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Change of Venue to Avoid Appearance of Impropriety Properly Granted–Plaintiff Was a Long-Time Senior Employee of Supreme Court in the County Where the Action Was Brought

The plaintiff was employed by Supreme Court Queens County.  For that reason, the Second Department determined Supreme Court properly granted the motion to change the venue from Queens County to Nassau County to avoid the appearance of impropriety:

“To obtain a change of venue pursuant to CPLR 510(2), a movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained in the county where venue was properly placed” … . A motion to change venue pursuant to CPLR 510(2) is addressed to the sound discretion of the trial court and its determination should not be disturbed absent an improvident exercise of discretion … . Under the circumstances of this case, including the evidence demonstrating that the plaintiff has been employed at the Supreme Court, Queens County, since 2001, first as a court officer, and more recently as a senior court clerk, the Supreme Court providently granted the motions for a change of the venue of the action from Queens County to Nassau County, in order to avoid any appearance of impropriety … . Rutherford v Patel, 2015 NY Slip Op 05170, 2nd Dept 6-17-15

 

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Requirements for a Finding of Civil Contempt Explained (Not Met Here)

In finding the motion to hold a party in civil contempt was properly denied (no clear and convincing evidence mandate in a subpoena was disobeyed), the Second Department explained the relevant law:

To find a party in civil contempt pursuant to Judiciary Law § 753, the applicant must demonstrate, by clear and convincing evidence, ” (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct'” … . Korea Chosun Daily Times, Inc. v Dough Boy Donuts Corp., 2015 NY Slip Op 05161, 2nd Dept 6-17-15

 

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CPLR 214-c, Which Starts the Statute of Limitations Upon Discovery of the Injury, Applies Only to Toxic Torts—The Statute Does Not Apply to an Action Seeking Damages for the Allegedly Negligent Approval (by the Town) of a Defective Septic System

Plaintiffs sought replacement-cost damages for a defective septic system, alleging the town negligently approved the system prior to plaintiffs’ purchase of the property. Although the three-year statute of limitations for negligence had passed, the plaintiffs argued that CPLR 214-c applied. CPLR 214-c applies to latent defects and the statute starts running upon discovery of the injury.  The Fourth Department determined CPLR 214-c did not apply, noting that the Court of Appeals has held the statute applies only to injury from “toxic torts:”

CPLR 214-c (1) provides that “the three-year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” … .

Here, plaintiffs do not seek “damages for personal injury or injury to property” (CPLR 214-c [1]); rather, they seek to be compensated for the cost of replacing an allegedly defective septic system. Thus, section 214-c is inapplicable to this action … . Moreover, the Court of Appeals, in interpreting section 214-c, has made clear that it applies only to toxic torts …, and plaintiffs’ claims have nothing do to with toxic substances. Instead, plaintiffs merely allege that the septic system was defective and that defendants failed to identify the defects during their inspections. We thus conclude that the court properly determined that the causes of action against the moving defendants are time-barred. Clendenin v Town of Milo, 2015 NY Slip Op 04976, 4th Dept 6-12-15

 

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The One-Year-and-Ninety-Day Time Limit for Bringing Suit Under the Public Authorities Law Is a Statute of Limitations, Not a Condition Precedent to Suit, and Is Therefore Subject to the Six-Month Extension for Recommencing a Suit Which Was Dismissed Without Prejudice Provided by CPLR 205(a)

The underlying medical malpractice action is against Erie County Medical Center Corporation, a public benefit corporation.  Pursuant to Public Authorities Law 3641, a notice of claim must be filed prior to the commencement of the lawsuit. Plaintiff had not filed a notice of claim. The action was dismissed without prejudice, subject to the terms of CPLR 205(a), which allows six months to recommence an action that has not been dismissed on the merits.  When the suit was recommenced, the defendant argued that the one-year-and-ninety-day time limit for bringing suit under the Public Authorities Law was not a statute of limitations subject to the CPLR 205(a) six-month extension, rather it was a condition precedent to suit and the (second) complaint must therefore be dismissed as untimely.  The Fourth Department determined the one-year-and-ninety-day time limit for suit under the Public Authorities Law was a statute of limitations, not a condition precedent, and the six-month extension provided by CPLR 205(a) applied:

It is well settled that CPLR 205 (a) does not apply when an act has to be performed within a statutory time requirement and is a condition precedent to suit (see Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 378-379…). We recognize, by way of example, that the one-year statutory period for commencement of suit against the Port Authority Trans-Hudson Corporation set forth in McKinney’s Unconsolidated Laws of NY § 7107 has been held to be a condition precedent to suit not entitled to the tolling benefit of CPLR 205 (a) (see Yonkers Contr. Co., 93 NY2d at 378-379). As emphasized by the Court of Appeals in Yonkers, “Unconsolidated Laws § 7107 unambiguously allows an action against the Port Authority only upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year’ ” (id., 93 NY2d at 379). Here, Public Authorities Law § 3641 (1) (c) contains no similar express conditional language.

We note that CPLR 205 (a) has been held to apply to proceedings commenced under General Municipal Law § 50-i …, the language of which is identical to that of Public Authorities Law § 3641 (1) (c) at issue herein. We thus conclude that the express language of section 3641 (1) (c) does not support defendant’s contention that the one-year and 90-day period is a condition precedent and not a statute of limitations … . Benedetti v Erie County Med. Ctr. Corp., 2015 NY Slip Op 04964, 4th Dept 6-12-15

 

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Court’s Equitable Power to Set Aside a Foreclosure Sale as “An Instrument of Injustice” Explained and Applied

The Fourth Department, over a dissent, exercised its equitable power to set aside a foreclosure sale which, it determined, had been made an “instrument of injustice.” The facts of the case, which include an extensive appellate history, defy adequate summarization here.  The court explained its equitable power to set aside the foreclosure sale:

It is well settled that, even after a judicial sale to a good faith purchaser, “[a] court may exercise its inherent equitable power over a sale made pursuant to its judgment or decree to ensure that it is not made the instrument of injustice . . . Although this power should be exercised sparingly and with great caution, a court of equity may set aside its own judicial sale upon grounds otherwise insufficient to confer an absolute legal right to a resale in order to relieve [a party] of oppressive or unfair conduct” … . Generally, such discretion, “which is separate and distinct from any statutory authority” …, is exercised where fraud, mistake, exploitive overreaching, misconduct, irregularity or collusion “casts suspicion on the fairness of the sale” … . It may also be exercised where “the price is so inadequate as to shock the court’s conscience” … or where the judicial sale has been “made the instrument of injustice” … .

While we agree with defendants that there has been no showing of fraud, mistake, exploitive overreaching, misconduct, irregularity or collusion, and the price is not so inadequate as to shock the conscience, we agree with plaintiff that, under the circumstances of this case, the judicial sale has been made the instrument of injustice. Altshuler Shaham Provident Funds, Ltd. v GML Tower LLC, 2015 NY Slip Op 04952, 4th Dept 6-12-15

 

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Florida’s Law of Restrictive Covenants Re: Non-Solicitation of Customers by a Former Employee Violates New York Public Policy by Favoring Employers at the Expense of Employees

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the Florida law on restrictive covenants re: non-solicitation of customers by a former employee violated the public policy of New York State.  Therefore the choice-of-law provision in the employee agreement was unenforceable.  The Court of Appeals went on to find that, applying New York law, questions of fact precluded a determination whether the non-solicitation agreement at issue should be enforced.  With respect to the public policy violation, the court explained:

… Florida law requires a party seeking to enforce a restrictive covenant only to make a prima facie showing that the restraint is necessary to protect a legitimate business interest, at which point the burden shifts to the other party to show that the restraint is overbroad or unnecessary (see Fla Stat § 542.335 [1] [c]). If the latter showing is made, the court is required to “modify the restraint and grant only the relief reasonably necessary to protect” the employer's legitimate business interests (Fla Stat § 542.335 [1] [c]). In contrast to this focus solely on the employer's business interests, under New York's three-prong test, “[a] restraint is reasonable only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public. A violation of any prong renders the covenant invalid” … . Whereas Florida shifts the burden of proof after the employer demonstrates its business interests (see Fla Stat § 542.335 [1] [c]), New York requires the employer to prove all three prongs of its test before the burden shifts … . Further, Florida law explicitly prohibits courts from considering the harm or hardship to the former employee (see Fla Stat § 542.335 [1] [g] [1]). This directly conflicts with New York's requirement that courts consider, as one of three mandatory factors, whether the restraint “impose[s] undue hardship on the employee” … .

Additionally, under Florida law, courts are required to construe restrictive covenants in favor of protecting the employer's interests, and may not use any rules of contract interpretation that would require the construction of a restrictive covenant narrowly or against the restraint or drafter (see Fla Stat § 542.335 [1] [h]). In contrast, New York law provides that “[c]ovenants not to compete should be strictly construed because of the 'powerful considerations of public policy which militate against sanctioning the loss of a [person's] livelihood'” … . Brown & Brown, Inc. v Johnson, 2015 NY Slip Op 04876, CtApp 6-11-15

 

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In an Action Stemming from the Purchase of Residential Mortgage-Backed Securities, the Breach of Defendant’s Representations and Warranties Concerning the Borrowers’ Incomes, Occupancy Status and Debt Obligations Occurred on the Date the Contract Was Executed (Starting the Six-Year Statute of Limitations at that Point)—Defendant’s Obligation to Cure or Repurchase Did Not Constitute a Second Contract—Defendant’s Refusal to Cure or Repurchase, Therefore, Did Not Start the Running of Another Six-Year Limitations Period

The Court of Appeals, in a full-fledged opinion by Judge Read, in an action involving residential mortgage-backed securities, determined that a cause of action based upon breach of representations and warranties accrued on the date the contract was executed. A few years after the parties executed a mortgage loan purchase agreement (MLPA) and a pooling a servicing agreement (PSA) borrowers began to default, resulting in hundreds of millions in losses.  Upon investigation it was determined that the underlying mortgage loans failed to comply with the defendant’s representations and warranties about the borrowers’ incomes, occupancy status and existing debts.  The Court of Appeals held that the breach of the representations and warranties occurred when the MLPA was executed on March 28, 2006.  The action was commenced on the last day of the limitations period (on March 28, 2012), but was untimely because the contractual conditions precedent to suit had not been complied with as of that date. Plaintiff argued that the defendant’s refusal to cure or repurchase after notification in January, 2012, breached a second contract and started the six-year statute running from that point. The Court of Appeals held that the defendant’s repurchase obligation was not a valid agreement “to undertake a separate obligation, the breach of which does not arise until some future date…”.  “[Defendant’s] cure or repurchase obligation could not reasonably be viewed as a distinct promise of future performance. It was dependent on, and indeed derivative of, [defendant’s] representations and warranties, which did not survive the closing and were breached, if at all, on that date…” . ACE Sec. Corp. v DB Structured Prods., Inc., 2015 NY Slip Op 04873, CtApp 6-11-15

 

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Plaintiff Not Competent When Release Was Signed/Statute of Limitations Tolled by Plaintiff’s Mental Disability

The Third Department determined Supreme Court properly concluded the release signed by the plaintiff was not enforceable, because the plaintiff was not competent at the time it was signed, and the statute of limitations was tolled by plaintiff’s mental disability. Plaintiff suffered a brain injury when he was struck by a car in 1991. A few months later plaintiff signed a release provided by an insurance adjuster in return for $5000.  The case languished for years and Supreme Court denied defendant’s motion for summary judgment dismissing the case in 2014. The court explained the relevant law:

With respect to the release signed by plaintiff, “the burden of proving incompetence rests upon the party asserting incapacity to enter into an agreement [and], to prevail, plaintiff was required to establish that [his] ‘mind was so affected as to render [him] wholly and absolutely incompetent to comprehend and understand the nature of the transaction'” … . The incapacity must be shown to exist at the time the pertinent document was executed … . Regarding the statute of limitations issue, the toll for “insanity” provided by CPLR 208 is narrowly interpreted, the concept of insanity is “equated with unsoundness of mind” … and encompasses “only those individuals who are unable to protect their legal rights because of an over-all inability to function in society” … . The mental incapacity must exist at or be caused by the accident and continue during the relevant time … . Lynch v Carlozzi, 2015 NY Slip Op 04893, 3rd Dept 6-11-15

 

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The Three-Year Statute of Limitations in the Education Law Need Not Be Raised as a Defense—Here the Charges Against a Teacher Were Time-Barred—The Department of Education (DOE) Did Not Demonstrate the Charges Were Criminal (to Which the Three-Year Statute Would Not Have Applied)

The First Department determined the third set of charges brought against petitioner-teacher, alleging the teacher improperly obtained his daughter’s admission to NYC Department of Education (DOE) schools for which she was not zoned, was time-barred.  Although the three-year statute of limitations in the Education Law would not apply had the allegations constituted a crime, the hearing officer did not find the teacher’s conduct to be criminal. The court determined that the first two set of charges against the teacher did not justify termination (the penalty imposed) and remitted the matter for a lesser punishment. The court noted that the statute of limitations in the Education Law need not be raised as a defense:

Supreme Court did not exceed its authority in finding that the third set of charges against petitioner was time-barred. Education Law § 3020-a(1) requires that disciplinary charges against a teacher be brought within three years from the date of the alleged misconduct, unless the alleged misconduct constituted a crime when committed. Petitioner was not required to raise the statutory time limitation set forth in Education Law § 3020-a(1) as a defense in the disciplinary proceeding. Where, as here, “a statute creates a right unknown at common law, and also establishes a time period within which the right may be asserted, the time limit is . . . a condition attached to the right as distinguished from a [s]tatute of [l]imitations which must be asserted by way of defense” … . Accordingly, DOE had the burden of establishing that it met the time requirement set forth in Education Law § 3020-a(1) or that the crime exception to the time requirement applied … . DOE failed to meet its burden. Matter of Suker v New York City Board/ Dept. of Educ., 2015 NY Slip Op 04940, 1st Dept 6-11-15

 

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Tax Payments Made Voluntarily Cannot Be Recovered Under a Mistake of Law Theory/Supreme Court Should Not Raise a “Non-Subject-Matter-Jurisdiction” Defense Sua Sponte

The Third Department determined Supreme Court properly denied petitioner’s request for a refund of real estate taxes paid re: optic cable installations located on private rights-of-way because petitioner had not protested the tax payments and made them voluntarily.  In addition, the court noted that the court should not have raised the statute of limitations defense sua sponte because the defense did not implicate subject matter jurisdiction:

… [U]nless subject matter jurisdiction is implicated, a court should not raise an issue sua sponte when a party is prejudiced by its inability to respond … . Here, because respondent Essex County failed to raise the statute of limitations as an affirmative defense in a pre-answer motion to dismiss or in its answer (see CPLR 3211 [a] [5]; [e]; 7804 [f]), it was improper for Supreme Court to raise it sua sponte … . * * *

… [W]e find no reason to disturb Supreme Court’s partial denial of the petition on the ground that petitioner failed to demonstrate that it paid the taxes involuntarily. To recover payments made under a mistake of law, as in the present case … , a taxpayer is required to show that the payments were made involuntarily … . This requirement ensures that governmental entities have notice that they may need to provide for tax refunds … . Here, petitioner fully paid all of the relevant taxes and offered no proof that it did so under protest or that such payments were otherwise involuntary … . Indeed, petitioner did nothing to indicate that its payments were involuntary until nearly 18 months after the final contested tax bill was paid, when petitioner submitted its RPTL 556-b correction applications … . Matter of Level 3 Communications, LLC v Essex County, 2015 NY Slip Op 04899, 3rd Dept 6-11-15

 

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