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Contractual Shortened Statute of Limitations Okay

The Second Department held that a shortened statute of limitations agreed to in an employment contract was enforceable:

“The parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations” (…see CPLR 201…). “ Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced” … . Hunt v Raymour & Flanigan, 2013 NY Slip Op 02715, 2nd Dept, 4-24-13

 

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Proof Submitted in Reply Papers Not Considered

In finding plaintiffs’ claim for indemnification was not supported by proof plaintiffs had actually paid the debts for which they sought reimbursement, the Second Department noted that the debt-payment-proof submitted in reply papers could not be considered:

With limited exceptions not applicable here, a cause of action seeking indemnification is not enforceable until payment is made or a loss is suffered by the party seeking indemnification …. Here, the plaintiffs failed to establish, prima facie, that they actually paid any of the debts … . The plaintiffs’ proof on that issue, which was submitted for the first time in their reply papers, may not be considered for purposes of establishing their prima facie entitlement to judgment as a matter of law … .  Gamparo v Mathai, 2013 NY Slip Op 02711, 2nd Dept, 4-24-13

 

Jury’s Consulting a Dictionary Justified Mistrial

In upholding the trial court’s grant of a mistrial because the jury consulted a dictionary, the First Department wrote:

…[The court properly determined that the jury’s act of consulting an outside dictionary on a term critical to its decision constitutes misconduct warranting a mistrial, especially since the foreperson indicated that the jury was “confused” about the term “substantial” and the court was unable to give curative instructions … .  However, because the jury’s misconduct related only to the issue of liability, and there is no evidence that it affected the jury’s determination on damages, we reinstate the verdict on damages … .  Olshantesky v New York City Tr Auth, 2013 NY Slip Op 02685, 1st Dept, 4-23-13

 

 

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A Party Can Not Appeal from a Portion of an Order Where the Party Is Not Aggrieved by the Order

The Second Department noted that a party can not appeal from a portion of an order which does not grant relief the party did not request, even where the order includes reasoning with which the party does not agree:

“A party is not aggrieved by an order which does not grant relief [he or she] did not request” … . “Merely because the order appealed from contains language or reasoning that a party deems adverse to its interests does not furnish a basis for standing to take an appeal'” … . Here, the plaintiffs are not aggrieved by so much of the order as, in denying the … defendants’ motion for summary judgment and reaching a result which was not adverse to the plaintiffs, determined that a prior judgment did not have res judicata or collateral estoppel effect on the motion before it … . Since the plaintiffs are not aggrieved by the portion of the order from which they appeal, their appeal must be dismissed. Spielman v Mehraban, 2013 NY Slip Op 02565, 2011-10855, Index No 19056/10, 2nd Dept, 4-17-13

 

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“Law of the Case” Does Not Bind Appellate Courts

In a medical malpractice action, plaintiff had moved to amend her complaint to add a cause of action for wrongful death and the motion was denied.  There was a mistrial.  Before the second trial, plaintiff again moved to amend her complaint.  The motion was denied because the first denial was deemed the law of the case.  In determining the motion to amend should have been allowed, the Second Department noted that the law of the case doctrine does not apply to appellate courts:

The doctrine of the law of the case does not bind appellate courts, and thus, this Court is not bound by the law of the case established by the prior determination …. Accordingly, this Court is free to consider that branch of the plaintiff’s motion which was for leave to amend the complaint on the merits …. Under the circumstances presented here, we conclude that leave to amend the pleading should be permitted.

Generally, leave to amend a pleading should be freely given when there is no significant prejudice or surprise to the opposing party and where the evidence submitted in support of the motion indicates that the proposed amendment may have merit (see CPLR 3025[b]…). Here, in the aftermath of the court’s granting of a mistrial, Mercy [defendant] failed to allege, much less show, surprise or prejudice resulting from the plaintiff’s delay in asserting the wrongful death cause of action against it … . Moreover, the proposed amended complaint, which sufficiently alleged that Mercy’s negligence caused the decedent to suffer injuries and ultimately death, was neither “palpably insufficient nor patently devoid of merit” … .   Hothan v Mercy Med Ctr, 2013 NY Slip Op 02541, 2011-10562, Index No 14345/06, 2nd Dept, 4-17-13

 

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Jury Verdict Finding No Negligence Reversed on Appeal/Article 16 Defenses Re: Negligence of Non-Party Allowed

A mechanic working in the basement of a two-family house left a trap door, which was directly outside the side door of plaintiff’s apartment, open.  Plaintiff fell through the open trap door.  In setting aside the jury verdict finding the mechanic was not negligent, the Second Department wrote:

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . In exercising our authority to review the weight of the evidence …, we find that the jury’s verdict was contrary to the weight of the evidence. “Negligence involves the failure to exercise the degree of care that a reasonably prudent person would exercise in the same circumstances” …. Applying this standard, we conclude that the jury’s determination that the defendant was not negligent was not based on a fair interpretation of the evidence, since a reasonable person should have been aware that leaving the trapdoor open created an unsafe condition …. Accordingly, we reverse the amended judgment, reinstate the complaint, and remit the matter … for a new trial.

The Second Department also made the following findings, pursuant to CPLR article 16, about defenses based upon the liability of the non-party out-of-possession landlord:

…[T]he Supreme Court did not err in denying that branch of the plaintiff’s motion which was to preclude the defendant from offering evidence as to the liability of a nonparty, the out-of-possession landlord, for the purpose of limiting the defendant’s liability for noneconomic damages pursuant to CPLR article 16. Contrary to the plaintiff’s contention, a defendant is not required to plead that defense as an affirmative defense (see CPLR 1601[1]…).

…[T]he Supreme Court properly denied the plaintiff’s motion to dismiss the defendant’s affirmative defense pursuant to CPLR article 16, as the defendant presented evidence demonstrating that a question of fact existed as to the negligence of the nonparty landlord (see CPLR 1603…).  Cooper v Burt’s Reliable, Inc, 2013 NY Slip Op 02529, 2012-00098, Index No 6053/07, 2nd Dept 4-17-13

 

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In a Prohibition Proceeding Brought Under Article 78, Trial Judge’s Mistrial Order Deemed Improper, Retrial Precluded​

After a juror was discharged for misconduct, the People stated they did not want to go forward with the jury deliberations.  The defense, however, wanted to continue to verdict with the remaining 11 jurors.  The trial court ordered a mistrial.  The defendant brought an Article 78 proceeding seeking to prohibit a second trial on double jeopardy grounds.  The Second Department, after determining the four-month statute of limitations did not apply, granted the petition, finding the trial judge should not have ordered a mistrial over the defense objection:

Here, the People have not met their burden of demonstrating that the declaration of a mistrial was manifestly necessary. While it is undisputed that juror number 11 was grossly unqualified to continue serving, the court abused its discretion in declaring a mistrial without considering other alternatives. The defendant specifically indicated his desire to waive trial by a jury of 12 persons and proceed with the remaining 11 jurors, an option that has been endorsed by the Court of Appeals …. Under the circumstances presented, as urged by defense counsel, it would have been appropriate to poll the remainder of the jurors to ascertain whether they could render an impartial verdict …. Moreover, as the improper information imparted to the jurors did not significantly prejudice the People, the court should have considered whether a specific curative instruction could have clarified what constituted “evidence” and whether such an instruction could have cured the impropriety …. Accordingly, there is an insufficient basis in the record for the declaration of a mistrial, and thus retrial is precluded. Matter of Smith v Brown, 2013 NY Slip Op 02584, 2013-00751, 2nd Dept, 4-17-13

 

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Forum Selection Clause Requiring All Enforcement Actions to be Brought in Surrogate’s Court Enforced 

A forum-selection clause in a stipulation required any action necessary to enforce the terms of the stipulation be brought in Surrogate’s Court, Queens County.  When a proceeding to discharge a mortgage, which was related to the stipulation, was brought in Supreme Court, Queens County, the court dismissed the proceeding with leave to renew in Surrogate’s Court pursuant to the forum-selection clause. In affirming, the Second Department wrote:

 “Although once disfavored by the courts, it is now recognized that parties to a contract may freely select a forum which will resolve any disputes over the interpretation or performance of the contract” … . “A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court” … . Matter of Chiantella v Lucy Chiantella Revocable Trust of 2002, 2013 NY Slip Op 02575, 2012-01935, Index No 1853/11, 2nd Dept 4-17-13

 

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Denial of Receipt of Service Mandates a Hearing 

In determining the affidavit of service of a complaint in a foreclosure action had been rebutted by the appellant’s sworn denial (requiring a hearing), the Second Department wrote:

Where there is a sworn denial that a defendant was served with process, the affidavit of service is rebutted and the plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence …. In order to warrant a hearing on the issue of service, a defendant must swear to detailed and specific facts to rebut the statements in the process server’s affidavit ….

Here, the Supreme Court erred in determining the motion without first conducting a hearing, as the appellant demonstrated his entitlement to a hearing on the issue of service by his sworn denial, setting forth significant discrepancies between the age and weight of the person allegedly served and the appellant’s actual age and weight at the time of the purported service …. Under these circumstances, the appellant is entitled to a hearing on the issue of whether service was properly effected pursuant to the personal delivery provisions of CPLR 308(1) ….  Emigrant Mtge Co, inc v Westervelt, 2013 NY Slip Op 02536, 2012-08302, Index No 2031/09, 2nd Dept, 4-17-13

 

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New York Had Jurisdiction to Modify Pennsylvania Support Order

In finding that Family Court had jurisdiction to modify a Pennsylvania support order, the Second Department wrote:

The Uniform Interstate Family Support Act (hereinafter UIFSA), codified in article 5-B of the Family Court Act, provides, in pertinent part, that a party seeking to modify and/or enforce a child support order issued in another state “shall register that order in this state” (Family Ct Act § 580-609). The parties agree that the support order governing the father’s child support obligations, which was issued by the Court of Common Pleas of Montgomery County, Pennsylvania … (hereinafter the Pennsylvania support order) was registered in the Family Court, Suffolk County, pursuant to UIFSA …. The Family Court had jurisdiction to modify the Pennsylvania support order, upon registration thereof, since none of the parties resides in Pennsylvania, the petitioner mother does not reside in New York, and the respondent father, at all relevant times, was subject to personal jurisdiction in Suffolk County (see Family Ct Act § 580-611[a][1]). Matter of Gowda v Reddy, 2013 NY Slip Op 02577, 2011-06440, 2nd Dept, 4-17-13

 

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