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SECOND SUMMARY JUDGMENT MOTION PROPERLY ENTERTAINED; ABSENCE OF SPECIAL RELATIONSHIP REQUIRED DISMISSAL OF NEGLIGENCE ACTION AGAINST POLICE.

In finding the defendant-city’s motion for summary judgment should have been granted, the Second Department noted that, although successive summary judgment motions are disfavored, the defendant-city’s second motion was properly entertained. The complaint alleged negligence on the part of the police stemming from an attack on her by her husband and the shooting of her husband by the police. Prior to the attack and the shooting, plaintiff had gone to the police station seeking protection but was sent home. The negligence action against the city/police was dismissed on governmental immunity grounds because no “special relationship” between plaintiff and the police had been demonstrated:

 

That branch of the defendants’ cross motion which was for summary judgment should have been granted. Although successive motions for summary judgment are disfavored, a subsequent summary judgment motion may be properly entertained when it is substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts … .

Generally, “a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection” … . When a cause of action alleging negligence is asserted against a municipality, and the municipality is exercising a governmental function, the plaintiff must first demonstrate that the municipality owed a special duty to the injured person … . A special duty is “a duty to exercise reasonable care toward the plaintiff,” and “is born of a special relationship between the plaintiff and the governmental entity” … . The elements required to establish a special relationship are: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the police did not assume an affirmative duty to act on Dawes’ behalf … . Graham v City of New York, 2016 NY Slip Op 00932, 2nd Dept 2-10-16

 

NEGLIGENCE (NO SPECIAL RELATIONSHIP, NEGLIGENCE COMPLAINT AGAINST POLICE DISMISSED)/GOVERNMENTAL IMMUNITY (NO SPECIAL RELATIONSHIP, NEGLIGENCE COMPLAINT AGAINST POLICE DISMISSED)/MUNICIPAL LAW (NO SPECIAL RELATIONSHIP, NEGLIGENCE COMPLAINT AGAINST POLICE DISMISSED)/POLICE (NO SPECIAL RELATIONSHIP, NEGLIGENCE COMPLAINT AGAINST POLICE DISMISSED)/CIVIL PROCEDURE (SECOND SUMMARY JUDGMENT MOTION PROPERLY CONSIDERED)/SUMMARY JUDGMENT (SECOND MOTION FOR SUMMARY JUDGMENT PROPERLY CONSIDERED)/CIVIL PROCEDURE (SECOND SUMMARY JUDGMENT MOTION PROPERLY CONSIDERED)

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AFFIDAVITS IDENTIFYING THE CAUSE OF PLAINTIFF’S FALL, SUBMITTED IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, SHOULD NOT HAVE BEEN REJECTED ON CREDIBILITY GROUNDS; IN THE CONTEXT OF SUMMARY JUDGMENT, THE COURT’S FUNCTION DOES NOT INCLUDE THE ASSESSMENT OF CREDIBILITY.

In this slip and fall case, the Second Department determined Supreme Court should not have rejected affidavits submitted by the plaintiff in opposition to a summary judgment motion because of inconsistencies. The affidavits were from witnesses who saw plaintiff fall and who were able to identify the cause of plaintiff’s fall. In the context of a summary judgment motion, assessing credibility is not the court’s function:

 

Here, the defendant established, prima facie, his entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, which demonstrated that she was unable to identify the cause of her fall … . However, in opposition to the defendant’s prima facie showing on this ground, the plaintiff raised a triable issue of fact. The plaintiff’s submissions included affidavits from two individuals who witnessed the accident and identified the cause of her fall … . The Supreme Court erred in rejecting these two eyewitness affidavits on the ground that they gave inconsistent accounts of the accident. “It is not the court’s function on a motion for summary judgment to assess credibility” …, and any inconsistencies in the affidavits of the two eyewitnesses did not render them both incredible as a matter of law, but rather, raised issues of credibility to be resolved by the factfinder … . McRae v Venuto, 2016 NY Slip Op 00944, 2nd Dept 2-10-16

 

NEGLIGENCE (AFFIDAVITS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN REJECTED ON CREDIBILITY GROUNDS)/CIVIL PROCEDURE (AFFIDAVITS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN REJECTED ON CREDIBILITY GROUNDS)/EVIDENCE (AFFIDAVITS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN REJECTED ON CREDIBILITY GROUNDS)

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COURT SHOULD NOT HAVE REJECTED NEGOTIATED STIPULATION SETTLING THE ACTION WITH ONE PLAINTIFF AND PROCEEDING TO TRIAL WITH THE OTHER PLAINTIFF.

The Second Department determined Supreme Court should not have rejected a stipulation which settled the personal injury action with respect to one of the plaintiffs and allowed the matter to proceed to trial with respect to another plaintiff. The Second Department explained the deference which should be accorded a negotiated stipulation:

 

” [P]arties to a civil dispute are free to chart their own litigation course and, in so doing, they may stipulate away statutory, and even constitutional rights'” … . The subject stipulation of settlement was made after negotiations among counsel for the respective parties, and the litigants agreed to its terms. In consenting to the stipulation, these parties fashioned the basis upon which their particular controversy would be resolved by providing for the termination of the action with respect to [one plaintiff] and the continuation of the action with respect [the other]… . Astudillo v MV Transp., Inc., 2016 NY Slip Op 00915, 2nd Dept 2-10-16

 

CIVIL PROCEDURE (NEGOTIATED STIPULATION SHOULD NOT HAVE BEEN REJECTED BY THE COURT)/STIPULATION (NEGOTIATED STIPULATION SHOULD NOT HAVE BEEN REJECTED BY THE COURT)/NEGLIGENCE (NEGOTIATED STIPULATION SHOULD NOT HAVE BEEN REJECTED BY THE COURT)

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COMPLAINT NAMING DECEDENT, RATHER THAN DECEDENT’S REPRESENTATIVE, AS A DEFENDANT WAS A NULLITY; THE DEFECT COULD NOT BE REMEDIED BY AMENDING THE COMPLAINT.

The Second Department determined plaintiff’s action should have been dismissed as a nullity. The defendant in this car-accident action had died before the complaint was filed. Therefore the complaint was a nullity. The defect could not be remedied by amending the complaint to name the decedent’s estate:

In this action to recover damages for alleged injuries arising from a vehicular accident, the plaintiff did not commence this action against the operator of the offending vehicle until several months after the operator died. Since “[a] party may not commence a legal action or proceeding against a dead person” … , the action was a nullity from its inception, and the plaintiff was instead required to commence an action against the personal representative of the decedent’s estate … . Moreover, the plaintiff’s attempt to amend the caption of the void complaint to designate the decedent’s estate as the defendant was invalid … . The plaintiff never properly commenced an action against the decedent’s personal representative, and the time within which to do so had expired prior to the defendant’s motion for summary judgment. Krysa v Estate of Qyra, 2016 NY Slip Op 00940, 2nd Dept 2-10-16

CIVIL PROCEDURE (COMPLAINT NAMING DECEDENT RATHER THAN DECEDENT’S REPRESENTATIVE AS A DEFENDANT WAS A NULLITY AND THE DEFECT COULD NOT BE REMEDIED BY AMENDING THE COMPLAINT)/TRUSTS AND ESTATES (COMPLAINT NAMING DECEDENT RATHER THAN DECEDENT’S REPRESENTATIVE AS A DEFENDANT WAS A NULLITY AND THE DEFECT COULD NOT BE REMEDIED BY AMENDING THE COMPLAINT)

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DEFENDANT’S MOTION TO CHANGE VENUE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED.

The Second Department determined defendant’s motion for change of venue should have been granted. The court noted that the sole residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation:

 

“[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” … . The venue of an action is proper in the county in which any of the parties resided at the time of commencement (see CPLR 503[a]…). “[T]he sole residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation, despite its maintenance of an office or facility in another county” … . Matoszko v Kielmanowicz, 2016 NY Slip Op 00942, 2nd Dept 2-10-16

 

CIVIL PROCEDURE (MOTION TO CHANGE VENUE SHOULD HAVE BEEN GRANTED)/CORPORATION LAW (RESIDENCE OF DOMESTIC CORPORATION FOR VENUE PURPOSES IS COUNTY DESIGNATED ON CERTIFICATE OF INCORPORATION)/VENUE (MOTION TO CHANGE VENUE SHOULD HAVE BEEN GRANTED)/VENUE (RESIDENCE OF DOMESTIC CORPORATION FOR VENUE PURPOSES IS COUNTY DESIGNATED ON CERTIFICATE OF INCORPORATION)

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MOTIONS TO SET ASIDE THE DEFENSE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED.

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motions to set aside the verdict as against the weight of the evidence should not have been granted. The issue was whether plaintiffs established “serious injury” in a car accident. The Fourth Department explained the criteria for setting aside a jury verdict:

 

It is well established that ” [a] verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence’ ” … . “Although [t]hat determination is addressed to the sound discretion of the trial court, . . . if the verdict is one that reasonable persons could have rendered after receiving conflicting evidence, the court should not substitute its judgment for that of the jury” … . Furthermore, “it is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses” … .

Here, we conclude that the court erred in setting aside the jury’s verdict inasmuch as the jury was entitled to credit the testimony of defendant’s witnesses and reject the testimony of plaintiffs’ witnesses … . Even assuming, arguendo, that plaintiffs established a prima facie case of serious injury, we nevertheless conclude that the jury was entitled to reject the opinions of plaintiffs’ physicians … . The jury’s interpretation of the evidence was not ” palpably irrational’ ” … , or ” palpably wrong’ ” … , and the court therefore erred in granting plaintiffs’ motions. McMillian v Burden, 2016 NY Slip Op 00851, 4th Dept 2-5-16

 

CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED)/EVIDENCE (CIVIL, MOTION TO SET ASIDE VERDICT SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED)/VERDICT (CIVIL, MOTION TO SET ASIDE SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED)

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FRAUD CAUSE OF ACTION STEMMING FROM THE SIGNING OF A DOCUMENT WITHOUT READING IT DISMISSED AS TIME BARRED; RELEVANT STATUTES OF LIMITATIONS AND BURDENS OF PROOF EXPLAINED.

The Second Department determined plaintiff’s cause of action for fraud was time-barred because it accrued when she signed the allegedly fraudulent document without reading it. The court explained the two statutes of limitations which apply to fraud and the related burdens of proof in a motion to dismiss:

 

An action alleging fraud must be commenced within “the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it” (CPLR 213[8]; see CPLR 203[g]…). “On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired” … . “The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period”… .

Where a plaintiff relies upon the two-year discovery exception to the six-year limitations period, ” [t]he burden of establishing that the fraud could not have been discovered prior to the two-year period before the commencement of the action rests on the plaintiff who seeks the benefit of the exception'” * * *  … [A]lthough “mere suspicion” will not substitute for knowledge of the fraudulent act …, a plaintiff may not ” shut his [or her] eyes to facts which call for investigation … .

Here, the gravamen of the plaintiff’s complaint is fraud in the factum, that she was induced to sign documents without being advised of their contents … . However, “[a] party who signs a document without any valid excuse for not having read it is conclusively bound’ by its terms” … . In this case, the plaintiff admitted that she neither read nor inquired about the contents of the documents upon which she relies to establish the fraud before she signed them, yet she failed to proffer any valid excuse for her failure to do so. Under these circumstances, the plaintiff is conclusively presumed to have agreed to the terms of those documents … and, accordingly, cannot establish that she lacked knowledge from which she could have discovered the alleged fraud with reasonable diligence … . Cannariato v Cannariato, 2016 NY Slip Op 00650, 2nd Dept 2-3-16

 

FRAUD (TWO STATUTES OF LIMITATIONS EXPLAINED)/FRAUD (SIGNING DOCUMENT WITHOUT READING IT)/CONTRACT LAW (SIGNING DOCUMENT WITHOUT READING CONSTITUTES AGREEMENT)/CIVIL PROCEDURE (PROOF BURDENS RE: MOTION TO DISMISS FRAUD CAUSE OF ACTION AS TIME-BARRED)/STATUTES OF LIMITATIONS (FRAUD)

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AIDING AND ABETTING FRAUD CAUSE OF ACTION AGAINST TITLE INSURANCE COMPANY PROPERLY DISMISSED, THE ALLEGATIONS WERE CONCLUSORY WITH NO SUPPORTING DETAIL.

The Second Department determined a petition to set aside a deed was properly dismissed as against the title insurance company (Fidelity). Fidelity issued a policy to the purchaser of real property which was part of an estate. The petition alleged Fidelity aided and abetted fraud, in that the sale of the insured property was done without the consent of the administrator or Surrogate’s Court. The Second Department held that, absent fraud, a third party could not sue Fidelity for negligence and the allegations of aiding and abetting fraud did not meet pleading requirements:

 

“[A] title company hired by one party is not, absent evidence of fraud, collusion, or other special circumstance, subject to suit for negligent performance by one other than the party who contracted for its services” … . Contrary to the administrator’s contention, the petition fails to state a cause of action against Fidelity to recover damages for aiding and abetting fraud … . “To plead a cause of action to recover damages for aiding and abetting fraud,” the pleading “must allege the existence of an underlying fraud, knowledge of the fraud by the aider and abettor, and substantial assistance by the aider and abettor in the achievement of the fraud” … . Here, the petition consists of bare, conclusory allegations, without any supporting detail, which do not meet the specificity requirements of CPLR 3016(b) to sufficiently plead the existence of an underlying fraud, knowledge thereof on the part of Fidelity, or substantial assistance in achievement of the fraud … . Matter of Woodson (Clarke), 2016 NY Slip Op 00698, 2nd Dept 2-3-16

 

FRAUD (CONCLUSORY ALLEGATIONS OF AIDING AND ABETTING FRAUD INSUFFICIENT)/CIVIL PROCEDURE (CONCLUSORY ALLEGATIONS OF AIDING AND ABETTING FRAUD INSUFFICIENT)/REAL ESTATE (TITLE INSURANCE COMPANY HIRED BY ONE PARTY, ABSENT FRAUD, CAN NOT BE SUED FOR NEGLIGENCE BY THIRD PARTY)/TITLE INSURANCE (TITLE INSURANCE COMPANY HIRED BY ONE PARTY, ABSENT FRAUD, CAN NOT BE SUED FOR NEGLIGENCE BY THIRD PARTY)

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CONVERSION, REPLEVIN AND UNJUST ENRICHMENT CAUSES OF ACTION TIME-BARRED, CRITERIA EXPLAINED.

Plaintiff executor sued defendant, Delaine, under conversion, replevin and unjust enrichment theories for artwork which decedent, Arthur, was allegedly entitled to but which decedent never picked up from the warehouse where it was stored. The First Department determined the conversion, replevin and unjust enrichment causes of action were time-barred:

 

Under CPLR 214(3), the statutory period of limitations for conversion and replevin claims is three years from the date of accrual. The date of accrual depends on whether the current possessor is a good faith purchaser or bad faith possessor. An action against a good faith purchaser accrues once the true owner makes a demand and is refused … . This is “because a good-faith purchaser of stolen property commits no wrong, as a matter of substantive law, until he has first been advised of the plaintiff’s claim to possession and given an opportunity to return the chattel” … . By contrast, an action against a bad faith possessor begins to run immediately from the time of wrongful possession, and does not require a demand and refusal … . Thus, “[w]here replevin is sought against the party who converted the property, the action accrues on the date of conversion” … .

Here, plaintiff alleges that Delaine is a wrongful possessor of the Artwork by virtue of her retention thereof in defiance of this Court’s 1993 order. Accordingly, since Delaine was holding the Artwork in bad faith, the demand and return rule does not apply and the three-year limitations period commenced as of the date of the wrongful taking, which occurred when Delaine retained the Artwork after the issuance of our March 18, 1993 order. Thus, plaintiff’s conversion and replevin claims, filed in 2012, are untimely … . * * *

Unjust enrichment occurs when a defendant enjoys a benefit bestowed by the plaintiff without adequately compensating the plaintiff … . The statute of limitations for unjust enrichment generally accrues upon “the occurrence of the alleged wrongful act giving rise to restitution” … . Here, any alleged “enrichment” took place when Delaine retained possession of the Artworks following our 1993 decision. Accordingly, plaintiff’s unjust enrichment claim is also time-barred.  Swain v Brown, 2016 NY Slip Op 00574, 1st Dept 1-28-16

 

CRIMINAL LAW (COURT PROPERLY REFUSED TO DISQUALIFY A JUROR WHO STATED SHE COULD NOT DELIBERATE FURTHER BECAUSE SHE WAS EMOTIONALLY OVERWHELMED)/JURIES (COURT PROPERLY REFUSED TO DISQUALIFY A JUROR WHO STATED SHE COULD NOT DELIBERATE FURTHER BECAUSE SHE WAS EMOTIONALLY OVERWHELMED)/DISQUALIFICATION OF JUROR (COURT PROPERLY REFUSED TO DISQUALIFY A JUROR WHO STATED SHE COULD NOT DELIBERATE FURTHER BECAUSE SHE WAS EMOTIONALLY OVERWHELMED)

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FRAUD CAUSES OF ACTION DID NOT MEET PLEADING REQUIREMENTS.

The Second Department determined a fraud cause of action against defendant Ballard was duplicative of contract causes of action, and another fraud cause of action against other defendants did not meet pleading requirements. The court explained the applicable law:

 

… [T]he alleged misrepresentations set forth in the causes of action alleging fraud against Ballard … are not sufficiently distinct from the claims that Ballard breached that contract so as to constitute separate causes of action … . Not only did the fraud causes of action asserted against Ballard arise out of identical circumstances as the causes of action alleging breach of contract, but they were based upon identical allegations, and did not allege that a misrepresentation resulted in any loss independent of the damages allegedly incurred for breach of contract; indeed, the damages sought were identical … . …

A cause of action to recover damages for fraud requires allegations of: (1) a false representation of fact, (2) knowledge of the falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) damages … . Moreover, pursuant to CPLR 3016(b), where a cause of action is based upon fraud or aiding and abetting fraud, the “circumstances constituting the wrong” must be “stated in detail.” Here, inasmuch as the causes of action alleging fraud against [three of the defendants] contained only bare and conclusory allegations, without any supporting detail, they failed to satisfy the requirements of CPLR 3016(b). Doukas v Ballard, 2016 NY Slip Op 00474, 2nd Dept 1-27-16

 

FRAUD (FRAUD CAUSE OF ACTION DUPLICATIVE OF CONTRACT CAUSES OF ACTION)/FRAUD (ALLEGATIONS DID NOT MEET PLEADING REQUIREMENTS)/CONTRACT LAW (FRAUD CAUSE OF ACTION DISMISSED AS DUPLICATIVE OF CONTRACT CAUSES OF ACTION)/CIVIL PROCEDURE (FRAUD ALLEGATIONS DID NOT MEET PLEADING REQUIREMENTS)

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