The First Department noted that if a contractual representation or warranty is false when made, a claim for breach accrues at the time of the execution of the contract, even if the contract states that the “effective date” is earlier. US Bank NA v DLJ Mtge Capital Inc, 2014 NY Slip Op 07093, 1st Dept 10-21-14
The Court of Appeals, over a concurring opinion which disagreed with the majority's grounds, determined that the four-month statute of limitations was not tolled under a “continuing harm” theory and the prohibition action was time-barred. The trial court had declared a mistrial because, during deliberations, one of the 12 jurors was removed for misconduct. It was clear shortly after the mistrial that the prosecution was preparing for a second trial. Two years after the mistrial was declared, the defendant brought a prohibition action seeking to prohibit the second trial on Double Jeopardy grounds:
A four-month limitations period applies to CPLR article 78 prohibition proceedings (see CPLR 217 [1]…) and the petition here was filed more than two years after the mistrial was declared. Although a tolling period for continuing harm has been recognized … and would be adopted by our concurring colleague, we reject its application in this situation. Once the People definitively demonstrated their intent to re-prosecute and the court began to calendar the case for eventual trial, Smith was obligated to initiate his Double Jeopardy-based article 78 challenge within the statutorily prescribed time frame. On the facts of this case, that period expired well before prohibition was sought, and therefore, the proceeding was barred by the statute of limitations. Matter of Smith v Brown, 2014 NY Slip OP 07090, CtApp 10-21-14
The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversed the 4th Department and reinstated a defamation complaint against Syracuse University and James Boeheim, the head coach of the Syracuse University men’s basketball team. The complaint had been dismissed pursuant to CPLR 3211(a)(7) on the ground that the statements were pure opinion and were therefore not actionable as a matter of law. The Court of Appeals determined that the allegations in the complaint (accepted as true for purposes of the pre-answer motion to dismiss) included statements by Coach Boehein which implied the existence of facts within his knowledge but unknown to the reader. Such statements are actionable as “mixed opinion.” The plaintiffs alleged that the team’s associate coach had sexually molested them more than twenty years before. Coach Boeheim described the plaintiffs as liars who were making the allegations for financial gain. The court explained its role in determining a pre-answer motion to dismiss and the relevant law of defamation:
This appeal comes to us on a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7), a procedural posture which requires that “we accept as true each and every allegation made by plaintiff and limit our inquiry to the legal sufficiency of plaintiff’s claim” … . Unlike on a motion for summary judgment where the court “searches the record and assesses the sufficiency of the parties’ evidence,” on a motion to dismiss the court “merely examines the adequacy of the pleadings” … . In determining the sufficiency of a defamation pleading, we consider “whether the contested statements are reasonably susceptible of a defamatory connotation” … . As we have previously stated, “[i]f, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action” … . We apply this liberal standard fully aware that permitting litigation to proceed to discovery carries the risk of potentially chilling free speech, but do so because, as we have previously stated, “we recognize as well a plaintiff’s right to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets the minimal standard necessary to resist dismissal of the complaint” … . * * *
In order for the challenged statements to be susceptible of a defamatory connotation, they must come within the well established categories of actionable communications. Thus, a false statement “that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation” … . “Since falsity is a necessary element of a defamation cause of action and only ‘facts’ are capable of being proven false, ‘only statements alleging facts can properly be the subject of a defamation action'” … .
A defamatory statement of fact is in contrast to “pure opinion” which under our laws is not actionable because “[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” …. For, “[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas” … . A pure opinion may take one of two forms. It may be “a statement of opinion which is accompanied by a recitation of the facts upon which it is based,” or it may be “an opinion not accompanied by such a factual recitation” so long as “it does not imply that it is based upon undisclosed facts” … .
While a pure opinion cannot be the subject of a defamation claim, an opinion that “implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, [] is a ‘mixed opinion’ and is actionable” … . This requirement that the facts upon which the opinion is based are known “ensure[s] that the reader has the opportunity to assess the basis upon which the opinion was reached in order to draw [the reader’s] own conclusions concerning its validity” … . What differentiates an actionable mixed opinion from a privileged, pure opinion is “the implication that the speaker knows certain facts, unknown to [the] audience, which support [the speaker’s] opinion and are detrimental to the person” being discussed ,,, .
Distinguishing between fact and opinion is a question of law for the courts, to be decided based on “what the average person hearing or reading the communication would take it to mean” … . “The dispositive inquiry … is ‘whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff” … . Davis v Boeheim, 2014 NY Slip Op 07083, CtApp 10-21-14
The Third Department determined Supreme Court should not have granted individual defendant’s (Valentino’s) motion to dismiss pursuant to CPLR 3211 because the evidence did not “utterly refute” plaintiff’s claim he had no notice Valentino was acting as an agent of a disclosed corporate principal when a building contract was executed:
“It is well settled that an individual who signs a contract as an agent for an entity will be held personally liable on the contract if the agency relationship is not disclosed” … . Whether or not a principal is disclosed depends upon whether, at the time of the underlying transaction, the other party to the contract had notice that the agent was acting for a principal and knew of the principal’s identity … .
Here, the contract identified J & J Enterprises as the builder, but there is no reference in the contract or in the accompanying specifications sheet to the status of J & J Enterprises as the trade name of a corporation or to Valentino’s status as an officer or representative of any such corporation. Winer v Valentino, 2014 NY Slip Op 07050, 3rd Dept 10-16-14
The Third Department explained that the denial of a request that a judge recuse himself from presiding over a particular matter could not be addressed via an Article 78 proceeding, but rather could only be addressed on direct appeal:
A CPLR article 78 proceeding is not an appropriate vehicle for seeking review of issues that could be raised upon a direct appeal …, including the denial of a party’s request that a judge recuse himself or herself from presiding over a particular matter … . Rather, petitioners’ remedy at that point in time was to either reduce respondent’s bench decision on the recusal motion to a written order, serve a copy of that order and the corresponding notice of entry … and timely file an appeal therefrom … or, alternatively, await decision on the underlying summary judgment motions and, if aggrieved thereby, challenge the denial of their recusal motion upon a direct appeal from that order … . Matter of Concord Assoc LP v LaBuda, 2014 NY Slip Op 07052, 3rd Dept 10-16-14
The Third Department determined the procedure mandated by Civil Service Law section 70 applied to a school district’s decision to cease its own data management services and purchase the services from BOCES. Petitioner was employed by the district in data management. The court held that the four-month statute of limitations for the employee’s action seeking reinstatement did not start until the Civil Service Law section 70 procedures had been followed:
Civil Service Law § 70 (2) applies “[u]pon the transfer of a function” from the District to BOCES (Civil Service Law § 70 [2] [first sentence][FN3]). The District’s decision to cease providing its own data management services and purchase such services from BOCES constituted the “transfer of a function” within the meaning of the statute … . The statute required the District, not less than 20 days before any such transfer, to certify to BOCES a list of the names and titles of all District employees who were “substantially engaged in the performance of the function to be transferred” and to publicly post that list along with a copy of the statute (Civil Service Law § 70 [2] [second sentence]). All District employees could then, before the effective date of such transfer, give written notice of protest to BOCES and the District of their “inclusion in or exclusion from such list” (Civil Service Law § 70 [2] [third sentence]). The head of BOCES would be required, within 10 days of receiving a protest, to review the protest, consult with the District and notify the employee of the determination regarding such protest (see Civil Service Law § 70 [2] [fourth sentence]). “Such determination shall be a final administrative determination” (Civil Service Law § 70 [2] [fifth sentence]). Respondents would then be required to determine which employees on the list were necessary to be transferred, by considering statutory criteria as well as whether BOCES had sufficient staff to provide the transferred services (see Civil Service Law § 70 [2] [first and eighth sentences]…). Employees who were not transferred would be placed on a preferred hire list for similar positions at both the District and BOCES (see Civil Service Law § 70 [2] [eleventh sentence]).
* * * Ignoring the statutory procedure would deprive public employees of the protection of the statute and reward public employers by giving them the advantage of a shorter statute of limitations for challenges when they fail to perform their statutory obligations. This we cannot countenance.
In transfer cases, the statute of limitations begins to run after the transferee agency rules against a protest to include an employee on the certified list or declines to transfer an employee who is on the list. Matter of Thornton v Saugerties Cent Sch Dist, 2014 NY Slip Op 07046, 3rd Dept 10-16-14
The Third Department determined that an Alabama paternity proceeding brought by the mother against the respondent, which was dismissed with prejudice, barred the paternity proceeding brought by the mother in New York under the Full Faith and Credit Clause. The court explained the “res judicata” principles:
“In New York, res judicata, or claim preclusion, bars successive litigation based upon the same transaction or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action [or proceeding], or in privity with a party who was” … .
Here, there is no dispute that the Alabama proceeding involved the same parties and underlying issues, i.e., paternity and child support. Additionally, under both Alabama and New York law, a dismissal “with prejudice” indeed constitutes an adjudication “on the merits”…. . Matter of Starla D v Jeremy E, 2014 NY Slip Op 07033, 3rd Dept 10-16-14
The Second Department determined a stipulation of discontinuance (with prejudice) of a federal action did not preclude the state action under the doctrine of res judicata. The court explained the narrow application of “with prejudice” in this context:
“A stipulation of discontinuance with prejudice has the same preclusive effect as a judgment on the merits” … . “The general rule is that a stipulation of discontinuance with prejudice is afforded res judicata effect and will bar litigation of the discontinued causes of action” … . But the language “with prejudice” is narrowly interpreted when the interests of justice or the particular equities involved warrant such an approach … .
As the Supreme Court found, the gravamen of [plaintiff’s] federal complaint was civil RICO claims. The complaint in the instant action, however, does not allege that [defendant] violated a substantive RICO statute … . “[E]stablishing a RICO violation requires more than proof of common-law fraud or conspiracy to defraud” … . Furthermore, the particular equities involved require that the phrase “with prejudice” in the stipulation of discontinuance be narrowly construed so as not to bar the continued litigation of the instant action … . The record demonstrates that the instant action continued to be actively litigated contemporaneously with the voluntary discontinuance of [the] federal action. The record supports a determination that [plaintiff] never abandoned litigation of his state action and that [defendant] was aware of this fact. Accordingly, the Supreme Court properly determined that the voluntary discontinuance with prejudice by [plaintiff] of his federal action did not operate as a res judicata bar to the litigation of his instant action. Klein v Gutman, 2014 NY Slip Op 06949, 2nd Dept 10-15-14
The Second Department affirmed the setting aside of a liability verdict as against the weight of the evidence. The jury had found the defendant negligent but determined the negligence was not the proximate cause of the injury. The court explained the relevant criteria:
A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause … .
Under the circumstances of this case, the jury’s finding that the defendants were negligent but that their negligence was not a substantial factor in causing the subject accident was not supported by a fair interpretation of the evidence … . Accordingly, the Supreme Court properly granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. Batista v Bogopa Serv Corp, 2014 NY Slip Op 06933, 2nd Dept 10-15-14
The Second Department affirmed the dismissal of the complaint under the doctrine of res judicata and succinctly explained the underlying principles:
“Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding” … . “The fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims” … . Here, the plaintiff’s claims … arose out of the same series of transactions as those at issue in a prior action …, and were, or could have been, raised in that prior action, which was disposed of on the merits in an order of the Supreme Court … . Harris v City of New York, 2014 NY Slip Op 06945, 2nd Dept 10-15-14
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