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Action Should Not Have Been Dismissed Pursuant to CPLR 3211 (a)(4)—Action Was Not “Sufficiently Similar” to Pending Action

The Second Department determined Supreme Court should not have dismissed an action pursuant to CPLR 3211 (a)(4) because the dismissed action was not “sufficiently similar” to a pending action.  The initial personal injury action stemmed from alleged Labor Law violations. The second action, alleging a fraudulent conveyance, stemmed from the defendant’s transfer of the property where plaintiff was injured:

Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed on the ground that there is another action pending between the same parties for the same cause of action … . A court may dismiss an action pursuant to CPLR 3211(a)(4) where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same … . It is not necessary that “the precise legal theories presented in the first action also be presented in the second action” … . The critical element is whether both suits arise out of the same subject matter or series of alleged wrongs … .

Here, the personal injury action and the instant action do not arise out of the same subject matter or series of alleged wrongs, and do not seek the same or substantially similar relief. The personal injury action arises from the defendants’ alleged breach of Labor Law § 200 and the common-law duty to provide a safe workplace, and their alleged violations of the safety requirements imposed on property owners by Labor Law §§ 240(1) and 241(6). The sole relief sought in the personal injury action is a money judgment for damages. The instant action arises from the post-accident transfer …, and the plaintiff seeks various relief authorized by Debtor and Creditor Law article 10, including setting aside the alleged fraudulent conveyance. Contrary to the defendants’ contention, the claims asserted in both actions are not “sufficiently similar” to warrant dismissal simply because the plaintiff raised an argument pertaining to constructive fraud as a basis for the imposition of liability … for violation of Labor Law § 240(1) in the personal injury action. Jadron v 10 Leonard St LLC, 2015 NY Slip Op 00730, 2nd Dept 1-28-15

 

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Question of Fact Whether Plaintiff-Employee Indicated Employer’s Sexual Advances Were “Unwelcome”–Dismissal of Employment Discrimination Complaint Reversed

The Second Department reversed Supreme Court, finding that there were questions of fact whether plaintiff-employee indicated by her conduct that defendant’s (Cohen’s) sexual advances toward plaintiff were “unwelcome” and whether plaintiff’s termination was for a non-discriminatory reason.  Supreme Court erred when it focused on whether plaintiff participated in sexual activity “voluntarily:”

The New York State Human Rights Law (Executive Law § 296, et seq.) and the New York City Human Rights Law (Administrative Code of the City of New York § 8-107) both make it an unlawful discriminatory practice for an employer to refuse to hire, to discharge, or to discriminate in compensation or in terms, conditions, or privileges of employment because of the sex of any individual (Executive Law § 296[1][a]; Administrative Code of the City of New York § 8-107[1][a]). Moreover, under both the State and City Human Rights Laws, it is unlawful to retaliate against an employee for opposing discriminatory practices (see Executive Law § 296[1][e], [7]; Administrative Code of the City of New York § 8-107[7]).

To establish its prima facie entitlement to judgment as a matter of law in a retaliation case commenced pursuant to either the New York State or New York City Human Rights Law, “a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant’s explanations were pretextual” … . To prevail on a motion for summary judgment dismissing a cause of action alleging discrimination in violation of the New York State Human Rights Law, a defendant must demonstrate “either plaintiff’s failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for [the] challenged actions, the absence of a material issue of fact as to whether [its] explanations were pretextual” … . With respect to a cause of action alleging discrimination in violation of the New York City Human Rights Law, where a defendant moves for summary judgment and has ” put forward evidence of one or more nondiscriminatory motivations for its actions,’ a court should turn to the question of whether the defendant has sufficiently met its burden, as the moving party, of showing that, based on the evidence before the court and drawing all reasonable inferences’ in the plaintiff’s favor, no jury could find the defendants liable under any evidentiary route” … . * * *

… [T]he evidence submitted by the defendants, which included a transcript of the plaintiff’s deposition testimony, failed to eliminate all triable issues as to whether Cohen used his position to intimidate her into the relationship and as to whether the sexual conduct on his part was, in fact, “unwelcome.” In this regard, the plaintiff, at her deposition, consistently testified that the sexual relations were not welcome, that she felt as though she had no other choice but to participate, and that when she complained to Cohen, he made it very clear that there would be repercussions if she did not participate. In considering this testimony, we recognize that the question of whether particular conduct was “unwelcome” presents “difficult problems of proof and turns largely on credibility determinations committed to the trier of fact” … . The Supreme Court appears to have focused on the voluntariness of the plaintiff’s participation in the claimed sexual episodes. However, “the fact that sex-related conduct was voluntary,’ in the sense that the [plaintiff] was not forced to participate against her will, is not a defense,” and the “correct inquiry is whether [the plaintiff] by her conduct indicated that the alleged sexual advances were unwelcome” … . Overbeck v Alpha Animal Health PC, 2015 NY Slip Op 00736, 2nd Dept 1-28-15

 

Cause of Action Based Upon a Legal Theory Which Could Have Been Raised in a Prior Action Stemming from the Same Events Precluded by the Doctrine of Res Judicata

The Second Department determined Supreme Court properly dismissed a cause of action which originated from the same events which gave rise to a prior action and merely relied on a different legal theory than was raised in the prior action.  The court explained the criteria for the application of the doctrine of res judicata:

” Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding'” … . “Res judicata thus operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding'” … .

The third cause of action asserted herein could have been raised in a prior action …, as it originates from the same events which gave rise to the prior action, and merely relies upon a different legal theory. Pedote v STP Assoc LLC, 2015 NY Slip Op 00738, 2nd Dept 1-28-15

 

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Where Extrinsic Evidence Indicates a Party’s Interpretation of Ambiguous Language Is the Only Fair Interpretation, Summary Judgment Is Appropriate

In finding that the meaning of a title insurance policy was properly determined as a matter of law, the Second Department explained the complicated analytical criteria:

Generally, courts determine the rights and obligations of parties under insurance contracts based on the specific language of the policies … . However, where the language is reasonably susceptible of more than one interpretation, and thus ambiguous, “the parties to the policy may, as an aid in construction, submit extrinsic evidence of their intent at the time of contracting” … . “[I]f the tendered extrinsic evidence is itself conclusory and will not resolve the equivocality of the language of the contract, the issue remains a question of law for the court” … . “Under those circumstances, the ambiguity must be resolved against the insurer which drafted the contract” … .

“It is only where such evidence does not resolve the equivocality that the ambiguity must be resolved against the insurer” … . Where there is ambiguity and the “determination of the intent of the parties depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence, then such determination is to be made by the jury” … . Where, however, a party’s extrinsic evidence demonstrates “not only that its interpretation is reasonable but that it is the only fair interpretation,” summary judgment is appropriate … . Demetrio v Stewart Tit Ins Co, 2015 NY Slip Op 00720, 2nd Dept 1-28-15

 

District Attorney’s Office Did Not Adequately Justify Its Denial of Inmate’s Requests for Color Photographs and Unredacted Documents Re: 18-Year-Old Murder Prosecution

The Second Department determined that the Records Access Officer (RAO) of a district attorney’s office did not adequately justify its failure to comply with petitioner requests for color photographs and unredacted documents related to an 18-year-old murder prosecution against him.  The Second Department explained the relevant law in some depth:

In a proceeding pursuant to CPLR article 78 to compel the production of material pursuant to FOIL, the agency denying access has the burden of demonstrating that the material requested falls within a statutory exemption, which exemptions are to be narrowly construed (see Public Officers Law § 89[5][e], [f]… . This showing requires the entity resisting disclosure 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” … . Because FOIL is “based on a presumption of access to the records” …, “FOIL compels disclosure, not concealment'” wherever the agency fails to demonstrate that a statutory exemption applies … .

In this case, in response to the petitioner’s FOIL requests, the respondent provided the petitioner with certain documents that contained numerous redactions, and denied the petitioner’s request for photographs of the deceased victim. The respondent based the redactions and the denial of the request for the photographs upon the “unwarranted invasion of personal privacy” statutory exemption (Public Officers Law § 87[2][b]). However, since the respondent failed to proffer more than conclusory assertions to support these claims, the Supreme Court erred in determining that the respondent met his burden of demonstrating that the redactions and denial of the request for the photographs of the deceased victim fell within this statutory exemption (see Public Officers Law § 89[5][e], [f];…).

The Supreme Court also erred in determining that the petitioner was not entitled to receive color copies of certain photographs that were disclosed to him. Public Officers Law § 86(4) provides that photographs are records within the meaning of the statute, and section 87(1)(b) of the statute requires an agency to provide copies or reproductions of records. Pursuant to Public Officer Law § 87(1)(c)(ii), an agency may engage an outside professional service to prepare a copy of a record if its information technology equipment is inadequate to prepare a copy. Applying these principles, we find that since the respondent did not claim he was unable to comply with the petitioner’s request, FOIL requires him to provide the petitioner with color copies of all disclosable photographs in his possession. Matter of Baez v Brown, 2015 NY Slip Op 00754, 2nd Dept 1-28-15

 

Question of Fact Whether Failure to Wear a Harness Precluded Recovery in a Labor Law 240 (1) Action

The Second Department determined defendant had raised a question of fact whether plaintiff’s actions were the sole proximate cause of the accident (which would preclude recovery in a Labor Law 240 (1) action).  Plaintiff was injured when plywood flooring collapsed. However the defendant presented evidence plaintiff was aware he was required to wear a harness which would have prevented him from falling to the floor below:

” Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites'” … . To prevail on a cause of action pursuant to Labor Law § 240(1), the plaintiff must establish a violation of the statute and that the violation was a proximate cause of his injuries … . Although contributory negligence on the part of the worker is not a defense to a Labor Law § 240(1) claim …, where a plaintiff’s actions are the sole proximate cause of his injuries, liability under Labor Law § 240(1) does not attach … .

Here, although the plaintiff met his prima facie burden of establishing a violation of Labor Law § 240(1) … the defendants produced evidence that a safety harness and line were available to the plaintiff, that he was aware that he was required to anchor the line on the floor where he was working, and that the anchors, harness, and line would have prevented him from falling to the 14th floor, but that the plaintiff had consciously decided not to anchor his line on the 15th floor as instructed. The defendant’s submissions were sufficient to raise a triable issue of fact as to whether the plaintiff’s actions were the sole proximate cause of his accident … . Bascombe v West 44th St Hotel LLC, 2015 NY Slip Op 00712, 2nd Dept 1-28-15

 

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Criteria for Piercing the Corporate Veil Explained/Appellate Review Powers Re: a Bench Trial Described

The Second Department determined Supreme Court (in a bench trial) had properly pierced the corporate veil to find the owner personally liable.  The court described the criteria for piercing the corporate veil and noted that, in reviewing a bench trial, the appellate court has the same fact-finding powers as the trial court:

“In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and we may render a judgment we find warranted by the facts, bearing in mind that in a close case, the trial court had the advantage of seeing and hearing the witnesses” … .

“The general rule . . . is that a corporation exists independently of its owners, who are not personally liable for its obligations, and that individuals may incorporate for the express purpose of limiting their liability” … . The doctrine of piercing the corporate veil is an exception to this general rule, allowing the imposition of individual liability on owners for the obligations of their corporation “to prevent fraud or to achieve equity” … . “A plaintiff seeking to pierce the corporate veil must demonstrate that a court in equity should intervene because the owners of the corporation exercised complete domination over it in the transaction at issue and, in doing so, abused the privilege of doing business in the corporate form, thereby perpetrating a wrong that resulted in injury to the plaintiff” … . AZTE Inc v Auto Collection Inc, 2015 NY Slip Op 00711, 2nd Dept 1–28-15

 

Purchaser of Real Property, Who Is Aware of a Pending Lawsuit Involving the Property When the Purchase Is Made, Is Bound By the Outcome of the Lawsuit

The Second Department noted that a purchaser of real property who is aware of a pending lawsuit involving the property is bound by the outcome of that suit:

A purchaser of real property who has actual knowledge of a pending lawsuit with respect to the property is bound by the consequences of that lawsuit …, except in circumstances not relevant in this case … . DeMaio v Capozello, 2015 NY Slip Op 00719, 2nd Dept 1-28-15

 

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Injury Caused by Another Student In Gym Class Could Not Have Been Prevented by Supervision/Unsigned Depositions Which Were Certified by the Stenographer Should Have Been Considered by the Court

The Second Department determined summary judgment should have been granted to the defendant in an action stemming from infant-plaintiff’s participation in a gym-class basketball game.  The actions of another player, which caused the injury, could not have been prevented by supervision.  The Second Department noted that the unsigned deposition transcripts, which were certified by the stenographer, should have been considered by Supreme Court:

The Supreme Court also should have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the New York City Department of Education (hereinafter the DOE). In support of their motion, the defendants submitted the transcripts of the deposition testimony of the infant plaintiff and teachers … . While those transcripts were unsigned, they were certified by the stenographer, and the plaintiffs do not challenge their accuracy. Thus, contrary to the plaintiffs’ contention, the transcripts were admissible and should have been considered by the Supreme Court on the defendants’ motion … . This evidence demonstrated, prima facie, that the spontaneous act of the other student in grabbing the infant plaintiff’s left arm from behind and throwing or dragging him to the ground as the infant plaintiff attempted to shoot a basketball during a basketball game in gym class occurred in such a short span of time that it could not have been prevented even by the most intense supervision … . Moreover, the other student’s alleged prior conduct was insufficient to place the DOE on notice of the conduct that led to the infant plaintiff’s injury … . Thomas v City of New York, 2015 NY Slip Op 00748, 2nd Dept 1-28-15

 

“General Supervisory Authority” Over Work Not Sufficient to Impose Liability Under the Labor Law

In affirming summary judgment in favor of the defendants, the Second Department described the nature of work-supervision necessary to hold a defendant liable under Labor Law 240 (1), 241 (6), 200 and common-law negligence theories.  “General supervisory authority” is not enough to impose liability:

“Labor Law §§ 240(1) and 241(6) apply to owners, contractors, and their agents” … . “A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured” … . “Similarly, where, as here, a claim against a defendant arises out of alleged defects or dangers in the methods or materials of the work, recovery cannot be had under Labor Law § 200 or pursuant to the principles of common-law negligence unless it is shown that the party to be charged under that theory of liability had the authority to supervise or control the performance of the work” … . * * *

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) by establishing that they were not owners, contractors, or statutory agents under those provisions … . The defendants also established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law § 200 and common-law negligence through the submission of evidence which demonstrated that they did not have the authority to supervise or control the manner in which the injured plaintiff performed his work … .

To the extent that the defendants had general supervisory authority over the work, this was insufficient in itself to impose liability under the Labor Law … . Fucci v Plotke, 2015 NY Slip Op 00726, 2nd Dept 1-28-15

 

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