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COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT.

The Second Department, reversing Supreme Court, determined plaintiff stated causes of action for sexual harassment and retaliatory firing. The Second Department noted that Supreme Court erred by relying on defenses to action, which are relevant only to a summary judgment motion, not a motion to dismiss. The Second Department further explained how a motion to dismiss is to be handled when (as here) documentary evidence is submitted in opposition:

The court erred in determining that the subject cause of action must be dismissed because the plaintiff failed to show that the behavior of her supervisor constituted more than a petty slight or trivial inconvenience. The plaintiff does not have this burden. Rather, a contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense … , which should be raised in the defendants’ answer, and does not lend itself to a pre-answer motion to dismiss … . A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party’s cause of action. “Therefore, whether the pleading will later survive a motion for summary judgment, or whether the party will ultimately prevail on the claims, is not relevant on a pre-discovery motion to dismiss” … . * * *

“When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” .. .

Kaplan v New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 06063, 2nd Dept 9-21-16

 

EMPLOYMENT LAW (SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/CIVIL RIGHTS LAW (EMPLOYMENT LAW, SEXUAL HARASSMENT, SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/SEXUAL HARASSMENT (EMPLOYMENT LAW, SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/RETALIATION (EMPLOYMENT LAW, SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/SEXUAL HARASSMENT EMPLOYMENT LAW, SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/CIVIL PROCEDURE (MOTION TO DISMISS, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/DISMISS, MOTION TO (CIVIL, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)SUMMARY JUDGMENT (COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)

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FRIVOLOUS CONDUCT WARRANTED AWARD OF ATTORNEY’S FEES, CRITERIA EXPLAINED.

The Second Department determined plaintiff’s frivolous conduct (delaying discontinuance) warranted the award of attorney”s fees to the respondent. The court explained the criteria for finding frivolous conduct:

“The court rule set forth in 22 NYCRR 130-1.1, which is intended to limit frivolous and harassing behavior, authorizes a court, in its discretion, to award a party in a civil action reasonable attorney’s fees resulting from frivolous conduct” … . Conduct is frivolous if, inter alia, it is “completely without merit in law” or “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1[c][1], [2]…). “In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party” (22 NYCRR 130-1.1[c]). Hutter v Citibank, N.A., 2016 NY Slip Op 06062, 2nd Dept 9-21-16

CIVIL PROCEDURE (FRIVOLOUS CONDUCT WARRANTED AWARD OF ATTORNEY’S FEES)/FRIVOLOUS CONDUCT (FRIVOLOUS CONDUCT WARRANTED AWARD OF ATTORNEY’S FEES)

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QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED.

The Court of Appeals, in a brief memorandum decision, determined there was a question of fact whether defendant insurance company waived the late-notice defense by not mentioning the defense in the disclaimer letters. The defense had been raised in earlier communications. Therefore defendants’ motion to add the defense in an amended answer was properly granted:

Analyzing the circumstances under the common-law waiver standard, which requires an examination of all factors, defendants cannot be said to have waived their right to assert the late-notice defense as a matter of law by failing to specifically identify late notice in their disclaimer letters. Defendants identified the late-notice defense in early communications with plaintiff before relying on a reservation of rights in two disclaimer letters. “[U]nder common-law principles, triable issues of fact exist whether defendants clearly manifested an intent to abandon their late-notice defense” (Keyspan Gas E. Corp. v Munich Reins. Am., Inc., 23 NY3d 583, 591 [2014]). Accordingly, Supreme Court properly granted defendants’ motion for leave to amend their answer to reassert the affirmative defense of late notice. Estee Lauder Inc. v OneBeacon Ins. Group, LLC, 2016 NY Slip Op 06012, CtApp 9-15-16

INSURANCE LAW (QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED)/CIVIL PROCEDURE (INSURANCE LAW, WAIVER, QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED)/WAIVER (QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED)

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FAILURE TO PRESERVE VIDEO OF UNDERLYING INCIDENT DID NOT WARRANT STRIKING THE ANSWER.

The Second Department, modifying Supreme Court, determined striking the answer was too severe a sanction for failure to preserve a video of the underlying incident (spoliation). The court noted that the plaintiff could still prove his case without the video recording. Therefore, an adverse inference jury instruction was an appropriate sanction:

“Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence” … . “The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to'” prove its claim or defense … . However, ” striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct'” and, thus, the courts must ” consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness'” … . “When the moving party is still able to establish or defend a case, a less severe sanction is appropriate” … . Peters v Hernandez, 2016 NY Slip Op 05983, 2nd Dept 9-14-16

CIVIL PROCEDURE (FAILURE TO PRESERVE VIDEO OF UNDERLYING INCIDENT DID NOT WARRANT STRIKING THE ANSWER)/EVIDENCE (SPOLIATION, FAILURE TO PRESERVE VIDEO OF UNDERLYING INCIDENT DID NOT WARRANT STRIKING THE ANSWER)/SPOLIATION (FAILURE TO PRESERVE VIDEO OF UNDERLYING INCIDENT DID NOT WARRANT STRIKING THE ANSWER)

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SUMMARY JUDGMENT CANNOT REST ON GAPS IN THE OPPOSING PARTY’S PAPERS; MOVING PARTY MUST ADDRESS EVERY NECESSARY ELEMENT WITH SUBSTANTIVE PROOF.

The Second Department, in a dispute among business partners, determined certain motions for summary judgment should not have been granted. The court explained that summary judgment cannot rest on gaps in the opposing party’s proof. A defendant bringing the motion must make out a prima facie case by addressing every issue raised in the pleadings. Where every issue is not addressed with substantive proof, the motion must be denied without reference to the opposing papers:

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . In this case, the individual defendants failed to affirmatively demonstrate, prima facie, that they did not breach any fiduciary duty owed to the plaintiffs during the course of all of the transactions or occurrences described in the amended complaint … . Similarly, the individual defendants failed to affirmatively establish, prima facie, that the plaintiffs did not sustain any damages as a result of their alleged misconduct … .

Furthermore, the submissions of the individual defendants were insufficient to establish, prima facie, that the application of the business judgment rule protected all of the transactions or occurrences described in the amended complaint from judicial scrutiny. * * * The individual defendants’ representations that all of the challenged conduct outlined in the amended complaint was performed in furtherance of the Partnership’s legitimate interests were conclusory, unsubstantiated, and, without more, amounted to bare legal conclusions that were insufficient to establish that the business judgment rule barred judicial inquiry into these matters … . Katz v Beil, 2016 NY Slip Op 05977, 2nd Dept 9-14-16

 

CIVIL PROCEDURE (SUMMARY JUDGMENT, EVIDENCE, SUMMARY JUDGMENT CANNOT REST ON GAPS IN THE OPPOSING PARTY’S PAPERS; MOVING PARTY MUST ADDRESS EVERY NECESSARY ELEMENT WITH SUBSTANTIVE PROOF)/EVIDENCE (SUMMARY JUDGMENT, SUMMARY JUDGMENT CANNOT REST ON GAPS IN THE OPPOSING PARTY’S PAPERS; MOVING PARTY MUST ADDRESS EVERY NECESSARY ELEMENT WITH SUBSTANTIVE PROOF)/SUMMARY JUDGMENT (SUMMARY JUDGMENT CANNOT REST ON GAPS IN THE OPPOSING PARTY’S PAPERS; MOVING PARTY MUST ADDRESS EVERY NECESSARY ELEMENT WITH SUBSTANTIVE PROOF)

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PURPORTED RISK OF WAIVER OF RIGHT TO COMPEL ARBITRATION WAS NOT A REASONABLE EXCUSE FOR A DELAY IN ANSWERING THE COMPLAINT; MOTION TO VACATE DEFAULT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendants’ motion to vacate a default judgment should not have been granted. The defendants failed to offer a reasonable excuse for the six-month delay in answering. The court rejected the argument that a timely answer would have risked waiver of the right to compel arbitration:

The defendants asserted that they did not serve a timely answer because, “[h]ad [they] served an answer, they risked waiving the right to compel arbitration.” This excuse was not reasonable given the procedural means that were available to the defendants to avoid default while preserving their right to demand arbitration of the dispute (see CPLR 7503[a]; see also CPLR 3211[a], [f]…). Duprat v BMW Fin. Servs., NA, LLC, 2016 NY Slip Op 05970, 2nd Dept 9-14-16

CIVIL PROCEDURE (PURPORTED RISK OF WAIVER OF RIGHT TO COMPEL ARBITRATION WAS NOT A REASONABLE EXCUSE FOR A DELAY IN ANSWERING THE COMPLAINT; MOTION TO VACATE DEFAULT SHOULD NOT HAVE BEEN GRANTED)/ARBITRATION (PURPORTED RISK OF WAIVER OF RIGHT TO COMPEL ARBITRATION WAS NOT A REASONABLE EXCUSE FOR A DELAY IN ANSWERING THE COMPLAINT; MOTION TO VACATE DEFAULT SHOULD NOT HAVE BEEN GRANTED)/DEFAULT JUDGMENT (PURPORTED RISK OF WAIVER OF RIGHT TO COMPEL ARBITRATION WAS NOT A REASONABLE EXCUSE FOR A DELAY IN ANSWERING THE COMPLAINT; MOTION TO VACATE DEFAULT SHOULD NOT HAVE BEEN GRANTED)

SUPPLEMENTAL BILL OF PARTICULARS PROPERLY SERVED WITHOUT LEAVE OF COURT; UNDER THE CIRCUMSTANCES, SUPPLEMENTAL BILL SHOULD NOT HAVE BEEN STRUCK BASED UPON PLAINTIFF’S FAILURE TO APPEAR AT A DEPOSITION. 

The Second Department, reversing Supreme Court, determined the supplemental bill of particulars served by plaintiff was not an amended bill of particulars (which would have required leave of court) and plaintiff’s failure to appear at a deposition scheduled one day before a mediation (which was not fruitful) did not amount to willful and contumacious conduct and did not, therefore, warrant striking the supplemental bill of particulars:

Pursuant to CPLR 3043(b), “[a] party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities,” with the proviso that “no new cause of action may be alleged or new injury claimed” (CPLR 3043[b] [emphasis added]). Moreover, the statute provides that supplemental bills of particulars may be served 30 days or more prior to trial without leave of court, and that the opposing party is entitled to an opportunity for further disclosure regarding the continuing damages and disabilities. * * *

While the striking of a pleading or the preclusion of evidence may be appropriate in those instances where parties engage in the chronic or repeated obstruction of discovery, thereby evidencing a willful disregard of legitimate disclosure requests and court orders … , the plaintiff’s failure to appear for a further deposition on the stipulated date does not, under the circumstances presented, rise to such a level of misconduct. Moreover, the record does not demonstrate any other discovery violations by the plaintiff. Accordingly, no willful and contumacious conduct was established … . Alicino v Rochdale Vil., Inc., 2016 NY Slip Op 05966, 2nd Dept 9-14-16

 

CIVIL PROCEDURE (SUPPLEMENTAL BILL OF PARTICULARS PROPERLY SERVED WITHOUT LEAVE OF COURT; UNDER THE CIRCUMSTANCES, SUPPLEMENTAL BILL SHOULD NOT HAVE BEEN STRUCK BASED UPON PLAINTIFF’S FAILURE TO APPEAR AT A DEPOSITION)/BILL OF PARTICULARS (SUPPLEMENTAL BILL OF PARTICULARS PROPERLY SERVED WITHOUT LEAVE OF COURT; UNDER THE CIRCUMSTANCES, SUPPLEMENTAL BILL SHOULD NOT HAVE BEEN STRUCK BASED UPON PLAINTIFF’S FAILURE TO APPEAR AT A DEPOSITION)/WILLFUL AND CONTUMACIOUS (SUPPLEMENTAL BILL OF PARTICULARS PROPERLY SERVED WITHOUT LEAVE OF COURT; UNDER THE CIRCUMSTANCES, SUPPLEMENTAL BILL SHOULD NOT HAVE BEEN STRUCK BASED UPON PLAINTIFF’S FAILURE TO APPEAR AT A DEPOSITION)

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ACTION SEEKING REFORMATION OF NOTE AND MORTGAGE PROPERLY DISMISSED UNDER DOCTRINE OF LACHES.

The Second Department determined plaintiffs’ action seeking reformation of a note and mortgage was properly dismissed under the doctrine of laches:

…[W]hile the plaintiffs may have, at one point, had a cause of action for reformation of the note and mortgage on the basis of mutual mistake … , the Supreme Court properly determined that such a cause of action is barred by the plaintiffs’ laches in asserting a right to reformation. ” The doctrine of laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party'” … . Prejudice may be demonstrated “by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay” … . The plaintiffs unreasonably delayed in asserting a right to reformation of the note and mortgage for almost six years, during which time they made payments in accordance with the terms of the note and mortgage. Further, the defendant would be prejudiced in defending the action at this time by the loss of evidence resulting from her husband’s death in 2012, approximately 4½ years after the note and mortgage were executed … . Diecidue v Russo, 2016 NY Slip Op 05907, 2nd Dept 8-31-16

 

CONTRACT LAW (ACTION SEEKING REFORMATION OF NOTE AND MORTGAGE PROPERLY DISMISSED UNDER DOCTRINE OF LACHES)/CIVIL PROCEDURE (ACTION SEEKING REFORMATION OF NOTE AND MORTGAGE PROPERLY DISMISSED UNDER DOCTRINE OF LACHES)/LACHES (ACTION SEEKING REFORMATION OF NOTE AND MORTGAGE PROPERLY DISMISSED UNDER DOCTRINE OF LACHES)

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MORE THAN A YEAR’S DELAY IN PUBLIC ADMINISTRATOR’S SEEKING SUBSTITUTION FOR DECEASED IN A MEDICAL MALPRACTICE ACTION ADEQUATELY EXPLAINED.

The First Department, over a dissent, determined the Public Administrator’s late motion (CPLR 1021) for substitution (for the deceased plaintiff) in a medical malpractice action was properly granted. There was a delay of more than one year after letters testamentary were issued before substitution was sought. The delay was essentially caused by law office failure. With respect to a reasonable excuse for the delay, the court wrote:

… [T]he record shows that there was a dispute between two of [the deceased’s] children as to who would administer the estate, and that the Public Administrator’s counsel was on maternity leave for five months. In addition, in this case, inadvertent errors in drafting the agreement to retain counsel accounted for some of the delay. Thus, … there are circumstances present that “adequately explain[] the delay in issue” … . Public Adm’r, as Adm’r of the Estate of Ronald Simpson v Levine, 2016 NY Slip Op 05896, 1st Dept 8-25-16

 

TRUSTS AND ESTATES (MORE THAN A YEAR’S DELAY IN PUBLIC ADMINISTRATOR’S SEEKING SUBSTITUTION FOR DECEASED IN A MEDICAL MALPRACTICE ACTION ADEQUATELY EXPLAINED)/CIVIL PROCEDURE (TRUSTS AND ESTATES, MORE THAN A YEAR’S DELAY IN PUBLIC ADMINISTRATOR’S SEEKING SUBSTITUTION FOR DECEASED IN A MEDICAL MALPRACTICE ACTION ADEQUATELY EXPLAINED)

RE-SERVICE AFTER EXPIRATION OF STATUTE OF LIMITATIONS PROPERLY ALLOWED.

The Second Department determined re-service of the summons and complaint after the statute of limitations had passed was properly allowed:

The Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ cross motion which was pursuant to CPLR 306-b to extend the time to serve the defendant with the summons and complaint in the interest of justice … . While the action was timely commenced, the statute of limitations had expired when the plaintiffs cross-moved for relief, the plaintiffs re-served the defendant within a reasonable time after learning that the timely service of process was being challenged by the defendant as defective, and the defendant had actual notice of the action within 120 days of its commencement … . Furthermore, after re-serving the defendant, the plaintiffs cross-moved within a reasonable time for an extension of time to serve the defendant, and there was no identifiable prejudice to the defendant attributable to the delay in service … . Rivera v Rodriguez, 2016 NY Slip Op 05855, 2nd Dept 8-24-16

CIVIL PROCEDURE (RE-SERVICE AFTER EXPIRATION OF STATUTE OF LIMITATIONS PROPERLY ALLOWED)/STATUTE OF LIMITATIONS (RE-SERVICE AFTER EXPIRATION OF STATUTE OF LIMITATIONS PROPERLY ALLOWED)

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