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THE INSURER’S OBLIGATION TO INDEMNIFY SHOULD NOT HAVE BEEN DETERMINED BASED UPON THE ALLEGATIONS IN THE PLEADINGS (FIRST DEPT).

The First Department, reversing Supreme Court, determined that although the insurer (Everest) was required to defend the plaintiff (CCM) in the underlying action, the ruling that Everest must indemnify CCM was premature:

Supreme Court should not have found that Everest was required to indemnify CCM. Although Everest concedes that it must defend CCM, “the duty to defend is broader than the duty to indemnify,” because only the latter “is determined by the actual basis for the insured’s liability to a third person and is not measured by the allegations of the pleadings” … . In the underlying action, there has been no determination whether the plaintiff’s injury was “caused, in whole or in part, by” the acts or omissions of the named insured or of those acting on its behalf … . Therefore, any declaration of the duty to indemnify was premature ( … see … Axis Surplus Ins. Co. v GTJ Co., Inc., 139 AD3d 604, 605 [1st Dept 2016] [“It is after the resolution of that action where the extent of plaintiff’s indemnification obligations can be fully determined”]). Harleysville Ins. Co. v United Fire Protection, Inc., 2024 NY Slip Op 02663, First Dept 5-14-24

Practice Point: An insurer’s obligation to indemnify cannot be determined based on the allegations in the pleadings.

 

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ALTHOUGH THE PIPE WAS A DANGEROUS CONDITION INHERENT IN THE WORK, IT WAS AN AVOIDABLE DANGEROUS CONDITION AND THERE REMAIN QUESTIONS ABOUT MEASURES TAKEN TO MINIMIZE THE TRIPPING HAZARD (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there were questions of fact which rendered the summary judgment motion premature in this Labor Law 241(6) action. A pipe 5-12 inches above the floor, although a dangerous condition inherent in the work, was an “avoidable dangerous condition.”  There remain questions of fact about preventative measures taken to minimize the tripping hazard:

Plaintiff, a welder, tripped over electrical conduit piping that rose vertically 5-12 inches in height from the floor surface in the lobby of a new building under construction and was injured. While the presence of the electrical conduit piping was a “dangerous condition” “inherent to the task at hand,” the risk of tripping over the conduit was an “avoidable dangerous condition” for which defendants could have utilized preventative measures that would not have made it impossible to complete the work … . Indeed, it is undisputed that plywood boxes ordinarily were placed on the protruding conduit piping, which mitigated the risk of tripping without rendering the overall work impossible to complete. The plywood boxes, however, were removed at the time of plaintiff’s accident. Issues of fact remain regarding the preventative measures taken to mitigate the risks associated with the dangerous condition. Accordingly, summary judgment on the Labor Law § 241 (6) is premature and the claim is reinstated to resolve the issues of fact detailed above. Maldonado v Hines 1045 Ave. of the Ams. Invs. LLC, 2024 NY Slip Op 02666, First Dept 5-14-24

Practice Point: In the context of a Labor Law 241(6) cause of action, even though a dangerous condition is inherent in the work, it may be an avoidable dangerous condition requiring measures to mitigate the risk.

 

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FORMER PRESIDENT TRUMP’S PETITION FOR A WRIT OF PROHIBITION CHALLENGING A RESTRAINING ORDER RESTRICTING HIS ABILITY TO MAKE STATEMENTS DIRECTED AT POTENTIAL WITNESSES IN A CRIMINAL TRIAL DENIED (FIRST DEPT). ​

The First Department determined the restraining order restricting former President Donald Trump’s speech during his criminal trial was valid. Trump’s petition for a writ of prohibition was denied:

The Federal Restraining Order is nearly identical to the Restraining Order issued against petitioner in the underlying criminal case … .

Petitioner brings this petition because he disagrees with where the circuit court drew the line in balancing the competing considerations of his First Amendment rights to free expression and the effective functioning of the judicial, prosecutorial and defense processes … . Weighing these concerns, the circuit court ultimately concluded that, given the record, the court had “a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process” … . This Court adopts the reasoning in the circuit court’s Federal Restraining Order Decision.

The Federal Restraining Order Decision properly found that the order was necessary under the circumstances, holding that “Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process” … . First, the circuit court concluded that petitioner’s directed statements at potential witnesses concerning their participation in the criminal proceeding posed a significant and imminent threat to their willingness to participate fully and candidly, and that courts have a duty to shield witnesses from influences that could affect their testimony and undermine the integrity of the trial process … . Justice Merchan properly determined that petitioner’s public statements posed a significant threat to the integrity of the testimony of witnesses and potential witnesses in this case as well. Matter of Trump v Merchan, 2024 NY Slip Op 02680, First Dept 5-14-24

Practice Point: A court has the power to restrict speech by a defendant in a criminal trial which is directed at potential trial witnesses and which could threaten the witnesses’ willingness to testify.

 

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A DEPOSITION ERRATA SHEET SUBMITTED PAST THE 60-DAY DEADLINE SHOULD HAVE BEEN STRUCK (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the deposition errata sheet should have been struck because it was submitted after the 60-day period expired:

Supreme Court erred in denying their joint motion to the extent that it seeks to strike plaintiff’s errata sheet inasmuch as the errata sheet was untimely (see CPLR 3116 [a]). We therefore modify the order accordingly. CPLR 3116 (a) provides, in relevant part, that “[n]o changes to the transcript may be made by the witness more than sixty days after submission to the witness for examination.” It is undisputed that plaintiff did not submit the errata sheet within 60 days of her deposition, and submitted it over a month after the 60-day period expired, in opposition to defendants’ motions for summary judgment. Plaintiff’s reasons for the lateness under the circumstances did not constitute a good cause for the delay (see CPLR 2004 …). We note that we did not consider the errata sheet when reviewing defendants’ contentions regarding their motions for summary judgment. Pagan v GPK, LLC, 2024 NY Slip Op 02631, Fourth Dept 5-10-24

Practice Point: A motion to strike a deposition errata sheet submitted past the 60-day deadline should be granted.

 

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“GOOD CAUSE” FOR FILING A LATE SUMMARY JUDGMENT MOTION MUST BE DEMONSTRATED IN THE INITIAL MOTION PAPERS, NOT IN THE REPLY PAPERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s late summary judgment motion should not have been granted because the initial papers  did not demonstrate “good cause” for the late filing. The “good cause” allegations in defendant’s reply papers should not have been considered:

Defendant’s motion was … untimely … and, thus, defendant was required to demonstrate “good cause” for the untimeliness of the motion in its initial motion papers (CPLR 3212 [a] …). Indeed, “[i]t is well settled that it is improper for a court to consider the ‘good cause’ proffered by a movant if it is presented for the first time in reply papers” … . Inasmuch as it is undisputed here that defendant did not proffer any good cause for the delay in its initial motion papers, the court erred in considering the motion and should have denied it as untimely … . Worden v City of Utica, 2024 NY Slip Op 02628, Fourth Dept 5-10-24

Practice Point: If you make a late summary judgment motion, you must demonstrate “good cause” for being late in the initial motion papers. A “good cause” demonstration in the reply papers should not be considered by the judge.

 

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ALTHOUGH PLAINTIFF WAS AWARDED SUMMARY JUDGMENT IN THIS QUANTUM MERUIT CASE. DEFENDANT DID NOT WAIVE A JURY TRIAL AND WAS THEREFORE ENTITLED TO A JURY TRIAL ON DAMAGES; BENCH-TRIAL VERDICT REVERSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant never waived a jury trial in this quantum-meruit action. Therefore, although plaintiff was granted summary judgment, defendant was entitled to a jury trial on damages:

… [T]he order awarding damages must be reversed, and the judgment vacated … . Upon granting plaintiff summary judgment for liability on its quantum meruit claim, Supreme Court conducted a hearing on attorneys’ fees. However, claims seeking recovery under the “quasi-contractual theory of quantum meruit” for “only money damages” are considered “actions at law” entitling parties to a trial by jury … . Defendant did not waive a jury trial, but instead filed his jury demand “within fifteen days after service of the note of issue,” and more than a year before the purported attorney fee hearing was held (CPLR 4102[a]). Defendant’s “right to a jury trial [wa]s not lost, when [the] motion [and cross-motion] for summary judgment [were] decided against [him]” … , yet Supreme Court deprived him of this right by conducting a bench trial on damages … . Hilton Wiener LLC v Zenk, 2024 NY Slip Op 02595, First Dept 5-9-24

Practice Point: Quantum meruit is an action at law entitling parties to a jury trial.

Practice Point: Here defendant never waived a jury trial and, although summary judgment was awarded to plaintiff, defendant was entitled to a jury trial on damages.

 

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SUPREME COURT DID NOT CITE ANY “EXTRAORDINARY CIRCUMSTANCES” TO JUSTIFY ITS SUA-SPONTE DISMISSAL OF THE COMPLAINT IN THIS DIVORCE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this divorce action, determined there was no demonstration of “extraordinary circumstances” to justify Supreme Court’s sua sponte dismissal of the complaint:

“A court’s power to dismiss a [complaint], sua sponte, is to be used sparingly, and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court did not identify any extraordinary circumstances warranting sua sponte dismissal of the complaint … . The plaintiff moved, inter alia, to consolidate custody and family offense proceedings that were pending in the Family Court, Queens County, and the Family Court, Kings County, with the instant action. There was no motion to dismiss the complaint in its entirety or to change venue before the court … . Ivashchenko v Borukhov, 2024 NY Slip Op 02526, Second Dept 5-8-24

Practice Point: This decision illustrates the appellate-courts’ discomfort with sua sponte dismissals of complaints (dismissal in the absence of a motion requesting it).

 

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PLAINTIFF WAS INJURED USING DEFENDANT’S BOW; DEFENDANT MOVED FOR PERMISSION TO PERFORM TESTS ON THE BOW WHICH INVOLVED REMOVING AND THEN REPLACING THE DAMAGED COMPONENT OF THE BOW; THE JUSTIFICATION FOR SUCH TESTING WAS NOT DEMONSTRATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant bow manufacturer (PSE) was not entitled to testing of the bow beyond the visual inspection already done. Plaintiff was struck in the eye when using the bow. Defendant moved for permission to replace the damaged component of the bow, test the bow, and then replace the damaged component. Supreme Court had granted the motion:

A party “seeking to conduct destructive testing should provide a reasonably specific justification for such testing including, inter alia, the basis for its belief that nondestructive testing is inadequate and that destructive testing is necessary; further, there should be an enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the item being tested” … . Even assuming, arguendo, that the additional testing proposed by PSE is non-destructive, we conclude that PSE failed to establish in the first instance that the additional testing is “material and necessary” to its defense of the action (CPLR 3101 [a] …). PSE’s expert made only a conclusory statement that re-stringing the bow with an undamaged component “should better represent the condition it was in prior to the” accident … . Therefore, even in the absence of an abuse of the court’s discretion, we substitute our own discretion for that of the motion court and deny the motion … . Roche v Precision Shooting Equip., Inc., 2024 NY Slip Op 02419, Fourth Dept 5-3-24

Practice Point: There are standards which must be met in a products liability case before a court will allow testing, either nondestructive of destructive testing, of the product. Those standards were not met by the motion papers in this case.

 

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AN ACTION AGAINST A CORPORATION AND AN ACTION AGAINST INDIVIDUAL PRINCIPALS OF THE CORPORATION DO NOT HAVE AN “IDENTITY OF PARTIES” WHICH WOULD ALLOW DISMISSAL OF ONE OF THE COMPLAINTS; TEXT MESSAGES DO NOT SUPPORT DISMISSAL OF A COMPLAINT BASED ON “DOCUMENTARY EVIDENCE;” THE COMPLAINT STATED A CAUSE OF ACTION FOR CONVERSION; THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR FRAUD (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined certain causes of action should not have been dismissed. Dismissal of two causes action on the ground there existed identical causes of action in another lawsuit was error because the parties in the two lawsuits were not the same. It was error to dismiss a cause of action based on documentary evidence because text messages do not fit the definition of “documentary evidence.” It was also error to dismiss the action for conversion for failure to state a cause of action:

It is well settled that ” ‘[i]ndividual principals of a corporation are legally distinguishable from the corporation itself’ and a court may not ‘find an identity of parties by, in effect, piercing the corporate veil without a request that this be done and, even more importantly, any demonstration . . . that such a result is warranted’ ” … . * * *

… [T]he court erred in using text message excerpts to justify dismissal of the fourth cause of action or, indeed, any cause of action. Documents such as text messages “do not meet the requirements for documentary evidence” to support a CPLR 3211 (a) (4) motion … . To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable” … . Here, the text messages do not even identify the person who is communicating with plaintiff. The names and numbers are redacted. Moreover, the text messages do not “conclusively establish[ ] a defense as a matter of law” with respect to the fourth cause of action … . * * *

The second cause of action alleges that defendants converted plaintiff’s personal property, including dental equipment, to their own use. “Two key elements of conversion are (1) plaintiff’s possessory right or interest in the property . . . and (2) [a] defendant’s dominion over the property or interference with it, in derogation of plaintiff’s rights” … . … [W]e conclude that the pleading includes sufficient allegations to support a cause of action for conversion. Plaintiff alleged that each defendant exerted dominion and control over property to which she had a possessory right or interest … . Nosegbe v Charles, 2024 NY Slip Op 02406, Fourth Dept 5-3-24

Practice Point: An action against a corporation and an action against individual principals of that corporation do not have “an identity of parties” which would subject one of the actions to dismissal.

Practice Point: Text messages are not “documentary evidence” which can be the basis for dismissal of a complaint.

 

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IN THIS PARTITION ACTION, THERE WAS NO PENDING MOTION FOR SUMMARY JUDGMENT AND THERE WAS NO INDICATION THE PARTIES HAD LAID THEIR PROOF BARE SUCH THAT THE COURT COULD CONSIDER GRANTING SUMMARY JUDGMENT; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the judge should not have granted summary judgment in the absence of a motion and a hearing. The underlying issue is whether the subject real property should be partitioned or sold at auction:

… [D]efendant and decedent made an oral motion for … a hearing on whether the property could be partitioned. Rather than decide that motion, the court directed the parties to exchange expert reports and set the matter down for a conference, at which time a hearing would be scheduled if the parties could not come to an agreement regarding partition. However, when the parties appeared for the scheduled conference, the court did not set a date for the hearing, but, instead, held the conference, and subsequently, in effect, granted summary judgment to plaintiffs. Because “there was no motion for summary judgment pending before the court at that time, . . . it was error for the court to grant such relief” … . Although a court “has the power to award summary judgment to a nonmoving party, predicated upon a motion for the relief by another party, it may not sua sponte award summary judgment if no party has moved for summary judgment . . . , unless it appears from a reading of the parties’ papers that they were deliberately charting a course for summary judgment by laying bare their proof” … . Here, contrary to plaintiffs’ contention, it does not appear that the parties were deliberately charting a course for summary judgment. Indeed, the only motion pending before the court was the oral motion of defendant and decedent for … a hearing. Therefore, we reverse … and remit the matter for a hearing on whether the property may be partitioned without undue prejudice and for an accounting. The accounting shall be held “before interlocutory judgment is rendered” (RPAPL 911 …). Smith v Smith, 2024 NY Slip Op 02478, Fourth Dept 5-3-24

Practice Point: Generally a judge cannot grant summary judgment absent a motion.

Practice Point: If the parties lay bare all their proof indicating they have charted a course for summary judgment (not the case here), the court may award summary judgment absent a motion.

 

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