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Where Plaintiff Does Not Know Which of Two Defendants Distributed the Product Which Caused the Injury, the Doctrine of Alternative Liability Applies—Doctrine Explained

The Second Department determined the doctrine of alternative liability applied to a strict products liability case where it was not possible for the plaintiff to determine which of two defendants distributed the product. The doctrine places the burden on the defendants to demonstrate which of them distributed the product, and if that is not possible, the two defendants would be jointly and severally liable:

Generally, a plaintiff seeking to recover for injuries sustained due to the use of a product is required to prove that it was the defendant who placed the product that injured him or her into the stream of commerce … . However, the doctrine of alternative liability is “available in some personal injury cases to permit recovery where the precise identification of a wrongdoer is impossible” … .

Under that doctrine, where the conduct of two or more defendants is tortious, and ” it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one,'” the burden is placed on those defendants to prove that they did not cause the harm … . If the defendants cannot meet that burden, they are jointly and severally liable … . “Recovery under an alternative liability theory requires joinder of all the parties who could have been responsible for a plaintiff’s injuries” … . Silver v Sportsstuff, Inc., 2015 NY Slip Op 06232, 2nd Dept 7-22-15

 

Order of Protection Reversed–Family Court Did Not Have Subject Matter Jurisdiction—Party Ordered to Stay Away Was Not Related to, a Member of the Household of, or in an Intimate Relationship With, the Subject of the Order of Protection

The Second Department determined Family Court did not have subject matter jurisdiction pursuant to Family Court Act 812 and could not, therefore, issue an order of protection to a person, Kirton, who was not a party to a family offense proceeding. Family Court’s jurisdiction in a family offense proceeding is limited to certain acts which occur “between spouses or former spouses, or between parent and child or between members of the same family or household” (Family Ct Act § 812[1]…). [M]embers of the same family or household include, among others, persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time… ” [internal quotation marks omitted] Here the party to whom the order of protection was issued, Kirton, was not related in any way to, was not a member of the household of, and did not have an intimate relationship with the petitioner, Cambre (from whom Kirton was ordered to stay away):

The Family Court is a court of limited jurisdiction, constrained to exercise only those powers conferred upon it by the New York Constitution or by statute … . Pursuant to Family Court Act § 812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain prescribed acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household” (Family Ct Act § 812[1]…). “[M]embers of the same family or household” include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … .

Here, Kirton and Cambre have no direct relationship … . The record … demonstrates that they met for the first time during the course of the court proceedings, and have no ongoing relationship … . Accordingly, the undisputed facts establish that there is no “intimate relationship” between the parties within the meaning of Family Court Act § 812(1)(e)… . Consequently, since the parties do not have an “intimate relationship” within the meaning of Family Court Act § 812 (1)(e), the Family Court lacked subject matter jurisdiction, the order of protection must be reversed, the petition denied, and the proceeding dismissed. Matter of Cambre v Kirton, 2015 NY Slip Op 06242, 2nd Dept 7-22-15 

 

The Treatment of Pre-Answer Motions to Dismiss an Action for a Declaratory Judgment Explained

The Second Department explained how pre-answer motions to dismiss are handled in the context of an action for a declaratory judgment:

Generally speaking, ” [a] motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'” … . As such, “where a cause of action is sufficient to invoke the court’s power to render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy’ (CPLR 3001; see CPLR 3017[b]), a motion to dismiss that cause of action should be denied” … .

Upon a motion to dismiss for failure to state a cause of action, a court may reach the merits of a properly pleaded cause of action for a declaratory judgment where ” no questions of fact are presented [by the controversy]'” … . Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action “should be taken as a motion for a declaration in the defendant’s favor and treated accordingly” … . North Oyster Bay Baymen’s Assn. v Town of Oyster Bay, 2015 NY Slip Op 06225, 2nd Dept 7-22-15

 

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Original Grantor Has the Power to Remove Restrictive Covenants from a Deed/Land Conveyed for Public Use Which Is Subject to a Condition Subsequent (Here a Reversionary Interest in the Deed) Is Not Covered by the Public Trust Doctrine (Legislative Approval for Conveyance for Private Use Not Required)

The Second Department upheld an agreement to remove restrictive covenants from a deed, allowing the village, to which the property had been conveyed, to retain the property free and clear from restrictions. The deed to the village from the Ortenbergs (husband and wife) included a covenant that the property would remain in its natural state for public purposes for the life of the village.  If the village ceased maintaining the property in a natural state, or if the village ceased to exist, the property reverted to the Ortenbergs, their heirs and assigns. After Mrs. Ortenberg died, Mr. Orternberg entered an agreement with the village to remove the restrictive covenants. The petitioners, owners of contiguous land, brought an Article 78 petition arguing that the agreement violated the public trust doctrine which requires the approval of the New York State Legislature before the land held for public use could be converted to private use.  The Second Department noted that the public trust doctrine does not apply to land conveyed for public use subject to a condition subsequent (the reversionary interest). The court also noted that the agreement was not subject to the State Environmental Quality Review Act (SEQRA):

Ortenberg, as the grantor, had the authority to release the Village from its obligation to perform the conditions in the deed and thereupon waive and terminate his reversionary interest (… see a… EPTL 6-5.1). Moreover, the Village was not required to obtain the approval of the New York State Legislature before mutually rescinding the underlying agreement with Ortenberg. Under the public trust doctrine, “a municipality, without specific legislative sanction, may not permit property acquired or held by it for public use to be wholly or partly diverted to a possession or use exclusively private” …, but this doctrine is inapplicable to property which is subject to a reversionary interest … . Where “the land acquired by the [municipality] for public . . . purposes was conveyed subject to a condition subsequent it is not under the control of the Legislature” … . Matter of Rappaport v Village of Saltaire, 2015 NY Slip Op 06246, 2nd Dept 7-22-15

 

Broker Entitled to a Commission Despite Purchaser’s Wish Not to Work with the Broker Any Further

The Second Department determined a broker who had negotiated extensively on behalf of the purchaser, but was not named as a broker entitled to a commission in the operative contract (because the purchaser did not want to work with that broker any further), was entitled to a commission. The court explained the relevant law:

In order to recover a real estate brokerage commission, a broker must establish: (1) that it is duly licensed, (2) that it had a contract, express or implied, with the party to be charged with paying the commission, and (3) that it was the procuring cause of the transaction . “To establish that a broker was the procuring cause of a transaction, the broker must establish that there was a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction and the consummation” … . Sholom & Zuckerbrot Realty, LLC v Gallant, 2015 NY Slip Op 06231, 2nd Dept 7-22-15

 

Analytical Criteria for a Motion to Dismiss for Failure to State a Cause of Action Where Plaintiff Submits an Affidavit/Analytical Criteria for a Motion to Amend the Complaint

The Second Department determined the motion to dismiss for failure to state a cause of action should not have been granted with respect to one of the defendants, and the motion to amend the complaint should have been granted. The court explained the proper way to handle a motion to dismiss for failure to state a cause of action when the plaintiff submits an affidavit in opposition, as well as the criteria for a motion to amend the complaint:

In considering a motion to dismiss pursuant to CPLR 3211(a)(7), “the court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … . Unless the motion is converted into one for summary judgment pursuant to CPLR 3211(c), affidavits may be received for a limited purpose only, usually to remedy defects in the complaint, and such affidavits are not to be examined for the purpose of determining whether there is evidentiary support for the pleading … . ” [A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint'” … * * *

CPLR 3025(b) provides that courts may grant leave to parties to amend or supplement their pleadings, and, “[i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” … . Here, the Supreme Court improperly denied that branch of the plaintiff’s cross motion which was pursuant to CPLR 3025(b) for leave to amend the complaint insofar as asserted against [one defendant]. No surprise or prejudice resulted from any delay in the plaintiff’s motion, and the proposed amendment is neither palpably insufficient nor patently without merit insofar as it pertains to that defendant … . Tirpack v 125 N. 10, LLC, 2015 NY Slip Op 06236, 2nd Dept 7-22-15

 

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Failure to Timely Submit a Proposed Judgment of Divorce Did Not Constitute Abandonment of the Divorce Action/Decedent’s Death Before the Judgment of Divorce Was Entered Did Not Abate the Divorce Action/The Stipulation of Settlement (Re: the Divorce), In Which the Parties Agreed They Were No Longer the Beneficiaries of Each Other’s Wills, Was Enforceable

Decedent and her husband had entered a stipulation of settlement and all matters related to their divorce had been settled at the time of decedent’s death. Only the submission of the proposed judgment of divorce remained. The stipulation of settlement included the parties’ agreement that they were no longer the beneficiaries of each other’s wills. Decedent’s husband sought letters testamentary and a share in the estate, arguing that, because the proposed judgment of divorce was not submitted by decedent, decedent had abandoned the divorce action. Surrogate’s court agreed the divorce action had been abandoned and found there was a question of fact whether the stipulation of settlement was enforceable.  The Second Department reversed, finding that the divorce action was not abandoned and the stipulation of settlement was enforceable. Decedent’s husband, therefore, had no right to share in decedent’s estate:

Contrary to the Surrogate Court’s determination, the decedent did not abandon the divorce action pursuant to 22 NYCRR 202.48 by failing to timely submit a proposed judgment within 60 days of the Supreme Court’s verbal direction. Since the 60-day time period to submit a proposed judgment under 22 NYCRR 202.48(a) does not run until “after the signing and filing of the decision directing that the [judgment] be settled or submitted,” and the court’s direction was not reduced to a written decision, there was no violation of that rule here … . Furthermore, since all issues in the divorce action had been resolved at the time of the decedent’s death, the Supreme Court had adjudged that the decedent was entitled to a divorce, and nothing remained to be done except the ministerial entry of a judgment of divorce, the decedent’s death did not abate the divorce action … . Under these circumstances “the parties’ substantive rights should be determined as if the judgment of divorce had been entered immediately as of the time nothing remained to be done except enter a judgment” …, and the stipulation of settlement is thus enforceable as a matter of law. Moreover, since the stipulation of settlement contained language which “clearly and unequivocally manifests an intent on the part of the spouses that they are no longer beneficiaries under each other’s wills” …, the stipulation of settlement revoked any testamentary disposition in Carmine’s favor under EPTL 3-4.3, regardless of whether it was ultimately followed by a formal dissolution of the marriage … . Matter of Rivera, 2015 NY Slip Op 06247, 2nd Dept 7-22-15

 

Cooperative Board’s Denial of Plaintiff’s Application to Sell His Shares in the Cooperative Was Not Tainted by Discriminatory Considerations—Denial Protected by the Business Judgment Rule

The Second Department determined the board of a cooperative dwelling acted within the scope of its authority (pursuant to the business judgment rule) when it denied plaintiff’s application to sell his shares in the cooperative to a specific buyer.  Although the board’s action would not be protected by the business judgment rule if it were tainted by discriminatory considerations, the court concluded there was no evidence discriminatory considerations played a role in the denial:

“In the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board’s determination [s]o long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith'” … . ” [D]ecision making tainted by discriminatory considerations is not protected by the business judgment rule'” … .

Here, the cooperative demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by establishing that its denial of the resale application was protected by the business judgment rule … . In particular, the cooperative demonstrated that its denial of the resale application was authorized, and done in good faith and in furtherance of the legitimate interests of the cooperative, in light of significant debt the prospective buyer held relating to a separate property. The evidence the plaintiff submitted in opposition to this showing was insufficient to raise a triable issue of fact as to whether the resale application was actually denied for a discriminatory reason, or any other reason not protected by the business judgment rule. Griffin v Sherwood Vil., Co-op “C”, Inc., 2015 NY Slip Op 06112, 2nd Dept 7-15-15

 

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Questions of Fact Whether Infant-Plaintiff’s Injury at the Hands of Other Students Was Proximately Caused by Negligent Supervision and/or Negligent Hiring and/or Retention

The Second Department determined the defendant-school’s motion for summary judgment was properly denied.  There were questions of fact concerning whether the school had notice of a student’s prior altercations with infant plaintiff and whether a teacher took appropriate steps to intervene to prevent injury to infant plaintiff. Infant plaintiff alleged he was injured when assaulted other students:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . Here, in support of their motion, the appellants failed to establish, prima facie, that they lacked sufficiently specific knowledge or notice of the dangerous conduct that allegedly caused the infant plaintiff’s injuries … . The appellants’ moving papers failed to eliminate all triable issues of fact as to whether they had knowledge of a particular student’s dangerous propensities arising from his involvement in other altercations with the infant plaintiff … . The appellants’ moving papers also failed to eliminate all triable issues of fact as to whether a teacher failed to take “energetic steps to intervene” to prevent the infant plaintiff’s injuries at the hands of a group of his classmates … . Amandola v Roman Catholic Diocese of Rockville Ctr., 2015 NY Slip Op 06099, 2nd Dept 7-15-15

 

Defendant Did Not Waive the Statute of Limitations Defense, Pled In Its Answer, by Failing to Assert It in a Pre-Answer Motion to Dismiss—Although Defendant’s Post-Answer Motion Was Ostensibly Brought Pursuant to CPLR 3211 Instead of 3212, the Procedural Irregularity Should Have Been Excused under CPLR 2001

The Second Department explained there is no requirement that a statute of limitations defense be raised solely in a pre-answer motion to dismiss.  The defense may be asserted in the answer, and subsequently raised in a summary judgment motion or at trial. Although defendant’s post-answer motion was ostensibly brought pursuant to CPLR 3211 instead of 3212, the procedural irregularity should have been excused under CPLR 2001:

CPLR 3211(a) permits a defendant who wishes to raise a defense based on the statute of limitations to do so by way of a motion to dismiss. That section provides, in relevant part, that “[a] party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of [the] statute of limitations” (CPLR 3211[a][5]). CPLR 3211(e) provides that the defendant may make the motion to dismiss before its answer is required to be served, or may include the defense in its answer and seek relief later. When the defendant does neither, the defense is waived.

“At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) . . . . Any objection or defense based upon a ground set forth in paragraph[ ] five . . . of subdivision (a) is waived unless raised either by such motion or in the responsive pleading” (CPLR 3211[e]).

Contrary to the Supreme Court’s determination, a defendant who wishes to assert the statute of limitations as a defense is not limited to asserting it by way of a pre-answer motion. The defendant may instead choose to raise that defense in its answer, and either move on that ground later in a motion for summary judgment, or wait until trial to have it determined … .

Here, the defendant did not make a pre-answer motion to dismiss the complaint, but raised the statute of limitations as an affirmative defense in its answer. Then, after the note of issue was filed, the defendant moved to dismiss the complaint on that ground. Although the defendant denominated its motion as a motion pursuant to CPLR 3211(a) to dismiss the complaint, rather than as a motion pursuant to CPLR 3212 for summary judgment dismissing the complaint, that procedural irregularity should have been excused under CPLR 2001, upon proper notice to the parties … . Wan Li Situ v MTA Bus Co., 2015 NY Slip Op 06130, 2nd Dept 7-15-15

 

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