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THE MOTION TO SET ASIDE THE VERDICT APPORTIONING LIABILITY TO THE GYNECOLOGIST WHO NOTED IN HIS REPORT HE FOUND “NO ABNORMALITIES” SHOULD HAVE BEEN GRANTED; PLAINTIFF DID NOT PROVE THE NOTATION MISLED THE PRIMARY CARE PHYICIAN RESULTING IN A DELAY IN DIAGNOSING APPENDICITIS (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant Dr. Subramanyam’s motion to set aside the verdict apportioning liability to him in this medical malpractice case should have been granted. Plaintiff experienced abdominal and was referred by her primary physician (defendant Dr. Selitsky) to Dr. Subramanyam for a gynecological exam. Dr. Subramanyam’ noted in his report that “no abnormalities” were found. Plaintiff argued the “no abnormalities” finding misled Dr. Selitsky causing a delay in diagnosis of plaintiff’s appendicitis:

We find that the record was insufficient to support the jury’s findings that Dr. Subramanyam’s notation of “no abnormalities” misled Dr. Selitsky, who was plaintiff’s primary care physician, and thereby delayed plaintiff’s treatment for appendicitis.

Defendant Dr. Selitsky, testified that she did not rely upon Dr. Subramanyam’s sonogram report in ruling in or out the possibility of appendicitis, a diagnosis she already had considered as part of her differential diagnosis. She further testified that her referral of plaintiff to Dr. Subramanyam was solely to determine whether the source of plaintiff’s pain was gynecological in origin. Furthermore, Dr. Selitsky testified that while she assumed that she had received a copy of the report, she could not recall reading it, and, if she had read it, when she did so. Dr. Subramanyam also testified that it was not within his role to provide recommendations in his report or advise physicians what they should do next. Ameziani v Subramanyam, 2023 NY Slip Op 01759, First Dept 4-4-23

Practice Point: Defendant primary care doctor referred plaintiff to defendant gynecologist to determine the cause of abdominal pain. The gynecologist noted in his report he found “no abnormalities.” Plaintiff alleged that notation misled the primary care physician causing delay in the diagnosis of appendicitis. The appellate division set aside the verdict against the gynecologist.

 

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RE: DETERMINING THE CORRECT JURISDICTION FOR STATUTE-OF-LIMITATIONS PURPOSES, THE ACCRUAL OF A BREACH OF CONTRACT ACTION ALLEGING PURELY ECONOMIC INJURY IS USUALLY IN THE “PLACE OF INJURY,” WHICH IS USUALLY WHERE THE PLAINTIFF RESIDES (FIRST DEPT).

The First Department, in a decision too complex to fairly summarize here, noted that for breach of contract actions alleging purely economic injury the claims accrue in the “place of injury,” usually plaintiff’s residence:

… Supreme Court should not have found that the claims accrued in New York and were timely under New York’s six-year statute of limitations. In contract cases involving a purely economic injury, accrual is determined by the “place of injury,” which usually is determined by applying the “plaintiff-residence” rule; this rule asks where the plaintiff resides and where it feels the economic impact of the loss … . MLRN LLC v U.S. Bank, N.A., 2023 NY Slip Op 01748, First Dept 3-30-23

Practice Point: A breach of contract action alleging purely economic injury usually accrues in the “place of injury” which is usually where plaintiff resides.

 

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HERE THERE WAS A QUESTION OF FACT ABOUT WHEN THE PLAINTIFFS BECAME AWARE OF THE ALLEGED FRAUD; THEREFORE THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact concerning when the plaintiffs became aware of the alleged fraud. Therefore the complaint should not have been dismissed as time-barred:

Fraud claims must be commenced within “the greater of six years from the date the cause of action accrued or two years from the time the plaintiff . . . discovered the fraud, or could with reasonable diligence have discovered it” (CPLR 213[8]). * * *

Assuming, arguendo, that defendants met their prima facie burden on the motion, an issue of fact exists as to whether plaintiffs were on inquiry notice of the fraud more than two years before they commenced the action … . Murray v Stone, 2023 NY Slip Op 01749, First Dept 3-30-23

Practice Point:  A fraud action must be brought within six years of accrual or two years of discovery of the fraud.

 

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WHEN A JUDGE MAKES A WRONG RULING WHICH CANNOT BE APPEALED BECAUSE IT WAS NOT PROMPTED BY A MOTION, A MOTION TO SET ASIDE THE ORDER PURSUANT TO CPLR 5015 IS AN APPROPRIATE REMEDY; THE DENIAL OF THE MOTION TO SET ASIDE CAN BE APPEALED, AS WAS SUCCESSFULLY DONE HERE (FIRST DEPT).

​The First Department, reversing Supreme Court, determined Supreme Court should not have dismissed the complaint pursuant to CPLR 3216 because no motion to dismiss had been made and plaintiff was not given any warning or an opportunity to respond. The court noted that when a judge makes a wrong ruling, here the dismissal of the complaint, the proper procedure is a motion to set aside the order pursuant to CPLR 5015. The motion to set aside should have been granted:

A trial court has inherent power, as well as statutory power under CPLR 5015, to set aside an order on appropriate grounds … . “Vacating the dismissal order is consistent with the public policy of this State to dispose of cases on their merits and upholds the principle that a trial court’s power to dismiss an action sua sponte should be used sparingly and only in extraordinary circumstances” … .

There were no extraordinary circumstances warranting the complaint’s dismissal. Wohnberger v Lucani, 2023 NY Slip Op 01758, First Dept 3-30-23

Practice Point: Here no motion to dismiss the complaint pursuant to CPLR 3216 was made, but the judge dismissed the complaint sua sponte. A motion to set aside the order dismissing the complaint pursuant CPLR 5015 was made and denied. The denial was then successfully appealed here. This is the appropriate remedy when no appeal lies from the original order because the order was not issued pursuant to a motion.

 

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WHERE A STATUTE, HERE CIVIL RIGHTS LAW 40-B, PRESCRIBES A MONETARY REMEDY, AN INJUNCTION IS NOT AVAILABLE (FIRST DEPT).

​The First Department, reversing Supreme Court, determined plaintiffs’ request for a preliminary injunction in this Civil Rights Law 40-b action should not have been granted because the remedy is statutory. Civil Rights Law 40-b prohibits an entertainment venue from denying entry to a person who has a ticket:

… [I]t was improper for the motion court to issue a preliminary injunction. As Civil Rights Law § 41 prescribes a monetary remedy for violations of Civil Rights Law § 40-b, plaintiffs are limited to that remedy (see Woollcott v Shubert , 169 App Div 194, 197 [1st Dept 1915] [“The general rule is that where a statute creates a right and prescribes a remedy for its violation that remedy is exclusive and neither an action for damages nor for an injunction can be maintained”] …). Even if injunctive relief were available, the existence of a statutory damages remedy would undermine plaintiffs’ claims of irreparable harm … . Hutcher v Madison Sq. Garden Entertainment Corp., 2023 NY Slip Op 01646, First Dept 3-28-23

Practice Point: Here the statute, Civil Rights Law 40-b, prescribed a monetary remedy for a violation. Therefore Supreme Court should not have granted plaintiffs’ request for a preliminary injunction.

 

THE RAPE FIRST AND CRIMINAL SEXUAL ACT FIRST CONVICTIONS WERE VACATED AS INCLUSORY CONCURRENT COUNTS OF TWO PREDATORY SEXUAL ASSAULT COUNTS (FIRST DEPT).

The First Department vacated the convictions of rape first and criminal sexual act first as inclusory concurrent counts of two of the predatory sexual assault counts. People v Heyward, 2023 NY Slip Op 01651, First Dept 3-28-23

Practice Point: Here the rape first and criminal sexual act first convictions were vacated as inclusory concurrent counts of two predatory sexual assault counts.

 

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DEFENDANT’S OFFER TO PROVIDE FALSE TESTIMONY IN A SEPARATE ACTION IS NOT PROTECTED BY THE LITIGATION PRIVILEGE IN THIS RELATED ACTION ALLEGING DEFENDANT’S BREACHED A CONFIDENTIALITY AND NONDISPARAGEMENT AGREEMENT (FIRST DEPT). ​

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Rodriguez, determined defendant’s motion to dismiss the complaint for failure to state a cause of action should not have been granted. The complaint alleged breach of a confidentiality and nondisparagement agreement (TRB Agreement) which stemmed from a trademark infringement and unfair competition action brought by nonparty Reebok. “… [D]efendant and his attorneys allegedly caused anonymous phone calls to be made to Reebok’s counsel stating that defendant possessed information that TRB [plaintiff] ‘intended to copy Reebok from the get-go.’ Defendant’s attorneys also notified Reebok’s counsel that defendant would comply with a subpoena issued to him. Reebok listed defendant as a witness before trial and detailed defendant’s expected testimony, including allegedly false testimony that TRB intended to create a ‘knockoff’ brand infringing on Reebok’s marks. The description of expected testimony also made clear that defendant had breached the TRB Agreement by disclosing information concerning TRB’s operations and information concerning the Reebok litigation:”

The main issue presented on this appeal is whether plaintiffs’ complaint alleges conduct upon which invocation of the absolute litigation privilege would constitute abuse of the privilege such that its protections should not apply or be withdrawn.

Examination of the applicable law, particularly with respect to plaintiffs’ proposed exception to the privilege, demonstrates that the course of conduct alleged implicates a limited exception analogous to that applied in Posner v Lewis (18 NY3d 566 [2012]) to another absolute privilege. Accordingly, where a party engages in an extortion attempt by threatening to provide false testimony in a separate action if their demands are not accepted, and, following rejection, affirmatively reaches out to the extortion target’s adversaries in the separate litigation, indeed offering to provide false testimony in that action, the absolute litigation privilege will not bar the action. TRB Acquisitions LLC v Yedid, 2023 NY Slip Op 01654, First Dept 3-28-23

Practice Point: Here defendant’s offer to provide false testimony in a separate proceeding was not protected by the litigation privilege in this action alleging defendant’s breach of a confidentiality and nondisparagement agreement.

 

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PLAINTIFF SUED THE CITY AND POLICE UNDER 42 USC 1983 ALLEGING THE CITY AND POLICE HAD AN UNCONSTITUTIONAL POLICY OR PRACTICE ALLOWING POLICE OFFICERS TO FILE FALSE CHARGES, TESTIFY FALSELY AND FALSIFY EVIDENCE WITHOUT CONSEQUENCES; PLAINTIFF WAS ENTITLED TO RECORDS OF SIMILAR COMPLAINTS OR INVESTIGATIONS PURSUANT TO THE CPLR DISCOVERY PROVISIONS AND WAS NOT RESTRICTED TO A FOIL REQUEST (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s request for certain police records should not have been denied. Plaintiff sued the city under 42 USC 1983 alleging an unconstitutional policy or practice by the police which allows officers to swear out false criminal charges, testify falsely at trial and falsify evidence without consequences. Plaintiff sought records of complaints and investigations of similar conduct by officers in a specific task force. Because plaintiff is suing the city, his requests could be brought both pursuant to the Freedom of Information Law (FOIL) and the CPLR discovery provisions. Supreme Court should not have restricted plaintiff’s access to records to that available under the FOIL:

Supreme Court improvidently exercised its discretion with respect to plaintiff’s requests seeking records of complaints and investigations of allegedly similar conduct by officers in the same task force, as those requests did not, in fact, constitute a fishing expedition … . Plaintiff limited his requests to officers assigned only during the six months before his arrest … , and his reference to lawsuits, investigations by the Internal Affairs Bureau, and complaints to the Civilian Complaint Review Board also sufficiently identified documents sought with “reasonable particularity” (CPLR 3120[2] …). Without allowing disclosure of allegations of misconduct by other officers, it is unlikely that plaintiff could demonstrate “that the municipality had a custom or practice that was both widespread and reflected a deliberate indifference to its citizens’ constitutional rights” … .

… Supreme Court should not have imposed a limitation precluding plaintiff from seeking records directly from defendants instead of under FOIL. “When a public agency is one of the litigants, . . . it has the distinct disadvantage of having to offer its adversary two routes into its records” … , and the availability of FOIL does not replace the concomitant right to disclosure under the CPLR. Badia v City of New York, 2023 NY Slip Op 01582, First Dept 3-23-23

Practice Point; Here plaintiff sued the police under 42 USC 1983 alleging an unconstitutional policy to allow the police to file false charges, testify falsely and falsify evidence. Because plaintiff was suing the police, he was entitled to records of similar complaints under the CPLR discovery provisions and was not restricted to FOIL requests.

 

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IN THIS SIDEWALK SLIP AND FALL CASE, THE MASTER LEASE VIOLATED GENERAL OBLIGATIONS LAW 5-321 WHICH PROHIBITS A LEASE AGREEMENT FROM PROVIDING THE LANDLORD BE INDEMNIFIED FOR LIABILITY FOR THE LANDLORD’S OWN NEGLIGENCE (FIRST DEPT). ​

The First Department, in this sidewalk slip and fall case, in a decision too complex to fairly summarize here, determined a provision of the master lease violated General Obligations Law 5-321:

General Obligations Law § 5-321 states that “[e]very covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable.”

The Court of Appeals, in Hogeland v Sibley, Lindsay & Curr Co. (42 NY2d 153 [1977]) and Great N. Ins. Co. v Interior Constr. Corp. (7 NY3d 412 [2006]), established an exception to General Obligations Law § 5-321. Parties to a lease agreement may execute a provision requiring the tenant to indemnify the landlord from the landlord’s own negligence. However, the lease must also contain an insurance provision “allocating the risk of liability to third parties” because “[c]ourts do not, as a general matter, look unfavorably on agreements which, by requiring parties to carry insurance, afford protection to the public” … . Accordingly, the Court of Appeals reasoned that when an indemnity clause is coupled with an insurance procurement provision, a tenant is obligated to indemnify the landlord for its share of liability, and such agreement does not exempt the landlord from liability to the plaintiff, but allocates the risk to a third party through insurance … . Insurance procured by the tenant in satisfaction of the indemnity clause provides the injured plaintiff with adequate recourse for the damages suffered … .

… Article 13 of the master lease requires Regent [the landlord] to be indemnified for all claims “provided however that the same shall not arise from the willful acts of Landlord during the term of this Lease.” On its face, we find that this provision violates General Obligations Law § 5-321. Bessios v Regent Assoc., Inc., 2023 NY Slip Op 01583, First Dept 3-23-23

Practice Point: A lease which requires the landlord to be indemnified for its own negligence violates General Obligations Law 5-321 unless the lease also requires the tenant to procure insurance which will compensate the injured party for the landlord’s negligence.

 

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A MUTUAL MISTAKE IN AN AGREEMENT CONCERNING THE PRICE OF SHARES OF STOCK WARRANTED REFORMATION OF THE CONTRACT (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Pitt-Burke, determined a mutual mistake in an agreement justified reformation of the contract. The opinion is too detailed to fully summarize here:

… [W]e find that Supreme Court correctly held that the parties intended to include an antidilution provision that provided for the adjustment of both the share price and the number of shares when common stock was issued at a price below plaintiffs’ exercise price, and that, as result of mutual mistake, inadvertently left the word “sentence” and did not change it to the plural, “sentences” in section 3(b) … .Accordingly, upon exercise of their warrants, plaintiffs were entitled to the value of the adjusted number of shares that were owed but not delivered (565,822 shares). Empery Asset Master, Ltd. v AIT Therapeutics, Inc., 2023 NY Slip Op 01585, First Dept 3-23-23

Practice Point: A mutual mistake in a contract allows reformation of the contract to reflect the intent of the parties.

 

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