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Defendant-Employer’s Motion for Summary Judgment Properly Denied—Defendant Did Not Submit Proof that Defendant’s Employee Was Not Acting Within the Scope of Employment When Employee Removed and Disseminated Photos from Plaintiff’s Cell Phone and Defendant Did Not Submit Proof Demonstrating It Did Not Know of the Employee’s Propensity for Such Conduct

The Second Department determined the motion for summary judgment made by defendant-employer, R & K,  was properly denied. The plaintiff alleged that defendant’s employee, Press, removed and disseminated photographs of her from a cell phone plaintiff had left with defendant for repair.  The Second Department noted that an employer can be liable for the negligence and the intentional torts of an employee, provided that the employee was acting within the scope of employment.  The court explained the criteria for vicarious liability under the doctrine of respondeat superior as well as direct liability for negligent hiring and supervision:

“Pursuant to the doctrine of respondeat superior, an employer can be held vicariously liable for torts committed by an employee acting within the scope of employment” … . “Intentional torts as well as negligent acts may fall within the scope of employment” … . Liability will not attach for torts committed by an employee acting solely for personal motives unrelated to the furtherance of the employer’s business …, or for conduct which could not have been reasonably expected by the employer … .

Here, R & K failed to establish, prima facie, that it could not be held vicariously liable for Press’s alleged acts, as it submitted no transcripts of testimony or affidavits from any of its employees, or business records, to support its contention that Press was acting outside the scope of his employment when he accessed and disseminated photographs from the plaintiff’s cell phone. * * *

“To establish a cause of action based on negligent hiring and supervision, it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . R & K failed to submit any proof establishing that it did not know and should not have known about Press’s alleged propensity to engage in the conduct at issue here, or that it was not negligent in hiring Press … . Hoffman v Verizon Wireless Inc, 2015 NY Slip Op 01416, 2nd Dept 2-18-15

 

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Elements of a Constructive Trust Not Adequately Pled

The Second Department determined plaintiff’s complaint did not state a cause of action for a constructive trust.  Plaintiff alleged she was 50% owner of rental property ostensibly owned by the defendant, her uncle, based upon her uncle’s sharing the rent with plaintiff’s father (now deceased).  The Second Department noted that there was no allegation of a promise running from the uncle to the plaintiff, an essential element of a constructive trust.  The court further noted that plaintiff’s claim she inherited her father’s 50% interest in the property must be adjudicated as part of her father’s estate proceedings:

In general, a constructive trust may be appropriate in situations ” [w]hen property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest'” … . The necessary elements for imposition of a constructive trust are (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance on that promise, and (4) unjust enrichment … .

Here, contrary to the Supreme Court’s determination, the plaintiff’s complaint, as amplified by her affidavit, does not adequately plead a cause of action to impose a constructive trust on the … property. While a confidential relationship exists between the plaintiff and the defendant as uncle and niece, the complaint does not allege the existence of a promise between the plaintiff and the defendant, or a transfer in reliance upon a promise between them.

Further, … the plaintiff’s allegations in support of a theory that she should be deemed a 50% owner of the … property do not adequately plead the elements of a constructive trust. Her claim of entitlement is based on the laws of inheritance, and must be pursued by the executor or administrator of her father’s estate … . Igneri v Igneri, 2015 NY Slip Op 01419, 2nd Dept 2-18-15

 

Cause of Action for Fraudulent Concealment Must Allege a Basis for the Existence of a Duty to Disclose

In affirming the dismissal of a cause of action alleging fraudulent concealment (no basis for a duty to disclose was alleged), the Second Department explained the required elements:

To properly plead a cause of action for fraud, a plaintiff must allege all of the following requisite elements: (1) the defendant made a misrepresentation or a material omission of fact which was false and which the defendant knew to be false; (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it; (3) the plaintiff justifiably relied on the misrepresentation or material omission; and (4) injury … . To sustain a cause of action for fraudulent concealment, the plaintiff must further allege a fifth element, namely, that the defendant had a duty to disclose the material information … . Bannister v Agard, 2015 NY Slip Op 01408, 2nd Dept 2-18-15

 

County (Nassau) Must Indemnify Special Districts for Ad Valorem Tax Refunds Paid by the Special Districts

The Second Department determined that special districts (sanitation and garbage) which were obligated to refund ad valorem taxes wrongly collected from the New York Water Service Corporation were entitled to be reimbursed by the county:

… “[P]ursuant to the County Guaranty, the County is liable for refunds of tax payments made in connection with levies for special ad valorem taxes” … . We have also held that “special ad valorem levies are not assessments for benefit’ within the meaning of former Nassau County Administrative Code § 6-26.0(b)(3)(a)-(b) and, thus, they cannot be charged back to the special districts in the following tax year” … . …[T]he County entities must indemnify the special districts for any refunds paid by the special districts … . New York Water Serv Corp v Supervisor of Town of Oyster Bay, 2015 NY Slip Op 01431, 2nd Dept 2-18-15

 

“Special Exception Permit” Defined

In affirming the denial of an application for a “special exception permit,” the Second Department explained the relevant criteria:

A “special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right” … . The burden on an owner in seeking a special exception permit is, therefore, “considerably less” than the burden on an owner seeking a use variance … . An applicant for a special exception permit need only show that it has complied with every legislatively imposed condition on the permitted use … . If the applicant fails to comply with any of the conditions set forth in the ordinance, the zoning authority may deny the application … . Matter of Nathan v Board of Appeals of Town of Hempstead, 2015 NY Slip Op 01457, 2nd Dept 2-18-15

 

“Equitable Subrogation” Doctrine Defined

The Second Department explained the concept of “equitable subrogation” re: paying the debt of another:

The doctrine of equitable subrogation “is broad enough to include every instance in which one party pays a debt for which another is primarily answerable and which in equity and good conscience should have been discharged by the latter, so long as the payment was made either under compulsion or for the protection of some interest of the party making the payment, and in discharge of an existing liability” … . Bank of NY v Penalver, 2015 NY Slip Op 01406, 2nd Dept 2-18-15

 

Supreme Court Has Power to Issue Judicial Consent to Settlement Nunc Pro Tunc Where Workers’ Compensation Carrier Failed to Timely Seek Consent to a Third-Party Settlement from the Special Funds Conservation Commission

The Second Department determined Supreme Court erred when it held that it not have the power to provide judicial consent to a third-party settlement nunc pro tunc.  The Second Department explained the requirements for consent to a third-party settlement where the Special Fund will reimburse the carrier:

The Workers’ Compensation Board has previously determined that where, as here, a carrier failed to timely obtain consent of the Special Funds Conservation Committee to settlement of a personal injury action, the carrier may still obtain reimbursement from the Special Disability Fund, but only if it obtains a nunc pro tunc order from a court directing the Special Funds Conservation Committee to consent … . A request to compel nunc pro tunc consent to a settlement is addressed to the discretion of the Supreme Court … . In seeking a discretionary nunc pro tunc order from a court directing consent to settlement, a petitioner must first establish that (1) the delay in seeking judicial relief was not caused by the petitioner’s fault or neglect; (2) the amount of the settlement was reasonable; and (3) the party whose consent is sought was not prejudiced by the delay … .

Here, because the Supreme Court erroneously believed that it had no power to issue a nunc pro tunc order directing the Special Funds Conservation Committee to consent to settlement, it did not exercise its discretion. Accordingly, we remit the matter to the Supreme Court … . Matter of Empire State Transp Workers’ Compensation Trust v Special Funds Conservation Comm, 2015 NY Slip Op 01635, 2nd Dept 2-15-15

 

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Criteria for Review of State Liquor Authority (SLA) Determination Explained

In affirming Supreme Court’s determination that the State Liquor Authority (SLA) should have granted petitioner’s application for a liquor license, the Second Department explained its review powers:

In reviewing the SLA’s determination of whether the public convenience and advantage would be served by granting or denying an application for a retail liquor license, the inquiry of the court is strictly limited to whether the SLA acted arbitrarily and capriciously … . A determination is “arbitrary and capricious when it is taken without sound basis in reason or regard to the facts” … .

Judicial review of a determination by the SLA “is limited to the grounds invoked by the agency” … . “If those grounds are inadequate or improper, the court is powerless to affirm the administrative [determination] by substituting what it considers to be a more adequate or proper basis” … . Furthermore, reliance upon an improper basis for its determination requires that the determination be annulled, regardless of whether the SLA also relied, in part, upon valid considerations … . Matter of Costco Wholesale Corp v New York State Liquor Auth, 2015 NY Slip Op 01274, 2nd Dept 2-11-15

 

Dismissal for Failure to State a Cause of Action Is Not Given Res Judicata Effect

The Second Department noted that a dismissal for failure to state a cause of action is not a determination on the merits and will not be given res judicata effect:

“As a general rule, a dismissal for failure to state a cause of action is not on the merits and, thus, will not be given res judicata effect” … . Since the dismissal of the prior action was not on the merits, the Supreme Court should have denied that branch of the moving defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss, on the ground of res judicata… . Hock v Cohen, 2015 NY Slip Op 01243, 2nd Dept 2-11-15

 

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Failure to Timely Respond to a Notice to Admit Not an Admission of the Matters Stated Therein—Notice Improperly Sought Admissions that Went to the Heart of the Controversy

12The Second Department determined defendants’ failure to timely respond to plaintiff’s notice to admit was not an admission of the matters stated therein because the notice sought admissions which went to the heart of the controversy:

“The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial” … . Contrary to the plaintiff’s contention, his notice to admit improperly sought the defendants’ admissions concerning a matter that went to the heart of the controversy in this case … . Since the admissions sought were improper, the defendants’ failure to timely respond to the subject notice should not be deemed an admission of the matters stated therein … . Williams v City of New York, 2015 NY Slip Op 01268, 2nd Dept 2-11-15

 

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