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CONCLUSORY ALLEGATIONS THAT THE LANDLORD WAS AN OWNER OF OR A PARTNER IN THE BUSINESS WHICH LEASED THE PREMISES WHERE PLAINTIFF’S DECEDENT WAS INJURED SHOULD NOT HAVE SURVIVED THE MOTION TO DISMISS.

The Fourth Department, modifying Supreme Court, over a dissent, determined conclusory allegations that the landlord (Miranda) was an owner of the business (Molly’s Pub)) in which plaintiff’s decedent was injured were insufficient to survive a motion to dismiss in this wrongful death action:

We agree with Miranda … that the court erred in denying his motion to dismiss the complaint against him pursuant to CPLR 3211 (a) (7), and we therefore modify the order accordingly. The conclusory allegations in the complaint alleging liability on the same grounds as those alleged against the [pub] defendants based upon the alleged ownership or partnership interest in the operation of Molly’s Pub are insufficient to state a cause of action against him. … Miranda submitted the lease, which provides that he shall not be liable for injury to persons or for any defects in the building. He also submitted an affidavit in which he stated that he has no ownership interest in Molly’s Pub, that did he not exercise any control over the operation of Molly’s Pub … , that he had no actual or constructive notice of a dangerous or defective condition on the premises and that he was “merely an out-of-possession landlord.” …

‘[W]hile it is axiomatic that a court must assume the truth of the complaint’s allegations, such an assumption must fail where there are conclusory allegations lacking factual support . . . Indeed, a cause of action cannot be predicated solely on mere conclusory statements . . . unsupported by factual allegations” … . Here, plaintiff failed to allege any facts to support his allegation that Miranda had an ownership or partnership interest in the operation of Molly’s Pub. Sager v City of Buffalo, 2017 NY Slip Op 05340, 4th Dept 6-30-17

 

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COUNTY LAW 308 DOES NOT PROHIBIT DISCOVERY OF 911 CALL RECORDS IN A CIVIL LAWSUIT, INCLUDING THE RECORDS OF 911 CALLS MADE BY NONPARTIES.

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, determined Supreme Court properly ordered the county to provide to plaintiff records of 911 calls made during a severe winter storm. Plaintiff’s decedent was stranded in his car during the storm and called 911 for help. Help did not arrive until nearly 24 hours later, after plaintiff’s decedent died. In addition to the records of plaintiff’s decedent’s 911 call (which the county provided), plaintiff sought records of 911 calls made by others during the storm. The county argued the list of parties allowed access to 911 call records in County Law § 308 (4) was exclusive, and did not include parties in civil lawsuits. The Fourth Department determined the county’s argument was not supported by the legislative history of the statute:

Here, the context and legislative history of section 308 (4) paint a different picture than defendants’ de-contextualized analysis suggests. Section 308 was enacted as part of article 6 of the County Law, which contains 59 discrete provisions related almost exclusively to the financing of a uniform, statewide telephonic emergency response system. * * *

… County Law § 300 reveals unmistakably that the Legislature was motivated to adopt County Law article 6 in order to update the emergency response system across the State and to mitigate the financial burden of that endeavor for local governments. It is hardly surprising, then, that section 308 (4) lacks the hallmark language of other statutory provisions which specifically cut off a civil litigant’s access to certain classes of evidentiary materials for reasons of public policy… .

The relevant legislative history lends further support to our conclusion that the Legislature did not enact section 308 (4) in order to exempt 911 records from the scope of discovery authorized by CPLR article 31. Specifically, the sponsoring memorandum for what would become County Law article 6 referenced only the budgetary implications of enhanced 911 services for local government … , and a later-introduced bill sought to repeal section 308 (4) on the ground that it unjustifiably shielded 911 records from requests under the Freedom of Information Law (FOIL) … . Tellingly, the sponsor … did not identify any need to repeal section 308 (4) in order to make 911 records discoverable under article 31, and for good reason — section 308 (4) had never exempted 911 records from such disclosure in the first place. Abate v County of Erie, 2017 NY Slip Op 05351, 4th Dept 6-30-17

 

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PLAINTIFF’S MOTION TO COMPEL POST-JUDGMENT DISCOVERY TO DETERMINE DAMAGES SHOULD HAVE BEEN GRANTED, DEFENDANTS’ ANSWER HAD BEEN STRUCK FOR FAILURE TO COMPLY WITH A DISCOVERY ORDER AND A DEFAULT JUDGMENT HAD BEEN GRANTED.

The Fourth Department determined plaintiff’s motion seeking discovery to determine damages after defendants’ answer had been struck should have been granted. Plaintiff alleged defendants had breached “noncompete” provisions of an employment agreement. Defendant (Morrow) did not show up for a deposition and defendants did not provide discovery. Supreme Court granted plaintiff’s motion to strike the answer and enter judgment for plaintiff, but denied plaintiff’s motion for post-judgment discovery:

We agree with plaintiff that it is entitled to discovery in order to establish its damages … . A “defendant’s obligation to afford [a] plaintiff the opportunity to pursue discovery [is not] terminated when the answer [is] stricken,” inasmuch as a plaintiff should not be “handicapped in the proof of its damages by [a] defendant’s prior defiance of orders, notices, or subpoenas calling for his production of records or the taking of a deposition” … . Thus, a “plaintiff, if it chooses to do so, may press its right to discovery in advance of the inquest, whether for direct use as evidence in proving its damages or for the procurement of information that may lead to such evidence” … . Here, plaintiff is entitled to an order compelling Morrow’s compliance with the discovery demands insofar as those demands are “material and necessary” to establish plaintiff’s damages (CPLR 3101 [a]). We therefore reverse the order insofar as appealed from and grant that part of the motion seeking an order to compel discovery from Morrow with respect to damages only. ICM Controls Corp. v Morrow, 2017 NY Slip Op 05355, 4th Dept 6-30-17

 

LAWSUIT INVOLVED WITNESSES AND DOCUMENTS LOCATED IN RUSSIA, DISMISSAL BASED UPON THE DOCTRINE OF FORUM NON CONVENIENS WAS PROPER.

The First Department determine the lawsuit was properly dismissed under the doctrine of forum non conveniens. The lawsuit involved people and documents located in Russia. The fact that defendants wired money from New York was not a sufficient contact:

“The application of the doctrine of forum non conveniens is a matter of discretion to be exercised by the trial court … . Contrary to plaintiff’s argument, “the availability of another suitable forum” is not “a prerequisite for applying the conveniens doctrine” … .

Considering all the relevant factors, the motion court providently exercised its discretion in applying the doctrine of forum non conveniens. What is left of the instant New York state complaint …is the claim that plaintiff (a Cypriot corporation with an office in Canada) should have received dividends from Yugraneft (a Russian company that owns an oil field in Siberia). The key events underlying the claim took place in Russia, where the bulk of the witnesses and documents are located. That the individual defendants may have wired funds from New York does not require a contrary result … .  “[O]ur courts should not be under any compulsion to add to their heavy burdens by accepting jurisdiction of a cause of action having no substantial nexus with New York” … . Norex Petroleum Ltd. v Blavatnik, 2017 NY Slip Op 05310, 1st Dept 6-29-17

 

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QUESTION OF FACT WHETHER WITHDRAWAL OF PRIOR FORECLOSURE PROCEEDING CONSTITUTED THE REVOCATION OF THE ELECTION TO ACCELERATE THE DEBT, THEREBY STOPPING THE RUNNING OF THE SIX-YEAR STATUTE OF LIMITATIONS.

The Second Department determined the lender had raised a question of fact whether it had revoked its election to accelerate the debt by withdrawing a prior foreclosure action. The six-year statute of limitations began to run when the debt was accelerated by the first foreclosure action. If the withdrawal of that action revoked the debt acceleration, the statute would have stopped running at that point rendering the instant action timely:

[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due, and the Statute of Limitations begins to run on the entire debt'” … . A lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action … .

… [T]he defendant submitted proof that, on August 16, 2011, [the lender] moved for, and on September 22, 2011, was granted, an order that discontinued the foreclosure action, canceled the notice of pendency, and vacated the judgment of foreclosure and sale it had been granted. The defendant thereby raised a triable issue of fact … as to whether [the lender’s] motion “constituted an affirmative act by the lender to revoke its election to accelerate” …  Contrary to the plaintiff’s contention, this case is distinguishable from the cases in which, because “[t]he prior foreclosure action was never withdrawn by the lender, but rather, dismissed . . . by the court, [i]t cannot be said that [the] dismissal by the court constituted an affirmative act by the lender to revoke its election to accelerate” … . NMNT Realty Corp. v Knoxville 2012 Trust, 2017 NY Slip Op 05230, 2nd Dept 6-28-17

 

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ALTHOUGH PLAINTIFF’S COUNSEL HAD NOTIFIED ALL PARTIES HE WAS NO LONGER REPRESENTING PLAINTIFF, THE PROPER PROCEDURE FOR WITHDRAWAL OF AN ATTORNEY OF RECORD HAD NOT BEEN FOLLOWED, THEREFORE THE STIPULATION OF DISCONTINUANCE SIGNED BY PLAINTIFF PRO SE WAS NOT VALID.

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate a stipulation of discontinuance should not have been denied. At the time plaintiff signed the discontinuance pro se, his attorney (Mulhern) had notified all parties he was no longer representing plaintiff, but the proper procedure for withdrawing as counsel had not been followed. Therefore the stipulation of discontinuance was not valid:

“Although a client may, as a matter of public policy, discharge an attorney at any time, with or without cause…,  an attorney of record in an action may only withdraw or be changed or discharged in the manner prescribed by statute”… . “Until an attorney of record withdraws or is changed or discharged in the manner prescribed by CPLR 321, his [or her] authority as attorney of record for his [or her] client continues, as to adverse parties, unabated” … .

Here, at the time that the plaintiff executed the stipulation of discontinuance, he and Mulhern had not signed and filed a consent to change attorney form or sought a court order permitting Mulhern to withdraw as the plaintiff’s counsel. Thus, as to the defendants, Mulhern still was the plaintiff’s attorney … , and the plaintiff was not permitted to act pro se without consent of the court … . Accordingly, the plaintiff’s motion to vacate the stipulation of discontinuance should have been granted. Garafalo v Mayoka, 2017 NY Slip Op 05201, 2nd Dept 6-28-17

 

DEFENDANTS, OPERATORS OF A VIRGINIA HOTEL WHERE PLAINTIFF WAS INJURED IN A SHOWER, DEMONSTRATED THE ABSENCE OF BUSINESS TIES TO NEW YORK, THE FACT THAT NEW YORKERS CAN MAKE RESERVATIONS THROUGH A WEBSITE IS NOT ENOUGH.

The Second Department determined defendants’ hotel’s motion to dismiss based upon the lack of business ties to New York was properly granted. Plaintiff was injured in a shower in the hotel, which is located in Virginia. The defendants demonstrated they did not do business in New York. The fact that reservations could be made through a website (accessed in New York) was not enough. There was no showing the injury was linked to the use of the website:

… [T]he plaintiffs failed to demonstrate that the defendants purposefully availed themselves of the privilege of conducting business in New York. Moreover, accepting as true the plaintiffs’ allegation that the defendants were involved in maintaining or operating a website that permitted consumers in New York to make reservations at the subject hotel in Virginia, they failed to make a prima facie showing that there was a substantial relationship between the causes of action asserted in the complaint and any alleged transaction of business through that website … .

The plaintiffs also failed to make a prima facie showing that personal jurisdiction exists under CPLR 302(a)(4) based on ownership, use, or possession of any real property within the state … .

Furthermore, contrary to their contention, the plaintiffs have not made ” a sufficient start'” to warrant holding this branch of the defendants’ motion in abeyance while discovery is conducted on the issue of jurisdiction … . The plaintiffs have not alleged facts which would support personal jurisdiction under either CPLR 302(a)(1) or CPLR 302(a)(4), and thus have failed to indicate how further discovery might lead to evidence showing that personal jurisdiction exists here … . Leuthner v Homewood Suites by Hilton, 2017 NY Slip Op 05212, 2nd Dept 6-28-17

 

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MOTION TO SET ASIDE THE VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, PHOTOGRAPHS TAKEN TWO WEEKS AFTER THE ACCIDENT SHOULD NOT HAVE BEEN EXCLUDED, CONTRACT SPECIFICATIONS FOR WORK ON THE AREA OF THE FALL SHOULD NOT HAVE BEEN EXCLUDED, SUBPOENAS FOR WITNESSES WHO HAD NOT BEEN DEPOSED SHOULD NOT HAVE BEEN QUASHED.

The First Department determined the defendants’ motion to set aside the verdict in this slip and fall case should not have been granted. The First Department further held that photographs of the sinkhole where plaintiff fell (taken two weeks after the injury) and the contract specifications for repair of the sinkhole should not have been excluded from evidence. In addition plaintiff’s subpoenas for a city inspector and a principal of the contractor (Halcyon) which repaired the sinkhole should not have been quashed. The fact that those witnesses were not deposed did not preclude plaintiff’s calling them at trial:

… [T]he trial court erred in precluding pictures of the accident site … . Plaintiff authenticated the photographs at his deposition, and further testimony at trial could have explained how and why the scene depicted in the photos did or did not differed from the scene on the day of the accident … . Exclusion of the photographs meant that plaintiff was unable to show the jury the hole into which he allegedly fell.

Nor should the court have precluded the City’s specifications incorporated into its contract with Halcyon. The specifications were expressly incorporated into the contract between Halcyon and the City; thus, they applied not only to the City itself, but also to third parties. Therefore, they were admissible as potential evidence of defendants’ negligence… , and indeed, the City failed to show how the specifications transcended the duty of reasonable care. The trial court’s exclusion of this evidence regarding the specifications hobbled plaintiff’s ability to prove that the City had engaged in affirmative negligence — the very basis upon which the trial court granted the directed verdict.

Likewise, the court erred in quashing the subpoenas directed to the City’s onsite inspector and a principal of Halcyon … . Although plaintiff did not formally name the City’s onsite inspector and the principal of Halcyon as witnesses, nothing in the CPLR requires a party to generate a trial witness list, nor does the record indicate that the individual court rules required him to do so … . Indeed, there is no requirement that a party depose a witness in order to call him or her as a witness at trial. Gonzalez v City of New York, 2017 NY Slip Op 05180, 1st Dept 6-27-17

 

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NO NEW INJURIES WERE ALLEGED, THE DOCUMENT WAS A SUPPLEMENTAL, NOT AN AMENDED, BILL OF PARTICULARS, LEAVE OF COURT NOT REQUIRED.

The Second Department, reversing Supreme Court, determined the document submitted by plaintiff was a supplemental bill of particulars, not an amended bill of particulars. Therefore the document could be served without permission from the court:

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In his original bill of particulars dated February 8, 2006, the injured plaintiff alleged that he sustained permanent personal injuries, including depression, insomnia, agitation, poor concentration, loneliness, and tenseness, and that his injuries were accompanied by distress, depression, stress, and psychological difficulties. After the Supreme Court’s order granting the defendant’s motion for summary judgment dismissing the complaint was reversed on appeal … and the case was restored to the trial calendar, the plaintiffs served, pursuant to CPLR 3101(d), an expert witness disclosure dated August 4, 2013, and the affidavit of their expert psychologist dated April 27, 2013. Thereafter, the plaintiffs served a supplemental bill of particulars dated February 17, 2015, alleging the additional injuries or damages of post-traumatic stress disorder and future costs of long-term psychotherapy. In the order appealed from, the court, inter alia, granted that branch of the defendant’s motion which was to strike the supplemental bill of particulars and denied that branch of the plaintiffs’ cross motion which was to compel the defendant to accept the supplemental bill of particulars. The court found that the supplemental bill of particulars sought to add new injuries, thereby rendering it an amended bill of particulars, and that the plaintiffs failed to demonstrate a reasonable excuse for the inordinate delay in seeking leave to include the new injuries. The plaintiffs appeal.

Pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing “continuing special damages and disabilities,” without leave of the court at any time, but not less than 30 days prior to trial, if it alleges “no new cause of action” or claims no “new injury.” Here, the plaintiffs sought to allege continuing consequences of the injuries suffered and described in the original bill of particulars, rather than new and unrelated injuries … . Since the contested bill of particulars is a supplemental bill of particulars, rather than an amended bill of particulars, and was served more than 30 days prior to trial, leave of court was not required … . Khosrova v Hampton Bays Union Free Sch. Dist., 2017 NY Slip Op 05075, 2nd Dept 6-21-17

 

CIVIL PROCEDURE (BILL OF PARTICULARS, NO NEW INJURIES WERE ALLEGED, THE DOCUMENT WAS A SUPPLEMENTAL, NOT AN AMENDED, BILL OF PARTICULARS, LEAVE OF COURT NOT REQUIRED)/BILL OF PARTICULARS (SUPPLEMENTAL VERSUS AMENDED, NO NEW INJURIES WERE ALLEGED, THE DOCUMENT WAS A SUPPLEMENTAL, NOT AN AMENDED, BILL OF PARTICULARS, LEAVE OF COURT NOT REQUIRED)

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INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined the proof of the allegedly forged signature on a power of attorney was insufficient to support declaring the power of attorney null and void:

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“A certificate of acknowledgment attached to an instrument such as a deed or a mortgage raises the presumption of due execution, which presumption . . . can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed'”… . ” [A] certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of evidence, but only on proof so clear and convincing so as to amount to a moral certainty'” … .

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Here, the plaintiff failed to rebut the presumption of validity of the acknowledged power of attorney. Although an expert opinion is not necessarily required in order to establish that a document is a forgery, where an expert opinion is offered, the expert must “state with reasonable professional certainty that the signature at issue is not authentic” … . The plaintiff failed to present evidence authenticating the group of 31 exemplars upon which the plaintiff’s handwriting expert primarily relied … . Further, although the handwriting expert testified that he relied on several additional exemplars, those exemplars likewise were not authenticated … . Consequently, the testimony of the handwriting expert should not have been considered … .

The testimony of the plaintiff and other witnesses was not sufficient to establish, to a moral certainty, that the 2002 power of attorney was forged. The plaintiff denied having signed the 2002 power of attorney. However, “[s]omething more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature”… . Kanterakis v Minos Realty I, LLC, 2017 NY Slip Op 05074, 2nd Dept 6-21-17

 

CIVIL PROCEDURE (FORGERY, POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/EVIDENCE (FORGERY, POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/FORGERY (POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/EXPERT OPINION (FORGERY, POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/FORGERY (POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/CERTIFICATE OF ACKNOWLEDGMENT (POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)

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