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POLICE OFFICER’S CAUSES OF ACTION FOR DISABILITY DISCRIMINATION SHOULD HAVE SURVIVED THE MOTION TO DISMISS.

The Fourth Department determined plaintiff police officer had stated causes of action for unlawful discrimination based upon a disability under the Human Rights Law and the federal Rehabilitation Act. Plaintiff was arrested for DWI and entered a rehabilitation program where he was diagnosed as suffering from post-traumatic stress disorder stemming from his work in New York City after the 9-11 attack. Plaintiff was terminated upon completion of the rehabilitation program. The city argued his termination was based on the DWI, but plaintiff alleged other officers, who were not disabled, were not terminated after committing a criminal offense. The Fourth Department noted that when the plaintiff’s and defendant’s arguments are equally supported, plaintiff must prevail in a motion to dismiss:

 

Plaintiff sufficiently stated a cause of action for disability discrimination under the Human Rights Law by alleging that: he has a disability and is therefore a member of a protected class; he is qualified for his position; he suffered an adverse employment action, i.e., termination of his employment; and the termination occurred under circumstances giving rise to an inference of discrimination … . Similarly, plaintiff sufficiently stated a cause of action for discriminatory termination under the Rehabilitation Act by alleging that: “(1) he has a disability; (2) he is otherwise qualified to perform the job; (3) he was terminated solely because of his disability; and (4) the program or activity receives federal funds” … . …

In support of those causes of action, plaintiff alleged that the City did not terminate the employment of two nondisabled employees after they were arrested for criminal misconduct, thus raising an inference that his termination was based upon his disability. The court stated in its decision that plaintiff’s allegations “equally support” the conclusions that those two employees and plaintiff were similarly situated, and that they were not similarly situated. On the motion to dismiss pursuant to CPLR 3211 (a) (7), however, facts that equally support opposing inferences must be resolved in plaintiff’s favor … . Regan v City of Geneva, 2016 NY Slip Op 01101, 4th Dept 2-11-16

 

EMPLOYMENT LAW (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/HUMAN RIGHTS LAW (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/REHABILITATION ACT (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/CIVIL PROCEDURE (WHEN THE ALLEGATIONS OF BOTH SIDES ARE EQUALLY SUPPORTED, PLAINTIFF MUST PREVAIL IN A MOTION TO DISMISS)/MUNICIPAL LAW (POLICE OFFICERS CAUSES OF ACTION FOR DISABILITY [PTSD] DISCRIMINATION SHOULD HAVE SURVIVED MOTION TO DISMISS)POLICE OFFICERS (OFFICER’S CAUSES OF ACTION FOR DISABILITY [PTSD] DISCRIMINATION SHOULD HAVE SURVIVED MOTION TO DISMISS)

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COURT SHOULD HAVE ALLOWED SUBSTITUTION OF AN AFFIDAVIT OF MERIT PURSUANT TO CPLR 2001; SUA SPONTE DISMISSAL OF COMPLAINT NOT WARRANTED.

The Fourth Department determined Supreme Court should have granted plaintiff’s motion to substitute nunc pro tunc an affidavit of merit and amount due in a foreclosure proceeding. Plaintiff could not confirm the proper execution of the original affidavit (a requirement of an administrative order of the chief administrative judge) and sought to substitute the original with an identical affidavit, the proper execution of which could be confirmed. Supreme Court denied the motion and dismissed the complaint sua sponte. The Fourth Department held that the dismissal was not warranted and CPLR 2001 permitted the substitution:

 

” A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal’ ” … . Here, we conclude that “[t]he fact that . . . plaintiff’s [new] attorney[s] attempted to comply, in good faith, with an Administrative Order of the Chief Administrative Judge that did not exist at the time that the action was commenced, or at the time [the judgment of foreclosure and sale was granted], does not qualify as such an extraordinary circumstance’ ” that would support a sua sponte dismissal … . Indeed, “[n]othing in the Administrative Order[] requires the dismissal of an action merely because the plaintiff’s attorney[s] discover[] that there was some irregularity or defect in a prior submission” … . Thus, contrary to the court’s determination, we conclude that plaintiff is not “effectively required to commence an entirely new action” … .

We further conclude that the court erred in denying that part of plaintiff’s motion seeking to substitute the affidavit of merit and amount due. “CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced” … . In addition, “[p]ursuant to CPLR 5019 (a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party” … . Here, we conclude that the substitution of the original affidavit of merit and amount due with a new, substantively identical affidavit of merit and amount due was a ministerial amendment permitted by CPLR 2001 and CPLR 5019 (a) inasmuch as the change affected only plaintiff’s ability to comply with the Administrative Order, and “[t]he attorney affirmation is not itself substantive evidence” … . We further conclude that “[n]o substantial right of [defendant .. .would] be affected by the court’s substitution” … . Indeed, that defendant did not reside in the subject property when plaintiff commenced the mortgage foreclosure action and the property was vacant at that time, and he never joined this action nor made any effort to contest the foreclosure. Wells Fargo Bank, N.A. v Watanabe, 2016 NY Slip Op 01096, 4th Dept 2-11-16

 

CIVIL PROCEDURE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)/FORECLOSURE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)/AFFIDAVIT OF MERIT AND AMOUNT DUE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)

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ORDER ENTERED ON CONSENT IS NOT APPEALABLE; ONLY REMEDY IS MOTION TO VACATE.

In a Family Court matter, the Fourth Department noted that no appeal lies from an order entered by consent. The correct remedy is a motion to vacate the order:

 

Respondent mother appeals from an order denying her motion to vacate an order of fact-finding and disposition, which was entered on the consent of the parties. We agree with the mother that Family Court erred in denying the motion on the sole ground that a direct appeal from that order was pending. It is well settled that “[n]o appeal lies from an order entered upon the parties’ consent” … and, indeed, we dismissed the mother’s appeal from the consent order for that very reason … . Thus, contrary to the court’s determination, the mother’s sole remedy was ” to move in Family Court to vacate the order, at which time [she] [could] present proof in support of [her] allegations of duress, proof which is completely absent from this record’ ” … . Matter of Annabella B.C. (Sandra L.C.), 2016 NY Slip Op 01064, 4th Dept 2-11-16

 

APPEAL (NO APPEAL LIES FROM A CONSENT ORDER)/CIVIL PROCEDURE (NO APPEAL LIES FROM A CONSENT ORDER, ONLY REMEDY IS MOTION TO VACATE)/FAMILY LAW (NO APPEAL LIES FROM A CONSENT ORDER OF FACT-FINDING AND DISPOSITION, ONLY REMEDY IS MOTION TO VACATE)

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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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