You are here: / Civil Procedure
,

JUDGE’S IMPROPER COMMENTS CONCERNING PLAINTIFF’S EXPERT WARRANTED A NEW TRIAL ON DAMAGES.

In finding a motion to set aside the verdict in a personal injury case should have been granted, the Second Department determined the plaintiff was entitled to a new trial on damages (in part) because of the improper comments made by the judge. The judge cast doubt on the plaintiff’s expert’s testimony:

A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice may be granted where improper comments by the trial court deprive a party of a fair trial … . “[L]itigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court” … . A trial court “has broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary” … . Nevertheless, “[a] trial judge should at all times maintain an impartial attitude and exercise a high degree of patience and forebearance. A trial judge may not so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammeled spirit necessary to effect justice” … .

Here, at the trial on the issue of damages, the plaintiff presented the expert testimony of an orthopedic surgeon who examined the injured plaintiff. Before that examining physician testified, the trial court directed plaintiffs’ counsel to ask questions in hypothetical form as to the physician’s opinion regarding prognosis and the need for future medical care, and during the physician’s direct testimony, defense counsel made a number of objections to those questions. In responding to those objections, the trial court gratuitously and repeatedly emphasized that the physician was an examining rather than treating physician and that he was only “assuming” that the injured plaintiff would need future medical care that was causally related to the accident. The record reflects that, with these repeated comments, “[t]he court conveyed an impression of incredulity” toward the physician’s opinions … . The cumulative effect of the court’s comments deprived the plaintiffs of a fair trial on the issue of damages … . Ioffe v Seruya, 2015 NY Slip Op 09407, 2nd Dept 12-23-15

CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT SHOULD HAVE BEEN GRANTED BASED ON JUDGE’S IMPROPER COMMENTS)/MOTION TO SET ASIDE VERDICT (JUDGE’S IMPROPER COMMENTS)/JUDGES (IMPROPER COMMENTS WARRANTED SETTING ASIDE DAMAGES VERDICT)

,

PRINCIPAL OFFICE OF A FOREIGN LIMITED LIABILITY COMPANY, AS LISTED ON THE DEPARTMENT OF STATE APPLICATION FOR AUTHORITY TO CONDUCT BUSINESS, IS THE CONTROLLING LOCATION FOR VENUE PURPOSES.

The Second Department, reversing Supreme Court, determined that appellant’s motion for a change of venue should have been granted. Appellants demonstrated that the foreign limited liability company’s application for authority to conduct business in New York listed a principal office in New York County. Plaintiff brought the action in Queens County, alleging appellant’s principal place of business is in Queens County.  The principal office in New York County, pursuant to Limited Liability Company Law 102[s], was the controlling location for venue purposes:

Pursuant to CPLR 503(a), the venue of an action is properly placed in the county in which any of the parties resided at the time of commencement … . In support of their motion, the appellants established that QPS was a resident of New York County at the time of commencement by producing a certified copy of QPS’s application for authority to conduct business filed with the New York State Department of State, which listed New York as the county in which its principal office was located … . The plaintiff did not dispute the fact that the application for authority designated New York County as the location of QPS’s principal office, but claimed that QPS is a resident of Queens County because that is the location of its principal place of business. However, the sole residence of a foreign corporation or a foreign limited liability company for venue purposes is the county where its principal office is located as designated in its application for authority to conduct business filed with the New York State Department of State, regardless of where it transacts business or maintains its actual principal office or facility (see CPLR 503[c]…). Such office need not be a place where business activities are conducted by the limited liability company … . Carlton Group, Ltd. v Property Mkts. Group, Inc., 2015 NY Slip Op 09423, 2nd Dept 12-23-15

CIVIL PROCEDURE (VENUE, PRINCIPAL OFFICE ON DEPARTMENT OF STATE APPLICATION IS THE CONTROLLING LOCATION OF A FOREIGN LIMITED LIABILITY COMPANY FOR VENUE PURPOSES)/VENUE (FOREIGN LIMITED LIABILITY COMPANY, LOCATION OF PRINCIPAL OFFICE AS LISTED ON DEPARTMENT OF STATE APPLICATION)/LIMITED LIABILITY COMPANY, FOREIGN (FOR VENUE PURPOSES, LOCATION OF PRINCIPAL OFFICE AS LISTED ON DEPARTMENT OF STATE APPLICATION IS CONTROLLING LOCATION)

,

ANALYTICAL CRITERIA FOR MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION, WHERE DEFENDANT SUBMITS EVIDENCE, CLEARLY EXPLAINED; PLAINTIFF IS NOT PENALIZED FOR NOT SUBMITTING EVIDENCE IN OPPOSITION; BURDEN NEVER SHIFTS TO PLAINTIFF.

The Second Department determined the complaint stated a cause of action for specific performance of a real estate contract. The court offered a clear explanation of the analytical criteria to be used when defendant submits evidence in support of a motion to dismiss for failure to state a cause of action. Here, the fact that plaintiff submitted no evidence in opposition was of no consequence. The evidence submitted by defendant was not sufficient to demonstrate, as a matter of law, the complaint did not state a cause of action:

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), “the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Whether a plaintiff can ultimately establish its allegations is not part of the calculus” … .

“A court is . . . permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)” … . However, “on a motion made pursuant to CPLR 3211(a)(7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party” …, and a plaintiff “will not be penalized because he [or she] has not made an evidentiary showing in support of his [or her] complaint” … . 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” … .

Contrary to the defendant’s contention, the complaint adequately alleged a cause of action for specific performance of a contract for the sale of real property. E & D Group, LLC v Vialet, 2015 NY Slip Op 09400, 2nd Dept 12-23-15

CIVIL PROCEDURE (MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION, BURDEN NEVER SHIFTS TO PLAINTIFF EVEN IF DEFENDANT SUBMITS EVIDENCE)/MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION (BURDEN NEVER SHIFTS TO PLAINTIFF EVEN IF DEFENDANT SUBMITS EVIDENCE)

,

QUESTION OF FACT WHETHER DOCTRINE OF EQUITABLE ESTOPPEL PRECLUDED STATUTE OF LIMITATIONS DEFENSE, CRITERIA EXPLAINED.

The Second Department determined plaintiff raised a question of fact whether the doctrine of equitable estoppel precluded defendants’ statute of limitations defense. The court explained the criteria:

The doctrine of equitable estoppel will preclude a defendant from asserting the statute of limitations as a defense ” where it is the defendant’s affirmative wrongdoing . . . which produced the long delay between the accrual of the cause of action and the institution of the legal proceeding'” … . A plaintiff seeking to invoke the doctrine of equitable estoppel must “establish that subsequent and specific actions by defendants somehow kept [the plaintiff] from timely bringing suit” … . “Equitable estoppel is appropriate where the plaintiff is prevented from filing an action within the applicable statute of limitations due to his or her reasonable reliance on deception, fraud or misrepresentations by the defendant” … . Where the defendant has a fiduciary duty to the plaintiff, the doctrine of equitable estoppel may be invoked based on the defendant’s failure to disclose facts underlying the claim … . North Coast Outfitters, Ltd. v Darling, 2015 NY Slip Op 09409, 2nd Dept 12-23-15

CIVIL PROCEDURE (EQUITABLE ESTOPPEL DOCTRINE EXPLAINED)/EQUITABLE ESTOPPEL (CRITERIA EXPLAINED)

PLAINTIFF IN PERSONAL INJURY ACTION NOT REQUIRED TO DISCLOSE (1) FACEBOOK PHOTOGRAPHS SHE DID NOT INTEND TO INTRODUCE AT TRIAL AND (2) INFORMATION ABOUT POST-ACCIDENT MESSAGES.

The First Department, over an extensive dissenting memorandum by Justice Saxe, reversing Supreme Court, determined plaintiff in a personal injury action was not required to turn over to the defendant post-accident photographs of herself posted on Facebook which she does not intend to introduce at trial, and, further, plaintiff was not required to provide defendant with authorizations allowing Facebook to disclose when private messages were posted by the plaintiff after the accident and how long those messages were:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” In determining whether the information sought is subject to discovery, “[t]he test is one of usefulness and reason” … . ” It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims'” … . Discovery demands are improper if they are based upon ” hypothetical speculations calculated to justify a fishing expedition'” … .

This Court has consistently applied these settled principles in the context of discovery requests seeking a party’s social media information.  Forman v Henkin, 2015 NY Slip Op 09350, 1st Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

CIVIL PROCEDURE (DISCLOSURE OF FACEBOOK PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)/DISCLOSURE (FACEBOOK PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)/FACEBOOK (DISCLOSURE OF PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)

EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS PROPERLY CONSIDERED.

The Second Department determined Supreme Court had properly considered an affidavit submitted with the bank’s reply papers in a mortgage foreclosure action. In the answering papers, appellant claimed that the bank did not properly serve notices of default. In the reply papers, the bank submitted an affidavit demonstrating proper service. The court explained when evidence submitted in reply papers can be considered:

Although a party moving for summary judgement cannot meet its prima facie burden by submitting evidence for the first time in reply … , and generally, evidence submitted for the first time in reply papers should be disregarded by the court … , exceptions to the rule arise when the evidence submitted is in response to allegations raised for the first time in the opposition papers … . Citimortgage, Inc. v Espinal, 2015 NY Slip Op 09242,, 2nd Dept 12-16-15

CIVIL PROCEDURE (EVIDENCE IN REPLY PAPERS PROPERLY CONSIDERED)/REPLY PAPERS (EVIDENCE SUBMITTED IN REPLY PAPERS PROPERLY CONSIDERED)

,

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)

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