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Fraud Sufficiently Pled; Six-Year Statute of Limitations Applied

In reversing Supreme Court, the Second Department determined plaintiff had adequately pled a cause of action sounding in fraud and that, therefore, the six-year statute of limitations applied to both the fraud and the related breach of fiduciary duty causes of action.  In explaining the pleading requirements for fraud, the Second Department wrote:

To state a cause of action sounding in fraud, a plaintiff must allege that “(1) the defendant made a representation or a material omission of fact which was false and the defendant knew to be false, (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it, (3) there was justifiable reliance on the misrepresentation or material omission, and (4) injury”… . “A cause of action to recover damages for fraudulent concealment requires, in addition to allegations of scienter, reliance and damages, an allegation that the defendant had a duty to disclose material information and that it failed to do so”… .

In assessing a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the facts pleaded are accepted as true and the plaintiff is accorded every possible favorable inference … . The court is then to “determine only whether the facts as alleged fit within any cognizable legal theory” … . Pursuant to CPLR 3016(b), a cause of action alleging fraud must be pleaded with particularity so as to inform the defendant of the alleged wrongful conduct and give notice of the allegations the plaintiff intends to prove .. . This pleading requirement “should not be confused with unassailable proof of fraud,” and “may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct.” … .  McDonnell v Bradley, 2013 NY Slip Op 05681, 2nd Dept 8-21-13

 

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Overriding Village Legislative Cap on Number of Taxicab Licenses Not a Proper Subject of Mandamus Action—Applicability of Mandamus Explained

In reversing Supreme Court, the Second Department determined the Article 78 proceeding which sought to override a legislative cap on the number of taxicab licenses which could be issued by the village was not a proper subject of a mandamus action:

“The extraordinary remedy of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief has been demonstrated” .. . “A discretionary act involves the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … . Thus, mandamus may be employed “to compel acts that officials are duty-bound to perform” … . However, mandamus will not lie to compel the performance of a purely legislative function … . “[T]he courts must be careful to avoid . . . the fashioning of orders or judgments that go beyond any mandatory directives of existing statutes and regulations and intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches”… .  Matter of Gonzalez v Village of Port Chester, 2013 NY slip Op 05691, 2nd Dept 8-21-13

 

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Defendant Denied Constitutional Right to Present a Defense—Evidence Victim Identified Another as the Perpetrator Wrongly Excluded

In a full-fledged opinion by Justice Miller reversing defendant’s conviction, the Second Department determined defendant had been deprived of his constitutional right to present a defense.  The primary problem identified by the Second Department (among many others not mentioned here but worth reading about) was the preclusion of evidence that the victim had repeatedly identified someone other than the defendant as the perpetrator of the crime.  Two crucial pieces of such evidence, an entry in the victim’s diary and a statement made to a third party by the victim, were hearsay.  The court found that the People’s hearsay objection was waived because it wasn’t raised before the appeal. Concerning the failure to allow evidence of the victim’s identification of another as the perpetrator, the Second Department wrote:

“Before permitting evidence that another individual committed the crime for which a defendant is on trial, the court is required to determine if the evidence is relevant and probative of a fact at issue in the case, and further that it is not based upon suspicion or surmise” … . “Then, the court must balance the probative value of the evidence against the prejudicial effect to the People and may, in an exercise of its discretion, exclude relevant evidence that will cause undue prejudice, delay the trial, or confuse or mislead the jury” … . Although a trial court has “broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters” …, “the trial court’s discretion in this area is circumscribed by the defendant’s constitutional rights to present a defense and confront his accusers” … .

Here, the evidence that the victim identified Uppal as the perpetrator was exculpatory evidence that was directly relevant to the fundamental issue in this case—the identity of the attacker. Furthermore, such evidence of third-party culpability, coming from the victim of the crime herself, cannot be properly characterized as “rest[ing] on mere suspicion or surmise”… People v Thompson, 2013 NY Slip Op 05707, 2nd Dept 8-21-13

 

Injury from Falling Piece of Concrete-Pour-Form Raised Question of Fact About Liability Under Labor Law 240 (1)

The Second Department affirmed the denial of summary judgment in favor of defendants on plaintiff’s Labor Law 240 (1) claim. Plaintiff was removing wooden forms used to pour concrete. After removing one piece of a form, the piece above it fell and struck plaintiff. The Second Department explained:

Labor Law § 240(1) requires property owners and contractors to provide workers with “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection” to the workers (Labor Law § 240[1]). The purpose of the statute is to protect against “such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured” .. . However, not every object that falls on a worker gives rise to the extraordinary protections of Labor Law § 240(1) …. Thus, in order to recover damages for violation of the statute, the “plaintiff must show more than simply that an object fell causing injury to a worker” .. . A plaintiff must show that, at the time the object fell, it was “being hoisted or secured” … or “required securing for the purposes of the undertaking” … . The plaintiff must also show that the object fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute”… .  . The evidence submitted by the defendants in support of their motion did not establish “the absence of a causal nexus between the worker’s injury and a lack or failure of a device prescribed by section 240(1)”.. . Ross v DD 11th Ave LLC, 2013 NY Slip Op 05686, 2nd Dept 8-21-13

 

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Local Law Purporting to Limit Term of County District Attorney Preempted by New York Constitution and State Law

The Second Department determined that the local law which limited the term of the county district attorney to 12 years was preempted by the New York Constitution and state law, thereby allowing the sitting district attorney (who had served for 12 years) to run for another term.  The court reasoned:

…[T]he County’s attempt to place a term limit on the office of District Attorney is impermissible. Since the office of District Attorney is not a local office falling within the ambit of NY Const, article IX, § 2(c)(1) or Municipal Home Rule Law § 10 (1)(ii)(a), the County had no authority to place restrictions on the District Attorney’s terms of office. Further, even if the District Attorney is a local office falling within NY Const, article IX, § 2(c)(1) and Municipal Home Rule Law § 10(1)(ii)(a), the New York Constitution and state law, together, so expansively and comprehensively regulate the office, that a county government’s ability to place restrictions on a District Attorney’s terms of office has been preempted. *  *  *

Pursuant to the maxim of statutory construction “expressio unius est exclusio alterius,” “where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240…). Here, in light of the fact that the New York Constitution and state law speak to the duration and term of office of the District Attorney, there is an irrefutable inference that the imposition of any limit on the duration of that office was intended to be omitted or excluded (see McKinney’s Cons Laws of NY, Book 1, Statutes § 240…). Indeed, regarding County Court judges, the New York Constitution provides for a 10-year term (see NY Const, art VI, § 10[b]) and a maximum duration to age 70 (see NY Const, art VI, § 25[b]). That the Constitution imposed a durational limit on County Court judges, but not on District Attorneys, who are also “constitutional officers,” indicates that the omission was intentional and that it was intended that there be no durational limit on District Attorneys. Matter of Hoerger v Spota, 2013 NY slip Op 05661, 2nd Dept 8-16-13

 

Failure to Comply with Service Method in Order to Show Cause Required Dismissal

In a proceeding under the Election Law to invalidate a petition designating a candidate, the Second Department determined dismissal was appropriate based upon the failure to comply the service method prescribed in an order to show cause:

“The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with” … . Service within the statutory period by means other than those authorized by the order to show cause does not bring a respondent within the court’s jurisdiction … . Here, the subject order to show cause provided that service thereof and of “the papers upon which it [was] granted” upon the candidate Ivy Reeves was to be effectuated by (1) “sending the same by overnight, next-day delivery by UPS, FEDEX or the U.S. Postal Service on or before the 22nd day of July, 2013”; “or” (2) “by personal delivery of the same to [Ivy Reeves] on or before July 23, 2013, no later than 7:00 p.m.” It is undisputed that the petitioners did not attempt to personally deliver the papers to Reeves, and that copies of both the order to show cause and petition to invalidate were not delivered to Reeves’s address until July 24, 2013. The petitioners submitted evidence that, at 9:30 p.m. on July 22, 2013, they deposited a prepaid United States Postal Service “Priority Mail Express” envelope containing these documents in a mail slot located inside a publicly accessible vestibule of a post office, after the post office itself had closed. The record established that an envelope deposited at that time would not have been collected, scanned, and prepared for delivery by postal employees until 7:00 a.m. on the following day. Matter of Rotanelli v Board of Elections of Westchester County, 2013 NY Slip Op 05657, 2nd Dept 8-15-13

 

Filing Petition Four Hours Late Was Fatal Defect

The Second Department determined that the filing of a petition for an opportunity to ballot more than four hours after the deadline was a fatal defect:

Election Law § 1-106 provides that papers shall be filed with the relevant board of elections between the hours of 9:00 a.m. and 5:00 p.m. Moreover, the “failure to file any petition or certificate relating to the designation or nomination of a candidate for party position or public office . . . within the time prescribed by the provisions of this chapter shall be a fatal defect” (Election Law § 1-106[2]). “[T]he case law interpreting Election Law § 1-106(2) and its predecessor, Election Law former § 143(12) (as amended by L 1969, ch 529, § 1), makes it clear that such time limitations are mandatory in nature, and the judiciary is oreclose[ed] . . . from fashioning exceptions, however reasonable they might be made to appear’”… .  Matter of Rhoades v Westchester County Bd of Elections, 2013 NY Slip Op 05656, 2nd Dept 8-15-13

 

Failure to Provide Cover Sheet Fatal to Designating Petition

In reversing Supreme Court and granting the petition to invalidate a designating petition and removing the candidate from the ballot, the Second Department determined that the failure provide a cover sheet for the petition in accordance with the Election Law and regulations was fatal to the petition:

We are mindful that the provisions of Election Law § 6-134 “shall be liberally construed, not inconsistent with substantial compliance thereto and the prevention of fraud” (Election Law § 6-134[10]; see 9 NYCRR 6215.6[a]) in order to avoid the disenfranchisement of voters. However, although certain “[c]over sheet deficiencies may be corrected by the filing of an amended cover sheet” …, a candidate may not “amend” a cover sheet which was never filed in the first place, as was the case here.

“The three-day cure provision for designating petitions (Election Law § 6-134[2]) is available for technical violations of the regulations” …. In the instant case, however, the candidate’s initial failure to file a cover sheet was not a mere technical defect subject to cure pursuant to Election Law § 6-134(2) … . To the contrary, the absence of a cover sheet, especially where, as here, the designating petition contained multiple volumes that were unbound, constituted a complete failure to comply with the requirements set forth in 9 NYCRR 6215.1, which may not be cured pursuant to Election Law § 6-134(2) and 9 NYCRR 6215.6 … . Such failure undermines procedural safeguards against both fraud and confusion … .  Matter of Armwood v McCloy, 2013 NY Slip Op 05654, 2nd Dept, 8-15-17

 

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Counsel Should Have Been Disqualified Based On Conflict of Interest—Criteria Explained

In reversing Supreme Court and determining that counsel representing the town must be disqualified for a conflict of interest, the Second Department explained the operative principles:

“The disqualification of an attorney is a matter that rests within the sound discretion of the court” … . A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish: “(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” … . “A party’s entitlement to be represented in ongoing litigation by counsel of [its] own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted” … . * * *

There is a rebuttable presumption that “where an attorney working in a law firm is disqualified from undertaking a subsequent representation opposing a former client, all the attorneys in that firm are likewise precluded from such representation” … . That presumption may be rebutted by proof that “any information acquired by the disqualified lawyer is unlikely to be significant or material in the [subject] litigation” … . Proof must also be presented that the law firm properly screened the disqualified lawyer from dissemination and receipt of information subject to the attorney-client privilege … .  Matter of Town of Oyster Bay v 55 Motor Ave Co LLC, 2013 NY Slip Op 05636, 2nd Dept 8-14-13

 

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Employment Contract Deemed Hiring “At Will”—No Fixed Duration

The Second Department affirmed the dismissal of a breach of contract cause of action which alleged defendant breached an employment contract when the position which was the subject of the contract was withdrawn. In finding the agreement described a hiring “at will,” the court described the applicable principles as follows:

“New York adheres to the traditional common-law rule that absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party” … . In support of their motion to dismiss the complaint, the defendants submitted the … employment contract, setting forth the terms of the employment relationship. The … employment contract contained a merger clause reciting that the writing encompassed the entire agreement between the parties. Contrary to the plaintiffs’ contention, the …employment contract did not provide for a fixed or definite term of employment, as it expressly provided that [plaintiff] was to be employed “for an indefinite period of time.” Moreover, the …employment contract provided that either party could, without notice, terminate the employment relationship with immediate effect during the first two months after its execution, and thereafter with certain notice. Further, the plaintiffs themselves alleged in the complaint that, pursuant to the … employment contract, [plaintiff’s] employment was “to continue without any specific date for termination.” Thus, [plaintiff] was presumptively an at-will employee …. The plaintiffs failed to allege facts that would rebut the at-will presumption or limit [defendants’] right to freely terminate [plaintiff’s] employment.  Minovici v Belkin BV, 2013 NY Slip Op 05618, 2nd Dept 8-14-13

 

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