Category: [App Div 1st Dept]

Law of the case

J.P. Morgan Sec., Inc. v Vigilant Ins. Co., 2018 NY Slip Op 06146 [1st Dept, 2018]

However, application of the doctrine of the "law of the case" is not warranted under the particular circumstances before us.

The law of the case is applicable to "legal determinations that were necessarily resolved on the merits in a prior decision" (Brownrigg v New York City Hous. Auth., 29 AD3d 721, 722 [2d Dept 2006]). On the prior appeal, the Court of Appeals stated that "the Insurers do not earnestly dispute that the claims fall within the policy's definition of Loss" (21 NY3d at 333), but did not rely on the policy language in denying defendants' motions. Instead it focused on the public policy issue. Furthermore, the doctrine does not apply where a motion for summary judgment follows a motion to dismiss that was not converted to a motion for summary judgment pursuant to CPLR 3212(c)(see Alvarado v City of New York, 150 AD3d 500, 500 [1st Dept 2017]; Rosen v Mosby, 148 AD3d 1228, 1233 [3d Dept 2017], lv dismissed 30 NY3d 1037 [2017]; 191 Chrystie LLC v Ledoux, 82 AD3d 681, 682 [1st Dept 2011]).

Even if the Court of Appeals' prior determination is viewed as addressing the contractual issue, "while the law of the case doctrine is intended to foster orderly convenience' . . ., it is not an absolute mandate which limits an appellate court's power to reconsider issues where there are extraordinary circumstances, such as subsequent evidence affecting the prior determination or a change of law'" (Frankson v Brown & Williamson Tobacco Corp., 67 AD3d 213, 218 [2d Dept 2009]; see also Foley v Roche, 86 AD2d 887, 887 [1982], lv denied 56 NY2d 507 [1982] [holding that where the basis for a prior order had since been overruled by the Supreme Court of the United States and by the Court of Appeals, the law of the case doctrine can be ignored even though the prior order was from a higher court]). Here, the United States Supreme Court's decision in Kokesh, characterizing SEC disgorgement as a penalty, represents such a change of law.

Replies

Gelaj v Gelaj, 2018 NY Slip Op 05917 [2d Dept 2018]

The purpose of a reply affidavit or affirmation is to respond to arguments made in opposition to the movant's motion and not to introduce new arguments or grounds in support of the relief sought (see Matter of Moorman v Meadow Park Rehabilitation & Health Care Ctr., LLC, 57 AD3d 788; Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658). There are exceptions to this rule, including when evidence is submitted in response to allegations made for the first time in opposition, or when the other party is given an opportunity to respond to the reply papers (see Gottlieb v Wynne, 159 AD3d 799; Central Mtge. Co. v Jahnsen, 150 AD3d 661). Neither of those exceptions applies here. The time for the defendant to produce the letters allegedly from the plaintiff transferring his interest in the shares would have been in support of her cross motion, inter alia, for summary judgment declaring that she is the sole owner of the shares. There was no new allegation in the plaintiff's opposition to the cross motion that would have warranted the defendant's submission of the letters in reply. Further, the plaintiff was not given an opportunity to respond by way of surreply or oral argument. An unrecorded, in-chambers discussion of the cross motion cannot be deemed an opportunity to respond, especially in light of the plaintiff's claim on appeal that the letters are forgeries. Moreover, the defendant did not plead a demand for a declaratory judgment in a counterclaim (see Matter of Nozzleman 60, LLC v Village Bd. of Vil. of Cold Spring, 34 AD3d 680; Martinez v Dushko, 7 AD3d 584). The defendant also did not assert a claim to sole ownership of the shares in her pleading. Accordingly, the Supreme Court should not have, in effect, granted that branch of the defendant's cross motion which was for summary judgment declaring that she is the sole owner of the shares.

The bold is mine

Compare with

Cuevas v Baruti Constr. Corp., 2018 NY Slip Op 05905 [1st Dept 2018]

The motion court properly accepted Veras's second, clarifying affidavit in plaintiff's submission on reply. The second affidavit merely amplified the factual recitation set forth in Veras's initial affidavit, which had been procured and drafted by the defense and omitted the pertinent detail that the workers were actually in the process of lowering the machine from the roof, and not engaged in pushing it across the flat roof, when the accident occurred. Veras's second affidavit was a proper response to defendant's submission, and did not contradict the statement in his first affidavit (see Cox v McCormick Farms, 144 AD3d 1533 [4th Dept 2016] [where question was not directly asked in deposition, proper to consider subsequent affidavit providing greater specificity without directly contradicting deposition testimony]; Severino v 157 Broadway Assoc., LLC, 84 AD3d 505 [1st Dept 2011] [same]). Nor could Veras's second affidavit be rejected as raising a feigned issue of fact (see Sutin v Pawlus, 105 AD3d 1293 [3d Dept 2013]; Kalt v Ritman, 21 AD3d 321 [1st Dept 2005]), especially since it comported with all of the other eyewitness testimony in the case, as well as with Veras's own early unsworn statement, and explained the ambiguity arising from the omission of additional details in his first affidavit.

 

Summary judgment

Poon v Nisanov, 2018 NY Slip Op 04365 [2d Dept 2018]

With certain limitations not applicable here, "[a]ny party may move for summary judgment in any action" (CPLR 3212[a]). "A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" (CPLR 3212[b]). The moving party's submissions must show "that there is no defense to the cause of action or that the cause of action or defense has no merit" (id.). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (id.; see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

A plaintiff moving for summary judgment on a cause of action asserted in a complaint generally has the burden of establishing, prima facie, "all of the essential elements of the cause of action" (Nunez v Chase Manhattan Bank, 155 AD3d 641, 643; see Stukas v Streiter, 83 AD3d 18, 23). By contrast, a defendant moving for summary judgment dismissing one of the plaintiff's causes of action may generally sustain his or her prima facie burden "by negating a single essential element" of that cause of action (Nunez v Chase Manhattan Bank, 155 AD3d at 643). To defeat summary judgment, the nonmoving party need only rebut the prima facie showing made by the moving party so as to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324; Stukas v Streiter, 83 AD3d at 23-24).

Beard v Chase, 2018 NY Slip Op 04636 [1st Dept 2018] 

Plaintiffs were not required, as movants, to disprove any possible defenses defendants might assert in opposition to their motion, such as partial performance (see C.H. Sanders Constr. Co. v Bankers Tr. Co., 123 AD2d 251, 252 [1st Dept 1986]).

There was a dissent.

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.