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THERE CAN BE NO REPUDIATION WHERE THERE HAS BEEN A BREACH OF CONTRACT, TWO JUSTICE DISSENT (FIRST DEPT).

The First Department, over a two-justice dissent, determined plaintiff in this landlord-tenant dispute could not seek separate redress on a theory of repudiation for the breach of contract cause of action. The decision is fact-specific and cannot be fairly summarized here:

… [B]ecause a party cannot repudiate a contract it has already breached, if the landlord is found to have breached the lease in 2015, there can be no repudiation in 2021 … . * * *

From the dissent:

A party “cannot simultaneously pursue a breach of contract claim and an anticipatory breach claim premised on the same underlying conduct” … . However, where an obligation is ongoing or serial in nature, a subsequent material breach can support a claim on a theory of repudiation notwithstanding earlier claims for partial breach … . Audthan LLC v Nick & Duke, LLC, 2022 NY Slip Op 06880, First Dept 12-6-22

Practice Point: The majority held plaintiff could not seek redress on a theory of repudiation where there had been a breach of contract. There was a two-justice dissent.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF CONTRACT ALLEGING BILLING FOR SERVICES RENDERED BY ATTORNEYS NOT ADMITTED IN NEW YORK (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated a cause of action against defendant attorneys (BSF) alleging BSF billed for expenses associated with attorneys not admitted in New York:

The complaint stated a limited cause of action for breach of contract against BSF. The complaint sufficiently alleged that BSF overbilled or billed for unnecessary expenses associated with attorneys not admitted to practice law in, or based out of, New York, and the documentary submissions do not utterly refute those allegations … . Kaufman v Boies Schiller Flexner, LLP, 2022 NY Slip Op 06883, First Dept 12-6-22

Practice Point: Here plaintiff stated a cause of action against a law firm alleging the firm billed for unnecessary expenses associated with attorneys not admitted in New York.

 

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THE EVIDENCE AT THE HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION DID NOT SUPPORT THE ALLEGATION DEFENDANT’S FRIEND PAID DEFENDANT’S LEGAL FEES CREATING A CONFLICT OF INTEREST FOR DEFENDANT’S ATTORNEY (FIRST DEPT).

The First Department determined Supreme Court properly denied defendant’s motion to vacate his conviction on the ground his attorney had a conflict of interest which deprived him of effective assistance of counsel. The case had gone to the Court of Appeals which held the defendant was entitled to a hearing on the motion:

The record supports the hearing court’s factual determination that defendant’s friend Salaam, whom his counsel represented on an unrelated criminal case, and who had initially been a suspect in the murder of which defendant was convicted, did not pay defendant’s legal fees. At the hearing, defendant did not meet his burden of proving the necessary facts by a preponderance of the evidence … . The hearing evidence showed that Salaam physically handed cash to defendant’s attorney for his retainer and for much of the balance of the fee, but that there was no proof as to the ultimate source of the cash. Counsel credibly testified that he viewed Salaam as his contact person and believed that the legal fees were being collectively raised by a group of defendant’s friends and relatives, including Salaam. The court’s finding was also supported by defendant’s recorded calls made while incarcerated, and the fact that Salaam always delivered cash to the attorney while accompanied by other friends of defendant. The evidence also shows that defendant chose and hired the attorney. People v Brown, 2022 NY Slip Op 06889, First Dept 12-6-22

Practice Point: Defendant alleged his friend paid his legal fees. Defendant’s friend had been represented in another criminal matter by defendant’s attorney and was a suspect in the murder of which defendant was convicted. The evidence at the hearing on defendant’s motion to vacate his conviction did not support the allegation defendant’s friend was the source of the funds paid to defendant’s attorney. Therefore defendant’s argument he was deprived of effective assistance because of his attorney’s conflict of interest was not supported by the evidence.

 

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THE ALLEGATION THE A-FRAME LADDER SHIFTED FOR NO APPARENT REASON WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION, NOTWITHSTANDING DEFENDANT’S EXPERT’S OPINION THE ACCIDENT WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FIRST DEPT). ​

The First Department, reversing Supreme Court in this A-frame ladder-fall case, determined plaintiff was entitled to summary judgment based upon the allegation the ladder shifted for no apparent reason. The facts that plaintiff inspected the ladder before using it, there were no witnesses and defendant’s expert opined the accident was not the proximate cause of plaintiff’s injuries did not preclude summary judgment on liability:

It is irrelevant that plaintiff inspected the ladder and found it to be in good order before using it, as plaintiff is not required to demonstrate that the ladder was defective in order to make a prima facie showing of entitlement to summary judgment on his Labor Law § 240(1) claim … .

… [P]laintiff is entitled to summary judgment in his favor even though he was the only witness to his accident, as “nothing in the record controverts his account of the accident or calls his credibility into question” … . While the opinions of defendants’ expert engineer might relate to the issue of proximate causation of plaintiff’s damages, i.e., whether plaintiff’s claimed injuries were proximately caused by his accident … , they do not raise material issues … as to liability on the Labor Law § 240(1) claim. Pinzon v Royal Charter Props., Inc., 2022 NY Slip Op 06891, First Dept 12-6-22

Practice Point: Here the allegation the A-frame ladder shifted for no apparent reason warranted summary judgment on liability pursuant to Labor Law 240(1). The facts that there were no witnesses, plaintiff inspected the ladder before use, and defendant’s expert opined plaintiff’s injuries were not proximately caused by the fall did not preclude summary judgment.

 

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PLAINTIFF-INVESTOR’S COMPLAINT ALLEGING THE REGISTRATION STATEMENT FILED BY DEFENDANT PHARMACEUTICAL COMPANY ABOUT THE EFFICACY OF ITS DRUG WAS MISLEADING AND VIOLATED THE FEDERAL SECURITIES ACT SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, reversing Supreme Court, determined defendant pharmaceutical company’s, Genfit’s, motion to dismiss the complaint alleging the company misrepresented the efficacy of a drug in violation of the Federal Securities Act should have been granted. The court noted that the pleading requirements for misrepresentation in this context are not the heightened pleading requirements for fraud:

The gravamen of plaintiff’s complaint is that Genfit made misrepresentations and/or omissions in the registration statement and prospectus (collectively offering documents) it filed with the Securities and Exchange Commission in connection with the IPO (initial public offering). Before a company may sell securities in interstate commerce, it must file a registration statement with the SEC. Pursuant to section 11 of the 1933 Securities Act, if … the registration statement contains an untrue statement of material fact or omits a material fact necessary to make the statement therein not misleading, a purchaser of the stock may sue for damages (15 USC § 77 [k] …). * * *

Plaintiff … objects to certain statements in the offering documents, which we characterize as opinions. … Opinions in offering documents are subject to an analysis under the Supreme Court Decision in Omnicare, Inc. v Laborers Dist. Council Constr. Indus. Pension Fund (575 US 175, 184 [2015]). Under Omnicare, an opinion is actionable if (1) the speaker does not actually hold the stated belief … ; or (2) the opinion affirms an underlying fact … a registration statement omits material facts about the issuer’s inquiry into or knowledge concerning a statement of opinion, and if those facts conflict with what a reasonable investor would take from the statement itself … .

[The] statements of opinion do not affirm underlying facts. … … Plaintiff claims … [the] statements are misleading because Genfit does not actually believe the opinions stated and that the offering documents omit material facts and knowledge. The complaint, however, alleges no facts supporting these conclusions. Schwartz v Genfit, S.A., 2022 NY Slip Op 06892, First Dept 12-6-22

Practice Point: The allegation that a company’s registration statement is misleading in violation of the Federal Securities Act is not subjected to the heightened pleading requirements for fraud. Here the allegations in the complaint did not support even the less stringent pleading requires for misleading statements.

 

THE CLUB’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE DRAM SHOP ACT CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the club’s (Copacabana”) motion for summary judgment dismissing the Dram Shop Act cause of action should not have been granted. Because the subsequent accident did not occur on the club’s premises, the common law negligence cause of action was properly dismissed:

Copacabana was not entitled to summary judgment dismissing the claim alleging violation of the Dram Shop Act (General Obligations Law § 11-101; Alcohol Beverage Control Law § 65 [2]), as it did not satisfy its initial burden of negating the possibility that it served alcohol to a visibly intoxicated person … . While Copacabana relied on defendant Anslem Trotman’s deposition testimony that he arrived to the establishment after having only one beer, and that he did not recall anyone from Copacabana serving him drinks, Trotman’s testimony was insufficient to rule out the possibility that he was served alcohol by Copacabana waitstaff while he was visibly intoxicated. Trotman had also testified that he was drunk and could not remember large portions of the night, and his testimony was equivocal as to whether Copacabana waitstaff served him drinks or whether he purchased additional alcohol beyond what came with his party package. …

Plaintiff’s common-law negligence was properly dismissed, as the accident that resulted in plaintiff’s injuries occurred off Copacabana’s premises … . The claim for punitive damages was also properly dismissed, as there is no independent cause of action for punitive damages …  and plaintiff failed to establish a basis for such damages. Denenberg v 268 W. 47th Rest., Inc., 2022 NY Slip Op 06866, First Dept 12-1-22

Practice Point: Here there were questions of fact whether plaintiff was served alcohol by defendant club when he was visibly intoxication. The Dram Shop Act cause of action should not have been dismissed. Because the accident did not happen on the club’s premises, the common law negligence cause of action was properly dismissed.

 

DEFENDANT IN THIS REAR-END TRAFFIC ACCIDENT CASE DID NOT RAISE A QUESTION OF FACT ABOUT A NON-NEGLIGENT EXPLANATION FOR DEFENDANT’S ACTIONS OR PLAINTIFF’S COMPARATIVE NEGLIGENCE (FIRST DEPT).

The First Department, reversing Supreme Court in this rear-end traffic accident case, determined defendant’s allegation that the plaintiff “stopped short” did not raise a question of fact:

The court should have granted plaintiff for summary judgment on liability. Plaintiff established prima facie that defendant was negligent by submitting his affidavit that defendant’s vehicle rear-ended his vehicle as he slowed down or stopped to accommodate another vehicle that was merging in from his right, and defendant failed to provide a nonnegligent explanation for the collision …  Defendant claimed only that defendant [plaintiff?] stopped short, which, by itself, was insufficient to rebut the presumption of negligence … . Contrary to the motion court’s finding, plaintiff was not required to establish absence of comparative negligence on his part to be entitled to summary judgment on liability … .

In view of plaintiff’s affidavit establishing his own lack of fault and his seatbelt usage, and the absence of any proof to the contrary, the affirmative defenses of comparative negligence and failure to wear a seatbelt, as well as the irrelevant defense of assumption of risk, are also dismissed … . Vasquez v Strickland, 2022 NY Slip Op 06876, First Dept 12-1-22

Practice Point: In a rear-end traffic accident, defendant’s allegation plaintiff “stopped short” does not raise a question of fact.

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT ADDRESS OR CONTROVERT THE DEFENDANT’S EXPERT’S OPINION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s expert’s affidavit did not address or controvert the defendant’s expert’s opinion. Plaintiff alleged her “foot drop” was caused by prescribed medication: Defendant’s expert opined the foot drop could not have been caused by the medication plaintiff took:

Defendant made a prima facie case of summary judgment through its expert who stated that there was no medical evidence that methotrexate, a drug in use since 1947, causes peripheral neuropathy or a foot drop, either alone or in combination with one of plaintiff’s other medications, and opined that foot drop would not have manifested at the single low dose of methotrexate consumed by plaintiff over the course of one day; the short period that elapsed between this consumption of the drug and the emergence of foot drop, was atypical for a drug-induced peripheral neuropathy; if plaintiff’s condition were a drug induced peripheral neuropathy, it would have resolved within weeks of the discontinuance of methotrexate and the fact that plaintiff’s condition persisted for years and did not resolve upon discontinuing methotrexate, was a presentation atypical for drug-induced peripheral neuropathy; and plaintiff’s presumed diagnosis of sarcoidosis, could be an explanation for her condition.

In opposition to defendants’ prima facie showing, plaintiff’s expert failed to demonstrate the existence of triable issues of fact by demonstrating that defendants’ prescription of the drug methotrexate was a “substantial factor” in causing her claimed injury of “foot drop” … . The expert failed to address or controvert many of the points made by defendants’ expert. He did not address or controvert defendant’s expert’s opinion that 5mg of methotrexate taken in one day could not cause foot drop, or, if it did, why the foot drop did not resolve within weeks of discontinuation of the medication. Plaintiff’s expert also failed to address defendant’s expert’s opinion that the more likely culprit for plaintiff’s foot drop was her presumed diagnosis of neuro-sarcoidosis, as indicated in the medical records. Camacho v Pintauro, 2022 NY Slip Op 06743, First Dept 11-29-22

Practice Point: Medical malpractice cases are battles between experts. At the summary judgment stage, if supported opinions in the defense expert’s affidavit  are not addressed or controverted by the plaintiff’s expert’s affidavit, defendant wins.

 

 

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RESPONDENT STATE COLLEGE WITHHELD EXCULPATORY EVIDENCE IN THIS COLLEGE MISCONDUCT PROCEEDING WHICH RESULTED IN PETITIONER-STUDENT’S EXPULSION; THE EXPULSION PENALTY WAS VACATED AND THE STUDENT WAS REINSTATED IN GOOD STANDING (FIRST DEPT). ​

The First Department, reversing the expulsion of petitioner-student and reinstating the student in good standing, determined the respondent state college had withheld exculpatory evidence which indicated petitioner did not carve a racial epithet on an elevator door. Two students claimed to have seen petitioner carve the epithet. Another student sent an email stating he had seen the epithet on the door before the students arrived for the semester. That email was never disclosed to the petitioner:

Article III of Section 4 of respondent’s Code of Conduct enumerates the due process rights of students charged with violations. In addition to the right to a fair hearing, a charged student “has the right to copies of written reports pertinent to the case . . .” Respondent’s failure to turn over exculpatory evidence in its possession prior to the hearing violated its own policies and procedures, thereby violating petitioner’s due process rights … . Now, in hindsight, it cannot be said that petitioner received a fair hearing where evidence tending to prove his innocence was withheld.

Accordingly, after our independent review of the record as a whole, we now find that this exculpatory evidence, the extensive alibi evidence as well as other objective evidence of petitioner’s innocence render the charges unsupportable as a matter of law thus warranting vacatur of the expulsion penalty, expungement of all references to the underlying charges contained in petitioner’s academic record and his reinstatement as a student in good standing … . Matter of Mozdziak v State Univ. of N.Y. Mar. Coll., 2022 NY Slip Op 06759, First Dept 11-29-22

Practice Point: In this misconduct proceeding in a state college, the student was entitled to due process. The college’s failure to turn over exculpatory evidence required vacation of the expulsion penalty and reinstatement of the student in good standing.

 

​ THE ATTEMPT TO HOLD DEFENDANT PLUMBING COMPANY LIABLE FOR THE LEAK WHICH CAUSED PLAINTIFF’S SLIP AND FALL RELIED ON PURE SPECULATION; THE DOCTRINE OF RES IPSA LOQUITUR FAILS BECAUSE DEFENDANT DID NOT HAVE EXCLUSIVE CONTROL OVER THE BUILDING’S PLUMBING (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant plumbing company’s motion for summary judgment in this slip and fall case should have been granted. The First Department held the attempt to connect the pipe-repair to the leak which caused the slip and fall was pure speculation:

Plaintiff slipped and fell on water that spilled out of a garbage bin positioned to catch a leak from a pipe in the ceiling of the basement storeroom in a building owned by plaintiff’s employer. About two months before plaintiff’s accident, defendant had repaired a sanitary waste line pipe in a basement corridor outside the storeroom in which the accident occurred. Upon these undisputed facts established by the record, defendant should have been granted summary judgment, as there is nothing but speculation to connect defendant’s work on the waste pipe in the corridor with the leak from the water pipe in the storeroom that appeared two months later and caused plaintiff’s mishap.

We note that plaintiff cannot rely upon the doctrine of res ipsa loquitur, because he has not established that the pipes were within defendant’s exclusive control … . Defendant made a showing, which plaintiff failed to rebut, that defendant was part of a rotation of plumbers who made only emergency repairs at the hospital, and that plaintiff’s employer employed in-house plumbers. Taitt v Riehm Plumbing Corp., 2022 NY Slip Op 06775, First Dept 11-29-22

Practice Point: Here the leaking pipe which caused plaintiff’s slip and fall could not be connected to repairs made by defendant plumbing company two months before. The res ipsa loquitiur doctrine did not apply because defendant did not have exclusive control over the water pipes.

 

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