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CAUSE OF ACTION FOR BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING NOT DUPLICATIVE OF BREACH OF CONTRACT CAUSE OF ACTION.

The Second Department determined a cause of action alleging breach of the insurer’s duty to act in good faith was not duplicative of the breach of contract cause of action. Therefore the motion to dismiss the “duty to act in good faith” cause of action was properly denied. Plaintiff sued his own car insurance carrier to recover supplementary uninsured/underinsured motorist (SUM) coverage. The court explained the elements of a “duty to act in good faith” cause of action:

 

The second cause of action alleges a failure to act in good faith. Implicit in every contract is an implied covenant of good faith and fair dealing … . The implied covenant of good faith and fair dealing is a pledge that neither party to the contract shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruit of the contract, even if the terms of the contract do not explicitly prohibit such conduct … . Such a cause of action is not necessarily duplicative of a cause of action alleging breach of contract … .

An insurance carrier has a duty to “investigate in good faith and pay covered claims” … . Damages for breach of that duty include both the value of the claim, and consequential damages, which may exceed the limits of the policy, for failure to pay the claim within a reasonable time … . Such a cause of action is not duplicative of a cause of action sounding in breach of contract to recover the amount of the claim … . Such consequential damages may include loss of earnings not directly caused by the covered loss, but caused, instead, by the breach of the implied covenant of good faith and fair dealing … . The second cause of action states a claim for consequential damages for breach of the implied covenant of good faith and fair dealing. Gutierrez v Government Empls. Ins. Co., 2016 NY Slip Op 01292, 2nd Dept 2-24-16

 

INSURANCE LAW (CAUSE OF ACTION BASED ON DUTY TO ACT IN GOOD FAITH)/CONTRACT LAW (INSURANCE, CAUSE OF ACTION BASED UPON INSURER’S DUTY TO ACT IN GOOD FAITH IS NOT DUPLICATIVE OF  BREACH OF CONTRACT CAUSE OF ACTION)/IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (INSURANCE, CAUSE OF ACTION BASED UPON INSURER’S DUTY TO ACT IN GOOD FAITH IS NOT DUPLICATIVE OF BREACH OF CONTRACT CAUSE OF ACTION)

FAMILY COURT SHOULD HAVE GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AS THE LEAST RESTRICTIVE ALTERNATIVE, RATHER THAN IMPOSING A PERIOD OF PROBATION; PETITION DISMISSED.

The Second Department determined a juvenile, Nigel H, who admitted committing what would constitute a misdemeanor arson offense, should have been granted an adjournment in contemplation of dismissal as the least restrictive sentencing alternative. The period of probation should not have been imposed. Because the probation term had expired, the court dismissed the petition, noting the potential consequences of a record of the offense:

 

The Family Court was required to impose the least restrictive available alternative consistent with the needs and best interests of Nigel H. and the need for protection of the community (see Family Ct Act § 352.2[2][a]). This “least restrictive available alternative” requirement compels the Family Court to balance the needs of the juvenile and the need for the protection of the community (see Family Ct Act § 352.2[2][a]…).

… [T]he least restrictive dispositional alternative available to the Family Court in this juvenile delinquency proceeding was the imposition of an adjournment in contemplation of dismissal. Family Court Act § 315.3(1) provides, in relevant part, that “[a]n adjournment in contemplation of dismissal is an adjournment of the proceeding, for a period not to exceed six months, with a view to ultimate dismissal of the petition in furtherance of justice.” Permissible terms and conditions of an adjournment in contemplation of dismissal may include “supervision by the probation service” (Family Ct Act § 315.3[2]). * * *

Here, the Family Court improvidently exercised its discretion in imposing a period of probation. Given Nigel H.’s many positive characteristics, his lack of prior criminal or behavioral issues, the services and support he is already receiving as a result of his placement in foster care, and the minimal risk that he poses to the community, an adjournment in contemplation of dismissal was warranted … . Matter of Nigel H., 2016 NY Slip Op 01326, 2nd Dept 2-24-16

 

FAMILY LAW (JUVENILE DELINQUENCY, COURT SHOULD HAVE GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL RATHER THAN IMPOSING A PERIOD OF PROBATION)/JUVENILES (FAMILY COURT SHOULD HAVE GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL RATHER THAN IMPOSING A PERIOD OF PROBATION)/LEAST RESTRICTIVE ALTERNATIVE (FAMILY COURT SHOULD HAVE GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL RATHER THAN IMPOSING A PERIOD OF PROBATION)/SENTENCING (JUVENILE DELINQUENCY, FAMILY COURT SHOULD HAVE GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL RATHER THAN IMPOSING A PERIOD OF PROBATION)

CONVERSION THEORY DOES NOT APPLY TO REAL ESTATE OR INTANGIBLE PROPERTY.

The Second Department determined the causes of action for conversion should have been dismissed. Conversion applies only to personal property, not, as here, to real property and a business interest:

 

“A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession” … . The subject matter of a conversion cause of action ” must constitute identifiable tangible personal property’; real property and interests in business opportunities will not suffice”… . Here, the first cause of action seeks to recover damages for conversion based upon [defendant’s] alleged interference with the right of the plaintiff C & B Enterprises, USA, LLC … , “to possession of its Property,” and the second cause of action seeks to recover damages for conversion based upon [defendant’s] alleged interference “with [the plaintiff[‘s]] right to possession of his ownership of C & B.” Inasmuch as the subjects of these causes of action are real property and [plaintiff’s] interest in a business, respectively, a cause of action in conversion does not lie … . C & B Enters. USA, LLC v Koegel, 2016 NY Slip Op 01281, 2nd Dept 2-24-16

 

CONVERSION (ACTION WILL NOT LIE RE INTANGIBLE PROPERTY OR REAL ESTATE)

STATUTE OF LIMITATIONS DEFENSE MAY BE RAISED FOR THE FIRST TIME IN AN ANSWER TO AN AMENDED COMPLAINT; RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL-CONTRACT ACTION WHERE ORIGINAL ACTION WAS BASED SOLELY ON A WRITTEN CONTRACT.

The Second Department, reversing Supreme Court determined defendant did not waive the statute of limitations defense not raised in the answer to the original complaint, but raised in the answer to the amended complaint. The court further concluded a subsequent action based upon an alleged oral agreement did not relate back to the original action based upon a written agreement and was therefore time-barred:

 

Generally, a defense based upon the statute of limitations is waived unless raised by pre-answer motion or in the defendant’s answer (see CPLR 3211[e]). A defendant, however, may assert a statute of limitations defense for the first time in an answer served in response to a plaintiff’s amended complaint … . Moreover, a party may amend its pleading once without leave of court, among other circumstances, within 20 days after service of that pleading (see CPLR 3025[a]). An amended answer, made as a matter of right pursuant to CPLR 3025(a), may include a statute of limitations defense previously omitted … . * * *

The relation-back doctrine permits a plaintiff to interpose a claim or cause of action which would otherwise be time-barred, where the allegations of the original complaint gave notice of the transactions or occurrences to be proven and the cause of action would have been timely interposed if asserted in the original complaint … . The relation-back doctrine is inapplicable where the original allegations did not provide the defendant notice of the need to defend against the allegations of the amended complaint … . Moezinia v Ashkenazi, 2016 NY Slip Op 01300, 2nd Dept 2-24-16

 

CIVIL PROCEDURE (STATUTE OF LIMITATIONS DEFENSE MAY BE RAISED FOR THE FIRST TIME IN AN ANSWER TO AN AMENDED COMPLAINT)/CIVIL PROCEDURE (RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL CONTRACT WHERE ORIGINAL COMPLAINT CONCERNED A WRITTEN CONTRACT)/STATUTE OF LIMITATIONS (DEFENSE MAY BE RAISED FOR THE FIRST TIME IN ANSWER TO AN AMENDED COMPLAINT)/RELATION-BACK DOCTRINE (RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL CONTRACT WHERE ORIGINAL COMPLAINT CONCERNED A WRITTEN CONTRACT)

1987 NEGATIVE DECLARATION DID NOT EXPIRE AND REMAINS VALID WITH RESPECT TO A PRELIMINATY PLAT APPLICATION; HOWEVER, BECAUSE OF CHANGES MADE TO THE PROJECT, THE PLANNING BOARD HAS THE POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION.

The Second Department determined that a 1987 negative declaration with respect to a preliminary plat application had not expired and was still valid. Therefore, the planning board’s determination that a new State Environmental Quality Review Act (SEQRA) review was necessary was annulled. However, since changes had been made to the project, the planning board has the power to amend or rescind the original negative declaration:

 

…[I]n light of … the changes to the project, the Planning Board has the responsibility to assess whether the 1987 negative declaration should be amended (see 6 NYCRR 617.7[e][1]) or “must” be rescinded (6 NYCRR 617.7[f][1]) under the standards set forth in 6 NYCRR 617.7(e) and (f) … . The provisions of 6 NYCRR 617.7(e) and (f) specifically authorize an agency to take into account changes in projects, new information, and changed circumstances affecting a project.

The Planning Board erroneously concluded that the amendment and rescission provisions were, by their terms, inapplicable. Rescission and amendment are authorized “[a]t any time prior to [the lead agency’s] decision to . . . approve an action” (6 NYCRR 617.7[e], [f]). Here, the Planning Board has never given final approval for subdivision of the entire parcel or for subdivision of the portion of the parcel the plaintiffs/petitioners now seek to develop. Accordingly, contrary to its conclusion otherwise, the Planning Board is still authorized to assess possible adverse environmental impacts with respect to the proposed East Mountain North subdivision pursuant to 6 NYCRR 617.7(e) and (f). Leonard v Planning Bd. of Town of Union Vale, 2016 NY Slip Op 01156, 2nd Dept 2-17-16

 

ENVIRONMENTAL LAW (1987 NEGATIVE DECLARATION WITH RESPECT TO A PRELIMINARY PLAT APPLICATION DID NOT EXPIRE, HOWEVER, BECAUSE OF CHANGES TO THE PROJECT, PLANNING BOARD HAS POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION)/STATE ENVIRONMENT QUALITY REVIEW ACT [SEQRA] (1987 NEGATIVE DECLARATION WITH RESPECT TO A PRELIMINARY PLAT APPLICATION DID NOT EXPIRE, HOWEVER, BECAUSE OF CHANGES TO THE PROJECT, PLANNING BOARD HAS POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION)/LAND USE (SEQRA, 1987 NEGATIVE DECLARATION WITH RESPECT TO A PRELIMINARY PLAT APPLICATION DID NOT EXPIRE, HOWEVER, BECAUSE OF CHANGES TO THE PROJECT, PLANNING BOARD HAS POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION)

A TRIAL JUDGE DOES NOT HAVE THE AUTHORITY TO CONDUCT A WEIGHT OF THE EVIDENCE ANALYSIS, ONLY THE APPELLATE DIVISION HAS THAT POWER.

The Second Department, reversing Supreme Court, determined a trial judge who renders a guilty verdict on an indictment count in a bench trial cannot thereafter conduct a weight of the evidence analysis and dismiss the count. Here, the judge reserved decision on defendant’s motion for a trial order of dismissal, found the defendant guilty, and then dismissed the count pursuant to the motion for a trial order of dismissal based up a weight of the evidence analysis:

 

“A Trial Judge who has rendered a guilty verdict after a nonjury trial has neither inherent power nor statutory authority to reconsider his [or her] factual determination. Although he [or she] may correct clerical or ministerial errors, he [or she] is without authority to reassess the facts and change a guilty verdict to not guilty” … . “After formal rendition of a verdict at a bench trial, a trial court lacks authority to reweigh the factual evidence and reconsider the verdict” … . “The term verdict’ is defined as the announcement . . . by the court in the case of a non-jury trial, of its decision upon the defendant’s guilt or innocence of the charges . . . considered by it'” … . Thus, “[t]rial judges are prohibited from setting aside a verdict as against the weight of the evidence. This power is reserved to the Appellate Division, which essentially sits as a thirteenth juror” … . * * *

Here, the defendant moved pursuant to CPL 290.10, at the close of evidence, for a trial order of dismissal, and the court reserved decision, as permitted by CPL 290.10 (1)(b), until after the verdict was rendered. We conclude that, where a defendant has moved for a trial order of dismissal pursuant to CPL 290.10 and the court has held all or part of that motion in abeyance, a court conducting a nonjury trial likewise may not render a verdict and then reconsider its factual determination; instead, the court must consider the legal sufficiency of the evidence in support of its original verdict … . Accordingly, in this matter, the Supreme Court’s order vacating its verdict of guilty as to count two of the indictment and dismissing that count must be reversed.  People v Dobson, 2016 NY Slip Op 01198, 2nd Dept 2-17-16

 

CRIMINAL LAW (TRIAL JUDGE, IN A BENCH TRIAL, DOES NOT HAVE THE AUTHORITY TO CONDUCT A WEIGHT OF THE EVIDENCE ANALYSIS AFTER ISSUING A GUILTY VERDICT)/WEIGHT OF THE EVIDENCE (TRIAL JUDGE, IN A BENCH TRIAL, DOES NOT HAVE THE AUTHORITY TO CONDUCT A WEIGHT OF THE EVIDENCE ANALYSIS AFTER ISSUING A GUILTY VERDICT)/TRIAL ORDER OF DISMISSAL (TRIAL JUDGE, IN A BENCH TRIAL, DOES NOT HAVE THE AUTHORITY TO CONDUCT A WEIGHT OF THE EVIDENCE ANALYSIS AFTER ISSUING A GUILTY VERDICT)/BENCH TRIAL (TRIAL JUDGE, IN A BENCH TRIAL, DOES NOT HAVE THE AUTHORITY TO CONDUCT A WEIGHT OF THE EVIDENCE ANALYSIS AFTER ISSUING A GUILTY VERDICT)

CRITERIA FOR A MOTION TO RENEW IS FLEXIBLE; HERE MOTION SHOULD HAVE BEEN GRANTED EVEN THOUGH MOVANT SHOULD HAVE BEEN AWARE OF THE “NEW” EVIDENCE.

The Second Department, reversing Supreme Court, determined plaintiff’s motion to renew an application for an order of reference in a mortgage foreclosure action should have been granted. The court noted that the criteria for a motion to renew is flexible, there is no time-limit for bringing the motion, and the motion can be granted even when movant should have been aware of the “new” evidence:

 

Generally, “a motion for leave to renew is intended to bring to the court’s attention new or additional facts which were in existence at the time the original motion was made, but unknown to the movant” … . However, the requirement that a motion for leave to renew be based upon new or additional facts unknown to the movant at the time of the original motion is a flexible one and the court, in its discretion, may also grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made … . Except where a motion to renew is based upon a change in the law, which is not the case here, CPLR 2221 does not impose a time limit for making a motion for leave to renew … . Here, the plaintiff established its entitlement to an order of reference, as it submitted documentary proof that the defendants failed to answer the complaint within the time allowed, that it was the holder of the note and mortgage, that the defendants defaulted, “and that, as a preliminary step in obtaining a judgment of foreclosure, the appointment of a referee to compute the amount due on the . . . mortgage would be proper” … . Although the plaintiff should have been aware of the durable power of attorney at the time it initially sought an order of reference, the Supreme Court, under the circumstances, improvidently exercised its discretion in denying the plaintiff’s motion for leave to renew, where the plaintiff, having otherwise established its entitlement to an order of reference, submitted, inter alia, the durable power of attorney in support of its renewal motion and the motion was unopposed. Citimortgage, Inc. v Espinal, 2016 NY Slip Op 01148, 2nd Dept 2-17-16

 

CIVIL PROCEDURE (MOTION TO RENEW, FLEXIBLE CRITERIA, NO TIME-LIMIT, MOTION SHOULD HAVE BEEN GRANTED EVEN THOUGH MOVANT SHOULD HAVE BEEN AWARE OF THE NEWLY PROFERRED EVIDENCE)/MOTION TO RENEW (FLEXIBLE CRITERIA, NO TIME-LIMIT, SHOULD HAVE BEEN GRANTED EVEN THOUGH MOVANT SHOULD HAVE BEEN AWARE OF THE NEWLY PROFERRED EVIDENCE)

IN A FEE DISPUTE, PLAINTIFF-ATTORNEY’S FAILURE TO NOTIFY CLIENT OF THE CLIENT’S RIGHT TO ARBITRATE REQUIRED DISMISSAL OF THE COMPLAINT.

The Second Department determined, in a fee dispute, plaintiff-attorney’s failure to give notice to his client of the client’s right to arbitrate required dismissal of the complaint without prejudice:

 

Except in limited circumstances, where an attorney commences an action to recover a fee, the attorney must provide written notice by certified mail or by personal service of the client’s right to elect to arbitrate and must allege in the complaint that the client received notice of his or her right to pursue arbitration and did not file a timely request to arbitrate or that the dispute is not otherwise covered by the rules governing the resolution of attorney-client fee disputes by arbitration (see 22 NYCRR 137.6…). A plaintiff’s failure to provide the defendant with written notice of his or her right to elect to submit the fee dispute to arbitration, and the failure to allege in the complaint that the defendant received such notice and did not file a timely request for arbitration, or that fee dispute arbitration is inapplicable to the matter for specified reasons, requires dismissal of the complaint … . Pascazi Law Offs., PLLC v Pioneer Natural Pools, Inc., 2016 NY Slip Op 01160, 2nd Dept 2-17-16

 

ATTORNEYS (FEE DISPUTE, PLAINTIFF- ATTORNEY’S FAILURE TO NOTIFY CLIENT OF RIGHT TO ARBITRATE REQUIRED DISMISSAL OF THE COMPLAINT)/ATTORNEY’S FEES (FEE DISPUTE, PLAINTIFF- ATTORNEY’S FAILURE TO NOTIFY CLIENT OF RIGHT TO ARBITRATE REQUIRED DISMISSAL OF THE COMPLAINT)

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INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL.

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment should have been granted. Infant plaintiff was injured playing basketball when he struck the pole holding the hoop. The Second Department held the school district had demonstrated infant plaintiff assumed the risk of that injury:

 

The doctrine of primary assumption of risk applies where a consenting participant in a sporting activity “is aware of the risks [inherent in the activity]; has an appreciation of the nature of the risks; and voluntarily assumes the risks” … . “However, the doctrine will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … .

The defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging premises liability by demonstrating that the subject pole was open and apparent, that the risk of colliding with it was inherent in the activity of playing basketball in the courtyard, that the defendant did nothing to conceal or unreasonably increase the risk, and that the plaintiff assumed the risk of injury by voluntarily participating in the activity at that location, as he had on numerous prior occasions … . Altagracia v Harrison Cent. Sch. Dist., 2016 NY Slip Op 01141, 2nd Dept 2-17-16

 

NEGLIGENCE (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)/ASSUMPTION OF RISK (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)/BASKETBALL (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)/EDUCATION-SCHOOL LAW (INFANT PLAINTIFF ASSUMED RISK OF INJURY PLAYING BASKETBALL)

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QUESTION OF FACT WHETHER DRIVER OF CITY TRUCK EXERCISED REASONABLE CARE DURING AN EMERGENCY STOP IN THE LEFT LANE OF A HIGHWAY.

The Second Department, reversing Supreme Court, determined decedent’s representative had raised a question of fact whether the driver of a city dump truck was negligent. Decedent was a passenger in a car which struck the back of the dump struck which was either stopped or coming to a stop in the left lane of the highway. Although the driver of the truck testified a tire had just blown, causing the truck to veer to the left, the truck was still moving when struck, and the emergency flashing lights were on, the sole eyewitness testified the truck was parked and its lights were not on:

 

The City made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that its truck was lawfully stopped on the highway due to an emergency (see Vehicle and Traffic Law § 1202[a][1][j]) when it was struck in the rear by the Cadena vehicle. However, in opposition, viewing the evidence in the light most favorable to the plaintiff, affording him the benefit of every favorable inference …, and applying the Noseworthy doctrine (see Noseworthy v City of New York, 298 NY 76, 80) to hold him to a lesser standard of proof, the plaintiff raised a triable issue of fact as to whether the truck driver exercised reasonable care in warning other drivers of the hazard posed by his disabled vehicle. Generally, when one causes a public road to become obstructed, there is a duty to “exercise[ ] the care that a reasonably prudent person should have under all the circumstances” … . The exercise of reasonable care under the circumstances may include warning other motorists of the hazards posed by the obstruction … . Typically, whether reasonable care was exercised is a question of fact … .

The City’s truck driver testified at a deposition that the truck’s headlights were on, that after the blowout of the tire he activated the truck’s emergency lights, and that the accident occurred within seconds of veering into the left lane while he was still moving 10 to 15 miles per hour. However, the sole eyewitness to the accident, Weiguo Qu, indicated that he saw the truck “parked” in the left lane of a highway with its lights off and no flashing lights. In light of this conflicting evidence, triable issues of fact exist regarding, among other things, whether the City’s truck driver failed to exercise reasonable care to warn other motorists of the obstruction and, if so, whether such failure was a proximate cause of the accident… . Pinilla v City of New York, 2016 NY Slip Op 00953, 2nd Dept 2-10-16

EMINENT DOMAIN (TENANT MAY BE ENTITLED TO COMPENSATION FOR TRADE FIXTURES IN PROPERTY TO WHICH VILLAGE ACQUIRED TITLED BY EMINENT DOMAIN)/LANDLORD-TENANT (TENANT MAY BE ENTITLED TO COMPENSATION FOR TRADE FIXTURES IN PROPERTY TO WHICH VILLAGE ACQUIRED TITLED BY EMINENT DOMAIN)/TRADE FIXTURES (TENANT MAY BE ENTITLED TO COMPENSATION FOR TRADE FIXTURES IN PROPERTY TO WHICH VILLAGE ACQUIRED TITLED BY EMINENT DOMAIN)

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