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Summary Judgment May Be Based Upon an Unpled Affirmative Defense/Oral Waiver May Be Effective in the Face of a “Written Waiver” Requirement in the Contract

The First Department noted that a motion for summary judgment can be based upon an unpleaded affirmative defense in the absence of surprise and determined there was a question of fact whether an oral waiver was effective in the face of a contract provision requiring any waiver to be in writing:

Defendants’ failure to plead the affirmative defense of waiver in their answer did not preclude them from asserting such defense for the first time on summary judgment, since “[t]here is no prohibition against moving for summary judgment based on an unpleaded defense where the opposing party is not taken by surprise and does not suffer prejudice as a result” … . * * *

Although the management agreement contained a provision that any waivers must be in writing, “a contracting party may orally waive enforcement of a contract term notwithstanding a provision to the contrary in the agreement. Such waiver may be evinced by words or conduct, including partial performance”… . Matthew Adam Props., Inc. v The United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, 2015 NY Slip Op 02419, 1st Dept 3-24-15

 

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County Must Seek a Medical Income Execution Order (to Pay for a Child’s Health Insurance) Where No Medical Income Execution Order Has Yet Been Issued in the Case

The Fourth Department determined petitioner-county must seek a judicial medical income execution order (to pay for a child’s health insurance) and cannot simply issue an income execution on its own where no medical income execution has previously been issued in the matter:

Petitioner contends that, pursuant to CPLR 5241 (b) (2) (ii), it may issue a medical income execution to a new employer of the parent without going to court, and it was therefore error for the Support Magistrate to include the provision that a medical income execution “shall not [be issued] without such Court Order.” We conclude that petitioner’s reliance on CPLR 5241 (b) (2) (ii) is misplaced. A plain reading of that statute shows that it is not applicable here because neither parent provided health insurance coverage for the child at the time the Support Magistrate issued the order. The statute specifically provides that, “where the [parent] provides such coverage and then changes employment,” an amended medical income execution may be issued by petitioner without returning to court (id. [emphasis added]). Inasmuch as there was no medical income execution that was issued in this case, there was nothing to “amend.” Contrary to petitioner’s further contention, a medical income execution can be issued only where a court has ordered a parent to provide health insurance benefits, and that has not occurred yet inasmuch as the Support Magistrate determined that such benefits are not available (see CPLR 5241 [b] [2] [i]…). Matter of Chautauqua County Dept. of Health & Human Servs. v Matteson, 2015 NY Slip Op 02259, 4th Dept 3-20-15

 

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Garage Not Used Exclusively for an Exempt Purpose Not Entitled to Tax Exemption/Supreme Court Should Not Have Deemed the “Statement of Undisputed Material Facts” to Have Been Admitted by the Respondent, Despite Respondent’s Failure to Provide a Paragraph by Paragraph Response As Required by the Rule

The Fourth Department determined that property (a parking garage) was not entitled to tax exempt status because it was not used exclusively for an exempt purpose, noting that parking for private-practice physician’s offices was not exempt (parking for a hospital is). The Fourth Department further held that the respondent city did not admit to the petitioner’s “Statement of Undisputed Material Facts,” even though the city did not submit a paragraph by paragraph response as required by the relevant Rule of the Commercial Division:

It is well settled that, pursuant to the RPTL, “[r]eal property owned by a corporation or association organized or conducted exclusively for . . . hospital . . . purposes . . . and used exclusively for carrying out thereupon . . . such purpose[] . . . shall be exempt from taxation” (RPTL 420-a [1] [a]). Here, respondents concede that petitioner is organized for an exempt purpose, as a hospital, and thus only the second prong of the statute is at issue. “[T]he test of entitlement to tax exemption under the used exclusively clause of [RPTL 420-a (1) (a)] is whether the particular use is reasonably incident[al] to the [primary or] major purpose of the [corporation] . . . Put differently, the determination of whether the property is used exclusively for the statutory purposes depends upon whether its primary use is in furtherance of the permitted purposes” … . “The burden of establishing that the property is entitled to a tax exemption rests with the taxpayer” … . Additionally, when a taxpayer in a tax certiorari proceeding seeks summary judgment, “it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor . . . , and he must do so by tender of evidentiary proof in admissible form” … .

Here, we agree with respondents that petitioner failed to establish that the primary use of the subject parcels is for exempt purposes, and thus it failed to meet its burden on the motion. Indeed, the evidence submitted by petitioner in support of the motion established that an undetermined portion of the people who used the garage did so for purposes associated with nonexempt uses such as the adjacent private physicians’ offices. Inasmuch “[a]s the private practice of medicine by a hospital’s attending physicians is primarily a commercial enterprise, and such physicians’ offices are not entitled to a tax exemption under RPTL 420-a . . . , the parking spaces subleased to those offices cannot be said to so further the hospital’s purposes as to create an entitlement to an exemption” … . * * *

…[W]e conclude that the court abused its discretion in deeming respondents to have admitted all the information in petitioner’s “Statement of Undisputed Material Facts” submitted pursuant to Rule 19-a of the Rules of the Commercial Division of the Supreme Court ([hereafter, 19-a Statement] see 22 NYCRR 202.70 [g] [Rule 19-a (a)]). The 19-a Statement was merely an almost verbatim repetition of an affidavit submitted by one of petitioner’s employees in support of the motion, and respondents clearly disputed the content of the information in it. Further, petitioner failed to submit sufficient evidence in admissible form in support of the 19-a Statement, as required by the Rule (see 22 NYCRR 202.70 [g] [Rule 19-a (d)]; …). Although “the rule gives a motion court the discretion to deem facts admitted, the court is not required to do so” … . Consequently, although “it would have been better for [respondents] to submit a paragraph-by-paragraph response to [petitioner’s] statement” as required by the regulation (… see 22 NYCRR 202.70 [g] [Rule 19-a (b)]), under the circumstances the court abused its discretion in deeming the entire statement admitted. The evidence submitted in support of petitioner’s motion failed to eliminate all “triable issues of fact and the court was not compelled to grant summary judgment solely on the basis of blind adherence to the procedure set forth in Rule 19-a” … . Matter of Crouse Health Sys., Inc. v City of Syracuse, 2015 NY Slip Op 02258, 4th Dept 3-20-15

 

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Sua Sponte Dismissal of Complaint Not Justified/Lack of Standing Not a Jurisdictional Defect

In a foreclosure action, the Second Department noted that Supreme Court did not have the authority to, sua sponte, dismiss the complaint, even if the plaintiff did not have standing, which is not a jurisdictional defect.  (The Second Department determined the plaintiff did in fact have standing.):

The Supreme Court also erred in, sua sponte, directing dismissal of the complaint. “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 sua sponte dismissal of the complaint. Even if the plaintiff had lacked standing it would not have constituted a jurisdictional defect and would not warrant a sua sponte dismissal of the complaint … . Citimortgage, Inc. v Chow Ming Tung, 2015 NY Slip Op 02087, 2nd Dept 3-18-15

 

Amendment of Summons and Complaint after the Statute of Limitations Has Run

In affirming the amendment of a summons and complaint, (apparently) after the running of the statute of limitations, the Second Department explained the relevant law:

CPLR 305(c) authorizes the court, in its discretion, to “allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced.” Where the motion is to cure “a misnomer in the description of a party defendant,” it should be granted even after the statute of limitations has run where “(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought” … . “Such amendments are permitted where the correct party defendant has been served with process, but under a misnomer, and where the misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was in fact seeking to sue” … . “However, while CPLR 305(c) may be utilized to correct the name of an existing defendant . . . it cannot be used by a party as a device to add or substitute a party defendant'” … , and it may not be used “to proceed against an entirely new defendant, who was not served, after the expiration of the statute of limitations” … . Sanders v 230fa, LLC, 2015 NY Slip Op 02107, 2nd Dept 3-18-15

 

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Invoices Together with Purchase Orders Created an Agreement to a Reduced Sales-Contract Statute of Limitations

The Second Department determined the sales-contract statute of limitations was validly reduced from four years to one year by the terms of invoices:

While UCC 2-725(1) generally provides that a cause of action alleging breach of a sales contract must be commenced within four years after it has accrued, that provision also allows the parties to a sales contract to “reduce the period of limitation to not less than one year” (UCC 2-725[1]…). Here, the defendants met their initial burden by demonstrating that their invoices containing the one-year limitation period constituted an acceptance that, together with the plaintiff’s purchase order, was effective in forming a contract, and that the one-year limitation period, an additional term set forth in the invoices, was presumed to have become part of this contract between the parties unless one of the three exceptions in UCC 2-207(2) applied (see UCC 2-207[1], [2]…). It is undisputed that the plaintiff’s action was not commenced within one year from the alleged breach, as required by the additional term. The burden then shifted to the plaintiff, as the party opposing the inclusion of the additional term, to raise a question of fact as to whether one of the three exceptions under UCC 2-207(2) was applicable … . The plaintiff failed to satisfy its burden.

Contrary to the plaintiff’s contention, the abbreviated period of limitation was not against public policy (see CPLR 201; UCC 2-725[1]…). ” Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced'” … . ” Where the party against which an abbreviated Statute of Limitations is sought to be enforced does not demonstrate duress, fraud, or misrepresentations in regard to its agreement to the shortened period, it is assumed that the term was voluntarily agreed to'” … . State of Narrow Fabric, Inc. v UNIFI, Inc., 2015 NY Slip Op 02110, 2nd Dept 3-18-15

 

When the One-Year Statute of Limitations Begins to Run for False Arrest, Malicious Prosecution and Assault and Battery Causes of Action Explained/Elements of False Arrest and Malicious Prosecution Explained

The Second Department explained when the one-year statute of limitations begins to run for false arrest, malicious prosecution and assault and battery causes of action.  The court further explained the elements of false arrest and malicious prosecution:

“Causes of action based on false arrest . . . accrue upon the subject’s release[ ] from confinement’ and are governed by a one-year statute of limitations” … . “The one-year statute of limitations applicable to a cause of action for malicious prosecution (see CPLR 215[3]) does not begin to run until favorable termination of the underlying criminal proceeding” … . * * *

…Supreme Court erred in denying that branch of the … defendants’ motion which was for summary judgment dismissing the third cause of action, which alleged assault and battery, insofar as asserted against them as time-barred. That cause of action is also governed by the one-year statute of limitations set forth in CPLR 215 (see CPLR 215[3]…). It is undisputed that the alleged assault and battery occurred more than one year prior to the commencement of this action. * * *

“A civilian defendant who merely furnishes information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution” … . To be held liable for false arrest, “the defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his [or her] own volition'” … . Similarly, in order for a civilian defendant to be considered to have initiated the criminal proceeding so as to support a cause of action based on malicious prosecution, ” it must be shown that defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act'” … . “Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or District Attorney… . Williams v CVS Pharmacy, Inc., 2015 NY Slip Op 02115, 2nd Dept 3-18-15

 

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The Jury Should Have Been Instructed on the Res Ipsa Loquitur Doctrine—Infection Developed After Injection

The Second Department determined plaintiff’s motion to set aside the verdict should have been granted because the jury should have been instructed on the res ipsa loquitur doctrine.  Plaintiff developed an infection after a cortisone injection.  There was expert testimony that such an infection would not develop if standard procedures had been followed:

Under appropriate circumstances, the evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event (see Restatement [Second] of Torts § 328D). “Res ipsa loquitur, a doctrine of ancient origin …, derives from the understanding that some events ordinarily do not occur in the absence of negligence” … . “In addition to this first prerequisite, plaintiff must establish, second, that the injury was caused by an agent or instrumentality within the exclusive control of defendant and, third, that no act or negligence on the plaintiff’s part contributed to the happening of the event … . Once plaintiff satisfies the burden of proof on these three elements, the res ipsa loquitur doctrine permits the jury to infer negligence from the mere fact of the occurrence” … . Moreover, “expert testimony may be properly used to help the jury bridge the gap’ between its own common knowledge, which does not encompass the specialized knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence, and the common knowledge of physicians, which does .. .

Here, the plaintiff presented expert testimony that a MRSA infection from an injection does not occur if the podiatrist adheres to the accepted standard of care. Bernard v Bernstein, 2015 NY Slip Op 02084, 2nd Dept 3-18-15

 

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Stipulation of Settlement Not Enforceable/All Material Terms Not Included

The Second Department determined the purported stipulation of settlement did not meet the standards set forth in CPLR 2104:

Absent the formalities required by statute, a stipulation of settlement is not enforceable (see CPLR 2104…). Pursuant to CPLR 2104, “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.” The stipulation must be “definite and complete” … , and all material terms must be included … .

In this case, the alleged written stipulation of settlement …, entitled “Agreement in Principle,” was not signed by all the parties to the litigation, and the agreement did not state that the two signatories to the agreement intended to bind all the parties to the agreement’s terms. Further, as a material term of the agreement at issue was contingent upon the parties’ executing a formal agreement, the agreement constituted a mere agreement to agree, which is unenforceable … . De Well Container Shipping Corp. v Mingwei Guo, 2015 NY Slip Op 02090, 2nd Dept 3-18-15

 

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Criteria for Balancing the Need for a Public Trial and First Amendment Rights (Freedom of the Press) With the Defendant’s Right to a Fair Trial Discussed in Some Detail—Here the Court’s Sealing of Some Records and Closures of the Courtroom Reflected a Proper Discretionary Balance

The First Department, in a detailed decision, determined Supreme Court had properly balanced the requirement that a criminal trial be open to the public and the defendant’s right to a fair trial.  Because the court properly used its discretion to balance the two concerns neither mandamus nor prohibition was an available remedy.  The decision is worth reading—many of the issues discussed are not noted here:

The First Amendment guarantees the public and the press a qualified right of access to criminal trials … . This right must be kept in balance with the compelling interest of the defendant’s Sixth Amendment right to a fair trial and the right to privacy of prospective jurors … . The public’s right of access may be limited where there is a compelling governmental interest and closure is narrowly tailored to serve that interest … .

New York’s approach to courtroom closure is “comparable to the federal analysis” … . The press is not imbued with any special right of access, and while it possesses “the same right of access as the public,” it has no right to information about a trial that is “greater” or “superior” to that of the general public … . A ” trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity'” … . Decisions to seal or disclose records fall within the inherent power of the court to control the records of its own proceedings … . While a court must guarantee that the defendant receives a fair trial, it must do so in a manner that balances the interests of “the defendant, jurors, witnesses, attorneys and the public at large” … . Matter of Daily News, L.P. v Wiley, 2015 NY Slip Op 02010, 3rd Dept 3-12-15

 

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