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PLAINTIFF STATED A CAUSE OF ACTION FOR VIOLATION OF LABOR LAW 196-d AGAINST A CORPORATE OFFICER AND A SHAREHOLDER INDIVIDUALLY FOR FAILING TO REMIT SERVICE CHARGES AND GRATUITIES TO THEIR WAITSTAFF EMPLOYEES; REQUEST FOR AN EXTENSION TO SEEK CLASS CERTIFICATION SHOULD HAVE BEEN GRANTED; MOTION TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED; PLAINTIFF’S DISCOVERY DEMANDS WERE PALPABLY IMPROPER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) plaintiff banquet server had stated a cause of action against the Cortses (an officer and a shareholder in the corporation, Falkirk Management, sued by plaintiff) individually alleging the Cortses were plaintiff’s employers within the meaning of Labor Law 196-d and did not remit service charges and gratuities to the waitstaff; (2) corporate shareholders and officers like the Cortes can be liable for corporate violations of the Labor Law; plaintiff’s discovery demands were burdensome or immaterial and therefore improper (CPLR 3101(a)); (3) plaintiff’s request for an extension to move for class certification should have been granted (CPLR 901(a); 902); and (4) plaintiff’s motion to amend the complaint should have been granted:

… [T]he complaint alleged that the Cortses exercised control over the “day-to-day operations” of “[the Country Club],” including “authority regarding the pay practices” of Falkirk Management. * * *

… [T]he information sought by the plaintiff in her first set of interrogatories and first request for the production of documents was largely burdensome or immaterial, and consequently, palpably improper … . * * *

A plaintiff’s need to conduct pre-class certification discovery to determine whether the prerequisites of a class action set forth in CPLR 901(a) can be satisfied constitutes good cause for the extension of the 60-day time period fixed by CPLR 902 … . * * *

[Re: the motion to amend the complaint:] the defendants alleged no surprise or prejudice … . Moreover, the proposed amendments are not palpably insufficient or patently devoid of merit … . Lomeli v Falkirk Mgt. Corp., 2020 NY Slip Op 00115, Second Dept 1-8-20

 

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UPON LEARNING THE STATE, BY EFFECTIVELY MISLEADING THE COURT, OBTAINED A JUDGMENT DETERMINING IT OWNED LAND IN THE ADIRONDACK PARK, THE COURT PROPERLY EXERCISED ITS DISCRETION TO VACATE THE JUDGMENT PURSUANT TO CPLR 5015 (THIRD DEPT).

The Third Department determined Supreme Court properly vacated a judgment pursuant to CPLR 5015 in the interests of substantial justice because plaintiff (the State of New York) had misled the court in proceedings leading to the judgment that it owned land in the Adirondack Park:

Plaintiff argued at trial that, although it could not identify the specific instrument that gave it a superior claim to the parcel at issue, several instruments granted it title to most of Township 40 and that the parcel “was not included within the bounds of any exception” …  Plaintiff was aware that the success of this argument would threaten the claims of hundreds of individuals to land in Township 40, and misrepresented to Supreme Court that it would rely upon a judgment in this action to bring RPAPL article 15 actions against those individuals. Upon succeeding, plaintiff instead enforced the 2001 judgment against defendants alone … . It … became evident that plaintiff sought the 2001 judgment despite the doubts … regarding its ownership claims in Township 40 … . Plaintiff subjected defendants to selectively harsh treatment under a judgment about which it harbored doubts, in other words, and Supreme Court stated that it would not have granted the judgment had plaintiff taken the legal position it later adopted. Supreme Court did not abuse its discretion in finding that these circumstances afforded sufficient reason to vacate the 2001 judgment in the interest of substantial justice … . State of New York v Moore, 2020 NY Slip Op 00008, Third Dept 1-2-10

 

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PENSION OF POLICE OFFICER CONVICTED OF MURDER AND ATTEMPTED MURDER CAN, UNDER THE SON OF SAM LAW, BE REACHED TO SATISFY A $1 MILLION JUDGMENT OBTAINED BY THE CRIME VICTIM (THIRD DEPT).

The Third Department determined the Son of Sam Law trumped the CPLR, the Retirement and Social Security Law, and the Administrative Code of the City of New York with respect to the pension of a former NYC police officer who was convicted of murder and attempted murder and against whom plaintiff obtained a personal injury judgment of more than $1 million:

“Executive Law § 632-a sets forth a statutory scheme intended to improve the ability of crime victims to obtain full and just compensation from the person(s) convicted of the crime by allowing crime victims or their representatives to sue the convicted criminals who harmed them when the criminals receive substantial sums of money from virtually any source and protecting those funds while litigation is pending” … . … [I]n 2001, the Legislature amended the [Son of Sam] law to allow a crime victim to seek recovery from “funds of a convicted person,” which includes “all funds and property received from any source by a person convicted of a specified crime,” but specifically excludes child support and earned income (Education Law § 632-a [1] [c]). * * *

This Court has found … that CPLR 5205 (c) is superseded by the Son of Sam Law … . Defendant’s assertions that Retirement and Social Security Law § 110 and Administrative Code of the City of New York § 13-264 protect his pension from assignment to satisfy plaintiff’s money judgment are similarly without merit due to the broad reach of the Son of Sam Law … . Prindle v Guzy, 2020 NY Slip Op 00011, Third Dept 1-2-20

 

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AFTER JURISDICTIONAL DISCOVERY, PLAINTIFF DID NOT DEMONSTRATE NEW YORK HAD JURISDICTION OVER THREE OF FOUR NEW JERSEY DEFENDANTS IN THIS MEDICAL MALPRACTICE CASE; WITH RESPECT TO ONE NEW JERSEY DEFENDANT, THE JURISDICTION ISSUE MUST BE DECIDED BY THE JURY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that New Jersey defendant Princeton Radiology Associates (PRO) and the associated defendant doctors (Tsai and Chon) had demonstrated New York did not have jurisdiction over them in this medical malpractice action. With regard to another related New Jersey defendant, Princeton Procure Management, LLC (PPM), the First Department held its lack-of-jurisdiction affirmative defense should not have been dismissed and a jury must decide the issue:

After defendants PPM, PRO, Tsai and Chon moved to dismiss for lack of personal jurisdiction, the motion court found that plaintiff had made a “substantial start” in demonstrating a basis for personal jurisdiction over those defendants. PPM appealed and this Court affirmed, noting the evidence that PPM had identified a principal place of business in New York, and that it “marketed its Somerset, New Jersey, location to target New York residents, touting its proximity to New York in advertising,” and “entered into an agreement with a consortium of New York City hospitals for the referral of cancer patients for treatment at its facility” … . …

Plaintiff did not meet her ultimate burden of establishing that Drs. Tsai and Chon, New Jersey doctors who treated her in New Jersey, projected themselves, on their own initiative, into New York to engage in a sustained and substantial transaction of business related to her claims, such that specific long-arm jurisdiction existed over them under CPLR 302(a)(1) … . …

… [Re: PPM] we conclude that the evidence submitted by plaintiff … does not warrant dismissal of PPM’s affirmative defense of lack of jurisdiction. As to general jurisdiction under CPLR 301, plaintiff presented documents in which PPM listed a New York place of business, but PPM submitted an affidavit of its president, who identified PPM’s principal place of business as in New Jersey and denied having a New York principal office. …

Plaintiff also failed to establish that specific long-arm jurisdiction exists over PPM under CPLR 302(a)(1). The evidence presented by plaintiff, including various contracts and the radio interviews and billing documents discussed above, provides a “sufficient start” in demonstrating a basis for asserting personal jurisdiction … , but does not warrant dismissal of PPM’s affirmative defense … . Robins v Procure Treatment Ctrs., Inc., 2020 NY Slip Op 00047, First Dept 1-2-20

 

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THE JURY WAS WRONGLY INSTRUCTED ON THE INFERENCE WHICH CAN BE DRAWN ABOUT THE LOCATION OF A BOUNDARY LINE FROM A SURVEY MAP FILED FOR MORE THAN 10 YEARS; VERDICT FINDING PLAINTIFF HAD WRONGLY SET THE PROPERTY BOUNDARY REVERSED (THIRD DEPT).

The Third Department, reversing the jury verdict finding that plaintiff had incorrectly set the western boundary of his property, held that the jury was wrongly instructed:

The jury received defective instructions as to the application of CPLR 4522. In that regard, Supreme Court charged the jury that “[a] 2002 survey map prepared by Surveyor Dickinson is in evidence. The survey was filed in 2002 with the Rensselaer County Clerk. The law provides that a map which has been on file with the County [Clerk] for more than [10] years is presumed to be accurate unless rebutted by other credible survey or expert opinion. In deciding whether the presumption of accuracy of the 2002 survey has been rebutted by other evidence you will apply the rules that I have already given you and will continue to give you about the evaluation of evidence.”

CPLR 4522 states that “[a]ll maps, surveys and official records affecting real property, which have been on file in the state in the office of . . . any county clerk . . . for more than [10] years, are prima facie evidence of their contents.” In analyzing similar statutory language from another hearsay exception contained in the same article of the CPLR, the Court of Appeals held that “[p]resumptive evidence[] is, . . . like the prima facie evidence to which CPLR 4518 (c) refers, evidence which permits but does not require the trier of fact to find in accordance with the presumed fact, even though no contradictory evidence has been presented. It is, in short, not a presumption which must be rebutted but rather an inference, like the inference of negligence denominated res ipsa loquitor” … .

Supreme Court’s charge required the jury to locate the western boundary of plaintiff’s property as depicted in the 2002 survey unless plaintiff offered evidence that rebutted the survey’s presumed accuracy. The jury should have been instructed that, in the absence of contradictory evidence, it was permitted but not required to adopt the western boundary as depicted in the 2002 survey. Hence, Supreme Court committed reversible error because the effect of the charge was to improperly require plaintiff to disprove the alleged accuracy of the 2002 survey map … . Kennedy v Nimons, 2019 NY Slip Op 09332, Third Dept 12-26-19

 

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UNION REPRESENTING CITY EMPLOYEES HAS STANDING TO CONTEST THE CREATION OF A NEW CITY DEPARTMENT AFFECTING THOSE EMPLOYEES (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the labor union representing employees of the city’s Office of the Building Inspector and Bureau of Code Enforcement had standing to contest an executive order issued by the mayor and related regulations which created a new Building Department:

“[S]tanding is a threshold determination and a litigant must establish standing in order to seek judicial review, with the burden of establishing standing being on the party seeking review” … . A petitioner challenging governmental action must “show ‘injury in fact,’ meaning that [the petitioner] will actually be harmed by the challenged [governmental] action[,]” and, further, that the injury “fall[s] within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the [governmental entity] has acted” … . For an organization to have standing, it must establish “‘that at least one of its members would have standing to sue, that it is representative of the organizational purposes it asserts and that the case would not require the participation of individual members'” … .

Petitioners allege that the Mayor unlawfully engaged in a legislative act by creating the Buildings Department and that this unlawful legislative act brought the union’s members under the auspices/jurisdiction of the Commissioner, who used that unlawful grant of authority to enact a regulation that respondents have relied on to supplant the members’ negotiated rights regarding disciplinary proceedings, as set forth in the applicable collective bargaining agreement. In our view, these allegations would, if proven, demonstrate the requisite harm flowing from the executive order, which would fall within the zone of interests … . Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v City of Schenectady, 2019 NY Slip Op 09342, Thrid Dept 12-26-19

 

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IT WAS AN ABUSE OF DISCRETION TO STRIKE PLAINTIFF’S COMPLAINT BASED UPON AN ALLEGED FAILURE TO COMPLY WITH COURT-ORDERED DISCOVERY (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined it was an abuse of discretion to grant defendants’ motion to strike the complaint for plaintiff’s alleged failure to comply with discovery orders. Discovery had been ongoing for years with several conferences with the judge and several orders to comply with new discovery demands:

… [I]t is undisputed that defendants’ motion to strike the complaint failed to include an affirmation of good faith as required by 22 NYCRR 202.7 … . Moreover, this error is compounded by the lack of other record evidence demonstrating that defendants engaged in good faith efforts to resolve the ongoing discovery issues without the need for judicial intervention. Despite plaintiff having at least partially complied with defendants’ discovery demands, the record is devoid of any correspondence or other documentation indicating that defendants ever specifically informed plaintiff’s counsel, other than in a generalized conclusory manner, in what manner the subject discovery responses were deficient or inadequate. Further, following the filing of defendants’ April 2018 motion to strike, defendants’ counsel failed to respond to four separate letters sent by plaintiff’s counsel in May 2018 wherein he provided certain additional discovery and otherwise attempted to ascertain from defendants what, if any, paper discovery remained outstanding. Notably, defendants have provided no explanation as to why they failed to provide any such response prior to the filing of defendants’ second motion to strike plaintiff’s complaint … .

Although we appreciate Supreme Court’s concern regarding the length of time that this action has been pending and the fact that the various discovery responses that plaintiff’s counsel did provide were unquestionably untimely, we do not find that defendants have established a “deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay [by plaintiff] that would be deserving of the most vehement condemnation” … . Mesiti v Weiss. 2019 NY Slip Op 09343. Third Dept 12-26-19

 

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PLAINTIFF SUBMITTED EVIDENCE OF DEFENDANTS’ BREACH OF A STIPULATION OF SETTLEMENT; PLAINTIFF’S MOTION TO VACATE (RESCIND) THE STIPULATION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate a stipulation of settlement should not have been granted without a hearing. Plaintiff presented evidence defendants breached the stipulation raising a question whether the stipulation should be rescinded:

… [T]he plaintiff argued that the stipulation should be vacated because the defendants had “openly and willfully violated” the terms of the stipulation. In support of his position, the plaintiff submitted, inter alia, his own affidavit, in which he stated that the defendants had, among other things, assaulted his wife, refused to provide him with an accounting, and had made it impossible for him to operate his plumbing business as agreed to in the stipulation by, among other things, removing and destroying equipment from his office, disconnecting his phone line, and changing locks on the property.

“As a general rule, rescission of a contract is permitted for such a breach as substantially defeats its purpose. It is not permitted for a slight, casual, or technical breach, but . . . only for such as are material and willful, or, if not willful, so substantial and fundamental as to strongly tend to defeat the object of the parties in making the contract'” … .

Under the circumstances, the factual assertions set forth in the plaintiff’s affidavit were sufficient to warrant a hearing on the issue of whether the stipulation should be rescinded due to the defendants’ alleged breaches … . Young v Young, 2019 NY Slip Op 09321, Second Dept 12-24-19

 

MOTION FOR A DECLARATORY JUDGMENT SHOULD NOT HAVE BEEN GRANTED BECAUSE THERE WAS NO DEMAND FOR DECLARATORY RELIEF IN THE PLEADINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for a declaratory judgment should not have been granted because declaratory relief was not in the pleadings:

… Supreme Court should have denied the … motion for a declaration that the contract and its amendments are null and void, because that declaratory relief was not demanded in the pleadings filed in this proceeding (see CPLR 3017[b] …). Matter of Mount Olive Baptist Church of Manhasset, 2019 NY Slip Op 09270, Second Dept 12-24-19

 

MOTION TO AMEND THE BILL OF PARTICULARS MADE AFTER THE NOTE OF ISSUE WAS FILED SHOULD HAVE BEEN GRANTED DESPITE THE ABSENCE OF A GOOD EXCUSE FOR THE DELAY; THE MOTION HAD MERIT, DID NOT PRESENT ANY NEW THEORIES AND SOUGHT TO NARROW THE ISSUES FOR TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion to amend the bill of particulars should have been granted, even though the motion was made after the note of issue was filed and there was no good excuse for the delay:

… “[L]eave to amend a bill of particulars may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant” … . Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine … .

Here, despite their unreasonable and unexplained delay in seeking leave to amend their bill of particulars and interrogatory responses, the plaintiffs did not seek to assert any new theory of liability, but rather, sought to narrow a theory previously asserted. Specifically, whereas the plaintiffs had previously alleged violation of “all provisions of the [Federal Motor Carrier Safety Regulations] Parts 300 to 399,” their proposed amendment sought to narrow this allegation to specify a violation of 49 CFR 392.2 as a result of a violation of Tuckahoe Village Code § 21-33.1. Since the proposed amendment was meritorious and sought to narrow the issues before the Supreme Court, the court should have granted the plaintiffs’ cross motion for leave to amend their bill of particulars and interrogatory responses as requested … . Cioffi v S.M. Foods, Inc., 2019 NY Slip Op 09252, Second Dept 12-24-19

 

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