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HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION.

The Second Department noted that hearsay can be submitted in opposition to a summary judgment motion but, to raise a question fact, hearsay alone is not enough. Dindiyal v Dindiyal, 2017 NY Slip Op 03152, 2nd Dept 4-26-17

 

CIVIL PROCEDURE (HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/EVIDENCE (SUMMARY JUDGMENT, HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/HEARSAY (SUMMARY JUDGMENT, HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/SUMMARY JUDGMENT (HEARSAY,(HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)  

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CONFIRMED BANKRUPTCY PLAN DID NOT HAVE A RES JUDICATA EFFECT ON AN ACTION ON A MORTGAGE WHICH WAS PENDING WHEN THE BANKRUPTCY PROCEEDINGS WERE COMMENCED.

The Second Department determined the confirmation of a bankruptcy plan did not have a res judicata effect upon an action by plaintiff bank to require the recording of a mortgage that was pending when defendants’ bankruptcy proceedings were commenced:

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The plaintiff commenced this action in June 2013, inter alia, to direct the recording of a mortgage allegedly executed in September 2006 to encumber real property owned by the defendants … (the McKennas), and for a judgment declaring that that mortgage is superior in priority over other recorded mortgages on the property. On or about September 24, 2013, the McKennas filed a petition for Chapter 13 bankruptcy … , … automatically stay[ing] this action pursuant to 11 USC § 362(a). By order dated August 25, 2014, the Bankruptcy Court reclassified the plaintiff’s claim, for the purposes of that court, from “secured” to “unsecured,” and terminated the automatic stay for cause as to the plaintiff so that the plaintiff could continue the instant action through the entry of judgment. * * *

While an order confirming a Chapter 13 bankruptcy plan may constitute a final judgment on the merits … , the res judicata effect of a confirmed plan does not apply when a state court action concerning the validity of a lien remains unresolved at the time the bankruptcy proceedings were commenced … . Here, the instant action was pending when the McKennas filed their bankruptcy petition, and, therefore, the Supreme Court properly concluded that the subsequent confirmation of the amended Chapter 13 bankruptcy plan had no res judicata effect on the instant action. U.S. Bank N.A. v McKenna, 2017 NY Slip Op 03215, 2nd Dept 4-26-17

 

CIVIL PROCEDURE (RES JUDICATA, BANKRUPTCY PLAN, CONFIRMED BANKRUPTCY PLAN DID NOT HAVE A RES JUDICATA EFFECT ON AN ACTION ON A MORTGAGE WHICH WAS PENDING WHEN THE BANKRUPTCY PROCEEDINGS WERE COMMENCED)/BANKRUPTCY PLAN (RES JUDICATA, CONFIRMED BANKRUPTCY PLAN DID NOT HAVE A RES JUDICATA EFFECT ON AN ACTION ON A MORTGAGE WHICH WAS PENDING WHEN THE BANKRUPTCY PROCEEDINGS WERE COMMENCED)/RES JUDICATA (BANKRUPTCY PLAN, CONFIRMED BANKRUPTCY PLAN DID NOT HAVE A RES JUDICATA EFFECT ON AN ACTION ON A MORTGAGE WHICH WAS PENDING WHEN THE BANKRUPTCY PROCEEDINGS WERE COMMENCED)

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DEFENDANT’S RELIANCE ON ITS INSURANCE BROKER TO HANDLE A LABOR LAW PERSONAL INJURY CLAIM WAS NOT, UNDER THE FACTS, A SUFFICIENT EXCUSE, THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN VACATED.

The First Department, over a dissent, determined the $900,000 default judgment in this Labor Law action should not have been vacated. The court noted that it had the power to overrule Supreme Court, even in the absence of an abuse of discretion. It has been held that a defendant’s reliance on an insurance broker to handle a lawsuit, as argued here, is a valid excuse for a default. However defendant’s principal, Mr. Gjonaj, received, over the course of years, papers sent by plaintiff’s attorney which should have alerted him to fact that the lawsuit was progressing in defendant’s absence. The court further determined plaintiff’s installation of video cameras was a covered activity under the Labor Law and his falling from a ladder was therefore actionable:

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… [Mr.  Gjonaj’s.] assertion in this case that he believed his broker was forwarding the paperwork to the appropriate insurance carrier was unreasonable in light of his conceded receipt of the summons and complaint, two motions for a default judgment, a letter from the court and a court decision reflecting a $900,000 judgment against him. Surely Mr. Gjonaj knew that if his insurance company had retained a lawyer to appear for defendants, he and his corporations would not have continued to receive legal documents directly from plaintiff’s attorney and the court for over three years. The fact that [the broker] kept assuring Mr. Gjonaj “that everything in this matter was under control and that the claim was being handled by the proper insurance company,” does not help to establish reasonableness, objective or otherwise, on the part of Mr. Gjonaj, who should have known that everything was not under control after years of receiving so many legal documents from plaintiff’s counsel relating to the same lawsuit. Gecaj v Gjonaj Realty & Mgt. Corp., 2017 NY Slip Op 03109, 1st Dept 4-25-17

CIVIL PROCEDURE (DEFENDANT’S RELIANCE ON ITS INSURANCE BROKER TO HANDLE A LABOR LAW PERSONAL INJURY CLAIM WAS NOT, UNDER THE FACTS, A SUFFICIENT EXCUSE, THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN VACATED)/LABOR LAW-CONSTRUCTION LAW (DEFENDANT’S RELIANCE ON ITS INSURANCE BROKER TO HANDLE A LABOR LAW PERSONAL INJURY CLAIM WAS NOT, UNDER THE FACTS, A SUFFICIENT EXCUSE, THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN VACATED. FALLING FROM A LADDER WHILE INSTALLING VIDEO CAMERAS WAS A COVERED ACTIVITY)/LADDERS (LABOR LAW-CONSTRUCTION LAW DEFENDANT’S RELIANCE ON ITS INSURANCE BROKER TO HANDLE A LABOR LAW PERSONAL INJURY CLAIM WAS NOT, UNDER THE FACTS, A SUFFICIENT EXCUSE, THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN VACATED. FALLING FROM A LADDER WHILE INSTALLING VIDEO CAMERAS WAS A COVERED ACTIVITY)/VIDEO CAMERAS (LABOR LAW-CONSTRUCTION LAW DEFENDANT’S RELIANCE ON ITS INSURANCE BROKER TO HANDLE A LABOR LAW PERSONAL INJURY CLAIM WAS NOT, UNDER THE FACTS, A SUFFICIENT EXCUSE, THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN VACATED. FALLING FROM A LADDER WHILE INSTALLING VIDEO CAMERAS WAS A COVERED ACTIVITY)/INSURANCE LAW (DEFENDANT’S RELIANCE ON ITS INSURANCE BROKER TO HANDLE A LABOR LAW PERSONAL INJURY CLAIM WAS NOT, UNDER THE FACTS, A SUFFICIENT EXCUSE, THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN VACATED)/DEFAULT JUDGMENTS (DEFENDANT’S RELIANCE ON ITS INSURANCE BROKER TO HANDLE A LABOR LAW PERSONAL INJURY CLAIM WAS NOT, UNDER THE FACTS, A SUFFICIENT EXCUSE, THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN VACATED)

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NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED.

The First Department, over a dissent, determined defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff raised a new theory in response to the summary judgment motion. The First Department held that the new theory could not be entertained by searching the record and therefore could not support the denial of summary judgment or an amended bill of particulars:

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Once the defendants met their burden for summary judgment, plaintiff was obligated to rebut defendant’s prima facie showing with medical evidence demonstrating that the defendants departed from accepted medical practice … . Here, plaintiff failed to address the opinions of defendants’ experts or defendants’ prima facie showing that the result from the complicated, extensive double jaw surgery was anything but a reasonable result. Thus, there was no basis to preclude a grant of summary judgment in favor of defendants … . Instead, plaintiff proffered a new theory, based on the report of an expert otolaryngologist, who opined that Dr. Behrman had failed to take into account plaintiff’s primary immune deficiency in planning the surgery, that he should have initially consulted with an immunologist who would have performed testing before surgery, and that he failed to refer plaintiff after surgery to an ENT doctor, who would have consulted with an immunologist. Plaintiff’s expert asserted that these failures led to the development of an infection, which caused plaintiff’s hearing loss, numbness, and teeth misalignment.

It is axiomatic that a plaintiff cannot defeat a summary judgment motion that made out a prima facie case by merely asserting, without more, a new theory of liability for the first time in the opposition papers … . Since plaintiff’s opposition papers were insufficient absent this new theory of recovery, defendants’ summary judgment motion should have been granted … . Biondi v Behrman, 2017 NY Slip Op 03039, 1st Dept 4-20-17

NEGLIGENCE (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE  (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (SUMMARY JUDGMENT,  (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)/SUMMARY JUDGMENT (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)

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APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE.

The Second Department determined petitioner’s application to add more handguns to his pistol permit was properly denied based upon his criminal history, despite the dismissal of most of the charges. The court noted that the Article 78 proceeding was not the proper venue for attacking the constitutionality of the licensing scheme. That should be done in a declaratory judgment action:

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… [G]ood cause existed, based on the petitioner’s criminal history, to deny the petitioner’s application to amend his license to include additional handguns was not arbitrary and capricious, and should not be disturbed… . The fact that the majority of the petitioner’s arrests resulted in the dismissal of the charges against him, or were ultimately resolved in his favor, did not preclude the respondent from considering the underlying circumstances surrounding those arrests in denying the application … .

Moreover, the petitioner’s constitutional challenge to the licensing scheme is unfounded … . We further note that the petitioner’s contention that certain aspects of the licensing eligibility requirements of Penal Law § 400.00(1) unconstitutionally infringe upon his right to bear arms under the Second Amendment (US Const, 2d Amend) is not properly before this Court in an original proceeding pursuant to CPLR article 78, as a declaratory judgment action is the proper vehicle for challenging the constitutionality of a statute … . Matter of Jackson v Anderson, 2017 NY Slip Op 02985, 2nd Dept 4-19-17

 

PISTOL PERMITS (APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE)/CIVIL PROCEDURE  (APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE)/DECLARATORY JUDGMENT  (APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE)

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AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED FOR THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACOTRS IN ITS MOTION FOR SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined defendant auto repair shop (Auto Excellence) did not owe a duty to plaintiff who was injured driving a borrowed car. Plaintiff, who alleged the car was negligently repaired (causing injury), did not have a contractual relationship with the repair shop and did not allege any Espinal factors which could give rise to tort liability based on a contract. Because no Espinal factors were alleged there was no need for defendant to negate those factors in its motion papers:

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A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party … , the Court of Appeals recognized that exceptions to this rule apply (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced another party’s duty, in Espinal, to maintain the premises safely.

Here, Auto Excellence made a prima facie showing of its entitlement to judgment as a matter of law by offering proof that the plaintiff was not a party to the repair contract and, thus, Auto Excellence owed her no duty of care … . Contrary to the plaintiff’s contention, since the pleadings did not allege facts which would establish the applicability of any of the Espinal exceptions, Auto Excellence was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law … . Koslosky v Malmut, 2017 NY Slip Op 02977, 2nd Dept 4-19-17

NEGLIGENCE (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)/CONTRACT LAW (TORT LIABILITY TO THIRD PARTY, (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)/CIVIL PROCEDURE (ESPINAL FACTORS, (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)

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DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE.

The First Department, in a full-fledged opinion by Justice Renwick, with a concurring opinion, determined the trial judge properly granted plaintiff’s motion for a new trial in this personal injury case because of the unacceptable behavior of defense counsel. Plaintiff alleged she was struck by a bus while crossing the street, injuring her back and knee. The jury found the defendant 70% at fault but found that the injuries were not permanent and awarded nothing for future pain and suffering. The First Department concluded the verdict was probably a compromise and the defense attorney’s conduct deprived plaintiff of a fair trial:

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In ordering a new trial, the trial court concluded that defense counsel’s conduct was “so extreme and pervasive as to make it inconceivable that it did not substantially affect the fairness of the trial.” Also, such conduct “occurred in front of the jury, created a hostile atmosphere and persisted despite the court threatening to impose sanctions and to hold counsel in contempt.”

The court then cited the multiple instances of defense counsel’s misconduct: “frequent assertions of personal knowledge of facts in issue in violation of Rules of Professional Conduct, Rule 3.4(d)(2)”; his many speaking objections, with one of them flagrantly misstating the law; his motion for a mistrial twice in front of a jury; his unfair and false denigration of Dr. Davy as not being a “real surgeon”; his pattern of interrupting and speaking over the court despite the court’s directions to stop; and his interruption of the trial by demanding that plaintiff’s counsel move a chart she was showing to the jury to accommodate his refusal to move from his seat. The court further noted that, although not reflected in the record, defense counsel would use a “sneering, denigrating tone” while cross-examining Dr. Davy and plaintiff’s other witnesses. The court also noted as not reflected in the record the “tone of voice” directed at plaintiff’s counsel, witnesses, and the court, or the “volume of his voice”; the court noted that it had admonished counsel “not to scream” on several occasions. The court continued that not fully reflected in the record was the extent to which defense counsel would continue talking after being directed to stop. Smith v Rudolph, 2017 NY Slip Op 02957, 1st Dept 4-18-17

 

ATTORNEYS (DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE)/CIVIL PROCEDURE (DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE)/NEGLIGENCE (DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE)

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NEW YORK LAW APPLIED WHERE BOTH PLAINTIFF AND HIS EMPLOYER ARE CANADIAN, PLAINTIFF, WHO WAS SHOCKED BY ELECTRIC WIRES ON THE FLOOR, ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION.

The First Department determined New York law applied here where plaintiff and plaintiff’s employer, Nygard, a third-party defendant, are Canadian and further held plaintiff was entitled to summary judgment on his Labor Law 241(6) cause of action. Plaintiff was shocked by electric wires which were on the floor of the workplace:

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To the extent, if any, Manitoba law, unlike New York law, might prohibit the third-party claims asserted by defendants (both domiciled in New York) against Manitoba-domiciliary Nygard, plaintiff’s employer, the availability of a third-party claim against plaintiff’s employer is governed by the law of the place of injury — here, New York — “where the local law of each litigant’s domicile favors that party, and the action is pending in one of those jurisdictions” … . The application of New York law on this issue is appropriate because this state, where the accident occurred, “is the place with which both [defendants and Nygard] have voluntarily associated themselves” … , and “comports with the reasonable expectations of [these] parties in conducting their business affairs” … .

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Plaintiff was engaged in “construction” work at the time of the incident (Labor Law § 241[6]), and Owner’s attempt to isolate the activities in which plaintiff was involved at the moment of the incident ignores the general context of the work … . Further, the record established a violation of 12 NYCRR 23-1.13(b)(4), which requires that workers who may come into contact with an electric power circuit be protected against electric shock “by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means.” That plaintiff was electrically shocked, as confirmed by another Nygard International employee, demonstrated that the circuit was not de-energized, grounded, or guarded by effective insulation. Plaintiff also established that the violation of the provision was a result of negligence … . Owner’s contention that an issue of fact exists as to plaintiff’s comparative negligence is unavailing. Plaintiff testified that he had objected to having the temporary lighting work performed in the manner that it was done, and that Nygard International’s principal overruled him. The principal’s insistence that plaintiff perform the temporary wiring work, despite plaintiff’s objections, established negligence by Nygard, for which Owner is vicariously liable … . O’Leary v S&A Elec. Contr. Corp., 2017 NY Slip Op 02888, 1st Dept 4-13-17

LABOR LAW-CONSTRUCTION LAW (NEW YORK LAW APPLIED WHERE BOTH PLAINTIFF AND HIS EMPLOYER ARE CANADIAN, PLAINTIFF, WHO WAS SHOCKED BY ELECTRIC WIRES ON THE FLOOR, ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION)/CIVIL PROCEDURE  (NEW YORK LAW APPLIED WHERE BOTH PLAINTIFF AND HIS EMPLOYER ARE CANADIAN, PLAINTIFF, WHO WAS SHOCKED BY ELECTRIC WIRES ON THE FLOOR, ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION)/CHOICE OF LAW (LABOR LAW-CONSTRUCTION LAW, (NEW YORK LAW APPLIED WHERE BOTH PLAINTIFF AND HIS EMPLOYER ARE CANADIAN, PLAINTIFF, WHO WAS SHOCKED BY ELECTRIC WIRES ON THE FLOOR, ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION)

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EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE.

The First Department determined plaintiffs raised sufficient questions about whether defendant Starwood was an apparent or ostensible agent of the property owner, Sheraton, to justify further discovery and denial of defendant’s summary judgment motion as premature. Plaintiff was injured in a slip and fall on a hotel walkway alleged to be defective. Plaintiff sued Starwood. Starwood moved for summary judgment arguing the hotel was owned by Sheraton and the walkway maintenance was under the exclusive control of an independent contractor, ZLC. Plaintiffs demonstrated there was evidence Starwood held itself out as the owner of the property on its website:

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Starwood demonstrated that it did not own or control the hotel, and that, under the terms of the license agreement with Sheraton, ZLC was an independent contractor and was responsible for the day-to-day operations of the hotel. Under these circumstances, even if Starwood were a party to the license (or franchise) agreement, the mere existence of a franchise relationship would not provide a basis for the imposition of vicarious liability against Starwood for the negligence of the franchisee, ZLC … .

However, in opposition, plaintiff submitted evidence that Starwood’s reservations website holds the hotel out to the public as a Starwood property, and that plaintiff relied on the representations on Starwood’s website in choosing to book a room at the hotel. This evidence of public representations and reliance may support a finding of apparent or ostensible agency, which may serve as a basis for imposing vicarious liability against Starwood … . Although the license agreement required ZLC to disclose that it was an “independent legal entity operating under license” from Sheraton and to place “notices of independent ownership” on the premises, Starwood did not provide any evidence that ZLC complied with those requirements.  Stern v Starwood Hotels & Resorts Worldwide, Inc., 2017 NY Slip Op 02882, 1st Dept 4-13-17

 

CIVIL PROCEDURE (EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE)/AGENCY  (EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE)/NEGLIGENCE  (EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE)

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PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED.

The First Department, over a dissent, determined plaintiffs did not demonstrate defendants were subject to long-arm jurisdiction in New York. The dissent argued jurisdiction was obtained through the activities of defendants’ New York agents. The majority held that the conclusory allegations concerning the purported agency relationship were insufficient to survive the motion to dismiss:

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To establish that a defendant acted through an agent, a plaintiff must “convince the court that [the New York actors] engaged in purposeful activities in this State in relation to [the] transaction for the benefit of and with the knowledge and consent of [the defendant] and that [the defendant] exercised some control over [the New York actors]” … . “[T]]o make a prima facie showing of control, a plaintiff’s allegations must sufficiently detail the defendant’s conduct so as to persuade a court that the defendant was a primary actor’ in the specific matter in question; control cannot be shown based merely upon a defendant’s title or position within the corporation, or upon conclusory allegations that the defendant controls the corporation” … . Coast to Coast Energy, Inc. v Gasarch, 2017 NY Slip Op 02876, 1st Dept 4-13-17

CIVIL PROCEDURE (PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED)/LONG ARM JURISDICTION (PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED)/AGENCY (LONG ARM JURISDICTION, PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED)/AGENCY (PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED)

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