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Transactional Res Judicata Analysis Explained

In determining a motion to amend the answer was precluded by the doctrine of res judicata, the Second Department wrote:

“[U]nder New York's transactional analysis approach to res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'” … . “In determining whether a factual grouping constitutes a transaction for res judicata purposes, a court must apply a pragmatic test and analyze how the facts are related as to time, space, origin or motivation, whether they form a convenient trial unit, and whether treating them as a unit conforms to the parties' expectations or business understanding” … . Matter of Haberman v Zoning Bd of Appeals of the City of Long Beach, 2014 NY Slip Op 05335, 2nd Dept 7-16-14

 

No Showing Attorney Had Acquired Any Client Confidences Before Changing Firms

The Second Department determined there was no basis for disqualifying a law firm which represented the plaintiffs in a personal injury case based upon the firm’s hiring of an attorney who had represented the defendant in the same case.  It was sufficiently demonstrated that the attorney had not acquired any client confidences during his representation of the defendant:

While generally, a party seeking to disqualify an opponent’s attorney “must prove: (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” …, “no presumption of disqualification will arise if either the moving party fails to make any showing of a risk that the attorney changing firms acquired any client confidences in [his or her] prior employment … or the nonmoving party disproves that the attorney had any opportunity to acquire confidential information in the former employment” … . Sharifi-Nistanak v Coccia, 2014 NY Slip Op 05318, 2nd Dept 7-16-14

 

Untimely Summary Judgment Motion Which Is Nearly Identical to a Summary Judgment Motion Already Before the Court Should Be Considered

The Second Department explained when an untimely summary judgment motion, which is nearly identical to a timely summary judgment motion already before the court, should be considered:

While the cross motion was made more than 120 days after the note of issue was filed and, therefore, was facially untimely …, an untimely cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds … . “In such circumstances, the issues raised by the untimely cross motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212 [a]) to review the merits of the untimely cross motion. Notably, a court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party” (…see CPLR 3212 [b]). Therefore, the Supreme Court should have entertained the plaintiff’s cross motion for summary judgment. Wernicki v Knipper, 2014 NY Slip Op 05324, 2nd Dept 7-16-14

 

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Sellers Entitled to Keep Downpayment Based Upon Purchaser’s Failure to Close on Law Day

The Second Department determined Supreme Court should have granted the sellers’ motion for summary judgment and allowed the sellers to keep the purchaser’s downpayment based upon the purchaser’s failure to close on the date set by a “time-of-the-essence” demand.  The court explained the applicable law as follows:

“To prevail on a cause of action for the return of a down payment on a contract for the sale of real property, the plaintiff must establish that the defendant breached or repudiated the contract and that the plaintiff was ready, willing, and able to perform on the closing date” … . “While a vendee can recover his [or her] money paid on the contract from a vendor who defaults on law day without a showing of tender or even of willingness and ability to perform where the vendor’s title is incurably defective, a tender and demand are required to put the vendor in default where his [or her] title could be cleared without difficulty in a reasonable time” … . The seller in such a case is entitled to “a reasonable time beyond law day to make his [or her] title good” … . “[W]hile a purchaser must normally first tender performance and demand good title to place a seller in default, when the vendor is given notice of the defect prior to the scheduled closing date and does nothing to correct it until after the closing date, the purchaser need not tender performance as such tender would be meaningless'” … . “[W]here a seller seeks to hold a purchaser in breach of contract, the seller must establish that [he or she] was ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for its failure to close” … . *  *  *

…[T]he sellers demonstrated, prima facie, that they were given no notice of the alleged defect, and that the purchaser was therefore required to appear at closing and tender her performance … . Furthermore, under these circumstances, the sellers were entitled to a reasonable adjournment to allow them to address the purchaser’s objections, notwithstanding the fact that they had declared that time was of the essence … . Moreover, the sellers satisfied their prima facie burden of demonstrating that they were ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for her failure to close … . Martocci v Schneider, 2014 NY Slip Op -5308, 2nd Dept 7-16-14

 

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Question of Fact Whether Tenants Entitled to Equitable Renewal of Lease

The Second Department determined issues of fact were raised concerning whether the tenants should be allowed to remain in the leased premises.  Although the written option to renew the lease was never executed. the tenants alleged that oral assurances the tenants could remain were made by the landlord:

Although the documentary evidence conclusively established that the [tenants] failed to exercise the option to renew in accordance with the express terms of the lease …., contrary to [the landlord’s] contention, that evidence failed to conclusively establish that the [tenants] were not entitled to equitable renewal of the lease. Equity will intervene to relieve a commercial tenant’s failure to timely exercise an option to renew in accordance with the terms of the lease where “(1) the tenant’s failure to exercise the option in a timely fashion resulted from an honest mistake or inadvertence, (2) the nonrenewal of the lease would result in a substantial forfeiture by the tenant, and (3) the landlord would not be prejudiced by the renewal” … .

Here, the record reveals the existence of issues of fact as to whether the [tenants’] failure to exercise the option in accordance with the terms of the lease resulted from their mistaken belief that alleged discussions with [tenant’s agent] were sufficient to exercise the option, whether nonrenewal of the lease would result in the [tenants’] substantial forfeiture of a benefit as a result of the loss of valuable goodwill that they established at the present location, and whether [the landlord]  would suffer prejudice if the lease were renewed… . Waterfalls Italian Cuisine Inc v Tamarin, 2014 NY Slip Op 05323, 2nd Dept 7-16-14

 

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Arbitration Award Based Upon Collective Bargaining Agreement Does Not Have a Preclusive Effect Upon a Subsequent Employment Discrimination Action Based on the Same Facts

The Second Department noted that an arbitration award based upon the terms of a collective bargaining agreement does not bar a subsequent employment discrimination action under the doctrine of collateral estoppel.  Here the employee was terminated based upon excessive absences.  He subsequently  brought a discrimination action alleging the employee failed to accommodate his disability.  (The Second Department determined the “disability” alleged by the employee did not require accommodation):

An arbitrator’s award may be given preclusive effect in a subsequent judicial proceeding … . However, arbitration is an inappropriate forum for the disposition of an employment discrimination claim where “the arbitrator’s sole task is to effectuate the intent of the parties in connection with the collective-bargaining agreement, and not to consider a statutory claim of discrimination . . . The violation of these contractual and statutory rights by the same factual occurrence does not vitiate their separate nature” … . Thus, the arbitrator’s decision did not have preclusive effect on the plaintiff’s separate action based on unlawful discrimination in employment …, and the complaint is not barred by the doctrine of collateral estoppel. Caban v New York Methodist Hosp, 2014 NY Slip Op 05292, 2nd Dept 7-16-14

 

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Delay In Arrival of an Ambulance During a Snow Storm Not Actionable

The causes of action against the city based upon delay in the arrival of an ambulance during a snow storm were dismissed.  The Second Department determined that both the ambulance service and the snow removal were governmental functions and, in the absence of a special relationship with the decedent, were not actionable:

A municipal emergency response system is “a classic governmental, rather than proprietary, function” … . Contrary to the plaintiffs’ contentions, the amended complaint fails to allege any facts tending to show that there was any “justifiable reliance” on any promise made to the decedent by the defendants. Accordingly, the amended complaint fails to state facts from which it could be found that there was a special relationship between the decedent and the defendants and, therefore, the amended complaint does not state a viable cause of action against the defendants based upon their alleged negligence in responding to the plaintiffs’ 911 call … . Estate of Radvin v City of New York, 2014 NY Slip Op 05302, 2nd Dept 7-16-17

 

Riser In Church Was Not an Actionable Condition

The Second Department determined a riser, upon which plaintiff allegedly tripped, was an open and obvious and not inherently dangerous:

The injured plaintiff allegedly tripped and fell over a 5½-inch-high, single-step riser while exiting a church pew. * * *

While a landowner has a duty to maintain its premises in a reasonably safe manner …, a landowner has no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous … . Here, the defendant established its entitlement to judgment as a matter of law by submitting evidence that the subject riser was open and obvious and not inherently dangerous … . The evidence presented by the plaintiffs in opposition, including the affidavit of their expert, failed to raise a triable issue of fact … . Coppola v Cure of Ars RC Church, 2014 NY Slip Op 05297, 2nd Dept 7-16-17

 

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Criteria for Discovery from Non-Party Explained/Criteria for Discovery of Trade Secrets Explained

The Second Department explained the criteria for discovery demanded of a non-party [Morgan Stanley] and described the relevant considerations when discovery is opposed on the ground that the material requested constitutes trade secrets.  The court concluded Morgan Stanley had demonstrated certain of the discovery requests related to protected trade secrets:

Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the “circumstances or reasons” requiring disclosure. Pursuant to the Court of Appeals' recent decision in Matter of Kapon v Koch ( ____ NY3d ____, 2014 NY Slip Op 02327 [2014]), disclosure from a nonparty requires no more than a showing that the requested information is “material and necessary,” i.e. relevant to the prosecution or defense of an action (id., *1). However, “the subpoenaing party must first sufficiently state the circumstances or reasons' underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it), and the witness, in moving to quash, must establish either that the discovery sought is utterly irrelevant' to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious'” (id.). Should the nonparty witness meet this burden, “the subpoenaing party must then establish that the discovery sought is material and necessary' to the prosecution or defense of an action, i.e., that it is relevant” (id.). * * *

Notwithstanding New York's policy of liberal discovery (see id., * 4-5), a party seeking disclosure of trade secrets must show that such information is “indispensable to the ascertainment of truth and cannot be acquired in any other way” … . A witness who objects to disclosure on the ground that the requested information constitutes a trade secret bears only a minimal initial burden of demonstrating the existence of a trade secret … . Contrary to [plaintiff's] contention, Morgan Stanley met its minimal initial burden of showing that the documents requested in paragraphs 11 through 19 in the section of the subpoena duces tecum entitled “Requests for Production” contained trade secrets … . Thus, the burden shifted to [plaintiff] to demonstrate that the information contained in those documents was indispensable to the ascertainment of truth, and could not be acquired in any other way … . Ferolito v Arizona Beverages USA LLC, 2014 NY Slip Op 05153, 2nd Dept 7-9-14

 

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Affidavits, Deposition Testimony, and Letters Are Not Considered “Documentary Evidence” Within the Meaning of CPLR 3211(a)(1)

The Second Department described the types of documents which will not support a motion to dismiss pursuant to CPLR 3211(a)(1):

“A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim'” … . “Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)”… . Contrary to the defendant’s contention, an affidavit by a … project manager did not constitute documentary evidence with the intendment of CPLR 3211(a)(1) … . JA Lee Elec Inc v City of New York, 2014 NY Slip Op 05159, 2nd Dept 7-9-14

 

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