You are here: / EVERY CAUSE OF ACTION WAS ERRONEOUSLY DISMISSED AS TIME-BARRED; THE PROPER...

Search Results

/ , , , ,

EVERY CAUSE OF ACTION WAS ERRONEOUSLY DISMISSED AS TIME-BARRED; THE PROPER CRITERIA FOR DETERMINING THE CORRECT STATUTES OF LIMITATIONS DISCUSSED IN SOME DETAIL (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined several causes of action including fraud, breach of fiduciary duty, breach of constructive trust, and breach of contract should not have been dismissed as time-barred:

“‘[W]here an allegation of fraud is essential to a breach of fiduciary duty claim, courts have applied a six-year statute of limitations under CPLR 213(8)'” … . * * * … [P]laintiffs discovered the alleged fraud in 2019 and the cause of action was timely commenced within two years. * * *

… [T]he statute of limitations on the cause of action for the imposition of a constructive trust did not begin to run until 2019, when [defendant] allegedly breached his promise … . …

“[I]n order to determine the statute of limitations applicable to an action for a declaratory judgment, a court must examine the substance of the action. Where it is determined that the parties’ dispute can be, or could have been, resolved in an action or proceeding for which a specific limitation period is statutorily required, that limitation period governs” … . * * *

… Supreme Court erred in concluding that the causes of action alleging fraud in the inducement and promissory estoppel are time-barred. The statute of limitations for those causes of action is six years … . …

The statute of limitations applicable to a breach of contract cause of action is six years (see CPLR 213[2]), “and begins at the time of the breach, even when no damage occurs until later, and even though the injured party may be ignorant of the existence of the wrong or injury” … . Statharos v Statharos, 2023 NY Slip Op 04226, Second Dept 8-9-23

Practice Point: Here the criteria for determining the applicable statute of limitations for breach of fiduciary duty, fraud, breach of constructive trust, declaratory judgment, promissory estoppel, fraud in the inducement and breach of contract are discussed in some detail.

/ , ,

THE SUPPRESSION MOTION WAS PROPERLY GRANTED; THE POLICE DID NOT HAVE REASONABLE SUSPICION WHEN DEFENDANT’S CAR WAS BLOCKED BY A POLICE CAR; THE APPELLATE COURT MAY CONSIDER A RULING WHICH WAS NOT EXPLICIT BASED ON THE CONTEXT OF THE RULING WITHIN THE RECORD (SECOND DEPT).

The Second Department, over a two-justice dissent, determined the suppression motion was properly granted because the police blocked defendant’s car before there was reasonable suspicion of criminal activity or danger to the public. The majority also concluded the issue could be decided on appeal in the absence of a specific ruling by the motion court by relying on the record for the context of the ultimate ruling:

Officer Cox’s conduct in stopping the police vehicle “directly in front of the driveway” in a position “blocking the location” where the Audi was stopped with the engine running “constituted a stop, which required reasonable suspicion that the defendant or other occupants of the vehicle were either involved in criminal activity or posed some danger to the police” … . Joyette, the driver of the Audi, could not have pulled out of the driveway due to the police vehicle blocking the driveway, and thus, the police conduct constituted a “‘significant interruption with an individual’s liberty of movement'” … .

Further, the People failed to present any evidence showing that Officer Cox and his fellow officers observed any criminal activity at the time Officer Cox blocked the Audi from leaving the driveway. * * *

While CPL 470.15 bars this Court from deciding an appeal on a ground not ruled upon by the trial court … , “nothing in the language of CPL 470.15(1) . . . prohibits an appellate court from considering the record and the proffer colloquy with counsel to understand the context of the trial court’s ultimate determination” … . Moreover, “where the trial court gives a reason [for its decision] and there is record support for inferences to be drawn from that reason, the Appellate Division does not act beyond the parameters legislatively set forth in CPL 470.15(1) when it considers those inferences” … . People v Joyette, 2023 NY Slip Op 04216, Second Dept 8-9-23

Practice Point: When the police blocked defendant’s car they did not have reasonable suspicion of criminal activity. Therefore the suppression motion was properly granted.

Practice Point: When a court’s ruling is not explicit the context of the ruling can be turned to by the appellate court to determine the exact nature of the ruling.

 

/ ,

ALTHOUGH THE ERROR WAS DEEMED HARMLESS, THE FORENSIC STATISTICAL TOOL (FST) DNA ANALYSIS SHOULD NOT HAVE BEEN ADMITTED WITHOUT HOLDING A FRYE HEARING (SECOND DEPT).

The Second Department determined the DNA analysis using the forensic statistical tool (FST) should not have been admitted in the absence of a Frye hearing. However, there error was deemed harmless:

Supreme Court improperly admitted into evidence the results of DNA analysis conducted using the forensic statistical tool (hereinafter FST) without first holding a hearing pursuant to Frye v United States (293 F 1013 [DC Cir]) … . However, this error was harmless. The evidence of the defendant’s guilt was overwhelming. The surviving police officer who was shot at by the defendant at close range, under good lighting conditions, and without obstruction identified the defendant within hours of the shooting. Other uncontested, single-source, non-FST DNA testing connected the defendant to the gun used in the shooting. Witnesses who knew the defendant and lived in the vicinity of the shooting testified that they saw the defendant running through their yards just after they heard the gun shots, holding a gun similar to the gun identified as the one used in the shooting. The defendant provided a false name to law enforcement officers canvassing the area of the shooting when he was approached by them, by which point he had abandoned some of the clothing he was wearing during the shooting, and he was apprehended wearing someone else’s ill-fitting clothes and shoes. Additionally, the People’s evidence offered in rebuttal to the defendant’s extreme emotional disturbance defense was compelling. Therefore, there is no significant probability that the jury would have acquitted the defendant had it not been for this error. People v Blackwell2023 NY Slip Op 04211, Second Dept 8-9-23

Practice Point: A DNA analysis using the forensic statistical tool (FST) should not be admitted in the absence of a Frye hearing.

 

/ ,

​ DEFENDANT DEMONSTRATED PLAINTIFF CAUSED THE TRAFFIC ACCIDENT BY MAKING AN UNREASONABLE LEFT TURN IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW (NEGLIGENCE PER SE); THE COURT MAY DETERMINE THE PROXIMATE CAUSE OF A TRAFFIC ACCIDENT AT THE SUMMARY JUDGMENT STAGE AS A MATTER OF LAW IF ONLY ONE CONCLUSION CAN BE DRAWN FROM THE FACTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this traffic accident case demonstrated plaintiff violated the Vehicle and Traffic Law by unreasonably making a left turn, which constitutes negligence per se:

… [T]he defendant established her prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence that the plaintiff’s conduct in making a left turn directly into the path of the defendant’s vehicle without yielding the right-of-way to the defendant, in violation of Vehicle and Traffic Law § 1141, and when it was not reasonably safe to make a left turn, in violation of Vehicle and Traffic Law § 1163(a), was the sole proximate cause of the accident … . The issue of proximate cause may be decided as a matter of law where, as here, only one conclusion may be drawn from the established facts … . Lylan Pham v Lee, 2023 NY Slip Op 04200, Second Dept 8-9-23

Practice Point: Causing a traffic accident by making an unreasonable left turn into defendant’s lane of traffic in violation of the Vehicle and Traffic Law is negligence per se.

Practice Point: A judge at the summary judgment stage can determine the proximate cause of a traffic accident as a matter of law if there is only one conclusion which can be drawn from the facts.

 

/ , , ,

THE ALLEGATIONS WERE SUFFICIENT TO SUPPORT PIERCING THE CORPORATE VEIL TO REACH DEFENDANT LLC MEMBER PERSONALLY FOR BREACH OF THE HOUSING MERCHANT IMPLIED WARRANTY OBLIGATIONS; AND DEFENDANT COULD BE HELD PERSONALLY LIABLE FOR NEGLIGENT REPAIRS UNDER A HOME RENOVATION CONTRACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs in this home-renovation-contract dispute sufficiently alleged the corporate veil should be pierced to reach the defendant Assaf, member of the LLC, personally for failing to comply with the implied warrant requirements. Defendant could also be held personally liable for negligent repairs:

Among the plaintiffs’ allegations were that Assaf wound down the LLC’s business following the closing of title in an effort to keep the LLC undercapitalized and judgment proof and that, following the closing, he distributed sale proceeds without reserving sufficient assets needed to satisfy the LLC’s obligations under New York State’s housing merchant implied warranty and any contingent liability.

… “Although [c]orporate officers may not be held personally liable on contracts of their corporations, provided they did not purport to bind themselves individually under such contracts, corporate officers may be held personally liable for torts committed in the performance of their corporate duties” … . Here, the plaintiffs adequately alleged that Assaf personally engaged in acts of negligence in performing repairs at the home … . Gold v 22 St. Felix, LLC, 2023 NY Slip Op 04194, Second Dept 8-9-23

Practice Point: Here the allegation that defendant LLC member undercapitalized the LLC supported piercing the corporate veil for breach of the home merchant implied warranty obligations.

Practice Point: A member of an LLC may be personally liable for negligent repairs pursuant to a home-renovation contract.

 

/ ,

PLAINTIFF WAS NOT HIRED BECAUSE HE TESTED POSITIVE FOR MARIJUANA WHEN HE WAS UNDER TREATMENT WITH MARIJUANA; THAT STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION (SECOND DEPT). ​

The Second Department determined that refusing to hire plaintiff for testing positive for marijuana when he was being treated with marijuana stated a cause of action for employment discrimination:

We find unavailing the defendant’s contention that the complaint failed to state a cause of action to recover damages for employment discrimination on the basis of disability in violation of the NYCHRL [New York City Human Rights Law] because the defendant chose not to hire the plaintiff based only on his positive drug test and not his disability. Refusing to hire the plaintiff because he tested positive for marijuana while knowing that he was being treated with marijuana by a licensed physician for a medical condition effectively denied the plaintiff the opportunity of a reasonable accommodation, and therefore, under these circumstances, is appropriately recognized as a cognizable cause of action to recover damages for employment discrimination on the basis of disability in violation of the NYCHRL … . Brouillard v Sunrun, Inc., 2023 NY Slip Op 04184, Second Dept 8-9-23

Practice Point: Refusing to hire plaintiff for testing positive for marijuana when plaintiff was under a doctor’s treatment with marijuana stated a cause of action for denying the plaintiff the opportunity of a reasonable accommodation.

 

/ , ,

THERE WAS NO REASONABLE VIEW OF THE EVIDENCE WHICH SUPPORTED THE JURY’S CONCLUSION THE BUS DRIVER WAS NOT NEGLIGENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE; THE MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the defense verdict in this bus-pedestrian accident case should have been granted:

A jury verdict in favor of a defendant should be set aside as contrary to the weight of the evidence where the evidence preponderates so heavily in the plaintiff’s favor that it could not have been reached by any fair interpretation of the evidence … . “A driver . . . has ‘a statutory duty to use due care to avoid colliding with pedestrians on the roadway (see Vehicle and Traffic Law § 1146), as well as a common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses'” … .

Here, no fair interpretation of the evidence supports a finding that Ramirez was free from negligence in the happening of this accident. Although it is unclear whether the plaintiff was crossing the entrance ramp in or near the crosswalk at the time that she was struck, Ramirez’s failure to observe the plaintiff crossing the entrance ramp at the time of the accident was a violation of his common-law duty to see that which he should have seen through the proper use of his senses … . Under these circumstances, the jury’s verdict that Ramirez was free from negligence was not supported by any fair interpretation of the evidence. Wargold v Hudson Tr. Lines, Inc., 2023 NY Slip Op 04153, Second Dept 8-2-23

Practice Point: A driver has a common law duty to see what he should have seen. The motion to set aside the defense verdict in this bus-pedestrian accident case should have been granted.

 

/ , ,

THE “TIME WHEN” ALLEGATIONS IN THE CLAIM IN THIS CHILD VICTIMS ACT SUIT WERE SUFFICIENT, COURT OF CLAIMS REVERSED (SECOND DEPT).

The Second Department, reversing the Court of Claims, over an instructive concurrence, determined the claim in this Child Victims Act action sufficiently alleged the “time when” the sexual abuse allegedly occurred:

… [T]he date ranges provided in the claim, together with the other information set forth therein, were sufficient to satisfy the “time when” requirement of Court of Claims Act § 11(b). The claimant alleged, among other things, that “[i]n approximately 1987, when [he] was approximately sixteen (16) years old, [he] was admitted to” a State-operated psychiatric hospital “for inpatient residential treatment,” and that “[while] admitted to the . . . facility” he was “sexually abused and assaulted” by a staff member on two occasions. Additionally, the claimant identified his alleged abuser in the claim and set forth the details of the two alleged assaults, including the location within the facility where they allegedly occurred. The claimant also alleged that, before the second incident of abuse occurred, he reported to his treating psychiatrist, whom the claimant identified by name, that the alleged perpetrator made the claimant “uncomfortable.” “Given that the CVA allows claimants to bring civil actions decades after the alleged sexual abuse occurred, it is not clear how providing exact dates, as opposed to the time periods set forth in the instant claim, would better enable the State to conduct a prompt investigation of the subject claim” … . We note, however, “that our determination that the claimant met the ‘time when’ requirement in the context of this action brought under the CVA does not change our jurisprudence with respect to the ‘time when’ requirement under different contexts, such as where a ‘single incidence of negligence’ occurs on a discrete date or other situations where ‘a series of ongoing acts or omissions occur[ ] on multiple dates over the course of a period of time’ … . Rodriguez v State of New York, 2023 NY Slip Op 04146, Second Dept 8-2-23

Practice Point: Here the allegations the sexual abuse took place in “approximately 1987” were deemed sufficient in this Child Victims Act suit.

 

/ , , , ,

​ PETITIONER’S APPLICATION FOR A PISTOL PERMIT SHOULD NOT HAVE BEEN DENIED BASED UPON A 23-YEAR-OLD ARREST THAT DID NOT RESULT IN PROSECUTION; PETITIONER SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO RESPOND TO THE OBJECTIONS TO THE APPLICATION (SECOND DEPT).

The Second Department, reversing County Court, determined petitioner’s application for a residential/sportsman pistol permit should not have been denied based upon a single arrest 23 years before which did not result in prosecution. The Second Department noted that petitioner was not given the opportunity to respond to the objections to his application:

… [T]he respondent’s determination denying the petitioner’s application for a pistol permit was arbitrary and capricious … . Although the respondent was entitled to consider the petitioner’s prior arrest, the circumstances thereof did not, under the particular facts of this case, warrant the denial of the petitioner’s application. The record reflects, among other things, that the petitioner properly disclosed his arrest in his application, that the weapon in question belonged to a hitchhiker the petitioner picked up while driving his vehicle when he was 19 years old, that an investigation by the District Attorney’s office determined that the weapon belonged to the hitchhiker, that the petitioner testified before a grand jury in connection with the subject matter, that the grand jury entered a no true bill against the petitioner, and that the petitioner has no other criminal record in the 23 years between his single arrest and the date of the pistol permit application. Further, based upon the record before us, it is apparent that the respondent did not give the petitioner an opportunity to respond to the stated objections to his pistol permit application … . Matter of Cambronne v Russo, 2023 NY Slip Op 04121, Second Dept 8-2-23

Practice Point: Here the denial of petitioner’s pistol-permit application was deemed arbitrary and capricious because it was based on a 23-year-old arrest that did not result in prosecution.

Practice Point: An applicant for a pistol permit should be given an opportunity to respond to objections to the application.

 

/ , , , , ,

​ IN THIS LEGAL MALPRACTICE ACTION, THE EVIDENCE SUBMITTED BY DEFENDANT ATTORNEYS IN SUPPORT OF THE MOTION TO DISMISS WAS NOT “DOCUMENTARY EVIDENCE;” THE PROOF REQUIREMENTS FOR A MOTION TO DISMISS ARE DIFFERENT FROM THE PROOF REQUIREMENTS FOR SUMMARY JUDGMENT; THE MOTION TO DISMSS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss in this legal malpractice case should not have been granted because the evidence offered in support of the motion (a letter from the insurer denying coverage and the insurance policy) was not “documentary evidence.” In addition, the Second Department noted that any deficiencies in the complaint were remedied by plaintiff’s affidavit submitted in opposition to the motion to dismiss. The complaint alleged defendant attorneys failed to timely file an action seeking recovery for personal injuries from a disability-insurance carrier:

“‘Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss'” … . * * *

“A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, [thereby] conclusively establishing a defense as a matter of law” … . “[T]o be considered ‘documentary,’ evidence must be unambiguous and of undisputed authenticity” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” … . “Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” … . Maursky v Latham, 2023 NY Slip Op 04115, Second Dept 8-2-23

Practice Point: Irrespective of the possible result of a summary judgment motion, a motion to dismiss which depends on evidence and is not supported by “documentary evidence” will lose.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy