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PLAINTIFF WAS NOT INJURED ON THE CONSTRUCTION SITE, LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED, LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION WERE VIABLE HOWEVER, USE OF ALIAS WAS NOT A FRAUD UPON THE COURT.

The Second Department determined the Labor Law 241(6) cause of action should have been dismissed because plaintiff was not injured on the construction site but rather on a storage site a few blocks away. Plaintiff was injured when he stepped in a hole. However the Labor Law 200 cause of action was viable. The Second Department also determined the plaintiff’s use of an alias to bring suit was not a fraud upon the court (plaintiff is an undocumented immigrant) but held that the complaint should be amended to reflect his actual name:

Turning to the plaintiff’s Labor Law § 241(6) cause of action, Royal and Vista established, prima facie, that at the time of the accident the plaintiff was not working in a construction area within the meaning of Labor Law § 241(6) … . They submitted evidence which established that the lot where the accident occurred was located several blocks away from the construction area, and was used to store materials. There was no construction taking place at the lot, and the plaintiff’s accident occurred as he was taking materials to a truck so they could be transported to the construction site. In opposition to this prima facie showing by Royal and Vista, the plaintiff failed to raise a triable issue of fact. …

With respect to the plaintiff’s Labor Law § 200 and common-law negligence causes of action, this accident arose not from the manner in which the work was performed, but rather from an allegedly dangerous condition at the work site. Under such circumstances, liability may be imposed if the property owner created the condition or had actual or constructive notice of it, and failed to remedy the condition within a reasonable amount of time … . Similarly, a general contractor may be held liable in common-law negligence and under Labor Law § 200 if it had control over the work site and actual or constructive notice of the dangerous condition … . Bessa v Anflo Indus., Inc., 2017 NY Slip Op 02013, 2nd Dept 3-22-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS NOT INJURED ON THE CONSTRUCTION SITE, LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED, LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION WERE VIABLE HOWEVER)/CIVIL PROCEDURE (PLAINTIFF WAS NOT INJURED ON THE CONSTRUCTION SITE, LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED, LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION WERE VIABLE HOWEVER, USE OF ALIAS WAS NOT A FRAUD UPON THE COURT)/ALIAS (BRINGING SUIT USING AN ALIAS WAS NOT A FRAUD ON THE COURT)/FRAUD (FRAUD UPON THE COURT, BRINGING SUIT USING AN ALIAS WAS NOT A FRAUD ON THE COURT)

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GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY.

The Second Department determined the forum selection clause in the loan contract was enforceable and applied to the related guaranty (which did not include a similar clause). The Second Department further determined Supreme Court should not have granted plaintiff’s motion for summary judgment in lieu of complaint because proof of the amount owed required proof in addition to the documents:

… “[D]ocuments executed at about the same time and covering the same subject matter are to be interpreted together, even if one does not incorporate the terms of the other by reference, and even if they are not executed on the same date, so long as they are substantially’ contemporaneous” … . Contrary to the defendant’s contention, the agreement and guaranty were executed sufficiently close in time and relate to the same subject matter, such that they should be interpreted together to determine the parties’ intent to be bound by the forum selection clause … . * * *

Although an unconditional guarantee may qualify as an instrument for the payment of money only … , here, neither the guaranty nor the underlying agreement relied upon by the plaintiff in support of its motion contains an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite future time … . Since proof outside of the guaranty and underlying agreement is required to establish the amount of Platinum’s obligation to the plaintiff pursuant to the agreement, the plaintiff’s motion for summary judgment in lieu of complaint should have been denied, with the motion and answering papers deemed to be the complaint and answer, respectively … . Oak Rock Fin., LLC v Rodriguez, 2017 NY Slip Op 02048, 2nd Dept 3-22-17

 

CIVIL PROCEDURE (GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY)/CONTRACT LAW (FORUM SELECTION CLAUSE, (GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY)/GUARANTY ((GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY)/SUMMARY JUDGMENT IN LIEU OF COMPLAINT (GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY)

FOUR-MONTH ARTICLE 78 STATUTE OF LIMITATIONS STARTS WHEN THE PETITIONER’S ATTORNEY IS NOTIFIED OF THE CHALLENGED DETERMINATION, NOT WHEN PETITIONER IS NOTIFIED.

The Second Department determined the four-month statute of limitations for bringing an Article 78 action starts when petitioner’s attorney is notified of the challenged determination, not when the petitioner is notified:

Contrary to the Supreme Court’s determination, the four-month statute of limitations did not begin to run when the petitioner was personally served with a copy of the respondents’ letter notifying him that his employment had been terminated. At that time, the respondents were on notice that the petitioner had retained counsel to represent him in connection with the disciplinary charges. ” [B]asic procedural dictates and . . . fundamental policy considerations . . . require that once counsel has appeared in a matter a Statute of Limitations or time requirement cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed'” … . Under the circumstances of this case, the respondents were required to serve a copy of the letter on the petitioner’s counsel in order for the statute of limitations to commence running … . Matter of Munroe v Ponte, 2017 NY Slip Op 02041, 2nd Dept 3-22-17

CIVIL PROCEDURE (FOUR-MONTH ARTICLE 78 STATUTE OF LIMITATIONS STARTS WHEN THE PETITIONER’S ATTORNEY IS NOTIFIED OF THE CHALLENGED DETERMINATION, NOT WHEN PETITIONER IS NOTIFIED)/STATUTE OF LIMITATIONS (ARTICLE 78, FOUR-MONTH ARTICLE 78 STATUTE OF LIMITATIONS STARTS WHEN THE PETITIONER’S ATTORNEY IS NOTIFIED OF THE CHALLENGED DETERMINATION, NOT WHEN PETITIONER IS NOTIFIED)/ARTICLE 78 (FOUR-MONTH ARTICLE 78 STATUTE OF LIMITATIONS STARTS WHEN THE PETITIONER’S ATTORNEY IS NOTIFIED OF THE CHALLENGED DETERMINATION, NOT WHEN PETITIONER IS NOTIFIED)

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BUILDING RESIDENTS CAN BRING CLASS ACTION AGAINST OWNERS-MANAGERS ALLEGING NEGLIGENCE IN PREPARATION FOR SUPERSTORM SANDY.

The First Department determined the residents of a building met the requirements for a class action suit alleging negligent failure to secure the building prior to Superstorm Sandy:

The court properly concluded that plaintiffs satisfied the criteria of CPLR 901, and the factors enumerated in CPLR 902 support class certification.

It is undisputed that the building has more than 400 residential apartments above 15 floors of commercial space. Thus, the numerosity requirement is met and joinder of all class members is impracticable … .

The commonality requirement is also satisfied in that the proof at trial will consist of evidence of defendants’ efforts to prevent damage in advance of the storm and to repair damage after the storm. Since the class consists of tenants of the building, common questions predominate over individual questions concerning the amount and type of damages sustained by each class member … . Any differences in proof with respect to the applicability of the warranty of habitability in Real Property Law § 235-b as between residential tenants and commercial tenants is insufficient to overcome the significant common questions, and the court may, in its discretion, establish subclasses … .

The claims of the putative class representatives are typical of the class’s claims since each resides or leases space in the building and their injuries, if any, derive from the same course of conduct by defendants … . Moreover, the record reflects that they are sufficiently informed about the facts, have no conflicts of interest with the class they seek to represent, and are able to act as a check on counsel … . Roberts v Ocean Prime, LLC, 2017 NY Slip Op 01974, 1st Dept 3-16-17

 

CIVIL PROCEDURE (BUILDING RESIDENTS COULD BRING CLASS ACTION AGAINST OWNERS-MANAGERS ALLEGING NEGLIGENCE IN PREPARATION FOR SUPERSTORM SANDY)/CLASS ACTIONS (BUILDING RESIDENTS COULD BRING CLASS ACTION AGAINST OWNERS-MANAGERS ALLEGING NEGLIGENCE IN PREPARATION FOR SUPERSTORM SANDY)/LANDLORD-TENANT (BUILDING RESIDENTS COULD BRING CLASS ACTION AGAINST OWNERS-MANAGERS ALLEGING NEGLIGENCE IN PREPARATION FOR SUPERSTORM SANDY)/SUPERSTORM SANDY (BUILDING RESIDENTS COULD BRING CLASS ACTION AGAINST OWNERS-MANAGERS ALLEGING NEGLIGENCE IN PREPARATION FOR SUPERSTORM SANDY)

CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS.

The Second Department, in this assault and battery action, determined defendant’s counterclaim alleging a deliberate campaign of harassment spanning 13 years was not subject to the one-year statute of limitations because the continuing tort doctrine applied:

… [T]he Supreme Court properly concluded that so much of the defendant’s third counterclaim as was based on conduct occurring prior to September 29, 2013, was not barred by the one-year statute of limitations (see CPLR 215), and that it was instead governed by the continuing tort doctrine, which permits claims based on “wrongful conduct occurring more than one year prior to commencement of the action, so long as the final actionable event occurred within one year of the suit” … . The counterclaim was supported by factual allegations that the plaintiff engaged in a continuing and concerted campaign of harassment and intimidation of the defendant that progressed from, among other things, calling the defendant, his family, and guests ethnic and racial epithets and throwing items onto his property to eventually making threats of violence, making false criminal accusations, committing assault and battery against the defendant, and continuing to engage in threatening and intimidating conduct nearly two months after the physical confrontation that is the subject of the plaintiff’s complaint … . The final actionable event, allegedly occurring in November 2013, fell within one year of the defendant’s service of the verified answer with counterclaims … . Estreicher v Oner, 2017 NY Slip Op 01844, 2nd Dept 3-15-17

NTENTIONAL TORTS (CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS)/CIVIL PROCEDURE (CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS)/CONTINUING TORT DOCTRINE (CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS)/HARASSMENT (INTENTIONAL TORTS, CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS)

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PLAINTIFF ENTITLED TO AMEND BILL OF PARTICULARS AS OF RIGHT PRIOR TO FILING OF NOTE OF ISSUE.

The Second Department, over a two-justice dissent, determined plaintiff properly amended his bill of particulars as of right prior to the filing of the note of issue, despite labeling the document a “supplemental” bill of particulars. The amended bill of particulars added the failure to diagnose appendicitis as a basis for the lawsuit:

The defendant’s contentions regarding the plaintiff’s delay in amending his bill of particulars are misplaced. While it is true that “once discovery has been completed and the case has been certified as ready for trial, [a] party will not be permitted to amend the bill of particulars except upon a showing of special and extraordinary circumstances'” … , no such showing is required where a bill of particulars is amended as of right before the note of issue and certificate of readiness have been filed. The as-of-right amendment of a bill of particulars has been appropriately compared to the as-of-right amendment of a pleading: “Presumably this amendment [pursuant to CPLR 3042(b)] can make any change in the bill, just as an amendment as of course can make any change in a pleading under CPLR 3025(a). But the latter is restricted in time to the outset of the action while CPLR 3042(b) keeps the bill’s amendment time open during the whole pre-note of issue period” … . Mackauer v Parikh, 2017 NY Slip Op 01847, 2nd Dept 3-15-17

CIVIL PROCEDURE (PLAINTIFF ENTITLED TO AMEND BILL OF PARTICULARS AS OF RIGHT PRIOR TO FILING OF NOTE OF ISSUE)/NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF ENTITLED TO AMEND BILL OF PARTICULARS AS OF RIGHT PRIOR TO FILING OF NOTE OF ISSUE)/MEDICAL MALPRACTICE (PLAINTIFF ENTITLED TO AMEND BILL OF PARTICULARS AS OF RIGHT PRIOR TO FILING OF NOTE OF ISSUE)

SIX MONTHS WITHIN WHICH TO RECOMMENCE AN ACTION IN STATE COURT AFTER DISMISSAL IN FEDERAL COURT RUNS FROM THE DETERMINATION OF THE FEDERAL RECONSIDERATION MOTION, NOT FROM THE INITIAL FEDERAL DISMISSAL.

The First Department, reversing Supreme Court, determined the six-months within which plaintiff was required to file his state action after dismissal in federal court (CPLR 205(a)) ran from the federal court’s ruling on plaintiff’s reconsideration motion, not from the initial dismissal in federal court:

Plaintiff was not required to commence a defamation action in state court while the reconsideration motion was pending, or to file a notice of appeal in federal court, in order to gain the benefit of the six-month extension … ; were our decision otherwise, the result would waste judicial resources by forcing a party to commence either a federal appeal or a new state court action while his or her case was still ongoing in federal court. Arty v New York City Health & Hosps. Corp., 2017 NY Slip Op 01626, 1st Dept 3-2-17

CIVIL PROCEDURE (SIX MONTHS WITHIN WHICH TO RECOMMENCE AN ACTION IN STATE COURT AFTER DISMISSAL IN FEDERAL COURT RUNS FROM THE DETERMINATION OF THE FEDERAL RECONSIDERATION MOTION, NOT FROM THE INITIAL FEDERAL DISMISSAL)/RECONSIDER, MOTION TO (SIX MONTHS WITHIN WHICH TO RECOMMENCE AN ACTION IN STATE COURT AFTER DISMISSAL IN FEDERAL COURT RUNS FROM THE DETERMINATION OF THE FEDERAL RECONSIDERATION MOTION, NOT FROM THE INITIAL FEDERAL DISMISSAL)/RECOMMENCE ACTION (SIX MONTHS WITHIN WHICH TO RECOMMENCE AN ACTION IN STATE COURT AFTER DISMISSAL IN FEDERAL COURT RUNS FROM THE DETERMINATION OF THE FEDERAL RECONSIDERATION MOTION, NOT FROM THE INITIAL FEDERAL DISMISSAL)

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LENDER DID NOT NEGOTIATE A MORTGAGE MODIFICATION IN GOOD FAITH AND WAS PROPERLY SANCTIONED.

The Second Department determined plaintiff-lender did not negotiate a mortgage modification in good faith and was properly sanctioned by the tolling of interest, costs and attorney’s fees accrued during the four years of negotiations:

Pursuant to CPLR 3408(f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution … . “The purpose of the good faith requirement . . . is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort at the settlement conference to reach resolution” … . Compliance with the good faith requirement is measured by the totality of the circumstances and whether the party’s conduct demonstrates a meaningful effort at reaching a resolution … .

Here, the totality of the circumstances supports the finding that the plaintiff failed to negotiate in good faith. The hearing evidence demonstrated that the plaintiff, among other things, engaged in dilatory conduct by making piecemeal document requests, providing contradictory information, and repeatedly requesting documents that had already been provided … . Aurora Loan Servs., LLC v Diakite, 2017 NY Slip Op 01528, 2nd Dept 3-1-17

 

FORECLOSURE (LENDER DID NOT NEGOTIATE A MORTGAGE MODIFICATION IN GOOD FAITH AND WAS PROPERLY SANCTION)/CIVIL PROCEDURE (FORECLOSURE, LENDER DID NOT NEGOTIATE A MORTGAGE MODIFICATION IN GOOD FAITH AND WAS PROPERLY SANCTION)

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CONTINUING WRONG DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT ACTION.

The First Department determined the continuing wrong doctrine did not apply to extend the statute of limitations in this breach of contract action. Plaintiff alleged he should not have been billed for certain services in which he never enrolled and the issuance of each new bill continued the wrong:

In contract actions, the doctrine is applied to extend the statute of limitations when the contract imposes a continuing duty on the breaching party … . Thus, where a plaintiff asserts a single breach — with damages increasing as the breach continued — the continuing wrong theory does not apply … .

Here, the alleged wrongs are the enrollment of plaintiff in the CPP and PAS programs in March 2001 and 2007, respectively, and there was no breach of a recurring duty. The monthly billings demanding payment of CPP and PAS fees, both before and after plaintiff closed his account, represent the consequences of those wrongful acts in the form of continuing damages, not the wrongs themselves, and do not qualify for application of the continuous wrong doctrine. Henry v Bank of Am., 2017 NY Slip Op 01436, 1st Dept 2-23-17

 

CONTRACT LAW (CONTINUING WRONG DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT ACTION)/CIVIL PROCEDURE (CONTINUING WRONG DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT ACTION)/CONTINUING WRONG DOCTRINE (CONTRACT LAW, CONTINUING WRONG DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT ACTION)/STATUTE OF LIMITATIONS (CONTINUING WRONG DOCTRINE, CONTRACT LAW, CONTINUING WRONG DOCTRINE DID NOT APPLY TO EXTEND THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT ACTION)

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CONTRACT FOR INTERIOR DECORATOR SERVICES AND THE PURCHASE OF FURNITURE AND ACCESSORIES WAS A SERVICE CONTRACT GOVERNED BY THE SIX-YEAR STATUTE OF LIMITATIONS, NOT A CONTRACT FOR THE PURCHASE OF GOODS GOVERNED BY THE FOUR-YEAR STATUTE OF LIMITATIONS.

The First Department, in a full-fledged opinion by Justice Acosta, reversing Supreme Court, in a case of first impression, determined a mixed contract for interior decoration services and the purchase of furniture and other goods is governed by the six-year statute of limitations for service contracts, not the four-year statute of limitations for contracts for the purchase of goods:

In this case, the contract was primarily for interior design services, and the provision of furniture and accessories was merely incidental. Thus, the six-year statute of limitations applies. This conclusion is supported by the fact that plaintiff is an expert in the field of interior design, and it is clear from the contract that Ms. Swenson hired her for that reason. The contract, which is on plaintiff’s interior design company’s letterhead, states that plaintiff will provide advice and design suggestions regarding construction, cabinetry, painting, and using the clients’ existing items. Plaintiff stated that she designed most of the rooms throughout defendants’ Tuxedo Park house, and the contract provides that she will select products and materials, show them to Ms. Swenson, and then purchase them on her behalf. In addition, the contract provides that defendants will be charged “List price,” which plaintiff states is understood in the industry to include both the cost of the materials as well as a percentage service fee. Moreover, the contract acknowledges that certain “custom work” will be done by “interior designers work people,” and a number of the invoices referenced such “custom made” items. Finally, plaintiff and Ms. Swenson also agreed that plaintiff could use and publish photographs of the items to show off plaintiff’s work, which demonstrates that plaintiff’s value is attributed to the selection of the various items and putting them together for a particular scheme, not merely to her acting as a retailer. Hagman v Swenson, 2017 NY Slip Op 01483, 1st Dept 2-23-17

CONTRACT LAW (CONTRACT FOR INTERIOR DECORATOR SERVICES AND THE PURCHASE OF FURNITURE AND ACCESSORIES WAS A SERVICE CONTRACT GOVERNED BY THE SIX-YEAR STATUTE OF LIMITATIONS, NOT A CONTRACT FOR THE PURCHASE OF GOODS GOVERNED BY THE FOUR-YEAR STATUTE OF LIMITATIONS)/CIVIL PROCEDURE (CONTRACT LAW, CONTRACT FOR INTERIOR DECORATOR SERVICES AND THE PURCHASE OF FURNITURE AND ACCESSORIES WAS A SERVICE CONTRACT GOVERNED BY THE SIX-YEAR STATUTE OF LIMITATIONS, NOT A CONTRACT FOR THE PURCHASE OF GOODS GOVERNED BY THE FOUR-YEAR STATUTE OF LIMITATIONS)/INTERIOR DECORATORS (CONTRACT FOR INTERIOR DECORATOR SERVICES AND THE PURCHASE OF FURNITURE AND ACCESSORIES WAS A SERVICE CONTRACT GOVERNED BY THE SIX-YEAR STATUTE OF LIMITATIONS, NOT A CONTRACT FOR THE PURCHASE OF GOODS GOVERNED BY THE FOUR-YEAR STATUTE OF LIMITATIONS)

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