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Affidavits, Deposition Testimony, and Letters Are Not Considered “Documentary Evidence” Within the Meaning of CPLR 3211(a)(1)

The Second Department described the types of documents which will not support a motion to dismiss pursuant to CPLR 3211(a)(1):

“A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim'” … . “Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)”… . Contrary to the defendant’s contention, an affidavit by a … project manager did not constitute documentary evidence with the intendment of CPLR 3211(a)(1) … . JA Lee Elec Inc v City of New York, 2014 NY Slip Op 05159, 2nd Dept 7-9-14

 

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Criteria for Discovery from Non-Party Explained/Criteria for Discovery of Trade Secrets Explained

The Second Department explained the criteria for discovery demanded of a non-party [Morgan Stanley] and described the relevant considerations when discovery is opposed on the ground that the material requested constitutes trade secrets.  The court concluded Morgan Stanley had demonstrated certain of the discovery requests related to protected trade secrets:

Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the “circumstances or reasons” requiring disclosure. Pursuant to the Court of Appeals' recent decision in Matter of Kapon v Koch ( ____ NY3d ____, 2014 NY Slip Op 02327 [2014]), disclosure from a nonparty requires no more than a showing that the requested information is “material and necessary,” i.e. relevant to the prosecution or defense of an action (id., *1). However, “the subpoenaing party must first sufficiently state the circumstances or reasons' underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it), and the witness, in moving to quash, must establish either that the discovery sought is utterly irrelevant' to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious'” (id.). Should the nonparty witness meet this burden, “the subpoenaing party must then establish that the discovery sought is material and necessary' to the prosecution or defense of an action, i.e., that it is relevant” (id.). * * *

Notwithstanding New York's policy of liberal discovery (see id., * 4-5), a party seeking disclosure of trade secrets must show that such information is “indispensable to the ascertainment of truth and cannot be acquired in any other way” … . A witness who objects to disclosure on the ground that the requested information constitutes a trade secret bears only a minimal initial burden of demonstrating the existence of a trade secret … . Contrary to [plaintiff's] contention, Morgan Stanley met its minimal initial burden of showing that the documents requested in paragraphs 11 through 19 in the section of the subpoena duces tecum entitled “Requests for Production” contained trade secrets … . Thus, the burden shifted to [plaintiff] to demonstrate that the information contained in those documents was indispensable to the ascertainment of truth, and could not be acquired in any other way … . Ferolito v Arizona Beverages USA LLC, 2014 NY Slip Op 05153, 2nd Dept 7-9-14

 

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Rationale for Allowing a Late Motion for Summary Judgment When It Is Identical in Substance to a Timely Motion for Summary Judgment Made by Another Party Explained

The Second Department determined an untimely motion for summary judgment should not have been granted.  The court explained that an untimely motion may be entertained when it is identical in substance to a timely summary judgment motion made by another party in the action.  But that was not the case here.  The timely motion made by the MTA defendants, who were deemed not liable, did not determine the liability of the LIPA defendants.  Therefore, plaintiff’s untimely motion for summary judgment against the LIPA defendants could not “rely” on the motion made by the MTA defendants:

The plaintiff’s motion for summary judgment on the issue of liability was made more than 90 days after the filing of the note of issue, in violation of the terms of a certification order requiring motions for summary judgment to be filed within 90 days of the filing of a note of issue (see CPLR 3212[a]…). Although an untimely motion or cross motion for summary judgment may be considered by the court, in the exercise of its discretion, where a timely motion for summary judgment was made on nearly identical grounds …, that rule did not apply here. The reason why an untimely motion for summary judgment may be considered if another party made a motion on nearly identical grounds is that, pursuant to CPLR 3212(b), the court has the authority, on a motion for summary judgment, to search the record and award relief to a nonmoving party … . In the instant case, the MTA defendants, the original movants, established as a matter of law that they were not at fault in the happening of the accident. However, the fact that the MTA defendants were not at fault in the happening of the accident did not mean that the LIPA defendants were at fault and, therefore, that the plaintiff was entitled to summary judgment against the LIPA defendants. Accordingly, the plaintiff’s motion for summary judgment on the issue of liability against the LIPA defendants should have been denied as untimely.  Williams v Wright, 2014 NY Slip Op 05172, 2nd Dept 7-9-14

 

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Proof of “Physical Injury” Was Legally Insufficient

The Second Department determined the “physical injury” element of robbery in the second degree had not been proven:

“Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). The subject complainant testified that he sustained an injury to his left ring finger after he was attacked from behind and fell to the ground. The complainant went to the hospital after the incident, where his bruised finger was bandaged and placed in a splint, but X rays revealed no broken bones and there was no evidence presented that he was prescribed pain medication. A “bruise” was still present four years after the incident, but the complainant only testified generally that he felt pain on his hand and arms immediately after the incident, and he did not testify that the injury limited or diminished his ability to use his finger for any length of time. Under these circumstances, there was insufficient evidence from which a jury could infer that the complainant suffered substantial pain or impairment of physical condition … . People v Boney, 2014 NY Slip Op 05197, 2nd Dept 7-9-14

 

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Child Should Have Been Placed with Grandmother—Placement Criteria Explained

The Second Department determined Family Court should not have denied the petition to place the child with the grandmother.  The court explained the placement procedure and criteria:

Family Court Act § 1017 sets out the steps to be followed in determining the appropriate placement of a child when the child is initially removed from his or her home. When the decision to remove the child was made, the DSS was obligated to locate the child’s relatives, including her grandmother, and inform them of the pendency of the proceeding and of the opportunity for becoming foster parents or for seeking custody or care of the child (see Family Ct Act § 1017[1]). The Family Court was then required to determine if the child could suitably reside with any such relative (see Family Ct Act § 1017[1][a], [b]). If a suitable relative existed, the Family Court would either place the child with that relative or with the local commissioner of social services with directions to allow the child to reside with that relative pending his or her approval as a foster parent (see Family Ct Act § 1017[2][a]). Only if no suitable relative could be located would the Family Court consider whether another placement would be appropriate (see Family Ct Act former § 1017[2][b]). With respect to an out-of-state relative, Social Services Law § 374-a requires that an ICPC home study must first be conducted before placing the child with that individual.

“One purpose of Family Court Act § 1017 is to help safeguard the infant’s physical, mental and emotional well-being. . . Placement with a suitable relative can help the child by maintaining family ties and reducing the trauma of removal. In making a determination of placement [the] Family Court must consider not only the custodian’s ability to provide adequate shelter, but all the facts and circumstances relevant to the child’s best interest” … . Matter of Paige G, 2014 NY Slip Op 05182, 2nd Dept 7-9-14

 

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Material Misrepresentation Justified Rescission of Policy

The Second Department determined that plaintiff’s representation to the insurance carrier that the property was a two-family dwelling, when it actually was a three-family dwelling, was a material misrepresentation justifying rescission of the policy:

“To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy” … . “A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented” … . “To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” … . * * *

…[T]he defendant submitted an affidavit from its underwriting manager and its “Homeowners Selection Rules,” which showed that it would not have issued the same policy if the application had disclosed that the subject premises was a three-family dwelling … . Lema v Tower Ins Co of NY, 2014 NY Slip Op 05162, 2nd Dept 7-9-14

 

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Block Falling from Pallet Covered Under Labor Law 240(1)/Criteria for Common Law Indemnification Explained

The Second Department determined injury from a stone block falling from a pallet was covered by Labor Law 240(1).  The court also explained the requirements for common law indemnification:

The defendants failed to establish their prima facie entitlement to judgment as a matter of law. Labor Law § 240(1) mandates that owners and contractors “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” The statute imposes absolute liability on owners and contractors whose failure to “provide proper protection to workers employed on a construction site” proximately causes injury to a worker … . The defendants failed to show that the injured plaintiff’s alleged injuries resulted from a general hazard encountered at a construction site and were not “the direct consequence of a failure to provide” an adequate device of the sort enumerated in Labor Law § 240(1) … . Those devices are intended to protect “against a risk arising from a physically significant elevation differential” (id. at 603). The defendants’ submissions did not establish that the accident was not the result of a failure to provide a protective device contemplated by the statute … . * * *

The key element of a cause of action for common-law indemnification is not a duty running from the indemnitor to the injured party, but rather, is a separate duty owed the indemnitee by the indemnitor … . ” Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine'”… . Desena v North Shore Hebrew Academy, 2014 NY Slip Op 05149, 2nd Dept 7-9-14

 

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Portion of Assisted Outpatient Treatment (AOT) Order Not Supported by Testimony Should Not Have Been Included

The Second Department determined Supreme Court did not have the authority, under Mental Hygiene Law 9.60, to go beyond the treatment plan and recommendations testified about by the psychiatrist in a proceeding to order Raymond G to comply with Assisted Outpatient Treatment (AOT).  In the absence of any recommendations about Raymond G’s use of his car, the court ordered the impoundment of his car. The Second Department reversed that part of the AOT order and explained what can be included in an AOT order under the terms of the controlling statute:

Mental Hygiene Law § 9.60, commonly known as Kendra’s Law, “provides a framework for the judicial authorization of involuntary outpatient treatment programs for persons suffering from mental illnesses” (Matter of William C., 64 AD3d 277, 279). It sets forth, inter alia, the types of outpatient services that may be ordered by the court as part of an AOT plan, the requirements for the petition, and the procedures for a hearing on the petition (see Mental Hygiene Law § 9.60[a][1]; [e][2]-[3]; [h][1]). * * *

The statute requires that the petition be accompanied by an affirmation or affidavit of an examining physician who recommends AOT (see Mental Hygiene Law § 9.60[e][3][I]), and directs that the court “shall not order [AOT]” unless it is provided with a proposed written treatment plan developed by a physician appointed by the applicable community services or hospital director, which includes “all categories of services, as set forth in [§ 9.60(a)(1)], which such physician recommends that the [patient] receive,” “no later than the date of the hearing on the petition” (Mental Hygiene Law § 9.60[i][1]). Further, the statute provides that the court “shall not order [AOT] unless [the] physician appearing on behalf of [the] director testifies to explain the written proposed treatment plan [and] state[s] the categories of [AOT] recommended, the rationale for each such category, [and] facts which establish that such treatment is the least restrictive alternative” (Mental Hygiene Law § 9.60[i][3]).

Following the hearing, the court “may” order AOT if it finds by “clear and convincing evidence that the [patient] meets the criteria for [AOT], and there is no appropriate and feasible less restrictive alternative” (Mental Hygiene Law § 9.60[j][2]). The order must include specific findings “by clear and convincing evidence that the proposed treatment is the least restrictive treatment appropriate and feasible for the [patient],” and “state an [AOT] plan, which shall include all categories of [AOT], as set forth in [§ 9.60(a)(1)], which the [patient] is to receive” (Mental Hygiene Law § 9.60[j][2]). The order “shall not include any such category that has not been recommended in both the proposed written treatment plan and the [physician’s hearing] testimony” (Mental Hygiene Law § 9.60[j][2]).  Matter of Raymond G…, 2014 NY Slip Op 05183, 2nd Dept 7-9-14

 

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Matter Determined After a Public Hearing, As Opposed to a Quasi-Judicial Evidentiary Hearing, Is Reviewed Under the “Arbitrary and Capricious,” Not “Substantial Evidence,” Standard/Village’s Higher Rate for Water Delivered to Customers Outside Its Borders Was Rational

The Second Department determined that, because there was a public hearing, not a quasi-judicial evidentiary hearing, on whether the village could charge a higher rate for water supplied outside its borders, Supreme Court should have determined the matter under the arbitrary and capricious standard. In applying that standard, the Second Department found the higher rate had a rational basis:

The Supreme Court erred in characterizing the proceeding as one in the nature of certiorari in which the “substantial evidence” inquiry applied (CPLR 7804[g]). Rate-making determinations may be considered “judicial in the sense that they are reviewable by certiorari or a proceeding in the nature of certiorari” where notice and a hearing are prescribed by statute … . However, “there are different types of hearings with different legal consequences” … . Here, the Village Code required the Board to conduct a hearing in advance of changing the rates it charged for water service, and the Board held a public hearing, as opposed to a quasi-judicial evidentiary hearing (see Code of the Village of Williston Park § 225-20[A]). As such, judicial review of the determination was limited to “whether the determination was affected by an error of law, or was arbitrary and capricious or an abuse of discretion, or was irrational” … . * * *

The Board’s determination to increase rates was rational, and was not arbitrary and capricious or illegal. A municipal water supplier may charge a higher rate to customers outside its borders, including other municipalities, so long as the difference has a rational basis … . Moreover, a municipal corporation operating a public water utility is entitled to earn a “fair return” on its investment in the utility’s facilities “over and above costs of operation and necessary and proper reserves” in addition to “an amount equivalent to taxes which [the utility], if privately owned, would pay to such municipal corporation” (General Municipal Law § 94; see NY Const art IX, § 1[f]). The actual rate the Board determined to charge also was rational … . In addition, the petitioner has not made any showing that the profits earned by the Incorporated Village of Williston Park under the new rate schedule, as compared to the “value of the property used and useful in such public utility service, over and above costs of operation and necessary and proper reserves,” were in excess of a “fair return” … . Matter of Board of Trustees of Inc Vil of Williston v Board of Trustees of Inc Vil of Williston Park, 2014 NY Slip Op 05179, 2nd Dept 7-9-14

 

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Jury’s Finding a Party Was at Fault But Such Fault Was Not the Proximate Cause of the Accident Should Not Have Been Set Aside as Inconsistent and Against the Weight of the Evidence

The Second Department determined plaintiff’s motion to set aside the verdict as contrary to the weight of the evidence should not have been granted.  Plaintiff was injured when he dove to catch a ball in an area which had poles sticking up out of the ground.  The plaintiff, who was 10 years old at the time, knew the poles were there.  The jury found that the property owner was at fault but that such fault was not the proximate cause of the accident.  The Second Department held that the verdict was not inconsistent and against the weight of the evidence:

“A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . ” [W]here there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view'” … . Here, a fair interpretation of the evidence supports the conclusion that the infant plaintiff’s own negligence was the sole proximate cause of his accident … . Henry v Town of Hempstead, 2014 NY Slip Op 05157, 2nd Dept 7-9-14

 

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