm made a cross-motion for a change of venue. Supreme Court denied the cross-motion, found that the law firm had engaged in frivolous conduct, directed the law firm to pay petitioner costs and counsel fees, and ordered the managing attorney of the law firm to complete eight hours of continuing legal education (CLE) in civil practice.  The Third Department affirmed Supreme Court, with the exception of the CLE sanction, which Supreme Court did not have the authority to order. The bulk of the decision is devoted to a discussion of the law surrounding a change of venue.  Supreme Court denied the change of venue cross-motion “as of right,” finding that Ulster County was the proper venue for the CPLR 5240 proceeding brought by the petitioner.  The Third Department disagreed, ruling that Ulster County was not the proper venue because the law firm, the respondent in the proceeding, did not have an office in Ulster County as required by the relevant provisions of the CPLR. But, after an extensive analysis, the Third Department concluded the cross-motion to change venue was properly denied as an exercise of discretion. Because the respondent did not follow the statutory procedure (CPLR 511) for seeking a change of venue (no demand for such relief was served before the cross-motion was made), the cross-motion was addressed to Supreme Court’s discretion. CPLR 510 allows a change of venue where “(1) the designated county is not a proper county, (2) “there is reason to believe that an impartial trial cannot be had in the proper county” or (3) “the convenience of material witnesses and the ends of justice will be promoted by the change”… .  Although the first criterium was met, the other two were not. Denial of the cross-motion was a proper exercise of discretion:

By failing to comply with the statutory procedure for changing venue, respondent was not entitled to a change of venue as of right. Where a respondent believes that a petitioner has chosen an improper venue, the respondent shall serve, with or before service of the answer, a written demand on the petitioner that venue be changed to a county that the respondent specifies as proper (see CPLR 511 [a], [b]). The petitioner has five days after service of the demand to serve a written consent to change venue (see CPLR 511 [b]). If no such consent is served by the petitioner, the respondent must move to change venue within 15 days of service of the demand (see CPLR 511 [b]). If a respondent fails to comply with these procedures and time limits, the respondent is not entitled to have the motion granted as of right, even if the venue was improper; the motion instead becomes one addressed to the court’s discretion… ). Here, respondent served a cross motion seeking to change venue without having first served a demand for such relief. Accordingly, the motion was addressed to Supreme Court’s discretion… . * * *

Petitioners commenced this proceeding in Ulster County pursuant to CPLR 5240, which provides that “[t]he court may at any time, on . . . the motion of any interested person, . . . make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure.” If a judgment that is sought to be enforced was entered in Supreme Court anywhere in New York, “a special proceeding authorized by [CPLR article 52] shall be commenced, either in the supreme court or a county court, in a county in which the respondent resides or is regularly employed or has a place for the regular transaction of business in person,” if such a county exists in the state (CPLR 5221 [a] [4]). CPLR 5240 is found within CPLR article 52, and the Court of Appeals has stated that a request for court action under CPLR 5240 is properly commenced as a “special proceeding” … . Respondent, by its very designation in the caption, is the “respondent” as mentioned in CPLR 5221 (a). Respondent is a law firm with its main office in Oswego County, which is considered its residence (see CPLR 503 [c]), and no office or place of business in Ulster County. Under a plain reading of CPLR 5221 (a), the instant special proceeding was required to be commenced in Oswego County (or another county in New York where respondent has an office where it regularly transacts business), rather than Ulster County.* * *

Thus, as Oswego County, rather than Ulster County, is the proper venue under either subdivision of CPLR 5221, the first ground under CPLR 510 could support respondent’s discretionary motion to change venue.

The second ground for discretionary change of venue does not support a change, as the record contains no information that an impartial trial would be difficult to obtain in Oswego County. As for the third ground, petitioners asserted that they are residents of Ulster County and the banks that were served the restraining notices and information subpoenas are all in or around Ulster County, so numerous material witnesses appear to be located in that county. Additionally, it appears that the ends of justice would not be promoted by changing venue. In sum, the first ground would support changing venue, while the second and third grounds do not. Although Supreme Court erred in denying respondent’s cross motion as of right, in the exercise of our discretion we reach the same conclusion. Matter of Aaron v The Steele Law Firm, P.C., 2015 NY Slip Op 03018, 3rd Dept 4-9-15

 

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Law of the Case Doctrine Should Not Have Been Invoked—Criteria Explained

In a breach of contract action, Supreme Court ruled on a summary judgment motion, finding it premature.  When a second summary judgment motion was made before a different judge, the new judge granted summary judgment to the plaintiff on liability for breach of contract and noted that the first order required the ruling because it was the “law of the case.” Although the Third Department ultimately upheld the breach of contract finding, the appellate court explained that the “law of the case” doctrine did not apply because the first order merely found there were issues of fact concerning the amount owed plaintiff and did not determine there was a breach of contract. The court explained that the doctrine of “law of the case” only applies to a ruling upon a “question of law that is essential to the determination of the matter”… :

…[W]e reject plaintiff’s contention that Supreme Court was required to rule that defendants were liable for breaching the Agreement by the doctrine of the law of the case, which bars courts from reconsidering “pre-judgment rulings made by courts of coordinate jurisdiction” in the same case … . The doctrine applies only when the prior ruling directly passed upon a question of law that is essential to the determination of the matter …. . Here, the only determination made in the 2012 order was that material issues of fact existed as to the amount owed. Although additional remarks were made in that order, these were merely dicta, and did not constitute a legal determination as to whether defendants breached the Agreement by deducting expenses — an issue that was not directly addressed by the 2012 order … . Karol v Polsinello, 2015 NY Slip Op 03024, 3rd Dept 4-9-15

 

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Acclaimed Photographer’s Surreptitious Taking of Photographs of Plaintiffs Through Apartment Windows Did Not Violate Plaintiffs’ Right to Privacy as Codified in Civil Rights Law 50 and 51–Art Is Exempt from the Reach of Those Statutes

The First Department, in a full-fledged opinion by Justice Renwick, determined that defendant’s surreptitious taking of photographs of plaintiffs through the windows of plaintiffs’ apartment did not violate the plaintiffs’ right to privacy codified in Civil Rights Law sections 50 and 51.  The critically acclaimed photographer assembled the photographs, which were for sale, in an exhibition called “Neighbors” and put them up on his website. The court explained that the “newsworthy and public interest” exemption from the prohibitions of Civil Rights Law 50 and 51 has been extended to works of art by some courts, although the New York Court of Appeals has yet to consider the issue.  The court wrote:  “[We are constrained to conclude] works of art fall outside the prohibitions of the privacy statute under the newsworthy and public concerns exemption. … [U]nder this exemption, the press is given broad leeway. This is because the informational value of the ideas conveyed by the art work is seen as a matter of public interest. We recognize that the public, as a whole, has an equally strong interest in the dissemination of images, aesthetic values and symbols contained in the art work. In our view, artistic expression in the form of art work must therefore be given the same leeway extended to the press under the newsworthy and public concern exemption to the statutory tort of invasion of privacy:”

Applying the newsworthy and public concern exemption to the complaint herein, we conclude that the allegations do not sufficiently plead a cause of action under the statutory tort of invasion of privacy. As detailed above, plaintiffs essentially allege that defendant used their images in local and national media to promote “The Neighbors,” an exhibition that included photographs of individuals taken under the same circumstances as those featuring plaintiffs. Plaintiffs further allege that the photographs were for sale at the exhibit and on a commercial website.

Accepting, as we must, plaintiffs’ allegations as true …, they do not sufficiently allege that defendant used the photographs in question for the purpose of advertising or for purpose of trade within the meaning of the privacy statute. Defendant’s use of the photos falls within the ambit of constitutionally protected conduct in the form of a work of art. Foster v Svenson, 2015 NY Slip Op 03068, 1st Dept 4-9-15

 

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Failure to Provide Statutory Notice of a Motion to Enter a Default Judgment to a Defendant Who Has Appeared in the Case Is a Jurisdictional Defect Rendering the Default Judgment a Nullity

The Second Department, in a full-fledged opinion by Justice Cohen, determined the failure to give a defendant, who has appeared in an action, notice of a motion to enter a default judgment is a defect which deprives the court of subject matter jurisdiction (rendering the default judgment a nullity pursuant to CPLR 5015 (a) (4)).  The issue is one of first impression in the Second Department and the Second Department declined to follow a contrary ruling in the 3rd Department. When the defendant previously appeared in the case, the defendant failed to demonstrate a reasonable excuse for failure to answer the complaint. Therefore, although the plaintiff’s failure to provide the notice required by CPLR 3215 (g) (1) mandated vacatur of the default judgment, it did not, under the facts, relieve the appellant of the underlying default. Upon notice of a future motion to enter a default judgment, the defendant here may contest only the sufficiency of the factual allegations in the motion and the amount of damages:

The question of whether vacatur of the default judgment pursuant to CPLR 5015(a)(4) is appropriate where the moving party fails to notify the defendant of its motion for leave to enter a default judgment as provided by CPLR 3215(g)(1) is one of first impression in this Court. Under CPLR 5015(a)(4), a rendering court may relieve a moving party of such an order if it lacked the jurisdiction to render it in the first place. Here, it is uncontested that the Supreme Court had personal jurisdiction over the appellant, as well as jurisdiction over the subject matter in this case. However, for the reasons set forth below, we hold that the failure of the plaintiffs to give notice to the appellant of their motion for leave to enter a default judgment pursuant to CPLR 3215(g)(1) deprived the Supreme Court of jurisdiction to entertain the motion, and the court should have vacated the default judgment pursuant to CPLR 5015(a)(4). * * *

…[W]e hold that the failure to provide a defendant who has appeared in an action with the notice required by CPLR 3215(g)(1), like the failure to provide proper notice of other kinds of motions, is a jurisdictional defect that deprives the court of the authority to entertain a motion for leave to enter a default judgment. While this defect requires vacatur of the judgment, it does not, standing alone, entitle the appellant to be relieved of the underlying default upon which judgment is sought, and to defend the action on the merits … . Since the appellant has failed to establish a basis to be relieved from his underlying default in failing to answer, that underlying default remains intact. Accordingly, the appellant is entitled only to statutory notice of any future motion for leave to enter a default judgment. Upon such a future motion, the appellant may not seek to relitigate the issue of whether he is entitled to be relieved of his underlying default in failing to answer. Rather, as relevant to this case, the appellant may oppose entry of a default judgment to the limited extent of contesting the sufficiency of the proof of facts submitted by the plaintiffs in support of the motion, and contesting damages.  Paulus v Christopher Vacirca, Inc., 2015 NY Slip Op 02944, 2nd Dept 4-8-15

 

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Subcontractor Could Not Recover From Property Owners Absent Proof the Owners Consented to Pay the Subcontractor—Owners Hired the General Contractor Who In Turn Hired the Subcontractor

The Second Department determined the property owners were not liable in quasi contract to a subcontractor. The property owners demonstrated the subcontractor was not working for them, but rather worked for the general contractor hired by the owners. The mere fact that the owners consented to the work done by the subcontractor, and were benefitted by it, is not enough to demonstrate unjust enrichment. The subcontractor must show the owners consented to pay the subcontractor for the work:

“[A] property owner who contracts with a general contractor does not become liable to a subcontractor on a quasi contract theory unless it expressly consents to pay for the subcontractor’s performance” … . “The mere fact that the [owners] consented to the improvements and received some benefit from the [subcontractor’s] activities is insufficient to recover on such a theory; the [subcontractor] must also show that it was working for the [owners] when it performed its work resulting in unjust enrichment” … . Sears Ready Mix, Ltd. v Lighthouse Mar., Inc., 2015 NY Slip Op 02955, 2nd Dept 4-8-15

 

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