CITY OF LYNN vs. ALFRED R. RAZZABONI and CAROLINE RAZZABONI.
The city of Lynn filed a complaint on June 12, 1985 to foreclose the taxpayers' right of redemption affecting the premises at 80-82 Rockaway in said city for failure to pay the unpaid 1981 taxes for which the premises had been taken on July 30, 1984 by instrument of even date recorded on August 6, 1984 with Essex South District Deeds in Book 7486, Page 133 to which Deeds recording references herein refer. There has since been added to the tax title account a lien for the demolition of the building on the premises including as well as 1982, 1983 and 1986 to 1989, inclusive real estate taxes. Real estate taxes for the years 1984 and 1985 have been paid.
The dispute between the parties centers on the propriety of the action of the Lynn City Council in ordering the building on the premises to be demolished with a lien therefore having thereafter been filed with said Deeds. Pursuant to the provisions of G.L. c. 139, §3A the paper trail of this proceeding is somewhat obscure with a recent plethora of activity, and to make the matter easier to understand I will discuss it at this point in my decision. As I have stated, the City's complaint was filed on June 12, 1985, and the City assented to the late filing by the defendant of the answer in which the defendant Alfred R. Razzaboni alleged that he was one of the owners of the equity and claimed the right to redeem. Thereafter on February 9, 1990 the date of the trial the defendant sought to amend his answer by adding a paragraph seven to amend the answer by adding a paragraph claiming that the plaintiff was barred by laches, but I deny the motion to amend since it was unseasonable and in any event inappropriate in a tax title proceeding. On December 15, 1987 the defendant filed a counterclaim, but it was not marked up until the date of the trial. The plaintiffs denied each and every allegation set forth in the counterclaim. The counterclaim in effect alleges that the demolition by the City of Lynn without affording the plaintiffs an opportunity to have demolished the building or to appeal the order in accordance with the provisions of G.L. c. 139, §1 was in violation of the law. Subsequently at the trial the defendant sought to amend the counterclaim by alleging that the vote of the City Council was at a closed meeting which the defendants were not allowed to attend, that the statute of limitations had been tolled and that in seeking to have the Court issue an order annulling the demolition order and awarding judgment against the City for the fair net value of the dwelling at the time of the demolition. The City objected to the allowance of the motion to amend on the ground that the open meeting law had been complied with. The City also moved to dismiss the counterclaim on the ground that this Court was without jurisdiction under G.L. c. 258, §3, that the presentment notice required by G.L. c. 258, §4 was not given to the Mayor and that the defendant had failed to state a claim against the City. The City did not allege that a statute of limitations had not been complied with so far as G.L. c. 258 is concerned. I have allowed each motion to amend, but I deny the motion to dismiss since it appears to me that this matter should be decided on the merits. I also deny the motion for a directed verdict.
1. The building at 80-82 Rockaway had been damaged by a fire, and a building permit was issued to the defendant dated July 8, 1975 to make certain repairs to the property. In fact, the defendant over the years proceeded to make certain repars which from 1975 to 1980 equalled approximately $5,000.
2. The repairs were insufficient to satisfy complaints, and so in October of 1979 Mr. Calnan wrote to Mr. Razzaboni a letter dated October 22, 1979 (Exhibit No. 1) in which he spelled out the defects in the property after an inspection made by him or his department. The notice specified that the building immediately was to be made safe by restoring it to a safe and sound condition or the addressee was to demolish the structure pursuant to the provisions of G.L. c. 143, §69 to which the letter refers. The owner was given until noon of the day following service to begin the work.
3. The building department, not being satisfied that the notice had been complied with, filed a complaint in the Lynn District Court alleging a failure to comply with the Building Inspector's order and a continuing violation (Exhibit No. 2).
4. Thereafter the Building Inspector notified the City Council by letter dated March 4, 1980 (Exhibit No. 4) that a court complaint was being pursued against the owner and that the left side stairway was deteriorated and unsafe, the rear stairway was damaged and most of the structure thereof removed and the house was located directly adjacent to two public ways.
5. Thereafter the defendant proceeded to make certain repairs to the property as set forth in his letter of April 13, 1980 to Mr. Calnan, and pursuant to his representations, the pending action in the District Court was dismissed by the Commonwealth (Exhibits Nos. 2 and 5).
6. The City Council proceedings, however, continued despite the resolution of the court action. [Note 1] On March 4, 1980 a public hearing was opened on the demolition. No one appeared in favor of the	demolition, and Mr. Razzaboni appeared in opposition. Thereafter the hearing was declared closed, the building department report was received and one of the councilors moved to table the prayer of the petition for thirty days.
7. Then at the meeting of the City Council on August 12, 1980 Mr. Tucker, one of the councilors, moved that the matter be removed from the table, and it was voted that the building be demolished, an emergency first having been declared (Exhibit Nos. 7A and 7B). The defendant did not attend the meeting. It is not clear whether any notice was given to him of the action which the City Council planned to take, but no record of any notice was introduced. Thereafter a motion to reconsider was made by Mr. Tucker, the defendant wrote to all the councilmen and furnished them with the figures detailing the amount he had spent on the building. However, at the Council meeting on September 2 Mr. Tucker withdrew the motion for reconsideration (Exhibit No. 12) and on September 15, 1980 each of the defendants was notified (Exhibit Nos. 13A, 13B and 13C). The City Clerk notified that the council had voted nine to two to have the building demolished. While the City Council was taking this action, a building permit was still in effect which was issued on May 22, 1980, and the defendant was proceeding to do the work required by the building department. He did not, however, after he received notice of the action of the City Council in August and September of 1980 proceed in the Superior Court for a judicial determination as to the validity of the action of the City Council pursuant to the provisions of G.L. c. 139, §2. Rather he resorted to correspondence with the members of the council relative to the work which he had done on the property, but both as a school teacher and as a member of the Board of Assessors in another community he should have realized the likelihood of success of this approach was small. He did nothing judicially to attack the council's order between September and February when it was executed. It was only when the City sought to foreclose in the present proceeding that he attacked the validity of the demolition lien.
It is possible, however, to separate the recovery of damages for the loss of the building from the requirement that the taxpayer pay the charges for the demolition of the building. See City of Boston v. Mescarella, Tax Lien Case No. 64709. In the present action the Building Inspector initially informed the defendant, as distinguished from the situation in Worcester v. Eisenbeiser, 7 Mass. App. Ct. 345 (1979) that he had the election to demolish the building himself if the repairs were not made, but the City Council which proceeded on a separate course rather than considering resolution of the prior complaint in the District Court neither so advised Mr. Razzaboni in the notice given by the City Clerk nor called to his attention the possibility of relief in a judicial forum. Therefore I find and rule that the lien for which provision is made in G.L. c. 139, §3A is invalid both because the channels for relief were not stated but more importantly the work requested by the Building Department was being carried on pursuant to an existing building permit, and the Council knew it. I further find and rule that Razzaboni should not be required to reimburse the City for what appears to have been a wrongful act on its part.
The defendants' right to recover against the City, however, it another matter. It is regrettable that the claims of the defendant were not seasonably brought to court where in a forum having jurisdiction this matter might have been tried. It is now nine years since the demolition occurred and the memory of the witnesses is dim. While the City did not plead the statute of limitations which had expired before the counterclaim was filed, the City has moved to dismiss for failure by the defendants to present their claim to the Mayor G.L. c. 2 & 8 §4, and this count is vulnerable thereon as well as on the choice of forum. I need not decide whether service on the City's Tax Attorney is sufficient under section 6 since I disallow the claim against the City on other grounds.
On all the evidence therefore I find and rule that the City's lien for the demolition charge cannot be supported and that it in the interest attributable thereto must be stricken from the tax title account.
I further find and rule that the defendants may redeem upon payment to the City on or before April 30, 1990 of a sum equal to the real estate taxes for fiscal 1981 to 1983 inclusive and 1986 to 1989 inclusive together with all interest allowed by statute thereon from the due date to date of payment and court costs. If the parties cannot agree as to the amount, the Court will schedule a hearing on that issue only.
The City's motion for attorney's fees is denied.
Finally the City filed requests for findings of fact and rulings of law which I have not acted upon as I have made my own.
[Note 1] Notice (Exhibit No. 6) dated February 12, 1980 was given by the clerk to Mr. and Mrs. Razzaboni to the effect that on March 4, 1980 there would be a hearing upon the petition of the Lynn City Council "to demolish the building at 18 Rockaway Street, Lynn, MA. as it is declared a dangerous building under Chapter 139 Ma. G.L. relating to burnt and dangerous buildings" (Exhibit No. 9). Service was made at the last and usual abode of each of the two defendants.


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M/s. Anand Brothers Pvt. Ltd. through M.D. Vs. Union of India & Ors.
1. A non-speaking arbitral award in favour of the appellant-company was set aside by a learned Single Judge of the High Court of Delhi on the ground that the Arbitrator had not recorded his "findings" as required under Clause 70 of the General Conditions of Contract. Relying upon the decisions of this Court in M/s Daffadar Bhagat Singh and Sons v. Income-tax officer, A Ward, Ferozepur (AIR 1969 SC 340), Bhanji Bhadgwandas v. The Commissioner of Income-tax, Madras (AIR 1968 SC 139 and Rajinder Nath etc. v. Commissioner of Income-tax, Delhi (AIR 1979 SC 1933) the High Court held that the expression "finding" appearing in Clause 70 of the General Conditions of Contract implies something more than the mere recording of a conclusion by the Arbitrator. Inasmuch as the Arbitrator had failed to do so, the award rendered by him was unsustainable. The High Court accordingly set aside the award and remitted the matter back to the Arbitrator for a fresh determination of the disputes between the parties.
2. An appeal was then preferred by the appellant-company before a Division Bench of the High Court who relying upon the decision of this Court in Gora Lal v. Union of India (2003) 12 SCC 459 affirmed the view taken by the learned Single Judge. Dissatisfied, the appellant has approached this Court by special leave.
3. When the matter initially came up before a Bench comprising R.V. Raveendran and J.M. Panchal, JJ. on 5th January, 2009 the Court noticed a divergence in the decision rendered by this Court in Gora Lal's case (supra) and that rendered in Build India Construction System v. Union of India (2002) 5 SCC 433. The matter was, therefore, referred to a larger Bench to resolve the conflict. That is precisely how this appeal has been listed before us.
4. Clause 70 of the General Conditions of Contract to the extent the same is relevant for our purposes, is to the following effect: "...........The Arbitrator shall give his award within a period of six months from the date of his entering on his reference or within the extended time as the case may be on all matters referred to him and shall indicate his findings, along with sums awarded, separately on each individual item of dispute."
(i) give his award within the stipulated period as extended from time to time.
(ii) the Award must be on "all matter referred to him"
(iv) the findings and award of sums if any must be separate on each item of dispute.
There is no gainsaying that Clause 70 makes a clear distinction between findings on each individual item of dispute on the one hand and the sum, if any, awarded in regard to the same on the other. That the Arbitrator had made his award in regard to each item of dispute raised by the appellant before it, is evident from a reading of the award. The question is whether the Arbitrator had recorded his findings on each such items.
The High Court has, as noted above, answered that question in the negative; and set aside the award holding that the expression 'findings' must include the reasons for the ultimate conclusion arrived at by the Arbitrator. That view was assailed by learned counsel for the appellant who contended that the expression 'findings' should not imply the process of reasoning adopted by the Arbitrator for recording his conclusions. A finding howsoever cryptic would, according to the submission of the learned counsel for the appellant, satisfy the requirement of Clause 70 for otherwise the Clause would have been differently worded so as to make it mandatory for the Arbitrator to make what is called a speaking award giving reasons for the conclusions arrived at by him.
6. On behalf of the respondent it was per contra argued by Mr. P.S. Patwalia and Mr. J.S. Attri, learned senior counsel that the question was no longer res-integra having been addressed in Gora Lal's case (supra) where this Court held that the expression "finding on each individual item of dispute" clearly meant that reason in support of the findings must also be recorded by the Arbitrator. It was contended that a finding which is unsupported by any reason is no finding in the eye of law.
7. Before we examine whether the expression 'finding' appearing in Clause 70 would include reasons in support of the conclusion drawn by the arbitrator, we consider it appropriate to refer to the Constitution Bench decision of this Court in Raipur Development Authority v. M/s Chokhamal Contractors etc (1989) 2 SCC 721 where this Court was examining whether an award without giving reasons can be remitted or set aside by the Court in the absence of any stipulation in the arbitral agreement obliging the arbitrator to record his reasons.
8. Having said that, this Court declared that Government and their instrumentalities should - as a matter of policy and public interest - if not as a compulsion of law, ensure that whenever they enter into an agreement for resolution of disputes by way of private arbitrations, the requirement of speaking awards is expressly stipulated and ensured. Any laxity in that behalf might lend itself and perhaps justify the legitimate criticism that government failed to provide against possible prejudice to public interest. The following passage is in this regard apposite: "There is, however, one aspect of non-speaking awards in non-statutory arbitrations to which Government and governmental authorities are parties that compel attention.
The trappings of a body which discharges judicial functions and is required to act in accordance with law with their concomitant obligations for reasoned decisions, are not attracted to a private adjudication of the nature of arbitration as the latter, as we have noticed earlier, is not supposed to exert the State's sovereign judicial power. But arbitral awards in [pic]disputes to which the State and its instrumentalities are parties affect public interest and the matter of the manner in which Government and its instrumentalities allow their interest to be affected by such arbitral adjudications involve larger questions of policy and public interest.
Government and its instrumentalities cannot simply allow large financial interests of the State to be prejudicially affected by non-reviewable - except in the limited way allowed by the statute - non-speaking arbitral awards. Indeed, this branch of the system of dispute resolution has, of late, acquired a certain degree of notoriety by the manner in which in many cases the financial interests of Government have come to suffer by awards which have raised eyebrows by doubts as to their rectitude and propriety. It will not be justifiable for Governments or their instrumentalities to enter into arbitration agreements which do not expressly stipulate the rendering of reasoned and speaking awards.
Governments and their instrumentalities should, as a matter of policy and public interest - if not as a compulsion of law - ensure that wherever they enter into agreements for resolution of disputes by resort to private arbitrations, the requirement of speaking awards is expressly stipulated and ensured. It is for Governments and their instrumentalities to ensure in future this requirement as a matter of policy in the larger public interest. Any lapse in that behalf might lend itself to and perhaps justify, the legitimate criticism that Government failed to provide against possible prejudice to public interest."
9. Reference may also be made to The Arbitration and Conciliation Act, 1996 which has repealed the Arbitration Act of 1940 and which seeks to achieve the twin objectives of obliging the Arbitral Tribunal to give reasons for its arbitral award and reducing the supervisory role of Courts in arbitration proceedings. Section 31(3) of the said Act obliges the arbitral tribunal to state the reasons upon which it is based unless the parties have agreed that no reasons be given or the arbitral award is based on consent of the parties. There is, therefore, a paradigm shift in the legal position under the new Act which prescribes a uniform requirement for the arbitrators to give reasons except in the two situations mentioned above.
The change in the legal approach towards arbitration as an Alternative Dispute Resolution Mechanism is perceptible both in regard to the requirement of giving reasons and the scope of interference by the Court with arbitral awards. While in regard to requirement of giving reasons the law has brought in dimensions not found under the old Act, the scope of interference appears to be shrinking in its amplitude, no matter judicial pronouncements at time appear to be heading towards a more expansive approach, that may appear to some to be opening up areas for judicial review on newer grounds falling under the caption "Public Policy" appearing in Section 34 of the Act.
We are referring to these developments for it is one of the well known canons of interpretation of statues that when an earlier enactment is truly ambiguous in that it is equally open to diverse meanings, the later enactment may in certain circumstances serve as the parliamentary exposition of the former. (See: Ram Kishan Ram Nath v. Janpad Sabha AIR 1962 SC 1073 and Ghanshyam Dass v. Dominion of India (1984) 3 SCC 46 at 58).
10. In Jogendra Nath v. Commissioner of Income Tax AIR 1969 SC 1089, this Court held that subsequent legislation on the same subject may be looked into with a view to giving a proper exposition of a provision of the earlier Act. Borrowing the principle from the above pronouncements it is reasonable to hold that the obligation cast upon the arbitrator in terms of Clause 70 in the case at hand ought to be understood in the light of not only the exposition of law by this Court in Chokhamal's case (supra) but also in the light of the statutory prescription that now mandates recording of reasons by the Arbitrator. The judicial climate in which arbitral awards are being made and viewed also lends itself to an interpretation that would make it obligatory for the Arbitrator to record reasons in support of the findings recorded by him.
11. Let us in the above backdrop examine the textual meaning and contextual significance of the expression 'finding' appearing in Clause 70. The expression has not been defined either in the agreement executed between the parties or in any statute for that matter. The expression shall, therefore, have to be given its ordinary literal meaning having regard to the context in which the same is used. A textual interpretation that matches the contextual is known to be the best.
The principle is well settled but the decision of this Court in Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. And Ors. (1987) 1 SCC 424 has sounded a timely reminder of the same when it said: "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word.
If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the court construed the expression 'Prize Chit' in Srinivasa (1980) 4 SCC 507 and we find no reason to depart from the court's construction."
2. Law A conclusion arrived at before an official or a court. 3 Support; expense." P. Ramanathan Aiyar's Law Lexicon (Second Ed.) assigns the following meaning to the term "finding": "The decision of a judge, arbitrator, jury, or referee." It further explains the term thus: "A term used by the profession and by the courts as meaning the decision of a trial court upon disputed facts."
13. It is evident from the above that English language and law dictionaries and the Law Lexicons give a wide range of meaning to the expression 'finding'. The predominant use of the expression is in relation to determination by a Judge, Jury, Administrative Agency, Arbitrator or a Referee. The determination is described either as a finding, decision or conclusion; upon disputed facts. It is also described as a determination of a fact supported by evidence on the record. It is interchangeably used as a conclusion or decision a term used by the legal profession and by Courts. The term "conclusion" is in turn defined by Black's Law Dictionary as under: "The final part of a speech or writing (such as jury argument or a pleading); a judgment arrived at by reasoning; an inferential statement; the closing, settling, or final arranging of a treaty, contract, deal, etc."
14. It is trite that a finding can be both; a finding of fact or a finding of law. It may even be a finding on a mixed question of law and fact. In the case of a finding on a legal issue the Arbitrator may on facts that are proved or admitted explore his options and lay bare the process by which he arrives at any such finding. It is only when the conclusion is supported by reasons on which it is based that one can logically describe the process as tantamount to recording a finding. It is immaterial whether the reasons given in support of the conclusion are sound or erroneous.
That is because a conclusion supported by reasons would constitute a "finding" no matter the conclusion or the reasons in support of the same may themselves be erroneous on facts or in law. It may then be an erroneous finding but it would nonetheless be a finding. What is important is that a finding presupposes application of mind. Application of mind is best demonstrated by disclosure of the mind; mind in turn is best disclosed by recording reasons. That is the soul of every adjudicatory process which affects the rights of the parties. This is true also in the case of a finding of fact where too the process of reasoning must be disclosed in order that it is accepted as a finding in the sense the expression is used in Clause 70.
15. The above exposition matches even the contextual interpretation of Clause 70 which provides a mechanism for adjudication of disputes between the parties and not only requires the Arbitrator to indicate the amount he is awarding in regard to each item of claim but also the "findings on each one of such items". The underlying purpose of making such a provision in the arbitration clause governing the parties, obviously was to ensure that the Arbitrator while adjudicating upon the disputes as a Judge chosen by the parties gives reasons for the conclusions that he may arrive at.
"The point for determination in this case is: whether the arbitrator ought to have given reasons in support of his findings, along with the sums awarded, on each item of dispute. To decide this point, we have to go by the text and the context of clause 70 of the arbitration agreement quoted above. Under the said clause, the arbitrator was required to identify each individual item of dispute and give his findings thereon along with the sum awarded. In this context, one has to read the word "findings" with the expression "on each item of dispute" and if so read it is clear that the word "finding" denotes "reasons" in support of the said conclusion on each item of dispute.
The word "finding" has been defined in "Words and Phrases, Permanent Edn., 17, West Publishing Co." to mean "an ascertainment of facts and the result of investigations". Applying the above test to clause 70, we are of the view that the arbitrator was required to give reasons in support of his findings on the items of dispute along with the sums awarded. We make it clear that this order is confined to the facts of this case and our interpretation is confined to clause 70 of the arbitration agreement in this case."
16. In the case at hand the Arbitrator's award was admittedly unsupported by any reason, no matter the Arbitrator had in the column captioned 'findings' made comments like 'sustained', 'partly sustained', 'not sustained'. The High Court was, therefore, justified in setting aside the award made by the Arbitrator and remitting the matter to him for making of a fresh award.
17. That brings us to the decision of this Court in Build India Construction System (supra) which was relied upon to canvass that it stated a proposition contrary to that stated in Gora Lal's case (supra). In Build India Construction System (supra) this Court noted in no uncertain terms that the validity of the award had not been specifically questioned on the ground of its having been given in breach of any obligation of the Arbitrator to give reasons as spelled out by the arbitration clause. The judgment of the learned Single Judge did not show, observed this Court, that such a plea was urged before him.
"11. There are several other factors which preclude the respondents from urging such a plea. The reference to arbitrator does not suggest an obligation having been cast on the arbitrator to give reasons for the award. Such a plea, as has been urged in this Court, was not taken by the respondents before the arbitrator. Even in the objections filed in the Court, the validity of the award has not been specifically questioned on the ground of its having been given in breach of any obligation of the arbitrator to give reasons as spelled out by the arbitration clause.
The judgment of the learned Single Judge does not show such a plea having been urged before him. In the objection petition, there is a vague and general plea raised that rejecting the claims forming the subject-matter of cross- objection and allowing the claim of the appellant without assigning any reason was bad. Such an omnibus and general plea cannot be read as submitting that the amendment dated 4-9-1986 applied to the contract between the parties and that in view of the amended arbitration clause the unreasoned award was bad. It appears that the plea was for the first time raised at the appellate stage before the Division Bench of the High Court. Unwittingly the Division Bench fell into the error of entertaining such a plea and disposing of the appeal by upholding the same though the plea was not even available to the respondents to be raised at that stage."
18. It is, in the light of the above observations, difficult to read Build India Construction System (supra) as an authority for the proposition that Clause 70 of the General Conditions of the Contract did not oblige the Arbitrator to record reasons. The decision must, therefore, remain confined to the facts of that case only.
19. It was next contended by learned counsel for the appellant that the High Court has directed the Arbitrator to make an award in terms of the Arbitration and Conciliation Act, 1996. Since, however, the arbitration proceedings had been conducted under the old Act any remission to the Arbitrator could only be under the provisions of the said Act. Mr. Patwalia, learned Additional Solicitor General, did not dispute that position. He submitted that this Court could make it clear that the Arbitrator would conduct the proceedings under the provisions of the Arbitration Act, 1940.
20. It was lastly argued by learned counsel for the appellant that since the proceedings have remained stayed for a considerable period, this Court could direct the Arbitrator to dispose of the same expeditiously. Our attention was, in this connection, drawn to a letter dated 2nd March, 2009 whereby the respondents have appointed Shri Dharma Sheel, Supdt. Engineer (Personnel and Legal) Headquarter as a Sole Arbitrator to adjudicate upon the dispute between the parties as Col. Dalip Banerjee, earlier appointed had expressed his inability to continue nor was Col. S.N. Kuda, initially appointed, ready to go on with proceedings.
It was urged that if for any reason Shri Banerjee, the newly appointed Arbitrator is also unable to take up the assignment, the respondents could be directed to appoint another Arbitrator within a time frame with a direction to the Arbitrator so appointed to conclude the proceedings as early as possible. We see no reason to decline the limited prayer made by learned counsel for the appellant especially when Mr. Patwalia submitted that in case Shri Banerjee was also unable to enter upon reference for any reason the respondents shall, within such time, as may be fixed by this Court nominate another Arbitrator.
21. In the result this appeal fails and is hereby dismissed. We, however, make it clear that consequent upon the orders passed by the High Court the Arbitrator shall conclude the proceedings in terms of the provisions of the Arbitration Act of 1940 expeditiously. We further make it clear that in case the Arbitrator already nominated is for any reason unable to take up the assignment the respondents shall within six weeks from today appoint a substitute Arbitrator who shall then enter upon the reference and conclude the proceedings as early as possible.

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Development of new modulators of ionotropic and metabotropic glutamate receptors.
Stereoselective synthesis of aminocycloalkanes and nitrogen heterocycles.
Aminoalkane sp3 CH functionalization reactions.
The Latvian State University, Faculty of Chemistry. Riga, Latvia, 1977.
The Addition Reaction of Thiosemicarbazides to Acetylenecarboxylic Acids and their Esters Supervisor: Professor I. Kalvinsh.
Testimonial writing from Prime Minister of the Latvian Republic For contribution in the development of medicinal chemistry and preparing of new specialists, February 2007.
Award of academician Solomon Hiller, 2006.
Member of Scientific Council, Latvian Institute of Organic Synthesis.
T.Noeske, D.Trifanova, V.Kauss, S.Renner, C.G.Parsons, G.Schneider, T.Weil. Synergism of virtual screening and medicinal chemistry: Identification of allosteric antagonists of metabotropic glutamate receptor 1. - Bioorg.Med.Chem, 2009, 17 (15), 5708-5715.
M. Vanejevs, C. Jatzke, S. Renner, S. Müller , M. Hechenberger, T. Bauer, A. Klochkova, I. Pyatkin , D. Kazyulkin , E. Aksenova , S. Shulepin, O. Timonina, A. Haasis, A. Gutcaits, C. G. Parsons, M. Henrich, V. Kauss, T.Weil. Positive and Negative Modulation of Group I Metabotropic Glutamate Receptors .- J. Med. Chem.,2008, 51 (3), 634-647.
K. Gilling, C. Jatzke, C. Wollenburg, M. Vanejevs, V. Kauss, A. Jirgensons, C. G. Parsons. A novel class of amino-alkylcyclohexanes as uncompetitive, fast, voltage-dependent, N-methyl-D-aspartate (NMDA) receptor antagonists  in vitro characterization. J. Neural Transm. 2007, publ. online 31 August 2007.
M. Vanejevs, C. Jatzke, S. Renner, M. Hechenberger, T. Bauer, A. Klochkova, I. Pyatkin , D. Kazyulkin , E. Aksenova , S. Shulepin, O. Timonina, A. Gutcaits, M. Henrich, V. Kauss, C. G. Parsons, T. Weil. Positive and Negative Modulation of Group I Metabotropic Glutamate Receptors. J. Med. Chem. 2007, publ. online October 2007.
T. Noeske, A. Jirgensons, I. Stachenkovs, S. Renner, I. Jaunzeme, D. Trifanova, M. Hechenberger, T. Bauer, V. Kauss, C. G. Parsons, G. Schneider, T. Weil. Virtual Screening for Selective Allosteric mGluR1 Antagonists and Structure-Activity Relationship Investigations for Coumarine Derivatives. ChemMedChem. 2007, publ. online 17 September 2007.
I. Jaunzeme, A. Jirgensons, V. Kauss and E. Liepins. Diastereoselectivity in the Overman rearrangement of O-cyclohexylideneethylimidates. Tetrahedron Lett. 2006, 3885-3887.
D. Trifanova, M. Trifonova, A. Jirgensons, V. Kauss, O. Pugovich, I. Kalvinsh and G. Quack. The synthesis of potential Neramexane metabolites: cis- and trans-3-amino-1,3,5,5-tetramethylcyclohexanecarboxylic acids. Tetrahedron Lett. 2004, 8145-8147.
W. Danysz, C.G. Parsons, A. Jirgensons, V. Kauss, J. Tillner. Amino-Alkyl-Cyclohexanes as a Novel Class of Uncompetitive NMDA Receptor Antagonists. Curr. Pharm. Design, 2002, 8, 835-843.
A. Jirgensons, V. Kauss, I. Kalvinsh, M. R. Gold, W. Danysz, C. G. Parsons, G. Quack. Synthesis and structure - affinity relationships of 1,3,5-alkylsubstituted cyclohexylamines binding at NMDA receptor PCP site. Eur. J. Med. Chem., 2000, 35, 555-565.
A. Jirgensons, V. Kauss, I. Kalvinsh, M. R. Gold. A practical synthesis of tert-carbinamines via the Ritter reaction with chloroacetonitrile. Synthesis, 2000, 1709-1712.
I. Starchenkov, P. Trapencieris, V. Kauss, G. Jas, I. Kalvinsh. A convenient synthesis of 5b -cholestan-26-oic and 5b -cholestan-26,27-dioic acids. Steroids, 2000, 65, 143-147.
A. Jirgensons, V. Kauss, A. F. Mishnev, I. Kalvinsh. The synthesis of 3-amino-3-methylbicyclo[3.3.1]nonanes. Endo-selectivity in the Ritter reaction of 1,3,5,7a -tetramethylbicyclo[3.3.1]nonan-3-ol. J. Chem. Soc. PT 1, 1999, 3527-3530.
O. Pugovics, V. Kauss, I. Kalvinsh, M. R. Gold, G. Quack. Convenient synthesis of 2,6-di-tert-butyl-4-(5-(3-pyridyl)-4-oxapentyl)phenols and their thia analogues. J. Chem. Res. (M), 1998, 1885-1894.
O. Pugovics, V. Kauss, I. Kalvinsh, M. R. Gold. The synthesis of (3,5-di-tert-butyl-4-hydroxyphenyl)methyl-(3-pyridylalkyl)ethers via 1-(3,5-di-tert-butyl-4-hydroxyphenyl)-methyl pyridinium salts. Synth. Commun., 1998, 28, 2227-2236.
A. Jirgensons, I. Kums, V. Kauss, I. Kalvinsh. A convenient reagent for N-hydroxyguanylation. Synth. Commun., 1997, 27, 315-322.
P. Trapencieris, I. Kalvin, L. Kaulina, V. Kauss . Unnatural amino acids. 1. A facile synthesis of methyl ester of aziridine-2-carboxylic acid. Organic Process Research & Development, 1997, 1, 259-263.
WO 2009/09524. Pyrazolopyridines, a process for their preparation and their use as medicine/ Henrich M., Weil T., Mueller S., Nagel J., Gravius A., Kauss V., Zemribo R., Erdmane E.
US 2009/0227582. Tetrahydroquinolinones and their use as modulators of metabotropic glutamate receptors / Kauss V., Jaunzeme I., Jirgensons A., Kalvinsh I., Vanejevs M., Henrich M., Danysz W., Jatzke C., Parsons Ch.G.R., Weil T.
WO 2008/035049. Adamantanyl-(cyclopropyl)-ketones as metabotropic glutamate receptor modulators / Parsons Ch.G.R., Kalvinsh I., Trifanova D., Jirgensons A., Kauss V., Danysz W., Henrich M .
WO 2007/023245. Tetrahydroquinolinones and their use as modulators of metabotropic glutamate receptors / Parsons Ch.G.R., Jirgensons A., Jaunzeme I., Kalvinsh I., Henrich M., Vanejevs M., Weil T., Kauss V., Danysz W., Jatzke C.
WO 2007/023290. Tetrahydroquinolinones and their use as modulators of metabotropic glutamate receptors / Parsons Ch.G.R., Jirgensons A., Jaunzeme I., Kalvinsh I., Henrich M., Vanejevs M., Weil T., Kauss V., Danysz W., Jatzke C.
WO 2007/023242. Tetrahydroquinolinones and their use as modulators of metabotropic glutamate receptors / Parsons Ch.G.R., Jirgensons A., Jaunzeme I., Kalvinsh I., Henrich M., Vanejevs M., Weil T., Kauss V., Danysz W., Jatzke C.
WO 2007/045876. Chromenones and their use as modulators of metabotropic glutamate receptors / Parsons Ch.G.R., Jirgensons A., Trifanova D., Kalvinsh I., Starchenkovs I., Henrich M., Noeske T., Weil T., Kauss V., Danysz W.
WO 2006/037996. Novel cyclic and acyclic propenones for treating CNS disorders / Parsons Ch.G.R., Kalvinsh I., Kauss V., Trifanova D., Zemribo R., Danysz W., Henrich M., Weil T.
WO 2003/080046. Azabicyclic, azatricyclic and azaspirocyclic derivatives of aminocyclohexane NMDA, 5HT3 and neuronal nicotinic receptor antagonists / Parsons Ch.G.R., Henrich M., Danysz W., Kalvinsh I., Kauss V., Jirgensons A., Gold M., Vanejevs M.
WO 2002/24186. 1-Amino-alkylcyclohexanes as trypanocidal agents / Kelly M., Kalvinsh I., Kauss V., Jirgensons A., Gold M.
WO 2001/32640. 1-Cyclic amino-alkylcyclohexane compounds, pharmaceutical compositions thereof, and their use as anticonvulsants./ Gold M., Danysz W., Parsons C. G. R., Kalvinsh I., Kauss V., Jirgensons A.
WO 99/01416. 1-Amino-alkylcyclohexane NMDA receptor antagonists./ Gold M., Danysz W., Parsons C. G. R., Kalvinsh I., Kauss V., Jirgensons A.

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[313 U.S. 387, 388] Messrs. Thomas G. Haight, of Jersey City, N.J., Frank J. Wideman, of Washington, D.C., Louis D. Frohlich and Herman Finkelstein, both of New York City, and Manley P. Caldwell, of West Palm Beach, Fla., for Buck and others.
[313 U.S. 387, 392] Messrs. J. Tom Watson, Atty. Gen., of Florida, Lucien H. Boggs, of Jacksonville, Fla., Tyrus A. Norwood, Asst. Atty. Gen. of Florida, Andrew W. Bennett, of Washington, D.C., and George C. Gibbs, of Jacksonville, Fla ., for Watson and others.
In broad outline, these cases involve the constitutionality of Florida statutes regulating the business of persons hol ing music copyrights and declaring price-fixing combinations of 'authors, composers, publishers, (and) owners' of such copyrights to be illegal and in restraint of trade.
The American Society of Composers, Authors and Publishers (ASCAP), one of the appellants in No. 611 and one of the appellees in No. 610, is a combination which controls the performance rights of a major part of the available supply of copyrighted popular music. The other appellants in No. 611 (appellees in No. 610) are individual composers, authors and publishers of music controlled by ASCAP. The appellees in No. 611 ( appellants in No. 610) are the Attorney General and all the state prosecuting attorneys of Florida who are charged with the duty of enforcing certain parts of the statutes in question.
These who cases were originally a single action, in which ASCAP and its co-parties sought to enjoin the state officials from enforcing a 1937 Florida statute. 1 A [313 U.S. 387, 395] federal district court, composed of three judges under 266 of Judicial Code, 28 U.S.C.A. 380, granted a temporary injunction, and this Court affirmed without passing upon the merits of the constitutional questions involved. Gibbs v. Buck, 307 U.S. 66 , 59 S.Ct. 725. A supplemental bill of complaint was then filed, asking that the three judge court enjoin a 1939 Florida statute relating to the same subject. 2 On final hearing, the three judge court again enjoined the state officials from enforcing any part of the 1937 statute, but granted the injunction only as to certain sections of the 1939 act. Buck v. Gibbs, D.C., 34 F. Supp. 510. No. 611 is an appeal by ASCAP and its co-complainants from the refusal to enjoin the state officials from enforcing the remainder of the 1939 act. No. 610 is an appeal by the state officials from the order granting the injunction as to the 1937 act and as to certain sections of the 1939 act.
The court below, without passing at all upon the validity of thirteen out of the twenty-one sections and subsections of the 1937 act, held that the remaining eight sections deprived copyright owners of rights granted them by the federal copyright laws, and that the statute must fall in its entirety. This it did upon the premise that the sections held invalid and the other parts of the bill were intended by the Florida legislature to form 'a harmonious whole' and to 'stand or fall together.' (34 F.Supp. 517 .) The ultimate questions involved are such that we must first determine whether this ruling was correct. We hold that it was not, for the following reasons.
This is a flat statement that the Florida legislature intended that the act should stand and be enforced 'after the exclusion of such part or parts' as might be held invalid. Unless a controlling decision by Florida's courts compels a different course, the federal courts are not justified in speculating that the state legislature meant exactly the opposite of what it declared 'to have been the legislative intent.' But the Supreme Court of Florida recognizes and seeks to carry out the legislative intent thus expressed. Speaking of a similar severabi ity clause of another statute, that court said: 'The act as a whole evinces a purpose on the part of the Legislature to impose a license tax on chain stores, and section 15 provides that if any section, provision, or clause thereof, or if the act as applied to any circumstances shall be declared invalid or unconstitutional, such invalidity shall not affect other portions of the act held valid nor shall it extend to other circumstances not held to be invalid. Under the liberal terms of section 15 it may be reasonably discerned that the Legislature intended that the act under review should be held good under any eventuality that did not produce an unreasonable, unconstitutional, or an absurd result. ... The test to determine work-ability after severance, and whether the remainder of the act should be upheld, rests on the fact of whether or not the invalid portion is of such import that the valid part would be incomplete or would cause results not contemplated by the Legisla- [313 U.S. 387, 397] ture.' Louis K. Liggett Co. v. Lee, 109 Fla. 477, 481, 147 So. 463, 149 So. 8, 9. Measured by this test the court below was in error, for there can be no doubt that section 1 and the other sections upon which the court failed to pass are complete in themselves; they are not only consistent with the statute's purpose but are in reality the very heart of the act, comprising a distinct legislative plan for the suppression of combinations declared to be unlawful. For as pointed out by the court below, the sections that were not passed on are those which outlaw combinations to fix fees and prescribe the means whereby the legislative proscription against them can be made effective. 3 Since, therefore, that phase of the act which aimed at unlawful combinations is complete in itself and capable of standing alone, we must consider it as a separable phase of the statute in determining whether the injunction was properly issued against the state officials.
As a matter of fact, as the record stands the right of ASCAP and its co-complaintants to an injunction depends upon this phase of the statute and is not to be determined at all by the validity or invalidity of the particular sections which the court below thought inconsistent with the federal Constitution and the copyright laws passed pursuant to it. The ultimate determinative question, therefore, is whether Florida has the power it [313 U.S. 387, 398] exercised to outlaw activities within the state of price fixing combinations composed of copyright owners. But before considering that question it is necessary that we explain why we do not discuss, and why an injunction could not rest upon, any other phase of Florida's statutory plan.
Such 'exceptional circumstances' and 'great and immediate' danger of irreparable loss were not here shown. Tested by this rule, therefore, and with the possible exception of that phase of the statute outlawing Florida activities by combinations declared unlawful in section 1 of the 1937 act ( which we shall later consider separately), neither the findings of the court below nor the record on which they were based justified an injunction against the state prosecuting officers.
In addition to the fact that the situation here does not meet the tests laid down in the decided cases, the very scope of these two statutes illustrates the wisdom of a policy of judicial self restraint on the part of federal courts in suspending state statutes in their entirety upon the ground that a complainant might eventually be prosecuted for violating some part of them. The Florida Supreme Court, which under our dual system of government has the last word on the construction and meaning of statutes of that state, has never yet passed upon [313 U.S. 387, 402] the statutes now before us. It is highly desirable that it should have an opportunity to do so.5 There are forty-two separate sections in the two acts. While some sections are repetitious, and while other sections are unimportant for present purposes, there are embraced within these two acts many separate and distinct regulations, commands and prohibitions. No one can foresee the varying applications of these separate provisions which conceivably might be made. A law which is constitutional as applied in one manner may still contravene the Constitution as applied in another. Since all contingencies of attempted enforcement cannot be envisioned in advance of those applications, courts have in the main found it wiser to delay passing upon the constitutionality of all the separate phases of a comprehensive statute until faced with cases involving particular provisions as specifically applied to persons who claim to be injured. Passing upon the possible significance of the manifold provisions of a broad statute in advance of efforts to apply the separate provisions is analogous to rendering an advisory opinion upon a statute or a declaratory judgment upon a hypothetical case. It is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it. It is sufficient to say that the statutes before us are not of this type. Cases under the separate sections and paragraphs of the acts can be tried as they arise-preferably in the state courts. Any federal questions that are properly presented can then be brought here. But [313 U.S. 387, 403] at this time the record does not justify our passing upon any part of the statute except, possibly, that phase which prohibits activities in Florida by combinations declared unlawful. While the proof and findings in this regard are not as clear and specific as they might and should be, we nevertheless, under the circumstances of his case, proceed to this ultimate and decisive question.
In the consideration of this case, much confusion has been brought about by discussing the statutes as though the power of a state to prohibit or regulate combinations in restraint of trade was identical with and went no further than the power exercised by Congress in the Sherman Act, 15 U.S.C.A. 1-7, 15 note. Such an argument rests upon a mistaken premise. 6 Nor is it within our province in determining whether or not this phase of the state statute comes into collision with the federal Constitution or laws passed pursuant thereto to scrutinize the act in order to determine whether we believe it to be fair or unfair, conducive to good or evil for the people of Florida, or capable of protecting or defeating the public interest of the state. 7 These questions were for the legislature of Florida and it has decided them. And, unless constitutionally valid federal legislation has granted to individual copyright owners the right to combine, the state's power validly to prohibit the proscribed combinations cannot be held non-existent merely because such individuals can pre- [313 U.S. 387, 404] serve their property rights better in combination than they can as individuals. We find nothing in the copyright laws which purports to grant to copyright owners the privilege of combining in violation of otherwise valid state or federal laws. We have, in fact, determined to the contrary with relation to other copyright privileges. 8 But complainants urge that there is a distinction between our previous holdings and the question here. This contention is based on the idea that Congress has granted the copyright privilege with relation to public performances of music, and that with reference to the protection of this particular privilege, combination is essential. We are therefore asked to conclude from the asserted necessities of their situation that Congress intended to grant this extraordinary privilege of combination. This we cannot do. We are pointed to nothing either in the language of the copyright laws or in the history of their enactment to indicate any congressional purpose to deprive the states, either in whole or in part of their long-recognized power to regulate combinations in restraint of trade. Compare Waters- Pierce Oil Co. v. Texas (No. 1), 212 U.S. 86, 107 , 29 S.Ct. 220, 225.
Under the findings of fact of the court below, ASCAP comes squarely within the definition of the combinations prohibited by section 1 of the 1937 act. Section 1 defines as an unlawful combination an aggregation of authors, composers, publishers, and owners of copyrighted vocal or instrumental musical compositions who form any society, association, or the like and the members of which constitute a substantial number of the persons, firms or corporations within the United States who own or control such musical compositions and 'when one of the objects of such combination is the determination and fix- [313 U.S. 387, 405] ation of license fees or other exactions required by such combination for itself or its members or other interested parties.' Section 8 of the 1937 act makes it an offense for such combinations 'to act within this State in violation of the terms of this Act.' The court below found that there were 1,425 composers and authors who were members of ASCAP; that the principal music publishers of the country are members; that the Society controls the right of performance of 45,000 members of similar societies in foreign countries; and that the Board of Directors of ASCAP have 'absolute control over the fixing of prices to be charged for performance licenses ....' Since under the record and findings here ASCAP is an association within the meaning of section 1 of the 1937 act, we are not called upon an its instance to pass upon the validity of other provisions contained in the numerous clauses, sentences, and phases of the 1937 or 1939 act which might cover other combinations not now before us. It is enough for us to say in this case that the phase of Florida's law prohibiting activities of those unlawful combinations described in section 1 of the 1937 act does not contravene the copyright laws of the federal Constitution; that particular attacks upon other specified provisions of the statutes involved are not appropriate for determination in this proceeding; that the court below erred in granting the injunction; and that the bill should have been dismissed. All other questions remain open for consideration and disposition in appropriate proceedings. For the reasons given, the judgment below in No. 610 is reversed and the cause is remanded to the lower court with instructions to dismiss the bill. The judgment in No. 611 is affirmed.
[ Footnote 1 ] Fla.Laws 1937, ch. 17807.
[ Footnote 2 ] Fla.Laws 1939, ch. 19653.
'There remain: Sections 1, 2-C and 3, in effect declaring ASCAP and similar societies illegal associations, outlawing its arrangements for license fees, and proscribing and making an offense, attempts to collect them; Section 7-B making persons, acting for such a combination, agents for it and liable to the penalties of the Act; Section 8 fixing the penalties; Section 9 giving the state courts jurisdiction to enforce the Act, civilly and criminally; and Sections 10-A, 10-B, 11-A and 11-B, prescribing procedure under it.' 34 F.Supp. 516. With the possible exception of section 3, nowhere in the course of the opinion were any of these sections held invalid.
[ Footnote 4 ] The Secretary of State and the State Comptroller were added as parties defendant by a 'Further Supplemental Bill of Complaint' filed October 19, 1939. The ground given by the compolainants for adding parties was that certain duties were imposed on these officials by the 1939 act. The duties, however, required only that certain fees be collected, and not that actions be brought to enforce the law.
In the course of this litigation, Florida has had three Attorneys General. The present Attorney General took office on January 7, 1941, and all the parties have joined in a motion to substitute him as a defendant in place of his predecessor in office. There is no objection to the substitution, and the motion is granted.
[ Footnote 5 ] Cf., e.g., Arkansas Corporation Commission v. Thompson, 313 U.S. 132 , 61 S.Ct. 888, 85 L.Ed. --; Railroad Commission of Texas v. Pullman Co ., 312 U.S. 496 , 61 S.Ct. 643, 85 L.Ed. --; Railroad Commission of Texas v. Rowan & Nichols Oil Co., 311 U.S. 570, 575 , 61 S.Ct. 343; Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 483 , 60 S.Ct. 628, 630; Ex parte Baldwin, 291 U.S. 610, 619 , 54 S.Ct. 551, 555; Gilchrist v. Interborough Rapid Transit Co., 279 U.S. 159, 207 , 49 S.Ct. 282, 288.
[ Footnote 6 ] We have been referred to a recent consent decree against ASCAP in the federal district court for the Southern District of New York, the theory being that the decree might have some bearing upon the state's power to pass the legislation now under attack. But it has not. In matters relating to purely intrastate transactions, the state might pass valid regulations to prohibit restraint of trade even if the federal government had no law whatever with reference to similar matters involving interstate transactions.
[ Footnote 8 ] Interstate Circuit, Inc. v. United States, 306 U.S. 208 , 59 S.Ct. 467. Cf. Fashion Originators' Guild of America v. Federal Trade Commission, 312 U.S. 457 , 61 S.Ct. 703, 85 L.Ed. --; Ethyl Gasoline Corp. v. United States, 309 U.S. 436 , 60 S.Ct. 618.

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General Background Regarding Tort and Contract Claims.
Most disputes involving horses or horse related activities, whether for profit or for pleasure, involve legal claims arising under tort law or contract law. Actions filed with the court will often include alternative claims sounding in tort and in contract. The facts and circumstances of the dispute should be carefully evaluated to determine which claim will likely be presented to the finder of fact even when the claims are made in the alternative. Once the initial evaluation is completed, a “road map” should be created for purposes of establishing what is required for proof at trial on any one particular claim.
Under the Restatement of Contracts “(a) contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty.” (Rest.2d Contracts §1). The essential elements to any contract are: parties capable of contracting, their consent, a lawful object and sufficient cause or consideration for the agreement. (See 1 Corbin (Rev. ed.), §1.1 et seq.). A tort is “any wrong, not consisting in mere breach of contract, for which the law undertakes to give to the injured party some appropriate remedy against the wrongdoer.” (Denning v. State (1899) 123 C. 316, 323.) “(E)very person has . . . the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations.” (Rest.2d, Torts §1). The distinction between contract and tort claims is well established. Contract claims are designed to allow for enforcement of the parties’ intentions to an agreement between the parties; whereas, tort law is designed to promote a social policy of the community. See Foley v. Interactive Data Corp. (1988) 47 Cal.3rd 654, 683.
Contract damages unlike damages in tort do not allow for the recovery of unanticipated injury. The policy of the law is to protect contracting parties from the risk of unusual losses which could not reasonably be expected and hence voluntarily assumed by a contracting party. However, tort damages do allow for damages related to an unanticipated injury. See Lewis Jorge Construction Management, Inc. v. Pomona Unified School District (2004) 34 Cal.4th 960, 968; Osborne v. Keeney (Ky. 2012) 399 S.W.3d 1, 18; Ashland Oil, Inc. v. Picard (Fla. Dist. Ct. App. 1972) 269 So.2d 714, 723.
Contract based claims do not allow for the recovery of exemplary or punitive damages. Even where the party breaching the contract did so intentionally and with malice, the law does not permit punitive damages. (The motive of a party to breach a contract is immaterial. See Applied Equipment Corporation v. Litton Saudi Arabia Limited (1994) 7 Cal.4th 503.) Tort based claims do permit the recovery of such damages where the tort is deemed an intentional wrong and where the facts and circumstances confirm the presence of factors which support the claim for enhanced damages. Such factors include the presence of malice by a defendant or where the defendant is guilty of oppression and fraud. (See Cal. Civ. Code §3294(a) – malice, oppression and fraud are particularly defined in section (c) of the statute. Generally, the definitions include “despicable conduct” by a defendant which was carried out by the defendant with a willful and conscious disregard for the rights or safety of others.) When a complaint contains a request for exemplary damages the request will overshadow later discovery and negotiations for settlement if the claim has a basis in fact.
These legal principles set the boundaries of the litigation roadmap. They also indicate where resources should be allocated before and during the case. Emphasis should be placed on how evidence will be established at trial. Accordingly, it is very important to outline the law of the case and match the law to the facts which are known at the outset and to identify those additional facts which are needed to establish the necessary facts and evidence confirming the same for purposes of trial.
Once the claims are identified for the action and the roadmap is established regarding the evidence needed to prove the claims, then it is very important to preserve the evidence needed to prevail in the case, whether you are representing a plaintiff or a defendant.
Common Themes and Problems Inherent to the Equine Case.
All equine disputes involve the equine in some way. By reason of history, usage and custom in the equine industry there usually is confusion by industry participants related to their legal obligations today versus what they believe to be obligations given the history and custom of the horse industry. Besides common misconceptions regarding obligations to disclose material facts in the sale of a horse or disclosing commissions paid to persons involved in the equine sales transaction there are also fundamental problems related to intentional and unintentional agency formation between industry participants. Finally, there is a general lack of knowledge regarding the law of document or evidence preservation. Many equine industry participants believe it is wholly acceptable conduct to destroy or discard evidence or to “tamper” with witnesses.
Issues Unique to Equine Cases.
All equine cases involve a horse or horses. It seems obvious, but many cases arise by reason of a horse, but sometimes the case will not be resolved one way or the other because of a fact or circumstance involving a particular horse. That said, almost every equine dispute has at the center of the dispute a problem involving a horse. So, it is imperative to understand what will be required at trial in the way of proof regarding the particular issue at hand.
Common issues involve “relationships” between the parties and third persons such as veterinarians, blood-stock agents, transportation companies, riders and trainers. And, other common issues relate to the physical condition of the subject horse – i.e., the condition of the horse at time of sale, the condition of the horse before and after veterinary treatment, the condition of a horse following an injury caused during competition and the like.
It is absolutely critical when analyzing facts and circumstances of an equine dispute to identify the relevant relationships and the issues related to the subject horse. Great care should be exercised by the attorney to identify any agency or partnership relationship between the parties or a party and a third person. Many times the successful outcome of a case will rest on the facts and circumstances of an agency or a partnership. In virtually all states, a partnership and an agency relationship can be created in the absence of a written agreement. Moreover, the law in virtually all states will hold a partner fully liable for the acts of another partner and a principal will be held fully liable for the acts of an agent unless an exception applies.
In the typical equine case experts will be required. Normally, an expert will need to be retained on issues such as liability, standard of care, custom and usage in the particular horse industry and damages. When an expert is selected, it is always best to identify and retain the highest caliber expert available and within the client’s litigation budget. Moreover, the sooner an expert is retained the better regarding all aspects of the case.
Keep in mind that state and federal rules may differ regarding what communication with an expert falls within the “attorney-work product” privilege. Federal law has a qualified privilege that protects most communication between an attorney and an expert. See FRCP 26(b)(4). Whereas, states usually do not protect attorney communication with an expert from later discovery by an opposing party. See DeLuca v. State Fish Co. (2013) 217 Cal.App.4th 671, 688-689; Alliant Hosps., Inc. v. Benham (Ky. Ct. App. 2003) 105 S.W.3d 473, 476 [As expert testimony has steadily assumed greater importance in our courts, the trend has been decidedly toward open discovery and disclosure of the materials, including a lawyer’s work product, that a testifying expert considers].
The client is usually the best source of directions to identify informal discovery. At the initial client meeting it is critical to spend time identifying sources of information which can be obtained without the requirement of formal discovery requests. Again, because of the nature of the equine industry in many cases informal discovery is more important than the formal discovery which is obtained after the lawsuit is filed.
Informal discovery is any means to obtain factual information or information which leads to additional factual information without employing statutory means to obtain discovery. Once a dispute arises and before the parties start litigation there are “windows” of opportunity to obtain important factual information. However, after the dispute is ripe and the parties start to talk to potential witnesses or other parties with information there is the risk that the third party sources of information will close down and quietly take a position which is “neutral” as they do not want to offend a party or they simply do not wish to be involved in a dispute between the parties. The equine industry for all breeds is very small and word travels fast. Even the equine registries and administrative bodies are extremely careful when inquiries are made regarding factual information. They are loathe to get involved in a case.
When informal discovery is ongoing the attorney must assume that information provided by a witness or a potential witness at the outset of a case may later change when the witness is asked to sign a declaration or when the witness actually testifies at a deposition. Notwithstanding this caveat, it is helpful to obtain a witness declaration or affidavit if practicable. The declaration or affidavit can be used for motion purposes or at a later deposition if the witness goes sideways and begins to change their testimony. Remember that declarations and affidavits are hearsay and cannot be used independently to establish a fact at trial; however, the declaration or affidavit can be used for impeachment purposes of a witness if the declaration is used as an exception for hearsay such as an inconsistent statement of the witness.
Another form of informal discovery is locating and preserving information found in public or private locations. A public location would be information available through government or private agencies. Most of the time information at these entities will remain even after a lawsuit is filed. Information in private locations includes Internet based websites and information generally available through social media. It is imperative that this information be identified, copied and preserved at the earliest opportunity when a dispute arises and the attorney is retained to assist the client. In the typical equine case after the demand is letter is sent to the potential defendant and even where a plaintiff thereafter receives a response from the potential defendant, once the lawyers on both sides realize there is information on the Internet the information will likely be deleted from the Internet and the party in a later discovery response will claim they made no copies of the electronic media and accordingly the information is lost.
Federal and state courts have rules which require the attorneys to act professionally and in good faith with each other involving the exchange of discovery during a lawsuit. The federal system has a very streamlined and well-designed system of discovery exchange between the parties. The states typically have a statutory scheme which requires more effort by a lawyer to obtain information from the opposing party since most states do not have an early exchange of discovery which is automatic under the discovery rules. Typically, a formal written request by counsel for discovery is required.
At some point in equine based litigation there will be a discovery dispute between counsel. Because most equine cases have a strong component of passion these types of disputes are usually dripping with high emotion emanating from the client. Disputes involving horses by their nature often involve injury to a horse or a violation of trust by a trainer or a partner. When these facts arise, the client is usually emotional about the case and that emotion can drive discovery disputes. The lawyer must be objective and be prepared for the eventual emotional outburst from the client regarding the discovery process.
In Arizona if a motion is brought regarding a discovery dispute counsel must attach a certificate certifying their effort to resolve the dispute before the motion was filed. Likewise, California also requires a declaration by the attorney filing the motion of meet and confer efforts before the discovery motion was filed. The states of Florida, Kentucky and New York have like statutes. Federal Rule of Civil Procedure 37(a)(1) requires a certificate by the moving party that counsel did in good faith confer or attempt to confer with opposing counsel to resolve the dispute absent court intervention.
Meet and confer efforts are also a good source of identifying factual information useful to a party. Many times information can be obtained from an opposing attorney in the course of meet and confer communication. Telephone calls many times are the best means of obtaining spontaneous disclosures of important information. In the heat of a meet and confer conversation disclosures often occur when opposing counsel is attempting to justify a position. Many times opposing counsel will confirm the non-existence of a fact. Use this confirmation to support the non-existence of essential evidence regarding a claim or a defense to a claim. It is very important to confirm the same to avoid surprise at trial.
In today’s litigation environment courts require parties to mediate their dispute in the hope that the dispute may resolve at mediation. Although privileges apply to communication at a mediation, any statement made or information provided during mediation to opposing counsel, even where a mediator is bound to keep the information confidential, can and will be used by the opposing attorney for trial preparation if the case does not settle. A fine line exists between what to disclose at mediation and what should be withheld to allow for a positive trial outcome if the case does not settle at mediation. Such disclosures are “free discovery” since parties many times will provide information at a mediation which earlier was not identified for some reason because the party wants to settle the dispute.
A pre-filing Internet search should always occur in any equine litigation matter. The lawyer can undertake the search directly via the Internet or the lawyer can employ the services of a professional private investigative service. The Internet search should be based on known facts, but also on likely “suspected” facts. Do not rely entirely on client information when organizing and conducting the Internet search. Keep in mind normal custom and practice of the particular equine industry which is involved in the dispute. Also, prior to implementing the search it is a good practice to contact horse professionals to discuss common facts or industry custom which will be useful in any search of the Internet.
The Internet provides many sources of information and potential evidence for use at trial. Since the horse industry, whether for profit or for pleasure, involves a “sport” there will usually be sources of videos on the Internet related to the subject horse or the event at the center of any dispute.
YouTube offers videos of horses in competition at no charge, but YouTube is not specifically organized for equine videos. In other words, YouTube is an excellent source of video evidence of horses in competition, but additional effort will be required to source the available video information. A common method which usually provides success is to search by the name of a rider or a horse’s name.
Another source of electronic evidence can be found at social media sites and through blogs. Facebook usually provides extensive information regarding a horse’s competition history (both past, current and future), a rider’s competition history with a subject horse or another horse and, a trainer’s history involving the subject horse and other horses that may be relevant to the dispute. Moreover, social media can be used to locate the whereabouts of a party – a defendant – that a plaintiff is looking to serve.
Preservation of Evidence Before Filing.
Once electronic information is identified and located it is very important to properly record, replicate and preserve the information. Remember the caveat given earlier in this discussion – a party will usually remove and delete electronic information once they know they will be involved in a lawsuit. It is very important to pay particular attention to the rules of evidence regarding electronic media. Rules such as best evidence, hearsay, authentication of documents and the like need to be followed so that the information may be used at time of trial. Many times the information obtained is in the nature of “impeachment” evidence, but do not solely rely on the impeachment nature of the evidence for use at trial.
Federal law imposes on litigants an “uncompromising duty to preserve” what they know or reasonably should know will be relevant evidence in a pending lawsuit or a lawsuit which is likely to occur in the future. This duty applies even before a formal discovery request has been issued or before a court has made a discovery order to preserve the evidence. See Kronisch v. United States (2nd Cir. 1998) 150 F.3d 112, 130; see also Silvestri v. General Motors Corp. (4th Cir. 2001) 271 F.3d 583, 590. The duty to preserve evidence arises when a party is involved in actual or probable litigation, the party knows of the litigation or the imminent litigation, the party knows the relevance of the subject evidence (the evidence is necessary for a proper outcome) and, it is foreseeable the other party will suffer prejudice if the evidence is discarded or destroyed. See Winters v. Textron, Inc. (MD PA 1999) 187 FRD 518, 520. If a party is found to have violated the duty to preserve evidence, the federal court may issue a sanction order regarding spoliation of evidence based on the court’s inherent power to manage the litigation or for violation of a court order requiring the preservation of the evidence. Federal courts may fashion a remedy which in fairness is appropriate to the facts and circumstances applicable to the case. Such remedies include exclusion of derivative evidence, pre-trial evidentiary orders and in extreme cases, dismissal of a case or entering a default against a defendant including monetary sanctions. See West v. Goodyear Tire & Rubber Co. (2d Cir. 1999) 167 F.3d 776, 779.
Most states do not recognize negligent or intentional spoliation of evidence as an independent tort claim. When spoliation is found to have occurred, states typically apply a case-by-case analysis and usually adopt evidentiary sanctions or monetary sanctions as a remedy. In egregious cases the court may impose criminal sanctions or sanctions against an attorney for participation in the wrong which may result in state bar disciplinary proceedings against the attorney.
On occasion it may prove useful to hire a professional investigative service to search electronic media and Internet sources to obtain information regarding the case. It would seem that there would be one or more investigative services which focus on identifying equine related information, but a search by the author of the private investigative services focused on equine matters revealed very few if any services which focus on such investigative searches. The Internet does identify many professional investigative services as well as equine based experts regarding equine valuation, equine damage calculations and the like. These types of service providers can assist in the informal or later formal search for information regarding the case.
USEF/ FEI/ The Jockey Club, etc.
There are several breed registries and organizations which govern equine competition activities. Additionally, there are service organizations which exist to assist members of various equine organizations. Such organizations and entities are good sources of information; however, the organizations and entities do not guarantee the accuracy of the information they provide to members and the public at large. Generally, the information is reliable, but it should be cross-checked whenever practicable to confirm its reliability particularly if the information is crucial to the outcome of a case.
Organizations which provide beneficial information include The United States Equestrian Federation (www.usef.org), the Federation Equestre Internationale (www.fei.org), The Jockey Club (they offer show results and competition videos for sponsored events at www.equibase.com), the United States Hunter Jumper Association (www.ushja.org), the United States Dressage Federation (www.usdf.org), the National Barrel Horse Association (www.nbha.com), the American Quarter Horse Association (www.aqha.com), and the Arabian Horse Association (www.arabianhorses.org).
Certain information is available free of charge. In most situations, a deeper search will require payment of a membership fee or a subscription fee to obtain access to the relevant database. In most cases the fees and costs are very reasonable given the quality of the information.
In addition, there are also private sources of video information. One such source is ShowNet (www.shownet.biz). ShowNet offers a comprehensive collection of video data regarding horses in competition involving a variety of breeds and disciplines.
Documents and Interviews of Staff.
Horse registries and administrative/service organizations will provide public information where requested. Some information requires the consent of the client or another party who has an interest in the subject horse. Generally, information can be obtained through employees of the equine entity or by means of a telephone call with staff members. However, for deeper searches these entities will require a subpoena for the production of deeper information.
E-mail communication with third parties including equine agencies is not protected or privileged communication. This type of communication is discoverable. Accordingly, when the attorney or the client is seeking information from a third party, whether it is a trainer, a prior owner of a horse, a prior rider of a horse, a groom or any person who may have contact with the horse or the transaction it behooves the person seeking the information via e-mail to be careful with the content of the e-mail. In equine litigation discovery seeking such e-mails is very useful. In most cases a careless e-mail may provide very persuasive evidence of a party’s intentions or a state of health condition of a subject horse. Many times a party will send an e-mail to a third party without contemplating that the e-mail may be produced in litigation discovery.
Listen for “Leads” Given by Known Witnesses.
As stated previously, before the litigation starts, third party witnesses will usually be forthcoming regarding their view of the case and their opinions related to the dispute. When these witnesses are interviewed they will if prompted provide additional information regarding the identity and the location of other witnesses. Such information should be obtained early in the pre-litigation fact finding process. On occasion, the referred witness will have better testimony than the witnesses which are known at the commencement of the litigation. It is always best to interview as many witnesses as are known prior to filing a complaint to ascertain their positions related to the dispute. Better practice dictates that the attorney investigate all witnesses and simply not accept as true the client’s version of the facts.
A common fact in most equine disputes involves the existence of an “agent.” Another common fact in equine cases is the scope of authority of the agent. Early in the case evaluation the lawyer should identify any agents and the scope of authority given the agent by any principal. Typically, the agency issue arises where the owner of a horse employs a trainer, a veterinarian, a “partner” or a person to assist in the purchase or sale of a horse. Common fact patterns in horse disputes involve an absent owner and an agent of the owner having the primary relationship and communication with the complaining party or the party who is a potential defendant.
Be careful to research the law of agency in the jurisdiction where the dispute will be resolved. Most states have substantive agency law which tracks the Restatement of Agency.
Use of Discovery and Litigation Techniques to Obtain Cooperation of the Agent.
The “agent” is usually in a difficult position when an equine dispute arises. The agent in most situations has direct or indirect liability to the client or to another and by reason thereof the agent walks a fine line when they provide information about their knowledge of events which are relevant to a proper disposition of the disputes. On occasion, the client will want to sue their agent, however, in most situations the client and the agent will have aligned interests. (This is important regarding a later trial before the fact finder – especially with juries!).
It is important to interview the agent as soon as practicable after retention of the attorney by the client. Again, the client will provide a statement of fact to the attorney, but it is important to test the veracity of the client’s version of the facts by interviewing the client’s agent. Where the client continues to employ the agent, the agent will normally give full cooperation. Also, where the agent believes there may be an opportunity for future business with the client the agent will usually cooperate with any factual inquiry. Other reasons for the agent to cooperate are the agent’s concern about liability to a third party and the agent lacks the resources to pay for a defense. (The agent may ask the principal to pay for the agent’s attorneys’ fees related to a defense of a complaint against the agent by a third party.) Other reasons for the agent to cooperate are the standing and reputation of the agent in the horse industry (the agent will want to protect their reputation) and on occasion the agent will also be concerned about an administrative action by a governing equine administrative body.
Preserving and Confirming the Agent’s Testimony.
As previously noted it is important to preserve and confirm an agent’s testimony. The sooner the testimony of the agent is confirmed in an affidavit or by declaration the better. There will be times where an agent will refuse to sign the affidavit or declaration. When this occurs great care should be exercised to avoid antagonizing the agent. When an agent is involved in the litigation the attorney should endeavor not to alienate the agent, but at the same time confirm the agent’s testimony about events in the case. In very large cases it may also be advisable to videotape the agent before a certified court reporter.
Jurisdiction Law and Jury Instructions.
When the litigation roadmap is developed it is helpful to review the jury instructions which will be read to the jury if it is anticipated the case will be tried before a jury. The jury instructions available in most states are also annotated and the annotations will provide a quick overview of the applicable law in the subject jurisdiction. This is especially true with “agency” disputes. Not all states have jury instructions regarding agency law and so if the instruction does not exist in the particular state the attorney will need to prepare a special instruction for the jury. Again, agency law in many equine cases is the essential law to tie a party to either liability or a defense of a claim.
Equine disputes and the litigation which follows require a careful analysis of the case at its inception. The analysis must include a review of the known evidence at the outset, plus the preparation of a roadmap of facts supported by witness and document evidence. By employing informal discovery efforts combined with input from witnesses and experts the attorney representing a plaintiff or a defendant will have a better chance of winning the equine case.
Copyright © T. Randolph Catanese, Esq. 2017. All rights reserved.
 Most states require that facts to support a claim for punitive damages be plead with particularity. However, under Federal Rule of Civil Procedure Rule 9(b) allegations of malice, fraudulent intent and oppression may be plead generally and conclusory of averments of malice or fraudulent intent are sufficient. See Rees v. PNC Bank, N.A. (ND CA 2015) 308 FRD 266, 273-274.
 A principal is responsible for the acts of an agent where the principal benefits from the acts of the agent and the principal is held to have consented to the acts of the agent or by action or later affirmation the principal ratifies the agent’s conduct. See Pannell v. Shannon (Ky. 2014) 425 S.W.3d 58, 65; Benson v. Seestrom (Fla. Dist. Ct. App. 1982) 409 So.2d 172, 173.
 Rule 26(a)(1)(A) of the FRCP requires an early exchange of information between the parties relating to witnesses, documents, damages and insurance. A party is required to exchange information which is “reasonably available” to the party at the time of the disclosure. The required disclosure is only of those witnesses a party may use to support a claim or defense, there is no obligation to disclose witnesses harmful to the disclosing party’s case. (See Adv. Comm. Notes to 2000 Amendments to FRCP 26(a)(1)). Disclosure also requires that a party identify and disclose all information stored electronically that a party may use to support a claim or a defense. See FRCP 26(a)(1)(A)(ii).
 Arizona – Rule 37(a)(1) of the Arizona Rules of Civil Procedure; California Section 2030.300(b) of the California Code of Civil Procedure; Florida – Rule 1.380 of the Florida Rules of Civil Procedure; Kentucky – the Kentucky Court Rules follow closely the FRCP; and, New York - the New York State Court Rules Section 202.7(a)(2).
 Once the other side confirms the non-existence of a fact try to obtain a factual stipulation at or before trial confirming the non-existence of a fact. Counsel can also use form discovery responses to confirm the non-existence of an essential fact. Finally, motions in limine are useful to avoid confusion for a jury regarding the absence of such evidence.
 The author had a case where the defendant resided in Germany and the claim by the defense was the defendant could not be sued in the United States in federal court because the defendant was not located in the United States. The author did a Facebook search on the defendant and the defendant on his Facebook page confirmed he would be in the Palm Springs, California, area on a particular date and within a particular time frame to attend a horse show. The author arranged for the defendant to be served at the horse show. The defendant was then served with the summons and complaint. Under federal law, once the defendant was served in the United States the defendant was required to answer the complaint. See Burnham v. Sup. Ct. (1990) 495 U.S. 604, 610-611; Bourassa v. Derochers (9th Cir. 1991) 938 F.2d 1056, 1058.
 See Souza v. Fred Carries Contracts, Inc. (Ariz. App. 1997) 955 P.2d 3; Cedars-Sinai Med. Ctr. v. Superior Ct. (Cal. 1998) 18 Cal.4th 1; Martino v. Wal-mart Stores, Inc. (Fla. 2005) 908 So.2d 342; Morton v. Bank of the Bluegrass and Trust Co. (Ky. Ct. App. 1999) 18 S.W.3d 353; and, Met-Life Auto & Home v. Joe Basil Chev., Inc. (N.Y. 2004) 1 N.Y.3d 478.
 The first Restatement of Agency was published in 1933 and a second Restatement of Agency was published in 1958. A third Restatement of Agency has been proposed, but it has not been adopted in all states.


McRoberts Protective Agency, Inc., Third-Party Defendant-Appellant.
Security guard filed suit against employer's client for personal injuries.
County, Cohen, J., denied the employer's motion for partial summary judgment.
probative value and was insufficient to defeat motion for summary judgment.
slipped and fell. McKinney's Labor Law § 200.
Before WEINSTEIN, J.P., and RUBIN, SPATT and BALLETTA, JJ.
written agreement between Revere and McRoberts.
contribution, and (3) for indemnification.
did not have control of Revere's premises and was not responsible for cleaning.
contradict the essential factual allegation contained in McRoberts' motion.
issue of fact, and this cause of action is dismissed.
McRoberts's assertion that there was also no oral indemnification agreement.
Richard GOMES, et al., Plaintiffs,v.REVERE SUGAR CORP., Defendant Third-Party Plaintiff-Respondent;McRoberts Protective Agency, Inc., Third-Party Defendant-Appellant.
Security guard filed suit against employer's client for personal injuries. Client filed third-party action against employer. The Supreme Court, Kings County, Cohen, J., denied the employer's motion for partial summary judgment. Employer appealed. The Supreme Court, Appellate Division, held that the employer could not be liable for failing to provide a safe place to work where the employer had no control over the client's premises on which the injury occurred.
Affirmation of attorney, who had no personal knowledge of facts, had no probative value and was insufficient to defeat motion for summary judgment.
Security guard's employer could not be liable for failure to provide safe place to work where employer had no control over client's premises on which guard slipped and fell. McKinney's Labor Law § 200.
Security guard's employer was not liable to client for indemnification, based on guard's injuries on client's premises, absent written or oral indemnification agreement. **646 Kirschenbaum & Kirschenbaum, Garden City (Kenneth Kirschenbaum, of counsel), for third-party defendant-appellant.
Langan & Levy, New York City (Constantine Vlavianos, of counsel), for defendant third-party plaintiff-respondent.
In an action to recover damages for personal injuries, etc., the third- party defendant appeals from an order of the Supreme Court, Kings County (Cohen, J.), dated July 30, 1987, which denied its motion for partial summary judgment dismissing the first and third causes of action asserted in the third- party complaint.
ORDERED that the order is reversed, on the law, with costs, and the motion is granted and the first and third causes of action asserted in the third-party complaint are dismissed.
The third-party defendant McRoberts Protective Agency, Inc. (hereinafter McRoberts) employed the plaintiff Richard **647 Gomes as a security guard. The defendant Revere Sugar Corp. (hereinafter Revere) hired McRoberts to provide security at its plant, and Gomes was assigned to this task. There was no written agreement between Revere and McRoberts.
On January 17, 1985, at approximately 3:15 A.M. while walking on Revere's premises, Richard Gomes fell and was injured. Mr. Gomes brought an action against Revere alleging that his fall was caused by an accumulation of ice and/or syrup leaking from machinery. Thereafter, Revere commenced a third- party action against McRoberts alleging three causes of action: (1) failure to provide a safe place to work as required by Labor Law § 200, (2) for contribution, and (3) for indemnification.
McRoberts moved for partial summary judgment dismissing the first and third causes of action. It submitted an affidavit of its president denying that the parties had entered into an indemnification agreement. McRoberts further argued that it could not be held liable pursuant to Labor Law § 200 because it did not have control of Revere's premises and was not responsible for cleaning.
 In opposition to this motion, Revere submitted an affirmation of an attorney having no personal knowledge of the facts. Such an affirmation has no probative value and is insufficient to defeat a motion for summary judgment (see, Fauci v. Milano, 15 A.D.2d 939, 940, 225 N.Y.S.2d 888, affd. 12 N.Y.2d 926, 238 N.Y.S.2d 313, 188 N.E.2d 525; Kartiganer Assocs. v. Town of New Windsor, 132 A.D.2d 527, 517 N.Y.S.2d 266, lv. denied *58370 N.Y.2d 612, 523 N.Y.S.2d 496, 518 N.E.2d 7). In any event, the attorney's affirmation did not contradict the essential factual allegation contained in McRoberts' motion.
 The Supreme Court improperly denied McRoberts' motion for partial summary judgment. As to the first cause of action, McRoberts cannot be held liable under Labor Law § 200 because it lacked control over Revere's premises (see, Russin v. Picciano & Son, 54 N.Y.2d 311, 317-318, 445 N.Y.S.2d 127, 429 N.E.2d 805; Forbes v. Alvord & Swift, 44 A.D.2d 538, 353 N.Y.S.2d 749). Although Gomes was an employee of McRoberts within the language of the statute, it is well established that: "[i]mplicit in the statutory imposition of the duty to provide a safe place to work is the prerequisite that the party charged with such responsibility have the concomitant authority and degree of control over the activity which produces the injury to enable it to take the action necessary to correct or avoid an unsafe condition" (Reynolds v. Brady & Co., 38 A.D.2d 746, 329 N.Y.S.2d 624; accord Gluck v. Pinkerton N.Y. Racing Security Serv., 96 A.D.2d 548, 465 N.Y.S.2d 58).
Revere did not allege that McRoberts had control over the premises or any duty to inspect or clean the floors or machinery. Accordingly, there is no triable issue of fact, and this cause of action is dismissed.
 The Supreme Court also erred in denying McRoberts' motion as to the third cause of action seeking indemnification. Revere admitted that there was no written indemnification agreement. Furthermore, Revere did not contradict McRoberts's assertion that there was also no oral indemnification agreement.