You are here: / Civil Procedure

Plaintiff Estopped from Bringing State Retaliation Claim/Issue Decided by District Court Which Dismissed Plaintiff’s Federal Title VII Constructive Discharge Claim

In a full-fledged opinion by Justice Acosta, the First Department determined plaintiff was estopped from bringing her retaliation action in state court because the issue raised had necessarily been determined when the District Court dismissed her federal complaint. The plaintiff alleged she was retaliated against after she told management about allegedly discriminatory practices. The retaliation was alleged to have been the failure to act quickly to address a dispute with a coworker:

The doctrine of collateral estoppel applies where “[f]irst, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue . . . had a full and fair opportunity to contest the prior determination” … . “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” (id. at 456).In considering plaintiff’s Title VII constructive discharge claim, the District Court examined, as it was obliged to do, the question of whether defendant “intentionally subjected her to an intolerable work environment”… . An integral part …of the court’s determination that defendant had not done so was its explicit finding that defendant “responded promptly after [p]laintiff’s complaint” and “the next day … attempted to address [p]laintiff’s concerns within the constraints of [defendant’s] staffing situation”… . Simmons-Grant v Quinn Emanuel Urquhart & Sullivan LLP, 2014 NY Slip Op 01407, 1st Dept 2-27-14

 

, ,

Unjust Enrichment Does Not Require a Wrongful Act by the One Enriched

The Second Department explained the criteria for determining a motion to dismiss for failure to state a cause of action and the elements of an unjust enrichment cause of action. Unjust enrichment does not require a wrongful act:

“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 inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … .”The essential inquiry in any action for unjust enrichment or restitution is whether … it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” … . A plaintiff must show that (1) the other party was enriched, (2) at the plaintiff’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 … .”Unjust enrichment . . . does not require the performance of any wrongful act by the one enriched” … . “Innocent parties may frequently be unjustly enriched” … . “What is required, generally, is that a party hold property under such circumstances that in equity and good conscience he ought not to retain it'” … . Alan B Greenfield MD PC v Beach Imaging Holdings LLC, 2014 NY Slip Op 01285, 2nd Dept 2-26-14

 

,

Despite the Contractual Agreement to Apply Delaware Law, Because There Was No Conflict Between Delaware and New York Law, and Because the Parties Disagreed About Which Law to Apply, the Court Applied New York Law

The First Department determined there was no conflict between Delaware and New York law concerning non-solicitation agreements. Therefore, because the parties disagreed about which law should be applied (despite the contractual agreement to apply Delaware law), the court applied New York law, the law of the forum state:

By their own terms, all of the nonsolicitation agreements were to be governed by and construed in accordance with Delaware law. Nonetheless, the parties differ as to whether New York law or Delaware law should be applied.In light of the parties’ disagreement as to which state’s law should apply, our first step is to determine whether there is an actual conflict between the laws of the jurisdictions involved … . For an actual conflict to exist, “the laws in question must provide different substantive rules in each jurisdiction that are relevant’ to the issue at hand and have a significant possible effect on the outcome of the trial'” … . Under New York law, an employee’s noncompetition agreement is reasonable and, therefore, enforceable “only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public” … . The parties’ briefs disclose no conflict of laws that would have a ” significant possible effect on the outcome of the trial'” … . To be sure, the moving defendants argued before the motion court that “Delaware law does not differ significantly from New York law as to the test for enforceability” and that applying New York law “should not make a material difference to the outcome” of the case. Thus, we apply the law of New York, the forum state… . TBA Global LLC v Proscenium Events LLC 2014 NY Slip Op 01266, 1st Dept 2-25-14

 

,

Allegedly Flawed Service Overlooked Under CPLR 5304 Where Defendant Agreed by Contract that English Courts Would Have Jurisdiction Over Disputes and Defendant Had “Fair Notice” of the Lawsuit/Motion for Judgment In Lieu of Complaint Granted

The Court of Appeals determined summary judgment in lieu of complaint should have been granted to the plaintiff. Under the terms of a contract to provide wholesale seafood, the parties agreed the courts of England would have exclusive jurisdiction over disputes. The defendant was served in England and defaulted, but argued in opposition to the summary judgment motion in New York that the person upon whom the documents were served was not authorized to accept service. The Court of Appeals held that service was sufficient under CPLR 5304 because the defendant had agreed by contract that the English courts have jurisdiction and the defendant had “fair notice” of the lawsuit:

Although CPLR article 53 generally provides that a foreign judgment will not be enforced in New York if the foreign court did not have personal jurisdiction over the defendant (CPLR 5304[a][2]), an exception may be made if, “prior to the commencement of the proceedings [defendant] had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved” (CPLR 5305[3]) and was afforded fair notice of the foreign court proceeding that gave rise to the judgment. We applied this principle in Galliano [15 NY3d 75], where we explained that enforcement of a foreign judgment is not repugnant to our notion of fairness if defendant was a party to a contract in which the parties agreed that disputes would be resolved in the courts of a foreign jurisdiction and defendant was aware of the ongoing litigation in that jurisdiction but neglected to appear and defend. We clarified that, so long as the exercise of jurisdiction by the foreign court does not offend due process, the judgment should be enforced without “microscopic analysis” of the underlying proceedings … . Landauer Limited v Monani Fish Co Inc, 27, CtApp 2-25-14

 

,

Question of Fact Whether a “Special Relationship” Had Developed Such that the Insurance Broker Might Be Liable for Negligent Advice About Coverage

In a full-fledged opinion by Judge Graffeo, over a dissent, the Court of Appeals determined there was a question of fact whether the relationship between the insurance broker and the plaintiff was a “special relationship” such that the broker might be liable for negligent advice about sufficient coverage. Plaintiff was a business owner who suffered losses for business interruption caused by several roof-failures. The issue was whether the insurance the broker advised plaintiff to purchase was sufficient for plaintiff’s needs. The court explained the general principles involved:

As a general principle, insurance brokers “have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage” … . Hence, in the ordinary broker-client setting, the client may prevail in a negligence action only where it can establish that it made a particular request to the broker and the requested coverage was not procured. * * *Where a special relationship develops between the broker and client, we have also indicated that the broker may be liable, even in the absence of a specific request, for failing to advise or direct the client to obtain additional coverage … . In Murphy [90 NY2d at 272] , we recognized that “particularized situations may arise in which insurance agents, through their conduct or by express or implied contract with customers and clients, may assume or acquire duties in addition to those fixed at common law” and that the question of whether such additional responsibilities should be “given legal effect is governed by the particular relationship between the parties and is best determined on a case-by-case basis” … . We identified three exceptional situations that may give rise to a special relationship, thereby creating an additional duty of advisement:”(1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on” … . Voss v The Netherlands Insurance Company…, 11, CtApp 2-25-14

 

,

“Common Law Arbitration” Explained/”Common Law Arbitration” Waived by Seeking Relief in a Counterclaim

The Second Department explained “common law arbitration,” i.e., an oral agreement to arbitrate, and determined defendant had waived the agreement to arbitrate by raising a counterclaim which related to the subject of the agreement to arbitrate:

Although there was no written agreement to arbitrate in this case, where one party demands arbitration, and the other party accepts the demand, an oral agreement to arbitrate may be formed … . Oral agreements to arbitrate are not covered by CPLR article 75, and are referred to as “common-law arbitration” agreements… . * * *However, the defendants, by their conduct in this lawsuit, waived arbitration. As this Court explained in Reynolds & Reynolds Co., Automotive Sys. Div. v Goldsmith Motor Corp. (251 AD2d 312, 313),”[t]here is no inflexible or mechanical rule as to what constitutes a waiver of the right to arbitrate. Rather, determination of the issue depends on the facts and circumstances of each particular case . . . Among the factors to be considered are the extent of the party’s participation in litigation and conduct inconsistent with the assertion of a right to arbitrate, the delay in seeking arbitration, and whether the other party has been prejudiced”… . Willer v Kleinman, 2014 NY Slip Op 01164, 2nd Dept 2-19-14

 

, ,

Motion to Vacate Pursuant to CPLR 5015 Should Have Been Granted On “Subject Matter Jurisdiction” and “Fraud Upon the Court” Grounds

In a full-fledged opinion by Justice Centra, the Fourth Department determined Wells Fargo had either perpetrated a fraud upon the court or failed to reveal all the facts to the court which granted a nunc pro tunc order adding a second parcel to a foreclosure action. The Fourth Department noted that Wells Fargo knew the foreclosure action did not relate to the second parcel and therefore knew the nunc pro tunc order purporting merely to correct a mistake should not have been granted:

First, we agree … that the court … should have granted the motion to vacate the nunc pro tunc order because the court … was without subject matter jurisdiction to issue the nunc pro tunc order (see CPLR 5015 [a] [4]). Wells Fargo moved for the nunc pro tunc order pursuant to CPLR 2001, which provides that a “court may permit a mistake, omission, defect or irregularity . . . to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.” The court erred in granting the nunc pro tunc motion because Wells Fargo was not seeking to correct a mere ministerial or clerical mistake… . * * *

…[W]e agree … that the court … also should have granted the motion to vacate the nunc pro tunc order based on “fraud, misrepresentation, or other misconduct of an adverse party” (CPLR 5015 [a] [3]…).. In its nunc pro tunc motion, Wells Fargo asserted that the “common address” of 124-128 East Main Street contained both Parcel No. 1 and Parcel No. 2. Wells Fargo failed to advise the court …., however, that the metes and bounds descriptions of the two parcels are different. Wells Fargo does not dispute that, “when there is a discrepancy between the street address and the legal description of a piece of real property, the legal description controls” … . Wells Fargo also failed to advise the court of the second mortgage that encumbered Parcel No. 2, which, as noted earlier, was executed on the same date as the first mortgage. Further, Wells Fargo failed to advise the court that there was a two-family dwelling on Parcel No. 1 and a separate four-family dwelling on Parcel No. 2. Had Wells Fargo made the court aware of those facts, the court may have realized that there was no clerical error in omitting Parcel No. 2 from schedule A. Wells Fargo Bank NA … v Podeswik…, 81, 4th Dept 2-14-14

 

,

Public Interest Privilege (Protecting Government Documents from Disclosure) Explained

In determining Supreme Court erred when it ordered the county to produce documents sought during discovery without reviewing them to determine the applicability of the asserted public interest privilege, the Second Department wrote:

CPLR 3101(a) broadly mandates “full disclosure of all matter material and necessary in the prosecution or defense of an action.” This provision is to be liberally interpreted in favor of disclosure … . Nonetheless, a party from whom disclosure is sought may seek to prevent disclosure by properly invoking a recognized privilege. “A party asserting that material sought in disclosure is privileged bears the burden of demonstrating that the material it seeks to withhold is immune from discovery” … .”A public interest privilege inheres in certain official confidential information in the care and custody of governmental entities” … . “This privilege permits appropriate parties to protect information from ordinary disclosure, as an exception to liberal discovery rubrics” … . “Specifically, the privilege envelops confidential communications between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged” … “The justification for the privilege is that the public interest might otherwise be harmed if extremely sensitive material were to lose this special shield of confidentiality”… . Ren Zheng Zheng v Bermeo, 2014 NY Slip Op 00979, 2nd Dept 2-13-14

 

, ,

Landowners Who Have Been Granted a Variance Are Necessary Parties In an Action Challenging the Variance (CPLR 1001 (b))

The Second Department determined that landowners who were issued a zoning variance were necessary parties in the action challenging the variance. The landowners had not been properly served and Supreme Court went ahead and determined the merits without the landowners in the suit. On appeal the petitioners did not dispute that the landowners were necessary parties, but argued their presence should be excused under the factors in CPLR 1001 (b). The Second Department disagreed, finding that, under the facts, factors 2 through 5 required the landowners to be parties to the action:

A court may excuse the failure to join a necessary party and allow an action to proceed in the interest of justice upon consideration of five factors enumerated in CPLR 1001(b):   (1) whether the petitioner has another remedy if the action is dismissed for nonjoinder, (2) the prejudice that may accrue from nonjoinder to the respondent or to the nonjoined party, (3) whether and by whom prejudice might have been avoided or may in the future be avoided, (4) the feasibility of a protective provision, and (5) whether an effective judgment may be rendered in the absence of the nonjoined party… . Matter of Feder v Town of Islip Zoning Board of Appeals, 2014 NY Slip Op 00998, 2nd Dept 2-13-14

 

Court-Ordered Period for Bringing Summary Judgment Motion Which Was Shorter than the Statutory Period Cannot Be Modified Absent Good Cause—Law Office Failure Not Enough

The First Department determined that the court-ordered deadline for bringing a summary judgment motion could not be modified absent good cause, even though the court-ordered deadline shortened the statutory 120 period:

As the Court of Appeals has repeatedly reiterated, court-ordered time frames are requirements to be taken seriously by the parties … . Contrary to the distinction defendant seeks to draw, it does not matter whether a motion for summary judgment has been made more than 120 days after the filing of the note of issue or after the expiration of a shorter time limit set by a court order or stipulation. Whatever the source of the deadline with which a party fails to comply, the lateness may not be excused without a showing of good cause within the meaning of CPLR 3212(a)—a showing of something more than mere law office failure… . Quinones v Joan & Sanford I Weill Med Coll, 2014 NY slip Op 00882, 1st Dept 2-11-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy