Opinion
Index Nos. 160751/2015 008
03-09-2023
DIANE SOLOMON, VICTORIA MEZZICH, Plaintiff, v. 715-723 SIXTH AVENUE OWNERS CORP., ROOP METHARAMANI, DAVID CARLOS, JOAN DZIEKANSKI, MELISSA GREEN, LYDIA BELL, E&M BRONX ASSOCIATES LLC, 101 WEST OWNER I, LLC,715-723 SIXTH AVENUE REALTY LLC, SIREN MANAGEMENT CORP. Defendant.
Unpublished Opinion
MOTION DATE 03/06/2023
DECISION + ORDER ON MOTION
HON. SABRINA KRAUS JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 008) 290, 291,292, 293, 294, 295, 296, 297, 298, 299, 300, 301,302, 303, 304, 305, 306, 307, 308, 314, 315, 316, 317, 318, 319, 320, 321,322, 323, 324,325,326,327,328 were read on this motion to/for _PRECLUDE.
BACKGROUND
This action is scheduled for a bench trial before this Court next month. Based on prior orders, there are three remaining substantive causes of action before the Court. They are breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and intentional misrepresentation. Plaintiffs also seek punitive damages and attorneys' fees.
PENDING MOTION
Defendants have made an in limine motion seeking an order precluding plaintiffs from introducing evidence of emotional distress, back pain/injury or other physical ailments, supposed misrepresentations made to non-parties, and attorney fees and/or expenses.
On March 3, 2023, the motion was submitted and the Court reserved decision. For the reasons stated below, the motion is granted in part.
DISCUSSION
Evidence of Emotional Distress Shall be Excluded
Plaintiffs are precluded from introducing any evidence of emotional distress because the claim for negligent infliction of emotional distress was dismissed and such damages are not available under any of the three remaining legal claims [see eg Hoheb v. Pathology Associates of Albany, P.C., 146 A.D.2d 919, 920-21 (3d Dep't 1989); Scivoli v. Levit, 846 N.Y.S.2d 235, 236 (2d Dep't 2007); Williams v. Mann, 143 A.D.3d 813, (2d Dep't 2016)].
Plaintiffs argue that evidence of defendants' alleged conduct in engaging in scare tactics is relevant to plaintiffs' claims; and that evidence of plaintiffs' alleged emotional vulnerability or physical infirmity is relevant to liability and punitive damages. Plaintiffs will still be entitled to submit relevant evidence on these issues, but any evidence of emotional distress plaintiffs claim to have suffered as a result of defendants' conduct shall be excluded.
Evidence Of Physical Ailments Shall Be Excluded
During her deposition, Victoria Mezzich (Mezzich) acknowledged that she suffers from degenerative disc disease and stenosis. However, she also alleged claimed that she believes these conditions were caused by stress related to defendants' conduct.
Plaintiffs are precluded from introducing any such evidence because they cannot establish that any physical ailments were proximately caused by the alleged breach of fiduciary duty or misrepresentation. Here, the only evidence is Mezzich's own subjective, lay opinion.
"To establish aprima facie case on the issue of causation, a plaintiff must show that the defendant's act was a substantial cause of the events which produced the injury." (Mack v. Altmans Stage Lighting Co. Inc., 98 A.D.2d 468, 470, citing Derdiarian v. Felix Contracting. Corp., 51 N.Y.2d 308, 315; Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520; Sew ar v. Gagliardi Brothers Service, 69 A.D.2d 281, 289, affd 51 N.Y.2d 752. Restatement, Torts 2d, § 431; 1 N.Y. PJI 2:70).
Competent expert medical testimony would be required to causally connect plaintiffs' alleged injuries to defendants alleged conduct (Brown v County of Albany 271 A.D.2d 819).
Given there is no such evidence in this action, defendants motion to preclude evidence of physical ailments as damages is granted.
Defendants cite Aller v City of New York 2008 NY Slip Op 33162(U) for the proposition that plaintiff's own testimony is insufficient, however the court notes that holding was modified by the Appellate Division (72 A.D.2d 563) which held in that case that the lower court erred in finding plaintiff's testimony too speculative.
Alleged Fraudulent Statements and Omissions Made to All Shareholders Are Potentially Relevant to Plaintiffs' Claims and Evidence of Same Shall Not be Excluded
The disputed issues of fact between the parties encompass defendants' alleged statements and omissions to any or all of the shareholders, not only plaintiffs. Defendants' alleged attempts to deceive other shareholders are relevant to refute defendants' denials of their misrepresentations and omissions to plaintiffs and to the reasonableness of plaintiffs' reliance.
Additionally, the evidence is relevant to plaintiffs' claims for punitive damages and whether defendants engaged in conduct having a high degree of moral culpability and a conscious disregard of the rights of others [Sieger v Zak, 74 A.D.3d 1319, 1319-1320 (2d Dept 2010)].
Based on the foregoing, defendants' motion to preclude this evidence is denied.
Evidence of Attorneys Fees &Expenses Shall be held in Abeyance Pending the Outcome of the Trial on the Substantive Causes of Action
In the State of New York, the general rule is that attorneys' fees "are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule." Gotham Partners, L.P. v High River Ltd. Partnership, 76 A.D.3d 203 (1st Dept. 2010); see also Braithwaite v 409 Edgecombe Ave. HDFC, 294 A.D.2d 233 (1st Dept. 2002).
Initially, the court notes that defendants' notice of motion does not seek dismissal of the cause of action for attorneys' fees, but only preclusion of evidence as to same. In any event, both parties and the court agree that attorney's fees could be relevant to an award of punitive damages if plaintiffs establish an entitlement thereto.
Therefore, no evidence as to attorneys' fees will be received in the trial itself. In the event that at trial plaintiffs establish a right to punitive damages, a post-trial hearing on those damages encompassing any claim for attorneys' fees would be held.
WHEREFORE it is hereby
ORDERED that defendants' in limine motion is granted to the extent set forth above; and it is further
ORDERED that, within 20 days from entry of this order, defendants shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nvcourts.gov/supctmanh);]; and it is further
ORDERED that any relief not expressly addressed has nonetheless been considered and is hereby denied; and it is further
ORDERED that this constitutes the decision and order of this court.