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PLAINTIFF’S DISCOVERY REQUESTS IN THIS CHILD VICTIM’S ACT ACTION ALLEGING SEXUAL ABUSE BY A CATHOLIC SCHOOL GYM TEACHER WERE PALPABLY IMPROPER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s discovery requests in this Child Victim’s Act action against the Archdiocese of New York were palpably improper and should have been denied (the requests were not described in the decision). Plaintiff alleged sexual abuse by a gym teacher when he was a child in the 1960’s:

Notices for discovery and inspection and interrogatories are palpably improper if they are overbroad or burdensome, fail to specify with reasonable particularity many of the documents demanded, or seek irrelevant or confidential information (see CPLR 3120[2] …). Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it … . “The burden of serving a proper demand is upon counsel, and it is not for the courts to correct a palpably bad one” …

Here, the plaintiff’s discovery demand and interrogatories were palpably improper in that they were overbroad and burdensome, sought irrelevant or confidential information, or failed to specify with reasonable particularity many of the documents demanded … .Fox v Roman Catholic Archdiocese of N.Y., 2022 NY Slip Op 01148

 

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THE ACTION WAS NOT COMMENCED UNTIL TEN DAYS BEFORE THE STATUTE OF LIMITATIONS EXPIRED AND PLAINTIFF’S COUNSEL DID NOT TIMELY COMPLETE SERVICE BY MAILING THE SUMMONS AND COMPLAINT; PLAINTIFF WAS NOT ENTITLED TO AN EXTENSION OF TIME TO SERVE THE DEFENDANT BECAUSE LAW OFFICE FAILURE PRECLUDED AN EXTENSION FOR GOOD CAUSE AND THE LACK OF DILIGENCE PRECLUDED AN EXTENSION IN THE INTEREST OF JUSTICE (SECOND DEPT).
Res Ipsa Loquitur Is Rarely a Basis for Summary Judgment/Questions of Fact About Defendant’s Control of the Instrumentality Causing Injury Precluded Summary Judgment.
THE RELEASE WAS VALID EVEN THOUGH PLAINTIFF DID NOT UNDERSTAND ENGLISH; CPLR 2101, WHICH REQUIRES DOCUMENTS IN A FOREIGN LANGUAGE WHICH ARE FILED OR SERVED BE ACCOMPANIED BY AN ENGLISH TRANSLATION, DOES NOT APPLY BECAUSE THE RELEASE WAS IN ENGLISH (SECOND DEPT).
THE MOTION TO RESETTLE REQUESTED A SUBSTANTIVE CHANGE IN THE PARTIES’ RIGHTS WHICH CANNOT BE ADDRESSED BY RESETTLING AN ORDER; A MOTION TO RESETTLE IS MEANT TO ADDRESS CLERICAL ERRORS (SECOND DEPT).
STATEMENT IN HOSPITAL RECORD ATTRIBUTED TO PLAINTIFF WAS ADMISSIBLE AS PART OF A BUSINESS RECORD AND AS A PARTY ADMISSION, STATEMENT SHOULD NOT HAVE BEEN EXCLUDED FROM TRIAL.
DEFENDANTS RAISED A QUESTION OF FACT ABOUT WHETHER THEY WERE SERVED WITH THE SUMMONS AND COMPLAINT AND PLAINTIFF FAILED TO PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Primary Assumption of Risk Precluded Lawsuit
“For Cause” Challenges to Jurors Who Could Only Say They Would “Try” to Be Fair Should Have Been Granted

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