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Criteria for Seizure of Equipment Explained

In reversing Supreme Court, the Second Department determined the plaintiff, in a replevin action, was not required to demonstrate irreparable harm in an action for seizure pursuant to CPLR 7102.  The defendant had defaulted on an equipment lease.  The court wrote:

Pursuant to CPLR 7102(c) and (d), on a motion for an order of seizure, a plaintiff must demonstrate a likelihood of success on its cause of action for replevin and the absence of a valid defense to its claim … . Here, the plaintiff made such a showing … . Contrary to the court’s determination, the plaintiff was not required to demonstrate that it would suffer irreparable injury in order to obtain an order of seizure pursuant to CPLR 7102.  TCF Equip Fin Inc v Interdimensional Interiors, Inc, 2013 NY Slip 05893, 2nd Dept 9-18-13

 

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Opening Statement Provided Grounds for Dismissal of False Arrest/Malicious Prosecution Action

The Second Department affirmed Supreme Court’s grant of a judgment as a matter of law to the defendant in a false arrest/malicious prosecution case based upon plaintiff’s counsel’s opening statement. In the opening, counsel stated the defendant had been arrested after the eyewitness victim made an in-person identification of the plaintiff to a police officer.  Because the eyewitness identification provided probable cause for the arrest, the false arrest and malicious prosecution causes of action were not viable:

An application for judgment as a matter of law may be made at the close of an opposing party’s case, or at any time on the basis of admissions (see CPLR 4401). The grant of such an application prior to the close of the opposing party’s case is generally disfavored … . However, judgment as a matter of law may be warranted prior to the presentation of any evidence if the plaintiff has, “by some admission or statement of fact, so completely compromised his or her case that the court was justified in awarding judgment as a matter of law to one or more defendants”… . * * *

Here, the plaintiff, through his counsel, admitted that the eyewitness victim of the alleged crimes made an in-person identification of the plaintiff to a police officer, which led to his immediate arrest by that officer. This admission by the plaintiff, through his counsel, “so completely compromised” his position that the police lacked probable cause to arrest him, that the Supreme Court was justified in awarding judgment as a matter of law to the City…. Okunubi v City of New York, 2013 NY Slip Op 05886, 2nd Dept 9-18-13

 

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Summary Judgment Can Not Be Granted Based on Affidavit By Someone with No Personal Knowledge of the Facts, Even If Factual Information Not Disputed

A mortgage foreclosure action was discontinued at the plaintiff’s request because the limited signing officer who signed the affidavit in support of plaintiff’s motion for summary judgment did not have personal knowledge of the facts.  The defendant then cross-moved for summary judgment based on the plaintiff’s papers.  In explaining that Supreme Court should not have granted summary judgment to the defendant dismissing the action, the Second Department wrote:

…[W]here a motion for summary judgment is based solely upon an affidavit of someone with no personal knowledge of the facts, that circumstance generally presents only a ground for the denial of summary judgment…, not a ground to dismiss the action. [Defendant] failed to establish grounds to dismiss the action against her with prejudice, and there is no basis in this record supporting that request for relief. Accordingly, the Supreme Court improperly granted that branch of [defendant’s] cross motion which was, in effect, to dismiss the action against her with prejudice… . GMAC Mtge LLC v Bisceglie, 2013 NY Slip Op 05878, 2nd Dept 9-18-13

 

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Action By Israeli Citizens Against Bank Which Allegedly Funded Groups that Committed Bombings and Rocket Attacks Allowed to Go Forward in New York Applying Israeli Negligence Law

In a full-fledged opinion by Justice Feinman, the First Department determined that Israeli law should be applied in a civil action by 50 Israeli citizens who were injured or who represent persons killed in bombings and rocket attacks carried out in Israel by Palestine Islamic Jihad and Hamas.  The opinion includes very detailed explanations of American and Israeli tort law (including the different roles of foreseeability in each), the factors that determine choice of law, and forum non conveniens. The action is against the Bank of China (BOC) and alleges the bank was negligent in supplying funds to the groups which carried out the bombings and attacks.  BOC argued that no duty ran from the bank directly to those injured by the intentional torts of others.  But, under Israeli law, a duty arises when an act is foreseeable and when an act violates a statute.  The court explained:

…[T]he Israeli law of negligence “differs slightly” from New York law in that duty is divided into fact and notional duty and depends on foreseeability …. …[T]he analysis of whether a duty is owed involves an inquiry into whether a reasonable person could have foreseen the occurrence of the damage under the particular circumstances alleged; whether as a matter of policy, a reasonable person ought to have foreseen the occurrence of the particular damage; and whether the occurrence causing the damage was foreseeable … . This differs from New York law, where the foreseeability of harm does not define duty and, absent a duty running directly to the injured person, there is no liability in damages, however careless the conduct or foreseeable the harm … .

In addition, the claim of breach of statutory duty …has no equivalent in New York law. … Israel’s tort of breach of a statutory duty “acts as a civil private right of action for the violation of any enactment” issued by the Knesset, the Israeli parliament. The plaintiff must be able to show that the defendant was under a duty imposed by an enactment, the enactment was created for the benefit of the plaintiff, the defendant breached that duty, and the breach caused an injury to the plaintiff of the type that the enactment was intended to prevent …. …[T]he enactments at issue are section 4 of the Prevention of Terrorism Ordinance, sections 145 and 148 of the Penal Law, and section 85 of the Defense Regulations (Emergency Period), all of which prohibit aiding and abetting terrorism, specifically by the giving of money to any terrorist organization, the payment of any contribution to any unlawful association including terrorist groups, and the performance of any service for or holding of funds of any unlawful organization … . Elmaliach v Bank of China Ltd, 2013 NY Slip Op 05858, 1st Dept 9-17-13.

 

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In Personal Injury Case, Court Should Not Have Granted Mistrial When Objection Sustained, Lawyer Admonished and Curative Instruction Given

The Second Department reversed Supreme Court’s grant of a mistrial in a slip and fall case.  Plaintiff was injured playing basketball. Plaintiff objected to remarks made by defense counsel in summation which erroneously implied that the doctrine of primary assumption of risk applied.  The trial judge sustained the objection, admonished the lawyer, and gave a curative instruction. After the verdict for the defendant, Supreme Court granted plaintiff’s motion for a mistrial:

The Supreme Court erred in, in effect, granting the plaintiffs’ application for a mistrial since the court had previously properly sustained objections to the subject summation comments, openly admonished counsel, and provided curative instructions, thereby correcting any possible prejudice resulting from the subject summation comments … . Richardson v City of New York, 2013 NY slip Op 05810, 2nd Dept 9-11-13

 

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Refusal to Comply with Discovery Demand Supported Sanction of Dismissal of the Complaint

The Second Department determined Supreme Court had properly dismissed the complaint in a medical malpractice action because the plaintiffs refused to identify the mohel who had performed the circumcision of infant plaintiff.  In finding dismissal of the entire complaint an appropriate sanction, the court wrote:

“The Supreme Court has broad discretion in making determinations concerning matters of disclosure including the nature and degree of the penalty to be imposed under CPLR 3126” … . “The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious”… . Further, the court can infer that a party is acting willfully and contumaciously through his or her repeated failure to respond to demands or to comply with discovery orders … .  Silberstein v Maimonides Med Ctr, 2013 NY Slip Op 05813, 2nd Dept 9-11-13

 

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Four-Year Statute of Limitations for Rent Overcharge Claim

The Second Department explained the four-year statute of limitations for a rent overcharge claim:

“A rent overcharge claim, whether made in a judicial or administrative forum, is subject to a four-year statute of limitations” (… see CPLR 213-a; Administrative Code of City of NY § 26-516[a][2]). “[T]he Rent Regulation [*2]Reform Act of 1997 (RRRA) (L 1997, ch 116) clarified and reinforced the four-year statute of limitations applicable to rent overcharge claims (see Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-516[a])” …, “preclud[ing] a court from examining the rental history of a housing accommodation prior to the four-year period preceding the filing of the rent overcharge complaint” …, except in situations where there are substantial indicia of fraud.

Here, the DHCR [NYS Division of Housing and Community Renewal] properly determined that July 17, 2005, was the “base date” of this proceeding, that is, the date four years prior to the filing of the relevant rent overcharge complaint. The DHCR properly refused to examine the rental history of the subject apartment prior to the “base date,” since there is no merit to the petitioner’s contention that there were substantial indicia of fraud in connection with the landlord’s establishment of the amount of the initial legal registered rent… .  Matter of Watson v New York State Div of Hous & Community Renewal…, 2013 NY Slip Op 05828, 2nd Dept 9-11-13

 

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“Law of the Case” Doctrine at the Appellate Level Explained

The Second Department explained the “law of the case” doctrine at the appellate level in the context of a Family Court matter:

As a general rule, the law of the case doctrine precludes this Court from reexamining an issue which has been raised and decided against a party on a prior appeal where that party had a full and fair opportunity to address the issue … . Review of the mother’s contention regarding the prohibition against telling the child that any man other than the father is the child’s biological father is barred by the doctrine of law of the case, as this Court has already decided this exact issue on a prior appeal …, and there has been no showing of subsequent evidence or change of law … . Matter of Fulmer v Buxenbaum, 2013 NY Slip Op 05819, 2nd Dept 9-11-13

 

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Student Who Had Been Expelled Could Bring Plenary Complaint Against School, in Addition to an Article 78 Proceeding

In a full-fledged opinion by Justice Andrias, the First Department determined that a dental student who had been expelled in a disciplinary action could bring both an article 78 proceeding and a plenary action for damages against the school. The court went through each cause of action in the complaint and allowed a few, including sex discrimination claims, to go forward. (In a previous appeal the article 78 petition re: the expulsion had been granted, finding that expulsion was too severe a penalty.):

“Judicial review of an academic institution’s disciplinary determinations is limited to whether it substantially adhered to its own published rules and guidelines and whether the determinations are based on a rational interpretation of the relevant evidence” … . Thus, to the extent plaintiff’s causes of action are, in essence, a challenge to the determination to expel her, she was only entitled to article 78 review …, and the filing of the article 78 proceeding mandated the dismissal of the plenary action insofar as it raised such claims … . Conversely, to the extent the gravamen of plaintiff’s causes of action is not a challenge to the decision to expel her and is not duplicative of the petition’s allegations, she is not limited to article 78 review and may seek damages in a plenary action … . Kickertz v New York Univ, 2013 NY Slip Op 05781, 1st Dept 9-10-13

 

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Defendant in Medical Malpractice Action Should Have Been Allowed to Amend His Answer to Add Statute of Limitations Affirmative Defense

The Second Department reversed Supreme Court’s denial of defendant’s motion to amend his answer by adding the passing of the statute of limitations as an affirmative defense.  The Second Department explained:

Here, it is undisputed that the two-year statute of limitations applicable to a cause of action alleging wrongful death began to run on August 14, 2007, the date of the decedent’s death (see EPTL 5-4.1), and that the plaintiff commenced the second action, in which Lehman was a named defendant, more than two years after the decedent’s death. Accordingly, Lehman’s proposed affirmative defense of the statute of limitations as to so much of the complaint as sought to recover damages for wrongful death was not palpably insufficient nor patently devoid of merit on its face, and the plaintiff’s contentions regarding the relation back doctrine (see CPLR 203[b]) did not warrant the denial of Lehman’s motion. Consequently, as there was no evidence that the amendment would unfairly prejudice the plaintiff, the Supreme Court should have granted Lehman’s motion for leave to amend his answer without conducting a further examination into the ultimate merits of the proposed amendment … . “If [the plaintiff] wishes to test the merits of the proposed added . . . defense, [the plaintiff] may later move for summary judgment upon a proper showing” … . Carroll v Motola, 2013 NY Slip Op 05728, 2nd Dept 8-28-13

 

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