Author: DMG

Judicial Estoppel

Bihn v Connelly, 2018 NY Slip Op 03956 [2d Dept. 2018]

Under the doctrine of judicial estoppel, also known as estoppel against inconsistent positions, a party may not take a position in a legal proceeding that is contrary to a position he or she took in a prior proceeding, simply because his or her interests have changed (see Festinger v Edrich, 32 AD3d 412, 413; McCaffrey v Schaefer, 251 AD2d 300, 301; Ford Motor Credit Co. v Colonial Funding Corp., 215 AD2d 435, 436). The doctrine applies only where the party secured a judgment in his or her favor in the prior proceeding (see State Farm Mut. Auto. Ins. Co. v Allston, 300 AD2d 669, 670; Tilles Inv. Co. v Town of Oyster Bay, 207 AD2d 393, 394). This 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'" (Ford Motor Credit Co. v Colonial Funding Corp., 215 AD2d at 436, quoting Environmental Concern v Larchwood Constr. Corp., 101 AD2d 591, 593). "The doctrine is invoked to estop parties from adopting such contrary positions because the judicial system cannot tolerate this playing fast and loose with the courts" (Ford Motor Credit Co. v Colonial Funding Corp., 215 AD2d at 436 [internal quotation marks omitted]).

Preliminary injunction

Chana v Machon Chana Women's Inst., Inc., 2018 NY Slip Op 03961 [2d Dept. 2018]

To obtain a preliminary injunction, a movant must demonstrate (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) a balancing of the equities in the movant's favor (see CPLR 6301; XXXX, L.P. v 363 Prospect Place, LLC, 153 AD3d 588, 591). A court evaluating a motion for a preliminary injunction must be mindful that the purpose of a preliminary injunction is to maintain the status quo and not to determine the ultimate rights of the parties (see Masjid Usman, Inc. v Beech 140, LLC, 68 AD3d 942, 942; Ying Fung Moy v Hohi Umeki, 10 AD3d 604, 605; see also S.P.Q.R. Co., Inc. v United Rockland Stairs, Inc., 57 AD3d 642, 642).

Emphasis is mine.

 

SOL on conversation and unjust enrichment

L.G.B. Dev., Inc. v Shammas, 2018 NY Slip Op 03967 [2d. Dept. 2018]

These causes of action sought damages for conversion and unjust enrichment and were barred by the three-year limitations period provided in CPLR 214(3) (see Stewart v GDC Tower at Greystone, 138 AD3d 729; Ingrami v Rovner, 45 AD3d 806).

Ingrami v Rovner, 45 AD3d 806 [2d Dept. 2007]

The statute of limitations on an unjust enrichment claim begins to run upon the occurrence of the wrongful act giving rise to the duty of restitution (id.). 

 

Judiciary Law § 753(A)(3)

Union Temple of Brooklyn v Seventeen Dev., LLC, 2018 NY Slip Op 04023 [2d Dept. 2018]

To prevail on a motion to hold a party in contempt pursuant to Judiciary Law § 753(A)(3), the movant must demonstrate by clear and convincing evidence that (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) the order was disobeyed, (3) the party to be held in contempt had knowledge of the court's order, and (4) the movant was prejudiced by the offending conduct (see El-Dehdan v El-Dehdan, 26 NY3d 19, 29; McCain v Dinkins, 84 NY2d 216, 226; Matter of Savas v Bruen, 154 AD3d 859, 860). Here, the plaintiff established by clear and convincing evidence that Seventeen failed to comply with the order dated May 19, 2015, of which it was aware, and that such conduct prejudiced the plaintiff. Contrary to Seventeen's contention, it was not necessary to show that its disobedience was deliberate or willful (see Town of Huntington v Reuschenberg, 70 AD3d 814, 815; Hinkson v Daughtry-Hinkson, 31 AD3d 608). Once the plaintiff made its prima facie showing, the burden shifted to Seventeen to refute the plaintiff's showing or to offer evidence of a defense, such as an inability to comply with the order (see El-Dehdan v El-Dehdan, 26 NY3d at 35-36; Matter of Savas v Bruen, 154 AD3d at 860; Lundgren v Lundgren, 127 AD3d 938, 941). Seventeen failed to make such a showing or to raise a factual issue warranting a hearing (see Bais Yoel Ohel Feige v Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc., 78 AD3d 626, 627; Town of Huntington v Reuschenberg, 70 AD3d at 815).

SOL for DJ

Village of Islandia v County of Suffolk, 2018 NY Slip Op 04025 [2d Dept. 2018]

An action for which no limitation is specifically prescribed by law must be commenced within six years (see CPLR 213[1]).

While no period of limitation is specifically prescribed for a declaratory judgment action, the six-year catch-all limitation period of CPLR 213(1) does not necessarily apply to all such actions. Rather, in order to determine the statute of limitations applicable to an action for a declaratory judgment, a court must examine the substance of the action. Where it is determined that [*2]the parties' dispute can be, or could have been, resolved in an action or proceeding for which a specific limitation period is statutorily required, that limitation period governs (see Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202; Solnick v Whalen, 49 NY2d 224, 229; Matter of Dandomar Co., LLC v Town of Pleasant Val. Town Bd., 86 AD3d 83, 90).

Law of the case

IGS Realty Co., L.P. v Brady,  2018 NY Slip Op 04086 [1st Dept. 2018]

Pro se defendant's arguments on this appeal, previously raised and rejected by this Court and supported by no new evidence or change of law, are barred by law of the case (see Delgado v City of New York, 144 AD3d 46, 51 [1st Dept 2016]; Carmona v Mathisson, 92 AD3d 492, 492-493 [1st Dept 2012]).

Hudson City Sav. Bank v 59 Sands Point, LLC, 2018 NY Slip Op 03965 [2d Dept. 2018]

In opposition, both HCSB and the Strausman defendants failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). HCSB contends that summary judgment should have been denied as premature because additional discovery was warranted, inter alia, regarding the issue of fraud in the execution of the Frankel mortgages. However, on a prior appeal, this Court considered and rejected HCSB's contention that the requested disclosure was material and necessary to its prosecution of this action (see Hudson City Sav. Bank v 59 Sands Point, LLC, 153 AD3d at 613). Therefore, the doctrine of law of the case precludes reconsideration thereof (see Alleyne v Grant, 124 AD3d 569; Matter of Fulmer v Buxenbaum, 109 AD3d 822, 823; Allison v Allison, 60 AD3d 711). Accordingly, the Supreme Court properly granted that branch of Frankel's motion which was for summary judgment dismissing HCSB's second cause of action.

CPLR 4547 — Negotiations / Missing Witness / Hearsay

Matter of Chi-ChuanFile Wang, 2018 NY Slip Op 04090 [1st Dept. 2018]

Here, proponents challenge the documents and testimony admitted into evidence concerning settlement negotiations in Shanghai at which proponent provided objectant with paintings he denied having taken from decedent's bank vault. Although CPLR 4547 precludes presentation of evidence of settlement negotiations, it expressly exempts exclusion of evidence, which is otherwise discoverable, solely because such evidence was presented during the course of settlement negotiations.

The list of paintings that was signed by proponent as part of the settlement conference in Shanghai was admitted into evidence because it included a factual admission that proponent possessed a painting that he accused objectant of stealing. Thus, its use at trial was permissible, notwithstanding that the factual statement was contained in a settlement document (see PRG Brokerage Inc. v Aramarine Brokerage, Inc., 107 AD3d 559, 560 [1st Dept 2013]).

Proponents also challenge the court's missing witness charge with respect to two of decedent's treating doctors in the hospital and the attorney who drafted the will. The court did not improvidently exercise its discretion in providing a missing witness charge with respect to decedent's treating doctors. The court's missing witness charge with respect to the attorney, Jerome Kamerman, was in error. Mr. Kamerman was living in Florida at the time of trial and was unavailable to proponents (see Zeeck v Melina Taxi Co., 177 AD2d 692, 694 [1st Dept 1991] [Proof that a witness is beyond the jurisdiction of the court is ordinarily sufficient to bar the inference as a matter of law]; People v Gonzalez, 68 N.Y.2d 424, 428 [1986]). In light of the testimony at trial regarding decedent's testamentary capacity, we find the error to be harmless as a matter of law (see CPLR 2002; Nestorowich v Ricotta, 97 NY 2d 393 [2002] ["viewing the charge as a whole, and in light of the evidence presented, counsel's arguments and the otherwise proper jury instructions, there is no indication that the error in judgment' charge clouded the issue or negatively influenced the jury's determination"]).

Emphasis is mine

Finally, proponents challenge the testimony of objectant's expert because his opinion was based in part on conversations with objectant regarding decedent's mental capacity. A psychiatrist's opinion may be received in evidence even though some of the information on which it is based is inadmissible hearsay, if the hearsay is "of a kind accepted in the profession as reliable in forming a professional opinion, or if it comes from a witness subject to full cross-examination on [] trial" (People v Goldstein, 6 NY3d 119, 124 [2005], cert denied 547 US 1159 [2006]). The court properly permitted the expert to testify, despite his conversations with objectant, since she was subject to full cross-examination at trial.

 

in pari delicious

Matter of Wimbledon Fin. Master Fund, Ltd. v Wimbledon Fund, SPC, 2018 NY Slip Op 04075 [1st Dept. 2018]

On appeal, Class C now argues that petitioner's claims are barred by the doctrine of in pari delicto. This doctrine may be raised for the first time on appeal (see Janke v Janke, 47 AD2d 445, 449-450 [4th Dept 1975] [unclean hands can be considered for first time on appeal], affd 39 NY2d 786 [1976]); FIA Leveraged Fund Ltd. v Grant Thornton LLP, 50 Misc 3d 1213[A], 2016 NY Slip Op 50093[U], [Sup Ct, NY County 2016] [in pari delicto is equivalent to unclean hands], affd 150 AD3d 492 [1st Dept 2017]). 

preserved

Vista Eng'g Corp. v Everest Indem. Ins. Co., 2018 NY Slip Op 03730 [1st Dept. 2018] (note the dissent)

It is well settled that a party may not argue on appeal a theory never presented to the court of original jurisdiction (see Tortorello v Carlin, 260 AD2d 201, 205 [1st Dept 1999]; Sean M. v City of New York, 20 AD3d 146, 149-150 [1st Dept 2005] [same]; Admiral Ins. Co. v Marriott Intl., Inc., 79 AD3d 572 [1st Dept 2010], lv denied 17 NY3d 708 [2017] [same]; Elter v New York City Hous. Auth., 260 AD2d 232 [1st Dept 1999] [same]; Botfeld v Wong, 104 AD3d 433, 434 [1st Dept 2013] [argument improperly raised for the first time on appeal since the issue was not a purely legal issue apparent on the face of the record but required for resolution facts not brought to the opposing party's attention on the motion]). In Preserver Ins. Co. v Ryba (10 NY3d 635 [2008]), the Court of Appeals held that although the policy at issue covered risks in New York, the insured was a New Jersey company, with its only offices located in New Jersey, and, hence, the insured was not located in New York. Nor was the policy "issued for delivery" in New York (id. at 642). While the Court of Appeals in Carlson held that the "meaning of issued or delivered' is informed by our decision in" Preserver (Carlson, 10 NY3d at 296), the Court expanded on the definition of "located in" by adding a substantial business presence element. The dissent discounts the fact that this element was not briefed before the motion court, or before us. We decline to grant Vista summary judgment on an incomplete record and on a theory that was not raised below.