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Procedure for Handling a Motion to Dismiss for Failure to State a Cause of Action When Documentary Evidence Is Submitted in Support of the Motion Explained—Attorney Discharged For Cause Is Not Entitled to “Quantum Meruit” Attorney’s Fees

In affirming the dismissal of plaintiff’s complaint, the Second Department explained the relevant analysis when documentary proof is submitted by a defendant in connection with a motion to dismiss for failure to state a cause of action pursunt to CPLR 3211(a)(7).  The action was brought by an attorney who had been discharged for cause by his clients prior to the settlement of a personal injury action:

In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory … . Where, however, a defendant has submitted 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, and, “unless it has been shown that a material fact as claimed by the [plaintiff] 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” … . Dismissal pursuant to CPLR 3211(a)(7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action … . * * *

A client has the right to discharge his or her attorney at any time … . While an attorney who is discharged without cause before the completion of services may recover the reasonable value of his or her services in quantum meruit, an attorney who is discharged for cause is not entitled to any compensation or lien … . Here, the court held a hearing pursuant to 22 NYCRR 603.13(b) with respect to the plaintiff’s cross motion for attorney’s fees. The court determined that the plaintiff was properly discharged for cause, and, therefore, was not entitled to recover in quantum meruit. Siskin v Cassar, 2014 NY Slip Op 07646, 2nd Dept 11-12-14

 

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The Proper Vehicle to Address Fraud Which Is Alleged to Have Tainted a Completed Proceeding Is a Motion to Vacate the Judgment, Not the Institution of a New Plenary Action

The Second Department noted that the remedy for addressing fraud in a completed action is a motion to vacate the judgment in that action, not a new plenary proceeding:

“Generally, a party who has lost a case as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action for damages against the party who adduced the false evidence” … . The “plaintiff’s remedy lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the . . . judgment due to its fraudulent procurement, not a second plenary action collaterally attacking the judgment in the original action” … . Stewart v Citimortgage Inc, 2014 NY Slip Op 07648, 2nd Dept 11-12-14

 

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Town Board Is Not a Necessary Party In an Action Against the Town—Acts of the Town Board Under Statutory Authority Are the Acts of the Town—Court’s Power to Join a Necessary Party Sua Sponte Noted (Not Properly Exercised Here)

The Second Department explained that, in a declaratory judgment action against a town challenging a local law, the town board is not a necessary party:

A “court may at any stage of a case and on its own motion determine whether there is a nonjoinder of necessary parties” … . “In a matter seeking a declaratory judgment challenging a legislative act, the legislative body that enacted the challenged law or ordinance is a necessary party” … .

In this declaratory judgment action against the Town of Huntington, challenging a Local Law enacted by the Town Board of the Town of Huntington (hereinafter the Town Board), the Supreme Court, sua sponte, directed the joinder of the Town Board as a defendant on the ground that it is a necessary party without which the action cannot proceed. However, a town board “shall be vested with all the powers of such a town” (Town Law § 60[1]) and “cannot and does not exist separately and independently from the town of which it is the governing body . . . [T]he acts of a town board when performed under statutory authority are the acts of the town” … . Accordingly, as the Town is a party defendant in this action, it was unnecessary for the court to have directed the joinder of the Town Board as a defendant … . Dish Realty LLC v Town of Huntington, 2014 NY Slip Op 07616, 2nd Dept 11-12-14

 

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Agreement to Pay over $500,000 (Re: Prior Loans Allegedly Made Over a Period Time) Not Enforceable Because the Agreement Did Not Express Any Consideration—Past Consideration Is No Consideration Because the Detriment Did Not Induce the Promise

The Second Department determined that an agreement to pay over $500,000, allegedly constituting the amount of past loans made over a period of time, was not enforceable because the agreement did not express any consideration.  However, the cause of action for monies had and received properly survived summary judgment:

The lack of consideration for a note is a bona fide defense to payment thereof … . Generally, past consideration is no consideration and cannot support an agreement because “the detriment did not induce the promise” … . That is, “since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise” … . However, a “promise in writing and signed by the promisor or by his agent shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed” (General Obligations Law § 5-1105 [emphasis added]).

Here, as indicated, the agreement did not express any consideration. Thus, it is not enforceable as a promissory note or as a contract (see General Obligations Law § 5-1105; Uniform Commercial Code § 3-104[1][a]-[d]; [2][d…). Samet v Binson, 2014 NY Slip Op -7643, 2nd Dept 11-12-14

 

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Work Performed by Plaintiff Was Not “Home Improvement”—No License Required

The Second Department affirmed Supreme Court’s finding that the installation of motorized window shades did not constitute “home improvement” and therefore plaintiff was not required to be licensed to perform the work.  If a license had been required by the Administrative Code of the City of New York, plaintiff would not have been able to recover under contract or quantum meruit:

“Where a home improvement contractor is not properly licensed in the municipality where the work is performed at the time the work is performed, the contractor forfeits the right to recover for the work performed both under the contract and on a quantum meruit basis” … . Here, contrary to the defendants’ contention, the Supreme Court properly determined that the plaintiff’s installation of motorized window shades in their condominium did not constitute “home improvement” work within the meaning of Administrative Code of the City of New York § 20-386(2)…). Rather, the plaintiff’s installation of motorized window shades constituted decorative work, which was not “incidental or related to” the separate home improvement renovations being performed by other contractors at the defendant’s condominium (Administrative Code of City of NY § 20-386[2]…). Schimko v Haley, 2014 NY Slip Op 07644, 2nd Dept 11-12-14

 

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Delay In Seeking DNA Sample Contributed to Violation of Speedy Trial Statute—Indictment Dismissed

The Second Department dismissed the indictment because the unexcused delay in seeking a DNA sample resulted in the violation of the speedy trial statute (CPL 30.30):

The defendant moved pursuant to CPL 30.30 to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial. Contrary to the People’s contention, because the People failed to exercise due diligence in obtaining the DNA sample from the defendant, the 161-day period between June 5, 2009, and November 13, 2009, was not excludable on the ground that their need to obtain the DNA test results constituted excusable, exceptional circumstances (see CPL 30.30[4][g]…). Adding this period of time to the periods of delay correctly conceded by the People, the People exceeded the six-month period in which they were required to be ready for trial (see CPL 30.30[1][a]). Accordingly, the judgment must be reversed, the defendant’s motion pursuant to CPL 30.30 granted, and the indictment dismissed. People v Clarke, 2014 NY Slip Op 07680, 2nd Dept 11-12-14

 

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Proof of “Physical Injury” Legally Insufficient (Lacerated Finger)

The Second Department determined the evidence of “physical injury” suffered by Sergeant Klein , required for the offense of Assault in the Second Degree, was legally insufficient:

Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). Sergeant Klein did not testify at trial. His medical records, which were admitted into evidence, indicated that he suffered a laceration to a finger on his right hand, with abrasions, pain, and swelling. While it is true that, to constitute physical injury, the pain caused by such a wound need not “be severe or intense to be substantial” …, it must, at a minimum, cause “more than slight or trivial pain” (id. at 447) or, to some extent, result in the impairment of the use of the finger (see Penal Law § 10.00[9]). No evidence was introduced that the injuries sustained by Sergeant Klein caused him more than trivial pain, or that the use of his finger was impaired by these injuries … . Accordingly, the defendant’s conviction of assault in the second degree under count two of the indictment must be vacated, and that count of the indictment must be dismissed. People v Perry, 2014 NY Slip Op 07689, 2nd Dept 11-12-14

 

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Individual Defendants’ Ties to New York, Including Business Activities in New York, Were Not Sufficient to Afford New York Jurisdiction, Pursuant to CPLR 302, Over a Lawsuit Stemming from a Personal Injury in New Jersey—CPLR 301, Which Affords New York Courts Jurisdiction Over Corporations Doing Business in New York, Does Not Extend to Individuals Doing Business in New York

The Second Department reversed Supreme Court’s finding that New York courts had jurisdiction over plaintiff’s personal injury action.  Plaintiff was injured by an allegedly defective saw provided by the defendants while doing work for defendants at the defendants’ home in New Jersey.  Jurisdiction pursuant to CPLR 302 was lacking because there was no real connection between the the defendants’ activities in New York (they ran a church in New York) and the personal injury action.  Jurisdiction pursuant to CPLR 301 was lacking because CPLR 301 does not apply to individuals, as opposed to corporations, doing business in New York:

In order to determine whether personal jurisdiction exists under CPLR 302(a)(1), a court must determine (1) whether the defendant transacted business in New York and, if so, (2) whether the cause of action asserted arose from that transaction … .

The Court of Appeals has interpreted the second prong of the jurisdictional inquiry to require that, in light of all the circumstances, there must be an “articulable nexus” … , between a defendant’s in-state activity and the claim asserted … . Although “causation is not required,” the Court of Appeals has stated that “at a minimum [there must be] a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former” … . “[W]here at least one element arises from the New York contacts, the relationship between the business transaction and the claim asserted supports specific jurisdiction under the statute” … .

Here, the relationship between the causes of action asserted in the complaint and the [defendants’] activities within New York were too insubstantial to warrant a New York court’s exercise of personal jurisdiction over them pursuant to CPLR 302(a)(1). * * *

In contrast to the common-law approach to corporations, the common law, as developed through case law predating the enactment of CPLR 301, did not include any recognition of general jurisdiction over an individual based upon that individual’s cumulative business activities within the State … . Since the enactment of CPLR 301 did not expand the scope of the existing jurisdictional authority of the courts of the State of New York, that section does not permit the application of the “doing business” test to individual defendants … . Accordingly, contrary to the plaintiff’s contention, since the [defendants] were served with process in New Jersey, the Supreme Court was not authorized to exercise personal jurisdiction over them pursuant to CPLR 301, based on their cumulative individual business activities within the State. Pichardo v Zayas, 2014 NY Slip Op 07639, 2nd Dept 11-12-14

 

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Questions of Fact Raised About Whether Premarital Agreement Was the Product of Overreaching

The Second Department reversed Supreme Court, finding that defendant-wife had raised a question of fact about the validity and enforceability of the premarital agreement.  The agreement purported to resolve all financial issues in the event of divorce and entitled defendant-wife only to a payment of $25,000.00 for each year of marriage.  Plaintiff-husband had assets of $10,000,000.00 and defendant-wife had assets of $170,000.00 at the time of the marriage:

An agreement between spouses or prospective spouses should be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to one spouse because of overreaching on the part of the other spouse … . Such an agreement may be invalidated if the party challenging the agreement demonstrates that it was the product of fraud, duress, or other inequitable conduct … .

There is evidence that the defendant was not represented by independent counsel in connection with the preparation and execution of the allegedly “take-it-or-leave-it” premarital agreement that is the subject of this appeal. In addition, contrary to the plaintiff’s contention, the preprinted financial forms executed by the parties do not demonstrate that they were expecting to enter into a premarital agreement, as the forms recite that they were furnished by a commercial bank in connection with an application for a mortgage. The defendant therefore raised triable issues of fact as to whether the premarital agreement was the product of overreaching, such that it would be rendered unenforceable … . Bibeau v Sudick, 2014 NY Slip Op 07608, 2nd Dept 11-12-14

 

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Conviction Overturned for the Second Time Because of Misconduct by the Same Prosecutor

In reversing defendant’s conviction for the second time (after the retrial) because of the same prosecutor’s misconduct, the Fourth Department also concluded there was insufficient evidence of the value of stolen items (cost of items when purchased not enough)) and there was insufficient evidence of possession of a controlled substance (statement that cocaine was smoked by the defendant on a particular day not enough). With respect to the prosecutorial misconduct, the court wrote:

Despite our prior admonition on defendant’s first appeal, the prosecutor on retrial repeated some of the improper comments from the first summation and made additional comments that we conclude are improper.  The prosecutor improperly denigrated the defense and defense counsel, repeatedly characterizing the defense as “noise,” “nonsense” and a “distraction[],” and arguing that defense counsel was fabricating facts and attempting to mislead the jury .. .  In one of the more troubling passages in her summation, the prosecutor stated, “You are here for the People of the State of New York versus [defendant] . . . It is not about who isn’t sitting at the defense table, it is about who is.  Are you buying it? Because that’s what they’re selling.  Theories disguised as arguments and posturing as evidence.  And I’m not suggesting the defendant has the burden of proving anything because the burden rests with the People, but by the same token, it doesn’t give counsel license to make stuff up and pretend that it’s evidence.  They all have something in common.  These theories, they’re noise, they’re nonsense.  They want you to be distracted.  Do not be distracted.”

In addition, the prosecutor misstated the evidence and the law…, made an inappropriate “guilt by association” argument …, and improperly characterized the case as “about finding the truth and it is as simple as that” … .  Perhaps the prosecutor’s most egregious misconduct occurred when she made herself an unsworn witness and injected the integrity of the District Attorney’s office into the case … .  With respect to a chief prosecution witness, who did not testify at the first trial and who turned herself in on a warrant the day prior to her testimony, the prosecutor stated:  “When she arrived at our offices, she was escorted over to Buffalo City Court because she had a warrant, because that’s what you have to do, and she was released on her own recognizance by the judge.  And let me be very clear here when we talk about promises to witnesses or benefits that they received.  Let me be very clear. Neither myself, nor [the other prosecuting attorney], nor anyone from our office, ever promised her anything in exchange for her testimony” … .  The Court of Appeals condemned similar comments by the prosecutor… . People v Morgan, 942, 4th Dept 11-8-13

 

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