Rigano v. Vibar Const., Inc.

The issue decided in the case is whether a notice of mechanic’s lien can be amended nunc pro tunc to reflect the name of the true owner of the property or whether the misnomer invalidates the lien.

George Vigogna (sole shareholder of Vibar Constructions Corp.) and Nick Rigano (sole shareholder of Fawn Builders, Inc.) were business partners for over 35 years up until the dispute at question arose in 2007. Both parties often worked together, split their profits and rarely put their business agreements in writing.

During the project at issue, Vigogna’s company constructed a driveway to access a property and claims that Rigano’s company failed to compensate them for the construction of the road. Vigogna’s company filed a notice of a mechanic’s lien on the property in order to recover costs for construction of the road. Rigano sought to have the lien discharged on the grounds that he, and not his company owned the property, and that the lien was invalid. Vigogna sought to amend the lien. The Supreme Court granted Rigano’s petition and discharged the lien and the Appellate Division affirmed holding that “a misidentification of the true owner is a jurisdictional defect which cannot be cured by an amendment nunc pro tunc.”

The Court of Appeals reversed the Appellate Division’s holding. They referenced Matter of Niagara Venture v. Sicoli & Massaro, where they stated in that case that, “Substantial compliance . . . shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same . . .  and a failure to state the name of the true owner . . . or a misdescription of the true owner, shall not affect the validity of the lien.” The Court also referenced Article 2 of the Lien Law which says they are to be construed liberally.

Combining these principles, the Court said in these particular circumstances, that the amendment sought was authorized and the defect in the lien was a misdescription, which allowed the amendment, and not a misidentification.

998 N.Y.S. 2d 748 (N.Y. 2014)

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Liberty Affordable Housing Inc. v. Maple Court Apartments

In this appeal, the Fourth Department examined whether the Court of Appeals decision in Rovello v. Orofino Reality Co., which held that under New York Civil Practice Law and Rules 3211(a)(7) “‘summary dismissal is appropriate . . . when the defendant’s evidentiary submissions establish conclusively that plaintiff has no cause of action,’” survived the Court of Appeals subsequent decision in Miglino v. Bally Total Fitness of Greater New York, Inc.

In 2006, the Plaintiff, Maple Court Apartments, contracted with the Defendant, Liberty Affordable Housing, Inc., for the sale of real property. The Plaintiff was unable to secure funding by the closing date, or by the December 31, 2007, extension to the closing date. In April 2009, the Defendant sent the Plaintiff a letter in which the Defendant made clear that the purchase agreement was terminated and that the Defendant would market the property to other buyers. Two years later, in 2011, the Plaintiff secured funding and made another offer on the property. In a September, 2011, letter to the Defendant, the Plaintiff indicated the need for a new purchase agreement. The Defendant rejected the Plaintiff’s offer and accepted a higher offer from a third party.

The Plaintiff then commenced a suit for specific performance on the original 2006 contract. The Defendant moved for dismissal under N.Y. C.P.L.R. 3211(a)(7), which authorizes a court to dismiss a complaint when the opposing party fails to state a cause of action. In order to show the 2006 purchase agreement was invalid and therefore the Plaintiff had no cause of action, the Defendant submitted the 2009 letter and the 2011 letter to the court. The trial court dismissed the Plaintiff’s suit, finding it was clear that the original 2006 purchase agreement was invalid. The Plaintiff then appealed, arguing “that Miglino fundamentally changed the parameters of 3211(a)(7) and effectively barred the consideration of any evidentiary submissions outside the four corners of the complaint.”

The Plaintiff’s argument was based on the language in Miglino where “the Court cited Rovello for the proposition that ‘3211(a)(7) . . . limits [courts] to an examination of the pleadings to determine whether they state a cause of action’” and therefore found “‘the case is not currently in a posture to be resolved as a matter of law on the basis of the parties’ affidavits.’” The Plaintiff argued that this language from Miglino prohibits a court from considering evidentiary submissions when ruling on a 3211(a)(7) motion.

The court held for the Defendant, finding that Miglino did not change Rovello, but simply applied its framework. The court reasoned that “Miglino was ‘not currently in a posture to be resolved as a matter of law on the basis of the parties’ affidavits’ because the evidentiary submissions were insufficiently conclusive, not because they were categorically inadmissible in the context of a 3211(a)(7) motion.” This reading of Miglino was in line with similar decisions in the First and Second Departments. Therefore, the court found it was proper for the supreme court to consider the documents the Defendant submitted in support of its motion to dismiss. Turning to the substantive question, the court found the Defendant’s evidentiary submissions conclusively showed the Plaintiff was not willing and able to perform its end of the contract by the contract’s closing date or a reasonable time afterward. Therefore, the Plaintiff had no cause of action for specific performance and the supreme court properly dismissed the suit under 3211(a)(7).

998 N.Y.S.2d 543 (4th Dep’t. 2015)

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Reis v. Volvo Cars of North America

This appeal addresses the proper jury charge for defective design of product suits. The plaintiff, Manuel Reis was pinned against a wall and lost his left leg after his friend’s 1987 Volvo station wagon lurched forward upon starting the engine. The plaintiff initiated this action, claiming that Volvo was responsible for this accident for failing to install a starter interlock in their cars with manual transmissions, or at least, warning users that the car could lurch forward when the engine is started while the car is in first gear. The plaintiff offered expert testimony stating that many automobile manufacturers had begun installing starter interlock mechanisms in their 1987 manual transmission cars. Volvo, on the other hand, justified their decision not to install starter interlocks because it would prevent the car from moving quickly in an emergency and the likelihood of a situation such as plaintiff’s occurring was very low. The jury was charged with PJI 2:15 (Common Law Standard of Care – Defendant Having Special Knowledge) and PJI 2:16 (Common Law Standard of Care – Customary Business Practices) despite Volvo’s objections. The jury found that Volvo was negligent in failing to install a starter interlock, but also found that the 1987 station wagon was reasonably safe without the device installed. The plaintiff was awarded $10,000,000 in damages.

Before judgment was entered however, the Appellate Division decided Volvo’s appeal from the Supreme Court’s decision to deny summary judgment, and dismissed plaintiff’s failure to warn claims. Thus, the trial court set aside that verdict, but entered judgment on the design defect claim. This decision was then appealed by both parties, and the Appellate Division held that the trial court properly set aside the failure to warn claim, and did not err in issuing PJI 2:15 and 2:16.  Two justices dissented, and would have found that jury charge 2:16 was inappropriate such that a new trial was warranted. Volvo appealed this decision under CPLR 5601(a), which provides that an appeal may be made when two Justices dissent in favor of the appellant and that all issues decided against appellant are subject to review.

Here, the Court found that jury charge PJI 2:15 was given in error because it pertains to malpractice claims, not design defect claims. Malpractice claims use a community standard as opposed to the reasonable person standard on which design defect claims must adhere. The Court found that this mistake could have impacted the jury’s decision because the jury returned an inconsistent finding of guilt on two claims that were substantially identical. The Court also examined PJI 2:16, and found that it was properly given because it instructed the jury to consider the totality of the evidence, not to simply find guilt because of a failure to conform to the community standards. The Court held that a determination that PJI 2:15 was issued in error necessitated a new trial and reversal.

993 N.Y.S.2d 672 (N.Y. 2014)

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Kimso v Ghandi

This appeal addresses a party’s ability to amend a pleading following trial and the full presentation of proof by both parties. Counterclaim plaintiff, Mahesh Gandhi and his two associates formed and held equal one-third interests in three corporations. The corporations were given a twenty million dollar loan from the U.S. Dept. of Housing and Urban Development (“HUD”), nine million dollars of that loan was loaned to the three associates as a shareholder loan—each associate made regular interest payments on that loan. Gandhi was removed as the corporations’ manager due to suspected misappropriation of funds. Gandhi filed a state action seeking to compel arbitration and the corporations filed a federal claim alleging multiple counts. Eventually, the parties reached a Settlement Agreement (“Agreement”) agreeing to end all actions and Gandhi sold his one-third interest, but no provision explicitly rid of Gandhi’s shareholder loan obligation.

The corporations stopped making payments to Gandhi after making twenty-three monthly payments during which Gandhi did not pay shareholder loan payments. The corporations filed an action seeking declaratory judgment to “offset the remaining amount they owed Gandhi under the Settlement Agreement against the money Gandhi owed the corporations on the shareholder loan notes.” Litigation continued, but both parties’ amended their pleadings. In the corporations’ amendment, they admitted they were “’joint and severally liable for the amounts due’. . .and ‘if Plaintiffs fail to make the full payments to Defendant as specified under Settlement Agreement, Defendant may allege that Plaintiffs are in default of the Settlement Agreement and that Defendant would be entitled to all his remedies.’” One month prior to trial, corporations filed motions to preclude Gandhi from presenting evidence/claiming payments due to him. The trial court deferred, but at trial allowed evidence about the agreement and back payments owed. Gandhi moved to conform the pleadings to align to the proof at trial, seeking to assert a counterclaim. The supreme court granted his motion, the corporations appealed and the appellate division reversed the trial court’s ruling—finding, the late amendment prejudiced the corporations. Gandhi appealed.

Here, the Court found that pursuant to N.Y. C.P.L.R. 3025, a party is permitted to amend a pleading “‘at any time by leave of court . . . before or after judgment to conform [the pleading] to the evidence.’” Furthermore, the Court found that where there is no prejudice to the party opposing the amendment, the court should grant leave to amend. The court has great latitude in exercising discretion over applications to amend pleadings and may only be reversed where there is an abuse of discretion. Here, the court found the appellate division did abuse its discretion because there was no prejudice to the corporations that would support a denial of Gandhi’s request to amend. The Court found that because the corporations had stated in their amended complaint that the sum of money they owed should be reduced by the money Gandhi owed them—explicitly addressing potential back payments—they were not permitted to allege prejudice from Gandhi’s demand for payments due to him. This is because “facts admitted in a party’s pleadings constitute . . .admission, and are conclusive . . .” Furthermore, the Court found that the corporations had elicited evidence that was the basis of Gandhi’s claim.

The Court reversed and remitted the case to the appellate division.

998 N.Y.S.2d 740 (N.Y. 2014)

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Harwood v. Addison

This appeal concerns the termination of employment of a public employee. The Petitioner, Brenda Harwood, served as a senior account clerk typist in the City of Watertown’s Parks and Recreation Department. After a twenty-nine year career with the Department, the City brought incompetence and misconduct charges against Harwood, pursuant to Civil Service Law § 75. The Hearing Officer found that two of the charges could be sustained by the evidence, and found Petitioner guilty of one count of “fail[ing] to deposit cash and checks in a timely manner” and one count of “willfully misleading the City’s retained accountant.” The City also found that Petitioner was guilty of a second count of incompetence because she had “fail[ed] to bill for services in a timely manner.” Petitioner was found not guilty of the additional charges of incompetence and misconduct. As a result of the Hearing Officer’s findings, the City “terminated [Harwood’s] employment” with the Department. Petitioner filed suit in the Supreme Court pursuant to Civil Practice Law and Rules Article 78, and Supreme Court Justice Greenwood transferred this matter to the Appellate Division Fourth Department.

The Appellate Division reviewed each of the charges in turn, beginning with the Hearing Officer’s finding that Petitioner was guilty of “willfully misleading the City’s retained accountant.” The City alleged that Petitioner had been dishonest regarding a number of uncashed checks. However, the court found that evidence raised by Petitioner–namely, that she had previously stated that she had not deposited a check for the City–directly contradicted the City’s position that she lied about making the deposit. Therefore, the court found this count was “not supported by substantial evidence.”

The court next analyzed the remaining incompetence charges together, noting a number of mitigating factors in favor of a more lenient sentence for Petitioner. The court noted “that there were several factors beyond [Harwood’s] control that contributed in the delays” in making the deposits. Petitioner’s service to the City in her official capacity, although not named in her official job description, included a number of time-consuming clerical, scheduling, and other assorted responsibilities that “took in excess of 50% of her time.” Petitioner also suffered from an illness that forced her to intermittently miss work over a period of six months, and the court noted that because no one else in the office took over her assignments during that period, “several of [her] completed invoices were inadvertently deleted[.]” The court also relied on Petitioner’s “long service to the City and her previously unblemished work record[,]” the testimony demonstrating that “she was a hard worker and did her best to complete all of her assigned duties[,]” and that she often stayed late without extra pay to justify mitigating her sentence.

In assigning a proper sanction for Petitioner, the court explained that the initial punishment of termination was vastly disproportionate to the nature of the original charged offenses, noting the penalty was “so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one’s sense of fairness.” (citing Matter of Pell v. Board of Educ. of Union Free Sch. Dist. No. 1. of Towns of Scarsdale and Mamaroneck, Westchester Cnty., 313 N.E.2d 321, 326 (N.Y.1974)). Accordingly, the court found that a sentence of a two-month suspension without pay, rather than termination, was appropriate for the two remaining incompetence charges.

988 N.Y.S.2d 814 (4th Dep’t. 2014)

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Puchalski v. Depew Union Free School Dist.

The petitioner, Robert Puchalski, was an administrator for the respondent, Depew Union Free School District (“District”) and the Board of Education of Depew Union Free School District, for over seventeen years, and served as an elementary school principal since 2003. On February 28, 2012, Petitioner was served by Respondent with twenty-one charges of “misconduct, immoral character and/or conduct unbecoming a principal.”

Petitioner requested a hearing pursuant to Education Law section 3020-a, that was held and concluded on October 23, 2012. The Hearing Officer (HO) issued a decision on January 15, 2013 imposing a penalty of termination, and emailed the decision to the attorneys of the parties and the State Education Department (SED). On January 22, 2013 the SED mailed the decision to the parties, and Petitioner received it the following day.

On February 1, 2013, Petitioner filed a petition seeking an order vacating the decision of the HO pursuant to CPLR 7511. On February 5, 2013, Petitioner’s process server delivered the papers to a payroll clerk employed by the District despite being told that she was only responsible for payroll services, and that the District’s administrative offices were at a different location. In response, Respondents filed a pre-trial motion to dismiss the petition asserting that it was untimely and that there was improper service of process. The Supreme Court, Erie County, entered judgment against Petitioner, upholding Respondents’ motion to dismiss the petition holding that it was time-barred. Petitioner appealed and the Appellate Division, Fourth Department, held that the petition was timely, but affirmed the Supreme Court ruling on the alternative ground that Petitioner did not properly serve Respondents.

Respondents argued that the 10 day appeal deadline from a HO decision in Education Law section 3020-a, began to run when the HO e-mailed his final decision to Petitioner. However the Appellate determined that such a ruling would render the statute requirement that a HO notify the Commissioner of Education who in turn notifies the affected employee superfluous. Therefore the court held that the time to appeal began to run when Petitioner received the decision by mail from the SED.

Additionally, according to CPLR 311(a)(7), personal service upon a school district must be made to a school officer as defined in the education law. Education Law section 2(13) states that a school officer includes a clerk of any school district. Here, the court did not recognize the payroll clerk as a “clerk” within the definition of section 2(13), because Education Law section 2130, which was enacted at the same time. defined a clerk as a “treasurer and collector in union free school district” and further stipulates that an individual is to be appointed as clerk of the board of education of a district. Accordingly, the court held that the payroll clerk was not authorized to accept service of process, and affirmed the Supreme Court’s judgment to grant the respondents’ motion to dismiss.

989 N.Y.S.2d 739 (4th Dep’t. 2014)

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Survey: 2013 Civil Practice

Survey of New York Civil Practice law for 2012–2013.

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Michael Anthony Bottar: A graduate of Colgate University and summa cum laude graduate of Syracuse University College of Law, the author is a member of Bottar Leone, PLLC, an adjunct professor at Syracuse University College of Law, a member of the Syracuse University College of Law board of advisors, and a member of the board of directors of the New York State Academy of Trial Lawyers. The author thanks 3L Brooke Jenne for her assistance with research essential to this year’s Survey.

Survey: 2012 Civil Practice

Survey of New York Civil Practice law for 2011–2012.

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Michael Anthony Bottar is a graduate of Colgate University and summa cum laude graduate of Syracuse University College of Law, the author is a partner with Bottar Leone, PLLC, an adjunct professor at Syracuse University College of Law, a member of the Syracuse University College of Law Board of Advisors, and a member of the Board of Directors of the New York State Academy of Trial Lawyers. The author thanks Lauren Wojnowicz for her assistance with research essential to this year’s Survey.

Survey: 2011 Civil Practice

Between July 1, 2010 and June 30, 2011, New York’s Court of Appeals and appellate divisions published hundreds of decisions that impact virtually all practitioners. These cases have been “surveyed” in this article, meaning that the author has made an effort to alert practitioners and academicians about noteworthy changes in New York State law and to provide basic detail about the changes in the context of the Civil Practice Law and Rules (CPLR). Whether by accident or design, the author did not endeavor.

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Michael Bottar: J.D., summa cum laude, Syracuse University College of Law (Order of the Coif, Order of Barristers); B.A., Colgate University; partner, Bottar Leone, PLLC, Syracuse, New York; adjunct professor, Syracuse University College of Law; board of directors, Syracuse University Law Alumni Association and New York State Academy of Trial Lawyers

Survey: 2010 Civil Practice

This Survey year includes several key legislative enactments and
case developments that impact virtually all practitioners.  These
developments have been “surveyed” in this Article, meaning that the
authors have made an effort to alert practitioners and academicians
about noteworthy changes in New York State law and to provide basic
detail about the change in the context of the Civil Practice Law and
Rules (CPLR). Whether by accident or design, we did not endeavor to
discuss every Court of Appeals or appellate division decision.

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Michael A. Bottar: J.D., summa cum laude, Syracuse University College of Law (Order of the Coif, Order of Barristers); B.A., Colgate University; Attorney, Bottar Leone, PLLC, Syracuse, New York; Adjunct Professor, Syracuse University College of Law; Board of Directors, Syracuse University Law Alumni Association and New York State Academy of Trial Lawyers.

Kimberly Wolf Price: J.D., magna cum laude, Syracuse University College of Law (Order of the Coif); B.A., Colgate University; Assistant Dean, Office of Professional and Career Development, Syracuse University College of Law; Adjunct Professor, Syracuse University College of Law.