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Law of Plaintiff’s Residence Applied to Action Alleging Injury from Use of Plaintiff’s Image and Voice (Video Clip) on a Television Show

The Second Department determined New York law, not California law, applied to plaintiff’s complaint alleging injury stemming from the use of a video clip, in which plaintiff appeared, on a television show. The plaintiff resided in New York, and the video clip was edited in California. The complaint alleged violation of California law. The Second Department explained why New York law applied and further determined that the video clip did not violate New York’s Civil Rights Law (sections 50 and 51) because the clip was not used for advertising:

New York uses an interest analysis, under which “the law of the jurisdiction having the greatest interest in resolving the particular issue” is given controlling effect … . Pursuant to the interest analysis, “[a] distinction [is made] between laws that regulate primary conduct (such as standards of care) and those that allocate losses after the tort occurs” … . If the conflicting laws regulate conduct, the law of the place of the tort “almost invariably obtains” because “that jurisdiction has the greatest interest in regulating behavior within its borders” … . “[W]here the plaintiff and defendant are domiciled in different states, the applicable law in an action where civil remedies are sought for tortious conduct is that of the situs of the injury” … .

Applying these principles, the law of New York, where the alleged injury or damage occurred, applies. Although the alleged tortious conduct, the editing of the video clip, occurred in California, the plaintiff’s alleged injury occurred in New York, where he is domiciled and resides. Moreover, New York is the state with the greater interest in protecting the plaintiff, its citizen and resident. Sondik v Kimmel, 2015 NY Slip Op 06803, 2nd Dept 9-16-15

 

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Lack of Standing Not a Jurisdictional Defect, Sua Sponte Dismissal of Complaint Not Warranted

The Second Department, in reversing Supreme Court’s sua sponte dismissal of a foreclosure action on “lack of standing” grounds, noted that the “lack of standing” defense was waived by the defendants (not raised in answer), sua sponte dismissal was an abuse of discretion, and “lack of standing” is not a jurisdictional defect. The court explained:

“The Supreme Court abused its discretion in, sua sponte, directing the dismissal of the complaint for lack of standing. ‘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, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint. Since the defendants … did not answer the complaint, and did not make a pre-answer motion to dismiss the complaint, they waived the defense of lack of standing … . Furthermore, a party’s lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint …”. FCDB FF1 2008-1 Trust v Videjus, 2015 NY Slip Op 06777, 2nd Dept 9-16-15

 

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Homeowner’s Exception Did Not Apply to a Horse Barn Used for Commercial Purposes Despite Presence of an Apartment in the Barn

The Second Department determined the “homeowner’s exception” to the applicability of the Labor Law did not apply to a barn used to house horses for commercial purposes, even though the barn included an apartment used by one of the horse farm’s shareholders. The court also noted that the “recalcitrant worker” affirmative defense should not have been dismissed “sua sponte” in the absence of a motion to dismiss it.  With respect to the homeowner’s exception, the court explained:

“… [T]he plaintiff met his prima facie burden of demonstrating that he was not performing work at a residence within the meaning of the homeowner’s exemption under Labor Law §§ 240(1) and 241(6) … . Among other things, the plaintiff demonstrated that the defendant described itself as “essentially . . . a business for keeping horses,” its owners were extensively involved in both keeping and racing horses, and approximately eight horses were boarded at the subject property at the time of the accident. The plaintiff’s submissions also established that when the defendant corporation originally purchased the subject property, the large barn was in a state of disrepair. The defendant renovated the large barn and added many improvements to the property, including multiple paddocks, an additional barn, and an “Equicisor,” a “72-foot circular automated horse exercising machine.” One of the defendant’s shareholders described the apartment in the rear of the barn as a part-time “office residence” where he might stay a ‘few days’ per week, although the amount of time he stayed varied depending on the season and the horse racing schedule. Under these circumstances, the plaintiff established, prima facie, that the defendant’s boarding stable, which was used primarily for commercial purposes, did not constitute a residence within the meaning of the homeowner’s exemption …”. Rossi v Flying Horse Farm, Inc., 2015 NY Slip Op 06798, 2nd Dept 9-16-15

 

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Supreme Court Erred When It Ruled Plaintiff Had “Defaulted” on Its Summary Judgment Motion by Failing to Appear for Oral Argument

The First Department affirmed the denial of plaintiff’s summary judgment on the merits in a breach of contract action. However, the First Department noted that the alternative ground for Supreme Court’s ruling, i.e., that plaintiff had “defaulted” on its motion by failing to appear for oral argument, was not appropriate:

We find … that Supreme Court erred in finding that plaintiff had “default[ed]” on this motion. We fail to perceive the conduct that constituted plaintiff’s default. It was plaintiff who submitted the motion for summary judgment. Typically, a motion for summary judgment can be readily decided on the papers unless oral argument is mandated by the motion court as “necessary.” Nothing in the record before us suggests that the parties were on notice that oral argument was indispensable for resolution of plaintiff’s motion. Indeed, when Supreme Court ultimately rendered its decision on the record, counsel for both parties were present. Under the circumstances, Supreme Court abused its discretion as a matter of law by disposing of the motion on the procedural ground sua sponte imposed by the court. All State Flooring Distribs., L.P. v MD Floors, LLC, 2015 NY Slip Op 06751, 1st Dept 9-8-15

 

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Error to Charge Jury on Comparative Negligence/Inadequate Awards for Pain and Suffering and Loss of Consortium

The First Department determined the jury should not have been charged on comparative negligence in this Labor Law 241 (6) action. Plaintiff’s decedent was injured when he tripped and fell over construction debris. Because defendant was obligated to keep the area clear of debris, and because there was no clear path plaintiff’s decedent could use, the comparative negligence jury instruction was not warranted. The First Department further determined that the award for pain of suffering ($100,000) was inadequate and the failure to award any damages for loss of consortium was against the weight of the evidence and rendered the verdict inconsistent. Pursuant to plaintiff’s motion to set aside the verdict, a new trial was ordered unless defendant agreed to a $400,000 award for pain and suffering and a $50,000 award for loss of consortium:

The evidence established that, as a result of his hand injury, [plaintiff’s decedent] developed, inter alia, nerve damage, painful symptoms consistent with reflex sympathetic dystrophy, anxiety, and significant limitation of the use of his left hand due to permanent contracture of the fingers. Upon a review of other relevant cases, we find that the award of $100,000 for pain and suffering materially deviates from reasonable compensation … .

The jury’s decision not to award damages to plaintiff (wife) for loss of consortium was against the weight of the evidence … . Plaintiff (wife) described significant changes in [plaintiff’s decedent’s] behavior after his accident and explained the impact this had on their relationship. On this record, the jury’s decision to award damages for pain and suffering, but none for loss of consortium, is inconsistent. Kutza v Bovis Lend Lease LMB, Inc., 2015 NY Slip Op 06753, 1st Dept 9-8-15

 

Supreme Court Should Not Have Denied Plaintiffs’ Motion to Extend the 90-Day Period for Filing a Note of Issue

In finding Supreme Court abused its discretion in denying plaintiffs’ motion to extend the 90-day period for filing a note of issue, the Second Department explained the analytical criteria:

Once the plaintiffs were in receipt of the 90-day notice, they were required to serve and file a timely note of issue, or move before the default date to either vacate the 90-day notice or extend the 90-day period pursuant to CPLR 2004 … . Here, there is no dispute that the plaintiffs timely moved, inter alia, to extend the 90-day period. However, notwithstanding the plaintiff’s timely motion, the Supreme Court directed the dismissal of the complaint pursuant to CPLR 3216. This was an improvident exercise of discretion.

The determination as to whether to vacate a 90-day notice and grant an extension of time to file a note of issue lies within the court’s discretion, and this determination may be guided by the length of the delay in prosecuting the action, the reason for the delay, the prejudice to the defendants, and whether the moving party was in default before seeking the extension … . The Court of Appeals has observed that CPLR 3216 is “extremely forgiving” …, in that it “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … . Amos v Southampton Hosp., 2015 NY Slip Op 06700, 2nd Dept 9-2-15

 

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Where the Complaint Alleged Only that the Driveway Was Defective and the Complaint Against the Company Which Renovated the Driveway Was Dismissed, the Complaint Against the Property Owners Should Have Been Dismissed As Well–There Was No Viable Theory for Liability on the Part of the Property Owners

The Second Department determined Supreme Court should have granted defendant property owners’ motion for a judgment as a matter of law after the close of proof. Plaintiff, who tripped over the lip on defendants’ driveway, alleged the driveway was defective. After proof was closed, Supreme Court dismissed the complaint against the company which renovated the driveway, but denied the property owners’ motion to dismiss. Because plaintiff’s only theory was that the driveway was defective, and the property owners could only be liable for a hazardous condition caused by a failure to properly maintain the property, the complaint against the property owners should have been dismissed as well:

Dismissal of an action insofar as asserted against a contractor who performs work on premises does not mandate dismissal of the action insofar as asserted against the owner of the premises, since the owner has a duty to maintain the premises in a reasonably safe condition … . Here, however, the plaintiff’s theory of liability was that the driveway was defective. …[T]here was no evidence that the lip of the driveway was in a hazardous condition. Therefore, it was inconsistent to direct the dismissal of the complaint insofar as asserted against [contractor] while denying such relief to the appellants as homeowners, since no viable alternative theory of liability was asserted against the appellants … . Cioffi v Klein, 2015 NY Slip Op 06704, 2nd Dept 9-2-15

 

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Causes of Action Seeking Monetary Damages Were Not Incidental to the Article 78 Causes of Action and, Therefore, Were Not Subject to the Four-Month Statute of Limitations

The Second Department determined certain causes of action in plaintiffs’ complaint should not have been dismissed because they were not incidental to the Article 78 causes of action which were time-barred.  Plaintiffs brought a hybrid proceeding (1) to annul a town resolution assessing taxes to pay for the town’s demolition of some of plaintiffs’ property which was deemed unsafe, and (2) seeking damages for destruction of property and interruption of plaintiffs’ business. The Second Department explained the criteria for determining whether causes of action seeking monetary damages should be deemed incidental to the Article 78 causes of action (and therefore subject to the four-month statute of limitations):

Pursuant to CPLR 7806, where a CPLR article 78 petitioner seeks damages as well as the annulment of a governmental determination, “[a]ny restitution or damages granted to the petitioner must be incidental to the primary relief sought by the petitioner, and must be such as he [or she] might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against the same body or officer in its or his official capacity” (CPLR 7806). “[W]here the thrust of the lawsuit is the review of an adverse . . . agency determination, with the monetary relief incidental, [the] Supreme Court may entertain the entire case under CPLR article 78” … . “Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case” … . Contrary to the Supreme Court’s determination, the claims asserted in the first, second, and eighth causes of action were not incidental to the plaintiffs’ CPLR article 78 challenges to the Resolution and the special tax assessment … . Therefore, these causes of action were not asserted in connection with the CPLR article 78 portion of this hybrid action/proceeding, and were not barred by the four-month statute of limitations applicable to CPLR article 78 proceedings … . Hertzel v Town of Putnam Val., 2015 NY Slip Op 06708, 2nd Dept 9-2-15

 

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Service by “Nailing” On the Day Before the Last Possible Day and “Mailing” on the Last Possible Day Was Timely

The Court of Appeals, affirming the 4th Department, determined that service by “nailing and mailing” the petition to invalidate a designating petition was timely. The petition was “nailed” on the day before the last possible day for service and was “mailed” on the last possible day for service:

We agree with the courts below that this proceeding was properly commenced in a timely manner. Here, there is no dispute that petitioner complied with the terms of the order to show cause by nailing the papers to the door of [respondent’s] residence on July 22, 2015 and mailing the papers to that residence by express mail on July 23. [Respondent] maintains that mailing on the last day of the statutory period was jurisdictionally defective since delivery inevitably would occur outside of the statutory period. However, where the instrument of notice has been delivered by another prescribed method within the statutory period, we have rejected such contentions concerning mailing … . Matter of Angletti v Morreale, 2015 NY Slip Op 06647, CtApp 8-26-15

 

Doctrine of Comity Precluded New York Action Attacking Bermuda Judgment

The Second Department determined Supreme Court, under the doctrine of comity, properly dismissed the complaint attacking a foreign country judgment. Plaintiff had appeared in the Bermuda case and made no showing of fraud or a public policy violation:

Generally, the courts of this State will “accord recognition to the judgments rendered in a foreign country under the doctrine of comity,” which is “the equivalent of full faith and credit given by courts to judgments of our sister States” … . Absent some showing of fraud in the procurement of the foreign country judgment or that recognition of the judgment would do violence to a strong public policy of New York State, a party who properly appeared in the action is precluded from attacking the validity of the foreign country judgment in a collateral proceeding commenced in a New York court … .

Contrary to the plaintiff’s contention, the Supreme Court properly determined that the adjudication of his claims for compensation under employment and consulting agreements with his former employer in a winding-up proceeding that was litigated in the British Overseas Territory of Bermuda precluded the instant action against the employer, among others, to recover damages for breach of contract and fraud. The plaintiff appeared in the Bermuda proceeding by submitting his claims to the Bermuda court, and made no showing of fraud or that a public policy of this State would be violated by recognizing the Bermuda court’s rejection of his claims. Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the complaint based on principles of comity. Basile v CAI Master Allocation Fund, Ltd., 2015 NY Slip Op 06650, 2nd Dept 8-26-15

 

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