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Contract Between Employer and Contractor Did Not Create a Duty Owed to Employee/Instrument of Harm Doctrine Not Applicable

Plaintiff was standing on a barrel performing work for his employer.  In reaching for a tool he grabbed onto some bricks on a column.  The bricks came loose and plaintiff lost his balance and fell.  Plaintiff sued the parties responsible for installing the bricks six years before (pursuant to a contract with the employer).  In affirming summary judgment to the defendants, the Fourth Department wrote:

Here, defendants established as a matter of law that they did not owe any duty to plaintiff, and plaintiff failed to raise a triable issue of fact. Although defendants had contractual obligations with respect to the construction of the project for plaintiff’s employer, as a general rule “a contractual obligation, standing alone, will . . . not give rise to tort liability in favor of a third party,” i.e., a person who is not a party to the contract …. There is an exception to that general rule, however, “where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, ‘launche[s] a force or instrument of harm’ ” …, thereby “creat[ing] an unreasonable risk of harm to others, or increas[ing] that risk” …. Contrary to plaintiff’s contention, the instrument of harm doctrine does not apply to the facts of this case, and thus there was no duty of care running from defendants to plaintiff based on that doctrine ….  Spaulding v Loomis Masonry, Inc. et al, CA 12-01395, 32, 4th Dept, 4-26-13

 

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Product Warranty Does Not Extend Statute of Limitations

In finding that a 10-year warranty on windows and doors did not extend the relevant statute of limitations, the First Department wrote:

Although initially it may seem somewhat unfair for defendant to have given plaintiffs a 10-year warranty and then argue that plaintiffs cannot sue for breach of warranty at any time during that 10-year period, the case law is clear on when this cause of action accrues …. Katopodis v Marvin Windows & Doors, 2013 NY Slip Op 02817, 1st Dept, 4-25-13

 

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Forum Selection Clause Upheld; Not Shown to Be Unreasonable

In upholding the validity of a contractual forum selection clause, 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” … . Lifetime Brands, Inc v Garden Ridge, LP, 2013 NY Slip Op 02721, 2nd Dept, 4-24-13

 

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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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Restitution Can Not Be Ordered When Not Addressed in Plea Agreement

The Second Department, in the interest of justice, determined the sentencing court should not have imposed restitution because restitution was not addressed in the plea agreement.  The matter was remitted for re-sentencing without restitution. People v Thompson, 2013 NY Slip Op 02770, 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

 

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Damages for Breach Must Be Awarded Even if Amount Uncertain

The First Department determined the trial court erred when it did not award damages for breach of contract because the amount of damages was uncertain:

Where, as here, “it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A person violating his contract should not be permitted entirely to escape liability because the amount of damages which he has caused is uncertain” … .  Here, plaintiff’s expert used an investment valuation analysis because he determined that there was no market for the 76th Street property, a conclusion with which the lower court agreed. Despite this agreement, the court, mistakenly believing that this Court’s previous order required a market value analysis even if no such market existed, found that plaintiff failed to meet his burden of proof. This was error, especially where, as here, the court had the means to make a market value determination if it so desired.  Cole v Makclowe, 2013 NY Slip Op 02690, 604784/99, 1565, 1st Dept, 4-23-13

 

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Proof Requirements for “Breach of Employment Contract” and “Labor Law Article 6” Actions

In reversing the verdict for the defendant in a “breach of an employment contract” and “Labor Law article 6” action, the Second Department explained the proof requirements for both as follows:

The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach of the contract, and resulting damages …. “The elements of an effective employment contract consist of the identity of the parties, the terms of employment, which include the commencement date, the duration of the contract and the salary'” …. Moreover, where the duration of a contract exceeds one year, in order to satisfy the statute of frauds “a writing must identify the parties, describe the subject matter, state all the essential terms of an agreement, and be signed by the party to be charged” … .  * * *

…”[T]he purpose of Labor Law article 6 is to strengthen and clarify the rights of employees to the payment of wages'” …. To recover under that article, “a plaintiff must first demonstrate that he or she is an employee entitled to its protections” … . Although an independent contractor is not considered an employee for the purposes of Labor Law § 190 …, “[t]he critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results” … .  Kausal v Educational Prods Info Exch Inst, 2013 NY Slip Op 02545, 2011-07924, Index No 5953/04, 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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Statute of Limitations Where Continuing Duty Allegedly Breached

The Second Department explained the application of the six-year “contract” statute of limitations where the duty alleged to have been breached is a continuing one:

“[W]here a duty imposed prior to a limitations period is a continuing one, the statute of limitations is not a defense to actions based on breaches of that duty occurring within the limitations period” …. Here, the alleged breach is of the defendant’s obligation to pay annual assessments to the plaintiff. Thus, a new breach occurred for statute of limitations purposes each year the defendant failed to make an allegedly required payment to the plaintiff …. Meadowbrook Farms Homeowners Assn, Inc v JZG Resources Inc, 2013 NY Slip Op 02381, 2011-089/10, Index No 839/10, 2nd Dept 4-10-13

 

 

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