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When the One-Year Statute of Limitations Begins to Run for False Arrest, Malicious Prosecution and Assault and Battery Causes of Action Explained/Elements of False Arrest and Malicious Prosecution Explained

The Second Department explained when the one-year statute of limitations begins to run for false arrest, malicious prosecution and assault and battery causes of action.  The court further explained the elements of false arrest and malicious prosecution:

“Causes of action based on false arrest . . . accrue upon the subject’s release[ ] from confinement’ and are governed by a one-year statute of limitations” … . “The one-year statute of limitations applicable to a cause of action for malicious prosecution (see CPLR 215[3]) does not begin to run until favorable termination of the underlying criminal proceeding” … . * * *

…Supreme Court erred in denying that branch of the … defendants’ motion which was for summary judgment dismissing the third cause of action, which alleged assault and battery, insofar as asserted against them as time-barred. That cause of action is also governed by the one-year statute of limitations set forth in CPLR 215 (see CPLR 215[3]…). It is undisputed that the alleged assault and battery occurred more than one year prior to the commencement of this action. * * *

“A civilian defendant who merely furnishes information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution” … . To be held liable for false arrest, “the defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his [or her] own volition'” … . Similarly, in order for a civilian defendant to be considered to have initiated the criminal proceeding so as to support a cause of action based on malicious prosecution, ” it must be shown that defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act'” … . “Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or District Attorney… . Williams v CVS Pharmacy, Inc., 2015 NY Slip Op 02115, 2nd Dept 3-18-15

 

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Invoices Together with Purchase Orders Created an Agreement to a Reduced Sales-Contract Statute of Limitations

The Second Department determined the sales-contract statute of limitations was validly reduced from four years to one year by the terms of invoices:

While UCC 2-725(1) generally provides that a cause of action alleging breach of a sales contract must be commenced within four years after it has accrued, that provision also allows the parties to a sales contract to “reduce the period of limitation to not less than one year” (UCC 2-725[1]…). Here, the defendants met their initial burden by demonstrating that their invoices containing the one-year limitation period constituted an acceptance that, together with the plaintiff’s purchase order, was effective in forming a contract, and that the one-year limitation period, an additional term set forth in the invoices, was presumed to have become part of this contract between the parties unless one of the three exceptions in UCC 2-207(2) applied (see UCC 2-207[1], [2]…). It is undisputed that the plaintiff’s action was not commenced within one year from the alleged breach, as required by the additional term. The burden then shifted to the plaintiff, as the party opposing the inclusion of the additional term, to raise a question of fact as to whether one of the three exceptions under UCC 2-207(2) was applicable … . The plaintiff failed to satisfy its burden.

Contrary to the plaintiff’s contention, the abbreviated period of limitation was not against public policy (see CPLR 201; UCC 2-725[1]…). ” Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced'” … . ” Where the party against which an abbreviated Statute of Limitations is sought to be enforced does not demonstrate duress, fraud, or misrepresentations in regard to its agreement to the shortened period, it is assumed that the term was voluntarily agreed to'” … . State of Narrow Fabric, Inc. v UNIFI, Inc., 2015 NY Slip Op 02110, 2nd Dept 3-18-15

 

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Violation of Confrontation Clause Was Harmless Error

The Second Department determined the admission of hearsay DNA evidence (a report made by an analyst who did not testify), although it violated the Confrontation Clause, was harmless error because the inadmissible evidence was cumulative:

The defendant correctly contends that his rights under the Confrontation Clause of the Sixth Amendment were violated when the Supreme Court admitted a nontestifying DNA analyst’s report linking the defendant to DNA evidence recovered at the crime scene … .

“Confrontation Clause violations are subject to a constitutional harmless error analysis” … . “Constitutional error requires reversal unless the error’s impact was harmless beyond a reasonable doubt'” … . “This determination is based on a review of the entire record”… ..

Here, in addition to the erroneously admitted report, the People presented evidence directly linking the defendant to the burglary. Specifically, the nontestifying analyst’s supervisor testified that she herself analyzed the raw data from the evidence collected at the crime scene and the DNA collected from the defendant and drew her own conclusions. Thus, the erroneously admitted report was cumulative, as the expert who did testify reached that same conclusion after comparing the same raw data relied upon by the nontestifying analyst. Since there was no reasonable possibility that the erroneously admitted report contributed to the defendant’s conviction, the error was harmless beyond a reasonable doubt … . People v Cartagena, 2015 NY Slip Op 02136, 2nd Dept 3-18-15

 

Amendment of Summons and Complaint after the Statute of Limitations Has Run

In affirming the amendment of a summons and complaint, (apparently) after the running of the statute of limitations, the Second Department explained the relevant law:

CPLR 305(c) authorizes the court, in its discretion, to “allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced.” Where the motion is to cure “a misnomer in the description of a party defendant,” it should be granted even after the statute of limitations has run where “(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought” … . “Such amendments are permitted where the correct party defendant has been served with process, but under a misnomer, and where the misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was in fact seeking to sue” … . “However, while CPLR 305(c) may be utilized to correct the name of an existing defendant . . . it cannot be used by a party as a device to add or substitute a party defendant'” … , and it may not be used “to proceed against an entirely new defendant, who was not served, after the expiration of the statute of limitations” … . Sanders v 230fa, LLC, 2015 NY Slip Op 02107, 2nd Dept 3-18-15

 

Defendant Did Not Have the Right to Be Present During Discussion of Exclusion of a Sworn Juror

The Second Department determined the defendant’s absence from a conference re: whether a sworn juror was grossly unqualified to serve did not violate defendant’s right to be present at all material stages of the trial:

The defendant’s right to be present at all material stages of trial was not violated by his absence from an in camera interview with a sworn juror, conducted in the presence of the prosecutor and defense counsel, to determine whether that sworn juror was grossly unqualified to serve (see CPL 270.35[1]). A defendant’s statutory right to be present at trial (see CPL 260.20) “extends to all material stages of the trial, including ancillary proceedings in which defendant’s presence could have a substantial effect on [his or her] ability to defend against the charges'” … . A conference to determine whether a sworn juror should be excluded (see CPL 270.35) is an ancillary proceeding, at which the defendant’s presence is “only necessary where defendant has something valuable to contribute'” … .

Under the circumstances presented here, the defendant’s presence at the conference could not have had a substantial effect on his ability to defend the charges, and the defendant could not have made a valuable contribution to the conference … . People v Peoples, 2015 NY Slip Op 02143, 2nd Dept 3-18-15

 

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Sua Sponte Dismissal of Complaint Not Justified/Lack of Standing Not a Jurisdictional Defect

In a foreclosure action, the Second Department noted that Supreme Court did not have the authority to, sua sponte, dismiss the complaint, even if the plaintiff did not have standing, which is not a jurisdictional defect.  (The Second Department determined the plaintiff did in fact have standing.):

The Supreme Court also erred in, sua sponte, directing dismissal of the complaint. “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, the Supreme Court was not presented with extraordinary circumstances warranting sua sponte dismissal of the complaint. Even if the plaintiff had lacked standing it would not have constituted a jurisdictional defect and would not warrant a sua sponte dismissal of the complaint … . Citimortgage, Inc. v Chow Ming Tung, 2015 NY Slip Op 02087, 2nd Dept 3-18-15

 

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Court Should Have Taken Judicial Notice of Father’s False Allegations in Prior Proceedings in the Same Court/Court Should Not Have Drawn an Adverse Inference from Mother’s Failure to Call a Witness without Informing Mother of Its Intent to Do So

The Second Department, in reversing Family Court finding that mother committed the family offense of assault, determined Family Court should have taken judicial notice of father’s false allegations in custody proceedings in the same court and should not have drawn an adverse inference from the mother’s failure to call a witness without giving mother the opportunity to explain the witness’ absence:

The Family Court improperly rejected the mother’s request that it take judicial notice of the determination in the parties’ prior custody proceeding, in the same court, in which the father admittedly made false allegations. That proceeding, and the court’s findings therein regarding the father, were relevant to the court’s assessment of the father’s credibility in this matter. Accordingly, the court improvidently exercised its discretion in declining to take judicial notice of the prior custody proceeding … .

Additionally, the Family Court erred in drawing a negative inference based on the mother’s failure to call the child’s maternal grandmother as a witness. ” A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party'” … . The court sua sponte drew a negative inference based on the mother’s failure to call the grandmother as a witness, and failed to advise the mother that it intended to do so … . Matter of Spooner-Boyke v Charles, 2015 NY Slip Op 02132, 2nd Dept 3-18-15

 

Even Employees “Working Off the Books” Are Barred from Suing Employer in Tort

The Second Department determined plaintiff’s suit against his employer was barred by the Workers’ Compensation Law, even if plaintiff was “working off the books:”

Workers’ compensation benefits are [t]he sole and exclusive remedy of an employee against his employer for injuries in the course of employment” … . “This precludes suits against an employer for injuries in the course of employment” … . “[W]henever it appears or will appear from a plaintiff’s pleading, bill of particulars or the facts that the plaintiff was an employee of the defendant, the obligation of alleging and, in any event, of proving noncoverage falls on the plaintiff” … .

Here, in support of their motion for summary judgment, the defendants presented evidence that the plaintiff was an employee of the defendant N.B. Painting and Decorating Corp. (hereinafter N.B. Painting), who was injured in the course of his employment, and that N.B Painting maintained a Workers’ Compensation policy on the date of the accident. Accordingly, the defendants established prima facie that the exclusivity provisions of Workers’ Compensation Law § 11 barred the plaintiff from seeking a recovery in tort against N.B. Painting … .

In opposition, the plaintiff failed to raise a triable issue of fact. “[A]ll employees of an employer are deemed covered by the employer’s workers’ compensation policy, regardless of whether an employee may have been working off the books’, where the employer has secured a policy of insurance coverage” … . De Los Santos v Butkovich, 2015 NY Slip Op 02089, 2nd Dept 3-18-15

 

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Proof of General Cleaning Procedures Not Sufficient for Summary Judgment to Defendant in a Slip and Fall Case

In a slip and fall case, reversing Supreme Court, the Second Department explained (once again) that proof of general cleaning procedures (as opposed to proof when the area in question was last inspected or cleaned) is not sufficient to warrant summary judgment to the defendant:

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it … . To meet their burden on the issue of lack of constructive notice, the defendants were required to offer some evidence as to when the accident site was last cleaned or inspected prior to the injured plaintiff’s fall … . “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … . Here, the affidavit of the Safety and Security Manager for the subject IKEA store, which was submitted in support of the defendants’ motion, only provided information about the store’s general cleaning and inspection procedures concerning the promenade, and did not show when the subject area had last been inspected or cleaned prior to the happening of the accident … . Thus, the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly dangerous condition … . Furthermore, the defendants failed to establish, prima facie, that the alleged condition was too trivial to be actionable, or was open and obvious and not inherently dangerous as a matter of law. Barris v One Beard St., LLC, 2015 NY Slip Op 02083, 2nd Dept 3-18-15

 

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Plaintiff Could Not Demonstrate Cause of Her Fall Without Resorting to Speculation

The Second Department determined summary judgment was properly granted to the defendant in a slip and fall case because the plaintiff could not identify the case of her fall:

“Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” … .

“[A] plaintiff’s inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” … . “Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a slip and fall accident, any determination by the trier of fact as to causation would be based upon sheer conjecture” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting a transcript of the plaintiff’s deposition testimony, which demonstrated that the plaintiff could not identify the cause of her fall without resorting to speculation … . Mitgang v PJ Venture HG, LLC, 2015 NY Slip Op 02101, 2nd Dept 3-18-15

 

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