You are here: / Civil Procedure
, , ,

City Was “United in Interest” with Non-Profit Corporation Which Maintained Central Park Pursuant to a Contract with the City—Therefore Plaintiff, Who Was Allegedly Injured by a Truck Owned by the Non-Profit Corporation, Could Amend His Complaint to Include the Non-Profit Corporation After the Statute of Limitations Had Run—However the Extent to Which the City Was “United in Interest” Was Dictated by the Terms of the Contract

The First Department determined that the Conservancy, a non-profit corporation which maintains Central Park under a contract with the City of New York, was “united in interest” with the City.  Therefore, plaintiff, who allegedly had been injured by a maintenance truck owned by the Conservancy, could amend his complaint to include the Conservancy, even though the statute of limitations had run.  The ‘unity of interest” was defined by the terms of the contract.  Because the contract did not call for the City to indemnify the Conservancy for gross negligence, the complaint against the Conservancy could not include the gross negligence claim:

… [P]laintiff relied on the 2006 Central Park Agreement, a contract between the City and the Conservancy, a nonprofit organization, in which they acknowledged that they had formed an effective “public/private partnership.” Under the Agreement, the Conservancy is required to provide specified maintenance services in Central Park to the “reasonable satisfaction” of the City, and the City is broadly required to indemnify the Conservancy “from and against any and all liabilities . . . arising from all services performed and activities conducted by [the Conservancy] pursuant to this agreement in Central Park.” The City’s indemnification obligation, among other things, expressly excludes claims arising from gross negligence or intentional acts of the Conservancy or its agents or volunteers. As a result of the Agreement, the Conservancy acts, in effect, as an independent contractor fulfilling the City’s nondelegable obligation to maintain the City parks in reasonably safe condition … .

The City is vicariously liable for the Conservancy’s negligence in the course of providing maintenance in Central Park by virtue of the contractual indemnification provision, and the parties are thus united in interest … . Further, since the City has a nondelegable duty to maintain Central Park, it is vicariously liable for negligence committed by the contractor in the course of fulfilling that duty … . However, the City is correct that its interests are not united with those of the Conservancy with respect to the proposed gross negligence claim, and leave to assert that claim against the Conservancy is therefore denied. Brunero v City of New York Dept of Parks & Recreation, 2014 NY Slip Op 07444, 1st Dept 10-30-14

 

, ,

How to Handle a Motion to Dismiss for Failure to State a Claim When Documentary Evidence Is Considered Explained/Dismissal of Foreclosure Action Based on Lack of Standing Is Not a Dismissal on the Merits/Striking of a Foreclosure Complaint for Failure to Comply with a Discovery Order Is Not a Dismissal on the Merits

The Second Department determined plaintiff did not have a cause of action to discharge his mortgage.  The court explained how a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a claim is handled when documentary evidence is submitted and considered on the motion.  [With respect to the plaintiff’s allegations that the defendant could not institute new foreclosure proceedings against him, the court noted that the dismissal of a foreclosure complaint premised on a lack of standing is not a dismissal on the merits for res judicata purposes, and the striking of a complaint for noncompliance with a discovery order is also not a dismissal on the merits:]

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff 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 … . Caliguri v JPMorgan Chase Bank NA, 2014 NY Slip Op 07319, 2nd Dept 10-29-14

 

Language In Bill of Particulars Was Necessary to Support Claim for Punitive Damages—Language Should Not Have Been Struck as “Scandalous or Prejudicial”

The Second Department reversed Supreme Court’s order that plaintiff remove language from the bill of particulars which Supreme Court deemed “scandalous or prejudicial:”

… Counsel … made an oral application, in effect, pursuant to CPLR 3024, to strike certain language from the plaintiff’s bill of particulars. … The court … directed the plaintiff to remove allegations that the respondents engaged in “recklessness/reckless, intentional and malicious conduct, gross negligence, blatantly illegal conduct/illegal conduct” (hereinafter the subject language) from her bill of particulars … .  * * *

CPLR 3024(b) provides that “[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading.” This rule is applicable to bills of particulars as well … . In reviewing a motion pursuant to CPLR 3024(b), “the inquiry is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action” … . Matters that are unnecessary to the viability of the cause of action and would cause undue prejudice to the defendants should be stricken from the pleading or bill of particulars … .

The causes of action asserted by the plaintiff in the complaint demonstrate that the subject language was relevant to this matter, and necessary to support the pleading based on the punitive damages sought. Irving v Four Seasons Nursing & Rehabilitation Ctr, 2014 NY Slip Op 07330, 2nd Dept 10-29-14

 

, , ,

Criteria for Dismissal of a Complaint Pursuant to CPLR 3211(a)(1) [Defense Based Upon Irrefutable Documentary Evidence] and CPLR 3211(a)(7) [Failure to State a Cause of Action] Explained

In the context of a legal  malpractice action, in affirming the denial of motions to dismiss, the Second Department explained the criteria for motions to dismiss pursuant to CPLR 3211(a)(1) [defense founded on documentary evidence] and CPLR 3211(a)(7) [failure to state a claim]:

A party seeking relief pursuant to CPLR 3211(a)(1) on the ground that his or her defense is founded upon documentary evidence ” has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim'” … . In the instant matter, the documentary evidence submitted by the defendants, consisting of the orders issued by the Supreme Court in the underlying action, failed to utterly refute the plaintiff’s allegations of malpractice or conclusively establish a defense as a matter of law in the instant action … . * * *

On a motion to dismiss pursuant to CPLR 3211(a)(7), the facts alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to 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” … . Here, the plaintiff alleged that, but for the defendants’ negligence, including their failure to assert “appropriate claims against the proper parties, . . . the Plaintiff’s medical malpractice claim would have succeeded and resulted in a different, better and/or more positive outcome.” Construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, as required, the plaintiff stated a cause of action to recover damages for legal malpractice … . Tooma v Grossbarth, 2014 NY Slip Op 07347, 2nd Dept 10-29-14

 

,

Service Requirements of Education Law 3813(1) Do Not Apply to Disputes Involving the Public Interest As Opposed to Private Rights/Criteria for Granting an Extension (Nunc Pro Tunc) to Effect Service Pursuant to CPLR 306-b Explained

The Second Department determined an action challenging the award of a contract to a bus company by a school district should not have been dismissed for failure to comply with the service requirements of the Education Law and the CPLR.  The service requirements of Education Law 3813(1) do not apply to disputes involving the public interest as opposed to private rights.  The complaint was not served in accordance with CPLR 311(a)(7) because it was served upon a security guard and not one of the persons designated in the statute.  However, the matter was sent back for a ruling whether an extension of the time for service should be granted pursuant to CPLR 306-b:

In general, the service of a timely notice of claim pursuant to Education Law § 3813(1) is a condition precedent to the commencement of an action or proceeding against a school district, and failure to comply with this requirement is a fatal defect … . However, “not all actions and special proceedings have been held to be subject to the prerequisites of subdivision 1 of section 3813. The pertinent distinction is between actions and proceedings which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest; the provisions of subdivision 1 of section 3813 are applicable as to the former but not as to the latter” … .

Because “[t]he central purposes of New York’s competitive bidding statutes are the (1) protection of the public fisc by obtaining the best work at the lowest possible price; and (2) prevention of favoritism, improvidence, fraud and corruption in the awarding of public contracts” …, a proceeding challenging the award of a contract pursuant to the competitive bidding statutes is a matter in the public interest … . Since the petitioners here do not seek only to enforce their private rights, Education Law § 3813(1) does not apply … . …

Pursuant to CPLR 306-b, where service is not made within 120 days of the commencement of the action or proceeding, the matter is subject to dismissal, but the court may, “upon good cause shown or in the interest of justice, extend the time for service.” The Court of Appeals has made clear that these are two distinct standards and that, while “good cause” requires a showing of reasonable diligence, “the interest of justice” has a broader scope, which can encompass late service due to “mistake, confusion or oversight, so long as there is no prejudice to the defendant” … . In determining whether an extension of time is warranted in the interest of justice, a court may consider, inter alia, “diligence, or lack thereof, . . . expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” … . Matter of Baumann & Sons Buses Inc v Ossining Union Free Sch Dist, 2014 NY Slip Op 07353, 2nd Dept 10-29-14

 

,

Choice of Law Analysis Re: Liability Insurance Contracts [Extraordinarily Complex Lawsuit Stemming from Mold Rendering a Newly-Constructed Apartment Complex Uninhabitable]

The Second Department sorted out an extraordinary number of coverage, defense and indemnification issues in declaratory judgment actions stemming from mold which made an apartment complex uninhabitable.  The decision deals with too many specific questions to allow summarization.  With respect to a choice of law issue, the court wrote:

Under Pennsylvania law, not only are damages to the work product itself not considered an occurrence, but “damages that are a reasonably foreseeable result of the faulty workmanship are also not covered under a commercial general liability policy” … . The Pennsylvania courts have emphasized fortuity in determining whether a claim constitutes an occurrence … . Mold growth and resulting sickness and property damage would likely be considered by the Pennsylvania courts not to be fortuitous, but, rather, to be, from an objective standpoint, a reasonably foreseeable, natural consequence of faulty workmanship which allowed water to infiltrate the buildings … . Accordingly, because a conflict exists between Pennsylvania and New York law, New York’s choice-of-law rules must be applied to determine which state’s law governs … .

“In the context of liability insurance contracts, the jurisdiction with the most significant relationship to the transaction and the parties’ will generally be the jurisdiction which the parties understood was to be the principal location of the insured risk'” … . However, ” where it is necessary to determine the law governing a liability insurance policy covering risks in multiple states, the state of the insured’s domicile should be regarded as a proxy for the principal location of the insured risk'” … . Because the subject policy covered risks in multiple states, and because Erie’s and Penn National’s named insured was domiciled in Pennsylvania, it is appropriate to apply that state’s law. QBE Ins Corp v Adjo Contr Corp, 2014 NY Slip Op 07342, 2nd Dept 10-29-14

 

Court’s Role In Reviewing a Motion to Dismiss Pursuant to CPLR 3211 Explained

In reversing Supreme Court’s dismissal of a complaint alleging breach of the terms of an employment contract, the First Department explained the court’s role in determining a motion to dismiss under CPLR 3211 (a)(1) [documentary evidence] and (a)(7) [failure to state a claim]:

Under CPLR 3211(a)(1) and (a)(7) the court is limited to examining the complaint (and, under [a][1], the proffered documentary evidence) to determine whether the complaint states a cause of action … . The law is also settled that “in assessing the adequacy of a complaint under CPLR 3211(a)(7), the court must give the pleading a liberal construction, accept the facts as alleged in the complaint to be true and afford the plaintiff the benefit of every possible inference” … . “Whether the plaintiff will ultimately be successful in establishing [its] allegations is not part of the calculus” … . Greystone Funding Corp v Kutner, 2014 NY Slip Op 07296, 1st Dept 10-28-14

 

, ,

Where a Witness Is Incarcerated Pursuant to the Judiciary Law, After A Finding the Witness is In Contempt, and the Incarceration Is Not Specifically Imposed for a Definite Period As Punishment, But Rather Is Imposed to Induce the Witness to Obey the Court’s Order, the Contempt Finding is Civil in Nature—Double Jeopardy Will Not Bar Prosecution of the Witness for Criminal Contempt Under the Penal Law

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the contempt finding and incarceration of the defendant (under the Judiciary Law) following the defendant's refusal to testify at his brother's trial was civil, not criminal, in nature.  Therefore, the prohibition against double jeopardy did not bar the prosecution from charging the defendant with criminal contempt (under the Penal Law),  The Judiciary Law allows a finding of civil or criminal contempt.  Where, as here, a defendant is incarcerated in the hope that the incarceration will induce the defendant to follow the court's order (in this case the order to testify under immunity), but no period of incarceration is specifically designated and imposed as a punishment for failure to obey the court's order, the proceedings are civil in nature.

…”'[I]t is not the fact of punishment, but rather its character and purpose, that often serve to distinguish civil from criminal contempt” (… . Where a defendant is held in contempt for the remedial purpose of compelling compliance, imprisonment continues until such time as the contemnor acquiesces or is no longer able to do so … . Once the contemnor agrees, there is no remedial purpose to be served by continued confinement. The contemnor, therefore, holds “the keys of their prison in their own pockets” … .

In contrast, where a contemnor is sentenced to imprisonment for a definite period which cannot be affected — that is, ended —by the contemnor's compliance with the law, then the contempt is not remedial but punitive. As the Supreme Court has stated, “[i]f the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and [the defendant] cannot shorten the term by promising not to repeat the offense” … . * * *

For a court to summarily punish contempt, our Judiciary Law requires issuance of an order “stating the facts which constitute the offense” and “plainly and specifically prescribing the punishment to be inflicted” (Judiciary Law § 755 [emphasis added]). Notably absent from County Court's order of contempt here is a plain and specific statement of the punishment to be imposed upon defendant. The record reveals that the court issued a mandate of commitment and that defendant was confined pursuant to that mandate; no where does the record indicate the precise term of commitment. * * *

In cases where a court invokes its contempt power to coerce a defendant's obedience, the best practice would be for the court to state on the record that defendant may purge the contempt through compliance with the law. However, based on the record before us, it is clear that County Court did not summarily adjudicate defendant in criminal contempt or impose a definite sentence of punishment in accordance with the Judiciary Law. Therefore, defendant's conditional imprisonment was for the remedial purpose of compelling defendant's testimony, and as a consequence defendant's subsequent prosecution for contempt was not barred by double jeopardy. People v Sweat, 2014 NY Slip Op 07292, CtApp 10-28-14

 

,

Nail and Mail Service Not Valid—Not Calculated to Give Timely Notice of Order to Show Cause Challenging an Independent Nominating Petition

The Third Department determined that the method of service used for petitioner’s order to show cause challenging an independent nominating petition (naming a Libertarian Independent Party candidate for state senator) was not valid and reversed the granting of the application:

The manner of service provided in the order to show cause was not “‘reasonably calculated to give notice to the necessary parties so that receipt of such notice would normally be expected within the statutory 14-day period for commencing a proceeding concerning the validity of a designating petition'” … . To institute a proceeding “under Election Law § 16-102,” a petitioner “must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law § 16-102 (2)” … . In order to complete service, actual delivery must occur … . The Court of Appeals has held that the method of service employed here — affixing the order to show cause and papers to Bowman’s residence and mailing the same on the last day permitted for commencing a proceeding — is not a method of service reasonably calculated to give timely notice … . Contrary to petitioners’ assertions, our decision in Matter of Grimaldi v Board of Elections of the State of N.Y. (95 AD3d 1644 [2012]) is distinguishable. In that case, we concluded that service by affixing the papers to the respondent’s residence and either faxing or leaving a copy at the office of the respondent’s counsel on the last day to commence a proceeding was permissible; we did not permit affixing the papers to a residence and mailing the same on the last day to commence (id. at 1645-1646). Inasmuch as service was not completed within the time limit set forth in Election Law § 16-102 (2), the proceeding must be dismissed … . Matter of Wilson v Bowman, 2014 NY Slip Op 07289, 3rd Dept 10-24-14

 

,

Organizations Representing Lakeshore Residents Should Have Been Allowed to Intervene in an Action Concerning Regulation of Lake Water Levels (Dictated by an 80-Year-Old Injunction)—Neither the Doctrine of Collateral Estoppel Nor Laches Was a Bar to the Relief Sought by the Lakeshore Residents

The Third Department determined Supreme Court should have allowed organizations representing hundreds of lakeshore residents (PLA and Sandy Knolls) to intervene in an Article 78/declaratory judgment proceeding concerning an 80-year-old injunction re: the operation of a dam to control water levels in the lake.  The court held that the neither the doctrine of collateral estoppel nor laches was a bar to the relief sought by the lakeshore residents:

“Pursuant to CPLR 7802 (d), a court may allow other interested persons to intervene” in proceedings brought against public agencies … . Further, intervention is to be granted as of right in any action or proceeding where a nonparty demonstrates that its interest in the matter is not being duly represented and the nonparty may be “bound by the judgment” (CPLR 1012 [a] [2]) or, alternatively, may be permitted by the court “when the person’s claim or defense and the main action [or proceeding] have a common question of law or fact” (CPLR 1013…). * * *

Although requests for leave to intervene invoke a court’s discretionary authority …, the thorough and well-reasoned submissions of the PLA and Sandy Knolls have shown that they have a “‘direct and substantial interest’ in the outcome of this litigation” and, therefore, Supreme Court erred in denying their motions to intervene … . Further, inasmuch as the motions to intervene were filed in the months after Supreme Court issued its order in proceeding No. 1, but before the final judgment was rendered in that proceeding more than a year and one half later, and approximately two years before judgment was entered in proceeding No. 2, we do not agree that denial of the motions on untimeliness grounds was necessitated … . Nor are there any indicia of undue prejudice to petitioners that would warrant the exclusion of the proposed intervenors from the matters . In light of this determination, the argument that the PLA and Sandy Knolls should have been joined as necessary parties has become academic.

Next, we consider Supreme Court’s finding …that collateral estoppel principles precluded respondents from challenging the [injunction]. As a “narrower species of res judicata,” the equitable doctrine of collateral estoppel precludes a party from retrying “an issue clearly raised in a prior action or proceeding and decided against that party or those in privity” … . In this regard, privity is an amorphous term not “susceptible to ease of application” …, and a court’s finding that differing parties are in privity requires consideration of “the character, right and extent of a party’s role in one proceeding as it bears on the intervention of the collateral estoppel doctrine in another” … . * * *[R]espondents were never given “a full and fair opportunity to contest the decision now said to be controlling” …, nor were their interests properly represented by [the defendant in the original injunction action], so as to warrant the application of collateral estoppel … . Borst v International Paper Co., 2014 NY Slip Op 07224, 3rd Dept 10-23-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy