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Plaintiff’s Expert’s Failure to Address Indications in Plaintiff’s Evidence that the Physical Deficits Were the Result of a Preexisitng Degenerative Condition (Not the Accident) Required the Grant of Summary Judgment to the Defendants—Plaintiff Failed to Raise a Question of Fact Re: Suffering a “Serious Injury” [Insurance Law 5102 (d)] as a Result of the Accident

The First Department determined, over a two-justice dissent, that summary judgment was properly granted to the defendants because plaintiff was unable to raise a question of fact whether plaintiff’s injury was a “serious injury” within the meaning of Insurance Law 5102 (d).  Plaintiff’s evidence indicated plaintiff’s physical deficits may be the result of a preexisting degenerative condition, rather than the accident.  However, plaintiff’s expert did not address the preexisting condition in response to the motion for summary judgment:

Plaintiff submitted his … orthopedic surgeon’s opinion that he suffered a knee injury “secondary” to the car accident. However, the surgeon’s opinion failed to raise an issue of fact since the surgeon not only failed to address or contest the opinion of defendants’ medical experts that any condition was chronic and unrelated to the accident, but also failed to address or contest the finding of degenerative changes in the MRI report in plaintiff’s own medical records, which the same surgeon had acknowledged in his … note.

Our dissenting colleague overlooks that recent precedents of this Court establish that a plaintiff cannot raise an issue of fact concerning the existence of a serious injury under the No-Fault Law where, as here, the plaintiff’s own experts fail to address indications from the plaintiff’s own medical records, or in the plaintiff’s own expert evidence, that the physical deficits in question result from a preexisting degenerative condition rather than the subject accident (see Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014] [plaintiff failed to raise issue of fact where, inter alia, his expert failed to address “detailed findings of preexisting degenerative conditions by defendants’ experts, which were acknowledged in the reports of plaintiff’s own radiologists”]; Farmer v Ventkate, Inc., 117 AD3d 562, 562 [1st Dept 2014] [plaintiff failed to raise issue of fact where, inter alia, “(h)is orthopedic surgeon concurred [*2]that the X rays showed advanced degenerative changes”]; Mena v White City Car & Limo Inc., 117 AD3d 441, 441 [1st Dept 2014] [plaintiff failed to raise issue of fact where, inter alia, “plaintiff’s own radiologists noted degenerative conditions in their MRI reports, but failed to explain why this was not the cause of plaintiff’s injuries”]; Paduani v Rodriguez, 101 AD3d 470, 470, 471 [1st Dept 2012] [plaintiff failed to raise issue of fact where, inter alia, defendants submitted “a radiograph report of plaintiff’s radiologist finding severe degenerative changes” and, “(w)hile (plaintiff’s) expert acknowledged in his own report MRI findings of degenerative changes in the lumbar spine, he did not address or contest such findings, and the MRI report of (plaintiff’s) radiologist found herniations but did not address causation”]; Rosa v Mejia, 95 AD3d 402, 404 [1st Dept 2012] [plaintiff failed to raise issue of fact where, inter alia, “plaintiff’s own radiologist . . . confirmed degenerative narrowing at the L5-S1 intervertebral disc space’ without further comment”]). Rivera v Fernandez & Ulloa Auto Group, 2014 NY Slip Op 08735, 1st Dept 12-11-14

 

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Landlord Properly Granted Summary Judgment in Action Stemming from an Assault on Landlord’s Premises—Plaintiff Unable to Raise a Question of Fact Whether the Assailants Were Intruders, as Opposed to Tenants or Invitees

The First Department determined summary judgment was properly awarded to the landlord in an action based upon an attack upon plaintiff on the landlord’s premises.  Plaintiff was not able to raise a question of fact about whether the assailants were intruders, as opposed to tenants or invitees:

A landlord has a common-law duty to take minimal precautions to protect tenants from a third party’s foreseeable criminal conduct … . In order to recover damages, a tenant must establish that the landlord’s negligent conduct was a proximate cause of the injury … . Where a plaintiff alleges that a criminal attack in a building was proximately caused by a landlord’s failure to provide adequate security, “[the] plaintiff can recover only if the assailant was an intruder” (id. at 551). “To defeat a motion for summary judgment, a plaintiff need not conclusively establish that the assailants were intruders, but must raise triable issues of fact as to whether it was more likely than not that the assailants were intruders who gained access to the premises through the negligently-maintained entrance” … . Applying these principles, no triable issue of fact exists here because there is no evidence from which a jury could conclude, without pure speculation, that the assailants were intruders, as opposed to tenants or invitees. Hierro v New York City Hous Auth, 2014 NY Slip Op -8734, 1st Dept 12-11-14

 

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Under Liberal Construction of Lien Law Defendant Did Not Waive Its Mechanic’s Lien by Failing to Assert Lien-Based Counterclaims and Cross Claims In Its Initial Answer

The Third Department, in a full-fledged opinion by Justice Lahtinen, determined that the defendant had not waived its mechanic’s lien by failing to assert lien-based counterclaims and cross claims it in its initial answer and therefore could amend its answer accordingly:

“The duration of a lien is prescribed by statute and the right to enforce it, like the right to file and create it, is derived therefrom” … . That statutory framework “is remedial in nature and intended to protect those who have directly expended labor and materials to improve real property at the direction of the owner or a general contractor” … . The law governing mechanic’s liens is thus liberally construed to ensure that its purpose is accomplished, and substantial compliance with its provisions is generally sufficient (see Lien Law §§ 23, 40…).

Lien Law § 44 (5) provides in pertinent part that “[e]very defendant who is a lienor shall, by answer in the action, set forth his [or her] lien, or he [or she] will be deemed to have waived the same, unless the lien is admitted in the complaint, and not contested by another defendant.” * * *

…[H]ere, at the time [defendant] made its motion to amend its answer, plaintiff’s complaint, read in conjunction with [defendant’s] answer as well as the other pleadings, constituted a sufficient substantial admission of [defendant’s] lien such that, had the matter gone to trial on those pleadings, [defendant’s] rights would have been preserved under the statutory language … . Since [defendant’s] lien rights had not been already waived as a matter of law when it made its motion to amend its answer, its proposed counterclaim and cross claims were not wholly devoid of merit. Edwards & Zuck PC v Cappelli Enters Inc, 2014 NY Slip Op 08690, 3rd Dept 12-11-14

 

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Plaintiff Did Not Sufficiently Allege Colorado Defendant Had Purposefully Transacted Business In New York—Motion to Dismiss for Lack of Personal Jurisdiction Should Have Been Granted

The Second Department determined Supreme Court should have granted the Colorado defendant’s motion to dismiss the complaint for lack of personal jurisdiction.  Plaintiff requested a loan from her uncle (the defendant), a Colorado resident. After her uncle refused, plaintiff brought this action for prima facie tort and slander based upon her communications with the defendant.  The Second Department found that plaintiff had not sufficiently alleged that defendant “purposefully transacted business” within New York:

A court may exercise personal jurisdiction over any nondomiciliary who “transacts any business within the state” (CPLR 302[a][1]). Generally, a nondomiciliary will be deemed to be subject to the jurisdiction of a New York court pursuant to CPLR 302(a)(1) if he or she has “engaged in some purposeful activity within the State and there is a substantial relationship’ between this activity and the plaintiff’s cause of action” … . “Purposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws'” … .

Although the ultimate burden of proof regarding personal jurisdiction rests with the plaintiff, to defeat a CPLR 3211(a)(8) motion to dismiss a complaint, the plaintiff need only make a prima facie showing that the defendant is subject to the personal jurisdiction of the court … . Here, accepting as true the allegations set forth in the complaint and in the plaintiff’s opposition papers, and according the plaintiff the benefit of every favorable inference … , the plaintiff failed to meet her prima facie burden. The nature and quality of the defendant’s alleged contacts with New York do not demonstrate that he purposefully transacted business within this state … . Whitcraft v Runyon, 2014 NY Slip Op 08634, 2nd Dept 12-10-14

 

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Defendant Driver Could Not Avoid Striking Bicyclist Who Did Not Stop at a Stop Sign

The Second Department determined summary judgment was properly granted to the defendant re:  a bicycle/car collision in which the bicyclist was killed.  Defendant driver demonstrated plaintiff's decedent rode through a stop sign and there was no time to avoid the collision:

The defendant was entitled to anticipate that the plaintiffs' decedent would stop at the stop sign and yield the right-of-way to him … . Moreover, the evidence submitted by the defendant eliminated any triable issue of fact as to the defendant's alleged negligence in failing to avoid the impact … . The defendant established, prima facie, that he had only a second to react … . The evidence further established that, in an attempt to avoid impact, the defendant braked and slowed his vehicle to a stop immediately after impact. In opposition, the plaintiffs failed to raise a triable issue of fact. Under the circumstances presented, the defendant's alleged failure to reduce speed or alter his direction prior to impact did not raise a triable issue of fact as to whether he was negligent … . Yun Lu v Saia, 2014 NY Slip Op 08635, 2nd Dept 12-10-14

 

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Doctrine of Res Judicata Did Not Preclude Lawsuit Against Defendant Building Inspector In His Individual Capacity After Summary Judgment (In Defendant’s Favor) In an Action Against Defendant In His Official Capacity—Transactional Approach to Res Judicata Explained

The Second Department determined that summary judgment in favor of the defendant (Maikisch) in an action brought against a town and defendant in his capacity as building inspector did not, pursuant to the doctrine of res judicata, preclude a lawsuit against the defendant in his individual capacity. The court explained the analytical criteria:

This State has adopted the transactional analysis approach in deciding the application of the doctrine of res judicata. Under this analysis, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” … . “It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A pragmatic' test has been applied to make this determination–—analyzing whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage'” … . “One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously brought to a final conclusion'”

…[I]n the prior action, the plaintiff made no claim against Maikisch in his capacity as an individual. Rather, the plaintiff sought relief, in the form of a declaratory judgment, against the Town and Maikisch in his capacity as Building Inspector of the Town. “It has been repeatedly held that persons suing or being sued in their official or representative capacity are, in contemplation of law, distinct persons, and strangers to any right or liability as an individual, and consequently a former judgment concludes a party only in the character in which he was sued” … .

In any event, the differences which exist between the issues raised in the prior litigation and those raised now, namely, the differences in the kind of relief sought, in the kind of facts to be proved, and in the kind of law to be applied, outweigh the similarities to such an extent as to render the doctrine of res judicata inapplicable … . In the prior action, the plaintiff sought a judgment declaring that the subject property was exempt from certain land-use and building code regulations. There, the plaintiff alleged that, for reasons stated, the relevant regulations were inapplicable the subject property. In this action, the plaintiff seeks to recover money damages from Maikisch individually, based on contract and tort theories. In this action, the plaintiff alleges, inter alia, that Maikisch breached an oral contract between the parties, breached a fiduciary duty owed to the plaintiff, and tortiously interfered with the plaintiff's business relations. Specialized Realty Servs LLC v Maickisch, 2014 NY Slip Op 08627, 2nd Dept 12-10-14

 

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Fight On School Bus Was Not Foreseeable and Could Not Have Been Prevented

The Second Department determined that the duty to supervise students on a school bus is identical to the duty to supervise students in school.  Here infant plaintiff was injured on the bus when punched by another student.  The bus driver did not see the incident and neither the infant plaintiff nor the assailant had been involved in or witnessed any other fights on the school bus. The court held that brief incident was not foreseeable and could not have been prevented:

Like a school, a school bus company has a duty to adequately supervise children in its care, and to exercise the same degree of care toward them as would a reasonably prudent parent under similar circumstances … . However, schools and school bus companies are not insurers of their students' safety; rather, for liability to result, they must have notice of the specific dangerous conduct so as to render the injury foreseeable, as well as a reasonable opportunity to prevent it … .

Here, the bus defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they had no notice of any violent propensities or disciplinary problems on the part of the assailant. Rather, the assailant's act of punching the infant was sudden and unforeseeable, and any lack of supervision was not a proximate cause of the infant's alleged injuries … . Braun v Longwood Jr High School, 2014 NY Slip Op 08595, 2nd Dept 12-10-14

 

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Language of a Guaranty Must Be Strictly Construed

In finding that the language of defendant's (Hart's) guaranty to pay the debts of a business (Gotham) in which Hart had a financial interest did not support the interpretation that the guaranty extended to purchases made by Gotham after the guarantor sold his interest in the business, the Second Department explained the analytical criteria:

Gary Hart, who was then the vice president of Gotham …, and had a financial interest therein, executed a credit application and agreement (hereinafter the credit agreement) on behalf of Gotham on a preprinted form provided to him by the plaintiff, Solco … . Pursuant to the credit agreement, Solco agreed to sell and deliver goods to Gotham on credit. The form recited, in pertinent part:

“PERSONAL GUARANTEE OF PAYMENT AND AGREEMENT*****”the undersigned, being financially interested in the above customer, hereby, jointly and severally, unconditionally, guarantee payment when due of all indebtedness of the above customer including any amount currently due to [the plaintiff] as such indebtedness may exist from time to time together with interest and/or finance charges” … .

The guaranty contained no provision requiring the defendant to notify Solco in the event that his financial interest in Gotham was terminated. * * *

The terms of a guaranty are to be strictly construed …, and a guarantor should not be found liable beyond the express terms of the guaranty … . Moreover, since the language in question was part of a form contract prepared by Solco, any alleged ambiguity should be interpreted against Solco … . Further, in determining the meaning of contractual language, “a court should not read a contract so as to render any term, phrase, or provision meaningless or superfluous” …, but should give effect to all of the contract's provisions … . Solco Plumbing Supply Inc v Hart, 2014 NY Slip Op 08626, 2nd Dept 12-10-14

 

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Action Dismissed Because Letters of Administration Had Not Been Issued to Plaintiff at the Time the Action Was Commenced

The Second Department affirmed the dismissal of the action because the plaintiff had not received letters of administration at the time the summons with notice was filed and because the plaintiff did not allege any injury to him individually.  The court also noted that the plaintiff did not have standing (no representative capacity at the time the action was commenced) to request more time to serve the complaint:

A personal representative who has received letters of administration of a decedent's estate is the only party who is authorized to commence a survival action to recover damages for personal injuries sustained by the decedent or a wrongful death action to recover damages sustained by the decedent's distributees on account of his or her death … . Here, at the time the action was commenced by the filing of the summons with notice, the plaintiff had not yet received letters of administration of the decedent's estate and, thus, the Supreme Court properly granted that branch of the defendants' cross motion which was to dismiss the action insofar as asserted by the plaintiff in a representative capacity … . Moreover, although the action was commenced by the plaintiff, both individually and as “executor” of the decedent's estate, no cause of action asserted any injury or wrongdoing to him … . Thus, the Supreme Court also properly granted that branch of the defendants' cross motion which was to dismiss the action insofar as asserted by the plaintiff individually.

Moreover, as the plaintiff lacked standing to sue in his representative capacity at the time he commenced the action, he could not establish any meritorious basis to extend his time to serve the complaint … . Shelley v Sooth Shore Healthcare, 2014 NY Slip Op 08625, 2nd Dept 12-10-14

 

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Analytical Criteria Re: the Validity of a Stipulation Explained

In affirming the validity of a stipulation related to a divorce, the Second Department explained the relevant analysis, including the concept of ratification of the agreement by accepting its benefits:

” Stipulations of settlement are favored by the courts and are not lightly set aside'” … . A stipulation of settlement is an independent contract binding on the parties unless impeached or challenged for some cause recognized by law … . “Judicial review is to be exercised sparingly, with a goal of encouraging parties to settle their differences on their own” … . ” [A] stipulation of settlement which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability'” … .

Here, the defendant established her prima facie entitlement to judgment as a matter of law by submitting, inter alia, the Stipulation, which contained an express representation that it was not a product of fraud or duress and which awarded the plaintiff meaningful benefits, as well as her affidavit wherein she averred that the parties’ attorneys were engaged in negotiations for months regarding the distribution of marital assets … . Furthermore, the defendant established that the plaintiff ratified the Stipulation and waived his claim to set aside the Stipulation by accepting the benefits of the Stipulation for a significant period of time … . Sabowitz v Sabowitz, 2014 NY Slip Op 08624, 2nd Dept 12-10-14

 

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