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PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY ORDERS WAS WILLFUL AND CONTUMACIOUS BUT DID NOT WARRANT SUPREME COURT’S STRIKING THE COMPLAINT; THE APPELLATE DIVISION IMPOSED EVIDENTIARY SANCTIONS AND ORDERED PLAINTIFF’S COUNSEL TO PAY DEFENDANT $3000 (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, agreed plaintiff’s failure to comply with discovery orders was willful and contumacious, but determined striking the complaint was too severe a sanction. The appellate division’s sanctions included ordering plaintiff’s counsel to pay defendant $3000:

… [T]he record demonstrates that the plaintiff violated court orders directing her to appear for a continued deposition by a certain date, to provide a full set of copies of photographs that she referenced during her first deposition or provide an affidavit as to the nonexistence of those photographs, and to execute authorizations for certain medical providers, a pattern that supports an inference of willful and contumacious behavior … . Furthermore, the plaintiff’s procedural objection to the defendant’s motion was without merit. However, under the circumstances, we find that the striking of the complaint was too drastic a remedy … . Accordingly, that branch of the defendant’s motion which was pursuant to CPLR 3126 to strike the complaint should have been granted only to the extent of (1) precluding the plaintiff from using at trial any photograph that was not produced in response to the defendant’s discovery demands, (2) directing the plaintiff to provide the defendant with medical authorizations for Jamaica Hospital, and (3) directing the plaintiff’s counsel to personally pay the sum of $3,000 as a sanction to the defendant … . Castillo v Charles, 2022 NY Slip Op 06103, Second Dept 11-2-22

Practice Point: Here the appellate division found plaintiff’s failure to comply with discovery orders willful and contumacious but did not agree with Supreme Court’s striking of the complaint. The appellate court imposed evidentiary sanctions and ordered plaintiff’s counsel to pay defendant $3000.

 

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IN THIS SLIP AND FALL CASE, THE LESSEE OF THE PROPERTY ABUTTING THE ALLEGEDLY DEFECTIVE SIDEWALK WAS NOT LIABLE FOR PLAINTIFF’S SLIP AND FALL; THERE WAS NO EVIDENCE THE CONDITION WAS CREATED BY THE LESSEE AND NO EVIDENCE OF AN AGREEMENT CREATING A DUTY ON THE PART OF THE LESSEE TO MAINTAIN THE SIDEWALK (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this slip and fall case, determined 7-Eleven. the lessee of the property abutting the sidewalk where plaintiff allegedly fell, could not be held liable for the allegedly dangerous condition of the sidewalk:

Administrative Code of the City of New York § 7-210(a) imposes a duty upon “the owner of real property abutting any sidewalk . . . to maintain such sidewalk in a reasonably safe condition.” “[A] lessee of property which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the lessee the obligation to maintain the sidewalk which imposes liability upon the lessee for injuries caused by a violation of that duty” … . Additionally, “[a]s a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party” … . Only “where a lease agreement is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk, [may] the tenant . . . be liable to a third party” … . Here, the plaintiff failed to establish, prima facie, that 7-Eleven had any duty to maintain the sidewalk abutting the property it leased. Brady v 2247 Utica Ave. Realty Corp., 2022 NY Slip Op 06100, Second Dept 11-2-22

Practice Point: Under the NYC Administrative Code, the lessee of property abutting a sidewalk is not liable for a slip and fall caused by the condition of the sidewalk if the lessee did not create the condition and did not agree to maintain the sidewalk.

 

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DRIVER PURCHASED A GOODYEAR TIRE FOR HIS FORD FROM US TIRES, A NEW YORK CORPORATION; THE TIRE ALLEGEDLY FAILED LEADING TO A SERIOUS ACCIDENT IN VIRGINIA; DRIVER SUED US TIRES; US TIRES SUED GOODYEAR AND FORD, BOTH OUT-OF-STATE CORPORATIONS, SEEKING INDEMNIFICATION; NEW YORK HAS LONG-ARM JURISDICTION OVER GOODYEAR AND FORD IN THE US TIRES SUIT (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Genovesi, determined New York has long-arm jurisdiction over third-party defendants Ford and Goodyear in this suit by a New York corporation, US Tires. US Tires installed a Goodyear tire on a Ford. The tire allegedly failed in Virginia and three passengers died. The plaintiffs, including the driver, sued US Tires. US Tires sued Ford and Goodyear, both out-of-state corporation, seeking indemnification. The issue on appeal was whether Ford and Goodyear had sufficient contacts with New York to support long-arm jurisdiction:

Ford and Goodyear concede that they conducted sufficient activities to have transacted business in New York, thus satisfying the first prong of CPLR 302(a)(1). As to the second prong of CPLR 302(a)(1), US Tires demonstrated that Goodyear’s and Ford’s activities in New York have a sufficient connection with the claims herein. * * *

When all the requirements of CPLR 302 are met, the exercise of personal jurisdiction still must comport with constitutional due process requirements … . * * *

Based on the record before us, the exercise of specific jurisdiction over Ford and Goodyear comports with due process … . … Ford and Goodyear concede that they had sufficient “minimum contacts” with New York. … [T]he only remaining question is whether Ford and Goodyear have met their burden of presenting “a compelling case that the presence of some other considerations would render jurisdiction unreasonable” … . We conclude that Ford and Goodyear have failed to meet this burden. Aybar v US Tires & Wheels of Queens, LLC, 2022 NY Slip Op 06099, Second Dept 11-2-22

Practice Point: This decision includes a comprehensive discussion of general and specific jurisdiction which is worth consulting. In this suit by a New York corporation, US Tires, seeking indemnification from two out-of-state corporations, Ford and Goodyear, the court determined Ford and Goodyear had sufficient contacts with New York to support long-arm jurisdiction. US Tires installed a Goodyear tire on driver’s Ford. The tire allegedly failed in Virginia, causing a serious accident. The driver sued US Tires. US Tires sued Ford and Goodyear.

 

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THE PLAINTIFF-STUDENT FOOTBALL PLAYER DID NOT ASSUME THE RISK OF INJURY IN A FOOTBALL-RELATED WEIGHT-LIFTING SESSION; THE RISK OF A WEIGHT-LIFTING INJURY IS NOT INHERENT IN THE GAME OF FOOTBALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-student, a high school sophomore varsity football player, did not assume the risk of injury during a weight-lifting training-session when he voluntarily agreed to play football. The decision includes a good explanation of the assumption-of-the-risk doctrine:

Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sport or recreational activity is deemed to consent to the risks inherent in that sport, thereby negating any duty on a defendant’s part to safeguard the plaintiff from those risks … . While the absolute defense of implied assumption of risk, which was abolished by the enactment of CPLR 1411 in 1975, barred recovery by a plaintiff who was aware of the risks of engaging in a specific act and engaged in that specific act nonetheless …, the separate and distinct doctrine of primary assumption of risk posits that the risk is assumed by virtue of the plaintiff’s voluntary participation in a sporting event, which indicates the plaintiff’s consent to the risks that are inherent in that sport. Although a plaintiff’s knowledge of the risk involved in the particular act that results in injury remains relevant, under CPLR 1411, in assessing his or her comparative fault, in the context of primary assumption of risk, “knowledge plays a role but inherency is the sine qua non” … . * * *

Unlike a plaintiff subject to the pre-1975 defense of implied assumption of risk, the infant plaintiff in this case did not assume a risk at the moment he attempted to lift the 295-pound bar. Rather, his assumption of risk occurred when he joined the football team …, and the risks he assumed were limited to those that are inherent in the sport of football. The risk of losing control of a 295-pound bar is not a risk inherent in the sport of football … . Annitto v Smithtown Cent. Sch. Dist., 2022 NY Slip Op 06098, Second Dept 11-2-22

Practice Point: This decision clarifies the boundaries of the assumption-of-the-risk as it applies to school sports. When the plaintiff-student joined the football team, he assumed the risks inherent in the game of football. Here, those risks were not deemed to extend to weight-training, even though the weight-training was football-related. The student’s negligent supervision action stemming from his weight-training injury was not precluded by the assumption-of-risk doctrine.

 

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SIX TO TWELVE INCHES OF SNOW FELL OVERNIGHT AND PLAINTIFF SLIPPED AND FELL AT AROUND 6:00 AM; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PURSUANT TO THE STORM-IN-PROGRESS DEFENSE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this slip and fall case should have been granted on the ground that the storm-in-progress defense applied:

On March 15, 2017, at approximately 5:55 a.m., the plaintiff … allegedly was injured when he slipped and fell on snow and ice on premises owned by the defendants. …

“Under the storm-in-progress rule, a property owner, tenant in possession, or, where relevant, a snow removal contractor will not be held responsible for accidents caused by snow or ice that accumulates during a storm until an adequate period of time has passed following the cessation of the storm to allow . . . an opportunity to ameliorate the hazards caused by the storm” … . However, once a landowner or a tenant in possession elects to engage in snow removal during a storm in progress, “it is required to act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm” … . “The mere failure of a defendant to remove all of the snow and ice, without more, does not establish that the defendant increased the risk of harm” … .

Here, in support of their motion, the defendants submitted … [plaintiff’s] deposition testimony, which established … that snow began to fall the day before the incident and continued to fall into the overnight hours, producing 6 to 12 inches of snow, and that the defendants did not have a reasonably sufficient time to ameliorate the hazards caused by the storm … . Henenlotter v Union Free Sch. Dist. No. 23, 2022 NY Slip Op 06116, Second Dept 11-2-22

Practice Point: Here six to twelve inches of snow fell overnight and plaintiff slipped and fell around 6 in the morning. The appellate court determined the storm-in-progress defense applied and defendants’ motion for summary judgment should have been granted.

 

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IN THIS DIVORCE PROCEEDING, IT WAS AN ABUSE OF DISCRETION TO DENY INTERIM ATTORNEY’S FEES TO THE NONMONIED SPOUSE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined interim attorney’s fees should have been awarded to the nonmonied spouse:

Supreme Court improperly referred to the trial court that branch of the plaintiff’s cross motion which was for an award of interim counsel fees (see Domestic Relations Law § 237[a] …). “Because of the importance of such awards to the fundamental fairness of the proceedings, . . . an application for interim counsel fees by the nonmonied spouse in a divorce action should not be denied—or deferred until after the trial, which functions as a denial—without good cause, articulated by the court in a written decision” … . Here, the court erred in summarily referring that branch of the plaintiff’s cross motion which was for an award of interim counsel fees to the trial court, which functioned as a denial of that relief, and failed to articulate any reasons, much less good cause, for that determination. The evidence submitted by the plaintiff demonstrates that she is the nonmonied spouse, as the defendant earned five to seven times more income than the plaintiff in recent years … . While the defendant argues that the plaintiff has funds available to her, the plaintiff “cannot be expected to exhaust all, or a large portion, of the finite resources available to her in order to pay her attorneys, particularly when the [defendant] is able to pay his own legal fees without any substantial impact upon his lifestyle” … . Fugazy v Fugazy, 2022 NY Slip Op 06115, Second Dept 11-2-22

Practice Point: Here in this divorce action it was deemed an abuse of discretion to, without explanation, deny interim attorney’s fees to the nonmonied spouse.

 

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IN THIS REAR-END COLLISION CASE, THE DEFENDANT’S ALLEGATION HE DID NOT SEE PLAINTIFF’S BRAKE LIGHTS DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that allegation defendant did not see plaintiff’s brake lights in this rear-end collision case did not raise a question of fact about whether brake lights were not functioning:

… [T]he defendant failed to raise a triable issue of fact. Contrary to the defendant’s contention, his claim that he did not see brake lights on the plaintiffs’ vehicle prior to the collision, standing alone, was insufficient to raise a triable issue of fact as to whether an alleged malfunction of the brake lights on the plaintiffs’ vehicle proximately caused the accident … . Quintanilla v Mark, 2022 NY Slip Op 06151, Second Dept 11-2-22

Practice Point: In this rear-end collision case, the defendant’s allegation he did not see plaintiff’s brake lights did not raise a question of fact about whether the brake lights were functioning properly.

 

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IN AN ACTION ALLEGING FRAUDULENT INDUCEMENT, WHETHER THE PLAINTIFF REASONABLY RELIED ON THE ALLEGED MISREPRESENTATION IS USUALLY A QUESTION OF FACT WHICH CANNOT BE RESOLVED IN A MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint stated a cause of action for fraudulent inducement. Plaintiff radiologist alleged defendant induced him to open a radiology practice which, plaintiff said, already had a patient-referral system in place. Plaintiff alleged that, after expending funds to open the practice, he learned he would have to pay for the referrals and he shut the practice down. The appellate court held that whether plaintiff reasonably relied on the alleged misrepresentation usually is a question of fact for the jury:

Regarding reasonable reliance on a misrepresentation of a material fact, the “plaintiff is expected to exercise ordinary diligence and may not claim to have reasonably relied on a defendant’s representations [or silence] where he [or she] has means available to him [or her] of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation” … .

The “question of what constitutes reasonable reliance is always nettlesome because it is so fact-intensive” …  The resolution of the issue of whether a plaintiff reasonably relied on a defendant’s misrepresentation in support of a cause of action alleging fraud in the inducement is ordinarily relegated to the finder of fact … . … [P]laintiffs adequately stated a cause of action to recover damages for fraudulent inducement insofar as the determination of the reasonableness of [plaintiff-radiologist’s] reliance on [defendant’s] alleged misrepresentations concerning, among other things, the source of the … patient referrals itself entailed a question of fact not appropriate for summary disposition as a matter of law. Feldman v Byrne, 2022 NY Slip Op 06113, Second Dept 11-2-22

Practice Point: In an action for fraudulent inducement, whether the plaintiff’s reliance on the alleged misrepresentation was reasonable is a difficult issue which usually raises a question of fact for the jury and therefore cannot be summarily resolved in a motion to dismiss for failure to state a cause of action.

 

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THE COMPLAINT ADEQUATELY ALLEGED FACTS SUPPORTING PIERCING THE CORPORATE VEIL; THE CAUSES OF ACTION FOR UNJUST ENRICHMENT AND BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) the complaint sufficiently alleged the corporate veil should be pierced, and (2) the unjust enrichment and breach of the implied covenant of good faith and fair dealing causes of action should not have been dismissed:

… [A] plaintiff seeking to pierce the corporate veil must show that (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury” … . “The decision whether to pierce the corporate veil in a given instance depends on the particular facts and circumstances” … . “Factors to be considered in determining whether the owner has abused the privilege of doing business in the corporate form include whether there was a failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use” … . A cause of action under the doctrine of piercing the corporate veil is not required to meet any heightened level of particularity in its allegations … .

… [T]he plaintiffs adequately pleaded allegations that [the individual defendants] dominated [the corporations], and that they engaged in acts amounting to an abuse of the corporate form to perpetrate a wrong or injustice against the plaintiffs … . …

Where, as here, the existence of a contract, in this case, the alleged agreements [are] in dispute, a plaintiff may allege a cause of action to recover damages for unjust enrichment as an alternative to a cause of action alleging breach of contract (see CPLR 3014 …). Consequently, the cause of action alleging unjust enrichment was not duplicative of the breach of contract cause of action … . Furthermore, the cause of action alleging breach of the implied covenant of good faith and fair dealing was not duplicative of the breach of contract cause of action since it alleged that the defendants engaged in additional conduct to realize gains from the plaintiffs, while depriving the plaintiffs of the benefits of the parties’ agreements … . F&R Goldfish Corp. v Furleiter, 2022 NY Slip Op 06112. Second Dept 11-2-22

Practice Point: The facts alleged in the complaint supported piercing the corporate veil, criteria explained.

Practice Point: Because the existence of the agreements was in dispute, the unjust enrichment cause of action should not have been dismissed as duplicative of the breach of contract cause of action.

Practice Point: The facts alleged supported a cause of action for breach of the implied covenant of good faith and fair dealing.

 

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AN APPELLATE COURT MAY CONSIDER A SUPPRESSION RULING GROUNDED ON A THEORY NOT RELIED UPON OR ARGUED BY THE PARTIES AS LONG AS THE RULING IS BASED UPON THE EVIDENCE AND IS FULLY LAID OUT AND EXPLAINED BY THE MOTION COURT; HERE THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT DID NOT APPLY AND THE EVIDENCE SEIZED FROM DEFENDANT’S VEHICLE SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Chambers, determined: (1) the appellate court can consider an appeal of a suppression ruling which was not based on a theory argued by the parties below, but which was based upon the hearing evidence and fully laid out and explained by the motion court; and (2) the automobile exception to the warrant requirement did not apply and the evidence seized from defendant’s vehicle should have been suppressed:

The narrow reading of Tates [189 AD3d 1088] advocated by the People is consistent with the approach taken by the Appellate Division, Fourth Department, and the Appellate Division, First Department, in comparable cases involving the suppression court’s application of the automobile exception to the warrant requirement …  The general rule articulated in these cases is that the suppression court is “entitled to consider legal justifications that were supported by the evidence, even if they were not raised explicitly by the People” … . * * *

“[A]bsent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers’ safety has consequently been eliminated” … . Pursuant to the automobile exception to the warrant requirement, a warrantless search of a vehicle is permitted when the police have probable cause to believe the vehicle contains contraband, a weapon, or evidence of a crime … .

Here, “the circumstances known to the police at the time of the search did not rise to the level of probable cause” … . People v Marcial, 2022 NY Slip Op 06142, Second Dept 11-2-22

Practice Point: An appellate court may consider a suppression court’s ruling which is grounded upon a theory (here the automobile exception to the warrant requirement) not raised or argued by the parties, as long as the ruling is based upon the evidence and is fully laid out and explained by the motion court.

Practice Point: Here the automobile exception to the warrant requirement did not apply and the evidence seized from defendant’s vehicle should have been suppressed.

 

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