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SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE.

The Second Department, reversing Supreme Court, determined Supreme Court’s sua sponte ordering of a Frye hearing in this medical malpractice action was an impermissible avoidance of the law of the case doctrine. Another justice, in the same action, had denied the summary judgment motion brought by defendant doctor (Vartolomei). The Second Department held that Supreme Court’s ordering a Frye hearing and thereafter dismissing the complaint against Vartolomei was improper, as the hearing was used to rehear and grant the previously denied summary judgment motion:

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The general purpose of a Frye hearing is to determine whether an expert’s opinion is ” based on principles that are sufficiently established to have gained general acceptance as reliable'” … . Here, however, the overall nature of the questions posed at the hearing directed, sua sponte, by the Supreme Court, as well as statements by the court, establish that the true purpose of the hearing was not to determine whether Dr. Epstein’s opinions were based on principles that are sufficiently established to have gained general acceptance as reliable. Rather, the hearing purported to revisit the determination made in the order … denying Vartolomei’s motion for summary judgment insofar as asserted against her. In doing so, the court violated the doctrine of law of the case by completely disregarding the prior order, issued by a Justice of coordinate jurisdiction, that had concluded that triable issues of fact existed as to whether Vartolomei departed from accepted medical standards of care and whether such departures were a proximate cause of the injuries sustained by the decedent … .

Moreover, this Court has held that “[a] court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, there were no extraordinary circumstances warranting the sua sponte dismissal of the complaint insofar as asserted against Vartolomei. Aguilar v Feygin, 2017 NY Slip Op 04811, 2nd Dept 6-14-17

 

CIVIL PROCEDURE (LAW OF THE CASE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, LAW OF THE CASE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/MEDICAL MALPRACTICE (CIVIL PROCEDURE, FRYE HEARING, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/EVIDENCE (MEDICAL MALPRACTICE, FRYE HEARING,  SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/LAW OF THE CASE (MEDICAL MALPRACTICE, FRYE HEARING, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/FRYE HEARING (MEDICAL MALPRACTICE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/SUA SPONTE DISMISSAL OF COMPLAINT (MEDICAL MALPRACTICE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)

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WORKERS’ COMPENSATION BOARD’S DETERMINATION PLAINTIFF WAS ENTITLED TO BENEFITS IN THIS SLIP AND FALL CASE WAS FINAL DESPITE HER LACK OF PARTICIPATION IN THE PROCEEDINGS, PLAINTIFF CANNOT BRING A LAWSUIT, WORKERS’ COMPENSATION BENEFITS ARE HER ONLY REMEDY.

The Second Department, reversing Supreme Court, determined the defendant church’s motion for summary judgment in this slip and fall case should have been granted. The Workers’ Compensation insurance covered volunteers. The Workers’ Compensation Board (WBC), with no participation by plaintiff, determined plaintiff was a covered volunteer and was entitled to benefits. Plaintiff then sued the church. The Second Department noted that the Workers’ Compensation Board’s finding plaintiff was a covered volunteer entitled to benefits was final because it was not appealed. The suit was therefore precluded:

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“[P]rimary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board” … . “[W]here the availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions” … . “[A] plaintiff has no choice but to litigate this issue before the Board” … . Thus, the question of whether a particular person is an employee within the meaning of the Workers’ Compensation Law is for the WCB to determine in the first instance … . The findings of the WCB are final and conclusive unless reversed on direct appeal … , and are not subject to collateral attack in a plenary action … . This is so even where, as here, the employer has filed a compensation claim on the employee’s behalf and the employee did not herself apply for or accept benefits … . …

Here, the church established its prima facie entitlement to judgment as a matter of law by demonstrating that the WCB rendered a final determination that the injured plaintiff was eligible for Workers’ Compensation benefits under the Diocese’s policy, thereby precluding a personal injury action against it … . In opposition, the plaintiffs failed to raise a triable issue of fact. The coverage eligibility issue was necessarily determined by the WCB in a proceeding in which the injured plaintiff had the required notice and opportunity to be heard … . Moreover, a plaintiff cannot elect to waive benefits under the Workers’ Compensation Law and proceed on a tort cause of action … . Aprile-Sci v St. Raymond of Penyafort R.C. Church, 2017 NY Slip Op 04412, 2nd Dept 6-7-17

WORKERS’ COMPENSATION LAW (EXCLUSIVE REMEDY, WORKERS’ COMPENSATION BOARD’S DETERMINATION PLAINTIFF WAS ENTITLED TO BENEFITS IN THIS SLIP AND FALL CASE WAS FINAL DESPITE HER LACK OF PARTICIPATION IN THE PROCEEDINGS, PLAINTIFF CANNOT BRING A LAWSUIT, WORKERS’ COMPENSATION BENEFITS ARE HER ONLY REMEDY)/NEGLIGENCE (WORKERS’ COMPENSATION LAW, SLIP AND FALL, WORKERS’ COMPENSATION BOARD’S DETERMINATION PLAINTIFF WAS ENTITLED TO BENEFITS IN THIS SLIP AND FALL CASE WAS FINAL DESPITE HER LACK OF PARTICIPATION IN THE PROCEEDINGS, PLAINTIFF CANNOT BRING A LAWSUIT, WORKERS’ COMPENSATION BENEFITS ARE HER ONLY REMEDY)/SLIP AND FALL (WORKERS’ COMPENSATION, NEGLIGENCE, WORKERS’ COMPENSATION BOARD’S DETERMINATION PLAINTIFF WAS ENTITLED TO BENEFITS IN THIS SLIP AND FALL CASE WAS FINAL DESPITE HER LACK OF PARTICIPATION IN THE PROCEEDINGS, PLAINTIFF CANNOT BRING A LAWSUIT, WORKERS’ COMPENSATION BENEFITS ARE HER ONLY REMEDY)

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THE EMAIL EXCHANGE IN WHICH THE PURCHASE PRICE WAS AGREED TO DID NOT SATISFY THE STATUTE OF FRAUDS, SELLER WAS FREE TO BACK OUT AND SEEK A HIGHER PRICE.

The Second Department, reversing (modifying) Supreme Court, determined the exchange of emails concerning the sale of defendant’s property did not satisfy the statute of frauds. Plaintiff’s complaint seeking specific performance should have been dismissed. After defendant agreed via email on a purchase price he learned he could get substantially more for the property and he put the brakes on the sale to plaintiff:

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… [T]he defendant was informed by a real estate broker that the property could be sold for a significantly higher amount; accordingly, the defendant asked the plaintiff to “wait” on moving forward with the execution of a formal contract. The plaintiff insisted that the parties were already bound by their emails, commenced this action for specific performance of the alleged agreement, and filed a notice of pendency on the property. The defendant moved (1) to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7), on the ground that the emails failed to satisfy the statute of frauds, (2) to cancel the notice of pendency pursuant to CPLR 6514(a), (3) for an award of costs and expenses pursuant to CPLR 6514(c), and (4) for an award of sanctions and attorney’s fees pursuant to 22 NYCRR 130-1.1. The Supreme Court denied that branch of the defendant’s motion which was to dismiss the complaint, and, in effect, denied the remainder of the relief sought. We modify.

The emails relied upon by the plaintiff to establish the alleged agreement among the parties for the purchase of the defendant’s apartment were insufficient to satisfy the statute of frauds, as they left for future negotiations essential terms of the contemplated contract, such as a down payment, the closing date, the quality of title to be conveyed, the risk of loss during the sale period, and adjustments for taxes and utilities, and were subject to the execution of a more formal contract of sale… . Contrary to the plaintiff’s contention, in the emails exchanged by and between the parties and the defendant’s attorney, the parties expressly anticipated the execution of a formal contract … . Saul v Vidokle, 2017 NY Slip Op 04485, 2nd Dept 6-7-17

 

REAL ESTATE (CONTRACT LAW, STATUTE OF FRAUDS, THE EMAIL EXCHANGE IN WHICH THE PURCHASE PRICE WAS AGREED TO DID NOT SATISFY THE STATUTE OF FRAUDS, SELLER WAS FREE TO BACK OUT AND SEEK A HIGHER PRICE)/STATUTE OF FRAUDS (REAL ESTATE, HE EMAIL EXCHANGE IN WHICH THE PURCHASE PRICE WAS AGREED TO DID NOT SATISFY THE STATUTE OF FRAUDS, SELLER WAS FREE TO BACK OUT AND SEEK A HIGHER PRICE)/CONTRACT LAW (REAL ESTATE, STATUTE OF FRAUDS, THE EMAIL EXCHANGE IN WHICH THE PURCHASE PRICE WAS AGREED TO DID NOT SATISFY THE STATUTE OF FRAUDS, SELLER WAS FREE TO BACK OUT AND SEEK A HIGHER PRICE)

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CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED.

The Second Department determined a capsule camera swallowed by plaintiff to facilitate an intestinal examination was not a foreign object for purposes of the statute of limitations. The statute runs from discovery of a foreign object which has been left in the body during surgery. However, the capsule camera was not part of a surgical procedure and it was designed to pass out of the body normally. The plaintiff alleged that the failure to call plaintiff’s attention to a 2009 CT scan on which the capsule camera was visible constituted negligence. The Second Department found that the cause of action was really “misdiagnosis” for which the foreign-object toll of the statute of limitations is not available. The action was therefore time-barred:

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Generally, “[a]n action for medical . . . malpractice must be commenced within two years and six months of the act, omission or failure complained of” (CPLR 214-a). However, “where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier” (CPLR 214-a). The statute provides that a “fixation device” is not a “foreign object” (CPLR 214-a).

” [I]n determining whether an object which remains in the patient constitutes a “foreign object,” [courts] should consider the nature of the materials implanted in a patient, as well as their intended function'” … . “In short, every fixation device is intentionally placed for a continuing (even if temporary) treatment purpose, but it does not follow that everything that is intentionally placed for a continuing treatment purpose is a fixation device”… . Thus, in determining whether objects are foreign objects pursuant to CPLR 214-a, “[t]he question then becomes whether . . . [the objects] are analogous to tangible items like . . . [surgical] clamps . . . or other surgical paraphernalia (e.g., scalpels, sponges, drains) likewise introduced into a patient’s body solely to carry out or facilitate a surgical procedure” … .

The capsule camera at issue herein was used diagnostically to visualize the condition of the plaintiff’s intestines. It was not used or even introduced into the plaintiff’s body in the course of a surgical procedure. Rather, the capsule camera was knowingly and intentionally swallowed by the plaintiff with the expectation that it would travel through her digestive system until eliminated in the regular course of digestion. Thus, the malpractice alleged against the moving defendants, the failure to recognize from the 2009 CT scan that the observed metallic object was a retained endoscopic capsule camera, and to advise the plaintiff of such, ” is most logically classified as one involving misdiagnosis—a category for which the benefits of the “foreign object” discovery rule have routinely been denied'”  … . Leace v Kohlroser, 2017 NY Slip Op 04429, 2nd Dept 6-7-17

NEGLIGENCE (MEDICAL MALPRACTICE, STATUTE OF LIMITATIONS, CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED)/MEDICAL MALPRACTICE (STATUTE OF LIMITATIONS, FOREIGN OBJECTS, CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED)/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, MEDICAL MALPRACTICE, FOREIGN OBJECT, CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED)/CAPSULE CAMERA (MEDICAL MALPRACTICE, STATUTE OF LIMITATIONS, FOREIGN OBJECT, CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED)

THE SNOW REMOVAL CONTRACTOR WAS NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM.

The Second Department, in affirming defendants’ motions for summary judgment in this slip and fall case, noted, with respect to the snow removal contractor, the failure to salt an icy area is not a ground for liability to a third party, failure to salt does not “launch an instrument of harm:”

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A snow removal contractor cannot be held liable for personal injuries “on the ground that the snow removal contractor’s passive omissions constituted the launch of a force or instrument of harm, where there is no evidence that the passive conduct created or exacerbated a dangerous condition” … . For example, “a failure to apply salt would ordinarily neither create ice nor exacerbate an icy condition, as the absence of salt would merely prevent a preexisting ice condition from improving” … . Moreover, the exception for launching a force or instrument of harm “cannot be triggered where . . . there is only speculation and conjecture regarding whether the contractor created or exacerbated an icy condition” … .

Here, the plaintiff alleged that [the contractor] should have cleared snow and ice from the bank’s roof and awnings to prevent melting and refreezing such as that which allegedly caused his fall. However, such service was not encompassed by its contract. In any event, in failing to provide services beyond those included in its contract, [the contractor] at most failed to guard against a future possibility of ice formation. This is insufficient to support liability … . Somekh v Valley Natl. Bank, 2017 NY Slip Op 04487, 2nd Dept 6-7-17

 

NEGLIGENCE (SLIP AND FALL SNOW REMOVAL CONTRACTOR, THE SNOW REMOVAL CONTRACTOR WAS NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM)/SLIP AND FALL (SNOW REMOVAL CONTRACTOR NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM)/SNOW REMOVAL CONTRACTOR (SLIP AND FALL, THE SNOW REMOVAL CONTRACTOR WAS NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM)/LAUNCH AN INSTRUMENT OF HARM (SLIP AND FALL, SNOW REMOVAL CONTRACTOR, THE SNOW REMOVAL CONTRACTOR WAS NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM)

DEFENDANT DID NOT DEMONSTRATE THE SINGLE STEP DOWN WAS OPEN AND OBVIOUS, DESPITE THE PRESENCE OF A HANDRAIL, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE.

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff (Ebner) alleged she did not see the single step down which caused her to fall. The Second Department found that defendant did not prove the step was open and obvious. The handrail was not demonstrated to be a sufficient visual cue:

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Here, in support of its motion for summary judgment, the defendant submitted, among other things, Ebner’s deposition testimony, deposition testimony of certain of the defendant’s employees, and an expert affidavit. Contrary to the defendant’s contention, Ebner identified the cause of her fall as her inability to see the single step on the walkway she was traversing … . The defendant’s submissions failed to eliminate triable issues of fact as to whether the step constituted a dangerous condition or whether the subject step was open and obvious, and not inherently dangerous as a matter of law … . The affidavit of the defendant’s expert failed to establish, as a matter of law, that a handrail that the defendant contends was adjacent to the walkway on the date of the subject accident provided a sufficient visual cue to alert pedestrians to the presence of the step. Furthermore, contrary to the defendant’s assertion, it failed to demonstrate that it did not have constructive notice of the dangerous condition prior to the subject accident … . Ross v Bretton Woods Home Owners Assn., Inc., 2017 NY Slip Op 04482, 2nd Dept 6-7-17

NEGLIGENCE (SLIP AND FALL, DEFENDANT DID NOT DEMONSTRATE THE SINGLE STEP DOWN WAS OPEN AND OBVIOUS, DESPITE THE PRESENCE OF A HANDRAIL, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE)/SLIP AND FALL ( DEFENDANT DID NOT DEMONSTRATE THE SINGLE STEP DOWN WAS OPEN AND OBVIOUS, DESPITE THE PRESENCE OF A HANDRAIL, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE)

AFTER THE JURY HAD FOUND DEFENDANT DID NOT VIOLATE LABOR LAW 240 (1), THE APPELLATE COURT DETERMINED PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION AT THE OUTSET, PLAINTIFF FELL FROM A LADDER WHEN THE LADDER SHIFTED.

After a full trial the jury found defendant did not violate Labor Law 240 (1) and awarded damages on plaintiff’s Labor Law 241 (6) cause of action. Plaintiff had fallen from a ladder when it shifted. The Second Department determined plaintiff’s motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted at the outset. Because the jury apportioned fault, the damages had to be revamped because comparative fault does not apply to a Labor Law 240 (1) cause of action. The court noted that plaintiff’s undocumented immigrant status and the fact he did not pay taxes and used a coworker’s name, issues raised by the defendant (apparently in opposition to plaintiff’s summary judgment motion), had no relevance to credibility as to any material fact:

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Before the matter proceeded to a trial on the issue of liability, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability on his Labor Law § 240(1) cause of action. The plaintiff established his prima facie entitlement to judgment as a matter of law through his deposition testimony, which indicated that he was working on an unsecured ladder that moved while he was standing on it … . In opposition, Drake, which submitted only an attorney’s affirmation, failed to raise a triable issue of fact … . Contrary to Drake’s contention, the fact that the plaintiff was an undocumented immigrant who failed to pay taxes and had used a coworker’s name to obtain health insurance immediately following the accident does not present an issue relating to the plaintiff’s credibility as to any material fact … .

Further, as “contributory negligence will not exonerate a defendant who has violated [Labor Law § 240(1)] and proximately caused a plaintiff’s injury” … , the jury’s finding of comparative fault, and the corresponding reduction in the damages awarded to the plaintiff, must be vacated. Cano v Mid-Valley Oil Co., Inc., 2017 NY Slip Op 04419, 2nd Dept 6-7-17

 

LABOR LAW-CONSTRUCTION LAW (AFTER THE JURY HAD FOUND DEFENDANT DID NOT VIOLATE LABOR LAW 240 (1), THE APPELLATE COURT DETERMINED PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION AT THE OUTSET, PLAINTIFF FELL FROM A LADDER WHEN THE LADDER SHIFTED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, AFTER THE JURY HAD FOUND DEFENDANT DID NOT VIOLATE LABOR LAW 240 (1), THE APPELLATE COURT DETERMINED PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION AT THE OUTSET, PLAINTIFF FELL FROM A LADDER WHEN THE LADDER SHIFTED)

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CHOICE OF LAW PROVISIONS OF CONTRACT DID NOT CONSTITUTE AN UNAMBIGUOUS WAIVER OF SOVEREIGN IMMUNITY, THE INDIAN NATION WAS IMMUNE FROM SUIT IN THIS BREACH OF CONTRACT ACTION.

The Second Department, reversing Supreme Court, determined the choice law provisions in a contract between plaintiff and defendant Unkechaug Indian Nation did not include a clear-cut waiver of sovereign immunity and must be construed against the drafter, the plaintiff here. Therefore the defendant was immune from suit for breach of contract:

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Here, the plaintiff contends that the defendant waived its sovereign immunity by virtue of a choice-of-law provision stating that the contract would be governed by the laws of New York, and by the following provision of the contract:

“[The] parties agree that any claim or controversy regarding this Contract shall be most conveniently and economically resolved in Suffolk County, New York, and therefore, the parties agree that any claim or action brought for enforcement, interpretation or damages under this Contract shall be brought only in Suffolk County and the parties agree to forebear from filing a claim in any other jurisdiction.”

Although this clause requires “any claim or controversy” regarding the contract to be resolved in Suffolk County, it does not require that such claim or controversy be resolved by a state court. Rather, under the clause, a party could bring a claim before a mediator, an arbitrator, a tribal court, a state court, or a federal court, as long as the selected forum was located in Suffolk County. Thus, unlike the cases involving arbitration clauses, this clause does not unequivocally express the defendant’s agreement to be sued in a state court. …

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The fact that the contract also includes a choice-of-law provision does not resolve the ambiguity in the subject clause, since the law of the State of New York could be applied in other forums besides a state or federal court to interpret the contract … . Aron Sec., Inc. v Unkechaug Indian Nation, 2017 NY Slip Op 04413, 2nd Dept 6-7-17

 

INDIAN LAW (SOVEREIGN IMMUNITY, CHOICE OF LAW PROVISIONS OF CONTRACT DID NOT CONSTITUTE AN UNAMBIGUOUS WAIVER OF SOVEREIGN IMMUNITY, THE INDIAN NATION WAS IMMUNE FROM SUIT IN THIS BREACH OF CONTRACT ACTION)/CONTRACT LAW (SOVEREIGN IMMUNITY, CHOICE OF LAW PROVISIONS OF CONTRACT DID NOT CONSTITUTE AN UNAMBIGUOUS WAIVER OF SOVEREIGN IMMUNITY, THE INDIAN NATION WAS IMMUNE FROM SUIT IN THIS BREACH OF CONTRACT ACTION)/IMMUNITY (INDIAN NATION, SOVEREIGN IMMUNITY, CHOICE OF LAW PROVISIONS OF CONTRACT DID NOT CONSTITUTE AN UNAMBIGUOUS WAIVER OF SOVEREIGN IMMUNITY, THE INDIAN NATION WAS IMMUNE FROM SUIT IN THIS BREACH OF CONTRACT ACTION)/SOVEREIGN IMMUNITY (INDIAN NATION, CHOICE OF LAW PROVISIONS OF CONTRACT DID NOT CONSTITUTE AN UNAMBIGUOUS WAIVER OF SOVEREIGN IMMUNITY, THE INDIAN NATION WAS IMMUNE FROM SUIT IN THIS BREACH OF CONTRACT ACTION)

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STATUTE OF LIMITATIONS STARTED TO RUN IN THE FIRST FORECLOSURE PROCEEDING WHEN THE DEBT WAS ACCELERATED, THE ELECTION TO ACCELERATE WAS NEVER REVOKED, THE INSTANT FORECLOSURE ACTION IS TIME-BARRED.

The Second Department, in finding the foreclosure action time-barred, noted that the debt was accelerated (in a prior foreclosure proceeding) which started the six-year statute. The election to accelerate a debt can be revoked but was not here:

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An action to foreclose a mortgage is subject to a six-year statute of limitations … . “The law is well settled that, even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt”… .

Here, in support of her cross motion, the defendant submitted proof that the mortgage debt was accelerated on May 15, 2007, when the plaintiff commenced the first action to foreclose the subject mortgage. Thus, the six-year limitations period expired prior to the commencement of the instant action on July 9, 2013. Moreover, while a lender may revoke its election to accelerate the mortgage… , the record in this case is barren of any affirmative act of revocation occurring during the six-year limitations period subsequent to the initiation of the prior action … . U.S. Bank N.A. v Barnett, 2017 NY Slip Op 04490, 2nd Dept 6-7-17

 

FORECLOSURE (STATUTE OF LIMITATIONS, STATUTE OF LIMITATIONS STARTED TO RUN IN THE FIRST FORECLOSURE PROCEEDING WHEN THE DEBT WAS ACCELERATED, THE ELECTION TO ACCELERATE WAS NEVER REVOKED, THE INSTANT FORECLOSURE ACTION IS TIME-BARRED)/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, FORECLOSURE, STATUTE OF LIMITATIONS STARTED TO RUN IN THE FIRST FORECLOSURE PROCEEDING WHEN THE DEBT WAS ACCELERATED, THE ELECTION TO ACCELERATE WAS NEVER REVOKED, THE INSTANT FORECLOSURE ACTION IS TIME-BARRED)/STATUTE OF LIMITATIONS (FORECLOSURE, STATUTE OF LIMITATIONS STARTED TO RUN IN THE FIRST FORECLOSURE PROCEEDING WHEN THE DEBT WAS ACCELERATED, THE ELECTION TO ACCELERATE WAS NEVER REVOKED, THE INSTANT FORECLOSURE ACTION IS TIME-BARRED)

CRITERIA FOR COURT REVIEW OF THE EXPULSION OF A STUDENT FROM A PRIVATE COLLEGE EXPLAINED.

The Second Department, upholding the expulsion of a student from a private college (Pratt Institute) based upon allegations of sexual harassment, explained the relevant court-review criteria:

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“[P]rivate schools are afforded broad discretion in conducting their programs, including decisions involving the discipline, suspension and expulsion of their students” … . “Judicial review of the actions of a private school in disciplinary matters is limited to a determination as to whether the school acted arbitrarily and capriciously, or whether it substantially complied with its own rules and regulations” … . Here, contrary to the petitioner’s contention, Pratt Institute informed him of the specific allegations against him, and substantially complied with its sexual harassment policy … . Matter of Ibe v Pratt Inst., 2017 NY Slip Op 04443, 2nd Dept 6-7-17

EDUCATION-SCHOOL LAW (CRITERIA FOR COURT REVIEW OF THE EXPULSION OF A STUDENT FROM A PRIVATE COLLEGE EXPLAINED)/COLLEGES (CRITERIA FOR COURT REVIEW OF THE EXPULSION OF A STUDENT FROM A PRIVATE COLLEGE EXPLAINED)

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