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Procedure for Determining a Pre-Answer Motion to Dismiss a Declaratory Judgment Action Explained

In the context of an action for a declaratory judgment concerning the legality of the collective bargaining agreement (re: the waiver of seniority rights), the Second Department explained how a pre-answer motion to dismiss pursuant to CPLR 3211 (a)(7) [failure to state a cause of action] should be considered:

A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'” … . “Thus, where a cause of action is sufficient to invoke the court’s power to render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy, a motion to dismiss that cause of action should be denied'” … . A court may reach “the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where no questions of fact are presented [by the controversy]'” … . Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action “should be taken as a motion for a declaration in the defendant’s favor and treated accordingly”… .  Bregman v East Ramapo Cent Sch Dist, 2014 NY Slip Op 07610, 2nd Dept 11-12-14

 

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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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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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Insufficient Break Between Unwarned Statement and Subsequent Warned Statement—All Statements Suppressed/Appellate Court Cannot Consider Argument Not Raised by the People at Trial and Not Considered by the Trial Court

The Second Department, over a dissent, determined that there was not a sufficient break between the unwarned portion of defendant’s statement and the subsequent warned statements to remove the taint of the initial failure to give the Miranda warnings.  The court noted that it was precluded from considering any theory supporting the admissibility of subsequent warned statements because the theory was not presented to the trial court by the People and was not considered by the trial court:

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events, there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . On this record …, it is clear that defendant’s two written statements, although produced after she had been Mirandized, were “part of a single continuous chain of events” that included the detective’s initial pre-warning inquiries and statement, defendant’s pre-warning acknowledgment that she knew why she had been brought in, and her pre-warning statement that she and the other alleged perpetrator had asked to use the victim’s phone outside the latter’s house. There was no time differential between the Miranda violation and the Mirandized interview that immediately followed, giving rise to the two written statements; the same police personnel were involved before and after the warnings; there was no change in the location or nature of the interrogation; and defendant had never indicated a willingness to speak to the police before the Miranda violation. Further, although the pre-warning exchange was very brief and did not include any admission by defendant of criminal conduct, her unwarned statements plainly tended to incriminate her by acknowledging that she knew something about the murder of an elderly woman and by placing herself at the scene of the crime with the victim and the other alleged perpetrator … .

Under the foregoing circumstances established by the record, it cannot be said that there was, between the Miranda violation and the making of the subsequent Mirandized written statements, such a “definite, pronounced break in the interrogation to dissipate the taint from the Miranda violation” … by “return[ing] [defendant], in effect, to the status of one who is not under the influence of questioning” … . * * *

We note that we are precluded from considering whether the break of at least 2 hours and 45 minutes between the completion of defendant’s second written statement and the commencement of her videotaped statement (which began with renewed Miranda warnings administered by the assistant district attorney) sufficed to attenuate any taint from the commencement of the questioning before she was initially Mirandized and, therefore, to render the videotaped statement admissible. The hearing court’s decision denying suppression did not consider any such theory, which had not been raised by the People in opposition to the motion seeking suppression of all three recorded statements. Accordingly, under CPL 470.15(1), we are without power to affirm on the ground that the videotaped statement was admissible and that its admission rendered harmless the error in admitting the written statements … . People v Daniel, 2014 NY Slip Op 07568, 1st Dept 11-6-14

 

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Unexcused Late Disclaimer of Coverage Invalid and Unenforceable

The Third Department determined the insurer’s disclaimer of coverage was invalid and uneforceable because it was inexcusably late.  The court noted that a “reservation of rights letter” does not constitute a disclaimer:

An insurer’s decision to disclaim liability insurance coverage must be given to the insured, in writing, as soon as is reasonably practicable, “failing which the disclaimer or denial will be ineffective” (… see Insurance Law § 3420 [d] [2]…). While the timeliness of an insurer’s notice of disclaimer generally raises an issue of fact for a jury to decide, where, as here, the basis for a disclaimer “was or should have been readily apparent before the onset of the delay,” the delay will be found to be unreasonable as a matter of law … . “Reasonableness of delay is measured from the time when the insurer learns of sufficient facts upon which to base the disclaimer” … . * * *

Even after receiving the attorney’s summary, which ostensibly equipped it with sufficient facts to issue a written disclaimer, plaintiff instead sent defendant a reservation of rights letter, which does not serve as “a substitute for the required notice of disclaimer” … . Vermont Mut Ins Co v Mowery Constr Inc, 2014 NY Slip Op 07537, 3rd Dept 11-6-14

 

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Worker Struck by Falling Brick Entitled to Summary Judgment/Comparative Negligence Is Not a Defense to a Labor Law 240(1) Claim

The First Department determined that summary judgment pursuant to Labor Law 240(1) was properly granted to a worker struck by a falling brick.  The court noted that comparative negligence is not a defense to a Labor Law 240(1) action:

Plaintiff established his entitlement to judgment as a matter of law on the issue of liability on his Labor Law § 240(1) claim by submitting, among other things, his testimony that he was performing his assigned work of cleaning debris from the ground level, just outside the north side of the subject building under construction, when he was suddenly struck by a falling brick, in the absence of any overhead netting or other such protective devices … . Defendants’ witnesses further established their liability by confirming that the brick fell out of the hands of a masonry worker several stories above plaintiff, and that safety netting which had been installed on other sides of the building was absent from the north exterior. The lack of overhead protective devices was a proximate cause of plaintiff’s injuries under any of the conflicting accounts …, and plaintiff’s comparative negligence is not a defense to a Labor Law § 240(1) claim… . Hill v Acies Group LLC, 2014 NY Slip Op 07601, 2nd Dept 11-6-14

 

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