You are here: / Civil Procedure
,

A CONTRACTUAL NEW YORK CHOICE OF LAW PROVISION OVERRIDES AN OTHERWISE APPLICABLE NEW YORK STATUTORY CHOICE OF LAW PROVISION WHICH WOULD REQUIRE THE APPLICATION OF ANOTHER STATE’S LAW.

In a full-fledged opinion by Judge Stein, over an extensive dissenting opinion by Judge Abdus-Salaam (in which Judge Rivera concurred), the Court of Appeals determined the New York choice of law provision in decedent's retirement and death benefit plans required the application of New York law, even though, under the facts, an otherwise applicable New York statutory choice of law provision required the application of Colorado law.  Decedent was enrolled in both retirement and death benefit plans. He made his wife the beneficiary of the plans and his wife's father the contingent beneficiary. Decedent and his wife divorced and decedent died in Colorado. If the otherwise applicable New York statutory choice of law provision applied, the effect of the divorce would be determined by Colorado law (where decedent died). Under Colorado law, the divorce removed both decedent's wife and her father as beneficiaries of the plans. Under New York law only the wife was removed and her father remained.  The choice of law provision in the retirement and death benefit plans was deemed to supersede the otherwise applicable New York statutory choice of law provision (which would have required analysis under Colorado law):

… [W]e should apply the most reasonable interpretation of the contract language that effectuates the parties' intended and expressed choice of law … . To do otherwise — by applying New York's statutory conflict-of-laws principles, even if doing so results in the application of the substantive law of another state — would contravene the primary purpose of including a choice-of-law provision in a contract — namely, to avoid a conflict-of-laws analysis and its associated time and expense. Such an interpretation would also interfere with, and ignore, the parties' intent, contrary to the basic tenets of contract interpretation. Ministers & Missionaries Benefit Bd. v Snow, 2015 NY Slip Op 09186, CtApp 12-15-15

CIVIL PROCEDURE (CONTRACTUAL CHOICE OF LAW PROVISION OVERRIDES STATUTORY CHOICE OF LAW PROVISION)/CONTRACT LAW (CONTRACTUAL CHOICE OF LAW PROVISION OVERRIDES STATUTORY CHOICE OF LAW PROVISON)/CHOICE OF LAW (CONTRACTUAL PROVISION OVERRIDES STATUTORY PROVISION)/CONFLICT OF LAWS (CONTRACTUAL CHOICE OF LAW PROVISION OVERRIDES STATUTORY CHOICE OF LAW PROVISION)

,

SANCTIONS FOR NEGLIGENT SPOLIATION OF EVIDENCE REQUIRE A SHOWING OF THE RELEVANCE OF THE LOST EVIDENCE; AN ADVERSE INFERENCE JURY INSTRUCTION MAY BE APPROPRIATE FOR NEGLIGENT SPOLIATION.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over an extensive dissenting opinion by Judge Stein (in which Judge Rivera concurred), determined the record supported a finding that defendant was negligent in failing to preserve electronic evidence and remitted the matter to Supreme Court for a determination of the relevance of the lost evidence and a sanction, if deemed appropriate. The court noted that, even where spoliation is the result of simple negligence, an adverse inference jury instruction may be appropriate. The court explained the applicable law as follows:

A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a “culpable state of mind,” and “that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” … . Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed … . On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party’s claim or defense … .

On this appeal, we are asked to decide whether the Appellate Division erred in reversing an order of Supreme Court that imposed a spoliation sanction on the defendants. We hold that it did, and remand the matter to the trial court for a determination as to whether the evidence, which the Appellate Division found to be negligently destroyed, was relevant to the claims asserted against defendants and for the imposition of an appropriate sanction, should the trial court deem, in its discretion, that a sanction is warranted. * * *

… [A]dverse inference charges have been found to be appropriate even in situations where the evidence has been found to have been negligently destroyed … . Pegasus Aviation I, Inc. v Varig Logistica S.A., 2015 NY Slip Op 09187, CtApp 12-15-15

CIVIL PROCEDURE (NEGLIGENT SPOLIATION OF EVIDENCE, RELEVANCE MUST BE DEMONSTRATED)/EVIDENCE (NEGLIGENT SPOLIATION OF EVIDENCE, RELEVANCE MUST BE DEMONSTRATED)/SPOLIATION OF EVIDENCE (NEGLIGENT SPOLIATION, RELEVANCE MUST BE DEMONSTRATED)/SPOLIATION OF EVIDENCE (ADVERSE INFERENCE JURY INSTRUCTION)/ADVERSE INFERENCE JURY INSTRUCTION (NEGLIGENT SPOLIATION OF EVIDENCE)/JURY INSTRUCTIONS (ADVERSE INFERENCE, NEGLIGENT SPOLIATION OF EVIDENCE)

PLAINTIFF, WHO SOLD GOODS TO NEW JERSEY COMPANIES FOR WHICH IT WAS NOT FULLY PAID, FAILED TO DEMONSTRATE NEW YORK JURISDICTION; FACTS PLED DID NOT DEMONSTRATE LONG-ARM JURISDICTION; SITUS OF THE INJURY WAS NEW JERSEY, NOT NEW YORK.

The First Department determined plaintiff did not demonstrate New York jurisdiction under the long arm statute (CPLR 302(a)(1) or under the statute imposing jurisdiction based on an out-of-state tort causing injury in New York (CPLR 302(a)(3)(ii)). Plaintiff allegedly sold goods to two New Jersey companies for which plaintiff was not fully paid.  The assets of the two New Jersey companies were allegedly sold to a European company. Plaintiff alleged the transfer to the European company was a fraudulent conveyance. In finding both jurisdictional arguments lacking, the court wrote:

… [T]he purchase and sale transaction, whereby this in-state plaintiff shipped goods to the out-of-state defendants, who then failed to fully pay for the goods, is “[t]he classic instance in which personal jurisdiction is found not to exist” … . Plaintiff has offered nothing but conclusory assertions to support long-arm jurisdiction under CPLR 302(a)(1). * * *

The court also properly rejected plaintiff’s assertion of jurisdiction under CPLR 302(a)(3)(ii), for an alleged tort committed without the state causing injury within the state. As to the tort committed without the state, plaintiff points to the alleged fraudulent conveyance …. This fails, however, because the “the situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt” … . Thus, this alleged tortious act did not cause injury within New York, but in New Jersey. Plaintiff has also offered nothing but conclusory allegations that any defendant “derives substantial revenue from interstate or international commerce,” as required for jurisdiction under CPLR 302(a)(3)(ii). Cotia (USA) Ltd. v Lynn Steel Corp., 2015 NY Slip Op 09169, 1st Dept 12-10-15

CIVIL PROCEDURE (LONG-ARM JURISDICTION NOT DEMONSTRATED, SALE OF GOODS TO COMPANIES IN NEW JERSEY)/CIVIL PROCEDURE (JURISDICTION BASED UPON SITUS OF THE INJURY NOT DEMONSTRATED)/JURISDICTION (LONG-ARM JURISDICTION AND JURISDICTION BASED UPON SITUS OF THE INJURY NOT DEMONSTRATED)/LONG-ARM JURISDICTION (SALE OF GOODS TO OUT-OF-STATE BUYER NOT SUFFICIENT)/SITUS OF INJURY JURISDICTION (SITUS OF INJURY FROM ALLEGED FRAUDULENT CONVEYANCE WAS NOT NEW YORK)

,

USE OF MOTION TO REARGUE TO RAISE NEW ISSUES REQUIRED REVERSAL.

The Third Department reversed based upon the improper use of a motion to reargue, despite the defendants’ failure to raise the issue. The motion was improperly based upon a theory not raised in the original motion:

 “[A] motion to reargue is not available to advance a new theory of liability, or to present arguments different from those originally asserted” … , but plaintiffs did just that in their motion for reargument, arguing that the installation of the original “[s]ewer [l]ine was no longer an issue” and that the alleged trespass caused by the new sewer line justified a grant of summary judgment. Supreme Court accordingly abused its discretion in granting reargument based upon the presence of the new sewer line, a claim that was not raised by plaintiffs in either their original motion for summary judgment or their complaint … . Wasson v Bond, 2015 NY Slip Op 08900, 3rd Dept 12-3-15

CIVIL PROCEDURE (MOTION TO REARGUE, IMPROPER USE OF MOTION REQUIRED REVERSAL)/REARGUE, MOTION TO (IMPROPER USE OF MOTION TO REARGUE REQUIRED REVERSAL)/APPEALS (IMPROPER USE OF MOTION TO REARGUE REQUIRED REVERSAL DESPITE FAILURE TO RAISE THE ISSUE)

, ,

BECAUSE THE GAS WELL TO WHICH PLAINTIFFS OBJECTED MAY NEVER BE CONSTRUCTED, THE DECLARATORY JUDGMENT ACTION DID NOT PRESENT A JUSTICIABLE CONTROVERSY.

The Third Department determined plaintiff coalition’s declaratory judgment action against the New York Department of Environmental Conservation (DEC) was properly dismissed. The action contended that the DEC’s response to a comment submitted by plaintiff coalition (re; a gas-well permit under State Environmental Quality Review Act [SEQRA] review) constituted an unlawful extension of the common law rule of capture and effectuated a trespass on the land owned by a coalition member. The Third Department determined, because the comment period for the relevant rule-making had passed and the relevant rules had not been adopted, and because whether or not the gas-well permit will be issued has not been determined, the declaratory judgment action did not raise a  justiciable controversy:

Assuming, without deciding, that the statewide ban on hydrofracking does not render all of plaintiffs’ claims moot and, further, that plaintiffs each have standing to maintain this declaratory judgment action, Supreme Court nonetheless properly granted defendant’s motion to dismiss the complaint. As this Court recently reiterated, “[i]n order to warrant a determination of the merits of a cause of action, the party requesting relief must state a justiciable claim — one that is capable of review and redress by the courts at the time it is brought for review. A claim is justiciable, in turn, when two requirements are met: first, that the plaintiff has an interest sufficient to constitute standing to maintain the action and, second, that the underlying controversy involves present, rather than hypothetical, contingent or remote, prejudice to the plaintiff” … . Again, even assuming that plaintiffs have satisfied the standing element of this equation, the fact remains that their entire complaint is predicated upon either (1) defendant’s allegedly improper response to a comment made by the Coalition regarding proposed draft regulations that ultimately were not adopted, or (2) the theoretical consequences of a well bore or fluid fracture penetrating the subsurface of [a plaintiff’s] property. Community Watersheds Clear Water Coalition, Inc. v New York State Dept. of Envtl. Conservation, 2015 NY Slip Op 08890, 3rd Dept 12-3-15

ENVIRONMENTAL LAW (NO JUSTICIABLE CONTROVERSY, POTENTIAL ISSUANCE OF GAS DRILLING PERMIT)/CIVIL PROCEDURE (NO JUSTICIABLE CONTROVERSY, POTENTIAL ISSUANCE OF GAS DRILLING PERMIT)/HYDROFRACKING BAN (NO JUSTICIABLE CONTROVERSY, POTENTIAL ISSUANCE OF GAS DRILLING PERMIT)/NATURAL GAS (NO JUSTICIABLE CONTROVERSY, POTENTIAL ISSUANCE OF GAS DRILLING PERMIT)

DEFAULT JUDGMENT GIVEN RES JUDICATA EFFECT.

The Second Department, in affirming a cross-motion for summary judgment, explained that plaintiffs’ action was precluded by the doctrine of res judicata based upon a default judgment taken against them. Plaintiffs did not move to vacate the default judgment. Therefore the judgment precluded plaintiffs’ action as to any matters actually litigated and any matters that might have been litigated in the prior action:

“[R]es judicata, or claim preclusion, bars successive litigation based upon the same transaction or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action, or in privity with a party who was” … . “The doctrine is applicable to an order or judgment taken by default which has not been vacated, as well as to issues which were or could have been raised in the prior proceeding” … . Here, an order was issued in a declaratory judgment action granting the unopposed motion of the plaintiffs therein for leave to enter a default judgment against, inter alia, the appellants, who were named defendants in that action, upon their failure to appear or answer the complaint in that action. That order is conclusive for res judicata purposes as to any matters actually litigated or that might have been litigated in that action, and precludes the appellants from maintaining this action … . Albanez v Charles, 2015 NY Slip Op 08795,  2nd Dept 12-2-15

CIVIL PROCEDURE (DEFAULT JUDGMENT HAS RES JUDICATA EFFECT)/RES JUDICATA (DEFAULT JUDGMENT HAS RES JUDICATA EFFECT)/DEFAULT JUDGMENT (GIVEN RES JUDICATA EFFECT)

Video Recording of Independent Medical Exam (IME) Should Be Disclosed Prior to Trial; Court’s Permission to Record IME Is Required; Request for Another IME by a Different Doctor Should Have Been Granted

The Second Department, in a full-fledged opinion by Justice Roman, determined: (1) a video of an independent medical exam (IME) surrepticiously made by plaintiff’s attorney should have been turned over to the defense prior to trial; (2) the court’s permission for recording an IME is required; and (3) under the unique circumstances of this case, the request for an IME by a different doctor should have been granted. The opinion is very long and fact-specific and cannot be fairly summarized here. With respect to the additional IME and the IME video, the Second Department wrote:

Pursuant to CPLR 3121(a), if a plaintiff’s physical condition is in controversy, the defendant may require the plaintiff to submit to a physical examination … . There is no restriction in CPLR 3121 limiting the number of examinations to which a party may be subjected, and a subsequent examination is permissible provided the party seeking the examination demonstrates the necessity for it … . Furthermore, after a note of issue has been filed, as in this case, a defendant must demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify an additional examination … .

In the present case, unusual and unanticipated circumstances warranting a new IME abound. Foremost among them is Dr. Katz’s unavailability to the appellants as a witness at a retrial, due to his refusal to appear voluntarily, which, in turn, resulted from the Supreme Court’s repeated accusation that Dr. Katz “lied” or committed “perjury” at the first damages trial. These extraordinary circumstances were set in motion when the plaintiff’s attorney chose to surreptitiously videotape Dr. Katz’s second IME of the plaintiff, and chose to withhold that recording from defense counsel despite the requirements of CPLR 3101(i). * * *

… [T]he failure of plaintiff’s counsel to seek and obtain the Supreme Court’s permission to videotape the second IME was, by itself, a sufficient reason to prohibit the use of the recording at trial. Further compounding the improper conduct of plaintiff’s counsel in making the recording without procuring the court’s approval in advance was the failure to disclose the recording to defense counsel prior to trial, which was a clear violation of CPLR 3101. Subsection (a) of that statute provides that: “There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party, or the officer, director, member, agent or employee of a party” (CPLR 3101[a] [emphasis added]). Subsection (i) provides, in relevant part, as follows:

“In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section. There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use” (CPLR 3101[i]). Bermejo v New York City Health & Hosps. Corp., 2015 NY Slip Op 08374, 2nd Dept 11-18-15

 

,

Supreme Court Should Not Have Deemed a Verified Claim to Be a Summons and Complaint Under the Authority of CPLR 2001 (Allowing Correction of Mistakes in the Method of Filing)

Reversing Supreme Court, the Fourth Department determined that a verified claim filed by the plaintiff should not have been deemed a summons and complaint pursuant to CPLR 2001 (which allows correction or clarification of a mistake in the method of filing):

Plaintiff filed a verified claim in this action and, before answering, defendant filed a CPLR 3211 motion to dismiss, contending that plaintiff had “yet to file a Summons or a Complaint” and that “a complete failure to file is a jurisdictional defect.” Relying upon CPLR 2001, Supreme Court deemed the claim to be a complaint and excused the failure to file a summons as “an irregularity that shall be disregarded in this case.” That was error. We agree with defendant that CPLR 2001 does not permit a court to disregard the complete failure to file a summons, i.e., an initial paper necessary to commence an action … . As recognized by the Court of Appeals in quoting from the Senate Introducer’s Memorandum in support of the bill that amended CPLR 2001, the statute may be invoked as a basis to correct or clarify ” a mistake in the method of filing, AS OPPOSED TO A MISTAKE IN WHAT IS FILED’ “… . Fox v City of Utica, 2015 NY Slip Op 08267, 4th Dept 11-13-15

 

,

Criteria for Mandamus to Compel Explained (Not Met Here)

The Second Department determined the county personnel director’s ruling that community college employees would no longer be eligible for promotions to county jobs was rationally based on the terms of an agreement between the county and the college. In finding that the “mandamus to compel” petition was properly denied, the court explained the relevant criteria:

” The extraordinary remedy of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief has been demonstrated'” … . “A discretionary act involve[s] the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'” … . Since the petitioner sought to compel conduct clearly involving the application of … discretion and judgment …, the remedy of mandamus is not available. Matter of Suffolk County Assn. of Mun. Empls., Inc. v Levy, 2015 NY Slip Op 08181, 2nd Dept 11-12-15

 

Criteria for a Motion to Dismiss Based Upon Documentary Evidence and a Motion to Dismiss Supported by Submitted Evidence Explained (Not Met Here)

In finding defendant’s motion to dismiss the complaint was properly denied, the Second Department explained the criteria for a motion to dismiss based upon documentary evidence, and for a motion to dismiss accompanied by the submission of evidence. The court noted that affidavits, deposition testimony and letters do not constitute “documentary evidence” in this context:

A party may move for judgment dismissing one or more causes of action asserted against it under CPLR 3211(a)(1) “on the ground that . . . a defense is founded upon documentary evidence.” A motion on this ground, however, “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . “Neither affidavits, deposition testimony, nor letters are considered documentary evidence’ within the intendment of CPLR 3211(a)(1)” … . …

… A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) … . Nonetheless, it must be kept in mind that a CPLR 3211(a)(7) motion is not a motion for summary judgment unless the court elects to so treat it under CPLR 3211(c), after giving adequate notice to the parties … . Moreover, “[w]here evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff 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” … . Shofel v DaGrossa, 2015 NY Slip Op 08156, 2nd Dept 11-12-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy