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Plaintiffs Should Have Been Allowed to Amend the Pleadings to Conform to the Proof at Trial—No Prejudice to Defendant

The Second Department determined plaintiffs should have been allowed to amend the pleadings to conform to the proof at trial. The complaint alleged breach of contract and negligence re: the installation of foam insulation. The contract called for the installation to conform to the manufacturer’s specifications.  The negligence cause of action alleged the work was not done in a good and workmanlike manner. Because defendant would not have been prejudiced, Supreme Court should have allowed plaintiffs to amend the breach of contract cause of action to allege the work was not done in a good and workmanlike manner.  Plaintiffs’ motion pursuant to CPLR 4404(b) for judgment in their favor on the breach of contract cause of action should have been granted. The negligence cause of action, which essentially duplicated the breach of contract cause of action, should have been dismissed. With respect the post-trial motion to amend the pleadings, the Second Department wrote:

… [T]he Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was for leave to amend the pleadings to conform to the evidence adduced at trial. “Whether to permit a party to amend a pleading is generally a matter of discretion for the trial court and, on review, the Appellate Division” … . Absent prejudice, courts are free, pursuant to CPLR 3025(c), to permit the amendment of pleadings, even after trial … . Leave shall be freely given upon such terms as may be just (see CPLR 3025[b]). “This favorable treatment applies even if the amendment substantially alters the theory of recovery” … .

Here, the proposed amendment to the breach of contract cause of action does not alter the theory of recovery. The complaint alleged that the defendant failed to perform the work in a good and workmanlike manner, albeit in the context of the cause of action alleging negligence. Furthermore, the defendant, who has the burden of establishing prejudice …, failed to assert that it would be prejudiced by permitting the plaintiffs to amend the complaint to conform to the evidence adduced at trial that the work was not performed in a good and workmanlike manner … . Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 2015 NY Slip Op 04615, 2nd Dept 6-3-15

 

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Failure to Allege a “Special Relationship” Between Insurance Broker and Client Required Dismissal of the “Breach of Fiduciary Duty” Cause of Action

In determining defendants’ motion to dismiss the “breach of fiduciary duty” cause of action was properly granted, the Second Department explained that an insurance broker can be liable to a client for breach of a fiduciary duty only when a “special relationship” over and above the ordinary broker-client relationship exists.  Here the plaintiffs failed to allege the existence of a “special relationship.” The court explained the relevant law:

The common-law rule is that “an insurance broker acting as an agent of its customer has a duty of reasonable care to the customer to obtain [specifically] requested coverage within a reasonable time after the request, or to inform the customer of the agent’s inability to do so, [but] the agent owes no continuing duty to advise, guide or direct the customer insured to obtain additional coverage” … . However “[w]here a special relationship develops between the broker and client, [the] broker may be liable, even in the absence of a specific request, for failing to advise or direct the client to obtain additional coverage” … . The Court of Appeals has identified three “exceptional situations” which may give rise to such a special relationship: ” (1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on'” … . Waters Edge @ Jude Thaddeus Landing, Inc. v B & G Group, Inc., 2015 NY Slip Op 04634, 2nd Dept 6-3-15

 

Slippery Dock Was an Open and Obvious Condition—Landowner Had No Duty to Protect Against the Condition

Plaintiff was injured when he stepped on a dock from a boat.  Plaintiff alleged the dock was slippery. The Second Department determined Supreme Court should have granted defendant’s motion for summary judgment because a landowner has no duty to protect against an open and obvious condition:

A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property” … . Here, the defendant met its prima facie burden of establishing its entitlement to judgment as a matter of law … . “[A] landowner has no duty to protect or warn against an open and obvious condition that is inherent or incident to the nature of the property, and that could be reasonably anticipated by those using it” … . A slippery condition on a dock is necessarily incidental to its nature and location near a body of water … . Mossberg v Crow’s Nest Mar. of Oceanside, 2015 NY Slip Op 04618, 2nd Dept 6-3-15

 

Complaint Sufficiently Alleged a Cause of Action for Unjust Enrichment—an Action Which Only Applies in the Absence of an Express Agreement

The Second Department determined Supreme Court properly granted the motion to dismiss the breach of contract cause of action because, pursuant to the “doctrine of definiteness,”  the terms of the purported contract were too indefinite and uncertain to be enforceable.  However, Supreme Court should not have dismissed the unjust enrichment cause of action. The court noted that unjust enrichment, or quasi contract, only applies in the absence of an express agreement and is really not a contract, but rather an equitable obligation. Here plaintiff alleged that defendant took possession of millions of dollars worth of watches and refused to pay for them. Therefore, the complaint alleged the elements of unjust enrichment—(1) defendant was enriched at (2) plaintiff’s expense and (3) it is against equity to allow the defendant to keep what is sought to be recovered:

The doctrine of definiteness, well established in contract law, “means that a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to” … .

“[T]o recover for unjust enrichment, a plaintiff must show that (1) the [defendant] was enriched, (2) at [the plaintiff’s] expense, and (3) that it is against equity and good conscience to permit [the defendant] to retain what is sought to be recovered'” … . Such quasi contract only applies in the absence of an express agreement, and is not really a contract at all, but rather an equitable obligation imposed in order to prevent a party’s unjust enrichment … . Here, the complaint alleges that [defendant] received a benefit when he received luxury watches worth millions of dollars from [plaintiff’s] predecessor in interest, “with the understanding and reasonable expectation that [defendant] would pay for those goods,” and that [defendant] was “personally enriched by taking the millions of dollars worth of luxury watches, while failing and refusing to pay for said merchandise.” Such allegations are sufficient to state a cause of action alleging unjust enrichment … . UETA Latinamerica, Inc. v Zafir, 2015 NY Slip Op 04633, 2nd Dept 6-3-15

 

Abutting Property Owners Not Liable for Falls in Sidewalk Tree Wells (NYC)

The Second Department noted that, pursuant to the New York City Administrative Code, abutting property owners are not responsible for falls within city-owned tree wells (within sidewalks). Defendant’s motion for summary judgment should have been granted:

The [defendant] argued that it could not be held liable under § 7-210 of the Administrative Code of the City of New York (hereinafter the Administrative Code), which imposes tort liability on abutting property owners for the failure to maintain city-owned sidewalks in a reasonably safe condition, because the plaintiff fell in a tree well, which is not considered to be part of a sidewalk for purposes of Administrative Code § 7-210. The Supreme Court denied the motion.

A tree well does not fall within the definition of “sidewalk” as that term is defined by section 7-210 of the Administrative Code and thus, “section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells” … .

Here, the [defendant] established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff fell in a tree well, not any part of the surrounding sidewalk, and that it had no duty to maintain the tree well, as that tree well was owned by the City of New York … . In opposition, the plaintiff failed to raise a triable issue of fact. Newkirk v City of New York, 2015 NY Slip Op 04620, 2nd Dept 6-3-15

 

Request for Mugshots and Identifying Information Re: Arrestees for Posting on Petitioner’s Website Denied—Posting of Such Information Would Constitute an Unwarranted Invasion of Privacy

Petitioner sought mugshots and other identifying information re: arrestees from the NYC Department of Corrections (DOC) for posting on his website.  Petitioner charged a fee for removing a photo from the site.  DOC denied the request. Supreme Court denied the Article 78 petition seeking reversal of the DOC’s denial.  The Second Department determined DOC did not meet its burden of demonstrating the applicability of any of the statutory exemptions from disclosure in the Public Officers Law (DOC’s assertions were “conclusory”), but went on to determine release of the photos and information would constitute an unwarranted invasion of privacy and may endanger the life or safety of the arrestees:

The agency’s burden of demonstrating that the material requested falls within a statutory exemption “requires the [agency] to articulate a “particularized and specific justification for denying access”‘” … . ” Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed'” … .

Pursuant to Public Officers Law § 87(2)(b), an agency “may deny access to records” where disclosure “would constitute an unwarranted invasion of personal privacy under the provisions of [Public Officers Law § 89(2)(b)].” “[W]here none of the [exemptions under Public Officers Law § 89(2)(b) are] applicable, a court must decide whether any invasion of privacy . . . is “unwarranted” by balancing the privacy interests at stake against the public interest in disclosure of the information'” … .

Here, the DOC proffered only conclusory assertions that denial of the requested records “would result in economic or personal hardship to the subject party,” which was insufficient to demonstrate the applicability of Public Officers Law § 89(2)(b)(iv) … . The DOC also failed to establish that any individuals received an express or implied promise of confidentiality from it, as required to demonstrate the applicability of Public Officers Law § 89(2)(b)(v) … .

In view of the DOC’s failure to demonstrate the applicability of any exemptions under Public Officers Law § 89(2)(b), this Court must determine whether disclosure would constitute an “unwarranted invasion of personal privacy” by ” balancing the privacy interests at stake against the public interest in disclosure of the information'” … . Here, the petitioner has not set forth any direct public interest in disclosure of the records at issue, which were sought for the sole purpose of posting personal information and photographs of individuals currently or formerly in the custody of the DOC on a website that collects payment in exchange for removing the photographs. On the other hand, the record reflects that the privacy interests of numerous individuals are implicated, including those individuals who were ultimately acquitted of any criminal charges and adolescents between the ages of 16 and 18 who are presently or were in the custody of the DOC. Consequently, under the particular circumstances of this case, a balancing of the privacy interests at stake against any public interest in disclosure necessitates a determination that disclosure of the records at issue would constitute an “unwarranted invasion of personal privacy” (Public Officers Law § 87[2][b]…). Matter of Prall v New York City Dept. of Corrections, 2015 NY Slip Op 04653, 2nd Dept 6-3-15

 

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Res Ipsa Locquitur Doctrine Not Available Where Multiple Defendants Did Not Have Concurrent Control Over the Alleged Malpractice, i.e., Leaving Surgical Packing in the Wound

The Second Department determined the hospital defendants and the defendant rehabilitation facility (Parker) were entitled to summary judgment in a case where surgical packing was left in the wound.  The surgeon was not an employee of the hospital and there were no allegations hospital staff negligently followed the surgeons instructions.  The court explained why the doctrine of res ipsa loquitur did not apply to the hospital defendants and the defendant rehabilitation facility:

The plaintiff relies on the doctrine of res ipsa loquitur to relieve him of the burden of proving which defendant had been negligent and when. Although res ipsa loquitur may be utilized where more than one defendant may have been in control …, the responsible defendants must share exclusive control of the instrumentality causing injury. Here, neither the hospital defendants nor Parker were acting jointly or concurrently with each other. They did not have concurrent control of the surgical packing that allegedly caused the injury. The treatment here was performed by different entities at different times in different locations. This is not a situation where several physicians participated in a single surgical procedure and, as a result, have the burden to “explain their actions and conduct in the operating room wherein plaintiff was injured” … . Accordingly, under these circumstances, the plaintiff’s reliance upon the doctrine of res ipsa loquitur in opposition to the motion is misplaced, inasmuch as he failed to raise a triable issue of fact as to the applicability of the requisite elements of the doctrine … . Buesko v Gordon, 2014 NY Slip Op 03969, 2nd Dept 6-4-14

 

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As a Contingent Remainder of the Subject Trust, the “Charitable Trust” Had the Right to Intervene in a Proceeding to Remove and Replace the Trustee of the Subject Trust

The Second Department determined that the contingent remainder, Charitable Trust, of the subject trust had standing to intervene in a proceeding which removed the father and appointed the mother trustee of the subject trust:

…[T]he Charitable Trust, as a contingent remainder of the subject trust, has standing to intervene in this proceeding …, and a real and substantial interest in the outcome of the proceeding …. Thus, the Supreme Court should have granted it leave to intervene as a party respondent (see CPLR 1012[a];[2], [3]…). Upon granting the Charitable Trust leave to intervene as a party respondent, the Supreme Court should have granted that branch of the motion which was to vacate the order …removing the father as the trustee of the subject trust and appointing the mother as successor trustee of the subject trust, and thereupon directed that the petition be amended by adding the Charitable Trust as a party respondent and that the Charitable Trust be permitted to serve a verified answer and counterclaims if it be so advised. Matter of Ramm v Allen, 2014 NY Slip Op 04015, 2nd Dept 6-4-14

 

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The Amount of Alcohol Consumed by Defendant and the Extent of His Intoxication at the Time of the Vehicle-Accident Evinced “Wanton and Reckless” Conduct Which Supported a Punitive-Damages Award

The Second Department determined the award of punitive damages by the jury was supported by clear and convincing evidence.  Defendant was intoxicated at the time of the vehicle accident.  The fact that defendant was driving while intoxicated would not, standing alone, warrant punitive damages. However, other factors, including defendant’s high blood-alcohol level and his “incoherence” at the time of the accident evinced the requisite “wanton and reckless” conduct:

Whereas compensatory damages are intended to assure that the victim receives “fair and just compensation commensurate with the injury sustained,” punitive damages are meant to “punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future” … . Evidence that a defendant was driving while intoxicated is insufficient, standing alone, to justify the imposition of punitive damages … . However, driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in “wanton and reckless” conduct evincing heedlessness and an utter disregard for the safety of others … . Chiara v Dernago, 2015 NY Slip Op 04444, 2nd Dept 5-27-15

 

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Conclusory Affidavit Insufficient to Meet Burden of Demonstrating Documents Were Privileged Because the Documents Were Prepared Solely In Anticipation of Litigation—Motion for a Protective Order Limiting Discovery Properly Denied

The Second Department determined the appellants were not entitled to a protective order precluding discovery of documents pursuant to CPLR 3103.  The appellants argued the documents were privileged because they were prepared in anticipation of litigation.  However, the conclusory attorney affidavit offered in support of the protective order did not meet the appellants’ burden to demonstrate the specific documents sought were “prepared solely in anticipation of litigation or trial…”:

CPLR 3101(a) mandates “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Unlimited disclosure is not mandated, however, and a court may issue a protective order pursuant to CPLR 3103 denying, limiting, conditioning or regulating the use of any disclosure device “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (CPLR 3103[a]…). “The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed” … .

In support of that branch of their motion which was pursuant to CPLR 3103 for a protective order preventing the disclosure of certain witness statements and certain investigation and inspection reports, the appellants contended that such evidence was privileged as it was prepared in anticipation of litigation (see CPLR 3101[d][2]). “The burden of proving that a statement is privileged as material prepared solely in anticipation of litigation or trial is on the party opposing discovery” … . Such burden is met “by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” … .

Here, the appellants failed to meet their burden of establishing that the requested material was prepared solely in anticipation of litigation and, therefore, is protected from disclosure by the qualified immunity privilege of CPLR 3101(d)(2). An attorney’s affirmation containing conclusory assertions that requested materials are conditionally immune from disclosure pursuant to CPLR 3101(d)(2) as material prepared in anticipation of litigation, without more, is insufficient to sustain a party’s burden of demonstrating that the materials were prepared exclusively for litigation … . Ligoure v City of New York, 2015 NY Slip Op 04456, 2nd Dept 5-27-15

 

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