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Irreparable Injury to Plaintiffs Not Demonstrated and Balance of Equities Did Not Favor Plaintiffs Who Sought Injunction Prohibiting Landlord from Proceeding with a Water-Damage-Repair Plan Plaintiffs Thought Inadequate

In a full-fledged opinion by Justice Saxe, the First Department affirmed the denial of a preliminary injunction where plaintiffs-tenants sought to prohibit the landlord from going forward with repairs necessitated by water damage. The landlord proposed a repair-plan which involved the installation of insulation in the walls which would reduce the interior space of the 1400 square-foot apartment by about 50 square feet.  The plaintiffs wanted the exterior walls completely removed and replaced.  The First Department applied the standard criteria for injunctive relief and determined plaintiffs did not show irreparable harm and the balance of equities did not favor plaintiffs:

…[A]n alteration to residential quarters may be so minor that even though the tenant may be entitled to some form of compensation, a finding of irreparable harm is not warranted. Cases in which interference was sufficient to justify either injunctive relief or orders preventing the work from proceeding … do not preclude the possibility that interference in other circumstances may be so minimal as to fail to justify injunctive relief. Plaintiff failed to make a clear showing that the possible square footage reduction, a small fraction of the total footprint of the apartment, was more than de minimis. This conclusion, however, does not preclude compensation by other means.

Moreover, the balance of the equities does not weigh in plaintiff’s favor. Although plaintiff proposed an alternative method of performing the work on the exterior, she failed to respond to defendant’s assertion that this method would entail substantial extra expenses that defendant was under a fiduciary duty to avoid imposing on the other cooperative shareholders … . The claimed impact to plaintiff of the planned modifications to her apartment, most of which will be compensable based on plaintiffs’ breach of contract theory, is far outweighed by the expense to the co-op of demolishing and rebuilding exterior walls, especially when those walls have already been repaired and treated for waterproofing. Goldstone v Gracie Terrace Apt Corp, 2013 NY Slip Op 05725, 1st Dept 8-27-13

 

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Fraud Sufficiently Pled; Six-Year Statute of Limitations Applied

In reversing Supreme Court, the Second Department determined plaintiff had adequately pled a cause of action sounding in fraud and that, therefore, the six-year statute of limitations applied to both the fraud and the related breach of fiduciary duty causes of action.  In explaining the pleading requirements for fraud, the Second Department wrote:

To state a cause of action sounding in fraud, a plaintiff must allege that “(1) the defendant made a representation or a material omission of fact which was false and the defendant knew to be false, (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it, (3) there was justifiable reliance on the misrepresentation or material omission, and (4) injury”… . “A cause of action to recover damages for fraudulent concealment requires, in addition to allegations of scienter, reliance and damages, an allegation that the defendant had a duty to disclose material information and that it failed to do so”… .

In assessing a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the facts pleaded are accepted as true and the plaintiff is accorded every possible favorable inference … . The court is then to “determine only whether the facts as alleged fit within any cognizable legal theory” … . Pursuant to CPLR 3016(b), a cause of action alleging fraud must be pleaded with particularity so as to inform the defendant of the alleged wrongful conduct and give notice of the allegations the plaintiff intends to prove .. . This pleading requirement “should not be confused with unassailable proof of fraud,” and “may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct.” … .  McDonnell v Bradley, 2013 NY Slip Op 05681, 2nd Dept 8-21-13

 

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Overriding Village Legislative Cap on Number of Taxicab Licenses Not a Proper Subject of Mandamus Action—Applicability of Mandamus Explained

In reversing Supreme Court, the Second Department determined the Article 78 proceeding which sought to override a legislative cap on the number of taxicab licenses which could be issued by the village was not a proper subject of a mandamus action:

“The extraordinary remedy of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief has been demonstrated” .. . “A discretionary act involves the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … . Thus, mandamus may be employed “to compel acts that officials are duty-bound to perform” … . However, mandamus will not lie to compel the performance of a purely legislative function … . “[T]he courts must be careful to avoid . . . the fashioning of orders or judgments that go beyond any mandatory directives of existing statutes and regulations and intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches”… .  Matter of Gonzalez v Village of Port Chester, 2013 NY slip Op 05691, 2nd Dept 8-21-13

 

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Writ of Prohibition Granted to Prevent Trial Judge from Precluding Testimony of Complainant—Complainant Would Not Release His Psychiatric Records

The First Department granted a writ of prohibition to prevent a trial judge from precluding the testimony of the complainant in a robbery case. The judge had precluded the testimony after the complainant refused to sign a HIPAA form to release his psychiatric records.  The complainant had acknowledged that he received psychiatric treatment and that he had auditory and visual hallucinations which were controlled by medication.  The First Department wrote:

An article 78 proceeding seeking relief in the nature of a writ of prohibition is an extraordinary remedy and is available to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction … . “The writ does not lie as a means of seeking a collateral review of an error of law, no matter how egregious that error might be . . . but only where the very jurisdiction and power of the court are in issue” … . Here, the court had no authority to issue this preclusion order since the records were neither discoverable nor Brady material … . It is undisputed that the People did not have the complainant’s records and did not know where he had been treated … . The People had no affirmative duty to ascertain the extent of the complainant’s psychiatric history or obtain his records … . The People advised the defense of the information they had regarding the complainant’s diagnosis and also apprised the defense of the complainant’s statements regarding his hallucinations. Therefore, no claim can be made that the People concealed any information from the court or the defense.  Matter of Johnson v Sackett, 2013 NY Slip Op 05663, 1st Dept 8-20-13

 

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Choice of Law Criteria Re: Insurance Contracts Explained

The Second Department, in reversing Supreme Court’s finding that New York, not New Jersey, law applied to a disclaimer of insurance coverage based on late notice, explained the relevant choice of law principles:

The first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved”…. Here, there is a clear conflict inasmuch as New Jersey law requires insurers asserting a disclaimer based on late notice to show that they were prejudiced by the untimely notice…, while, with respect to an identical disclaimer made under an insurance policy that, like the one in dispute here…, New York law does not ….

In contract cases, the court then applies a “center of gravity” or “grouping of contacts” analysis in order to determine which State has the most significant relationship to the transaction and the parties … . The court considers significant contacts such as the place of contracting, the place of negotiation and performance, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties … .”In the context of liability insurance contracts, the jurisdiction with the most significant relationship to the transaction and the parties’ will generally be the jurisdiction which the parties understood was to be the principal location of the insured risk . . . unless with respect to the particular issue, some other [jurisdiction] has a more significant relationship’ “…. Where the covered risks are spread over multiple states, “the state of the insured’s domicile should be regarded as a proxy for the principal location of the insured risk” … . Jimenez v Monadnock Constr Inc, 2013 NY Slip Op 05616, 2nd Dept 8-14-13

 

Work Accident and Auto Accident Cases Should Be Consolidated Because Plaintiff Alleged Auto Accident Injuries Exacerbated by Work-Related-Accident Injuries

The Second Department determined two actions should be consolidated.  Plaintiff was injured in an auto accident and alleged that those injuries were exacerbated by a work-related accident:

Where common questions of law or fact exist, a motion to consolidate or for a joint trial pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the … . In view of [plaintiff’s] allegations that certain injuries that he sustained in the automobile accident were exacerbated by the work-related accident, in the interest of justice and judicial economy, and to avoid inconsistent verdicts, the two actions should be tried jointly… . Cieza v 20th Ave Realty Inc, 2013 NY Slip Op 05610, 2nd Dept 8-14-13

 

Amendment of Bill of Particulars After Four Years of Discovery Should Not Have Been Allowed

The Second Department determined Supreme Court should not have allowed plaintiff to amend his bill of particulars to include aggravation of a preexisting condition because the request came after four years of discovery during which plaintiff had affirmatively stated his injuries did not include aggravation of preexisting condition:

Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted “unless the proposed amendment is palpably insufficient or patently devoid of merit” (…see CPLR 3025[b]…). “However, where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious’” … .Under the circumstances of this case, including the fact that, during four years of discovery, the plaintiff affirmatively maintained that his injuries did not include the aggravation of a pre-existing condition, as well as the lateness of his request for leave to amend, the prejudice to the defendants, and the lack of any reasonable excuse for the delay, the Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion for leave to amend his bill of particulars … .  Rodgers v New York City Tr Auth, 2013 NY Slip Op 05623, 2nd Dept 8-14-13

 

“Law of the Case” Doctrine Did Not Apply—Dismissal of Affirmative Defense Did Not Constitute Full Litigation of the Issue

In a property-line dispute, the Second Department reversed Supreme Court ruling that the location of the fence on plaintiff’s property was the “law of the case.”  The “law of the case” doctrine was imposed by Supreme Court based on the dismissal of the title insurance company’s affirmative defense which claimed the fence was on defendant’s land.  The Second Department wrote:

“The doctrine of the law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” …  The doctrine “applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision” …, “and to the same questions presented in the same case” … . “Like claim preclusion and issue preclusion, preclusion under the law of the case contemplates that the parties had a full and fair’ opportunity to litigate the initial determination” … .  Contrary to the determination of the Supreme Court, the prior order …which granted [the] motion pursuant to CPLR 3211 to dismiss …, did not necessarily resolve the issue of whether the fence was located on the plaintiffs’ property or the defendants’ property, as the parties did not have an opportunity to fully litigate that issue… . Ramanathan v Aharon, 2013 NY Slip Op 05621, 2nd Dept 8-14-13

 

Criteria for Avoiding Dismissal After Failure to Comply with 90-Day Notice to Serve and File Note of Issue Explained

The Second Department explained the criteria for avoiding dismissal for failure to comply with a 90-day notice to serve and file a note of issue:

Here, the defendant … did not serve a 90-day demand, but relied instead on an order dated June 13, 2008, which instructed the plaintiffs that the failure to serve and file a note of issue within 90 days would result in dismissal of the action pursuant to CPLR 3216. This order had the same effect as a valid 90-day notice pursuant to CPLR 3216 … .To avoid the sanction of dismissal, the plaintiffs were initially required to comply with the order dated June 13, 2008, either by serving and filing a timely note of issue or by moving, before the default date, to vacate the order or to extend the 90-day period pursuant to CPLR 2004 … . Having failed to pursue either of the foregoing options, the plaintiffs were obligated to demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action to avoid the sanction of dismissal (see CPLR 3216[e]…).  Griffith v Wray, 2013 NY Slip Op 05615, 2nd Dept 8-14-13

 

Criteria for Disclosure from Nonparty Witness

The Second Department explained the criteria for disclosure from a nonparty witness:

A party seeking disclosure from a nonparty witness must demonstrate that the disclosure sought is material and necessary, and must set forth the “circumstances or reasons” why disclosure is “sought or required” from such nonparty witness (CPLR 3101[a][4]…). Here, the plaintiff failed to demonstrate that additional testimony from the nonparty witnesses or the information sought would be material and necessary to the prosecution of this case (see CPLR 3101[a]…).  Dicenso v Wallin, 2013 NY Slip Op 05612, 2nd Dept 8-14-13

 

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