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QUESTION OF FACT WHETHER SNOW PLOWING CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM OR CREATED OR EXACERBATED A DANGEROUS CONDITION IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department, in a comprehensive decision not fully summarized here, determined there was a question of fact whether the snow removal contractor (SWBG) had launched an instrument of harm or created or exacerbated a dangerous condition by piling snow near where plaintiff slipped and fell:

With respect to the third-party action, we agree with defendants that the court erred in granting SWBG’s motion insofar as it sought dismissal of the contribution cause of action. It is undisputed that SWBG entered into a contract with the Church to provide snowplowing services, which included salting or sanding the plowed areas at the discretion of SWBG. There are “three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launche[s] a force or instrument of harm’ . . . (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties . . . and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … . In their verified bill of particulars, defendants relied solely on the first situation.

With respect to the first situation, although SWBG piled the snow in the area of the incline, SWBG established that it did so only at the Church’s direction. Even assuming, arguendo, that such evidence is sufficient to establish that SWBG did not launch a force or instrument of harm, we conclude that defendants raised a triable issue of fact whether SWBG piled the snow at that location on its own initiative and thus whether SWBG launched a force or instrument of harm, i.e., created or exacerbated a dangerous condition … . Chamberlain v Church of the Holy Family 2018 NY Slip Op 02949, Fourth Dept 4-27-18

​NEGLIGENCE (SLIP AND FALL, CONTRACTOR LIABILITY, QUESTION OF FACT WHETHER SNOW PLOWING CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM OR CREATED OR EXACERBATED A DANGEROUS CONDITION IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))/CONTRACT LAW (NEGLIGENCE, SLIP AND FALL, CONTRACTOR LIABILITY, QUESTION OF FACT WHETHER SNOW PLOWING CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM OR CREATED OR EXACERBATED A DANGEROUS CONDITION IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))/SLIP AND FALL (CONTRACTOR LIABILITY, QUESTION OF FACT WHETHER SNOW PLOWING CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM OR CREATED OR EXACERBATED A DANGEROUS CONDITION IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))

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LIQUIDATED DAMAGES CLAUSE IN NON-COMPETE COVENANT ENFORCEABLE, ATTORNEY’S FEES NOT ENCOMPASSED BY THE LIQUIDATED DAMAGES (FOURTH DEPT).

The Fourth Department determined the liquidated damages provision in the non-compete covenant was enforceable and the defendant should have been granted summary judgment on its claim for attorney’s fees pursuant to the employment contract. Plaintiffs had argued the liquidated damages encompassed the defendant’s attorneys’ fees:

… [W]e conclude that the court properly determined that defendant met its initial burden of establishing that the liquidated damages clauses are enforceable because they represent a ” reasonable measure of the anticipated probable harm’ ” … , and plaintiffs failed to raise an issue of fact. We note that plaintiffs do not dispute that the potential damages flowing from a breach of the restrictive covenant were not readily ascertainable at the time the parties entered into the employment agreements … . Indeed, the fact that these types of damages are difficult to measure provides the foundation for a liquidated damages clause … .

… [T]he attorney fee clause of the employment agreement is not duplicative of the liquidated damages clause. One of the express purposes of the liquidated damages clause is “avoiding the costs, expenses, and uncertainties of litigation over the amount of actual damages that will be suffered by the Employer in the event of breach” … . Here, defendant seeks attorney’s fees and costs incurred in enforcing the restrictive covenant and the liquidated damages clause, which is distinct from any attorney’s fees and costs that would be incurred in litigation over the amount of actual damages … . Mathew v Slocum-Dickson Med. Group, PLLC, 2018 NY Slip Op 03059, Fourth Dept 4-27-18

​EMPLOYMENT LAW (NON-COMPETE COVENANT, LIQUIDATED DAMAGES CLAUSE IN NON-COMPETE COVENANT ENFORCEABLE, ATTORNEY’S FEES NOT ENCOMPASSED BY THE LIQUIDATED DAMAGES (FOURTH DEPT))/CONTRACT LAW (EMPLOYMENT LAW, NON-COMPETE COVENANT, LIQUIDATED DAMAGES CLAUSE IN NON-COMPETE COVENANT ENFORCEABLE, ATTORNEY’S FEES NOT ENCOMPASSED BY THE LIQUIDATED DAMAGES (FOURTH DEPT))/NON-COMPETE COVENANT (LIQUIDATED DAMAGES CLAUSE IN NON-COMPETE COVENANT ENFORCEABLE, ATTORNEY’S FEES NOT ENCOMPASSED BY THE LIQUIDATED DAMAGES (FOURTH DEPT))/ATTORNEY’S FEES (EMPLOYMENT LAW , NON-COMPETE COVENANT, LIQUIDATED DAMAGES CLAUSE IN NON-COMPETE COVENANT ENFORCEABLE, ATTORNEY’S FEES NOT ENCOMPASSED BY THE LIQUIDATED DAMAGES (FOURTH DEPT))/LIQUIDATED DAMAGES (NON-COMPETE COVENANT, LIQUIDATED DAMAGES CLAUSE IN NON-COMPETE COVENANT ENFORCEABLE, ATTORNEY’S FEES NOT ENCOMPASSED BY THE LIQUIDATED DAMAGES (FOURTH DEPT))

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PLAINTIFF, PURSUANT TO THE CONDOMINIUM DECLARATION AND OFFERING PLAN, WAS THE OWNER OF THE BASEMENT SPACE USED BY DEFENDANTS, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ITS TRESPASS ACTION, BECAUSE THE DECLARATION AND OFFERING PLAN, AND THE REFERENCE TO IT IN THE DEEDS, WERE UNAMBIGUOUS, PAROL AGREEMENTS TRANSFERRING OWNERSHIP OF THE AREA TO DEFENDANTS WERE NOT ENFORCEABLE (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment on its trespass action against defendant condominium owners based on defendants’ use of a basement storage area which, according to the Declaration and Offering Plan, was owned by plaintiff. Any attempt to transfer ownership of the basement area to defendants’ condominium was ineffectual because there was never a meeting and vote by unit members:

The Declaration and Offering Plan are unambiguous and clearly state that the disputed basement space was a Limited Common Element of the front unit owned by plaintiff. The deeds to both parties’ units were silent on this issue, but provided that each buyer agreed that their ownership was subject to the Declaration. Paragraph Fifth of the Declaration provided that the use of the basement space was deemed conveyed with the conveyance of the front unit, even if the interest was not expressly described in the conveyance. In order to amend the Declaration, pursuant to paragraph Tenth(b), the board was required to execute an instrument upon the affirmative vote of 80% of the unit owners held at a duly called meeting. Moreover, paragraph Tenth(b)(I) provided that an amendment which altered the right to portions of the common elements required the consent of 100% of the affected unit owners.

Here, there was never a duly held meeting of the unit owners at which 80% voted to amend the Declaration to permit transfer of the right to use the basement space from the front unit to the rear unit. Thus, plaintiff retained the right to use the basement space. Parol evidence of the parties’ contrary intent is irrelevant in the face of the unambiguous governing documents … . Plaintiff’s acknowledgment in the contract of sale that it was not purchasing the right to use the basement storage space is not controlling because the deed contained a provision that the sale was subject to the provisions of the Declaration, which stated that the storage space was for the use of the front unit. P360 Spaces LLC v Orlando, 2018 NY Slip Op 02749, First Dept 4-27-18

​CONDOMINIUMS (PLAINTIFF, PURSUANT TO THE CONDOMINIUM DECLARATION AND OFFERING PLAN, WAS THE OWNER OF THE BASEMENT SPACE USED BY DEFENDANTS, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ITS TRESPASS ACTION, BECAUSE THE DECLARATION AND OFFERING PLAN, AND THE REFERENCE TO IT IN THE DEEDS, WERE UNAMBIGUOUS, PAROL AGREEMENTS TRANSFERRING OWNERSHIP OF THE AREA TO DEFENDANTS WERE NOT ENFORCEABLE (FIRST DEPT))/CONTRACT LAW (CONDOMINIUMS, PLAINTIFF, PURSUANT TO THE CONDOMINIUM DECLARATION AND OFFERING PLAN, WAS THE OWNER OF THE BASEMENT SPACE USED BY DEFENDANTS, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ITS TRESPASS ACTION, BECAUSE THE DECLARATION AND OFFERING PLAN, AND THE REFERENCE TO IT IN THE DEEDS, WERE UNAMBIGUOUS, PAROL AGREEMENTS TRANSFERRING OWNERSHIP OF THE AREA TO DEFENDANTS WERE NOT ENFORCEABLE (FIRST DEPT))/TRESPASS (CONDOMINIUMS,  PLAINTIFF, PURSUANT TO THE CONDOMINIUM DECLARATION AND OFFERING PLAN, WAS THE OWNER OF THE BASEMENT SPACE USED BY DEFENDANTS, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ITS TRESPASS ACTION, BECAUSE THE DECLARATION AND OFFERING PLAN, AND THE REFERENCE TO IT IN THE DEEDS, WERE UNAMBIGUOUS, PAROL AGREEMENTS TRANSFERRING OWNERSHIP OF THE AREA TO DEFENDANTS WERE NOT ENFORCEABLE (FIRST DEPT))

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A GENERIC NEW YORK CHOICE OF LAW PROVISION IN A CONTRACT DOES NOT TRANSFORM ALL NEW YORK STATUTORY REQUIREMENTS INTO CONTRACTUAL OBLIGATIONS, HERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP).

The Court of Appeals, affirming the Appellate Division, determined that the clause of a contract indicating construction of the contract was governed by New York law did not incorporate a specific statutory requirement, here a requirement of the Lien Law:

Plaintiff’s complaint does not identify which, if any, provision or provisions of the [CM agreement] were purportedly breached. Unlike the Development and Lease Agreements — to which plaintiff is not a party — the CM Agreement contains no express provision requiring compliance with the Lien Law. Plaintiff nevertheless maintains that section 5 of the Lien Law should be “read into” the CM Agreement because the contract is governed by New York law. Specifically, plaintiff points to section 17.3 of the CM Agreement, which provides that “[t]he construction, validity and performance of [the CM Agreement] shall be exclusively governed by the laws of the State of New York, excluding any provisions or principles thereof which would require the application of the laws of a different jurisdiction.” However, this is a typical choice-of-law provision that we do not read as imposing a contractual obligation here. The mere fact that an agreement, and disputes arising thereunder, are governed by the law of a particular jurisdiction does not transform all statutory requirements that may otherwise be imposed under that body of law into contractual obligations, and we decline to interpret the CM Agreement as “impliedly stating something which [the parties] have neglected to specifically include” … . Skanska USA Bldg. Inc. v Atlantic Yards B2 Owner, LLC, 2018 NY Slip Op 02828, CtApp 4-26-18

​CONTRACT LAW (A GENERIC NEW YORK CHOICE OF LAW PROVISION IN A CONTRACT DOES NOT TRANSFORM ALL NEW YORK STATUTORY REQUIREMENTS INTO CONTRACTUAL OBLIGATIONS, HERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP))/CIVIL PROCEDURE (CONTRACT LAW, CHOICE OF LAW, A GENERIC NEW YORK CHOICE OF LAW PROVISION IN A CONTRACT DOES NOT TRANSFORM ALL NEW YORK STATUTORY REQUIREMENTS INTO CONTRACTUAL OBLIGATIONS, HERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP))/CONSTRUCTION CONTRACTS (A GENERIC NEW YORK CHOICE OF LAW PROVISION IN A CONTRACT DOES NOT TRANSFORM ALL NEW YORK STATUTORY REQUIREMENTS INTO CONTRACTUAL OBLIGATIONS, HERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP))/LIEN LAW (CONSTRUCTION CONTRACTS, ERE THE CONSTRUCTION MANAGEMENT CONTRACT DID NOT MENTION BOND REQUIREMENTS UNDER THE LIEN LAW AND THE CHOICE OF LAW PROVISION COULD NOT BE USED TO READ THE LIEN LAW REQUIREMENT INTO THE CONTRACT (CT APP))

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CONTRACTUAL AGREEMENT TO A ONE YEAR STATUTE OF LIMITATIONS FOR A BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN ENFORCED, PLAINTIFF HAD NO CONTROL OVER WHEN THE DEFENDANT COULD TAKE AN ACTION WHICH BREACHED THE CONTRACT, HERE THE ALLEGED BREACH BY DEFENDANT DIDN’T TAKE PLACE UNTIL AFTER THE LIMITATIONS PERIOD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, under the facts, the contractual provision creating a one year statute of limitations for a breach of contract action was not fair and should not have been enforced. It was not the duration of the limitations period that was deemed unfair, rather it was the defendant’s lack of control over the actions by the plaintiff which could be deemed to have breached the contract:

There is nothing inherently unreasonable about the one-year period of limitation, to which the parties here freely agreed … . “The problem with the limitation period in this case is not its duration, but its accrual date” … . It is neither fair nor reasonable to require that an action be commenced within one year from the date of the plaintiff’s substantial completion of its work on the project, while imposing a condition precedent to the action that was not within the plaintiff’s control and which was not met within the limitations period. “A limitation period’ that expires before suit can be brought is not really a limitation period at all, but simply a nullification of the claim” … . The limitation period in the subcontract conflicts with the conditions precedent to payment becoming due to the plaintiff, which, under the circumstances of this case, acted to nullify any claim the plaintiff might have for breach of the subcontract. Therefore, interpreting the subcontract against the defendant, which drafted the agreement … , we find that the one-year limitation period is unenforceable under the circumstances here … . D&S Restoration, Inc. v Wenger Constr. Co., Inc., 2018 NY Slip Op 02768, Second Dept 4-25-18

​CIVIL PROCEDURE (CONTRACTUAL AGREEMENT TO A ONE YEAR STATUTE OF LIMITATIONS FOR A BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN ENFORCED, PLAINTIFF HAD NO CONTROL OVER WHEN THE DEFENDANT COULD TAKE AN ACTION WHICH BREACHED THE CONTRACT, HERE THE ALLEGED BREACH BY DEFENDANT DIDN’T TAKE PLACE UNTIL AFTER THE LIMITATIONS PERIOD (SECOND DEPT))/STATUTE OF LIMITATIONS (CONTRACTUAL AGREEMENT TO A ONE YEAR STATUTE OF LIMITATIONS FOR A BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN ENFORCED, PLAINTIFF HAD NO CONTROL OVER WHEN THE DEFENDANT COULD TAKE AN ACTION WHICH BREACHED THE CONTRACT, HERE THE ALLEGED BREACH BY DEFENDANT DIDN’T TAKE PLACE UNTIL AFTER THE LIMITATIONS PERIOD (SECOND DEPT))/CONTRACT LAW (STATUTE OF LIMITATIONS, CONTRACTUAL AGREEMENT TO A ONE YEAR STATUTE OF LIMITATIONS FOR A BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN ENFORCED, PLAINTIFF HAD NO CONTROL OVER WHEN THE DEFENDANT COULD TAKE AN ACTION WHICH BREACHED THE CONTRACT, HERE THE ALLEGED BREACH BY DEFENDANT DIDN’T TAKE PLACE UNTIL AFTER THE LIMITATIONS PERIOD (SECOND DEPT))

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NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that husband did not present sufficient proof to warrant a change in the support provisions of the settlement agreement, as opposed to a child support order. No child support order was in effect at the time the husband sought to reduce the support obligation described in the settlement agreement:

“The case law distinguishes between modification of a separation agreement and that of a divorce decree. A separation agreement that is incorporated into but not merged with a divorce decree is an independent contract binding on the parties unless impeached or challenged for some cause recognized by law. Indeed, courts of this [s]tate enjoy only limited authority to disturb the terms of a separation agreement” … . The husband sought modification of the terms of the agreement with respect to his child support and maintenance obligations, by motion, on the ground that his loss of employment constituted a change in circumstances that warranted modification — a standard that applies to modification of orders and judgments … — but he made no argument that the settlement agreement was invalid. Supreme Court may, upon a proper showing establishing a change in circumstances, modify an order or judgment of divorce that incorporates a settlement agreement. However, the court had no authority under the present circumstances to grant the husband’s motion by modifying the settlement agreement. Abdelrahman v Mahdi, 2018 NY Slip Op 02698, Third Dept 4-19-18

​FAMILY LAW (NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/CHILD SUPPORT  (NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/SETTLEMENT AGREEMENT (FAMILY LAW, CHILD SUPPORT, MAINTENANCE, NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/MAINTENANCE (FAMILY LAW, NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/CONTRACT LAW (FAMILY LAW, SETTLEMENT AGREEMENT, NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))

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ANY CONDUCT ON THE PART OF THE INSURER WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S CLOSING OF ITS BUSINESS AFTER INCURRING WATER DAMAGE, THEREFORE THE INSURER WAS NOT LIABLE FOR THE LOSS OF BUSINESS CONSEQUENTIAL DAMAGES (SECOND DEPT).

The Second Department determined the insurer was entitled to summary judgment because, notwithstanding the way the insurer handled the water damage claim, the insurer’s actions were not the proximate cause of the plaintiff’s closing of its business:

Consequential damages are damages that do not directly flow from a breach of contract … . Proximate cause is an essential element of a breach of contract cause of action … . “[E]very contract contains an implied covenant of good faith and fair dealing” … . In an insurance contract context, consequential damages resulting from a breach of the implied covenant of good faith and fair dealing may be asserted, “so long as the damages were within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting” … . “Consequential damages, designed to compensate a party for reasonably foreseeable damages, must be proximately caused by the breach” … Generally, it is for the trier of fact to determine the issue of proximate cause. However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established fact … .

Here, the defendants established, prima facie, that their alleged injurious conduct in handling the plaintiff’s claim was not a proximate cause of the plaintiff’s loss of business. It was undisputed that the stop work order issued shortly after the water leak, for reasons unrelated to the defendants, prevented the plaintiff from securing the necessary work permits prior to ceasing operations permanently. Lola Roberts Beauty Salon, Inc. v Leading Ins. Group Ins. Co., Ltd., 2018 NY Slip Op 02605, Second Dept 4-18-18​

​INSURANCE LAW (ANY CONDUCT ON THE PART OF THE INSURER WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S CLOSING OF ITS BUSINESS AFTER INCURRING WATER DAMAGE, THEREFORE THE INSURER WAS NOT LIABLE FOR THE LOSS OF BUSINESS CONSEQUENTIAL DAMAGES (SECOND DEPT))/CONTRACT LAW (INSURANCE LAW, CONSEQUENTIAL DAMAGES, ANY CONDUCT ON THE PART OF THE INSURER WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S CLOSING OF ITS BUSINESS AFTER INCURRING WATER DAMAGE, THEREFORE THE INSURER WAS NOT LIABLE FOR THE LOSS OF BUSINESS CONSEQUENTIAL DAMAGES (SECOND DEPT))/CONSEQUENTIAL DAMAGES (INSURANCE LAW, LOSS OF BUSINESS, PROXIMATE CAUSE, ANY CONDUCT ON THE PART OF THE INSURER WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S CLOSING OF ITS BUSINESS AFTER INCURRING WATER DAMAGE, THEREFORE THE INSURER WAS NOT LIABLE FOR THE LOSS OF BUSINESS CONSEQUENTIAL DAMAGES (SECOND DEPT))/DAMAGES (CONSEQUENTIAL DAMAGES, INSURANCE LAW, LOSS OF BUSINESS, ANY CONDUCT ON THE PART OF THE INSURER WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S CLOSING OF ITS BUSINESS AFTER INCURRING WATER DAMAGE, THEREFORE THE INSURER WAS NOT LIABLE FOR THE LOSS OF BUSINESS CONSEQUENTIAL DAMAGES (SECOND DEPT))

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ABSENCE OF ADMISSIBLE EVIDENCE OF CONSIDERATION RENDERED ANY WRITTEN OR ORAL GUARANTEE UNENFORCEABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined a written guarantee to pay the debt of another was not enforceable because no consideration for the guarantee was included in the written guarantee. The 2nd Department further held that an oral guarantee would have been enforceable if it was induced by plaintiff’s promise to hold off on bringing suit.  But only plaintiff’s counsel made that argument unsupported by an affidavit from the plaintiff:

… “[N]othing” in the writing supported the plaintiff’s claim that [she] had agreed to “forbear() pursuing a claim” in exchange for the promised payments]). In the absence of such a binding promise by plaintiff, the guaranty is unenforceable for want of consideration. “Unless both parties to a contract are bound, so that either can sue the other for a breach, neither is bound” … . …

Case law has established that an oral promise to guarantee the debt of another may be enforced, notwithstanding General Obligations Law § 5-701(a)(2), if the plaintiff “prove[s the promise] is supported by new consideration moving to the promisor and beneficial to him and that the promisor has become in the intention of the parties a principal debtor primarily liable” … . Thus, plaintiff could enforce [the] guaranty if she could prove, through parol evidence, that he gave her the guaranty in exchange for her unwritten promise to forbear from suing him until the due date of the guaranty, which would constitute new consideration beneficial to him. Plaintiff fails, however, to offer any admissible evidence (as opposed to unsupported assertions by her counsel) that she actually made such a promise. Reddy v Mihos, 2018 NY Slip Op 02565, First Dept 4-17-18

​CONTRACT LAW (GUARANTEE, ABSENCE OF ADMISSIBLE EVIDENCE OF CONSIDERATION RENDERED ANY WRITTEN OR ORAL GUARANTEE UNENFORCEABLE (FIRST DEPT))/DEBTOR-CREDITOR (CONTRACT LAW, GUARANTEE,  ABSENCE OF ADMISSIBLE EVIDENCE OF CONSIDERATION RENDERED ANY WRITTEN OR ORAL GUARANTEE UNENFORCEABLE (FIRST DEPT))/GUARANTEE (CONTRACT LAW, ABSENCE OF ADMISSIBLE EVIDENCE OF CONSIDERATION RENDERED ANY WRITTEN OR ORAL GUARANTEE UNENFORCEABLE (FIRST DEPT))/CONSIDERATION (CONTRACT LAW, GUARANTEE,  ABSENCE OF ADMISSIBLE EVIDENCE OF CONSIDERATION RENDERED ANY WRITTEN OR ORAL GUARANTEE UNENFORCEABLE (FIRST DEPT))

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SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the trial court erred when it deviated from a stipulation entered into by the parties concerning the measure of damages for trees inadvertently cut and removed from plaintiffs’ property by defendants:

… Supreme Court erred in deviating from their stipulation in rendering the damages award. No grounds have been shown to vacate the parties’ clearly expressed agreement as to the merchantability of the various trees or the methodology to be used in formulating the award. As the parties here were “free to chart their own course [and] fashion the basis upon which [this] particular controversy [would] be resolved” … , Supreme Court was not free to substitute its own judgment for that of the parties … . We must therefore determine, in the exercise of our discretion and in accordance with the parties’ stipulation, the appropriate measure of damages to be awarded as a consequence of defendants’ illegal removal of the 442 trees from plaintiffs’ property. * * *

Considering the facts and circumstances of this case, and mindful of the overriding purpose and intent of RPAPL 861, we find that plaintiffs are entitled to statutory damages of $250 per tree for the 442 trees cut and removed… . We emphasize that our discretionary determination in this regard is narrow and circumscribed by the parties’ stipulation … , which we are bound to honor. Halstead v Fournia, 2018 NY Slip Op 02525, Third Dept 4-12-18

​REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))/CONTRACT LAW (STIPULATIONS, SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))/STIPULATIONS (SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))/TIMBER (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))/TREES (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))

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NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR, SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court determined negligence causes of action against the distributor (Durst) and (Canje) retailer of a sulfuric acid drain opener, and a negligent discharge of a contractual obligation (launching an instrument of harm) cause of action against the distributor should not have been dismissed:

Because defendant Canje, the retail outlet at which the product was purchased, never agreed to abide by the sale policy of the manufacturer, third-party defendant Hercules Chemical Company, Inc., to restrict the sale of the product to plumbing and/or building professionals, it cannot be held liable for launching a force of harm in negligent discharge of a contractual obligation (see generally Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). However, issues of fact exist whether defendant Durst, the distributor that sold the product to Canje, had a contractual duty to refrain from selling the product to Canje and whether Durst breached this duty and its acknowledged contractual undertakings to take appropriate steps to assure the proper sale and use of the product and to comply with the Seller’s Notice prohibiting sales to non-professionals and the display of the product where it was easily accessible. Durst argues that even if it breached such a duty it did not launch a force or instrument of harm. However, … [t]his case, in which there is evidence that Durst created the unsafe condition by supplying the product without proper safeguards, is … akin to Landon v Kroll Lab. Specialists, Inc. (22 NY3d 1 [2013]), in which the Court of Appeals found that the allegation that the defendant’s negligent testing procedures subjected the plaintiff to legal proceedings stated a cause of action based on the launch of a force of harm. Janiya W.-G. v Smith, 2018 NY Slip Op 02557, First Dept 4-12-18

​NEGLIGENCE (NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/CONTRACT LAW (NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION, NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/ESPINAL (NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION, LAUNCH OF IN INSTRUMENT OF HARM, NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/INSTRUMENT OF HARM, LAUNCH OF (NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION, ESPINAL, NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))

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