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THE DEFENDANT’S AFFIDAVIT SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS WAS NOT “DOCUMENTARY EVIDENCE” WHICH UTTERLY REFUTED THE ALLEGATIONS IN THE COMPLAINT; EVEN THOUGH DEFENDANT MIGHT WIN AT THE SUMMARY JUDGMENT STAGE, THE PROOF REQUIREMENTS FOR DISMSSAL ARE DIFFERENT AND WERE NOT MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant contractor’s motion to dismiss the complaint against him individually should not have been granted. Defendant, Gabbay, executed the subject home renovation contract on behalf of “Dansha Corp.,” an entity which does not exist. Defendant asserted in an affidavit submitted to support the motion to dismiss, that “Dansh Corp.” is a trade name for “Dansha Realty Corp.,” which does exist. Therefore, defendant argued, he can not be individually liable on the contract. However, irrespective of what might be determined in a motion for summary judgment, a motion to dismiss which relies on evidence must be supported by “documentary evidence.” Defendant’s affidavit does not constitute “documentary evidence:”

Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), and such proof is considered but the motion has not been converted to one for summary judgment, ‘the criterion is whether the proponent of the pleading has a cause of action, not whether [the proponent] has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it[,] . . . dismissal should not eventuate'” … . “‘Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss'” … . “A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law” … . …

Although there is “no individual liability for principals of a corporation for actions taken in furtherance of the corporation’s business” … , “‘a person entering into a contract on behalf of a nonexistent corporate entity may be held personally liable on the contract'” … . Here, accepting the allegations in the complaint as true and giving the plaintiff the benefit of every possible favorable inference, the complaint states causes of action against Gabbay to recover damages for breach of contract … and money had and received … . There is no dispute that “Dansha Corp.,” the entity named as the general contractor in the contract, does not exist. Furthermore, the evidence submitted by Gabbay failed to conclusively establish that “Dansha Realty Corp.” was the intended party to the contract for purposes of a prediscovery CPLR 3211 motion to dismiss … . The affidavit submitted by Gabbay in support of the motion was not “documentary” within the meaning of CPLR 3211(a)(1) … , and the remainder of the evidence, including invoices sent to the plaintiff from “Dansha Corp.,” do not prove that “Dansha Corp.” is a trade name for “Dansha Realty Corp.” … . Churong Liu v Gabbay, 2023 NY Slip Op 04108, Second Dept 8-2-23

Practice Point: This decision illustrates the different proof requirements for a motion to dismiss based on documentary evidence and a motion for summary judgment. Irrespective of whether a party may win a summary judgment motion, a motion to dismiss supported by an affidavit which is not “documentary evidence” will not win.

 

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THE PAVING CONTRACTOR FAILED TO DEMONSTRATE IT DID NOT LAUNCH AN INSTRUMENT OF HARM (A LIP OR HEIGHT DIFFERENTIAL IN THE ROAD SURFACE) WHICH CAUSED PLAINTIFF’S SLIP AND FALL; THEREFORE THE CONTRACTOR DID NOT NEGATE THE APPLICABILITY OF THE ESPINAL EXCEPTION TO THE RULE THAT CONTRACTORS ARE GENERALLY NOT LIABLE TO THIRD PARTIES (SECOND DEPT).

​The Second Department, reversing (modifying) Supreme Court, determined the defendant paving company (DeBartolo) failed to eliminate a question of fact about whether it created the dangerous condition (i.e., launched the instrument of harm) which is alleged to have caused plaintiff’s slip and fall. The complaint alleged DeBartolo paved over existing pavement, created the height-differential over which plaintiff tripped. Although a contractor like DeBartolo ordinarily does not owe a duty of care to a third party who is not a party to the contract, the so-called Espinal exceptions apply when a contractor is alleged to have “launched an instrument of harm.” Once that theory of liability is alleged, the contractor seeking summary judgment must present evidence negating the allegation which DeBartolo failed to do:

… [T]he plaintiffs pleaded in their amended complaint and bill of particulars that DeBartolo Landscaping created the alleged dangerous condition that caused the injured plaintiff to fall as a result of, among other things, failing to properly repave the area. Therefore, DeBartolo Landscaping, in support of that branch of its motion which was for summary judgment dismissing the amended complaint insofar as asserted against it, had to establish, prima facie, that it did not create the dangerous or defective condition alleged (see Espinal v Melville Snow Contrs., 98 NY2d at 140 …). * * * … [The] evidence reveals … that DeBartolo Landscaping resurfaced Shady Glen Court in the area of the crosswalk prior to the subject accident, and that the resurfacing, which involved the application of new asphalt on top of the existing pavement, immediately resulted in a lip or elevation differential at the seam between the existing pavement and new asphalt. Thus, this evidence failed to demonstrate that Debartolo Landscaping did not create the alleged dangerous condition that caused the injured plaintiff to fall … . Camelio v Shady Glen Owners’ Corp., 2023 NY Slip Op 04105, Second Dept 8-2-23

Practice Point: Generally contractors are not liable to persons who are not parties to the contract. However, under the Espinal case, contractors can be liable to third persons if they “launch an instrument of harm.” If, as here, the plaintiff alleges the contractor launched an instrument of harm, the contractor must negate that allegation to be entitled to summary judgment. Here the proof did not negate the applicability of the Espinal exception.

 

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LYFT WAS NOT VICARIOUSLY LIABLE FOR THE ALLEGED SEXUAL ASSAULT BY A LYFT DRIVER; THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR FRAUD BASED UPON THE ASSURANCES OF SAFETY ON LYFT’S WEBSITE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the vicarious liability and fraud causes of action against defendant Lyft, a livery cab service, should have been dismissed. The complaint alleged infant plaintiff used a mobile app to hire a Lyft driver, Singh, who began masturbating after she got in the car. The complaint failed to allege the driver was acting within the scope of his employment when the alleged sexual assault occurred. The complaint also failed to allege the elements of fraud based on the claim on the Lyft website that its service was safe and the drivers had been screened:

“[W]here an employee’s actions are taken for wholly personal reasons, which are not job related, the challenged conduct cannot be said to fall within the scope of employment” … . “A sexual assault perpetrated by an employee is not in furtherance of an employer’s business and is a clear departure from the scope of employment, having been committed for wholly personal motives” … . Here, assuming that Singh engaged in the sexual misconduct as alleged in the complaint, it is clear that such conduct was a departure from his duties as a Lyft driver and was committed solely for personal motives unrelated to Lyft’s business. As such, the sexual misconduct cannot be said to have been within the scope of employment … . Accordingly, the Supreme Court should have granted that branch of Lyft’s motion which was to dismiss the cause of action alleging vicarious liability under the doctrine of respondeat superior. …

“The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages” … . “Each of the foregoing elements must be supported by factual allegations containing the details constituting the wrong sufficient to satisfy CPLR 3016(b)” … . “To establish causation, the plaintiff must show that defendant’s misrepresentation induced plaintiff to engage in the transaction in question (transaction causation) and that the misrepresentations directly caused the loss about which plaintiff complains (loss causation)” … .

Here, although the complaint alleges that the plaintiffs were aware of alleged representations on Lyft’s website that the Lyft service was safe to use, it fails to sufficiently specify which statements on Lyft’s website were false, and when those representations were made or accessed by the plaintiffs … . Moreover, the complaint fails to set forth any facts sufficient to show that any alleged misrepresentations on Lyft’s website regarding the safety of Lyft rides directly and proximately caused the plaintiffs’ alleged damages, which were otherwise alleged to have been caused directly by Singh’s sexual misconduct while operating the vehicle … . It is not sufficient to merely allege that the infant plaintiff would not have used the Lyft app but for Lyft’s alleged misrepresentations regarding safety … . Browne v Lyft, Inc., 2023 NY Slip Op 04102, Second Dept 8-2-23

Practice Point: In a complaint alleging the employer is vicariously liable for the acts of its employee, unless it is alleged the employee was acting within the scope of employment the cause of action will be dismissed. Here the alleged sexual assault by defendant Lyft driver was not alleged to be within the scope of the driver’s employment.

Practice Point: Here the plaintiff alleged she was sexually assaulted by defendant Lyft driver. The fraud cause of action alleged the assertions on Lyft’s website that the service was safe and the drivers were screened were false. That was not enough to state a cause of action for fraud.

 

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MAILING THE NOTICE OF FORECLOSURE TO BOTH BORROWERS IN THE SAME ENVELOPE IS A VIOLATION OF RPAPL 1304 REQUIRING DENIAL OF THE BANK’S SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. The bank mailed the notice of foreclosure to both borrowers in the same envelope, a violation of RPAPL 1304:

… [T]he defendants are both borrowers for purposes of RPAPL 1304 and, thus, were each entitled to RPAPL 1304 notice … . Although both defendants were entitled to RPAPL 1304 notice, the plaintiff failed to establish that it sent a 90-day notice individually addressed to each defendant in separate envelopes, as required by the statute … . Rather, as the plaintiff concedes, the notices were mailed in a single envelope jointly to both defendants. Since the plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304, the Supreme Court should have denied those branches of its motion which were for summary judgment … . Deutsche Bank Natl. Trust Co. v Hennessy, 2023 NY Slip Op 03907, Second Dept 7-23-26

Practice Point: If the bank in a foreclosure action does not demonstrate strict compliance with the notice requirements of RPAPL 1304, it is not entitled to summary judgment. Here the bank violated RPALP 1304 by sending the notice of foreclosure to both borrowers in the same envelope.

 

 

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CAVEAT EMPTOR (BUYER BEWARE) DOES NOT APPLY TO JUDICIAL FORECLOSURE SALES; HERE THE BANK DID NOT DISCLOSE THE EXISTENCE OF A SENIOR MORTGAGE; SALE SET ASIDE AND DOWN PAYMENT RETURNED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure judicial sale should have been set aside because plaintiff bank failed to disclose the existence of a senior mortgage:

“The rule that a buyer must protect himself [or herself] against undisclosed defects does not apply in all strictness to a purchaser at a judicial sale” … . “‘[A] sale of land in the haste and confusion of an auction room is not governed by the strict rules applicable to formal contracts made with deliberation after ample opportunity to investigate and inquire'” … . “‘As a general rule, a purchaser at a foreclosure sale is entitled to a good, marketable title'” … . “‘[A] purchaser at a judicial sale should not be compelled by the courts to accept a doubtful title,'” and “‘if it was bad or doubtful, he [or she] should, on his [or her] application, be relieved from completing the purchase'” … . Accordingly, since the plaintiff failed to disclose the existence of the senior mortgage at the time of sale, or otherwise, the Supreme Court improvidently exercised its discretion in denying those branches of the nonparties’ motion which were to set aside the foreclosure sale and to direct the referee to return [the buyer’s] down payment. Wells Fargo Bank, N.A. v Schepisi, 2023 NY Slip Op 03943, Second Dept 7-26-23

Practice Point: Caveat emptor (buyer beware) does not apply to judicial foreclosure sales. Here the bank’s failure to disclose the existence of a senior mortgage required the sale be set aside and the down payment returned.

 

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PURSUANT TO THE RECENTLY ENACTED FORECLOSURE ABUSE PREVENTION ACT (FAPA) THE BANK COULD NOT TAKE ADVANTAGE OF THE SIX-MONTH EXTENSION OF THE STATUTE OF LIMITATIONS BECAUSE THE FORECLOSURE ACTION WAS DISMISSED AS ABANDONED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the foreclosure action was dismissed as abandoned and therefore the bank could not take advantage of the six-month extension of the statute of limitations:

The recently enacted Foreclosure Abuse Prevention Act (…hereinafter FAPA) replaced the savings provision of CPLR 205(a) with CPLR 205-a in actions upon instruments described in CPLR 213(4) … . Under CPLR 205-a(a), “[i]f an action upon an instrument described under [CPLR 213(4)] is timely commenced and is terminated in any manner other than . . . a dismissal of the complaint for any form of neglect, including, but not limited to those specified in . . . [CPLR 3215] . . . , the original plaintiff, or, if the original plaintiff dies and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months following the termination, provided that the new action would have been timely commenced within the applicable limitations period prescribed by law at the time of the commencement of the prior action and that service upon the original defendant is completed within such six-month period.” Here, the complaint in the 2009 action was dismissed insofar as asserted against Santos as abandoned pursuant to CPLR 3215(c) … . Therefore, the plaintiff is not entitled to the benefit of the savings provision of CPLR 205(a) or 205-a. U.S. Bank N.A. v Santos, 2023 NY Slip Op 03942, Second Dept 7-26-23

Practice Point: Where a foreclosure action has been dismissed as abandoned, the bank cannot take advantage of the six-month extension of the statute of limitations. The provisions of the newly enacted Foreclosure Abuse Prevention Act (FAPA) are explained.

 

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THE PLAINTIFF, A MALE EMT, ALLEGED HE WAS TERMINATED BECAUSE OF HIS INVOLVEMENT IN A TRAFFIC ACCIDENT AND SEVERAL FEMALE EMT’S WERE INVOLVED IN COMPARABLE ACCIDENTS BUT WERE NOT TERMINATED; PLAINTIFF STATED A CAUSE OF ACTION FOR SEX DISCRIMINATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff emergency medical technician (EMT) stated a cause of action for sex discrimination. Plaintiff alleged he was terminated because he was involved in a traffic accident but several female EMT’s were involved in comparable accidents but were not terminated:

The NYSHRL [state human rights law] and the NYCHRL [city human rights law], prohibit discrimination in employment on the basis of sex … . “A plaintiff alleging discrimination in employment in violation of the NYSHRL must establish that (1) she or he is a member of a protected class, (2) she or he was qualified to hold the position, (3) she or he suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination” … . “Under the NYCHRL, the plaintiff must establish that she or he was subject to an unfavorable employment change or treated less well than other employees on the basis of a protected characteristic” … . Here, accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently alleges circumstances which give rise to an inference of sex discrimination, and adequately states a cause of action pursuant to the NYCHRL and the NYSHRL … . Silvers v Jamaica Hosp., 2023 NY Slip Op 03938, Second Dept 7-26-23

Practice Point: Here a male employee alleged he was terminated because he was involved in a traffic accident and several female employees were involved in comparable accidents but were not terminated. That allegation stated a cause of action for sex discrimination. 

 

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A MOTION TO MODIFY THE CUSTODY PROVISIONS IN A SETTLEMENT AGREEMENT, WHERE THERE ARE CONTESTED FACTS, SHOULD NOT BE GRANTED WITHOUT A FULL HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion for a modification of custody allowing mother the relocate should not have have been granted without a hearing:

“Since a court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed” … . “This allows the court to fulfill its duty to make an enlightened, objective and independent evaluation of the circumstances” … . “[A]s a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing” … .  Rizea v Rizea, 2023 NY Slip Op 03935, Second Dept 7-26-23

Practice Point: Any modification of custody, where there are contested facts, requires a full hearing.

 

THE DISSENT IN THIS PERSISTENT VIOLENT FELONY OFFENDER CASE ARGUED THE 34-YEAR SENTENCE FOR THE 34-YEAR-OLD DEFENDANT WAS HARSH AND EXCESSIVE, NOTING THAT THE BURGLARIES WERE IN THE DAYTIME WHEN NO ONE WAS HOME (SECOND DEPT).

The Second Department, over a dissent, determined the 34-year sentence for four counts of burglary and related offenses was not unduly harsh or excessive. The majority concluded that the schizophrenia and bipolar mood disorder diagnoses were self-reported and unsupported:

We … disagree with our dissenting colleague that a reduction in the defendant’s sentence is warranted due to the defendant’s mental health condition. While it is undisputed that the defendant qualified for some level of mental health services, and, as the trial testimony reflected, among other things, that the defendant’s former parole officer was assigned to parolees that had a mental health diagnosis, the nature and scope of the defendant’s mental health condition was never probed at trial or at sentencing. The diagnoses of schizophrenia and bipolar mood disorder were self-reported by the defendant to the Department of Probation, but no medical records were introduced to corroborate the defendant’s statements. Moreover, at sentencing, the People introduced an audio recording of a phone call made by the defendant … , while he was incarcerated during the pendency of this matter, in which he admitted to having previously lied about having auditory hallucinations in order to acquire supportive housing.

From the dissent:

The gravity of a defendant’s criminal conduct, a defendant’s extensive criminal history, and the need for societal protection are already taken into consideration by the Penal Law provisions providing enhanced sentences for persistent violent felony offenders … . Contrary to the determination of my colleagues, nothing in this record warranted a further enhancement of the already-enhanced minimum aggregate sentence of an indeterminate term of imprisonment of 16 years to life, followed by lifetime parole supervision.

The defendant committed daytime burglaries when no one was home, and stole items such as jewelry, fur coats, and electronics. No victim had any encounter with the defendant. Even without considering any other factors, an aggregate term of imprisonment of 34 years to life is grossly disproportionate to the harm caused by the defendant’s conduct. People v West, 2023 NY Slip Op 03932, Second Dept 7-26-23

Practice Point: Here the sentence was already enhanced by defendant’s persistent violent felony status when it was further enhanced by the sentencing court. The majority concluded the sentence was not harsh and excessive. The dissent disagreed, noting that all the burglaries took place in the daytime when no one was home.

 

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DESPITE MOTHER’S DEFAULT, CUSTODY SHOULD NOT HAVE BEEN AWARDED WITHOUT A HEARING AND FINDINGS ON THE BEST INTERESTS OF THE CHILD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although mother defaulted, the court should not have made a custody ruling without a hearing and findings on the best interests of the child:

Courts may generally proceed by default when a party has failed to comply with an order of the court … . “This authority, however, in no way diminishes the court’s primary responsibility to ensure that an award of custody is predicated on the child’s best interests, upon consideration of the totality of the circumstances, after a full and comprehensive hearing and a careful analysis of all relevant factors” … . “A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record” … . “Although the determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court, the law favors resolution on the merits in child custody proceedings” … .

Here, the Supreme Court made a custody determination without a hearing and without making any specific findings of fact regarding the best interests of the child. Under the circumstances, that branch of the mother’s motion which was to vacate an order .. awarding custody to the paternal grandmother, should have been granted in the interest of justice … . Accordingly, we remit the matter … for a hearing and a new determination thereafter of the paternal grandmother’s petition for custody of the child, to be held with all convenient speed … . Matter of Trammell v Gorham, 2023 NY Slip Op 03923, Second Dept 7-26-23

Practice Point; Even in the face of a parent’s default, a custody award should not be made without a hearing and findings on the best interests of the child.

 

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