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QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE.

The Third Department, reversing Supreme Court, determined the pre-discovery granting of the defendant-town's motion for summary judgment in this trip and fall case was premature. Although the town proved it did not have written notice of the defect, the plaintiffs raised a question of fact whether the town created the dangerous condition, thereby eliminating the written notice requirement:

In opposition to defendant's motion, plaintiffs provided an affidavit from … Debra Rodriguez. According to Rodriguez, … she heard a “loud bang while one of the [d]efendant's snowplows was clearing the roadway in front of [her] house.” Then, “[a]fter the snow melted, [she] saw that the end of the culvert pipe was mangled, bent upwards and protruding above the surrounding surfaces . . . [and] [she] believe[s] that this dangerous condition was created by [defendant's] snowplow.” * * *

“[A] summary judgment motion is properly denied as premature when the nonmoving party has not been given reasonable time and opportunity to conduct disclosure relative to pertinent evidence that is within the exclusive knowledge of the movant” … . We find that the Rodriguez affidavit is sufficient to demonstrate that discovery is required and, therefore, defendant's motion should have been denied as premature. Greener v Town of Hurley, 2016 NY Slip Op 04291, 3rd Dept 6-2-16

NEGLIGENCE (QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE)/MUNICIPAL LAW (QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE)/SLIP AND FALL (QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE)/CIVIL PROCEDURE (QUESTION OF FACT WHETHER TOWN CREATED THE DANGEROUS CONDITION IN THIS TRIP AND FALL CASE, PRE-DISCOVERY SUMMARY JUDGMENT IN FAVOR OF DEFENDANT TOWN PREMATURE)

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OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND.

The First Department determined plaintiffs' opening statement, which alleged an intentional act by defendant, warranted dismissal of the negligence claims:

Plaintiffs' opening statement warranted dismissal of the negligence and negligent battery claims, because the claim that defendant … used excessive force in handcuffing plaintiff … is fatally inconsistent with the negligence claims … . Vaynshelbaum v City of New York, 2016 NY Slip Op 04302, 1st Dept 6-2-16

CIVIL PROCEDURE (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)/NEGLIGENCE (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)/OPENING STATEMENTS (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)

ONCE JUDGMENT WAS ENTERED, SUPREME COURT DID NOT HAVE JURISDICTION TO ENTERTAIN A MOTION FOR STATUTORY INTEREST.

The Court of Appeals determined Supreme Court did not have jurisdiction to entertain a motion for statutory interest after judgment was entered. The post-judgment award of statutory interest ($4.9 million) was properly vacated by the appellate division:

While [petitioner] was appealing Supreme Court's judgment dismissing its action, some of the [respondents] filed a motion seeking an award of statutory interest under Civil Practice Law and Rules § 5001. Supreme Court granted the motion, and in August 2013, directed entry of a judgment of approximately $4.9 million, representing interest at the statutory rate. Upon appeal, the Appellate Division reversed; the court denied the [respondents'] motion and vacated the statutory interest judgment … .

We agree with the Appellate Division that Supreme Court lacked jurisdiction to award statutory interest on the January 2012 judgment that dismissed the petition. … [T]he January 2012 paper, denominated an “order,” was a final judgment dismissing the proceeding … .

Once Supreme Court dismissed [the] petition and judgment was entered, the court was without jurisdiction to entertain the [respondents'] post-judgment motion for statutory interest … . CRP/Extell Parcel I, L.P. v Cuomo, 2016 NY Slip Op 04251, CtApp 6-2-16

CIVIL PROCEDURE (ONCE JUDGMENT WAS ENTERED, SUPREME COURT DID NOT HAVE JURISDICTION TO ENTERTAIN A MOTION FOR STATUTORY INTEREST)/JURISDICTION, SUBJECT MATTER(ONCE JUDGMENT WAS ENTERED, SUPREME COURT DID NOT HAVE JURISDICTION TO ENTERTAIN A MOTION FOR STATUTORY INTEREST)

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FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a.

The Second Department determined the assertion of a frivolous claim for punitive damages in a property-injury case warranted the award of $10,000 to each defendant pursuant to CPLR 8303-a:

CPLR 8303-a provides, in pertinent part, that where, as here, a plaintiff has commenced a “frivolous” claim in an action to recover damages for injury to property, “the court shall award to the successful party, costs and reasonable attorney's fees not exceeding ten thousand dollars.” Baxter v Javier, 2016 NY Slip Op 04165, 2nd Dept 6-1-16

CIVIL PROCEDURE (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)/FRIVOLOUS CLAIMS (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)/ATTORNEYS (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)/PUNITIVE DAMAGES (FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a)

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SHAREHOLDERS’ DERIVATIVE ACTION IS EQUITABLE IN NATURE, MOTION TO STRIKE DEMAND FOR A JURY TRIAL SHOULD HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined defendant's motion to strike plaintiff's demand for a jury trial in this shareholders' derivative action should have been granted. The court noted that a motion to strike a demand for a jury trial can be made anytime up to the opening of trial:

Supreme Court erred in finding that plaintiff in this shareholders' derivative action was entitled to a jury trial, since the claims brought in his capacity as a shareholder were “derivative and therefore equitable in nature” … . Contrary to plaintiff's contention, the motion was not untimely, since a motion to strike a demand for a jury trial may be made at anytime up to the opening of trial … , and we find no prejudice in defendants' delay of a few months, following the restoration of the case to the calendar, in making their motion. Moyal v Sleppin, 2016 NY Slip Op 04107, 1st Dept 5-26-16

CORPORATION LAW (SHAREHOLDERS' DERIVATIVE ACTION IS EQUITABLE IN NATURE, MOTION TO STRIKE DEMAND FOR A JURY TRIAL SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (SHAREHOLDERS' DERIVATIVE ACTION IS EQUITABLE IN NATURE, MOTION TO STRIKE DEMAND FOR A JURY TRIAL SHOULD HAVE BEEN GRANTED)/SHAREHOLDERS' DERIVATIVE ACTION (SHAREHOLDERS' DERIVATIVE ACTION IS EQUITABLE IN NATURE, MOTION TO STRIKE DEMAND FOR A JURY TRIAL SHOULD HAVE BEEN GRANTED)/JURY TRIAL, MOTION TO STRIKE DEMAND FOR (SHAREHOLDERS' DERIVATIVE ACTION IS EQUITABLE IN NATURE, MOTION TO STRIKE DEMAND FOR A JURY TRIAL SHOULD HAVE BEEN GRANTED)

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EXECUTOR-STATUS (PRIOR TO DEATH) AND FAMILIAL RELATIONSHIP DO NOT CREATE A FIDUCIARY RELATIONSHIP, EQUITABLE ESTOPPEL SHOULD NOT HAVE BEEN INVOKED TO SAVE A TIME-BARRED CLAIM.

The Third Department, over a two-justice dissent, determined the doctrine of equitable estoppel should not have been invoked to save a time-barred claim to real property. The real property was the subject of a 1977 will which placed the property in trust for decedent's children and named defendant executor. In 1988 the property was conveyed to the defendant, but the will was never amended. Supreme Court denied defendant's motion to dismiss, finding that defendant's executor-status and familial ties created a fiduciary relationship, requiring defendant to notify plaintiffs of the 1988 transfer. The Third Department held the appointment as executor did not create a fiduciary relationship (prior to death), and the familial relationship, as well, did not create a fiduciary relationship. Therefore, the Third Department ruled, the defendant was not barred, by equitable estoppel, from asserting the statute of limitations defense:

Supreme Court recognized that “concealment without actual misrepresentation may form the basis for invocation of the doctrine [of equitable estoppel] if 'there was a fiduciary relationship which gave [the] defendant an obligation to inform [the] plaintiff of facts underlying the claim'” … . Here, the court found that plaintiffs had sufficiently alleged that defendant owed them a fiduciary duty to disclose the conveyance when it occurred in 1988 because of her nomination as executor-trustee in the 1977 will, as well as their familial relationship.

We note, however, that the existence of a familial relationship does not equate to a fiduciary relationship for equitable estoppel purposes … . Nor does the mere fact that a will has nominated an executor, in and of itself, create a fiduciary relationship between the nominee and the will's beneficiaries. Indeed, because of the ambulatory nature of a will, a nominated executor is prohibited from acting in a fiduciary capacity until the testator dies … . Similarly, “a testamentary trust cannot become effective prior to the testator's death” … . Picard v Fish, 2016 NY Slip Op 04086, 3rd Dept 5-26-16

CIVIL PROCEDURE (EXECUTOR-STATUS (PRIOR TO DEATH) AND FAMILIAL RELATIONSHIP DO NOT CREATE A FIDUCIARY RELATIONSHIP, EQUITABLE ESTOPPEL SHOULD NOT HAVE BEEN INVOKED TO BAR A TIME-BARRED CLAIM)/EQUITABLE ESTOPPEL (EXECUTOR-STATUS (PRIOR TO DEATH) AND FAMILIAL RELATIONSHIP DO NOT CREATE A FIDUCIARY RELATIONSHIP, EQUITABLE ESTOPPEL SHOULD NOT HAVE BEEN INVOKED TO BAR A TIME-BARRED CLAIM)/TRUSTS AND ESTATES (EXECUTOR-STATUS (PRIOR TO DEATH) AND FAMILIAL RELATIONSHIP DO NOT CREATE A FIDUCIARY RELATIONSHIP, EQUITABLE ESTOPPEL SHOULD NOT HAVE BEEN INVOKED TO BAR A TIME-BARRED CLAIM)

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INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiffs' motion for leave to file a late notice of claim against defendant school district should have been denied. Although infancy tolls the one-year-ninety-days statute of limitations, it does not toll the 90-day period for filing a notice of claim. The motion for leave to file a late notice was not made until more than four years after the expiration of the 90-day filing period:

Here, the plaintiffs failed to establish that the defendant had “acquired actual knowledge of the essential facts constituting the claim” within 90 days of the accident or a reasonable time thereafter (General Municipal Law § 50-e[5]). The school's principal prepared an accident claim form on the day of the accident, and the infant plaintiff's parents completed the medical claim portion of that form a couple of weeks after the accident. Contrary to the plaintiffs' contention, this form, which merely indicated that the infant plaintiff lost his left front tooth and part of his right front tooth when he hit his mouth on the gymnasium floor in an attempt to “duck from a ball” during physical education class, did not establish that the defendant had timely, actual knowledge of the essential facts underlying the claims that it was negligent in supervising the students, in failing to provide a safe play area, and in allowing the infant plaintiff to engage in an inappropriate activity … . Accordingly, the defendant had no reason to conduct a prompt investigation into the purported negligent supervision and alleged unsafe condition of the gymnasium floor … . Horn v Bellmore Union Free Sch. Dist., 2016 NY Slip Op 04021, 2nd Dept 5-25-16

NEGLIGENCE (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/CIVIL PROCEDURE (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/EDUCATION-SCHOOL LAW (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)/MUNICIPAL LAW (INFANCY DOES NOT TOLL 90-DAY PERIOD FOR FILING A NOTICE OF CLAIM, MOTION FOR LEAVE FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED)

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TAKING TIMELY STEPS TO PROCEED TO JUDGMENT AFTER DEFAULT IN FORECLOSURE ACTION SUFFICIENT TO AVOID DISMISSAL OF COMPLAINT AS ABANDONED.

The Second Department, reversing Supreme Court, determined plaintiff-bank's taking timely steps to proceed to judgment after a default in this foreclosure action were sufficient to avoid dismissal of the complaint as abandoned:

CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” However, “[i]t is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c)” … . Rather, it is enough that the plaintiff timely takes “the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference” to establish that it “initiated proceedings for entry of a judgment within one year of the default” for the purposes of satisfying CPLR 3215(c) … . “[A]s long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal” … . This is so even where, as here, the timely motion for an order of reference was subsequently withdrawn … . HSBC Bank USA, N.A. v Traore, 2016 NY Slip Op 04022, 2nd Dept 5-25-16

CIVIL PROCEDURE (TAKING TIMELY STEPS TO PROCEED TO JUDGMENT AFTER DEFAULT IN FORECLOSURE ACTION SUFFICIENT TO AVOID DISMISSAL OF COMPLAINT AS ABANDONED)/FORECLOSURE (TAKING TIMELY STEPS TO PROCEED TO JUDGMENT AFTER DEFAULT IN FORECLOSURE ACTION SUFFICIENT TO AVOID DISMISSAL OF COMPLAINT AS ABANDONED)/ABANDONMENT OF ACTION (TAKING TIMELY STEPS TO PROCEED TO JUDGMENT AFTER DEFAULT IN FORECLOSURE ACTION SUFFICIENT TO AVOID DISMISSAL OF COMPLAINT AS ABANDONED)

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PLAINTIFF’S SISTER WRONGLY IMPEACHED BY QUESTIONS ABOUT HER CRIMINAL HISTORY AND BAD ACTS, TRIAL JUDGE SHOULD HAVE SET ASIDE THE VERDICT.

The Second Department determined the verdict in this personal injury case should have been set aside because of an evidentiary error. The injured plaintiff’s sister, who was also her guardian, was wrongly questioned about her criminal history and bad acts:

Pursuant to CPLR 4404(a), a court “may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence [or] in the interest of justice” (CPLR 4404[a]…). “A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . In considering such a motion, “[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected . . . and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'” … .

Here, the Supreme Court erred in permitting the defendants to impeach the credibility of the injured plaintiff’s sister on direct examination by questioning her with respect to her criminal history and prior bad acts … . “Indeed, it is well established that an adverse party or a hostile witness may not be impeached on direct examination by evidence of his or her criminal conviction[s]” … . Morency v Horizon Transp. Servs., Inc., 2016 NY Slip Op 04029, 2nd Dept 5-25-16

 

CIVIL PROCEDURE (SET ASIDE VERDICT, PLAINTIFF’S SISTER WRONGLY IMPEACHED BY QUESTIONS ABOUT HER CRIMINAL HISTORY AND BAD ACTS, TRIAL JUDGE SHOULD HAVE SET ASIDE THE VERDICT)/EVIDENCE (PLAINTIFF’S SISTER WRONGLY IMPEACHED BY QUESTIONS ABOUT HER CRIMINAL HISTORY AND BAD ACTS, TRIAL JUDGE SHOULD HAVE SET ASIDE THE VERDICT)/VERDICT, MOTION TO SET ASIDE (PLAINTIFF’S SISTER WRONGLY IMPEACHED BY QUESTIONS ABOUT HER CRIMINAL HISTORY AND BAD ACTS, TRIAL JUDGE SHOULD HAVE SET ASIDE THE VERDICT)

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BURDENS OF PROOF FOR MOTION TO CHANGE VENUE EXPLAINED; CRITERIA FOR RAISING AN ISSUE FOR THE FIRST TIME ON APPEAL EXPLAINED.

The Second Department determined defendant did not meet its burden on its motion to change venue. The court noted that, although one of the arguments in opposition was not raised below, the argument met the criteria for an issue which may be raised for the first time on appeal. The court further noted that reply papers could not be used to meet the defendant's burden. The relevant law was explained as follows:

” [T]o prevail on a motion pursuant to CPLR 510(1) to change venue, a defendant must show that the plaintiff's choice of venue is improper, and also that the defendant's choice of venue is proper'” … . “Only if a defendant meets this burden is the plaintiff required to establish, in opposition, that the venue selected was proper” … . * * *

Although the plaintiff did not point out [the] deficiency in proof in opposing the motion to transfer venue, ” questions of law which appear on the face of the record and which could not have been avoided if raised at the proper juncture may be raised for the first time on appeal'” … . Pinos v Clinton Cafe & Deli, Inc., 2016 NY Slip Op 04035, 2nd Dept 5-25-16

CIVIL PROCEDURE (BURDENS OF PROOF FOR MOTION TO CHANGE VENUE EXPLAINED; CRITERIA FOR RAISING AN ISSUE FOR THE FIRST TIME ON APPEAL EXPLAINED)/APPEALS (CIVIL, CRITERIA FOR RAISING AN ISSUE FOR THE FIRST TIME ON APPEAL EXPLAINED)/VENUE (BURDENS OF PROOF FOR MOTION TO CHANGE VENUE EXPLAINED)

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