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THE STATUTORY CRITERIA FOR A MOTION TO CHANGE VENUE IN CPLR 510(3) WERE NOT MET; THE MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendants’ motion to change the venue in this insurance-coverage dispute should not have been granted because the statutory criteria in CPLR 510(3) were not met. The statute requires detailed information about the witnesses who will testify and how those witnesses would be inconvenienced if venue is not changed:

To warrant a change of venue pursuant to CPLR 510(3), “[t]he affidavit in support of such motion must contain the names, addresses and occupations of the prospective witnesses, must disclose the facts to which the proposed witnesses will testify at the trial, must show that the proposed witnesses are, in fact, willing to testify and must show how the proposed witnesses would be inconvenienced in the event that a change of venue is not granted” … . Defendants have failed to meet any part of this standard. Defendants’ general statements that nonparty witnesses involved in the renovation project will be inconvenienced by venue in New York County is inadequate to satisfy the standard … . Corner of Walnut LLC v Tompkins Ins. Agencies, Inc., 2024 NY Slip Op 01339, First Dept 3-14-24

Practice Point: CPLR 510(3) describes the required contents of a motion to change venue which includes detailed information about the witnesses who will testify and how the witnesses will be inconvenienced if venue is not changed.

 

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PLAINTIFF, A NEW YORK RESIDENT AND A SHAREHOLDER IN DEFENDANT LONDON CORPORATION, ALLEGED DEFENDANT WRONGFULLY FAILED TO PAY DIVIDENDS; THE LONDON DEFENDANT’S MOTION TO DISMISS ON FORUM NON CONVENIENS GROUNDS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to dismiss on “forum non conveniens” grounds should have been granted. Plaintiff is a New York resident and the defendant is a London corporation (Anderson). Plaintiff, a shareholder of Anderson, alleged Anderson failed to pay dividends to shareholders:

The doctrine of forum non conveniens permits a court to dismiss an action when it finds that “in the interest of substantial justice the action should be heard in another forum” (CPLR 327[a]). In reviewing the motion court’s exercise of discretion, this Court, however, may exercise such discretion independently … . The factors to be considered on a forum non conveniens motion include: “the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which plaintiff may bring suit. The court may also consider that both parties to the action are nonresidents and that the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction. No one factor is controlling” … . New York courts “need not entertain causes of action lacking a substantial nexus with New York” … .

… Although plaintiff is a resident of New York, Anderson, its documents, and the witnesses are all located in the United Kingdom. The dispute involves an accounting of a British private company and will likely involve the application of British law to determine what duty, if any, is owed to plaintiff. Furthermore, the United Kingdom has a stronger interest than New York in the actions, duties, and governance of its companies … . Hayes v Anderson & Sheppard Ltd., 2024 NY Slip Op 01344, First Dept 3-14-24

Practice Point: Here plaintiff, a New York resident and a shareholder in defendant London corporation, alleged defendant wrongfully failed to pay dividends. The London defendant’s motion to dismiss on forum non conveniens grounds should have been granted, criteria explained.

 

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THE AMENDED LIMITED LIABILITY COMPANY AGREEMENT SUPERSEDED THE PRIOR ORAL SIDE AGREEMENT BECAUSE IT INCLUDED AN UNAMBIGUOUS INTEGRATION AND MERGER CLAUSE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissenting opinion, determined the amended Limited Liability Company (LLC) agreement with an integration and merger clause superseded the prior oral side agreement, called an exit opportunity agreement:

… [T]he amended LLC agreement contains a clear and unambiguous integration and merger clause providing that it “constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter;” the “subject matter” being the “allocation of profits and losses among the Members, distributions among the Members, [and] the rights, obligations and interests of the Members to each other and to the Company” … . * * *

… [T]he merger clause explicitly states that the amended LLC agreement supersedes all prior written and oral agreements concerning the subject matter of the amended LLC agreement … . Behler v Kai-Shing Tao, 2024 NY Slip Op 01337, First Dept 3-14-24

Practice Point: Here the unambiguous integration and merger clause in the amended Limited Liability Company agreement precluded enforcement of a prior oral side agreement. Although the issue here appears simple, it was the subject of a full-fledged majority opinion and a full-fledged two-justice dissenting opinion.

 

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PLAINTIFF, AN EXPERIENCED GOLFER WHO WAS PARTICIPATING IN A TOURNAMENT, ASSUMED THE RISK OF BEING STRUCK IN THE EYE BY A GOLF BALL WHILE RIDING IN A GOLF CART (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff golfer assumed the risk of being struck by a golf ball during a golf tournament. Supreme Court and the dissenters concluded there was a question of fact whether the design of the defendant golf course unreasonably increased the risk:

Plaintiff was riding in a golf cart on the seventh hole fairway when he was hit by a ball struck by defendant Justin Hubbard, who had just teed off from the third hole. Both the third and seventh holes are over 400 yards in length. The fairways on each hole run parallel, in part, in the area in front of the third tee, and that part of the seventh fairway approaching the green, which from a vantage point on the fairway, is adjacent to and to the right of the third tee.  * * *

… [I]t is well established that “being hit without warning by a shanked shot” is “a commonly appreciated risk” of participating in the sport … . ” ‘[G]olfers are deemed to assume the risks of open topographical features of a golf course’ “… , and “evidence establishing that the proximity of [a tee] to [a different] green and hole was open and obvious” will preclude liability against a golf course for injuries sustained as a result of such proximity … . Katleski v Cazenovia Golf Club, Inc., 2024 NY Slip Op 01366, Third Dept 3-14-24

Practice Point: The majority concluded plaintiff golfer assumed the risk of being struck by a golf ball. Supreme Court and the two dissenters argued the design of defendant golf course unreasonably increased the risk.

 

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THE SIGHTSEEING BUS COMPANY’S COUNTERCLAIMS ALLEGING CONCERTED ANTI-COMPETITIVE BEHAVIOR BY OTHER BUS COMPANIES IN VIOLATION OF THE DONNELLY ACT (GENERAL BUSINESS LAW 340) SHOULD NOT HAVE BEEN DISMSSED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the counterclaims by a tour bus company, Go New York, alleging anti-competitive behavior in violation of the Donnelly Act by other bus companies, called the Gray Line respondents, should not have been dismissed:

The Donnelly Act prohibits “[e]very contract, agreement, arrangement or combination” through which “a monopoly . . . is or may be established or maintained,” whereby “competition or the free exercise of any activity in the conduct of business . . . is or may be restrained,” or whereby trade or business is or may be restrained “[f]or the purpose of establishing or maintaining any such monopoly or unlawfully interfering with the free exercise of any activity in the conduct of any business, trade or commerce” (General Business Law § 340 [1]). As with a claim brought “under its essentially similar federal progenitor, section 1 of the Sherman Act (15 USC § 1 et seq),” a claim brought under the Donnelly Act, at a minimum, “must allege both concerted action by two or more entities and a consequent restraint of trade within an identified relevant product market” … . The Court has recognized that “the sweep of Donnelly may be broader than that of Sherman” insofar as the Donnelly Act proscribes “arrangements” in addition to contracts, combinations, and conspiracies … . …

Go New York alleges that the Gray Line respondents conspired with other counterclaim defendants (which Go New York refers to as “Big Bus/Leisure Pass”), to leverage their market share to “shut out” Go New York from the “hop-on, hop-off sightseeing tour bus market.” According to the facts asserted—which we must accept as true on this motion—representatives from various New York City attractions refused to do business with Go New York after Gray Line and Big Bus/Leisure Pass impugned Go New York’s reputation and threatened to end their business with those attractions if they did business with Go New York. Go New York also alleged that, although certain attractions referenced exclusive relationships with either Gray Line or Big Bus/Leisure Pass as a basis not to partner with Go New York, the attractions in fact partnered with both. Thus, it can be inferred that the claimed exclusive relationships were a pretext to cover for anticompetitive efforts to exclude Go New York. Although sparse, these factual assertions and all the possible inferences to be drawn therefrom are sufficient to allege concerted action between two or more entities and support a cognizable Donnelly Act counterclaim under our liberal notice pleading standards … . Taxi Tours Inc. v Go N.Y. Tours, Inc., 2024 NY Slip Op 01333, CtApp 3-14-24

Practice Point: The allegations here were deemed sufficient to state a cause of action for a violation of the Donnelly Act, which prohibits concerted anti-competitive behavior by businesses designed to exclude a competing business from the market.

 

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WHERE A LAWSUIT AGAINST A UNION SEEKS INJUNCTIVE RELIEF, AS OPPOSED TO MONETARY DAMAGES, THE COMPLAINT NEED NOT ALLEGE EVERY MEMBER OF THE UNION RATIFIED THE CHALLENGED CONDUCT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the precedent (Martin v Curran (303 NY 276) prohibiting a lawsuit against a union (an unincorporated association) unless it was demonstrated every member of the union ratified the challenged action only applies when the lawsuit seeks monetary damages, not, as here, injunctive relief:

… [E]xtending [Martin v Curran (303 NY 276 [1951])] to bar union members from seeking any form of injunctive relief against a union, would have troubling implications. Respondents do not seriously dispute that, if Martin precludes petitioners’ claim here, union members would have no recourse to the courts even when incumbent union officials are allegedly manipulating elections to maintain power. Applying Martin to bar suits seeking to compel union officials to abide by their respective union constitutions and bylaws would have “far-reaching consequences” and risk “stifl[ing] all criticism” and democracy “within the union” … .

We therefore clarify that where, as here, union members seek only injunctive relief against the union and state no claim for pecuniary damages, the pleading is not governed by Martin and, as such, a plaintiff need not allege the participation of each individual member to bring a claim in accordance with General Associations Law § 13. The petition below was therefore improperly dismissed on that ground. Matter of Agramonte v Local 461, Dist. Council 37, Am. Fedn. of State, County & Mun. Empls., 2024 NY Slip Op 01332, CtApp 3-14-24

Practice Point: The complaint in a lawsuit against a union seeks injunctive relief, as opposed to monetary damages, the complaint need not allege that every member of the union ratified the challenged conduct.

 

 

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DECEDENT’S WORK-RELATED COVID DEATH ENTITLED DECEDENT’S DAUGHTER, DECEDENT’S “STATUTORY BENEFICIARY,” TO “ACCIDENTAL DEATH BENEFITS” UNDER A RECENT STATUTE; PETITIONER, DECEDENT’S PARTNER, WHO WAS DECEDENT’S “DESIGNATED BENEFICIARY” FOR “ORDINARY DEATH BENEFITS,” WAS NOT ENTITLED TO THE “ACCIDENTAL DEATH BENEFITS” (CT APP).

The Court of Appeals, affirming the Appellate Division, determined the respondent Teachers’ Retirement System properly awarded “accidental death benefits” to decedent’s daughter under a recent law which classified certain work-related COVID death as “accidental.” The dispute here was between the “statutory beneficiary,” decedent’s daughter who received the “accidental death benefits,” and the “designated beneficiary,” decedent’s partner, who was entitled to any “ordinary death benefits:”

he statutory text refutes petitioner’s argument that respondent’s denial of her claim for ordinary death benefits was irrational. Retirement and Social Security Law § 607-i (a) (3) provides that the accidental death benefit “shall” be paid to a member’s statutory beneficiary if the member meets the stated criteria. This is consistent with the recognition in the legislative history that “[o]nce the statutory beneficiary demonstrates this proof, entitlement to the [a]ccidental [d]eath [b]enefit is mandatory” … . Additionally, preexisting law provided that an ordinary death benefit is only available when accidental death benefits are unavailable (see Retirement and Social Security Law § 606-a [a] [3]). Matter of Colon v Teachers’ Retirement Sys. of the City of N.Y., 2024 NY Slip Op 01331, CtApp 3-14-24

Practice Point: Here decedent’s daughter was the “statutory beneficiary” of “accidental death benefits” under the Retirement and Social Security Law, and decedent’s partner was the “designated beneficiary” for “ordinary death benefits” under the Retirement and Social Security Law. Decedent’s daughter was properly awarded the “accidental death benefits” under a recent statute covering work-related COVID deaths.

 

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​ THE DENIAL OFTHE NON-RESIDENT’S APPLICATION FOR EMPLOYMENT IN NEW YORK CITY IS SUBJECT TO THE EMPLOYMENT-DISCRIMINATION PROHIBITIONS IN THE NEW YORK CITY AND NEW YORK STATE HUMAN RIGHTS LAW (CT APP).

The Second Department, answering a certified question from the Second Circuit, in a full-fledged opinion by Judge Singas, determined that the denial of an non-New-York-resident’s application for employment in New York City is subject to the prohibitions of employment discrimination under the NYS and NYC Human Rights Law. Plaintiff was employed by defendant in Washington DC and sought, but was denied, a new position with the defendant in New York City:

… [A] nonresident who has been discriminatorily denied a job in New York City or State loses the chance to work, and perhaps live, within those geographic areas. The prospective employee personally feels the impact of a discriminatory refusal to promote or hire in New York City or State, because that is where the person wished to work (and perhaps relocate) and where they were denied the chance to do so. When applying the required liberal construction of “inhabitants” and “individual within this state” (Executive Law § 290 [3]; Administrative Code § 8-101), a prospective inhabitant or employee, who was denied a job opportunity because of discriminatory conduct, fits comfortably within the Human Rights Laws’ protection. Syeed v Bloomberg L.P., 2024 NY Slip Op 01330, CtApp 3-14-24

Practice Point: Plaintiff worked for defendant in Washington DC and sought, but was denied, a new position with defendant in New York City. Although a non-resident, plaintiff could bring a failure-to-hire/failure-to-promote employment-discrimination action in New York pursuant to the NYC and NYS Human Rights Law.

 

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THE DISCOVERY DEMANDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST DEFENDANT SCHOOL DISTRICT ALLEGING SEXUAL ABUSE BY A TEACHER WERE OVERLY BROAD AND UNDULY BURDENSOME AND SHOULD HAVE BEEN STRUCK IN THEIR ENTIRETY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discovery demands in this negligent supervision action against a school district, alleging the sexual abuse of plaintiff-student by a teacher, were overly broad and unduly burdensome. Therefore the demands should have been struck in their entirety with no attempt to prune them:

… [A] “‘ …party is not entitled to unlimited, uncontrolled, unfettered disclosure'” … . “Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order striking a notice for discovery and inspection that is palpably improper” … . A notice for discovery and inspection is palpably improper if it is overbroad, burdensome, fails to specify with reasonable particularity many of the documents demanded, or seeks irrelevant or confidential information (see CPLR 3120[2] …). “Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it” … .

Here, many of the plaintiff’s discovery demands were palpably improper in that they were overbroad and burdensome … . The plaintiff’s discovery demands broadly sought, among other things, documents pertaining to any complaint of sexual abuse by any employee of the District from January 1, 1997, to the present and any suspected romantic or sexual relationship between any teacher and any student at the school from 1990 to the present. Thus, the Supreme Court should have denied the plaintiff’s motion pursuant to CPLR 3124 to compel the District to comply with the plaintiff’s first and second demands for discovery and granted the District’s application pursuant to CPLR 3103(a) for a protective order striking those demands in their entirety instead of pruning them … . Ferrara v Longwood Cent. Sch. Dist., 2024 NY Slip Op 01293, Second Dept 3-13-24

Practice Point: In this negligent supervision action against a school district alleging sexual abuse by a teacher plaintiff’s discovery demands included “documents pertaining to any complaint of sexual abuse by any employee of the District from January 1, 1997, to the present and any suspected romantic or sexual relationship between any teacher and any student at the school from 1990 to the present”. The demand was overly broad and unduly burdensome and was struck in its entirety.

 

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PLAINTIFF AND DEFENDANTS ARE NEIGHBORS; PRIVATE NUISANCE CAUSES OF ACTION BASED UPON DEFENDANTS’ YEARLY FIREWORKS DISPLAYS AND EXCESSIVE NOISE FROM POOL EQUIPMENT SHOULD NOT HAVE BEEN DISMISSED; A TRESPASS CAUSE OF ACTION BASED UPON DEBRIS FROM THE FIREWORKS FALLING ON PLAINTIFF’S PROPERTY SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined certain causes of action for private nuisance and trespass should not have been dismissed. Plaintiff and defendants are neighbors. The private nuisance causes of action based upon defendant’s fireworks displays every year and excessive noise from defendants’ pool equipment should not have been dismissed. In addition, the trespass action based upon debris falling on plaintiff’s property from the fireworks should not have been dismissed:

“The elements of a private nuisance cause of action are: (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act” … . “Not every annoyance will constitute a nuisance. Nuisance imports a continuous invasion of rights—a pattern of continuity or recurrence of objectionable conduct” … . “Except for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed” … * * *

“The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission, or a refusal to leave after permission has been granted but thereafter withdrawn” … . “An invasion of another’s property or airspace need not be more than de minimis in order to constitute a trespass” … . “Generally, intangible intrusions, such as by noise, odor, or light alone, are treated as nuisances, not trespass because they interfere with nearby property owners’ use and enjoyment of their land, not with their exclusive possession of it” … . Del Vecchio v Gangi, 2024 NY Slip Op 01292, Second Dept 3-13-24

Practice Point: The elements of private nuisance and trespass explained in the context of allegations by one neighbor against another concerning fireworks displays and excessive noise from pool equipment.

 

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