The First Department affirmed the denial of defendants’ motion for summary judgment noting that a matter raised for the first time in defendants’ reply affirmation is not properly before an appellate court. Anderson v Pena, 2014 NY Slip Op 07948, 1st Dept 11-18-14
The defendant driver of a payloader struck a school bus and a personal injury action was brought by plaintiff, a school aide who was on the bus. The Fourth Department determined defendants’ late motion to amend the answer should not have been granted, the striking of an affirmative defense based upon brake failure was properly struck because the original brakes had been replaced (spoliation), defendant-driver’s violation of Vehicle and Traffic Law 1143 established negligence as a matter of law, and the affirmative defense alleging comparative negligence on plaintiff’s part should not have been dismissed:
We agree with plaintiff that Supreme Court abused its discretion in granting defendants’ cross motion [to amend the answer], and we therefore modify the order accordingly. The motion was made seven months after plaintiff had filed the note of issue and more than two years after she commenced the action, yet defendants offered no excuse for their delay in making the motion … . We further conclude that preclusion of the affirmative defenses based on brake failure is warranted as a sanction for spoliation … . After the accident, Cerrone replaced the payloader’s allegedly defective brake calipers and discarded the old calipers. * * *
Vehicle and Traffic Law § 1143 provides that “[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” Here, plaintiff met her initial burden on the motion by establishing as a matter of law that ” the sole proximate cause of the accident was [Freeman]’s failure to yield the right of way’ ” to the school bus in violation of section 1143 … . At the time of the accident, the school bus was lawfully stopped on a public roadway, and the payloader collided with the school bus after entering the roadway from a parking lot … . In opposition to the motion, defendants failed to provide a nonnegligent explanation for the accident … . * * *
…T]he court erred in dismissing their affirmative defense of plaintiff’s culpable conduct, and we therefore further modify the order by reinstating that affirmative defense. CPLR 1411 provides that, “[i]n any action to recover damages for personal injury . . . , the culpable conduct attributable to the [plaintiff] . . . , including contributory negligence . . . , shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the [plaintiff] . . . bears to the culpable conduct which caused the damages.” The statute encompasses any culpable conduct that had a “substantial factor in causing the harm for which recovery is sought” … . Here, as the court found, there is no question that the sole proximate cause of the accident was defendants’ negligence. Defendants contend, however, that the injuries plaintiff allegedly sustained in the accident were caused, in whole or in part, by her position on the bus, i.e., the fact that she was kneeling or standing on the bus rather than sitting in a seat, and they submitted an expert affirmation to that effect … . Simoneit v Mark Cerrone Inc, 2014 NY Slip Op 07783, 4th Dept 11-14-14
The Fourth Department determined that a 2012 amendment to the Social Services Law (section 61) eliminated the requirement that counties be reimbursed by the state for certain medicaid expenses (so-called “Overburden expenses”) incurred prior to 2006, when the medicaid “Cap Statute” was enacted. The court dealt with several issues, including: (1) the retroactive effect of the 2012 amendment; (2) the effect of the amendment cannot be avoided under the “special facts” exception; (3) the amendment cannot be interpreted to render language superfluous; (4) municipalities cannot challenge the constitutionality of statutes; and (4) the lack of the capacity to sue, unlike standing, does not go to the jurisdiction of the court:
Section 61 clearly states that no further claims for reimbursement of overburden expenditures will be paid, notwithstanding Social Services Law § 368-h. Thus, the unequivocal wording of section 61 retroactively extinguishes petitioner’s right to submit claims for reimbursement of overburden expenditures made prior to 2006. “The retroactivity of a statute which is expressly retroactive, as here, will generally be defeated only if such retroactivity would violate due process or some other specific constitutional precept” … .
Here, however, in granting the cross motion, Supreme Court ordered that petitioner’s claims be “treated under Social Services Law § 368-a as [they] existed at the time that Petitioner incurred the Overburden expenses on Respondents’ behalf, pursuant to the special facts exception.” We agree with respondents that the special facts exception does not apply in this situation. Insofar as relevant here, that exception provides that “a court may deny an agency the benefit of a change in the law when it has intentionally or even negligently delayed action on [a claim] until after the law had been amended to authorize denial of the” claim … . There is no indication that resolution of the claims at issue was delayed until section 61 was enacted. * * *
It is well settled that, in interpreting a statute, a court ” must assume that the Legislature did not deliberately place a phrase in the statute that was intended to serve no purpose’ ” …, and must avoid an interpretation that ” result[s] in the nullification of one part of [a statute] by another’ ” … . Thus, “[a] construction that would render a provision superfluous is to be avoided” … . * * *
In its cross motion for summary judgment, petitioner sought, inter alia, judgment declaring that section 61 is unconstitutional because the statute deprived petitioner of due process by removing its vested rights. “[T]he traditional principle throughout the United States has been that municipalities and other local governmental corporate entities and their officers lack capacity to mount constitutional challenges to acts of the State and State legislation. This general incapacity to sue flows from judicial recognition of the juridical as well as political relationship between those entities and the State. Constitutionally as well as a matter of historical fact, municipal corporate bodies–counties, towns and school districts–are merely subdivisions of the State, created by the State for the convenient carrying out of the State’s governmental powers and responsibilities as its agents. Viewed, therefore, by the courts as purely creatures or agents of the State, it followed that municipal corporate bodies cannot have the right to contest the actions of their principal or creator affecting them in their governmental capacity or as representatives of their inhabitants” … .
It is equally well settled, however, that “[t]he issue of lack of capacity to sue does not go to the jurisdiction of the court, as is the case when the plaintiffs lack standing. Rather, lack of capacity to sue is a ground for dismissal which must be raised by motion and is otherwise waived” … . Matter of County of Niagara v Shah, 2014 NY Slip Op 07781, 4th Dept 11-14-14
The Fourth Department affirmed Supreme Court’s finding that the statute of limitations for an Article 78 proceeding contesting the determination(s) of a town planning board cannot be circumvented by bringing an action for a declaratory judgment. The dispute concerned whether “substantial work” had been commenced on a condominium construction project such that the approval of the project did not terminate automatically due to the passage of time. The planning board had concluded that “substantial work” included efforts to finance the project and was not limited to physical construction:
We reject plaintiff’s contention that the action was timely and properly brought as a declaratory judgment action pursuant to CPLR 3001. Although a six-year limitations period governs declaratory judgment actions (see CPLR 213 [1]), it is well settled that if such claim could have been brought in another form, then the shorter limitations period applies … . Here, Town Law § 274-a (11) provides for a 30-day limitations period for challenging “a decision of the [planning] board or any officer, department, board or bureau of the town” under CPLR article 78. Thus, plaintiff’s challenge to the Town Code Enforcement Officer’s determination of the meaning of “significant work” under Code § 170-94 (J) could have been brought in a CPLR article 78 proceeding under Town Law § 274-a (11). Assuming arguendo, as plaintiff contends, that no administrative appeal from such determination was required or available, the action was not commenced within the 30-day limitations period set forth in section 274-a (11), and the court therefore properly granted defendants’ motions to dismiss on that ground … . Likewise, any challenge to the 2005, 2009 or 2012 Planning Board’s actions could have been brought in a CPLR article 78 proceeding, and thus the instant action, even though denominated as one for a declaratory judgment, also was not timely commenced within the 30-day limitations period applicable to each such action of the Planning Board (see Town Law § 274-a [11]; see also Town Law §§ 267-c [1]; 282).
We reject plaintiff’s further contention that, with respect to the Town Code Enforcement Officer’s determination, there was no administrative action and thus “nothing to appeal.” Contrary to plaintiff’s contention, Code § 170-92 (B) specifically provides for an appeal to the Zoning Board of Appeals where it is alleged that there is an error in any order or decision made by an administrative officer or body in the enforcement of the Code … . Thus, plaintiff failed to pursue the available administrative appeal …, and the 30-day period of limitations applicable to judicial review therefrom cannot be circumvented by “the simple expedient of denominating the action one for declaratory relief” … . Bristol Homeowners Envtl Preserv Assoc LLC v Town of Bristol, 2014 NY Slip Op 07790, 4th Dept 11-14-14
In reversing Surrogate’s Court’s dismissal of objections to the fiduciary’s final accounting based on the laches defense, the Fourth Department explained the “open repudiation rule” and its relationship to laches. To take advantage of the laches defense, the fiduciary must have openly repudiated his or her obligation or there must have been a judicial settlement of the fiduciary’s account, niether of which took place here. The Fourth Department reached the same result as did Surrogate’s Court by concluding, pursuant to CPLR 3211(a)(7), that the numerous specific objections failed to state any cause of action against the fiduciary. With respect to the “open repudiation rule” and the “underperforming investments” allegations, the court wrote:
… [T]he open repudiation rule applies to the defense of laches … . As the Court of Appeals stated in Barabash, “[a] fiduciary is not entitled to rely upon the laches of his beneficiary as a defense, unless he repudiates the relation to the knowledge of the beneficiary” … . Moreover, the open repudiation rule “requires proof of a repudiation by the fiduciary which is clear and made known to the beneficiaries” … . * * * Inasmuch as petitioner’s repudiation of its role of fiduciary was a prerequisite to its assertion of the defense of laches, and because no such repudiation occurred, we conclude that the Surrogate erred in permitting petitioner to assert that defense and in dismissing the objections on the ground that the objections were barred thereby. * * *
The elements of a cause of action for breach of fiduciary duty are ” the existence of a fiduciary duty, misconduct by the [fiduciary] and damages that were directly caused by the [fiduciary’s] misconduct’ ” … . * * *
We reject objectants’ contention that they stated a cause of action for breach of fiduciary duty by filing an objection to petitioner’s refusal to consider investment in nonproprietary funds. Objectants correctly concede that the Prudent Investor Act permits petitioner to invest trust assets in proprietary funds (see EPTL 11-2.3 [d]). The Prudent Investor Act also requires a trustee such as petitioner with “special investment skills” to “exercise such diligence in investing and managing assets as would customarily be exercised by prudent investors of discretion and intelligence having special investment skills” (EPTL 11-2.3 [b] [6]). Even under this standard, however, ” it is not sufficient that hindsight might suggest that another course would have been more beneficial; nor does a mere error of investment judgment mandate a surcharge’ ” … . Thus, it is well settled that ” a fiduciary’s conduct is not judged strictly by the success or failure of the investment . . . In short, the test is prudence, not performance, and therefore evidence of losses following the investment decision does not, by itself, establish imprudence’ ” … . Here, objectants merely alleged that the proprietary funds were underperforming, which is insufficient to state a cause of action for breach of fiduciary duty … . Matter of JPMorgan Chase Bank NA, 2014 NY Slip Op 07799, 4th Dept 11-14-14
The Fourth Department dismissed a petition brought against a judge by a district attorney seeking the vacation of a plea on the ground that the district attorney did not agree to it. The district attorney argued he had agreed to a six-year sentence, not the five-year sentence imposed by the judge:
The extraordinary remedy of mandamus ” is never granted for the purpose of compelling the performance of an unlawful act’ ” …, and the Court of Appeals has repeatedly held that, after the entry of judgment and the commencement of sentence, courts have no statutory or inherent authority to vacate, over a defendant’s objection, a plea taken in contravention of CPL 220.10 or related statutory provisions … . Indeed, absent extrinsic fraud, “[i]n no instance ha[s the Court of Appeals] recognized a court’s inherent [or statutory] power to vacate a plea and sentence over defendant’s objection where the error goes beyond mere clerical error apparent on the face of the record and where the proceeding has terminated by the entry of judgment” … . Thus, mandamus does not lie here because we cannot compel respondent to exceed his statutory and inherent authority by directing him to vacate a plea taken in violation of CPL 220.10 (4) (a) after the commencement of sentence.
Furthermore, “restor[ing] the matter to its pre-plea status,” as petitioner seeks, would violate defendant’s constitutional protections against double jeopardy … . Contrary to petitioner’s contention, CPL 40.30 (3) “does not aid the analysis of the double jeopardy issue” … . The Court of Appeals has held that a plea taken without the People’s consent is not a nullity for purposes of that provision … .
Apart from the legal infirmities of petitioner’s position, we further conclude that the record does not factually support that position. Specifically, the record belies petitioner’s contention that his consent to defendant’s plea was conditioned on the imposition of a determinate, six-year term of imprisonment. Matter of Budelmann v Leone, 2014 NY Slip Op 07797, 4th Dept 11-14-14
The Fourth Department determined that the striking down (by the Court of Appeals) of a 2005 retroactive zoning ordinance which prohibited the continued use of petitioner’s property as a landfill did not require the striking down of a 2007 health and safety regulation which had the same effect. Because the two regulations are different in nature, the collateral estoppel doctrine is not available:
…[W]e agree with defendants that collateral estoppel does not apply here. “The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party’ ” … . The doctrine “applies only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action’ ” … . “The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination” … . Here, the issue in this casethe legality of the 2007 Law as applied to plaintiffswas neither raised by the parties nor decided by the Court of Appeals in Jones I. The issue before the Court of Appeals in Jones I was whether the 2005 Law was constitutional as applied to plaintiffs, i.e., whether the 2005 Law extinguished plaintiffs’ legal use of their land for the purpose of operating a C & D landfill on the entire parcel (see Jones I, 15 NY3d at 145-146). The Court of Appeals held that “the zoning ordinance at issue in this case [i.e., the 2005 Law], which restricted the development of landfills, does not apply to plaintiffs because they acquired a vested right to use their 50-acre parcel as a landfill for construction and demolition debris before the enactment of the zoning law” (id. at 142 [emphasis added]).
Although the 2005 Law and the 2007 Law both regulate landfill operations, they are not identical. The 2005 Law amended the Zoning Law to eliminate sanitary and demolition landfills as a permitted use in the AR-1 zoning district. The 2007 Law did not amend the Zoning Law to eliminate landfills in a particular zoning district but, rather, it enacted a Town-wide ban on solid waste management facilities. In concluding that the 2005 Law did not apply to plaintiffs, the Court of Appeals relied upon its [prior] decisions… . Those cases involve the nonconforming use doctrine, which shields vested property rights from the retroactive effect of zoning ordinances… .
The 2007 Law, however, is a health and safety regulation, not a retroactive zoning ordinance … . Unlike the 2005 Law, the 2007 Law does not “regulate[] the location of certain facilities within particular zoning districts” but, rather, it “generally regulat[es] the operation of [solid waste management] facilities in the interest of public safety and welfare” … . It is well established that “a municipality has the authority, pursuant to its police powers, to impose conditions of operation . . . upon preexisting nonconforming uses to protect public safety and welfare” (id.) and “may even eliminate [a] nonconforming use provided that termination is accomplished in a reasonable fashion” … . Jones v Town of Carroll, 2014 NY Slip Op 07780, 4th Dept 11-14-14
The Fourth Department determined the physician-patient privilege did not protect statements made by the defendant to the doctor while a police investigator was in the room:
We reject defendant’s contention that Supreme Court erred in allowing a medical professional to testify to statements defendant made to her while being examined at the hospital after his arrest. Defendant contends that his statements were subject to the physician-patient privilege despite the presence of a police investigator in the examination room because he was in custody and was not able to tell the investigator to leave the room. The physician-patient privilege, which is “entirely a creature of statute” .., is set forth in CPLR 4504 (a), and is applicable to criminal proceedings by virtue of CPL 60.10 … . In determining whether the physician-patient privilege applies, we must consider “whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential” … . Here, we conclude that defendant did not meet his burden of establishing that the privilege applied … , because there was no showing that he intended that his statements be confidential. Defendant was aware of the investigator’s presence, but he did not ask to speak with the medical professional privately. Additionally, defendant made numerous statements to others that were similar to the statements he made to the medical professional, both before and after making them to her. People v Hartle, 2014 NY Slip Op 07812, 4th Dept 11-14-14
In a wrongful death action, the Fourth Department determined that a report generated by the Office of Professional Medical Conduct (OPMC) concerning an investigation into decedent’s death was not discoverable pursant to the Public Health Law and a protective order pursuant to CPLR 3103 should have been granted in its entirety. The report was inadvertently disclosed by the plaintiff to all the defendants. Supreme Court ruled only that the report could not be further disseminated. The Fourth Department noted that Supreme Court’s order was appealable pursuant to CPLR 5701(a)(20(v) even though the denial of the motion for a protective order was without prejudice to renew:
…[W]e conclude that Supreme Court erred in granting defendants’ motion only in part, and should have granted the motion in its entirety. “Pursuant to Public Health Law § 230 (10) (a) (v), the files of OPMC concerning possible instances of professional misconduct are confidential, subject to [certain] exceptions,” including Public Health Law § 230 (9), which are not applicable here … . Inasmuch as there is no evidence in the record that the OPMC proceeded past the interview phase of [the doctor’s] alleged misconduct with respect to decedent, the OPMC report is not discoverable as a matter of law (see § 230 [10] [a] [v]). Thus, we conclude that the court erred in failing to restore this matter to the “status quo prior to the[inadvertent] disclosure”… . Kirby v Kenmore Mercy Hosp, 2014 NY Slip Op 07804, 4th Dept 11-14-14
The Fourth Department determined the complaint did not state causes of action for replevin and conversion, but did state a cause of action for fraud. The motions to dismiss the replevin and conversion causes of action pursuant to CPLR 3211(a)(7) should therefore have been granted. The basis of the complaint was the allegation that defendants embezzled as much as $4 million from an incapacitated person (Aida Corey):
Addressing first the replevin cause of action, we note that replevin is a remedy employed to recover a specific, identifiable item of personal property …, and “[o]rdinary currency, as a rule, is not subject to replevin” … . Unless the currency can be specifically identified, i.e., it consists of specific, identifiable bills or coins, replevin does not lie … . Here, the amended complaint alleges that the individual defendants “have used some or all of Aida Corey’s $4 million in cas[h] to purchase real and personal property and other tangible assets” and that they “have taken approximately $4 million of Aida Corey’s cash and/or personal property.” The sole focus of the parties, both in Supreme Court and on appeal, however, has been on the money allegedly taken by the … defendants, and we therefore deem abandoned any allegations by plaintiffs concerning personal property … . We thus conclude that the amended complaint fails to state a cause of action for replevin, because there is no “specifically identified” money that plaintiffs seek to recover … .
With respect to the plaintiff guardians’ cause of action for conversion, the amended complaint likewise alleges that the individual defendants “have taken approximately $4 million of Aida Corey’s cash and/or personal property,” but as with the replevin cause of action we conclude that plaintiffs have abandoned any allegations concerning personal property … . Money may be the subject of a cause of action for conversion only if “it can be identified and segregated as a chattel can be” …, i.e., “where there is a specific, identifiable fund” … . Contrary to the contentions of plaintiff guardians, the sums allegedly converted here do not constitute the type of specific, identifiable fund that would support a conversion cause of action … .
…[T]he court properly refused to dismiss the fraud cause of action against them. A fraud cause of action must allege that the defendant: (1) made a representation to a material fact; (2) the representation was false; (3) the defendant intended to deceive the plaintiff; (4) the plaintiff believed and justifiably relied on the statement and in accordance with the statement engaged in a certain course of conduct; and (5) as a result of the reliance, the plaintiff sustained damages … . The allegations in the complaint must set forth the “basic facts constituting the fraud” …, to “inform a defendant of the complained-of incidents” … . The Court of Appeals has “cautioned that [CPLR] 3016 (b) should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting the fraud” (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491 [internal quotation marks omitted]). Here, much of the detail surrounding the alleged fraud is ” peculiarly within the knowledge’ ” of the … defendants …, and we agree with plaintiffs that an inference of fraud arises from the circumstances alleged in the amended complaint … . Heckl v Walsh, 2014 NY Slip Op 07787, 4th Dept 11-14-14
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