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Question of Fact About Whether Release Procured by Fraud or Duress

In upholding the denial of defendant’s (Countrywide’s) motion for summary judgment based upon the execution of a release, the Second Department determined that the allegations of fraud and duress in procurement of the release raised a question of fact:

 The Countrywide defendants’ motion was properly denied. Although the plaintiff’s execution of the release in favor of the defendants was “a jural act of high significance” …, “a motion to dismiss should be denied where fraud or duress in the procurement of the release is alleged”… . Here, the plaintiff sufficiently alleged that the Countrywide defendants procured the release by means of fraud or duress, so as to warrant denial of their motion.   Warmhold v Zagarino, 2013 NY Slip Op 03668, 2nd Dept, 5-22-13

 

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Theory of Damages in Contract Action​

The Second Department explained the theory underlying damages for breach of contract and noted that damages are usually ascertained as of the date of the breach:

It has long been recognized that the theory underlying damages for breach of contract is to make good or replace the loss caused by the breach… . Damages are intended to return the parties to the point at which the breach arose and to place the nonbreaching party in as good a position as it would have been had the contract been performed (…Restatement [Second] of Contracts §§ 347, comment a; § 344). Thus, damages for breach of contract are ordinarily ascertained as of the date of the breach… .. Seidman v Industrial Recycling Props, Inc, 2013 NY Slip Op 03659, 2nd Dept, 5-22-13

 

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Unambiguous Release Is a Jural Act of High Significance Which Must Be Enforced

In explaining the legal principles underlying the enforcement of releases, the Second Department wrote:

Public policy favors the enforcement of settlements …, and a release is “a jural act of high significance without which the settlement of disputes would be rendered all but impossible” ….. Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release…, and should not “be converted into a starting point for renewed litigation” …


“[A] release is governed by principles of contract law”…, and a release “that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms”…. “Whether or not a writing is ambiguous is a question of law to be resolved by the courts” … . Inter-Reco, Inc v Lake Park 175 Froehlich Farm, LLC, 2013 NY Slip Op 03637, 2nd Dept, 5-22-13

 

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Civil Versus Criminal Contempt Explained in Context of Imposition of Fines or Monetary Penalties

In a divorce proceeding plaintiff sought a contempt finding and the imposition of monetary penalties or fines in connection with defendant’s failure to comply with a court order.  The Second Department explained the principles underlying civil versus criminal contempt as follows:

“[U]nlike fines for criminal contempt where deterrence is the aim and the State is the aggrieved party entitled to the award, civil contempt fines must be remedial in nature and effect. The award should be formulated not to punish an offender, but solely to compensate or indemnify private complainants”…. In the instant matter, the Supreme Court held the defendant in civil contempt. “Coercive penalties designed to modify the contemnor’s behavior, generally speaking, are civil in nature, while penalties meant to punish the contemnor for past acts of disobedience are criminal…. Thus, a fine “is considered civil and remedial if it either coerces the recalcitrant party into compliance with a court order, or compensates the claimant for some loss . . . If a fine is not compensatory, it is civil only if the contemnor is given an opportunity to purge” … . Here, where the plaintiff failed to prove an actual loss, any penalty that punished the defendant for her past acts of disobedience would have been within the rubric of a criminal contempt and thus improper within this civil contempt adjudication … .  Ruesch v Ruesch, 2013 NY Slip Op 03655, 2nd Dept, 5-22-13​

 

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Subpoena Can Not Be Used for Discovery Purposes​

The Second Department noted that a subpoena duces tecum may not be used for discovery purposes:

“[A] subpoena duces tecum may not be used for purposes of discovery or to ascertain the existence of evidence”…. Here, the subpoena duces tecum served by the defendants improperly sought production of certain materials that the defendants had failed to seek during the discovery process, or that had previously been the subject of an unsuccessful motion to compel disclosure. Under these circumstances, the Supreme Court properly granted the separate motions of the plaintiff and the third-party defendant to quash the subpoena duces tecum … . Wahab v Agris & Brenner, LLC, 2013 NY Slip Op 03667, 2nd Dept, 5-22-13

 

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Expert’s Affidavit Should Have Been Considered in Summary Judgment Motion Even though Expert Had Not Been Disclosed​

In a slip and fall case, the defendant moved for summary judgment.  Because the plaintiff’s expert had not been previously disclosed, Supreme Court refused to consider the expert’s affidavit.  In reversing, the Second Department wrote:

 “[A] party’s failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party’s experts in the context of a timely motion for summary judgment” …. Under the circumstances of this case, it was an improvident exercise of discretion to refuse to consider the affidavit of the plaintiff’s expert submitted in opposition to the respondents’ motion … . Salcedo v Weng Qu Ju, 2013 NY Slip Op 03656, 2nd Dept, 5-22-13

 

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Consolidation and Joint Trial Explained​

The Second Department explained the criteria for a motion to consolidate and explained when consolidation, as opposed to joining two actions for trial, is not appropriate:

“A motion to consolidate two or more actions rests within the sound discretion of the trial court” (… see CPLR 602). “Where common questions of law or fact exist, consolidation is warranted unless the opposing party demonstrates prejudice to a substantial right” … . * * *

…[A]ctions should be joined for trial, rather than consolidated, [when] certain parties would appear as both the plaintiff and the defendant if the actions were consolidated, and the actions involve certain different defendants … .  Matter of Joseph J, 2013 NY Slip Pp. 03676, 2nd Dept, 5-22-13

 

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Unsigned Depositions Deemed Admissible

In a Labor Law action stemming from a fall through an open manhole, the plaintiffs submitted transcripts of one the plaintiff’s deposition testimony as part of plaintiffs’ motion for summary judgment on liability. Supreme Court denied plaintiffs’ motion on the ground that the certified deposition transcripts submitted by them were not signed.  In determining that Supreme Court should not have denied plaintiffs’ motion on that ground, the Second Department wrote:

By submitting the transcript of [plaintiff’s] deposition, the plaintiffs adopted it as accurate …. Further, the … defendants … did not challenge the accuracy of any of the transcripts submitted by the plaintiffs …. Consequently, those deposition transcripts were admissible ….  Carey v Five Bros, Inc, 2013 NY Slip Op 03626, 2nd Dept. 5-22-13

 

 

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Conviction for Possession With Intent to Sell Against Weight of Evidence​

In finding defendant’s conviction for possession with intent to sell was against the weight of the evidence, the Second Department (with a dissent) wrote:

…[T]he amount of cocaine recovered from the defendant was relatively small and not inconsistent with personal use. Indeed, convictions for criminal possession of a controlled substance involving intent to sell generally stem from situations where a significantly greater quantity of drugs is recovered from the defendant’s person…. Even more important, the defendant was found to be in possession of no drug paraphernalia or weapons, and he had only $20 in cash … .Although there was testimony that street drug sales often involve bags of drugs costing $20 each, the mere fact that the defendant was in possession of a single $20 bill cannot be considered indicative of an intent to sell.  People v McFadden, 2013 NY Slip Op 03690, 2nd Dept, 5-22-12

 

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Trial Judge Can Rescind Mistrial Declaration; Retrial Okay Where Defendant Consents to Mistrial​

The Second Department determined that a trial judge can rescind a mistrial declaration and noted that a mistrial granted with the consent of the defendant does not bar retrial:

When a mistrial is declared in a criminal case without the consent, or over the objection, of the defendant, the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution and in section 6 of article I of the New York Constitution precludes a retrial for the same offense unless ” there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated'”…. Conversely, when a defendant requests or consents to a mistrial, double jeopardy typically does not bar a retrial ….

The mere declaration of a mistrial does not terminate a criminal trial and thereby divest the trial court of the authority to rescind the declaration…. Accordingly, the Supreme Court erred in determining that the District Court did not retain the discretion to rescind its previous declaration of a mistrial prior to the discharge of the jury. Moreover, the District Court’s initial declaration of a mistrial, made without the petitioner’s consent, was rescinded and, thereafter, a mistrial was declared upon the petitioner’s consent. Accordingly, the Supreme Court erred in granting the petition to the extent that it did, and in barring a retrial of the petitioner on the ground of double jeopardy. Matter of Gorman v Rice, 2013 NY Slip Op 03673, 2nd Dept, 5-22-13

 

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