Opinion
2014-03793 2014-03795 Index No. 9303/10.
03-02-2016
Eileen NUGENT, appellant, v. DIOCESE OF ROCKVILLE CENTRE, et al., respondents.
Glenn J. Wurzel, Hempstead, N.Y., for appellant. Patrick F. Adams, P.C., Great River, N.Y. (Charles J. Adams and Gary Pagliarello of counsel), for respondents.
Glenn J. Wurzel, Hempstead, N.Y., for appellant.
Patrick F. Adams, P.C., Great River, N.Y. (Charles J. Adams and Gary Pagliarello of counsel), for respondents.
Opinion
In an action, inter alia, to recover damages for negligent misrepresentation, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Diamond, J.), dated March 1, 2011, which denied her motion for leave to amend the complaint, and (2) a judgment of the same court (Bruno, J.), dated February 13, 2014, which, upon the granting of the defendants' motion pursuant to CPLR 4401 for judgment as a matter of law, at the close of the plaintiff's case, is in favor of the defendants and against her dismissing the complaint.
ORDERED that the appeal from the order is dismissed as abandoned; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondents.
Since the plaintiff's brief fails to set forth any argument regarding her appeal from the order dated March 1, 2011, that appeal must be dismissed as abandoned (see Ellner v. Schwed, 48 A.D.3d 739, 851 N.Y.S.2d 373).
The plaintiff was formerly employed as a teacher by the defendant St. Martin of Tours School (hereinafter St. Martin) until February 2010, when she was terminated from her position. Thereafter, the plaintiff commenced this action against, among others, the Diocese of Rockville Centre and St. Martin (hereinafter together the defendants). In an order dated August 6, 2010, the Supreme Court directed the dismissal of the complaint pursuant to CPLR 3211(a), except for the cause of action alleging negligent misrepresentation asserted against the defendants. In an order dated March 1, 2011, the court denied the plaintiff's motion for leave to amend the complaint. A trial on the remaining cause of action was held and, after the plaintiff rested, the court granted the defendants' motion pursuant to CPLR 4401 for judgment as a matter of law. The court subsequently entered a judgment on February 13, 2014, which was in favor of the defendants and against the plaintiff dismissing the complaint.
The plaintiff contends that she was deprived of the effective assistance of counsel at trial. However, in the context of civil litigation, a claim of ineffective assistance of counsel will not be entertained absent extraordinary circumstances (see Eastern Capital Group, LLC v. 26 Realty Bldrs. USA, Inc., 81 A.D.3d 686, 916 N.Y.S.2d 776; Galil, LLC v. Scott, 61 A.D.3d 820, 876 N.Y.S.2d 892; Mendoza v. Plaza Homes, LLC, 55 A.D.3d 692, 865 N.Y.S.2d 342). Here, the plaintiff failed to establish the existence of any extraordinary circumstances to warrant entertaining such a claim.
The evidentiary rulings which the plaintiff contends were in error were proper exercises of the Supreme Court's broad discretion in making such rulings (see Newark v. Pimentel, 117 A.D.3d 581, 986 N.Y.S.2d 89; Johnson v. Ingalls, 95 A.D.3d 1398, 944 N.Y.S.2d 654; Montes v. New York City Tr. Auth., 46 A.D.3d 121, 843 N.Y.S.2d 622). Finally, the court did not err in granting the defendant's motion pursuant to CPLR 4401 for judgment as a matter of law made at the close of the plaintiff's case, as, upon the evidence presented, there was no rational process by which the trier of fact could make a finding in favor of the plaintiff (see CPLR 4401; Martinez v. Mullarkey, 41 A.D.3d 666, 839 N.Y.S.2d 148; Gumbs v. New York Prop. Ins. Underwriting Assn., 114 A.D.2d 933, 495 N.Y.S.2d 204). A cause of action alleging negligent misrepresentation requires a plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff, (2) that the information was incorrect, and (3) reasonable reliance on the information (see Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 180, 919 N.Y.S.2d 465, 944 N.E.2d 1104; Ginsburg Dev. Cos., LLC v. Carbone, 134 A.D.3d 890, 22 N.Y.S.3d 485; Simmons v. Allstate Indem. Co., 112 A.D.3d 611, 975 N.Y.S.2d 899). The plaintiff failed to establish the second two elements of her cause of action.