Civil Procedure – Page 263 – New York Appellate Digest

PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank should have been allowed to amend its complaint in this foreclosure action to add parties and extend the reach of the action to the entire premises. There was evidence a party acquired title to the entire premises by adverse possession:

In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted “unless the proposed amendment is palpably insufficient or patently devoid of merit” … . Moreover, pursuant to CPLR 1003, “[p]arties may be added at any stage of the action by leave of court” … .

Here, the plaintiff’s proposed cause of action was not “palpably insufficient or patently devoid of merit” … . RPAPL 1501 provides that any person who “claims an estate or interest in real property’ may maintain an action against any other person . . . to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, . . . the defendant might make'”… . Pursuant to RPAPL 1501(5), the interest held by any mortgagee of real property is an “interest in real property” as that phrase is used in article 15… . Thus, contrary to the Supreme Court’s determination, the plaintiff, as mortgagee of the subject premises, asserted a cause of action to quiet title pursuant to RPAPL 1501 based on its claim that the mortgage encumbered the entire premises because the mortgagor acquired title to the entire premises by adverse possession … . Moreover, the plaintiff properly sought leave to amend the summons and complaint to add as defendants certain persons who might claim interests in the premises that are adverse to its own interest. Emigrant Sav. Bank v Walters, 2017 NY Slip Op 07976, Second Dept 11-15-17

CIVIL PROCEDURE (AMEND COMPLAINT, FORECLOSURE, PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT))/ADVERSE POSSESSION (FORECLOSURE, CIVIL PROCEDURE, PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT))

November 15, 2017

Civil Procedure, Employment Law

NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT).

The First Department determined New York Labor Law worker-pay requirements do not apply to work done outside the state:

Under New York Law, it is a “settled rule of statutory interpretation, that unless expressly stated otherwise, no legislation is presumed to be intended to operate outside the territorial jurisdiction of the state enacting it” … .

Article 6 of the New York Labor Law, which contains the unlawful deductions, notice, and record keeping provisions which plaintiffs claim were violated, contains no indication that the provisions were intended to apply when the work in question is performed outside the state. Article 19 of the New York Labor Law, which contains the minimum wage, overtime, and spread of hours provisions identified in the complaint, includes a “Statement of Public Policy” which states, in relevant part: “There are persons employed in some occupations in the state of New York at wages insufficient to provide adequate maintenance for themselves and their families…. Employment of persons at these insufficient rates of pay threatens the health and well-being of the people of this state and injures the overall economy” (Labor Law § 650).

Since these statutes do not expressly apply on an extraterritorial basis, plaintiffs’ claims under these provisions, based on labor performed exclusively outside New York, do not state a cause of action under Article 6 or Article 19 of the New York Labor Law … . Rodriguez v KGA Inc., 2017 NY Slip Op 07948, First Dept 11-14-17

CIVIL PROCEDURE (STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/EMPLOYMENT LAW (STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/LABOR LAW (STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/JURISDICTION (LABOR LAW STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/STATUTES (JURISDICTION, LABOR LAW, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/EMPLOYMENT LAW (STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))

November 14, 2017

Civil Procedure, Employment Law, Human Rights Law, Labor Law

WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT).

The First Department determined plaintiff’s whistleblower (Labor Law 740) cause of action in the amended complaint was not time-barred because defendant had timely notice of the facts underlying the claim in the original complaint. The relation-back doctrine applied. The court further held that the gender discrimination action under the Human Rights Law was separate and distinct from the whistleblower cause of action:

The court properly applied the relation back doctrine (CPLR 203[f]) to plaintiff’s whistleblower claim pursuant to Labor Law § 740, which requires such actions to be commenced within one year of the alleged retaliatory action (Labor Law § 740[4][a]). Although that claim was not asserted until the Second Amended Complaint, filed on October 19, 2015, more than one year after her termination on February 4, 2014, the original complaint, filed on January 31, 2015, alleged that on February 3, 2014, plaintiff reported to the defendants’ Business Practices Office defendants’ improper practices regarding its procurement of chemicals to manufacture its highest grossing drug, and that those practices did not comply with FDA regulations. It further alleged that she was terminated the next day in retaliation for that conduct. …

The motion court correctly concluded that Labor Law § 740(7), the “election-of-remedies” provision, does not waive plaintiff’s claim of discrimination under the New York State Human Rights Law (State HRL) (Executive Law § 296) because, in alleging discrimination on account of plaintiff’s gender, national origin, and religion, plaintiff does not seek the same rights and remedies as she does in connection with her whistleblowing claim, notwithstanding that both claims allege that she was wrongfully terminated … . Demir v Sandoz Inc., 2017 NY Slip Op 07961, First Dept 11-14-17

EMPLOYMENT LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/LABOR LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/HUMAN RIGHTS LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/CIVIL PROCEDURE (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/CPLR 203 (RELATION BACK, WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/DISCRIMINATION (HUMAN RIGHTS LAW, EMPLOYMENT LAW, WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))

November 14, 2017

Civil Procedure

FAILURE TO INCLUDE RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT, HERE THERE WAS ACTUAL NOTICE AND NO PREJUDICE (FOURTH DEPT).

The Fourth Department noted that the failure to include a return date in a notice of petition is no longer a jurisdictional defect and can be overlooked where notice was actually provided:

A “notice of petition shall specify the time and place of the hearing on the petition” (CPLR 403 [a]). The omission of a return date in a notice of petition does not, however, deprive a court of personal jurisdiction over the respondent … . Indeed, such a technical defect is properly disregarded under CPLR 2001 so long as the respondent had adequate notice of the proceeding and was not prejudiced by the omission… .

Here, it is undisputed that respondent had ample notice of the proceeding from its inception. Moreover, respondent has not identified any prejudice from the omitted return dates. The technical defects in the notices of petition should therefore be disregarded under CPLR 2001 … . Matter of Bender v Lancaster Cent. Sch. Dist., 2017 NY Slip Op 07853, Fourth Dept 11-9-17

CIVIL PROCEDURE (RETURN DATE, FAILURE TO INCLUDE RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT, HERE THERE WAS ACTUAL NOTICE AND NO PREJUDICE (FOURTH DEPT))/PETITION, NOTICE OF (RETURN DATE, FAILURE TO INCLUDE RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT, HERE THERE WAS ACTUAL NOTICE AND NO PREJUDICE (FOURTH DEPT))/RETURN DATE (NOTICE OF PETITION, FAILURE TO INCLUDE RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT, HERE THERE WAS ACTUAL NOTICE AND NO PREJUDICE (FOURTH DEPT))/CPLR 403 (a) (RETURN DATE, FAILURE TO INCLUDE RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT, HERE THERE WAS ACTUAL NOTICE AND NO PREJUDICE (FOURTH DEPT))/CPLR 2001 (RETURN DATE, FAILURE TO INCLUDE RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT, HERE THERE WAS ACTUAL NOTICE AND NO PREJUDICE (FOURTH DEPT))

November 9, 2017

Civil Procedure

MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, following the other three departments, determined that a motion to amend the pleadings no longer requires a demonstration of the merit of the proposed amendment:

We have previously adhered to a rule requiring the proponent of a motion for leave to amend a pleading to make a “sufficient evidentiary showing to support the proposed claim” … , that is, to make an “evidentiary showing that the proposed amendments have merit” … . However, we are persuaded to depart from that line of authority and follow the lead of the other three Departments, and we now hold that “[n]o evidentiary showing of merit is required under CPLR 3025 (b)” … . Thus, the rule on a motion for leave to amend a pleading is that the movant need not establish the merits of the proposed amendment and, “[i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit”… . The rationale for adopting this rule is that the liberal standard for leave to amend that was adopted by the drafters of the CPLR is inconsistent with requiring an evidentiary showing of merit on such a motion. “If the opposing party [on a motion to amend] wishes to test the merits of the proposed added cause of action or defense, that party may later move for summary judgment [or to dismiss] upon a proper showing” … . NYAHSA Servs., Inc., Self-Insurance Trust v People Care Inc., 2017 NY Slip Op 07918, Third Dept 11-9-17

CIVIL PROCEDURE (MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPARTMENT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT))/PLEADINGS, AMENDMENT OF (MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPARTMENT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT))/AMENDMENT OF PLEADINGS (MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPARTMENT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT))/CPLR 3025 (b) (MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPARTMENT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT))

November 9, 2017

Civil Procedure

TRIAL COURT VIOLATED THE LAW OF THE CASE DOCTRINE, PRIOR RULING BY THE COMMERCIAL DIVISION BECAME THE LAW OF THE CASE (SECOND DEPT).

The First Department determined the law of the case doctrine prohibited the trial court, a court of coordinate jurisdiction, from deviating from a prior ruling in the commercial division. The commercial division had ruled the plaintiff restaurant’s exhaust system violated the NYC Mechanical Code:

The “law of the case doctrine is designed to eliminate the inefficiency and disorder that would follow if courts of coordinate jurisdiction were free to overrule one another in an ongoing case” … . Here, the trial court was prohibited from finding that plaintiff’s commercial kitchen exhaust system did not violate the Mechanical Code. The trial court adopted the earlier finding … when it held that [the] orders were the “law of the case,” and limited the issue at trial … . Glaze Teriyaki, LLC v MacArthur Props. I, LLC, 2017 NY Slip Op 07770, First Dept 11-9-17

CIVIL PROCEDURE (LAW OF THE CASE, TRIAL COURT VIOLATED THE LAW OF THE CASE DOCTRINE, PRIOR RULING BY THE COMMERCIAL DIVISION BECAME THE LAW OF THE CASE (SECOND DEPT))/LAW OF THE CASE (LAW OF THE CASE, TRIAL COURT VIOLATED THE LAW OF THE CASE DOCTRINE, PRIOR RULING BY THE COMMERCIAL DIVISION BECAME THE LAW OF THE CASE (SECOND DEPT))

November 9, 2017

Attorneys, Civil Procedure, Privilege

REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department affirmed most of Supreme Court’s rulings on the disclosure of documents in a billing dispute, including a report from a consultant, finding that the documents were not protected by privileges for attorney-client communications, attorney work-product, or material prepared for litigation. The criteria for all were described:

… [T]he report “does not include any legal advice, legal analysis or discussion of legal issues” nor does it disclose confidences of defendant, and ,,, it is not a communication “of a legal character” … . * * *Thus, the report was not protected by the attorney-client privilege.

…[T]he report was not protected from disclosure as attorney work product, as this “privilege should be narrowly applied to materials prepared by an attorney, acting as an attorney, which contain his [or her] analysis and trial strategy” … .

Materials such as reports prepared by a third party, a nonlawyer consultant, during an investigation do not ordinarily qualify under this exception … . * * *

With regard to the claim that the report was protected from disclosure as material prepared for litigation, defendant’s “burden was to demonstrate that [the report] was obtained solely for litigation purposes” … , which “cannot be satisfied with wholly conclusory allegations”… . “[M]ixed or multipurpose reports are not free from disclosure” … . NYAHSA Servs., Inc., Self-Insurance Trust v People Care Inc., 2017 NY Slip Op 07909, Third Dept 11-9-17

ATTORNEYS (PRIVILEGES, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))PRIVILEGE (ATTORNEYS, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/CIVIL PROCEDURE (DISCLOSURE, PRIVILEGE, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/ATTORNEY-CLIENT PRIVILEGE (REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/ATTORNEY WORK-PRODUCT (REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))/LITIGATION, MATERIAL PREPARED FOR (PRIVILEGE, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT)/DISCLOSURE (PRIVILEGE, ATTORNEYS, REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT))

November 9, 2017

Attorneys, Civil Procedure, Insurance Law, Privilege

SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT).

The Fourth Department, reversing (modifying Supreme Court) determined plaintiff was not entitled to disclosure of the pre-disclaimer opinion of outside counsel for the insurer, and was not entitled to the insurer’s manual without an in camera review of the manual for relevance. Supreme Court properly ordered disclosure of the pre-disclaimer claim notes which included statements made by the insured (father of the injured infant):

… [T]he court properly ordered disclosure of pre-disclaimer claim notes containing statements made by the father. It is well settled that “there must be full disclosure of accident reports prepared in the ordinary course of business that were motivated at least in part by a business concern other than preparation for litigation” … . Here, the father made his statements to defendant’s investigators before defendant made the decision to disclaim, and there is no dispute that defendant’s employees relied on those statements in making that decision.

… [T]he court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of the legal opinion of outside counsel and pre-disclaimer claim notes related thereto and denying that part of defendant’s cross motion seeking a protective order with respect to those items, and we therefore modify the order accordingly. Although reports prepared in the regular course of business are discoverable … , documents prepared by an attorney that are “primarily and predominantly of a legal character,” and made to furnish legal services, are absolutely privileged and not discoverable, regardless of whether there was pending litigation at the time they were prepared … .

[T]he court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of defendant’s reserve information and denying that part of defendant’s cross motion with respect thereto inasmuch as that information is not “material and necessary” to the action (CPLR 3101 [a]…).

… [T]he court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of defendant’s claim investigation manual and denying that part of defendant’s cross motion with respect thereto without first conducting an in camera review. As the moving party, plaintiff had the burden of demonstrating that “the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” … . …[T]he court should have reviewed the manual in camera to determine whether it contained information material and relevant to the issues to be decided in the action … . Celani v Allstate Indem. Co., 2017 NY Slip Op 07799, Fourth Dept 11-9-17

INSURANCE LAW (SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/CIVIL PROCEDURE (INSURANCE LAW, SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/ATTORNEYS (INSURANCE LAW, (SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/PRIVILEGE (ATTORNEY-CLIENT, INSURANCE LAW, DISCLOSURE, (SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/DISCLOSURE (INSURANCE LAW, SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))/CPLR 3101 (a) (INSURANCE LAW, SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT))

November 9, 2017

Civil Procedure, Judges, Trusts and Estates

SUPREME COURT SHOULD NOT HAVE AWARDED A MONEY JUDGMENT AGAINST DEFENDANT PERSONALLY, DEFENDANT WAS ONLY A PARTY TO THE ACTION AS A TRUSTEE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court exceeded its authority when it, sua sponte, awarded a money judgment against defendant personally. Defendant was only a party to the action in his representative capacity (trustee):

“[A] court may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party” … . Here, the Supreme Court not only strayed from this principle … , but did so by purporting to impose liability on an individual who was not even a party to the action. ” It has been repeatedly held that persons suing or being sued in their official or representative capacity are, in contemplation of law, distinct persons, and strangers to any right or liability as an individual, and consequently a former judgment concludes a party only in the character in which he was sued'” … . Magid v Sunrise Holdings Group, LLC, 2017 NY Slip Op 07718, Second Dept 11-8-17

CIVIL PROCEDURE (PARTIES, SUPREME COURT SHOULD NOT HAVE AWARDED A MONEY JUDGMENT AGAINST DEFENDANT PERSONALLY, DEFENDANT WAS ONLY A PARTY TO THE ACTION AS A TRUSTEE (SECOND DEPT))/TRUSTS AND ESTATES (CIVIL PROCEDURE, PARTIES, SUPREME COURT SHOULD NOT HAVE AWARDED A MONEY JUDGMENT AGAINST DEFENDANT PERSONALLY, DEFENDANT WAS ONLY A PARTY TO THE ACTION AS A TRUSTEE (SECOND DEPT))/TRUSTEES (CIVIL PROCEDURE, PARTIES, SUPREME COURT SHOULD NOT HAVE AWARDED A MONEY JUDGMENT AGAINST DEFENDANT PERSONALLY, DEFENDANT WAS ONLY A PARTY TO THE ACTION AS A TRUSTEE (SECOND DEPT))

November 8, 2017

Attorneys, Civil Procedure, Evidence, Fraud

ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT).

The Second Department noted that an action alleging attorneys adduced false testimony in a prior court proceeding must be brought as a motion to vacate the judgment in the prior case, not as a new action:

Generally, a party who has lost an action as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action against the party who adduced the false evidence, and the plaintiff’s remedy lies exclusively in moving to vacate the judgment … . Under an exception to that rule, a separate action may be commenced where the alleged perjury or fraud in the underlying action was “merely a means to the accomplishment of a larger fraudulent scheme” … which was “greater in scope than the issues determined in the prior proceeding” … .

Here, the moving defendants established their prima facie entitlement to summary judgment dismissing the causes of action alleging fraud, aiding and abetting fraud, violation of Judiciary Law § 487, and prima facie tort insofar as asserted against them by demonstrating that the plaintiffs are merely attempting to collaterally attack an order issued in the underlying action. In opposition, the plaintiffs only raised conclusory and unsubstantiated allegations that the moving defendants’ fraud in the underlying action was “merely a means to the accomplishment of a larger fraudulent scheme” … . DeMartino v Lomonaco, 2017 NY Slip Op 07706, Second Dept 11-8-17

CIVIL PROCEDURE (FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))/FRAUD (FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))/ATTORNEYS (FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))/FALSE TESTIMONY (ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))EVIDENCE (FALSE TESTIMONY, FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))

November 8, 2017

PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT).

NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT).

WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT).

FAILURE TO INCLUDE RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT, HERE THERE WAS ACTUAL NOTICE AND NO PREJUDICE (FOURTH DEPT).

MOTION TO AMEND PLEADINGS NO LONGER REQUIRES A SHOWING OF THE MERIT OF THE PROPOSED AMENDMENT, THIRD DEPT JOINS THE OTHER THREE DEPARTMENTS (THIRD DEPT).

TRIAL COURT VIOLATED THE LAW OF THE CASE DOCTRINE, PRIOR RULING BY THE COMMERCIAL DIVISION BECAME THE LAW OF THE CASE (SECOND DEPT).

REPORT BY CONSULTANT IN THIS BILLING DISPUTE NOT PROTECTED BY ATTORNEY-CLIENT, ATTORNEY WORK-PRODUCT OR MATERIAL-PREPARED-FOR-LITIGATION PRIVILEGES, CRITERIA EXPLAINED (THIRD DEPT).

SUPREME COURT ERRED IN ORDERING DISCLOSURE OF SOME OF THE INSURER’S RECORDS AND MATERIALS, INCLUDING LEGAL OPINION OF OUTSIDE COUNSEL (FOURTH DEPT).

SUPREME COURT SHOULD NOT HAVE AWARDED A MONEY JUDGMENT AGAINST DEFENDANT PERSONALLY, DEFENDANT WAS ONLY A PARTY TO THE ACTION AS A TRUSTEE (SECOND DEPT).

ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT).

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