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QUESTION OF FACT WHETHER THE CORPORATE VEIL SHOULD BE PIERCED IN THIS BREACH OF CONTRACT ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had raised questions of fact about whether the corporate veil should be pierced in this breach of contract action:

The plaintiff alleged that it contracted with the defendant China Perfect Construction Corp. (hereinafter China Perfect) to perform certain construction work, and that China Perfect breached that contract by performing the work in a substandard manner. The plaintiff alleged that the defendants Rushang Zhao and May Lu … exercised complete dominion and control over the operations of China Perfect and used such dominion and control to commit a fraud or wrong against the plaintiff. In this regard, the plaintiff alleged that the individual defendants created the defendant New Empire Builder Corp. …  solely to avoid the debts and liabilities of China Perfect, and that they transferred the assets of China Perfect to New Empire in order to render China Perfect “judgment-proof.” * * *

… [T]he defendants failed to affirmatively establish, prima facie, that the individual defendants did not exercise dominion and control over China Perfect to commit a wrong or injustice against the plaintiff, such that the doctrine of piercing the corporate veil is inapplicable … . Sterling Park Developers, LLC v China Perfect Constr. Corp., 2020 NY Slip Op 04340, Second Dept 7-29-20

 

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THE ATTORNEY FOR THE CHILD (AFC) TOOK AND ADVOCATED POSITIONS WHICH WERE CONTRARY TO THE WISHES OF THE CHILDREN; NEW CUSTODY HEARING ORDERED WITH A NEW AFC (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Christopher, determined the attorney for the children (AFC) took a position contrary to the  children’s wishes in this custody action, requiring a new hearing and the appointment of a new AFC:

An AFC is required to “zealously advocate the child’s position” (22 NYCRR 7.2[d] … ). In order to determine the child’s wishes, the AFC must “consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances” (22 NYCRR 7.2[d][1]). The rules further state that ” the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child’s best interests’ and that the [AFC] should explain fully the options available to the child, and may recommend to the child a course of action that in the [AFC]’s view would best promote the child’s interests'” … . * * *

… [T]he AFC’s representation was in direct contravention of her clients’ stated parameters. Throughout the course of the proceedings, she failed to advocate on behalf of her clients, who were 13 and 11 years old at the time of the hearing, and who were both on the high honor roll and involved in extracurricular activities. The AFC actively pursued a course of litigation aimed at opposing their stated positions. She joined the plaintiff in opposing the introduction of evidence and witnesses in support of the defendant’s case. When the defendant sought to introduce evidence in defense of the plaintiff’s allegations that the defendant provided the children with unnecessary medical care, the AFC joined the plaintiff in opposing the introduction of the defendant’s evidence. The AFC also opposed the introduction of evidence that may have supported one child’s claim that the plaintiff attempted to strangle her. The AFC objected to the testimony of school personnel for the purpose of explaining the children’s seemingly excessive school absences. The AFC’s questions of the plaintiff during cross-examination were designed to elicit testimony in support of the plaintiff’s case, in opposition to her clients’ wishes. Silverman v Silverman, 2020 NY Slip Op 04338, Second Dept 7-29-20

 

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INFANT PLAINTIFF WAS APPARENTLY INJURED BY HOT COALS LEFT AFTER A FIRE IN A COUNTY PARK; THE NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE COUNTY SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligent supervision cause of action against the county should not have been dismissed. Apparently infant plaintiff was injured in a county park by hot coals left after a fire:

“While a municipality is not an insurer of the safety of those who use its parks, it does have a duty to maintain its parks in a reasonably safe condition,’ which includes exercising ordinary care in providing an adequate degree of general supervision'” … . Here, the defendants, in moving for summary judgment dismissing the complaint, failed to demonstrate their prima facie entitlement to judgment as a matter of law. Under the circumstances presented here, the evidence submitted by the defendants in support of their summary judgment motion failed to eliminate all triable issues of fact as to whether they exercised adequate supervision of park visitors’ use of fires and disposal of hot coals … . S.A.P. v County of Westchester, 2020 NY Slip Op 04337, Second Dept 7-29-20

 

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WHETHER THE DEFENDANT FIRST STOPPED AT THE STOP SIGN OR DROVE THROUGH THE STOP SIGN DOESN’T MATTER BECAUSE EITHER WAY THE VEHICLE AND TRAFFIC LAW WAS VIOLATED; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for a judgment as a matter of law (CPLR 4401) was properly denied, but the motion to set aside the defense verdict in this intersection traffic accident case (CPLR 4404 (a)) should have been granted. Defendant violated the Vehicle and Traffic Law by proceeding into the intersection on a road controlled by a stop sign. Whether defendant first stopped at the stop sign or went through the stop sign doesn’t matter:

… [T]he Supreme Court should have granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. The evidence established that the defendant violated Vehicle and Traffic Law §§ 1142(a) and 1172(a) … . The defendant’s statutory duty to yield to the plaintiff continued even after the defendant entered the intersection. Such statutory violations constitute negligence as a matter of law and could not properly be disregarded by the jury … . Accordingly, the jury could not have returned a verdict that the defendant was not negligent on any fair interpretation of the evidence … . Ramirez v Cruse, 2020 NY Slip Op 04334, Second Dept 7-29-20

 

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MOTION TO VACATE THE NOTE OF ISSUE AND COMPEL DISCOVERY PROPERLY DENIED; MISAPPROPRIATION OF TRADE SECRETS AND BREACH OF A NON-COMPETITION CLAUSE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) plaintiff’s motion to vacate the note of issue and compel additional discovery was properly denied because the criteria of 22 NYCRR 202.21 were not met; (2) the misappropriation of trade secrets cause of action re: customer lists was properly dismissed; (3) the misappropriation of trade secrets cause of action re: development of a laser should not have been dismissed; and (4), the breach of the non-competition clause cause of action should not have been dismissed:

The elements of a cause of action to recover damages for misappropriation of trade secrets are: (1) possession of a trade secret; and (2) use of that trade secret in breach of an agreement, confidential relationship or duty, or as a result of discovery by improper means (see Tri-Star Light. Corp. v Goldstein, 151 AD3d 1102, 1106). A trade secret includes any compilation of information which provides the company with an opportunity to obtain an advantage over competitors who do not know or use it … . …

… [T]he plaintiff raised triable issues of fact as to whether the defendant used its trade secrets in the manufacture of particular lasers … . …

A restrictive covenant will not be enforced if it is unreasonable in time, space, or scope  … . Thus, “a restrictive covenant will only be subject to specific enforcement to the extent that it is reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee” … . … [T]he plaintiff raised a triable issue of fact regarding whether the noncompetition clause should be partially enforced. A restrictive covenant may be partially enforced to the extent necessary to protect a company’s legitimate interests … . In particular, “restrictive covenants will be enforceable to the extent necessary to prevent the disclosure or use of trade secrets or confidential customer information” … .  Photonics Indus. Intl., Inc. v Xiaojie Zhao, 2020 NY Slip Op 04330, Second Dept 7-29-20

 

BECAUSE THE DESIGNATING PETITIONS OF THE INITIAL CANDIDATE FOR STATE SENATE WERE INVALIDATED, THE PETITION TO VALIDATE CERTIFICATES OF SUBSTITUTION FOR ANOTHER CANDIDATE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition to validate certificates of substitution for a candidate (Sammut) for State Senate after the designating petitions of the initial candidate (LaLota) were invalidated should not have been granted. Because there was no valid designating petition, substitution was barred:

“[P]ursuant to Election Law § 6-148(1), a valid designating petition is a prerequisite to the creation of a vacancy” … . Where a designating petition is ” invalid,'” another candidate may not be substituted by a committee to fill vacancies … . On the prior appeal, we specifically granted the appellants’ petition to invalidate LaLota’s designating petitions. * * *

Moreover, Election Law § 3-200(6) provides: “An election commissioner shall not be a candidate for any elective office which he [or she] would not be entitled to hold under the provisions of [Election Law article 3], unless he [or she] has ceased by resignation or otherwise, to be commissioner prior to his [or her] nomination or designation therefor. Otherwise such nomination or designation shall be null and void” … . Where an original nomination or designation is void, no vacancy is created which can be filled by substitution … .  Matter of Ferrandino v Sammut, 2020 NY Slip Op 04229, Second Dept 7-23-20

 

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ALTHOUGH THE MOTION TO DISMISS FOR FAILURE TO SERVE A DEFENDANT SHOULD HAVE BEEN DENIED AND THE MOTION TO EXTEND TIME TO SERVE GRANTED, THE MOTION TO DISMISS ON FORUM NON COVENIENS GROUNDS WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the motion to dismiss the complaint based upon the failure to serve defendant (Bryan) should have been denied and plaintiff’s motion to extend the time to serve defendants (Bryan and Carroll) should have been granted. However the action was properly dismissed on forum non conveniens grounds:

… [T]he plaintiff promptly sought an extension after Bryan challenged the court’s jurisdiction, the respective insurance carriers for Bryan and Carroll had actual notice of this action within 120 days of its commencement, there was evidence of a potentially meritorious cause of action, and there was no demonstrable prejudice to Bryan and Carroll … . Accordingly, that branch of the respondents’ motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Bryan must be denied, and the plaintiff’s cross motion pursuant to CPLR 306-b to extend the time to serve both Bryan and Carroll must be granted.

However, the Supreme Court providently exercised its discretion in granting that branch of the respondents’ motion which was pursuant to CPLR 327(a) to dismiss the complaint insofar as asserted against them on the ground of forum non conveniens. In granting that branch of the respondents’ motion, the court properly considered all the relevant factors … , including that the plaintiff and the respondents are residents of New Jersey, Carroll was also a resident of New Jersey at the time of the accident, Bryan’s insurance policy was issued in New Jersey, and both vehicles involved in the accident were registered in New Jersey … . The fact that the accident occurred in New York is insufficient by itself to provide the substantial nexus required to warrant the retention of jurisdiction in the State of New York … . Considering all of the relevant factors, including the fact that the plaintiff primarily received medical treatment for her alleged injuries in New Jersey, we find no basis to disturb the court’s determination to dismiss the action insofar as asserted against the respondents on forum non conveniens grounds … . DelGrosso v Carroll, 2020 NY Slip Op 04148, Second Dept 7-22-20

 

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THE DEFENDANTS DEMONSTRATED THE CITY DID NOT NOTIFY THEM OF THE NEED TO REPAIR THE ABUTTING PUBLIC SIDEWALK AND THEREBY DEMONSTRATED THEY HAD NO STATUTORY DUTY TO REPAIR THE SIDEWALK; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERTY GRANTED (SECOND DEPT).

The Second Department determined defendant abutting property owner demonstrated it was not responsible for the repair of any alleged defects in the public sidewalk in this slip and fall case. The city code imposed liability only if the landowner was notified of the need for repair:

Section 167-50(A) of the Code of the City of Rye provides that “[i]t shall be the duty of the Department of Public Works to require the owner of property abutting upon a street to repair or replace any sidewalk in front thereof that is required to be repaired or replaced,” and “[w]here the owner of such property shall fail to neglect to repair or replace such sidewalk for five days after notice to do so has been served upon the owner . . . the Department of Public Works shall repair or replace such sidewalk, and a statement of 100% of the cost incurred thereby shall be served upon the owner.” Section 167-50(B) imposes tort liability upon landowners for injuries resulting “from the failure of any owner or other responsible person to comply with the provisions of this section.” … [Defendants] established [they did not receive] notice from the Department of Public Works requiring them to perform sidewalk repairs. Accordingly, the … defendants demonstrated, prima facie, that they had no statutory duty to repair the sidewalk …  The … defendants’ submissions also demonstrated, prima facie, that … the … defendants [did not create] the defective condition that allegedly caused the injured plaintiff’s fall … . DeBorba v City of Rye, 2020 NY Slip Op 04147, Second Dept 7-22-20

 

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DEFENDANT HOME OWNER DEMONSTRATED HE DID NOT HAVE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK AND DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION WHICH ALLEGEDLY RESULTED IN PLAINTIFF’S INJURIES IN THIS LABOR LAW 200 ACTION; SUPREME COURT SHOULD NOT HAVE CONSIDERED AN AFFIDAVIT FROM A NOTICE WITNESS WHO WAS NOT DISCLOSED PRIOR TO THE SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant home owner’s motion for summary judgment in this Labor Law 200 action should have been granted. Defendant was not home when plaintiff fell through an open hole in the deck while removing a window. The defendant demonstrated he did not have any control over the manner of plaintiff’s work and did not have actual or constructive knowledge of the dangerous condition. Supreme Court should not have considered the affidavit of a nonparty who was not previously disclosed as a witness who had actual notice of the condition.

… [T]he defendant established, prima facie, that he did not exercise supervision or control over the performance of the work giving rise to the accident … . Further, to the extent that the accident could be viewed as arising from a dangerous or defective premises condition at the work site, the defendant established, prima facie, that he did not create or have actual or constructive notice of the alleged dangerous condition … .

In opposition, the plaintiffs failed to raise a triable issue of fact. We disagree with the Supreme Court’s determination to consider the affidavit of a nonparty witness submitted by the plaintiffs in opposition to the defendant’s motion. In his discovery demands, the defendant sought disclosure of, inter alia, the name of any witness who had actual notice of the alleged condition, or the nature and duration of such condition. The nonparty witness was not disclosed in the plaintiffs’ discovery responses, the plaintiffs failed to offer an excuse for their failure to do so, and nothing that transpired during discovery would have alerted the defendant of the potential significance of the nonparty’s testimony … . Casilari v Condon, 2020 NY Slip Op 04146, Second Dept 7-22-20

 

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THERE ARE QUESTIONS OF FACT WHETHER THE CITY’S DELAY IN NOTIFYING THE NEXT OF KIN OF THE IDENTIFICATION OF DECEDENT’S BODY AND THE LOCATION OF DECEDENT’S REMAINS ENTITLES THE NEXT OF KIN TO DAMAGES PURSUANT TO THE COMMON-LAW RIGHT OF SEPULCHER (SECOND DEPT).

The Second Department determined there were questions of fact in this right of sepulcher action stemming from city’s delay in notifying decedent’s next of kin if the identification and location of decedent’s remains.

On June 27, 2003, the plaintiff reported to the police that his 16-year-old son (hereinafter the decedent) was missing, and the New York City Police Department (hereinafter NYPD) commenced a missing person investigation. The decedent’s body was found 10 days later on July 7, 2003. The Office of the Chief Medical Examiner (hereinafter OCME) conducted an autopsy, but the medical examiner incorrectly determined that the body belonged to a 25 to 30 year old Asian male. Therefore, the body was not identified as that of the decedent. Because the decedent’s body remained unidentified, it was buried in the City public cemetery known as “Potter’s Field” on Hart Island in the Bronx. …

In September or October 2009, the plaintiff and his daughter, the decedent’s sister, provided their DNA samples to the NYPD as part of the missing person investigation. On January 10, 2011, the OCME confirmed that the unidentified body buried in Potter’s Field was that of the decedent. … Approximately one month after the OCME confirmed the identification of the decedent’s body, on February 16, 2011, the NYPD notified the plaintiff of the identification, and further informed him that the decedent had drowned and that the body had been found on July 7, 2003. The next day, the plaintiff was informed by the OCME that the decedent had been buried in Potter’s Field, but he was not informed of the exact location of the burial until 2015. …

“The common-law right of sepulcher affords the deceased’s next of kin an absolute right to the immediate possession of a decedent’s body for preservation and burial . . ., and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body” … .  … [W]hen a municipal defendant has all of the necessary identifying information, the obligation of informing the next of kin of the decedent’s death is a ministerial function that creates a special duty running to the decedent’s next of kin rather than to the public at large … .

… [T]here are triable issues of fact as to whether the delays in informing the plaintiff that the decedent had been identified and in informing the plaintiff of the location of the decedent’s burial interfered with the plaintiff’s right of sepulcher … . However, we note that triable issues of fact exist only with respect to the City’s delay in notifying the plaintiff about the identification and the delay in informing him of the location of the burial. Therefore, the plaintiff is not entitled to damages with respect to the delay from the time the decedent was first reported missing in 2003 until the identity of the decedent’s body was confirmed on January 10, 2011. Cansev v City of New York, 2020 NY Slip Op 04145, Second Dept 7-22-20

 

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