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Criteria for Setting Aside a Verdict as Against the Weight of the Evidence Explained

The Second Department determined plaintiff’s motion to set aside the defense verdict as against the weight of the evidence was properly denied.  Plaintiff, a bicyclist, was injured when he struck the open door of defendant’s (Roche’s) vehicle.  Defendant testified the door was ajar, not fully open: “A jury verdict should be set aside as contrary to the weight of the evidence only if the jury could not have reached the verdict by any fair interpretation of the evidence … .  A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause … . [W]here there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view… . However, where a jury verdict with respect to negligence and proximate causation is irreconcilably inconsistent, because the only reasonable view of the evidence is that a defendant’s negligence was a proximate cause of the plaintiff’s injuries, that verdict must be set aside as contrary to the weight of the evidence … . In this case, it was within the jury’s province to credit Roche’s testimony that she did not open her car door into the plaintiff’s path. The jury reasonably could have concluded that Roche was negligent in some other respect—such as the positioning of her car or her act of leaving the door “slightly ajar”—but that, despite such negligence, the plaintiff should have been able to avoid the collision and, thus, his conduct was the sole proximate cause of the accident.” [quotations omitted] Membreno v Roche, 2015 NY Slip Op 04102, 2nd Dept 5-13-15

 

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Mortgagee in Possession Has a Duty to Care for the Property/Criteria for Determining a Motion to Dismiss for Failure to State a Cause of Action, Where Documentary Evidence Is Submitted, Explained

In the context of a motion to dismiss for failure to state a cause of action (where documentary evidence was submitted), the Second Department determined a mortgagee in possession of property (here because the property owner went bankrupt) has a duty to care for the property which is identical a property owner’s duty.  Here plaintiffs alleged the property, which had been damaged by fire, was allowed to deteriorate to the extent that plaintiffs’ neighboring property was damaged. The causes of action for nuisance, negligence and trespass survived the motion to dismiss.  The court noted its role when documentary evidence is submitted in support of a motion to dismiss for failure to state a cause of action:

A motion to dismiss pursuant to CPLR 3211(a)(1) may be appropriately granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . While the documentary evidence submitted by One West established that it did not own the defendants’ property at any relevant time … , that evidence did not “utterly refute” the plaintiffs’ contention that One West had a duty based on its status as a mortgagee in possession. In fact, the documents, which establish ownership, did not address the plaintiffs’ contention regarding One West’s alleged status as a mortgagee in possession … . Accordingly the Supreme Court erred in granting the motion insofar as it sought dismissal of the complaint pursuant to CPLR 3211(a)(1).

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” … . “Where, as here, evidentiary material is submitted and considered on a motion 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 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” … .

The plaintiffs’ contention that [defendant] was a mortgagee in possession has not been shown to be “not a fact at all” … . If [defendant] were, in fact, a mortgagee in possession, it was “bound to employ the same care and supervision over the mortgaged premises that a reasonably prudent owner would exercise in relation to his [or her] own property; he [or she] is bound to make reasonable and needed repairs, and is responsible for any loss or damage occasioned by his willful default or gross neglect in this regard” … . Thus, the complaint, as augmented by the affidavit of the plaintiff Emeta Allen, which was submitted in opposition to the motion to dismiss …, properly set forth causes of action alleging nuisance, negligence, and trespass, and the plaintiffs have causes of action sounding in nuisance, negligence, and trespass. Allen v Echeverria, 2015 NY Slip Op 04075, 2nd Dept 5-13-15

 

Court Should Not Have Dismissed for “Neglect to Proceed”—Criteria Explained

Noting that CPLR 3216 is extremely forgiving and never requires dismissal based on “neglect to proceed,” the Second Department determined Supreme Court, under the facts, should not have dismissed the action.  A dual showing of a justifiable excuse for the delay and a meritorious cause of action is not strictly necessary to avoid dismissal:

While generally, the Supreme Court is prohibited from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a potentially meritorious cause of action (see CPLR 3216[e]…) , such a dual showing is not strictly necessary to avoid dismissal of the action … .

Under the circumstances of this case, including the minimal 4-day delay in filing the note of issue, the fact that the defendants demanded additional discovery subsequent to the court’s certification order containing the 90-day demand, the absence of any claim of prejudice, and the lack of evidence of a pattern of persistent neglect and delay in prosecuting the action or of any intent to abandon the action, the Supreme Court improvidently exercised its discretion in declining to excuse the plaintiffs’ failure to meet the deadline for filing the note of issue … . Rossi v Scheinbach, 2015 NY Slip Op 04110, 2nd Dept 5-13-15

 

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Admissions in Pleadings, Including the Failure to Deny an Allegation, Are Always In Evidence for All Purposes in a Trial

In a trial stemming from an automobile accident, during deliberations the jury asked if there was any evidence a defendant, Kahn, was the driver of one of the vehicles.  The judge responded “no.”  Ultimately the jury found in favor of the defendant.  The Second Department determined the judge’s telling the jury there was no evidence the defendant was the driver was reversible error. The defendant’s answer to the complaint included admissions re: operation.  The court noted that the failure to deny an allegation in a complaint is an admission. Pleadings “are always in evidence for all purposes of the trial of an action:”

The Supreme Court committed reversible error when it advised the jury that there was no evidence in this case that would answer its question of whether Khan was the driver of the taxicab in which the plaintiff was a passenger. The failure to deny an allegation in a complaint constitutes an admission to the truth of that allegation (see CPLR 3018[a]…). “Facts admitted in a party’s pleadings constitute formal judicial admissions, and are conclusive of the facts admitted in the action in which they are made” … . Moreover, “admissions . . . in pleadings are always in evidence for all the purposes of the trial of [an] action” … . In response to the jury’s inquiry about whether Khan was the driver, the court should have informed the jury of Khan’s and Ali’s admissions in their answer concerning their operation and ownership of a certain vehicle which was involved in an accident … on the same date as the plaintiff’s accident and at the same location, so that the jury could draw its own inferences on this question. DeSouza v Khan, 2015 NY Slip Op 04085, 2nd Dept 5-13-15

 

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“Lack of Capacity to Sue” Defense Waived If Not Raised in Pleadings/Court Should Not Have Decided Summary Judgment Motion by Searching the Record and Ruling On Issues Not Raised by Anyone

In the context of a suit alleging conversion stemming from the handling of an estate, the Second Department determined the “lack of capacity to sue” defense had been waived because it was not raised by defendant in his pleadings.  The court further determined Surrogate’s Court exceeded its powers when it went beyond the issues placed before it plaintiff’s summary judgment motion, searched the record and decided the motion in defendant’s favor on grounds not raised by anyone:

[The defendant] waived the defense of lack of capacity by failing to raise such defense in a pre-answer motion to dismiss or in his answer to the amended complaint in the action (see CPLR 3211[e]…).

… [O]n a motion for summary judgment, the court is limited to the issues or defenses that are the subject of the motion before the court … . “A motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense” … .

The Surrogate’s Court improperly searched the record and awarded summary judgment to [defendant] dismissing objections 1(i) and 9. [Plaintiff] moved for summary judgment on these objections solely on the grounds that he established that [defendant] converted funds from the father’s estate and failed to account for funds that the estate owed to [plaintiff]. [Defendant] did not cross-move for summary judgment dismissing those objections on the basis of the statute of limitations, nor did he argue it in opposition. In view of the limited scope of [plaintiff’s] motion, it was not appropriate to search the record and award summary judgment to [defendant] dismissing these objections upon arguments that were not raised … . Matter of Ray C., 2015 NY Slip Op 04134, 2nd Dept 5-13-15

 

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A Conditional Judgment May Be Rendered On the Issue of Contractual Indemnity—The Party Seeking Contractual Indemnity Must Be Free from Negligence

Plaintiff was injured at a construction site when he fell from a ladder. The construction manager commenced a third-party action against the general contractor seeking contractual indemnification in the event the construction manager is liable to the plaintiff,. The Second Department noted that a ” ‘court may render a conditional judgment on the issue of contractual indemnity, pending determination of the primary action so that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed’ … . The party seeking contractual indemnification must establish that it was free from negligence and that it may be held liable solely by virtue of statutory or vicarious liability …”. Arriola v City of New York, 2015 NY Slip Op 04079, 2nd Dept 5-13-15

 

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Denial of Plaintiff’s Motion to Intervene in a Foreclosure Action Did Not Prohibit, Under the Doctrine of Collateral Estoppel, the Plaintiff’s Action to Be Declared the Owner of the Subject Property/A Person With an Interest in Real Property Who Is Not Joined in a Foreclosure Action Is Unaffected by the Judgment of Foreclosure

The Second Department, reversing Supreme Court, determined that plaintiff’s (Jamison’s) action to declare her the owner of property subject to foreclosure should not have been dismissed under the doctrine of collateral estoppel.  Plaintiff’s ownership of the property had not been determined in the foreclosure action in which she unsuccessfully sought to intervene.  In addition, a person with an interest in real property who is not joined in a foreclosure action remains unaffected by the judgment of foreclosure:

The doctrine of collateral estoppel bars relitigation of an issue which has been necessarily decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling … . The party seeking the benefit of the doctrine of collateral estoppel must establish that the identical issue was necessarily decided in the prior action, and is determinative in the present action … . Once the party invoking the doctrine discharges his or her burden in that regard, the party to be estopped bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination … .

Here, the bank failed to establish that the issue of whether Jamison has an interest in the subject property had already been decided, since the order it relied upon expressly provided that no determination had made by the court with respect to the issue of whether or not Jamison was a necessary or indispensable party, and Jamison’s motion to intervene as of right in the foreclosure action was denied without explanation. In any event, where a person with an interest in real property is not joined as a party to an action to foreclose a mortgage on that property, that person’s rights are left unaffected by the judgment of foreclosure and sale, and the foreclosure sale may be considered void as to the omitted person … . Accordingly, Jamison’s interest, if any, in the subject property was neither litigated nor determined in the foreclosure action, and the order denying her motion to intervene as of right in the foreclosure action was not an adjudication of her rights on the merits. Jamison v Aquai, 2015 NY Slip Op 04097, 2nd Dept 5-13-15

 

Leave to Amend Complaint Should Have Been Granted—Criteria Explained

The Second Department determined Supreme Court should have allowed plaintiff to amend the complaint. Leave to amend should only be denied if the added causes of action are patently insufficient or devoid of merit.  Defendant would suffer no prejudice or surprise:

“In 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” … . Under this standard, a party seeking leave to amend a pleading need not make an evidentiary showing of merit … , and leave to amend will be granted unless such insufficiency or lack of merit is clear and free from doubt … . * * * …[The] proposed causes of action are neither patently insufficient nor palpably devoid of merit. Moreover, the parties against whom those causes of action are sought to be asserted will not suffer undue prejudice or surprise resulting directly from the plaintiff’s delay in seeking to amend the complaint … . Stein v Doukas, 2015 NY Slip Op 04115, 2nd Dept 5-13-15

 

Inadequate Excuse for Delay In Answering Complaint—Motion to Vacate Default Judgment Should Have Been Denied

The Second Department determined Supreme Court should not have granted the bank’s (BAC’s) motion to vacate a default judgment in a foreclosure action.  The bank’s excuse (clerical error) was conclusory and belied by a pattern of neglect:

“To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense” … . “Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” … .

Here, BAC’s proffered excuse, that its default in appearing and answering the complaint was due to a clerical error, was unsubstantiated, conclusory, and inadequately explained, and, therefore, did not constitute a reasonable excuse for the default … . Moreover, the record demonstrates that the alleged mistake was not an isolated error, but part of a pattern of “repeated neglect” … . In that regard, BAC failed to present a reasonable excuse for its further delay, after being apprised of its default, in cross-moving to vacate its default. Wells Fargo Bank, N.A. v Krauss, 2015 NY Slip Op 04123, 2nd Dept 5-13-15

 

Unopposed Motions to Enter a Default Judgment Properly Denied—Insufficient Proof of Facts Constituting the Claim

In finding the denial of plaintiff’s unopposed motions to enter a default judgment was proper, the Second Department explained the documentary requirements: “A party’s right to recover upon a defendant’s failure to appear or answer is governed by CPLR 3215… . Thus, a plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to appear or answer… . … The plaintiff failed to submit an affidavit of the facts constituting the claim (see CPLR 3215[f]). While a verified complaint may be used as the affidavit of the facts constituting the claim (see CPLR 3215[f]), it must contain evidentiary facts from one with personal knowledge … . [A] pleading verified by an attorney pursuant to CPLR 3020(d)(3) is insufficient to establish its merits…” [internal quotations omitted]. DLJ Mtge. Capital, Inc. v United Gen. Tit. Ins. Co., 2015 NY Slip Op 04087, 2nd Dept 5-13-15

 

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