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Corporations Owned by the Individual Operating the Businesses Were Not the “Alter Ego” of the Individual Owner—Criteria for Piercing the Corporate Veil Not Met—Corporation Which Leased the Property from the Corporation Which Owned the Property Was Entitled to Compensation for Fixtures

The Second Department determined there was insufficient evidence to support piercing the corporate veil with respect to corporations owned by the individual operating the relevant businesses.  The corporations were formed for legitimate purposes, including owning and leasing back the subject property, and there was no evidence of any fraud.  The relevant criteria were explained.  In addition, the Second Department determined the tenant corporation was entitled to compensation for the fixtures on the condemned property and explained the relevant criteria:

In general, “a corporation has a separate legal existence from its shareholders even where the corporation is wholly owned by a single individual” … . Although “[o]ne of the primary legitimate purposes of incorporating is to limit or eliminate the personal liability of corporate principals” …, “the doctrine of piercing the corporate veil allows a corporation's separate legal existence to be disregarded to prevent fraud and 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” … .

Here, the petitioner points to Botur's sole ownership of Tennisport and his acknowledged day-to-day control over Nixbot, and argues that, on this basis, the Supreme Court properly determined that Tennisport and Nixbot were essentially Botur's alter egos. However, as this Court has observed, “if, standing alone, domination over corporate conduct in a particular transaction were sufficient to support the imposition of personal liability on the corporate owner, virtually every cause of action brought against a corporation either wholly or principally owned by an individual who conducts corporate affairs could also be asserted against that owner personally, rendering the principle of limited liability largely illusory. Thus, the party seeking to pierce the corporate veil must also establish that the owners, through their domination, abused the privilege of doing business in the corporate form'” … . Thus, in determining whether an owner has “abused the privilege of doing business in the corporate form,” a court may consider, inter alia, whether there was a “failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use” … . * * *

Where the condemnor appropriates land to which a tenant has annexed fixtures, the tenant is entitled to compensation “for his [or her] interest in any annexations to the real property which but for the fact that the real property has been taken, he [or she] would have had the right to remove at the end of his [or her] lease” … . This is true even where the condemnor has no use for the fixtures attached, because “condemnation is a forced sale that places the State and the claimant in the position of vendee and vendor” … . As the Court of Appeals has observed, “[t]he law of fixtures was evolved by the judiciary in order to ameliorate the harsh result to those who substantially improved property but who had less than a fee interest. These rules, when applied in an eminent domain proceeding, protect the owner of this type of property from being deprived of compensation when the land upon which they are situated is condemned” … . Thus, an award for the taking of fixtures is properly seen as “just compensation to the claimant, not a windfall” … . Matter of Queens W Dev Corp…, 2014 NY Slip OP 06983, 2nd Dept 10-15-14

 

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Nurse Acting Under a Doctor’s Supervision Generally Cannot Commit Malpractice—Judgment Dismissing Nurse’s Complaint As a Matter of Law Pursuant to CPLR 4401 Was Properly Granted

The Second Department explained that a nurse acting under a doctor’s supervision and not exercising independent medical judgment generally cannot be liable for medical malpractice.  Here the nurse’s motion to dismiss the complaint pursuant to CPLR 4401 as a matter of law was properly granted:

“[C]ourts have recognized that a nurse who renders treatment can play a significant role [in a patient’s care] and is capable of committing malpractice” … . However, a nurse whose work is supervised by a physician and who does not exercise independent medical judgment cannot be liable for medical malpractice unless the directions from the supervising physician so greatly deviate from normal medical practice that the nurse should be held liable for failing to intervene, or the nurse commits an independent act that constitutes a departure from accepted medical practice … .

Here, while there was evidence that the defendant Elizabeth Vilanova, a certified registered nurse anesthetist, played an active role in the decedent’s operation, it was established that she was acting under the direct supervision of the attending anesthesiologist the entire time and did not exercise any independent medical judgment, nor did she commit an independent act constituting a departure … . Yakubov v Jamil, 2014 NY Slip Op 06966, 2nd Dept 10-15-14

 

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Criteria for Setting Aside a Verdict As a Matter of Law and As Against the Weight of the Evidence Described

In affirming the denial of motions to set aside the verdict in a medical malpractice case, the Second Department explained the criteria for setting aside a verdict as a matter of law and as against the weight of the evidence:

“A motion for judgment as a matter of law pursuant to CPLR . . . 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party” … . “In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'” … . * * *

Furthermore, “[a] jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” … . ” Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors'” … . We accord deference to the credibility determinations of the jury as factfinder, which had the opportunity to see and hear the witnesses … . Applying these principles to the facts of this case, the jury’s determination that the defendant departed from good and accepted nursing practice and that such departure was a proximate cause of the plaintiff[‘s] … injuries was supported by a fair interpretation of the evidence … . Messina v Staten Is Univ Hosp, 2014 Slip Op 06952, 2nd Dept 10-15-14

 

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Criteria for Judicial Estoppel Not Met/Conversion Action Cannot Be Based Upon a Right To Payment

The Second Department determined that, although the criteria judicial estoppel had not been met and Supreme Court should not have dismissed the conversion cause of action on that ground, the court properly dismissed the conversion cause of action. The court explained that the mere right to payment cannot be the basis of conversion:

“Under the doctrine of judicial estoppel or inconsistent positions, a party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed” … . “The doctrine rests upon the principle that a litigant should not be permitted . . . to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise'” … .

Here, the Supreme Court erred in, in effect, applying the doctrine of judicial estoppel as a ground for directing the dismissal of the second cause of action, which alleged conversion. The plaintiff’s allegations in a prior action entitled Barker v Hussain, commenced in the Supreme Court, Nassau County, under Index No. 6382/11, were neither sufficiently definite nor so clearly inconsistent with her current position in this action so as to warrant the application of the doctrine of judicial estoppel against her … . * * *

A cause of action alleging conversion should be dismissed when the plaintiff does not allege “legal ownership or an immediate right of possession to specifically identifiable funds and that the defendant exercised an unauthorized dominion over such funds to the exclusion of the plaintiff’s rights” … . “Moreover, the mere right to payment cannot be the basis for a cause of action alleging conversion since the essence of a conversion cause of action is the unauthorized dominion over the thing in question'” … . In other words, “[t]angible personal property or specific money must be involved” … . Barker v Amorini, 2014 NY Slip Op 06931, 2nd Dept 10-15-14

 

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Evidence of Prior Crimes Improperly Admitted to Prove Identity and Intent—There Was No Unique Modus Operandi Which Would Prove Identity and Intent Could Be Inferred from the Commission of the Acts Charged

The Second Department reversed defendant’s convictions because the trial court allowed evidence of prior uncharged crimes to provide identity and intent.  The Second Department explained that the crimes did not have a unique modus operandi which could demonstrate the identity of the perpetrator, and the intent to commit the crime (burglary) could readily be inferred from the commission of the acts charged:

Evidence of another crime committed by the defendant, not charged in the indictment, is not admissible if it tends only to demonstrate the defendant’s propensity to commit the crime charged and cannot logically be connected to some specific material issue in the case … . However, where the proffered evidence is relevant to some material fact in the case, other than the defendant’s propensity to commit the crime charged, it is not to be excluded merely because it shows that the defendant had committed other crimes … . Thus, evidence of other crimes may be admitted to show, among other things, motive, intent, the absence of mistake or accident, a common scheme or plan, or the identity of the guilty party … . Here, the County Court granted the People’s application to admit the subject evidence to establish the defendant’s identity through a unique modus operandi and to establish the defendant’s intent.

The identity exception to the Molineux rule “is used in limited circumstances, when the defendant employs some unique, unusual, or distinctive modus operandi in an uncharged crime that is relevant to proving his identity as the perpetrator of the crime charged” … . Although identity was at issue in this case …, the People failed to identify any distinctive modus operandi relevant to proving the defendant’s identity as the perpetrator of the crimes charged. In order to identify the defendant by a distinctive modus operandi, “it is not sufficient to show that he has committed similar acts if the method used is not uncommon,” as such a showing “would be of little probative value in determining whether he committed the crimes charged, and the prejudice would be obvious” … . * * *

Nor was the subject evidence properly admitted under the intent exception to the Molineux rule. Evidence of prior misconduct to prove intent is unnecessary where intent may be easily inferred from the commission of the act itself … . Under the circumstances here, the defendant’s intent could be easily inferred from his acts alone … . Moreover, the defendant did not contest the element of intent before the jury, but rather, denied that he was the person who attempted the burglaries … . The evidence therefore was improperly ruled admissible. People v Wright, 2014 NY Slip Op 07003, 2nd Dept 10-15-14

 

Defendant Failed to Demonstrate the Cause of Plaintiff’s Fall (a Ramp Outside a Building) Was Open and Obvious as a Matter of Law—Summary Judgment Should Not Have Been Granted

The Second Department determined the defendant was not entitled to summary judgment in a slip and fall case. The defendant argued the cause of the fall, a ramp outside the defendant’s building, was open and obvious.  The plaintiff alleged the area was not properly lit and the ramp could not be seen:

At about 5:30 p.m. on December 4, 2008, the injured plaintiff allegedly sustained personal injuries when he tripped and fell over a ramp outside a building owned by the defendant. The injured plaintiff testified at his deposition that, at the time of the accident, it was completely dark. He further testified that, as he was walking through the defendant’s parking lot, he did not see the ramp because its color blended into that of the surrounding pavement and because the parking lot was inadequately lit.

A landowner has a duty to maintain his or her property in a reasonably safe manner to prevent foreseeable injuries … . A landlord, however, has no duty to protect or warn against an open and obvious condition that is not inherently dangerous as a matter of law … . To demonstrate entitlement to summary judgment in a trip-and-fall case, the defendant must establish that it maintained the premises in a reasonably safe condition and that it did not create a dangerous or defective condition on the property or have either actual or constructive notice of a dangerous or defective condition for a sufficient length of time to remedy it … .

Here, the defendant failed to establish, prima facie, that the allegedly dangerous condition was open and obvious … . The issue of whether a dangerous condition is open and obvious is fact-specific …, and cannot be divorced from the surrounding circumstances … . Baron v 305-323- E Shore Rd Corp, 2014 NY Slip Op 06932, 2nd Dept 10-15-14

 

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Severance of Action Against Defendant Which Filed for Bankruptcy Proper

In a medical malpractice case, the Second Department determined Supreme Court properly severed the action against a defendant which had filed for bankruptcy from the actions against the other defendants.  Plaintiff was 86 years old and delaying the proceedings would therefore have prejudiced him:

“In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue. The court may order the trial of any claim or issue prior to the trial of the others” (CPLR 603).

Where a defendant in an action files for chapter 11 bankruptcy relief, the automatic stay provisions of 11 USC § 362(a) do not extend to the nonbankrupt defendants … . Therefore, in such circumstances, it is within the discretion of the trial court to direct a severance of the action as against the bankrupt defendant … . Generally, the balance of the equities lies with plaintiffs when severance is sought because the case against one defendant is stayed pursuant to 11 USC § 362(a), and that is particularly so in this personal injury action where a delay would be prejudicial to the plaintiffs … .

Here, as the prejudice to the 86-year-old injured plaintiff in being required to await the conclusion of the bankruptcy proceeding before obtaining any remedy outweighs any potential inconvenience to the defendants, the Supreme Court providently exercised its discretion in granting the plaintiffs’ motion pursuant to CPLR 603 to sever the action … and directing the action to proceed against the remaining defendants … . Katz v Mount Vernon Dialysis LLC, 2014 NY Slip Op 06947, 2nd Dept 10-15-14

 

Dismissal Under Doctrine of Res Judicata Affirmed

The Second Department affirmed the dismissal of the complaint under the doctrine of res judicata and succinctly explained the underlying principles:

“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” … . “The fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims” … . Here, the plaintiff’s claims … arose out of the same series of transactions as those at issue in a prior action …, and were, or could have been, raised in that prior action, which was disposed of on the merits in an order of the Supreme Court … . Harris v City of New York, 2014 NY Slip Op 06945, 2nd Dept 10-15-14

 

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Town’s Duty to Maintain Roadways in a Safe Condition Extends to the Maintenance of Trees Not Located on Town Property—Here a Tree Limb Fell Onto Plaintiffs’ Moving Vehicle

The plaintiffs were injured when a limb fell from a tree onto their moving vehicle.  The defendant town moved for summary judgment, alleging that the tree was not located in the town’s right of way and the town did not therefore owe a duty to the plaintiffs.  The Second Department disagreed:

The Town’s duty to maintain its roadways in a reasonably safe condition extends to the maintenance of trees, adjacent to a road, that could reasonably be expected to pose a danger to travelers … . Contrary to the Town’s contention that it owed no duty to the plaintiffs by virtue of the fact that it did not own, maintain, or control the subject tree or the location of that tree, “the exact location of the tree with respect to the Town’s right of way is not dispositive” of the issue of the Town’s duty … . Accordingly, the Town failed to establish its prima facie entitlement to judgment as a matter of law, and the Supreme Court correctly denied the Town’s cross motion for summary judgment dismissing the complaints and all cross claims insofar as asserted against it, regardless of the sufficiency of the opposing papers … . Piscitelli v County of Suffolk, 2014 NY Slip Op 06961, 2nd Dept 10-15-14

 

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Verdict Finding Defendant’s Negligence Was Not the Proximate Cause of the Injury Set Aside as Against the Weight of the Evidence—Criteria Explained

The Second Department affirmed the setting aside of a liability verdict as against the weight of the evidence.  The jury had found the defendant negligent but determined the negligence was not the proximate cause of the injury. The court explained the relevant criteria:

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause … .

Under the circumstances of this case, the jury’s finding that the defendants were negligent but that their negligence was not a substantial factor in causing the subject accident was not supported by a fair interpretation of the evidence … . Accordingly, the Supreme Court properly granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. Batista v Bogopa Serv Corp, 2014 NY Slip Op 06933, 2nd Dept 10-15-14

 

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