You are here: / Civil Procedure
,

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS PEDESTRIAN-VEHICLE ACCIDENT CASE SHOULD HAVE BEEN GRANTED: ALTHOUGH A PLAINTIFF’S COMPARATIVE NEGLIGENCE IS NOT A BAR TO SUMMARY JUDGMENT, THE ISSUE CAN BE DECIDED AT THE SUMMARY JUDGMENT STAGE WHERE PLAINTIFF MOVES FOR SUMMARY JUDGMENT DISMISSING DEFENDANT’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE; PLAINTIFF’S MOTION WAS NOT PREMATURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) plaintiff pedestrian was entitled to summary judgment in this pedestrian-vehicle accident case; and (2)  plaintiff’s motion for summary judgment was not premature, The court noted that, although plaintiff’s comparative negligence is not a bar to summary judgment, the issue can still be considered at the summary judgment stage when plaintiff moves for summary judgment dismissing defendant’s comparative-negligence affirmative defense:

The plaintiff submitted evidence demonstrating that she was approximately halfway across the street in a crosswalk with the pedestrian signal in her favor when the defendant, who was making a right turn, failed to yield the right-of-way and struck her, and that the defendant did not see the plaintiff in the crosswalk while making his turn … . The plaintiff also established, prima facie, that she was not at fault in the happening of the accident by demonstrating that, exercising due care, she had confirmed that she had the pedestrian signal in her favor and checked in both directions for approaching vehicles before entering the crosswalk … . In opposition, the defendant failed to raise a triable issue of fact as to his negligence or whether the plaintiff was comparatively at fault in the happening of the accident … .

… [P]laintiff’s motion was not premature, as the defendant failed to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff … .The “mere hope or speculation” that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the plaintiff’s motion … . Xiuying Cui v Hussain, 2022 NY Slip Op 04759, Second Dept 7-27-22

Practice Point: Although summary judgment in a traffic accident case can be awarded without consideration of plaintiff’s comparative negligence, the issue can be considered at the summary judgment stage when the plaintiff moves for summary judgment dismissing defendant’s comparative-negligence affirmative defense.

Practice Point: Here the court found that plaintiff’s summary judgment motion was not premature because the defendant did not demonstrate further discovery would lead to relevant evidence.

 

, , ,

PASSING REFERENCES TO DEFENDANTS’ INSURANCE COVERAGE IN THE TRAFFIC ACCIDENT CASE DID NOT WARRANT SETTING ASIDE PLAINTIFF’S VERDICT (FIRST DEPT).

The Frist Department, reversing Supreme Court, determined the passing references to defendants’ insurance coverage in this traffic accident case did not warrant setting aside plaintiff’s verdict:

Plaintiff sustained injuries … , when a livery cab in which he was a passenger collided with an SUV driven by defendant Williams. During direct examination by plaintiff’s counsel and cross-examination by Williams’s counsel, no objection was raised when Williams testified that she spoke to her “insurance company” immediately after the accident. On cross-examination, when Williams stated that she “might have asked [codefendant Agyemang] for his insurance information,” Agyemang’s counsel moved to strike. The court did not respond, and counsel made no further objection. On redirect examination, when plaintiff’s counsel asked Williams what she had done with videos of the accident, Williams replied, “I thought I sent everything to Geico.”  …

Evidence that a defendant carries liability insurance is generally inadmissible due to its potential for prejudice, as a jury’s awareness of insurance coverage might make it easier for it to render an adverse verdict against the defendant … . A passing reference to insurance, however, does not necessarily warrant reversal … . Two of the insurance references at issue were elicited by defense counsel, from his own client, and counsel lodged no objection to the reference elicited by plaintiff’s counsel. The record indicates no intention on plaintiff’s part to prompt such information … .Gbadehan v Williams, 2022 NY Slip Op 04703, First Dept 7-26-22

Practice Point: Passing references to defendants’ insurance coverage in this traffic accident case did not warrant setting aside plaintiffs’ verdict.

 

, ,

RENOVATION WORK ON DEFENDANTS’ TOWNHOUSE RENDERED PLAINTIFFS’ TOWNHOUSE, WHICH WAS NEXT DOOR, UNINHABITABLE; A LICENSE AGREEMENT WHICH GRANTED DEFENDANTS ACCESS TO PLAINTIFFS’ TOWNHOUSE INCLUDED A LIQUIDATED DAMAGES PROVISION WHICH WAS VALID AND ENFORCEABLE; PLAINTIFFS’ ACTION SOUGHT SOME EQUITABLE RELIEF BUT PRIMARILY SOUGHT MONEY DAMAGES; THEREFORE PLANTIFFS’ DEMAND FOR A JURY TRIAL SHOULD NOT HAVE BEEN STRUCK (FIRST DEPT).

The First Department determined, among many other issues not summarized here, the liquidated damages provision in the license agreement was enforceable and plaintiffs’ demand for a jury trial should not have been struck. Defendants purchased an historic townhouse next to plaintiffs’ townhouse. In the course of the defendants’ major renovations, plaintiffs’ townhouse was damaged. High levels of lead dust infiltrated plaintiffs’ townhouse forcing plaintiffs to move out. They never returned. The plaintiffs and defendants entered a license agreement giving defendants access to plaintiffs’ townhouse for 18 months. The liquidated damages provision entitled plaintiffs to $1000 a day for every day a temporary certificate of occupancy (TCO) was not obtained after the expiration of the license. The TCO was not obtained for 318 days entitling plaintiffs to $318,000. Although some equitable relief was requested, the suit primarily sought money damages. Therefore plaintiffs’ demand for a jury trial should not have been struck:

“Liquidated damages constitute the compensation which, the parties have agreed, should be paid in order to satisfy any loss or injury flowing from a breach of their contract” … . These provisions “have value in those situations where it would be difficult, if not actually impossible, to calculate the amount of actual damage” … . Liquidated damages will be sustained if, at the time of the contract, “the amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation” … . * * *

The court erred in granting [defendants’] motion to strike plaintiffs’ jury demand. The equitable relief sought by plaintiffs was incidental to their demand for money damages … ; to the extent plaintiffs seek to compel [defendants] to perform certain remediation work, monetary damages will afford full and complete relief … . Further, the claim for “abatement of and damages for a nuisance” is triable by a jury (CPLR 4101[2]). Seymour v Hovnanian, 2022 NY Slip Op 04705, First Dept 7-26-22

Practice Point: This decision includes a good discussion of how the validity of a liquidated-damages provision should be analyzed. The court noted that, although plaintiffs’ action sought some equitable relief, it primarily sought money damages. Therefore plaintiffs’ demand for a jury trial should not have been struck.

 

, , ,

ACTIONS PURSUANT TO NEW YORK CITY’S “FREELANCE ISN’T FREE ACT” (FIFA) WHICH ALLEGED DEFENDANTS FAILED TO PAY PLAINTIFFS-FREELANCERS SURVIVED MOTIONS TO DISMISS (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Moulton, in matters of first impression, interpreted the Freelance Isn’t Free Act (FIFA) in the context of motions to dismiss. The opinion is detailed and fact-specific and cannot be fairly summarized here. The plaintiffs alleged they were hired by defendants as freelancers and defendants’ failure pay was the basis of the lawsuits pursuant to FIFA. Most of the actions survived the motions to dismiss:

Enacted November 16, 2016 and effective May 15, 2017, FIFA is the first act of its kind in this country to provide legal protections for freelance workers against nonpayment for work performed … . FIFA defines a “freelance worker” as “any natural person or any organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for compensation” … . A central issue in this case is whether plaintiffs fit within this definition. Chen v Romona Keveza Collection LLC, 2022 NY Slip Op 04702, First Dept 7-26-22

Practice Point: New York City enacted the “Freelance Isn’t Free Act” (FIFA) in 2017–the first law in the nation to specifically address the failure to pay freelancers.

 

,

FATHER, WHO LIVES IN CALIFORNIA, SOUGHT MODIFICATION OF THE CALIFORNIA CUSTODY ORDER; MOTHER, WHO LIVES IN NEW YORK, SOUGHT MODIFICATION OF THE CALIFORNIA ORDER IN NEW YORK; FAMILY COURT CORRECTLY COMMUNICATED WITH THE CALIFORNIA COURT BUT DID NOT ALLOW THE PARTIES TO PRESENT FACTS AND LEGAL ARGUMENTS BEFORE DISMISSING THE NEW YORK PETITION; FAMILY COURT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court did everything right in dealing with the modification of a California custody order, including communication with the California court, but did not allow the parties to present facts and legal arguments before ruling New York did not have jurisdiction. Father was in California and mother was in New York. Father sought modification of the custody order in California and mother sought modification of the custody order in New York:

“If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A], the court of this state shall stay its proceeding and communicate with the court of the other state” (Domestic Relations Law § 76-e[2]; see id. § 77-f …). “If the court of the state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A] does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding” … .

When a court, acting pursuant to these provisions, communicates with a court of another state on substantive matters, it must make a record of the communication, promptly inform the parties of the communication, and grant the parties access to the record … . The court may, in its discretion, allow the parties to participate in the communication, but “[i]f the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made” … .

… [A]fter providing that information to the parties, who had not participated in the communication, the court immediately announced its decision on the issue of jurisdiction, without affording the parties an opportunity to present facts and legal arguments. This did not comport with the requirements of Domestic Relations Law § 75-i(2), and, under the circumstances of this case, requires reversal  … . Matter of Touchet v Horstman, 2022 NY Slip Op 04633, Second Dept 7-20-22

Practice Point: When a New York resident seeks modification of an out-of-state custody order, Family Court must communicate with the out-of-state court about whether the New York petition should be dismissed. Where the parties did not participate in the communication, before ruling, Family Court must allow the parties to present facts and legal arguments. Here the court’s failure to allow the parties to present facts and legal arguments required reversal.

 

,

IN A HYBRID ACTION SEEKING AN ANNULMENT PURSUANT TO ARTICLE 78 AND A DECLARATORY JUDGMENT (AND DAMAGES), THE BURDENS TO DEMONSTRATE STANDING ARE DIFFERENT; IN AN ARTICLE 78 THE PETITIONER MUST AFFIRMATIVELY DEMONSTRATE STANDING; AND IN A DECLARTORY-JUDGMENT/DAMAGES ACTION, THE RESPONDENT (DEFENDANT) MUST DEMONSTRATE PETITIONER DOES NOT HAVE STANDING AS A MATTER OF LAW TO WARRANT SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, explained the different burdens of proof in an Article 78 proceeding and an action seeking declaratory relief and damages. In an Article 78 proceeding, the petitioner has to show standing as part of its prima facie case. In a declaratory judgment/damages action, the respondent (defendant) has to demonstrate the petitioner does not have standing as a matter of law to warrant summary judgment:

The Supreme Court erred in granting the respondents’ motion to dismiss the proceeding/action based on lack of standing. “‘In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those to recover damages and for declaratory relief, on the other hand'” … . Generally, in an action to recover damages, “[o]n a defendant’s motion to dismiss the complaint based upon the plaintiff’s alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing. To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff’s submissions raise a question of fact as to its standing” … . Within the context of a special proceeding pursuant to CPLR article 78, “[t]he petitioner ‘has the burden of establishing both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated'” … . Matter of Crown Castle NG E., LLC v City of Rye, 2022 NY Slip Op 04626, Second Dept 7-20-22

Practice Point: The burdens on the issue of standing are different in an Article 78 proceeding and a declaratory judgment/damages action. Here both were brought in a hybrid proceeding. The petitioner must demonstrate standing in the Article 78 proceeding. The respondent (defendant) must demonstrate petitioner does not have standing as a matter of law to warrant summary judgment in the declaratory judgment/damages action.

 

, ,

A FAMILY OFFENSE PROCEEDING MAY BE BROUGHT IN THE COUNTY WHERE THE FAMILY MEMBER RESIDES, AS WELL AS IN THE COUNTY WHERE THE OFFENSE OCCURRED (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the family offense proceeding should not have been dismissed based on the allegation venue was improper. A family offense proceeding may be brought based upon the residence of the family member, as well as were the offense took place:

A family offense proceeding pursuant to Family Court Act article 8 “may be originated in the county in which the act or acts referred to in the petition allegedly occurred or in which the family or household resides or in which any party resides” … . Here, since the mother resides in Rockland County, the mother commenced this proceeding in a proper venue. Matter of VanDunk v Bonilla, 2022 NY Slip Op 04554, Second Dept 7-13-22

Practice Point: A family offense proceeding may be brought in the county where the family member resides, as well as the county where the offense occurred.

 

, ,

THE THREE-DAY FACT-FINDING HEARING RELATED TO THE NEGLECT PETITION RE: SERENA, NOT THE NEWLY-FILED DERIVATIVE NEGLECT PETITION RE: VINCENT; FAMILY COURT IMPROPERLY CONSOLIDATED THE TWO PETITIONS FOR THE DISPOSITIONAL HEARING DEPRIVING MOTHER OF DUE PROCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined the court never held a hearing on the newly filed derivative neglect petition (re: Vincent). The three-day fact-finding hearing related only to the neglect petition (re: Serena). At the subsequent dispositional hearing, the court improperly consolidated the two petitions:

The right to due process encompasses a “meaningful opportunity to be heard” at a fact-finding hearing on a neglect petition … , and to “present evidence relevant to the proceedings” … . Accordingly, the proceeding with respect to Vincent must be remitted to the Family Court … for a fact-finding hearing, in order to afford the parties an opportunity to introduce evidence relevant to the petition to adjudicate Vincent a derivatively neglected child, including, among other things, whether at the time the neglect petition was filed with respect to Vincent the mother had resolved the issues that were the basis of the finding of neglect as to Serena … . Matter of Serena G. (Monica M.), 2022 NY Slip Op 04547, Second Dept 7-13-22

Practice Point: Here the court held a hearing which was confined to the neglect petition re: Serena and did not address the newly-filed derivative neglect petition re: Vincent. By combining the two petitions for the dispositional hearing mother was deprived of an opportunity to be heard (due process) on the derivative neglect petition.

 

, , ,

PLAINTIFF SUED HER EMPLOYER IN NEGLIGENCE BASED UPON AN ALLEGED ASSAULT BY A COWORKER; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE INJURY WAS IN THE COURSE OF PLAINTIFF’S EMPLOYMENT; THE WORKERS’ COMPENSATION BOARD HAS PRIMARY JURISDICTION OVER THE DETERMINATION OF THE APPLICABILITY OF THE WORKERS’ COMPENSATION LAW; RATHER THAN DISMISSING THE NEGLIGENCE CAUSES OF ACTION, SUPREME COURT SHOULD HAVE REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the causes of action against plaintiff’s employer for negligence alleging an assault by a coworker should not have been dismissed. Defendants’ alleged that Workers’ Compensation was the plaintiff’s exclusive remedy. The Workers’ Compensation Board has primary jurisdiction over determinations of the applicability of the Workers’ Compensation Law. Because there were questions of fact about whether plaintiff was injured in the course of her employment, Supreme Court should have referred the matter to the Workers’ Compensation Board:

… Supreme Court improperly granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(7) to dismiss the negligence causes of action … . Since “primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,” it is “inappropriate for the courts to express views with respect thereto pending determination by the board” … . Here, questions of fact were raised as to whether the plaintiff was injured during the course of her employment, and thus, the court should have referred the matter to the Workers’ Compensation Board … . Chin v Doherty Enters., 2022 NY Slip Op 04532, Second Dept 7-13-22

Practice Point: Here plaintiff alleged she was assaulted by a coworker and sued her employer in negligence. There were questions of fact whether plaintiff was injured during the course her employment. The Workers’ Compensation Board has primary jurisdiction over determinations of the applicability of the Workers’ Compensation Law.. Therefore the negligence causes of action should not have been dismissed and the matter should have been referred to the Board.

, , ,

PETITIONERS SOUGHT FUNDS THE DECEDENT HAD TAKEN OUT OF THE CORPORATION AS CLAIMS ON DECEDENT’S ESTATE, ALLEGING THAT THE STATUTE OF LIMITATIONS STARTED ANEW WHEN THE DECEDENT ACKNOWELDGED THE DEBT IN A DEPOSITION; THE STATUTE-OF-LIMITATIONS TOLL IN THE GENERAL OBLIGATIONS LAW ONLY APPLIES TO AN ACKNOWLEDGMENT OF THE DEBT IN WRITING SIGNED BY THE PARTY TO BE CHARGED, NOT TO THE QUASI-CONTRACT ALLEGED BY PETITIONERS (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined decedent’s acknowledgement of a debt in a deposition did not start the statute of limitations anew because there was no written contract to which General Obligations Law 17-101 could apply:

In 2011, decedent removed funds from the corporate entity, and he later acknowledged that some of those funds belonged to petitioners. Decedent died in 2018 without returning the funds owed to petitioners. * * *

The tolling provision that the Surrogate relied on is General Obligations Law § 17—101. That provision states, in pertinent part, that “[a]n acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provisions of limitations of time for commencing actions under the civil practice law and rules.” Here, petitioners did not allege that they had a contract with decedent; rather, they alleged claims sounding in quasi-contract, which is “not [a] contract[] at all” … . Thus, General Obligations Law § 17—101, which applies only where there is “competent evidence of a new or existing contract,” does not apply here … . Matter of Reich, 2022 NY Slip Op 04446, Fourth Dept 7-8-22

Practice Point: In order to start the statute of limitations anew on a debt pursuant to General Obligations Law 17-101, the debt must be acknowledged in a writing signed by the party to be charged.

 

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