You are here: / Civil Procedure
, ,

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

 

, ,

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.

 

, ,

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

 

, ,

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

 

, ,

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

 

,

“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

 

,

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

 

, ,

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

 

, ,

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

 

, ,

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

 

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