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Anticipatory Repudiation Cause of Action Stated;Four-Year UCC Statute of Limitations Applied

In a full-fledged opinion by Justice Leventhal, the Second Department determined that the plaintiff had pled a valid “anticipatory repudiation” cause of action and that the four-year UCC statute of limitations applied.  The case concerned the return (for a refund) of drugs when the expiration date is close or has passed.  The plaintiff brought the action when it learned the refund would not be offered in full. Regarding the anticipatory repudiation and statute of limitations issues, Justice Leventhal wrote:

Here, the complaint alleges that, when the defendants refused to accept the plaintiff’s attempt to return the unsold merchandise, the defendants anticipatorily repudiated their respective return policies by unambiguously stating that they would not accept the returns. The complaint asserts that the defendants’ anticipatory repudiation occurred before the plaintiff tendered the unsold merchandise to the defendants and before the plaintiff attempted to return the merchandise to the manufacturer in accordance with standard industry practice. When a party repudiates a contract prior to the time designated for performance and before all of the consideration has been fulfilled, the nonrepudiating party can seek to recover damages …. * * *

The general rule applicable to actions to recover damages for breach of contract is that a six-year statute of limitations begins to run when a contract is breached or when one party fails to perform a contractual obligation …. However, UCC 2-725(1) provides that “[a]n action for breach of any contract for sale [of goods] must be commenced within four years after the cause of action has accrued” (see CPLR 203[a]). QK Healthcare, Inc v InSource, Inc, 2013 NY Slip Op 03312, 2nd Dept, 5-8-13

 

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Unlicensed Contractor Could Not Sue for Breach of Contract or Quantum Meruit

The Second Department affirmed the dismissal of a contractor’s “breach-of-contract” and “quantum-meruit” causes of action because the contractor was not licensed, and thereby forfeited his right to recover:

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 …. Administrative Code of Suffolk County § 563-17(A) provides, in pertinent part, that “[i]t is unlawful for any person to engage in any business as a home improvement contractor without obtaining a license therefor.” Graciano Corp v Baronoff, 2013 NY Slip Op 03301, 2nd Dept, 5-8-13

 

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Arrest Based on Out of State Warrant Not Authorized​

In reversing the denial of suppression, reversing the conviction and dismissing the indictment, the Second Department explained that the arrest based on out of state warrant (for a violation of probation) was not authorized.  A local criminal court warrant was required:

The detective had no authority to arrest the defendant based on his information that there was an out-of-state violation of probation warrant, as the detective did not obtain a warrant from a local criminal court pursuant to CPL 570.32. While CPL 570.34 provides that a police officer may also arrest a person in this State without a warrant “upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year”…, a violation of probation is not a “crime” … . People v Miranda-Hernandez, 2013 NY Slip Op 03346, 2nd Dept, 5-8-13

STREET STOPS, SUPPRESS

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Trial Judge’s Violation of CPL 310.30 in Responding to Jury Note Constituted Reversible “Mode of Proceedings” Error

In reversing a conviction because the trial judge did not handle a jury note properly, in violation of CPL 310.30, the Second Department explained:

…[T]he court received a substantive jury note but did not set that note forth on the record and allow counsel a full opportunity to suggest an appropriate response. …[T]he court failed to fulfill its core responsibilities under CPL 310.30, thereby committing a mode of proceedings error that is exempt from the preservation requirements and requires reversal … . Accordingly, the judgment must be reversed, and a new trial ordered … . People v Howell, 2013 NY Slip Op 03342, 2nd Dept, 5-8-13

 

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Criteria for Downward Departure (SORA)​

The Second Department explained the two factors a defendant must demonstrate for a downward departure in a SORA proceeding:

First, a defendant must identify, as a matter of law, an appropriate mitigating factor, namely, a factor which “tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines”…. Second, a defendant must prove by a preponderance of the evidence the facts necessary to support that mitigating factor …. In the absence of that twofold showing, the court lacks discretion to depart from the presumptive risk level …. People v Henry, 2013 NY Slip Op 03309, 2nd Dept, 5-8-13

 

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Conflicting Expert Opinions, One of Which Was “Conclusory” with Respect to Proximate Cause, Raised Question of Fact

The Second Department reversed the dismissal of medical malpractice and wrongful death causes of action because a question of fact about whether there was a deviation from the standard of care by a hospital employee was raised by conflicting expert opinions, one of which was “conclusory” on the issue of proximate cause:

Although, generally, a hospital cannot be held vicariously liable for the negligence of a private attending physician, concurrent liability will be imposed where, inter alia, a hospital’s employees commit independent acts of negligence …. Here, Winthrop [the hospital] satisfied its prima facie burden of establishing its entitlement to judgment as a matter of law by demonstrating that Noble, its employee, did not commit any independent acts that deviated from the standard of care while attending to the decedent in the post-operative recovery area …. However, Winthrop failed to satisfy its prima facie burden with respect to the issue of proximate cause, as the opinion rendered by its expert on that issue was conclusory … Therefore, the burden shifted to the plaintiff to raise a triable issue of fact only as to whether there was a deviation from the standard of care …. The plaintiff did so through the affidavit of her expert, who opined that Noble deviated from the standard of care by, inter alia, failing to recognize the signs of a complication and timely report those signs to Wong [the decedent’s private attending physician]. In light of the conflicting opinions of the parties’ experts, summary judgment dismissing the medical malpractice and wrongful death causes of action insofar as asserted against Winthrop should have been denied …. Rosenstack v Wong, 2013 NY Slip Op 03316, 2nd Dept, 5-8-13

 

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Criteria for Labor Law 200 Claim Explained

The plaintiff fell when a plank on a catwalk broke.  In the course of the decision, which addressed several Labor Law claims, the Second Department explained the criteria for a Labor Law section 200 cause of action based on an alleged dangerous condition:

Labor Law § 200 “is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site” …. Where, as here, a “premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident” …. In opposition to the defendants’ prima facie showing that they lacked actual notice of a dangerous condition, the plaintiff’s deposition testimony that he had seen rotten, discolored planks on the catwalk and had reported the condition to the defendants’ foreman on three occasions in the two months prior to his accident was sufficient to raise a triable issue of fact as to whether the defendants had actual notice of the dangerous condition. Moreover, photographs of the broken catwalk in the record show cracked, warped, and discolored planks. Thus, the defendants failed to establish, prima facie, that they lacked constructive notice of the alleged defect …. Ramirez v Metropolitan Transp Auth, 2013 NY Slip Op 03314, 2nd Dept, 5-8-13

 

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“Service Charge” Could Be “Gratuity” to Which Employer Not Entitled

In upholding the sufficiency of a complaint seeking damages for violations of Labor Law section 196-d, alleging that a 15 to 20% “service charge” on catering and hospital forms was actually a “gratuity,” the Second Department wrote:

Labor Law § 196-d provides, in pertinent part, that “[n]o employer . . . shall demand or accept, directly or indirectly, any part of the gratuities received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee.” In Samiento v World Yacht Inc. (10 NY3d 70, 74), …the Court of Appeals held that depending upon the circumstances, even a mandatory service charge added to a bill “may be a charge purported to be a gratuity’ within the meaning of [Labor Law § 196-d].” The Court stated that a mandatory service charge can purport to be a gratuity “when it is shown that employers represented or allowed their customers to believe that the charges were in fact gratuities for their employees” (id. at 81). “[T]he standard under which a mandatory charge or fee is purported to be a gratuity should be weighed against the expectation of the reasonable customer” and the “reasonable patron standard should govern when determining whether a banquet patron would understand a service charge was being collected in lieu of a gratuity” (id. at 79). Martin v Restaurant Assoc Events Corp, 2013 NY slip Op 03304, 2nd Dept, 5-8-13

 

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Defective Release Did Not Trigger 90-Day Clock for Payment of Settlement Amount

The Second Department determined that a release that was defective because it excluded subrogation claims did not start the 90-day clock, pursuant to CPLR 5003-a(e), for payment of the settlement amount:

Here, contrary to the plaintiff’s contention, the general release provided by the plaintiff was defective, since it expressly excluded potential subrogation claims against the defendant. Therefore, it was insufficient to trigger the 90-day period within which the defendant was required to make payment of the settlement amount, and, accordingly, the plaintiff was not entitled to seek a judgment based on nonpayment under CPLR 5003-a(e)… . Pitt v New York City Hous Auth, 2013 NY Slip Op 03311, 2nd Dept, 5-8-13

 

 

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Sufficient Grounds for Custody Hearing Raised​

The Second Department determined Supreme Court erred when it denied plaintiff’s motion for a change in custody/visitation without holding a hearing.  The plaintiff had alleged, among other things, the defendant operated a vehicle in an impaired state, posing a danger to the children:

Here, the plaintiff made the necessary showing entitling him to a hearing regarding those branches of his motion which were to modify the Stipulation so as to award him sole legal custody and suspend the defendant’s visitation with the children, unless supervised …. Furthermore, the record does not demonstrate that the Supreme Court possessed adequate relevant information to enable it to make an informed and provident determination as to the children’s best interest so as to render a hearing unnecessary …. Accordingly, the Supreme Court erred in denying those branches of the plaintiff’s motion which sought a modification of the existing custody arrangement, without first conducting a full evidentiary hearing to ascertain the children’s best interests…. Nusbaum v Nusbaum, 2013 NY Slip Op 03307, 2nd Dept, 5-8-13

 

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