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DEFENDANTS’ FAILURE TO INSIST ON PROMISED MONTHLY MINIMUM PURCHASES OF DEFENDANTS’ PRODUCTS CONSTITUTED A WAIVER OF THE CONTRACTUAL MINIMUM PURCHASE REQUIREMENTS, NOTWITHSTANDING A NO ORAL WAIVER CLAUSE.

The Second Department, in a full-fledged opinion by Justice Chambers, determined the failure of defendants to insist on the fulfillment of plaintiffs’ promise to make monthly minimum purchases of defendants’ product constituted a waiver of the minimum-purchases contract, notwithstanding the “no oral waiver” contractual provision:

… [W]e find that the Supreme Court properly concluded that … the affirmative conduct of [defendants] over the previous weeks and months evinced an unmistakable intent to waive the remaining 2006 minimum purchase requirements, including the 2006 annual minimum purchase requirement … . * * *

…[W]e agree with the Supreme Court that, under the facts presented, the agreements’ no-oral-waiver provision … does not compel a different result. As explained above, the [plaintiffs’] persistent and repeated failure to meet minimum purchase requirements, coupled with [defendants’] continued acceptance of such conduct without any reservation or protest until a few weeks before the expiration of the agreements (by which time it was, of course, too late to insist upon strict compliance with the terms of the agreements), equitably estops [defendants] from invoking the benefit of the no-oral-waiver provision … . Kamco Supply Corp. v On the Right Track, LLC, 2017 NY Slip Op, 02025, 2nd Dept 3-22-17

 

CONTRACT LAW (DEFENDANTS’ FAILURE TO INSIST ON PROMISED MONTHLY MINIMUM PURCHASES OF DEFENDANTS’ PRODUCTS CONSTITUTED A WAIVER OF THE CONTRACTUAL MINIMUM PURCHASE REQUIREMENTS, NOTWITHSTANDING A NO ORAL WAIVER CLAUSE)/WAIVER (CONTRACT LAW, (DEFENDANTS’ FAILURE TO INSIST ON PROMISED MONTHLY MINIMUM PURCHASES OF DEFENDANTS’ PRODUCTS CONSTITUTED A WAIVER OF THE CONTRACTUAL MINIMUM PURCHASE REQUIREMENTS, NOTWITHSTANDING A NO ORAL WAIVER CLAUSE)

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GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY.

The Second Department determined the forum selection clause in the loan contract was enforceable and applied to the related guaranty (which did not include a similar clause). The Second Department further determined Supreme Court should not have granted plaintiff’s motion for summary judgment in lieu of complaint because proof of the amount owed required proof in addition to the documents:

… “[D]ocuments executed at about the same time and covering the same subject matter are to be interpreted together, even if one does not incorporate the terms of the other by reference, and even if they are not executed on the same date, so long as they are substantially’ contemporaneous” … . Contrary to the defendant’s contention, the agreement and guaranty were executed sufficiently close in time and relate to the same subject matter, such that they should be interpreted together to determine the parties’ intent to be bound by the forum selection clause … . * * *

Although an unconditional guarantee may qualify as an instrument for the payment of money only … , here, neither the guaranty nor the underlying agreement relied upon by the plaintiff in support of its motion contains an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite future time … . Since proof outside of the guaranty and underlying agreement is required to establish the amount of Platinum’s obligation to the plaintiff pursuant to the agreement, the plaintiff’s motion for summary judgment in lieu of complaint should have been denied, with the motion and answering papers deemed to be the complaint and answer, respectively … . Oak Rock Fin., LLC v Rodriguez, 2017 NY Slip Op 02048, 2nd Dept 3-22-17

 

CIVIL PROCEDURE (GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY)/CONTRACT LAW (FORUM SELECTION CLAUSE, (GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY)/GUARANTY ((GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY)/SUMMARY JUDGMENT IN LIEU OF COMPLAINT (GUARANTY WHICH DID NOT HAVE A FORUM SELECTION CLAUSE DEEMED TO BE SUBJECT TO THE CLAUSE IN A RELATED CONTRACT EXECUTED CLOSE IN TIME, SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED, OUTSIDE PROOF NECESSARY)

FOUR-MONTH ARTICLE 78 STATUTE OF LIMITATIONS STARTS WHEN THE PETITIONER’S ATTORNEY IS NOTIFIED OF THE CHALLENGED DETERMINATION, NOT WHEN PETITIONER IS NOTIFIED.

The Second Department determined the four-month statute of limitations for bringing an Article 78 action starts when petitioner’s attorney is notified of the challenged determination, not when the petitioner is notified:

Contrary to the Supreme Court’s determination, the four-month statute of limitations did not begin to run when the petitioner was personally served with a copy of the respondents’ letter notifying him that his employment had been terminated. At that time, the respondents were on notice that the petitioner had retained counsel to represent him in connection with the disciplinary charges. ” [B]asic procedural dictates and . . . fundamental policy considerations . . . require that once counsel has appeared in a matter a Statute of Limitations or time requirement cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed'” … . Under the circumstances of this case, the respondents were required to serve a copy of the letter on the petitioner’s counsel in order for the statute of limitations to commence running … . Matter of Munroe v Ponte, 2017 NY Slip Op 02041, 2nd Dept 3-22-17

CIVIL PROCEDURE (FOUR-MONTH ARTICLE 78 STATUTE OF LIMITATIONS STARTS WHEN THE PETITIONER’S ATTORNEY IS NOTIFIED OF THE CHALLENGED DETERMINATION, NOT WHEN PETITIONER IS NOTIFIED)/STATUTE OF LIMITATIONS (ARTICLE 78, FOUR-MONTH ARTICLE 78 STATUTE OF LIMITATIONS STARTS WHEN THE PETITIONER’S ATTORNEY IS NOTIFIED OF THE CHALLENGED DETERMINATION, NOT WHEN PETITIONER IS NOTIFIED)/ARTICLE 78 (FOUR-MONTH ARTICLE 78 STATUTE OF LIMITATIONS STARTS WHEN THE PETITIONER’S ATTORNEY IS NOTIFIED OF THE CHALLENGED DETERMINATION, NOT WHEN PETITIONER IS NOTIFIED)

DEFENDANT HEAVY METAL CLUB DID NOT DEMONSTRATE PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH A SLAM DANCER, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant heavy metal club did not demonstrate plaintiff assumed the risk of colliding with a slam dancer. Plaintiff was not participating in the slam dancing:

The doctrine of primary assumption of risk “applies when a consenting participant in a qualified activity is aware of the risks; has an appreciation of the nature of the risks; and voluntary assumes the risks'” … . A person who chooses to engage in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . The doctrine has generally been restricted “to particular athletic and recreative activities in recognition that such pursuits have enormous social value’ even while they may involve significantly heightened risks'” … , and are, therefore, “worthy of insulation from a breach of duty claim” … . Here, even assuming, without deciding, that attending a heavy metal concert where slam dancing takes place is a qualified activity to which the doctrine may properly be applied … , under the facts presented, the defendants, as the organizers and sponsors of the event, failed to eliminate triable issues of fact as to whether they met their duty to exercise care to make the conditions at the subject venue as safe as they appeared to be … and did not unreasonably increase the usual risks inherent in the activity of concert going … . Brosnan v 6 Crannell St., LLC, 2017 NY Slip Op 01840, 2nd Dept 3-15-17

NEGLIGENCE (DEFENDANT HEAVY METAL CLUB DID NOT DEMONSTRATE PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH A SLAM DANCER, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/ASSUMPTION OF THE RISK (SLAM DANCING, (DEFENDANT HEAVY METAL CLUB DID NOT DEMONSTRATE PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH A SLAM DANCER, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/SLAM DANCING (DEFENDANT HEAVY METAL CLUB DID NOT DEMONSTRATE PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH A SLAM DANCER, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)

CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS.

The Second Department, in this assault and battery action, determined defendant’s counterclaim alleging a deliberate campaign of harassment spanning 13 years was not subject to the one-year statute of limitations because the continuing tort doctrine applied:

… [T]he Supreme Court properly concluded that so much of the defendant’s third counterclaim as was based on conduct occurring prior to September 29, 2013, was not barred by the one-year statute of limitations (see CPLR 215), and that it was instead governed by the continuing tort doctrine, which permits claims based on “wrongful conduct occurring more than one year prior to commencement of the action, so long as the final actionable event occurred within one year of the suit” … . The counterclaim was supported by factual allegations that the plaintiff engaged in a continuing and concerted campaign of harassment and intimidation of the defendant that progressed from, among other things, calling the defendant, his family, and guests ethnic and racial epithets and throwing items onto his property to eventually making threats of violence, making false criminal accusations, committing assault and battery against the defendant, and continuing to engage in threatening and intimidating conduct nearly two months after the physical confrontation that is the subject of the plaintiff’s complaint … . The final actionable event, allegedly occurring in November 2013, fell within one year of the defendant’s service of the verified answer with counterclaims … . Estreicher v Oner, 2017 NY Slip Op 01844, 2nd Dept 3-15-17

NTENTIONAL TORTS (CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS)/CIVIL PROCEDURE (CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS)/CONTINUING TORT DOCTRINE (CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS)/HARASSMENT (INTENTIONAL TORTS, CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS)

INJURY WHILE TRIMMING A TREE NOT ACTIONABLE UNDER LABOR LAW 200 OR LABOR LAW 240(1).

The Second Department determined Supreme Court properly granted defendants’ motion for summary judgment on the Labor Law 200 and 240(1) causes of action. Plaintiff was injured by a power saw as he was standing on a ladder cutting a tree branch. The Labor Law 200 cause of action was dismissed because defendants did not control the manner of plaintiff’s work. The Labor Law 240(1) cause of action was dismissed because tree-trimming was not encompassed by the statute:

Here, the accident arose from the manner in which the work was performed, and the defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 claim by submitting evidence demonstrating that they did not have the authority to supervise or control the methods or materials of the plaintiff’s work … . …

The defendants established, prima facie, that the plaintiff’s tree branch cutting work was outside the ambit of Labor Law § 240(1), because a tree is not a “building or structure” within the meaning of the statute … . In opposition, the plaintiff failed to raise a triable issue of fact. His contention that the tree branch cutting work was necessary to complete a larger renovation project with respect to the building on the premises is unsupported by the record … . Olarte v Morgan, 2017 NY Slip Op 01874, 2nd Dept 3-15-17

 

LABOR LAW-CONSTRUCTION LAW (INJURY WHILE TRIMMING A TREE NOT ACTIONABLE UNDER LABOR LAW 200 OR LABOR LAW 240(1))/TREE TRIMMING (LABOR LAW-CONSTRUCTION LAW, INJURY WHILE TRIMMING A TREE NOT ACTIONABLE UNDER LABOR LAW 200 OR LABOR LAW 240(1))

NOTICE OF DISCLAIMER SENT TO PLAINTIFF’S INSURER WAS NOT EFFECTIVE NOTICE TO PLAINTIFF.

The Second Department determined a notice of disclaimer sent by defendant insurer (FMIC) to plaintiff’s insurer (Mt.Hawley) was not sufficient to disclaim coverage of plaintiff (Harco):

Here, although Mt. Hawley was acting on behalf of the plaintiffs when it sent notice of the occurrence to FMIC and demanded that FMIC assume the plaintiffs’ defense and indemnification in connection with any lawsuits arising from the incident, that did not make Mt. Hawley the plaintiffs’ agent for all purposes, or for the specific purpose that is relevant here: receipt of a notice of disclaimer … . Contrary to FMIC’s contention, Mt. Hawley’s interests were not necessarily the same as Harco’s in this litigation and because Harco had its own interests at stake, separate from that of Mt. Hawley, Harco was entitled to notice delivered to it … . Since FMIC failed to provide timely notice of its denial of coverage on the basis of a policy exclusion to Harco, it is estopped from disclaiming insurance coverage on that ground … . Harco Constr., LLC v First Mercury Ins. Co., 2017 NY Slip Op 01846, 2nd Dept 2-15-17

INSURANCE LAW (NOTICE OF DISCLAIMER SENT TO PLAINTIFF’S INSURER WAS NOT EFFECTIVE NOTICE TO PLAINTIFF)/DISCLAIMER (INSURANCE LAW, NOTICE OF DISCLAIMER SENT TO PLAINTIFF’S INSURER WAS NOT EFFECTIVE NOTICE TO PLAINTIFF)

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NEGLECT PETITION ALLEGING EXCESSIVE CORPORAL PUNISHMENT SHOULD NOT HAVE BEEN DISMISSED AFTER PRESENTATION OF DIRECT CASE, CHILD’S OUT OF COURT STATEMENTS SUFFICIENTLY CORROBORATED.

The Second Department, reversing Family Court, determined the neglect petition should not have been dismissed at the close of the direct case. There was sufficient evidence of excessive corporal punishment and sufficient corroboration of the child’s out of court statements:

At the fact-finding hearing, the petitioner introduced a recording of two telephone calls to the 911 emergency number, and elicited testimony from a police officer and a caseworker that the mother admitted using a belt against the child. Such evidence was sufficient to corroborate the child’s out-of-court statements to the caseworker that the mother beat her … . Moreover, the absence of physical injury is not dispositive … . In any event, the caseworker’s testimony that the child had stated that her upper right arm hurt from having defended herself, was not undermined on cross examination. Finally, dismissal was not warranted on the ground that the child gave a conflicting statement to the police officer. Matter of Jaivon J. (Patricia D.), 2017 NY Slip Op 01856, 2nd Dept 3-15-17

FAMILY LAW (NEGLECT PETITION ALLEGING EXCESSIVE CORPORAL PUNISHMENT SHOULD NOT HAVE BEEN DISMISSED AFTER PRESENTATION OF DIRECT CASE, CHILD’S OUT OF COURT STATEMENTS SUFFICIENTLY CORROBORATED)/EVIDENCE (FAMILY LAW, NEGLECT, NEGLECT PETITION ALLEGING EXCESSIVE CORPORAL PUNISHMENT SHOULD NOT HAVE BEEN DISMISSED AFTER PRESENTATION OF DIRECT CASE, CHILD’S OUT OF COURT STATEMENTS SUFFICIENTLY CORROBORATED)/NEGLECT (FAMILY LAW, NEGLECT PETITION ALLEGING EXCESSIVE CORPORAL PUNISHMENT SHOULD NOT HAVE BEEN DISMISSED AFTER PRESENTATION OF DIRECT CASE, CHILD’S OUT OF COURT STATEMENTS SUFFICIENTLY CORROBORATED)

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PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL.

The Second Department determined petitioner was properly estopped from asserting his paternity claim. The Second Department noted that the fact that petitioner’s paternity petition was reinstated upon a prior appeal did not preclude the denial of the petition on equitable estoppel grounds:

The Family Court properly applied the doctrine of equitable estoppel to preclude the petitioner from asserting his paternity claim with respect to the subject child. The evidence at a hearing established that the respondent Gaston R. has established a strong father-daughter relationship with the child. The child has referred to Gaston R. as “daddy” since she was 18 months old and continues to view him as the only father figure in her life. In contrast, the petitioner learned, shortly after the child’s birth, that he was the child’s biological father. Nevertheless, he did not commence the instant paternity proceeding until the child was four years old. The petitioner has not had a parent-child relationship with the child for several years, and the child no longer recognizes the petitioner’s name. Under these circumstances, the court properly determined that it was in the child’s best interests to equitably estop the petitioner from asserting his paternity claim

Contrary to the petitioner’s contention, this Court’s determination on a prior appeal, which, inter alia, reinstated his paternity petition, did not preclude the Family Court from considering the doctrine of equitable estoppel upon remittal … . Matter of Thomas T. v Luba R., 2017 NY Slip Op 01870, 2nd Dept 3-15-17

 

FAMILY LAW (PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)/PATERNITY (PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)/EQUITABLE ESTOPPEL (FAMILY LAW, PATERNITY, PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)/APPEALS (FAMILY LAW, PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)

APPELLANT’S LATE APPEARANCE FOR A HEARING DID NOT JUSTIFY A DEFAULT FINDING.

The Second Department determined Family Court should not have denied a motion to vacate an order of protection. Appellant had been slightly late for a hearing on her sister’s request for an order of protection and the order was issued based upon appellant’s default:

In this family offense proceeding, the Family Court issued an order of protection against the appellant and in favor of her sister upon the appellant’s failure to appear at a hearing. The appellant moved to vacate the order of protection entered upon her default, and the Family Court denied her motion. * * *

The Family Court improvidently exercised its discretion in denying the appellant’s motion to vacate the order of protection entered upon her default in appearing at the hearing. The appellant showed no willfulness or intent to default, where she was minimally tardy to the hearing, and the tardiness might have been due, at least in part, to crowded conditions at the courthouse, she attended prior court appearances, she engaged in motion practice through her attorney, and she participated in multiple preparatory conferences with her attorney … . Also, the appellant moved to vacate the order of protection relatively soon after it was issued. Under the circumstances, the appellant demonstrated a reasonable excuse for her failure to appear at the hearing. Further, the appellant demonstrated a potentially meritorious defense to the petition …. . Matter of Williams v Williams, 2017 NY Slip Op 01873, 2nd Dept 3-15-17

 

FAMILY LAW (APPELLANT’S LATE APPEARANCE FOR A HEARING DID NOT JUSTIFY A DEFAULT FINDING)/DEFAULT (FAMILY LAW, APPELLANT’S LATE APPEARANCE FOR A HEARING DID NOT JUSTIFY A DEFAULT FINDING)

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