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An Issue Raised for the First Time on Appeal Will Not Be Considered Where the Defect Could Have Been Cured If Raised Below/Trial Court Can Grant Summary Judgment Based on an Unpleaded Defense

The Fourth Department noted that it can not consider an argument raised for the first time on appeal where the defect could have been remedied it been raised below and explained when summary judgment can be granted (by the trial court) on the basis of an unpleaded defense:

…[W]e do not address plaintiff’s contention, raised for the first time on appeal, that Supreme Court erred in granting summary judgment in defendant’s favor because defendant failed to plead the defense of failure to comply with a condition precedent with sufficient specificity (see CPLR 3015 [a]). “An issue may not be raised for the first time on appeal . . . where it ‘could have been obviated or cured by factual showings or legal countersteps’ in the trial court” …. Here, defendant could have attempted to cure that alleged deficiency by seeking leave to amend the answer … . In any event, defendant’s failure to plead that defense in its answer with sufficient specificity does not preclude an award of summary judgment based on that defense. “ ‘[A] court may grant summary judgment based upon an unpleaded defense where[, as here,] reliance upon that defense neither surprises nor prejudices the plaintiff’ ” Accadia Site Contracting Inc v Erie County Water Authority, 325, 4th Dept 3-28-14

 

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“Labor or Services” Complaint Not Specific Enough to Trigger Specific-Answer Requirement Under CPLR 3016

The Fourth Department determined plaintiff nursing home’s motion for summary judgment pursuant to CPLR 3016 was properly denied.  Defendant’s late husband was in plaintiff nursing home for the last 15 months of his life.  Plaintiff sued for $125,265.54 in unpaid invoices. The court determined the complaint did not set forth with sufficient specificity the reasonable value and agreed price of each service provided.  Therefore the statutory requirement for a specific answer to each allegation of service was not triggered:

CPLR 3016 (f) provides that, in an action involving the -2- 205 CA 13-01681 “performing of labor or services,” the plaintiff “may set forth and number in his verified complaint the items of his claim and the reasonable value or agreed price of each.” If the plaintiff does so, “the defendant by his verified answer shall indicate specifically those items he disputes and whether in respect of delivery or performance, reasonable value or agreed price.” “To meet the requirements of CPLR 3016 (f), a complaint must contain a listing of the goods or services provided, with enough detail that it may readily be examined and its correctness tested entry by entry” … . If the complaint lacks sufficient specificity, the defendant may serve a general denial answer … .Here, we conclude that the complaint failed to meet the specificity standards of CPLR 3016 (f) and thus “did not trigger a duty on defendant[’]s part to dispute each item specifically” … .  Waterfront Operations Associates LLC… v Candido, 205, 4th Dept 3-28-14

 

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Trial Court Should Not Have Precluded Expert Testimony Based Upon Failure to Make Timely Disclosures— Rather, the Trial Should Have Been Adjourned

Noting that the appellate court has the power to make its own discretionary determinations about discovery and CPLR article 31 matters, even in the absence of the abuse of discretion by the trial judge, the Fourth Department, over a two justice dissent, found that the trial judge should not have granted the defendants’ motion to preclude testimony by plaintiffs’ experts based upon the failure to make timely disclosures:

“[W]e have repeatedly recognized that ‘[a] trial court has broad discretion in supervising the discovery process, and its determinations will not be disturbed absent an abuse of that discretion’ . . . We have also repeatedly noted, however, ‘that, where discretionary determinations concerning discovery and CPLR article 31 are at issue, [we] “[are] vested with the same power and discretion as [Supreme Court, and thus we] may also substitute [our] own discretion even in the absence of abuse” ’ ” … . Under the circumstances of this case, we substitute our discretion for that of Supreme Court, and we conclude that the court should have adjourned the trial rather than granting defendants’ motion, thereby precluding the subject expert testimony and striking the subject expert disclosures. Smalley … v Harley-Davidson Motor Company Inc…, 372, 4th Dept 3-28-14

 

Res Judicata Doctrine Precluded Suit Despite Naming Additional Parties and Alleging Different Causes of Action and Legal Theories

The Second Department determined the doctrine of res judicata precluded plaintiff’s action, notwithstanding the additional parties named (found to be in privity the the parties named in the prior action) and the different causes of action and legal theories alleged:

“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” … . Generally, to establish privity the interests of the nonparty must have been represented by a party in the prior proceeding … . The Court of Appeals has observed that privity is an “amorphous concept,” not easily applied…, but persons in privity include those whose interests are represented by a party to the previous action and those “[whose] own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of, the rights of the party to the prior litigation” … .”

The fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims'” … . Thus, the doctrine of res judicata “operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding, as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding” … . In determining whether a factual grouping constitutes a transaction for res judicata purposes, a court must apply a pragmatic test and analyze how the facts are related as to time, space, origin or motivation, whether they form a convenient trial unit and whether treating them as a unit conforms to the parties’ expectations or business understanding … . For the doctrine of res judicata to be applied, there must have been, in the prior proceeding, a final judgment on the merits … . “An order granting a summary judgment motion is on the merits and has preclusive effect” … . Bayer v City of New York, 2014 NY Slip Op 02005, 2nd Dept 3-26-14

 

“Forum Non Conveniens” Dismissal Proper

The Second Department explained the criteria for dismissal of an action on “forum non conveniens” grounds:

“The doctrine of forum non conveniens permits a court to dismiss an action when, although it may have jurisdiction over a claim, the court determines that in the interest of substantial justice the action should be heard in another forum'” … . “On a motion to dismiss on the ground of forum non conveniens, the burden is on the movant to demonstrate the relevant private or public interest factors that militate against a New York court’s acceptance of the litigation” … . “Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts” … .

Here, the Supreme Court did not improvidently exercise its discretion in granting that branch of the defendant’s motion which was to dismiss the complaint on the ground of forum non conveniens. The fact that the witnesses, with the exception of the plaintiff, and evidence are located in Pennsylvania, the fact that Pennsylvania is the situs of the underlying events, the availability of Pennsylvania as an alternative forum, and the burden on the New York courts of retaining a case to which it does not have a substantial nexus militate in favor of dismissal of the action on the ground that Pennsylvania is the more convenient forum … . Wild v University of Pa, 2014 NY Slip Op 02038, 2nd Dept 3-26-14

 

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Finding by Workers’ Compensation Law Judge Precluded Suit Under Labor Law and Common Law Negligence

Over a two-justice dissent, the Fourth Department determined the finding that no accident occurred by the Workers’ Compensation Law Judge precluded plaintiff from suing under the Labor Law and common law negligence for an injury allegedly incurred while working on a house.  The court rejected the argument that the Workers’ Compensation proceeding dealt soley with the existence or non-existence of an employer-employee relationship:

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 or those in privity, whether or not the tribunals or causes of action are the same” … . Thus, “[t]he quasi-judicial determinations of administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal” … . “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, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action” … .Here, defendant met his burden on his motion by establishing the “identicality and decisiveness of the issue” decided in the workers’ compensation proceeding… . Ridge v Gold, et al, 1300, 4th Dept 3-21-14

 

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Untimely Demand for Reinstatement Warranted Dismissal of Action to Compel Reinstatement

The Fourth Department determined petitioner’s action to compel reinstatement in his job as a policeman was untimely.  Petitioner should have made a demand for reinstatement within four months of learning he was not being held responsible criminally or civilly for the acts of misconduct alleged against him:

“Where, as here, a public employee is discharged without a hearing, the four-month limitations period set forth in CPLR 217 begins to run when the employee’s demand for reinstatement is refused” … . “[T]he demand must be made within a reasonable time after the right to make the demand occurs or . . . within a reasonable time after [petitioner] becomes aware of the facts which give rise to his [or her] right of relief” … , and we note that the four-month limitations period of CPLR article 78 proceedings has been “treat[ed] . . . as a measure of permissible delay in the making of the demand” … . Here, we conclude that petitioner’s right to demand reinstatement to his position arose, at the latest, on or about December 6, 2011, when he received a letter from the District Attorney stating that he bore no civil or criminal responsibility for the acts of misconduct alleged against him, and that the matter would not be presented to the grand jury … . Nevertheless, petitioner did not demand reinstatement to his position until approximately nine months later, on August 31, 2012, well over the four-month guideline applied in Devens … . Thus, “it was [well] within the court’s discretion to determine that petitioner unreasonably delayed in making the demand” … . Matter of Norton v City of Hornell…, 256, 4th Dept 3-21-14

 

“Relation-Back” Doctrine Applied Where City Mistakenly Not Named in the Complaint and Statute of Limitations Had Run

The Second Department determined the amended complaint against the city should not have been dismissed.  Plaintiff tripped and fell on the Brooklyn Bridge.  Plaintiff’s notice of claim named the NYC Department of Transportation (DOT) and the city.  However, when the plaintiff commenced an action, only the DOT was named in the complaint.  The city moved to dismiss after the statute of limitations had run.  The Second Department held that the “relation-back” doctrine applied and the city was compelled to accept the amended complaint.  In explaining the “relation-back” doctrine, the court wrote:

Although the statute of limitations had expired on the cause of action insofar as asserted against the City, the plaintiff successfully demonstrated a basis for application of the relation back doctrine (see CPLR 203[b]…). In order for claims against one defendant to relate back to claims asserted against another, a plaintiff must establish that ” (1) both claims arose out of the same conduct, transaction or occurrence, (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that the new party will not be prejudiced in maintaining its defense on the merits by the delayed, otherwise stale, commencement and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well'” … . Here, the plaintiff’s claim against the City and the claim against the DOT arose out of the same conduct, transaction, or occurrence, and the City is united in interest with the DOT such that it can be charged with notice of the action commenced by the plaintiff against the DOT … . Moreover, no prejudice can be asserted by the City, given that a notice of claim was timely served upon both the City and the DOT, and the City proceeded to negotiate a settlement with the plaintiff. The plaintiff further demonstrated that her initial failure to name the City as a defendant was a mistake, rather than an intentional decision not to assert the claim in order to gain a tactical advantage… . Headley v City of New York, 2014 NY Slip Op 01717, 2nd Dept 3-19-14

 

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Plaintiff Could Not Rely On Code Provisions Not Mentioned in Plaintiff’s Bill of Particulars to Defeat Summary Judgment

The Second Department determined Supreme Court correctly declned to allow plaintiff to rely on provisions of the Administrative Code which were not included in plaintiff’s bill of particulars.  Plaintiff, in response to defendant’s (16302 Jamaica’s) motion for summary judgment, alleged that plaintiff had violated provisions of the code which required defendant, an out-of-possession landlord, to keep the premises where plaintiff fell safe.  But because the provisions relied upon in response to the summary judgment motion were not the same provisions listed in the bill of particulars, Supreme Court refused to consider them and granted summary judgment to the defendant.

Although the plaintiff contends on appeal that 16302 Jamaica violated other provisions of the Administrative Code of the City of New York that imposed a statutory duty upon it to make repairs or maintain the premises in a safe condition, the plaintiff, in response to 16302 Jamaica’s demand for a bill of particulars, failed to identify these provisions either in his initial bill of particulars, his first supplemental bill of particulars, or his second supplemental bill of particulars. Thus, 16302 Jamaica was never placed on notice during the course of discovery that the plaintiff would rely upon these additional provisions of the Administrative Code as a predicate for its liability. Under these circumstances, the Supreme Court did not improvidently exercise its discretion in declining to allow the plaintiff to rely on those Administrative Code provisions in opposing 16302 Jamaica’s motion for summary judgment … . Wenzel v 16302 Jamaica Ave LLC, 2014 NY Slip Op 01744, 2nd Dept 3-19-14

 

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Involuntary Mental Health Patient Should Not Have Been Released Pursuant to a Habeas Corpus Petition Without an “Examination Into the Patient’s Alleged Disability and Detention,” Despite the Hospital’s Untimely Request for Continued Detention (in Violation of the Mental Hygiene Law)/Appellate Court’s Ability to Hear a Moot Case Explained (Mootness Doctrine)

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that immediate release of an involuntaty patient from a mental health hospital pursuant to a writ of habeas corpus because of the facility’s failure to comply with the Mental Hygiene Law provisions for continued detention was reversible error.  Supreme Court should have conducted an examination into the patient’s alleged disability and detention.  The court discussed the nature and origin of the habeas corpus petition and the relationship between a habeas corpus petition brought under the Mental Hygiene Law and under Article 70 of the CPLR (finding them to be in essence the same). In addition, the Second Department discussed the mootness doctrine which, under certain circumtances, allows an appellate court to hear  a moot case.  The habeas corpus petition here had been rendered moot by the patient’s release:

Generally, courts are precluded “from considering questions which, although once live, have become moot by passage of time or change in circumstances” …. . Typically, “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” … . However, an exception to the mootness doctrine permits a court to review a case if the controversy or issue involved is likely to recur, typically evades review, and raises a substantial and novel question … .Here, the release of the patient renders this appeal academic. We nevertheless exercise our discretion to review the issues raised on this appeal pursuant to the exception to the mootness doctrine because the primary issue raised is an important one which implicates both the patient’s fundamental liberty interest and the State’s interest in protecting the mentally ill, and is one which is likely to recur. Further, the primary issue involved here may typically evade review because “[t]he Mental Hygiene Law contemplates that involuntary hospitalization in a mental health facility is often brief and temporary . . . [and the law] require[s] frequent periodic review of a patient’s status, and the release of the patient unless OMH is granted successive court orders authorizing retention” … . * * *

Here, the patient was initially involuntarily hospitalized pursuant to Mental Hygiene Law article 9 due to his alleged mental illness and, thereafter, the petition for a writ was filed on the patient’s behalf. The purpose of the writ of habeas corpus was to determine whether the patient was being unlawfully detained (see CPLR 7002[a]… ). Therefore, in order to determine the cause and legality of the patient’s detention, the Supreme Court was required to examine the facts of the patient’s alleged mental disability and detention (see Mental Hygiene Law § 33.15[a], [b]; CPLR 7002). The Supreme Court’s failure to conduct the required examination constitutes reversible error. We note that the Hospital supported its untimely retention application with, inter alia, two certificates from the patient’s treating physicians. In those certificates, the physicians asserted that the patient was paranoid, unable to care for himself, and psychotic. Our determination should not be construed as an approval of the Hospital’s dilatory conduct in filing the retention application. There is no dispute that the Hospital failed to comply with Mental Hygiene Law § 9.33. Under the circumstances presented, however, the remedy for such noncompliance is not the immediate release of a patient. We also caution that our reasoning should not be construed to authorize an unlimited violation of article 9 of the Mental Hygiene Law so as to allow a patient to be involuntarily retained, without a hearing, indefinitely. People v Munsey, 2014 NY Slip Op 01782, 2nd Dept 3-19-14

 

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