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Guilty Plea Precluded Litigation on Liability

The Second Department noted that a guilty plea in a criminal matter (in which plaintiff was injured by the defendant) can bar the convicted defendant from litigating liability in the related civil matter under the doctrine of collateral estoppel:

…[L]iability was established in accordance with the legal principle that ” [w]here a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from litigating the issue of . . . liability'” … . Abdelzaher v Sallustio, 2014 NY Slip Op 06040, 2nd Dept 9-10-14

 

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Allegations of Mutual Mistake in Counterclaim and Affirmative Defense Not Made With Requisite Particularity

The Second Department determined the allegations of mutual mistake were not made with the requisite particularity and the related counter claim and affirmative defense were properly granted:

“A claim of mutual mistake is stated where the allegations indicate that the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement” … . Absent fraud, “the mistake shown must be one made by both parties to the agreement, so that the intentions of neither are expressed in it” … . “A claim predicated on mutual mistake must be pleaded with the requisite particularity necessitated under CPLR 3016(b)” …, which provides that “where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail.” Ultimately, the proponent of reformation based on mutual mistake must demonstrate the particulars of the actual agreement intended by the parties, based on the particularized allegations in the complaint… . Friedland Realty Inc v 416 W LLC, 2014 NY Slip Op 06052, 2nd Dept 9-10-14

 

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Elements of Fraud, Money Had and Received, and Unjust Enrichment Explained

In finding the allegations in the complaint insufficient, the Second Department explained the elements of causes of action for fraud, money had and received, and unjust enrichment:

The elements of a cause of action based on fraud are “a representation of material fact, the falsity of that representation, knowledge by the party who made the representation that it was false when made, justifiable reliance by the plaintiff, and resulting injury” … . The misrepresentation may be in the form of an omission of a material fact … . Although the question of what constitutes reasonable reliance is usually fact-intensive …, where the plaintiff alleges only that the defendant omitted a material fact when making a representation to another party, the plaintiff has failed to state a cause of action against either the representor or the representee … . * * *

“The essential elements of a cause of action for money had and received are (1) the defendant received money belonging to the plaintiff, (2) the defendant benefitted from receipt of the money, and (3) under principles of equity and good conscience, the defendant should not be permitted to keep the money”… . * * *

In a cause of action to recover damages for unjust enrichment, “[a] plaintiff must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered” … . The plaintiff, in his complaint, did not identify any money that was retained … at his expense and, in any event, “[a]lthough privity is not required for an unjust enrichment claim, a claim will not be supported if the connection between the parties is too attenuated” … . Lebovits v Bassman, 2014 NY Slip Op 06061, 2nd Dept 9-10-14

 

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Law Explained Re: Suit Against Municipality and Police Officers Alleging Excessive Force

The Second Department explained the law relevant to a suit against police officers, including “John Does,” and a municipality alleging the excessive use of force.  A “1983” action against a municipality cannot be based solely on the actions of an employee or on the basis of respondeat superior, but an intentional tort action can.  “John Does” must be identified and served within the applicable statute of limitations:

“Claims that law enforcement personnel used excessive force in the course of an arrest are analyzed under the Fourth Amendment and its standard of objective reasonableness” … . “The reasonableness of an officer’s use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight'” … . Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide … . If found to be objectively reasonable, the officer’s actions are privileged under the doctrine of qualified immunity … . “To recover damages for battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, i.e., wrongful under all of the circumstances, and intent to make the contact without the plaintiff’s consent” … . * * *

“A municipality is not liable under 42 USC § 1983 for an injury inflicted solely by its employees or agents” …, or “solely upon the doctrine of respondeat superior or vicarious liability” … . * * *

Unlike cases commenced under 42 USC § 1983, municipalities may be liable, under the doctrine of respondeat superior, for the common law torts, such as false arrest, malicious prosecution, assault, and battery, committed by their employees … . * * *

The Town defendants demonstrated that the complaint should be dismissed insofar as asserted against the John Does by showing that the plaintiffs failed to identify the John Does and serve them with process prior to the expiration of the statutes of limitations applicable to this case. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether they exercised due diligence in attempting to identify and serve the John Does such that the applicable limitations periods had tolled or were otherwise inapplicable … . Lepore v Town of Greenburgh, 2014 NY Slip Op 06063, 2nd Dept 9-10-14

 

Collateral Estoppel Precluded Plaintiff’s Action—Defendant’s Alleged Default Irrelevant

The Second Department determined defendant’s default did not preclude the dismissal of the complaint pursuant to the collateral estoppel doctrine:

“The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a party,” and “the party to be precluded from relitigating the issue bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination” … .

Here, the defendant established that the decisive issues in this case were necessarily decided against the plaintiff in the prior case, and the plaintiff failed to demonstrate that he was not afforded a full and fair opportunity to contest that prior determination. Thus, the doctrine of collateral estoppel barred the plaintiff from maintaining this action. Although the defendant allegedly defaulted in answering the complaint in the instant action, even where such a default has occurred, a plaintiff is only entitled to a default judgment if the complaint states a viable cause of action … . Under these circumstances, the plaintiff has no viable cause of action against the defendant that would warrant entry of a default judgment against it … . Abrahams v Commonwealth Land Tit Ins Co, 2014 NY Slip Op 06042, 2nd Dept 9-10-14

 

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Continuous Treatment Doctrine (Tolling the Statute of Limitations) Explained In Depth

The First Department, over a dissent, determined that the jury’s conclusion the statute of limitations was tolled under the continuous treatment doctrine should not be disturbed.  Plaintiff underwent Lasik surgery and complained of blurry vision and other complications in several follow up visits which ended in 2004.  Plaintiff commenced the lawsuit after a subsequent visit in 2007.  The question was whether the 2007 visit was related to the 2004 visits such that the continuous treatment doctrine applied.  The court discussed the doctrine in depth.  The court noted that the doctrine did not apply to plaintiff-wife’s derivative claims:

Plaintiff … asserts that the 2007 visit satisfied CPLR 214-a, because it was for the “same” condition as the 2004 visits, which was blurry vision in his left eye. He further argues that whether he and defendant agreed that he would seek further treatment after the May 2004 visit is irrelevant, because defendant “guaranteed” that the Lasik procedure would correct the blurry condition, and stated that he was plaintiff’s “doctor for life” for that purpose.

Although the CPLR defines “continuous” treatment as treatment “for the same illness, injury or condition” out of which the malpractice arose (CPLR 214-a [emphasis added]), the controlling case law holds only that the subsequent medical visits must “relate” to the original condition … . Here, plaintiff initially engaged defendant to correct his blurry vision, and the 2007 visit was motivated by continued blurriness in plaintiff’s eye, thus making the two visits “related” … . Devadas v Niksarli, 2014 NY Slip Op 06032, 1st Dept 9-4-14

 

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One Year Statute of Limitations in Labor Law 740 Trumps the One-Year-Ninety-Days Statute of Limitations in General Municipal Law 50-e(5) (Incorporated Into the Health & Hospitals Corporation Act)

The First Department, over a dissent, determined plaintiff’s action was time-barred pursuant to Labor Law 740 and was not covered by Labor Law 741. Plaintiff sued the NYC Health & Hospitals Corp (HHC) after she was terminated.  She alleged her termination was in retaliation for her objecting to the documentation submitted concerning human-subject research programs.  Plaintiff’s job entailed reviewing the documentation and did not involve caring for patients:

We turn first to the claim under Labor Law § 740. That cause of action is time-barred under the terms of the statute itself because …HHC terminated petitioner’s employment on April 6, 2009, and petitioner filed her petition for leave to file a late notice of claim on July 2, 2010, after the expiration of the one-year statute of limitations incorporated into the statute (see Labor Law § 740[4][a]). General Municipal Law § 50-e(5), made applicable to HHC by HHC Act § 20(2), permits a court to entertain a motion for leave to serve a late notice of claim only within the applicable limitations period, not, as here, after the limitations period has expired. Contrary to Supreme Court’s view, the one-year statute of limitations that is part of section 740 takes precedence over the one-year and 90-day limitations period set forth in the HHC Act … .

Although not time-barred, the claim under Labor Law § 741 is also without merit as a matter of law. Section 741 affords to a health care “employee,” as defined in the statute, a cause of action against the employer for “retaliatory action” (§ 741[2]) taken “because the employee does any of the following:

“(a) discloses or threatens to disclose to a supervisor, or to a public body an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care; or

“(b) objects to, or refuses to participate in any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.”

Section 741 defines the term “employee,” as used in that statute, as “any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration” (§ 741[1][a] [emphasis added]). The Court of Appeals, describing this definition as “exactingly specific” … . Matter of Moynihan v New York City Health & Hosps Corp, 2014 NY Slip Op 06038, 1st Dept 9-4-14

 

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Case Against Non-Debtor Not Entitled to Automatic Stay

The Second Department, in reversing Supreme Court’s granting of a stay, explained the circumstances when cases by and against non-debtors can be stayed under the bankruptcy law (11 USC 362(a)):

“[T]he bankruptcy court can stay actions against any party, even a non-debtor, whenever the objective of the action is to obtain possession or exercise control over the debtor’s property. Unless a case involves unusual circumstances, however, the bankruptcy court cannot halt litigation by non-debtors, even if they are in a similar legal or factual nexus with the debtor.

“The unusual circumstances in which the bankruptcy court can stay cases against non-debtors are rare. They typically arise where there is such identity between the debtor and the third-party defendant that the debtor may be said to be the real party defendant and that a judgment against the third-party defendant will in effect be a judgment or finding against the debtor. In other words, the automatic stay will apply to non-debtors only when a claim against the non-debtor will have an immediate adverse economic consequence for the debtor’s estate” … . Bankdirect Captial Fin v Insurance Co of State of PA, 2014 NY Slip Op 05824, 2nd Dept 8-20-14

 

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Sua Sponte Dismissal of Complaint Not Justified and Improperly Imposed

In reversing Supreme Court, the Second Department noted the “sua sponte” dismissal of a foreclosure-complaint with prejudice was not justified and was improperly imposed without affording the plaintiff an opportunity to be heard:

The Supreme Court … erred in, sua sponte, directing dismissal of the action in its entirety with prejudice … . “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Furthermore, when a court exercises its power to impose a sanction sua sponte, it must afford the party to be sanctioned a reasonable opportunity to be heard … . Bank of NY v Castillo, 2014 NY Slip Op 05823, 2nd Dept 8-20-14

 

Supreme Court Erred by Making Dispositive Rulings on Grounds Not Raised in the Motion Papers

The Second Department determined Supreme Court should not have made dispositive rulings on grounds not raised in the motion papers. The court had granted plaintiff’s (Evans’) motion to discharge Citifinancial’s mortgage and cancel the notice of pendency:

Civil Practice Law and Rules § 2214(a) provides that “[a] notice of motion shall specify . . . the relief demanded and the grounds therefor.” However, the court “may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party” … . * * *

On grounds not raised or argued by the parties nor contained in the pleadings, the Supreme Court granted Evans’s motion, determining that Citifinancial never actually owned the mortgage. The Supreme Court determined that a prior assignment of the mortgage to Citifinancial’s predecessor had been defective on the grounds that the power of attorney needed to execute such assignment was not recorded and, as a result, the mortgage could not thereafter properly be assigned to Citifinancial. The Supreme Court erred in discharging the mortgage and cancelling the notice of pendency on such grounds since Evans failed to dispute or contest the validity of Citifinancial’s mortgage and actually affirmatively acknowledged the validity of the mortgage in his complaint and motion to the court … . Evans v Argent Mtge Co LLC, 2014 NY Slip Op 05835, 2nd Dept 8-20-14