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correspondence which was intended to lead to a settlement agreement (re: real property taxes) did not create a binding agreement

The Third Department determined correspondence which was intended to lead to a settlement agreement (re: real property taxes) did not create a binding agreement. Subsequent to the correspondence, proposed stipulations had been circulated but were not executed. The Court explained the relevant analytical criteria:

… [A]n out-of-court settlement agreement “is not binding upon a party unless it is in a writing subscribed by [that party] or [that party’s] attorney” (CPLR 2104). Writings between parties to an action or proceeding that discuss the possibility of settlement will be considered to constitute a binding agreement if “the settlement agreement was adequately described in [such] writings, namely, the agreement was clear, the product of mutual accord and contained all material terms” … . Settlement-related writings may be deemed to have contained sufficiently detailed terms to give rise to a binding agreement when, for example, these writings explicitly incorporate the terms of other documents prepared in anticipation of settlement … . In contrast, settlement-related writings will not be found to have created a binding agreement if they expressly anticipate a subsequent writing that is to officially memorialize the existence of a settlement agreement and set forth all of its material terms … . Matter of George W. & Dacie Clements Agric. Research Inst., Inc. v Green, 2015 NY Slip Op 06399, 3rd Dept 7-30-15

 

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agreement to maintain a driveway on a right-of-way ran with the land.

The Third Department held small claims court had properly determined an agreement to maintain a driveway on a right-of-way passing through the grantor’s front parcel to the grantee’s rear parcel ran with the land. The Third Department noted its review of small claims court rulings is confined to whether “substantial justice” was done according to the rules and principals of substantive law. Small claims court correctly held that the original parties to the property transfer intended the maintenance agreement to run with the land and that the agreement “touches and concerns” the land.  Therefore the defendant, the subsequent purchaser of the rear parcel, was bound by the maintenance agreement:

“Appellate review of small claims is limited to determining whether ‘substantial justice has not been done between the parties according to the rules and principles of substantive law'” … . Accordingly, this Court will overturn such a decision only if it is clearly erroneous … . As relevant here, to establish that the 1982 agreement ran with the land and was binding on defendants, plaintiff was required to establish that “(1) the grantor and grantee intended the [agreement] to run with the land, (2) there is privity of estate between the parties to the current dispute, and (3) the [agreement] touches and concerns the land” … . * * *

…[A]n agreement touches and concerns the land “if it affects the legal relations — the advantages and the burdens — of the parties to the [agreement], as owners of particular parcels of land and not merely as members of the community in general”… . Pugliatti v Riccio, 2015 NY Slip Op 06398, 3rd Dept 7-30-15

 

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Hearing Required to Determine Whether Plaintiff Bank Negotiated in Good Faith During the Settlement Conference

The Second Department determined defendant homeowner had raised questions of fact whether plaintiff bank negotiated in good faith in a settlement conference pursuant to CPLR 3408 (designed to find a way to avoid foreclosure). The determinative motions heard by Supreme Court were therefore premature. The matter was sent back for a hearing on the “good faith” question:

CPLR 3408 requires the parties to a residential foreclosure action to attend settlement conferences at an early stage of the litigation, at which they must “negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible” (CPLR 3408[f]). During settlement conferences, “[m]otions shall be held in abeyance” (22 NYCRR 202.12-a[c][7]). Here, the defendant submitted evidence that the plaintiff may have failed to exercise good faith during the settlement conference phase of this action with respect to her applications seeking a loan modification pursuant to the federal Home Affordable Modification Program (hereinafter HAMP). Specifically, she presented evidence that the plaintiff may have violated HAMP regulations and guidelines, which would constitute a failure to negotiate in good faith as required by CPLR 3408(f) … . She also presented evidence that the plaintiff engaged in dilatory conduct, such as making piecemeal document requests, providing contradictory information, and repeatedly requesting documents which had already been provided … . Since the defendant’s submissions raise a factual issue as to whether the plaintiff failed to negotiate in good faith, thus depriving her of a meaningful opportunity to resolve this action through loan modification or other potential workout options (see CPLR 3408[a]), the Supreme Court should have held a hearing to determine this issue prior to consideration of the plaintiff’s motion and the defendant’s cross motion. Onewest Bank, FSB v Colace, 2015 NY Slip Op 06321, 2nd Dept 7-29-15

 

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Plaintiff’s Requests to be Deposed (in China) by Remote Electronic Means and to Use a Video Transcription of the Deposition In Lieu of Testifying at Trial Should Not Have Been Denied

The Second Department determined Supreme Court abused its discretion when it denied plaintiff’s requests to conduct a deposition by remote electronic means and to present a video transcription of the deposition at trial in lieu of testifying. Plaintiff returned to China before depositions were complete and subsequent applications for a visa were denied:

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s cross motion which was pursuant to CPLR 3103(a) for a protective order directing that his deposition be conducted by remote electronic means. “Generally, when a party to the action is to be deposed, the deposition should take place within the county . . . where the action is pending'” … . “An exception to this rule is where a party demonstrates that examination in that county would cause undue hardship” … . Here, in light of the evidence that the plaintiff’s applications for a visa to return to the United States had been denied, and the evidence establishing that he presently was ineligible to be admitted to the United States, the plaintiff demonstrated that traveling from China to the United States for his deposition or independent medical examination would cause undue hardship … .

Further, the Supreme Court erred in, in effect, denying that branch of the plaintiff’s amended cross motion which was pursuant to CPLR 3117(a)(3) for leave to employ a video transcription of his deposition testimony at trial in lieu of appearing at trial to give testimony. The plaintiff met the criteria set forth in CPLR 3117(a)(3)(ii), (iv), and (v) … . Feng Wang v A & W Travel, Inc., 2015 NY Slip Op 06312, 2nd Dept 7-29-15

 

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Flaws in Causes of Action Stemming from the Alleged Breach of a Joint Venture Agreement Explained

In an action stemming from the alleged breach of a joint venture agreement, the Second Department, in the context of a motion to dismiss for failure to state a cause of action, went through each cause of action and, where dismissal was appropriate, noted the pleading failure. The joint venture cause of action did not allege a mutual promise to share the losses. The constructive trust cause of action did not allege a confidential or fiduciary relationship. The fraud allegations were not collateral to the terms of the alleged joint venture and no out-of-pocket losses were alleged. The tortious interference with contract cause of action did not allege the intentional procurement of a breach of the joint venture agreement. The accounting cause of action did not allege that a demand for an accounting was made. The Second Department noted that the motion to amend the complaint to cure some of the defects should have been granted. With respect to the criteria for determining a motion to dismiss for failure to state a cause of action where documentary evidence supporting the motion is submitted, the court explained:

“A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law” … .

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” … . A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) … . 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”… . Mawere v Landau, 2015 NY Slip Op 06317, 2nd Dept 7-29-15

 

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Suit Against an Unincorporated Association Must Allege Every Member of the Association Ratified the Conduct Complained Of

In affirming the dismissal of a cause of action against unions brought by a probationary teacher who had been terminated, the Second Department noted that a suit against an unincorporated association must allege that the conduct complained of was ratified by every member of the association:

The Supreme Court … properly granted the union defendants’ cross motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. Because the union defendants were unincorporated associations, and because the amended complaint failed to allege that the conduct complained of on the part of the union defendants was authorized or ratified by every one of their respective members, the amended complaint failed to state a cause of action against the union defendants … . Sweeny v Millbrook Cent. Sch. Dist., 2015 NY Slip Op 06331, 2nd Dept 7-29-15

 

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With Regard to the Suit Against the Perpetrator, Perpetrator’s Criminal Conviction Barred Relitigation in the Wrongful Death Case Stemming from a Stabbing Outside Defendant Bar/With Regard to the Suit Against Defendant Bar, Questions of Fact Raised About the Foreseeability of the Attack, the Proximate Cause of the Injury, and the Adequacy of Defendant Bar’s Security Measures

The Second Department determined plaintiff’s decedent’s estate was entitled to summary judgment against the defendant, Taylor, who stabbed plaintiff’s decedent outside a bar both had just left. Taylor had pled guilty to manslaughter and waived the justification defense. Taylor was therefore collaterally estopped from relitigating the issue in the civil proceeding. Questions of fact about the foreseeability of the stabbing, the proximate cause of the incident and the adequacy of security precluded summary judgment re: the liability of the bar defendants. The Second Department noted that Supreme Court should have overlooked the fact that the depositions submitted in motion practice were unsigned (a basis for Supreme Court’s denial of requested relief). No party raised the “unsigned deposition” issue and it amounted to only a minor irregularity:

“Where a criminal conviction is based upon facts identical to those in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from relitigating the issue of liability” … . “The doctrine applies whether the conviction results from a plea or a trial” … . “The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action” … . “The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination” * * *

“A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties” … . “To establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected, but the criminal conduct at issue must be shown to be reasonably predictable based on prior occurrences of the same or similar criminal activity at a location sufficiently proximate to the subject location” … . Here, the plaintiff met her prima facie burden of establishing her entitlement to judgment as a matter of law against [the bar defendants]. In opposition, the [bar defendants] raised a triable issue of fact on behalf … as to the issue of foreseeability, whether the decedent’s own conduct preceding the stabbing was a proximate cause of his injuries, and whether the … security measures were adequate … . Hartman v Milbel Enters., Inc., 2015 NY Slip Op 06314, 2nd Dept 7-29-15

 

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Plaintiff’s Use of a Partially Open A-Frame Ladder Did Not Constitute Misuse of a Safety Device—Directed Verdict in Favor of Plaintiff on Labor Law 240(1) Cause of Action Was Proper/Plaintiff’s Apparent Failure to Turn Over All of the Relevant Medical Records Required a New Trial on Damages

The First Department, over a dissent, determined that the court, after a jury trial, properly directed a verdict in favor of the plaintiff on the Labor Law 240(1) cause of action. Plaintiff was using an A-frame ladder to weld a tank. It was not possible to open the ladder completely unless the ladder was perpendicular to the tank. Because using the ladder in a perpendicular position would have forced plaintiff to twist his body to weld, plaintiff placed the ladder against the tank in a partially open position. The ladder “shook” and plaintiff fell off it. The First Department held that, under those facts, the way plaintiff used the ladder did not constitute misuse of a safety device and, because Labor Law 240(1) was violated, plaintiff’s action could not constitute the sole proximate cause of the injury. A new trial was required, however, because the medical records supplied to the defendants pursuant to a subpoena were much less voluminous than the medical records brought to trial by the plaintiff’s medical expert, thereby depriving the defendants of the ability to fully cross-examine the expert:

A verdict may be directed only if the “court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” … . The benefit of all inferences is afforded to the non moving party, and the facts are viewed in a light most favorable to it (id.). Here, plaintiff argued that there was no issue of fact necessary for a jury to resolve regarding whether defendants violated their obligation under Labor Law § 240(1) to provide him with an appropriate safety device to guard against the elevation-related risk. That is because, he asserts, there was no alternative safety device readily available to him, and he had no choice but to place the ladder in the closed position given the way the tank was situated. Defendants do not dispute that an unsecured ladder, even one in good condition, can give rise to Labor Law section 240(1) liability if the worker falls from it * * *

A worker’s decision to use an A-frame ladder in the closed position is not a per se reason to declare him the sole proximate cause of an accident … . To be sure, we do not disagree with the dissent that, in principle, placement of an A-frame ladder in the closed position “can constitute misuse of a safety device”…. . * * *

Here, plaintiff gave a specific reason why he used the ladder in the closed position. Plaintiff testified that using the ladder in an open position and twisting his body to face the tank would have been exhausting, requiring him to take frequent breaks, which defendants did not dispute. Indeed, defendants’ assertion that turning the ladder would have presented an issue of “[m]ere expediency or inconvenience” mischaracterizes the record. In any event, we are hesitant to adopt a rule that, in order to permit a worker to enjoy the protection of Labor Law section 240(1), would require him to take extraordinary measures to perform his work, when he has a good faith belief that doing so would cause him acute discomfort while drastically slowing his pace … . Noor v City of New York, 2015 NY Slip Op 06295, 1st Dept 7-28-15

 

The Treatment of Pre-Answer Motions to Dismiss an Action for a Declaratory Judgment Explained

The Second Department explained how pre-answer motions to dismiss are handled in the context of an action for a declaratory judgment:

Generally speaking, ” [a] motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'” … . As such, “where a cause of action is sufficient to invoke the court’s power to render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy’ (CPLR 3001; see CPLR 3017[b]), a motion to dismiss that cause of action should be denied” … .

Upon a motion to dismiss for failure to state a cause of action, a court may reach the merits of a properly pleaded cause of action for a declaratory judgment where ” no questions of fact are presented [by the controversy]'” … . Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action “should be taken as a motion for a declaration in the defendant’s favor and treated accordingly” … . North Oyster Bay Baymen’s Assn. v Town of Oyster Bay, 2015 NY Slip Op 06225, 2nd Dept 7-22-15

 

Analytical Criteria for a Motion to Dismiss for Failure to State a Cause of Action Where Plaintiff Submits an Affidavit/Analytical Criteria for a Motion to Amend the Complaint

The Second Department determined the motion to dismiss for failure to state a cause of action should not have been granted with respect to one of the defendants, and the motion to amend the complaint should have been granted. The court explained the proper way to handle a motion to dismiss for failure to state a cause of action when the plaintiff submits an affidavit in opposition, as well as the criteria for a motion to amend the complaint:

In considering a motion to dismiss pursuant to CPLR 3211(a)(7), “the court should 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 the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … . Unless the motion is converted into one for summary judgment pursuant to CPLR 3211(c), affidavits may be received for a limited purpose only, usually to remedy defects in the complaint, and such affidavits are not to be examined for the purpose of determining whether there is evidentiary support for the pleading … . ” [A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint'” … * * *

CPLR 3025(b) provides that courts may grant leave to parties to amend or supplement their pleadings, and, “[i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” … . Here, the Supreme Court improperly denied that branch of the plaintiff’s cross motion which was pursuant to CPLR 3025(b) for leave to amend the complaint insofar as asserted against [one defendant]. No surprise or prejudice resulted from any delay in the plaintiff’s motion, and the proposed amendment is neither palpably insufficient nor patently without merit insofar as it pertains to that defendant … . Tirpack v 125 N. 10, LLC, 2015 NY Slip Op 06236, 2nd Dept 7-22-15

 

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