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Parol Collateral Agreement Can Be Alleged Where Written Contract Does Not Embody Entire Agreement/Where Existence of Contract Is Disputed, Causes of Action for Unjust Enrichment and Quantum Meruit Are Okay/Courts Can Not Excuse Failure to Strictly Comply with Lien Law Requirements

The Second Department noted:  proof of a parol collateral agreement is okay where the written contract is not intended to embody the whole agreement; where the existence of a contract is in dispute, causes of action for unjust enrichment and quantum merit are okay; courts do not have discretion to excuse strict compliance with Lien Law 11:

…”[A] written agreement does not exclude proof of a parol collateral agreement made even between the same parties, where the written contract is not intended to embody the whole agreement and does not on its face purport to cover completely the subject-matter of the alleged collateral agreement” … . Here, although the first cause of action was based on a written contract, the plaintiff stated a second cause of action based on the breach of an alleged oral agreement as to services not encompassed in the written agreement.

As to the third and fourth causes of action, where, as here, the existence of the contract is in dispute, the plaintiff may allege causes of action to recover for unjust enrichment and in quantum meruit as alternatives to a cause of action alleging breach of contract (see CPLR 3014…).

Lien Law § 11 provides that within 5 days before or 30 days after filing the notice of lien, a lienor “shall” serve a copy of such notice upon the owner, as relevant here, at the owner’s “last known place of residence.” However, the plaintiff’s affidavit of service of the mechanic’s lien demonstrates that the plaintiff failed to serve the notice of the mechanic’s lien in compliance with Lien Law § 11, as the notice was not sent to the defendants’ last known place of residence. As strict compliance with the statutory requirements is mandated and the courts do not have discretion to excuse noncompliance… . Thompson Bros Pile Corp v Rosenblum, 2014 NY Slip Op 06577, 2nd Dept 10-1-14

 

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Discovery of Trade Secrets Should Have Been Allowed Upon Execution of Confidentiality Agreement, Documents Indispensable to Defense and Not Otherwise Available

The Fourth Department determined Supreme Court should have allowed discovery of documents from MREC which included trade secrets because the documents were indispensable to the defense and were otherwise unavailable:

We agree … that Supreme Court abused its discretion in denying the cross motion insofar as it sought to condition disclosure of the documents on plaintiff’s execution of a confidentiality agreement … . We therefore modify the order accordingly. “Discoverability of such documents involves a two-fold analysis: the moving party must show that the discovery demand would require it to reveal a trade secret, which then shifts the burden of the responding party to show that the information was indispensable to proving its [case]”… . Here, MREC met its burden of establishing that the documents sought by plaintiff contained information “not known by those outside the business, [and that the documents] were kept under lock and key, were the product of substantial effort and expense, and could not be easily acquired or duplicated” … . We nevertheless conclude that plaintiff established that the documents sought “were indispensable to [its] case and were otherwise unavailable if they could not be obtained from [MREC]”  … . Conley & Son Excavating Co Ltd v Delta Alliance LLC, 2014 NY Slip Op 06468, 4th Dept 9-26-14

 

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Continuing Representation Doctrine (Tolling the Statute of Limitations) Explained

The Fourth Department reversed Supreme Court finding that the legal malpractice actions should not have been dismissed as time-barred because there were questions of fact whether the continuing representation doctrine tolled the statute of limitations.  The plaintiff Town alleged that defendant lawyers did not advise the Town of the proper procedure for appointing a hearing officer, which resulted in the annulment of a proceeding terminating a Town employee.  The question was whether the attorneys’ subsequent involvement in attempting to rectify the mistake constituted continuing representation such that the three-year statute was tolled:

Here, while there were three separate and distinct retainer agreements, we conclude that there are triable issues of fact whether defendants were retained for separate and distinct legal proceedings or, rather, “ongoing and developing phases of the [same] litigation” … . We cannot say as a matter of law that all of defendants’ acts “were not interrelated so that representation on [the second Section 75 hearing and the subsequent CPLR article 78 proceeding were] not part of a continuing, interconnected representation” to perform the specific task of terminating a Town employee … . Inasmuch as “[a] question of fact exists on this issue, . . . summary judgment is inappropriate” … .

We further conclude that there are triable issues of fact whether the gaps in the legal services that defendants performed for the Town were “merely . . . period[s] absent expectations, rather than . . . period[s] when representation formally ended” … . Here … the Town “immediately return[ed] to [defendants] . . . once an issue arising from [the alleged] malpractice [was] detected” … .

Although defendants correctly contend that the continuous representation doctrine requires that there be ” continuing trust and confidence in the relationship between the parties’ ” … , there are triable issues of fact whether the Town ever lost such trust and confidence in defendants. Town of Amherst v Weiss, 2014 NY Slip Op 06411, 4th Dept 9-26-14

 

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No Manifest Necessity for Declaring a Mistrial Over Defendant’s Objection–Double Jeopardy Barred Retrial

The Second Department determined there was no “manifest necessity” for the trial court’s declaring a mistrial (over defendant’s objection) and therefore retrial was precluded.  The jury informed the court it had reached a verdict one count but could not reach a verdict on the remaining two counts. The defendant asked the court to accept a partial verdict and the court refused.  Subsequently a juror asked to be excused due to an emergency.  The defendant, at the court’s urging, agreed to excuse the juror and renewed his request for a partial verdict.  The request was again refused and the defendant did not agree to the substitution of an alternate juror.  The court, on its own motion, declared a mistrial. When the court ruled defendant could be retried on the two counts on which the jury could not agree, defendant brought an application for prohibition:

Prohibition is the traditional remedy where a defendant seeks protection against double jeopardy … and the writ lies in this case. * * *

When a mistrial is granted over the defendant’s objection or without the defendant’s consent, double jeopardy will, as a general rule, bar retrial … . However, the right to have one’s case decided by the first empaneled jury is not absolute, and a mistrial granted as the product of manifest necessity will not bar a retrial … . ” Manifest necessity’ means a high degree of necessity’; the reasons underlying the grant of a mistrial must be necessitous, actual and substantial'” … . Even if the reasons for declaring a mistrial are deemed actual and substantial, the court must explore all appropriate alternatives prior to declaring a mistrial … .

Here, the trial court failed to explore all appropriate alternatives before declaring, on its own motion, a mistrial … . Accordingly, there was no manifest necessity for the declaration of a mistrial and, thus, retrial on counts two and three of the indictment is precluded.  Matter of Gentil v Margulis, 2014 NY Slip Op 06314, 2nd Dept 9-24-14

 

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Criteria for Judgment as a Matter of Law and Finding a Verdict to be Against the Weight of the Evidence Explained

In the context of a personal injury action, where the issue was whether plaintiff’s injury was “serious” within the meaning of Insurance Law 5102 (d), the Second Department explained the criteria for a judgment as a matter of law pursuant to CPLR 4401 and finding a verdict to be against the weight of the evidence.  The Second Department affirmed the denial of defendant’s post-verdict motions but found the damages awarded by the jury to be excessive:

” To be entitled to judgment as a matter of law pursuant to CPLR 4401, a defendant has the burden of showing that there is no rational process by which the jury could find in favor of the plaintiff and against the moving defendant'” … . In considering the motion for judgment as a matter of law, “the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” … .  * * *

A jury verdict is contrary to the weight of the evidence when the evidence so preponderates in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence … . Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert’s opinion, and reject that of another expert … . “Issues of credibility are for the jury, which had the opportunity to observe the witnesses and the evidence. Its resolution is entitled to deference” … . “[A] successful party is entitled to a presumption that the jury adopted a reasonable view of the evidence” … .  Cicola v County of Suffolk, 2014 NY Slip Op 06293, 2nd Dept 9-24-14

 

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The Continuing Treatment Was Not Shown to Relate to the Condition Which Caused the Alleged Injury

The Second Department determined the plaintiffs failed to raise a question of fact about whether the continuing treatment doctrine tolled the statute of limitations.  The medical malpractice action was therefore time-barred:

To establish that the continuous treatment doctrine applies, a plaintiff is ” required to demonstrate that there was a course of treatment, that it was continuous, and that it was in respect to the same condition or complaint underlying the claim of malpractice'” . It is undisputed that the radiology defendants were monitoring the plaintiff Robert Ceglio (hereinafter Robert) for postsurgical changes after he had a pituitary tumor removed. The plaintiffs allege that Robert suffered injuries as a result of a colloid cyst, which the radiology defendants failed to notice on his MRI scans when they were monitoring him for postsurgical changes. However, the plaintiffs presented no evidence to suggest that the colloid cyst, which allegedly caused the injuries complained of, was in any way connected to the pituitary changes for which the radiology defendants were monitoring Robert. Consequently, the plaintiffs failed to raise a question of fact as to whether Robert received continuous treatment for the same condition underlying the claim of malpractice … . Ceglio v BAB Nuclear Radiology PC, 2014 NY Slip Op 06291, 2nd Dept 9-24-14

 

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Dismissal of Complaint Pursuant to CPLR 3211 Appropriate Where Documentary Evidence Flatly Contradicts Allegations in the Complaint

In finding that the defendants were entitled to a dismissal of the complaint for failure to state a cause of action pursuant to CPLR 3211, the Second Department explained the effect of documentary evidence which refutes allegations in the complaint:

“A motion pursuant to CPLR 3211 (a) (1) . . . may appropriately be granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law'” … . On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must “afford the pleading a liberal construction, accept all facts as alleged in the pleading to be 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” … . “However, factual allegations which are flatly contradicted by the record are not presumed to be true and, [i]f the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action'” … .  Coastal Purch Group LLC v JPMCC 2005-CIBC Collins Lodging LLC, 2014 NY Slip Op 06292, 2nd Dept 9-24-14

 

Motion to Renew Was Not Based Upon a Change in the Applicable Law—Motion Court Had Simply Ignored the Controlling Precedent—Therefore the Motion Was Actually a Motion to Reargue, the Denial of Which Is Not Appealable

The First Department, in a full-fledged opinion by Justice Tom, determined that defendants’ motion, which was labeled a motion to renew, was actually a motion to reargue, the denial of which is not appealable.  A motion to renew can be based upon a change in the law since the first motion was determined.  However, in this case, the trial judge who denied the original underlying motion, specifically refused to follow the appellate precedent in her department (re: the availability of nonpecuniary damages in a legal malpractice action). Because the underlying law did not change, but rather the law was simply ignored by the trial judge, there was no change in the law which could serve as a basis of a motion to renew. The legal malpractice action stemmed from defense counsel’s failure to raise the speedy trial defense in a criminal matter.  The plaintiff was freed after14 years of imprisonment on the basis of defense counsel’s failure.  D’Alessandro v Carro, 2014 NY Slip Op 06246, 1st Dept 9-18-14

 

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Appellate Court Can Exercise Its Own Discretion Re: Scope of Discovery, Even in the Absence of Abuse

The First Department determined, over a dissent, that Supreme Court had improperly restricted the discovery of software code.  The court explained its power to overrule the trial court in this regard and the underlying principle allowing broad discovery:

New York strongly encourages open and full disclosure as a matter of policy … . To that end, CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.”

A trial court is vested with broad discretion in its supervision of disclosure … . Indeed, “deference is afforded to the trial court’s discretionary determinations regarding disclosure” … . However, “[t]his Court is vested with the power to substitute its own discretion for that of the motion court, even in the absence of abuse” … . We have observed that we “rarely and reluctantly invoke” our power to substitute our own discretion for that of the motion court … . We find that this case presents one of those rare instances in which we are compelled to substitute our discretion for that of the motion court. MSCI Inc v Jacob, 2014 NY Slip Op 06239, 1st Dept 8-18-14

 

Wrong Party Name Could Not Be Remedied by Service of an Amended Summons and Complaint—Supreme Court Could Not Grant Motion to Serve Amended Pleadings Because the Court Never Had Personal Jurisdiction Over the Misnamed Party (Misnamed Party Never Served)—Relation Back Doctrine Did Not Apply

The Second Department reversed Supreme Court and granted defendant’s motion to dismiss.  The pleadings named a trade name, not the correct name of the business. Supreme Court had allowed plaintiffs to serve an amended summons and complaint.  The Second Department determined Supreme Court never had jurisdiction over the defendant (because the defendant was never served) and the relation back doctrine did not apply:

The Supreme Court should have granted the appellant’s motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against “Summit Business Media,” as a trade name is not a jural entity amenable to suit … . In addition, under CPLR 305(c), “an amendment to correct a misnomer will be permitted if the court has acquired jurisdiction over the intended but misnamed defendant provided that . . . the intended but misnamed defendant was fairly apprised that [it] was the party the action was intended to affect . . . [and] would not be prejudiced’ by allowing the amendment” … . Here, because neither the appellant nor its predecessor-in-interest, Summit Business Media, LLC, were served with process, the Supreme Court lacked personal jurisdiction over them, and lacked the authority to grant leave to amend the summons and complaint … . Further, the plaintiffs failed to establish that the relation-back doctrine applied (see CPLR 203[b]…). Honeyman v Curiosity Works Inc, 2014 NY Slip Op 06176, 2nd Dept 9-17-14

 

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