You are here: / Civil Procedure
,

PLAINTIFF SLIPPED AND FELL ON ICE INSIDE THE BUILDING SHE WAS WORKING IN, THE JURY COULD RATIONALLY CONCLUDE THE ICE WAS THE RESULT OF NEGLIGENCE ON THE PART OF SOMEONE INVOLVED IN THE CONSTRUCTION PROJECT, THE MOTION TO SET ASIDE THE VERDICT AS BASED ON LEGALLY INSUFFICIENT EVIDENCE IN THIS LABOR LAW 241 (6) ACTION WAS PROPERLY DENIED (SECOND DEPT).

The Second Department determined defendant’s motion to set aside the verdict as based on legally insufficient evidence was properly denied in this Labor Law 241 (6) action. Plaintiff’s job was removing asbestos from a building. After getting out of her asbestos suit in the decontamination room and walking in the interior of the building she slipped and fell on ice. The Second Department held that the jury could have rationally concluded someone participating in the construction project was negligent:

We agree with the Supreme Court’s determination denying that branch of the defendant’s motion pursuant to CPLR 4404(a) which was to set aside the jury verdict as based on legally insufficient evidence and for judgment as a matter of law. There was a valid line of reasoning and permissible inferences which could have led a rational jury to conclude that the negligence of some party to, or participant in, the construction project caused the plaintiff’s injuries … . The jury could have credited the plaintiff’s trial testimony that she slipped on a large patch of ice on the floor of a building that did not have heating on a cold January day, and therefore, rationally conclude that “someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard, and that plaintiff’s slipping, falling and subsequent injury proximately resulted from such negligence” … . Bocanegra v Chest Realty Corp., 2019 NY Slip Op 01048, Second Dept 2-13-19

 

, ,

PETITIONERS DID NOT TAKE STEPS TO PRESERVE THE STATUS QUO AND THE POWER PLANT BECAME OPERATIONAL AT THE OUTSET OF THE MOTION PRACTICE SEEKING TO VACATE CERTAIN PERMITS WHICH ALLOWED THE PLANT TO RESUME OPERATIONS, THE APPEAL WAS DEEMED MOOT AND THE PETITION WAS DISMISSED (FOURTH DEPT).

The Fourth Department determined that Sierra Club’s petition seeking to vacate permits issued to allow respondents to operate a natural gas and biomass power plant, which was formerly coal-powered, was properly dismissed as moot. Petitioner’s did not seek a temporary restraining order or other measures to preserve the status quo. The plant became operational while the motion seeking temporary injunctive relief was pending:

We agree with respondents that the appeal should be dismissed as moot … . Litigation over construction is rendered moot when the progress of the work constitutes a change in circumstances that would prevent the court from ” rendering a decision that would effectively determine an actual controversy’ ” … . In addition to the progress of the construction, other factors relevant to evaluating claims of mootness are whether the party challenging the construction sought injunctive relief, whether the “work was undertaken without authority or in bad faith” …, and whether “substantially completed work” can be undone without undue hardship… . The primary factor in the mootness analysis is “a challenger’s failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation”… . Generally, a petitioner seeking to halt a construction project must “move for injunctive relief at each stage of the proceeding” … .

The plant has been operating lawfully since March 2017. The failure to preserve the status quo is entirely the fault of petitioners, who waited until the last possible day to commence this proceeding, failed to request a TRO, failed to pursue an injunction with any urgency, waited until the last possible day to take an appeal, spent nine months perfecting the appeal, and failed to seek injunctive relief from this Court until approximately one year after the entry of the judgment, in a transparent attempt to avoid dismissal of this appeal. Matter of Sierra Club v New York State Dept. of Envtl. Conservation, 2019 NY Slip Op 01022, Fourth Dept 2-8-19

 

, ,

ALLEGATIONS OF COMPENSABLE DAMAGES INSUFFICIENT, MOTION TO DISMISS FRAUD COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the motion to dismiss fraud causes of action should have been granted because the allegation of compensable damages was deficient. “Plaintiff, a debt buying company, commenced this action alleging … [defendants] fraudulently induced it to purchase additional debt portfolios pursuant to its agreements with a third party by misrepresenting the terms of the financing arrangement secured by defendants to facilitate the purchase of such portfolios;”

“To allege a cause of action based on fraud, plaintiff must assert a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury’ ” … . ” The true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong’ or what is known as the out-of-pocket’ rule” … . “Under this rule, the loss is computed by ascertaining the difference between the value of the bargain which . . . plaintiff was induced by fraud to make and the amount or value of the consideration exacted as the price of the bargain’ ” … .

Here, we conclude that, even as supplemented by the affidavit of plaintiff’s president … , “plaintiff’s pleading is fatally deficient because [it] did not assert compensable damages resulting from defendants’ alleged fraud” … . With respect to the purchase of the subject portfolios, plaintiff received an interest therein worth more than the amount of its alleged investment … . Further, contrary to plaintiff’s contention, the allegation that it lost the enhanced collections on the portfolios that defendants purportedly told it that it could receive under the terms of the financing arrangement is a “quintessential lost opportunity, which is not a recoverable out-of-pocket loss”… . “Damages are to be calculated to compensate plaintiff[] for what [was] lost because of the fraud, not to compensate . . . for what . . . might have [been] gained . . . [T]here can be no recovery of profits which would have been realized in the absence of fraud” … . Southwestern Invs. Group, LLC v JH Portfolio Debt Equities, LLC, 2019 NY Slip Op 01035, Fourth Dept 2-8-19

 

,

EXTENSION OF TIME TO FILE A MOTION TO VACATE A TAX FORECLOSURE JUDGMENT SHOULD NOT HAVE BEEN GRANTED, CPLR 2004 DOES NOT APPLY TO TIME LIMITS SPECIFICALLY CALLED FOR IN THE REAL PROPERTY TAX LAW (RPTL) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined respondents’ motion to vacate a tax foreclosure judgment should not have been granted. The court noted that an extension of time pursuant to CPLR 2004 should not be granted where the Real Property Tax Law addresses the issue:

We further … with petitioner that the court erred in granting respondents’ implicit request for an extension of time to bring the motion (see CPLR 2004). The Court of Appeals has emphasized that, ” [a]s a general rule, there should be no resort to the provisions of the CPLR in instances where the [RPTL] expressly covers the point in issue’ “… . We conclude that RPTL article 11 comprehensively addresses the situation where a default judgment of foreclosure is properly obtained and the defaulting property owner seeks to reopen the default and, therefore, such property owner “may not reach outside of the RPTL to [reopen] such a proceeding”… . More particularly, RPTL 1131 expressly covers the point in issue here inasmuch as it provides, in unambiguous and prohibitory language, that “[a] motion to reopen any such default may not be brought later than one month after entry of the judgment” … . To countenance resort to CPLR 2004 under these circumstances would undermine the statutory scheme established by the legislature and erode the finality of foreclosure proceedings even after a defaulting property owner has been afforded due process … . Matter of Foreclosure of Tax Liens By Proceeding In Rem Pursuant To Art. 11 of The Real Prop. Tax Law By The County of Wayne Relating To The 2015 Town & County Tax (Schenk), 2019 NY Slip Op 01029, Fourth Dept 2-8-19

 

, ,

PLAINTIFF’S ACTION WAS NOT FRIVOLOUS WITHIN THE MEANING OF 42 USC 1988, PREVAILING PARTY SHOULD NOT HAVE BEEN AWARDED ATTORNEY’S FEES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the award of attorney’s fees to the prevailing party pursuant to 42 USC 1988 based upon the finding that plaintiff’s action was frivolous should not have been granted. Plaintiff sued the county claiming that her employment was terminated in retaliation for her complaints about the special education provided to her son:

The court granted the motion on the basis of 42 USC § 1988, which authorizes the award of attorneys’ fees to a prevailing defendant “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation” … . Nonetheless, it remains ” very rare [for] victorious defendants in civil rights cases [to] recover attorneys’ fees’ “… .

Here, in determining that plaintiff’s claim against Whittemore [the county personnel director] was frivolous, the court relied on plaintiff’s testimony during her deposition. During her deposition, however, plaintiff specifically stated that the factual basis for her claim against Whittemore was that he was the personnel director and his conduct caused injury to her because he allowed someone else to be placed in the position to which she sought to be reinstated. Contrary to the court’s determination, any inability of plaintiff to provide further elaboration during her deposition, which was taken early in the litigation shortly after commencement of the action, did not establish that her claim against Whittemore was frivolous. Moreover, a claim may not “be deemed groundless where [, as here,] the plaintiff has made a sufficient evidentiary showing to forestall summary judgment and has presented sufficient evidence at trial to prevent the entry of judgment against him [or her] as a matter of law” … . Although the civil rights allegations against Whittemore may have been weak, we cannot deem plaintiff’s claim “frivolous, unreasonable, or without foundation” … . Calhoun v County of Herkimer, 2019 NY Slip Op 01025, Fourth Dept 2-8-19

 

, , ,

COLLATERAL ESTOPPEL CONTROLLED THIS ARBITRATION PROCEEDING TO DETERMINE HEALTH BENEFITS FOR RETIRED FIREFIGHTERS PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined that collateral estoppel controlled this proceeding concerning firefighter health benefits as provided for in the collective bargaining agreement (CBA). The issue had been resolved in prior arbitration proceedings for firefighters who had retired before 2010. The instant proceeding was brought on behalf of firefighters who have or will retire after 2010:

Arbitration awards are entitled to collateral estoppel effect and will bar a party from relitigating a material issue or claim resolved in the arbitration proceeding after a full and fair opportunity to litigate … . It is undisputed that the arbitration award, rendered after a formal evidentiary hearing at which the parties were represented by counsel, afforded defendant a full and fair opportunity to litigate the issues therein. Accordingly, the only question is whether plaintiffs, as the parties seeking to invoke collateral estoppel, satisfied their burden of “show[ing] the identity of the issues” between those resolved in the arbitration awards and those in play here … . * * *

The 2010 and 2012 arbitration awards were never vacated — indeed, the 2012 award was confirmed — and are binding. Inasmuch as plaintiffs retired during the period that the reimbursement was provided to retirees under CBAs containing section 27.1, the finding in those awards “that [defendant] is obligated to reimburse retired firefighters for these payments under the CBA is dispositive of the claims raised here” … . Holloway v City of Albany, 2019 NY Slip Op 00940, Third Dept 2-7-19

 

,

STIPULATION OF DISCONTINUANCE OF THE PRIOR FORECLOSURE ACTION DID NOT DE-ACCELERATE THE DEBT, INSTANT FORECLOSURE ACTION IS THEREFORE TIME-BARRED (SECOND DEPT).

The Second Department determined the prior action for foreclosure accelerated the debt and the subsequent stipulation of discontinuance did not de-accelerate the debt. The instant foreclosure action was therefore time-barred:

… [D]efendant established that the six-year statute of limitations began to run on the entire debt on April 21, 2008, the date the plaintiff accelerated the mortgage debt by commencing the prior action … . Since the plaintiff did not commence this action until December 15, 2015, more than six years later, the defendant sustained his initial burden of demonstrating, prima facie, that this action was untimely … . The burden then shifted to the plaintiff to present admissible evidence establishing that the action was timely or to raise a question of fact as to whether the action was timely … .

The plaintiff failed to meet its burden. Contrary to its contention, the plaintiff failed to raise a question of fact as to whether it affirmatively revoked its election to accelerate the mortgage within the six-year limitations period. Its execution of the stipulation of discontinuance did not, by itself, constitute an affirmative act to revoke its election to accelerate, since the stipulation was silent on the issue of the election to accelerate, and did not otherwise indicate that the plaintiff would accept installment payments from the defendant … . Bank of N.Y. Mellon v Craig, 2019 NY Slip Op 00846 [169 AD3d 627], Second Dept 2-6-19

 

, , ,

EVIDENCE SUBMITTED WITH REPLY PAPERS SHOULD HAVE BEEN CONSIDERED, NEGLIGENT MAINTENANCE CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT IN THIS PLAYGROUND INJURY CASE (SECOND DEPT).

The Second Department determined Supreme Court should have considered evidence submitted by the defendant in its reply papers and further determined that the negligent maintenance cause of action properly survived summary judgment in this playground injury case. Infant plaintiff was injured when she fell from playground equipment during recess. The negligent supervision cause of action was dismissed. But there was evidence the area beneath the playground equipment was dangerous:

… [W]e disagree with the Supreme Court’s decision to not consider the evidence submitted by the defendant in its reply papers. “The function of reply papers is to address arguments made in opposition to the position taken by the movant, not to introduce new arguments or new grounds for the requested relief” … . The evidence submitted by the defendant in its reply papers addressed arguments made by the plaintiff and the plaintiff’s expert in opposition to its motion. Thus, the court should have considered the evidence. …

The defendant also established its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged negligent maintenance of its premises by submitting evidence which demonstrated that it adequately maintained the playground, and that it did not create an unsafe or defective condition … . In opposition, however, the plaintiff raised a triable issue of fact by the submission of her expert’s affidavit which opined, in part, that the ground cover beneath the apparatus from which the plaintiff fell was inherently dangerous as installed and/or maintained, because it did not meet standards established by the Consumer Product Safety Commission (see General Business Law § 399-dd). Boland v North Bellmore Union Free Sch. Dist., 2019 NY Slip Op 00849, Second Dept 2-6-19

 

, ,

SANCTIONS FOR SPOLIATION OF VIDEOTAPE IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN IMPOSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant store (Fairway) should not have been sanctioned (adverse inference jury instruction) for spoliation of evidence, i.e., videotape depicting areas outside the store. Plaintiff slipped and fell on ice in an area near the entrance to the store. The videotape from the camera which captured the fall was provided to plaintiff. The videotape from the other cameras depicting other areas outside the store was not preserved:

The plaintiff’s January 3, 2013, letter specifically requested that Fairway preserve “any and all video footage depicting the location of my client’s accident.” Ten hours of video footage depicting the exact location of the accident before the fall occurred, including footage of the accident itself, were preserved by Fairway and subsequently disclosed to the plaintiff. The plaintiff did not initially request that video footage of other locations also be preserved, so Fairway was not on notice that such footage might be needed for future litigation … . In addition, the plaintiff has not established that the absence of such footage deprived her of the ability to prove her case … . Under these circumstances, the plaintiff did not establish that sanctions against Fairway were warranted … . Sarris v Fairway Group Plainview, LLC, 2019 NY Slip Op 00922, Second Dept 2-5-19

 

, ,

EXPERT TESTIMONY PROPERLY PRECLUDED BECAUSE OF LATE NOTICE, NEW TRIAL REQUIRED BECAUSE JURY WAS NOT INSTRUCTED ON MITIGATION OF DAMAGES (FOURTH DEPT).

The Fourth Department determined defendants in this Labor Law 240 (1) action were properly precluded from offering expert testimony because of late notice. The Fourth Department further determined that the jury should have been instructed on mitigation of damages, requiring a new trial:

… [T]he court determined that there was a willful failure to disclose because, prior to jury selection, defendants’ attorneys knew that they intended to present testimony from the psychiatric expert, but they did not disclose the expert until the day after jury selection began, which violated the court’s directive that defendants disclose an expert as soon as they knew of said expert. Although the record establishes that plaintiff was aware of the possibility that defendants would call an expert psychiatrist, he was prejudiced by the tardiness of the disclosure both because it impaired his ability to discuss the relevant issues during jury selection and because it hamstrung his opportunity to retain an expert psychiatrist of his own. Thus, based on the evidence in the record supporting the court’s determination that defendants had engaged in purposeful gamesmanship by withholding the information, and the resulting prejudice to plaintiff, we conclude that the court did not abuse its discretion in precluding the proposed expert testimony … .

We agree with defendants that the court erred in failing to instruct the jury on mitigation of damages insofar as it applied to past and future lost wages… . Here, plaintiff’s physicians unanimously agreed that he was capable of working in a light duty or sedentary setting and, although he did obtain work shortly after being advised by a doctor to seek job training, there is a question, under the circumstances, of whether the part-time job that he took was a reasonable mitigation of his damages. Flowers v Harborcenter Dev., LLC, 2019 NY Slip Op 00749, Fourth Dept 2-1-19

 

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