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Denial of Application for Renewal of General Contractor’s Registration Based Upon a Conviction Which Preceded a Prior Renewal Was Arbitrary and Capricious

The First Department determined the denial of petitioner’s application for renewal of his general contractor’s registration, based upon a conviction which preceded a prior renewal, was arbitrary and capricious.  The court noted that the presumption derived from petitioner’s certificate of relief from disabilities was not rebutted:

Respondent’s determination lacked a rational basis (see CPLR 7803[3]…). Respondent arbitrarily concluded that petitioner’s prior conviction for filing false documents bore a direct relationship to the duties and responsibilities attendant to the general contractor registration, the license for which he sought renewal (see Correction Law §§ 752[1], 750[3]…). * * *

Respondent’s failure to rebut the presumption of rehabilitation deriving from petitioner’s certificate of relief from disabilities also renders its determination arbitrary and capricious … . Matter of Jakubiak v New York City Dept. of Bldgs., 2015 NY Slip Op 02858, 1st Dept 4-2-15

 

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A Stipulation Cannot Bind an Insurer to Nonexistent Coverage

In finding that a hearing was required to determine if respondent was entitled to supplemental uninsured/underinsured motorist (SUM) coverage, the Third Department noted that a stipulation, which implied the existence of such coverage, could not bind the insurer:

Supreme Court erred in concluding that the parties’ stipulation waived the issue of respondent’s entitlement to SUM coverage. Although the stipulation stated that, “[u]pon the completion of [certain] discovery set forth [in the stipulation, petitioner] agrees to proceed to arbitration,” a stipulation cannot create coverage of an individual, nor the obligation to arbitrate the issue of coverage, where the individual does not meet the relevant contractual prerequisites for coverage … . Stated differently, the stipulation cannot independently bind petitioner to supply coverage where no such coverage exists under the policy. Matter of Preferred Mut. Ins. Co. (Fisher), 2015 NY Slip Op 02837, 3rd Dept 4-2-15

 

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Emails Can Suffice as “Documentary Evidence” to Support a Motion to Dismiss—Here the Documentary Evidence About Aspects of an Employment Agreement that Were In Contention Did Not Utterly Refute the Allegation that an Employment Contract Had Already Been Entered

The First Department, in a full-fledged opinion by Justice Renwick, over a dissent, determined the documentary evidence submitted by the defendant, which dealt with several aspects of an employment agreement that were in contention, did not utterly refute plaintiff’s allegation that an employment contract had already been entered.  Therefore defendant’s motion to dismiss the breach of contract cause of action was properly denied.  The opinion is long and detailed, as is the dissent, and cannot fairly be summarized here.  With respect to what constitutes documentary evidence in this context, the court wrote:

On a motion to dismiss pursuant to CPLR 3211(a)(1), a court is obliged “to accept the complaint’s factual allegations as true, according to plaintiff the benefit of every possible favorable inference, and determining only whether the facts as alleged fit within any cognizable legal theory” … . Moreover, dismissal pursuant to CPLR 3211(a)(1) is warranted only if the documentary evidence submitted “utterly refutes plaintiff’s factual allegations” … . If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a)(1) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action … . * * *

Preliminarily, we reject Supreme Court’s conclusion that correspondence such as the emails here do not suffice as documentary evidence for purposes of CPLR 3211(a)(1). This Court has consistently held otherwise. For example, in Schutty v Speiser Krause P.C. (86 AD3d 484, 484-485 [1st Dept 2011]), this Court found drafts of an agreement and correspondence sufficient for purposes of establishing a defense under the statute. Similarly, in Langer v Dadabhoy (44 AD3d 425, 426 [1st Dept 2007], lv denied 10 NY3d 712 [2008]), this Court found “documentary evidence in the form of emails” to be sufficient to carry the day for a defendant on a CPLR 3211(a)(1) motion. Likewise, in WFB Telecom. v NYNEX Corp. (188 AD2d 257, 259 [1st Dept 1992], lv denied 81 NY2d 709 [1993]), this Court granted a CPLR 3211(a)(1) motion on the basis of a letter from the plaintiff’s counsel that contradicted the complaint. Therefore, there is no blanket rule by which email is to be excluded from consideration as documentary evidence under the statute. Kolchins v Evolution Mkts., Inc., 2015 NY Slip Op 02863, 1st Dept 4-2-15

 

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Summary Judgment Properly Granted to Hospital—Criteria for Hospital Liability for Treatment by a Non-Employee Explained

The Third Department determined summary judgment was properly granted to the hospital (AOMC) because plaintiff (Hoad) was treated by her private physician (Dolkart) and there was no indication hospital staff was negligent in following the doctor’s orders:

…[G]enerally, a hospital is not liable for the negligence of independent physicians except on a theory of ostensible or apparent agency … . Put differently, a hospital may be liable “where the hospital’s words or conduct communicated to a third-party patient give rise to the appearance and belief that the agent-independent physician possesses authority to act on behalf of the hospital” … . As the proponent of summary judgment, AOMC “bore the initial burden of establishing that [Hoad] sought care from a specific physician rather than from [AOMC] generally” … . Here, AOMC’s Vice President of Medical Affairs submitted an affidavit wherein he explained that Dolkart was not an employee, but a tenant with admitting privileges at AOMC. The record confirms that when Hoad was transferred from the emergency room, she consented to a transfer into Dolkart’s care at AOMC, not to AOMC generally. In response, no facts or admissible evidence were presented to establish that Hoad reasonably believed that Dolkart was AOMC’s employee. We therefore discern no basis for imposing liability based upon a theory of ostensible agency … .

We further find no basis for the infant’s claims against AOMC based on the actions of its professional staff. Generally, a hospital is insulated from liability “when its professional staff follows the orders of private physicians selected by the patient” … . An exception to this general rule exists “where the hospital staff knows that the doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders” … . Here, AOMC met its burden through the submission of an affirmation by … an obstetrician. Hoad v Dolkart, 2015 NY Slip Op 02831, 3rd Dept 4-2-15

 

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Course of Conduct Revealed the Terms of an Implied Contract—Complaint Dismissed

The Third Department determined defendant had demonstrated the terms of an implied contract by course of conduct and plaintiff failed to raise a triable question of fact to the contrary:

…[A]n implied contract exists when the parties have not entered into an express contract, but their course of conduct indicates that they have reached a meeting of the minds that is sufficient to constitute an enforceable contract … . A contract may be implied “as an inference from the facts and circumstances of [a] case, although not formally stated in words, and is derived from the presumed intention of the parties as indicated by their conduct” … . Here, the parties agree that they had a longstanding implied contract, but disagree as to whether the terms of this agreement included the amounts that plaintiff now seeks to collect. Plaintiff asserts that these amounts represent debts resulting from systematic underpayments by defendant dating back to 2006. However, defendant contends that it was the parties’ longstanding practice to resolve payment disputes shortly after each payment came due, and that plaintiff gave defendant no reason to believe that any such disagreements were not resolved or that any charges remained outstanding. * * *

…[T]he uncontradicted evidence reveals that, throughout the relationship, both parties treated all pricing disputes as resolved after plaintiff accepted payment and removed the charges from its statements. Plaintiff put forward no admissible evidence giving rise to issues of fact as to whether defendant was on notice that plaintiff considered any charges to be outstanding after this process was complete, or that defendant agreed, explicitly or implicitly, that it was liable for them. Thus, defendant established as a matter of law that there was no breach of contract, and its motion for summary judgment dismissing the cause of action for breach of contract should have been granted … . Coca-Cola Refreshments, USA, Inc. v Binghamton Giant Mkts., Inc., 2015 NY Slip Op 02834, 3rd Dept 4-2-15

 

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Plaintiff Properly Relied on the Doctrine of Res Ipsa Loquitur to Survive Summary Judgment

The Third Department determined plaintiff had raised a question of fact under the doctrine of res ipsa loquitur.  After shoulder surgery plaintiff experienced numbness and was unable to flex his index finger and thumb.  There was general agreement the injury was the result of specified nerve damage but either the anesthesia-procedure or the surgery could have caused it. The Third Department noted that plaintiff’s expert could not be deemed unqualified as to one of treating physicians simply because he was not a specialist in the same field as that treating physician:

“Ordinarily, a plaintiff asserting a medical malpractice claim must demonstrate that the doctor deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff’s injury” … . “Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitor a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant’s relation to it” … . “In a multiple defendant action in which a plaintiff relies on the theory of res ipsa loquitur, a plaintiff is not required to identify the negligent actor [and] [t]hat rule is particularly appropriate in a medical malpractice case . . . in which the plaintiff has been anesthetized” … . Elements of res ipsa loquitur are: “[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff” … . Frank v Smith, 2015 NY Slip Op 02827, 3rd Dept 4-2-15

 

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Contract Action Barred by Statute of Frauds Did Not Preclude Action Based Upon Quantum Meruit

The Third Department noted that a contract cause of action which is barred by the statute of frauds (re: the conveyance of real property) did not preclude an action based upon quantum meruit:

We agree with Supreme Court that plaintiff’s claim for breach of contract, based on an alleged oral agreement to convey real property, is barred by the statute of frauds (see General Obligations Law § 5-703 [1]…). The statute of frauds does not, however, preclude “quasi-contractual recovery for the reasonable value of services rendered” … . Accepting as true the allegations in plaintiff’s complaint, they adequately set forth a cognizable claim for quantum meruit based on the alleged performance of services by plaintiff and her expectation of payment from defendant … . Inasmuch as the quantum meruit cause of action is subject to a six-year statute of limitations, however, plaintiff’s claims are barred to the extent that they allege the performance of services prior to April 25, 2007, which is six years from the commencement of the action … . Rauch v Ciardullo, 2015 NY Slip Op 02823, 3rd Dept 4-2-15

 

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Mayor Removed from Office for Unscrupulous Conduct

The Third Department affirmed the referee’s report recommending the removal of the respondent-mayor from office.  It was alleged the mayor used the authority of his office to attempt to prevent his prosecution in a criminal matter:

Public Officers Law § 36 provides a means by which a public officer for a town or village may be removed for “unscrupulous conduct or gross dereliction of duty or conduct that . . . connotes a pattern of misconduct and abuse of authority” … . To warrant removal, an official’s misconduct must amount to more than minor violations and must consist of “self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust” … . When this matter was previously before this Court, we found that certain allegations against respondent, if proven, would demonstrate a sufficiently serious pattern of abuse of authority and misbehavior to warrant his removal … . In a detailed report, the Referee determined that respondent had committed a number of acts of misconduct that were sufficient to warrant his removal. Although the Referee’s findings are not binding upon this Court, they serve “to inform [our] conscience” … and, upon our independent review, we find that removal is warranted.

The first of the allegations … was a claim that respondent had refused to provide funding for the Village police department in an effort to influence the disposition of certain criminal charges against him … . * * *

Petitioners [also] allege that respondent sought “to use his position as Mayor and Village Manager to obtain ‘special treatment’ from the Village’s police department with respect to his various criminal charges and has repeatedly threatened various local law enforcement officials with termination or disciplinary action for pursuing such charges against him” … . Matter of Greco v Jenkins, 2015 NY Slip Op 02815, 3rd Dept 4-2-15

 

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Elements of Conversion, Moneys Had and Received and Breach of Fiduciary Duty Causes of Action Described/Equitable Estoppel Did Not Apply to Toll Applicable Statutes of Limitations

The Third Department explained the elements of causes of action for conversion, aiding and abetting conversion, moneys had and received, breach of fiduciary duty, and aiding and abetting breach of a fiduciary duty.  The Third Department further held that the doctrine equitable estoppel did not toll the applicable statutes of limitations and delineates what the applicable statutes of limitations are.  With respect to conversion, moneys had and received and equitable estoppel, the court wrote:

“Conversion is an unauthorized exercise of dominion and control over” someone else’s property that “interferes with and is in defiance of the superior possessory right of the owner or another person” … . A claim can exist for aiding and abetting conversion if the aider-abettor has actual knowledge that the person who directly converted the plaintiff’s property did not own that property … . Here, the complaint alleges that defendant knew of and acquiesced in Jaques’ unauthorized personal purchases from plaintiff’s accounts, that the purchased items were delivered to and used to improve defendants’ home, and that defendant accepted the benefits of these converted items. These allegations stated a cause of action against defendant for aiding and abetting conversion. * * *

Plaintiff properly stated a cause of action against defendant for moneys had and received. The elements of such a cause of action are that the defendant received money belonging to the plaintiff and benefitted from that money, and that equity and good conscience will not permit the defendant to keep the money … . The complaint alleges that money stolen from plaintiff by Jaques was used to improve and maintain defendants’ home, and that defendant consented to these actions. Accepting the allegations as true, and reasonably inferring that the use of this money provided a benefit to defendant, the third cause of action was sufficient. * * *

Supreme Court erred in concluding that the doctrine of equitable estoppel tolled the statutes of limitations as raised by defendant. Although the doctrine precludes a defendant from relying on a “statute of limitations defense when the plaintiff was prevented from commencing a timely action by reasonable reliance on the defendant’s fraud, misrepresentation or other affirmative misconduct . . ., equitable estoppel does not apply where the misrepresentation or act of concealment underlying the estoppel claim is the same act which forms the basis of [the] plaintiff’s underlying substantive cause[s] of action” … . Torrance Constr., Inc. v Jaques, 2015 NY Slip Op 02813, 3rd Dept 4-2-15

 

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Graphic Designer Properly Found to Be an Employee

The Third Department affirmed the Unemployment Insurance Appeal Board’s conclusion that a graphic designer was an employee, not an independent contractor:

…[I]t is well settled that the existence of an employment relationship is a factual issue for the Board to resolve and its determination will not be disturbed if supported by substantial evidence … . “The determination rests not on one single factor, but consideration is given to whether control was exercised over the results or the means used to achieve those results, with the latter factor deemed more important” … .

Here, claimant responded to a website posting and, after being interviewed, was selected by Propoint to work on client projects at a mutually agreed pay rate of $28 per hour. He was paid every two weeks regardless of whether Propoint received payment from the client. Although there were no set working hours, claimant performed most of his work at the employer’s premises, where he was provided with a computer, software and related items, and he was required to turn in daily time cards. Propoint did not provide claimant with any leave time or other benefits, withhold taxes from his paychecks or prohibit him from working for others, and it required him to sign an independent contractor agreement. Propoint, however, retained the right to review claimant’s work product and direct him to make changes. Moreover, the confidentiality provisions of the independent contractor agreement precluded claimant from including client projects in his personal portfolio. Inasmuch as the foregoing demonstrates that Propoint retained control over both the means and the results of claimant’s work, substantial evidence supports the Board’s finding of an employment relationship… . Matter of Ramirez (Propoint Graphics LLC–Commissioner of Labor), 2015 NY Slip Op 02825, 3rd Dept 4-2-15

 

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