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Motion to Renew Was Not Based Upon a Change in the Applicable Law—Motion Court Had Simply Ignored the Controlling Precedent—Therefore the Motion Was Actually a Motion to Reargue, the Denial of Which Is Not Appealable

The First Department, in a full-fledged opinion by Justice Tom, determined that defendants’ motion, which was labeled a motion to renew, was actually a motion to reargue, the denial of which is not appealable.  A motion to renew can be based upon a change in the law since the first motion was determined.  However, in this case, the trial judge who denied the original underlying motion, specifically refused to follow the appellate precedent in her department (re: the availability of nonpecuniary damages in a legal malpractice action). Because the underlying law did not change, but rather the law was simply ignored by the trial judge, there was no change in the law which could serve as a basis of a motion to renew. The legal malpractice action stemmed from defense counsel’s failure to raise the speedy trial defense in a criminal matter.  The plaintiff was freed after14 years of imprisonment on the basis of defense counsel’s failure.  D’Alessandro v Carro, 2014 NY Slip Op 06246, 1st Dept 9-18-14

 

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Appellate Court Can Exercise Its Own Discretion Re: Scope of Discovery, Even in the Absence of Abuse

The First Department determined, over a dissent, that Supreme Court had improperly restricted the discovery of software code.  The court explained its power to overrule the trial court in this regard and the underlying principle allowing broad discovery:

New York strongly encourages open and full disclosure as a matter of policy … . To that end, CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.”

A trial court is vested with broad discretion in its supervision of disclosure … . Indeed, “deference is afforded to the trial court’s discretionary determinations regarding disclosure” … . However, “[t]his Court is vested with the power to substitute its own discretion for that of the motion court, even in the absence of abuse” … . We have observed that we “rarely and reluctantly invoke” our power to substitute our own discretion for that of the motion court … . We find that this case presents one of those rare instances in which we are compelled to substitute our discretion for that of the motion court. MSCI Inc v Jacob, 2014 NY Slip Op 06239, 1st Dept 8-18-14

 

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Motion for Leave to File Late Notice of Claim Properly Denied—Injuries to Infant Plaintiff Consistent with Premature Birth

The First Department, over an extensive dissent, determined Supreme Court properly denied a motion for leave to file a late notice of claim in a medical malpractice action which alleged injuries to an infant born prematurely:

In this action for medical malpractice, in which the infant plaintiff seeks to recover for injuries he suffered after being born at 27 weeks’ gestation, the motion court considered the pertinent statutory factors and properly exercised its discretion in denying plaintiff’s motion (General Municipal Law § 50-e[5]). The infant plaintiff’s mother’s excuses that she was unfamiliar with the requirement that she file a notice of claim, and that she was unaware that her son’s injuries were caused by defendant Health and Hospital Corporation’s (HHC) malpractice, are not reasonable. Nor is her attorney’s assertion that he waited to make the motion until approximately three years and ten months after filing the untimely notice of claim because he needed to receive the medical records from HHC … .

Further, the medical records demonstrate that the infant plaintiff’s condition and prognosis are consistent with his premature birth and do not suggest any injury attributable to the hospital staff’s malpractice … . Moreover, plaintiff failed to demonstrate that the medical records put HHC on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia or that he would subsequently develop other deficits, delays, and disorders … . Wally G v New York City Health & Hosps Corp, 2014 NY Slip Op 06241, 1st Dept 9-18-14

 

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Claimant Was an Employee Notwithstanding a Written Agreement Describing Her as an Independent Contractor

The Third Department determined claimant was an employee of Prometric Inc.  Claimant was hired as a nurse aide evaluator (NAE) to evaluate nursing assistant candidates.  The fact that the written agreement labeled claimant as an independent contractor was not determinative:

It is well settled that the existence of an employment relationship is a factual issue for the Board to decide and its determination will be upheld if supported by substantial evidence …. Significantly, where, as here, the work of medical professionals is involved, the pertinent inquiry is whether the purported employer retained overall control over the work performed … .

Here, Prometric developed an assessment tool to be used to evaluate the skills that a test candidate needed to perform and conducted annual training sessions with claimant and other NAEs to ensure consistency in testing. Prometric interviewed individuals that it wished to retain as NAEs and reimbursed them for mileage and travel expenses. It established an hourly rate of pay for specific work activities, but other rates were sometimes negotiated depending upon the circumstances. The work of the NAEs was performed off site either at nursing homes or training facilities and the NAEs chose their work assignments from a computer-generated list. Although the NAEs had flexibility in scheduling their assignments and did not have set hours, if an NAE was unable to show, Prometric was responsible for finding a replacement or canceling the test. Notably, Prometric provided claimant with all testing materials and other equipment needed to evaluate the candidates, had him wear an identification badge and required him to maintain strict confidentiality. Furthermore, Prometric had a senior nurse evaluator conduct an annual review of claimant’s work who assisted him in correcting any deficiencies. The foregoing indicates that Prometric retained sufficient overall control over the work of claimant and other similarly situated NAEs to be considered their employer … . Accordingly, notwithstanding the written agreement labeling claimant an independent contractor …, substantial evidence supports the Board’s decisions. Matter of Makey, 2014 NY Slip Op 06226, 2nd Dept 9-18-14

 

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Criteria for Negligent Misrepresentation Cause of Action Explained

The First Department determined the complaint sufficiently alleged a cause of action for negligent misrepresentation and laid out the criteria, including a “special relationship” close to privity:

To properly assert a claim on a theory of negligent misrepresentation, a plaintiff must plead: “(1) that the existence of a special or privity-like relationship imposed a duty on the defendant to impart correct information to the plaintiff; (2) that the imparted information was actually incorrect; and (3) that the plaintiff reasonably relied on the information” … .

As to the first element, a court will find a special relationship if the record supports “a relationship so close as to approach that of privity” … or, stated another way, the “functional equivalent of contractual privity” … . Under this standard, before liability for negligent misrepresentation may attach in favor of a third party, there must be: (1) an awareness by the maker of the statement that the statement is to be used for a particular purpose; (2) reliance by a known party on the statement in furtherance of that purpose; and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance… . North Star Contr Corp v MTA Capital Constr Co, 2014 NY Slip Op 06238, 1st Dept 9-18-14

 

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Wrong Party Name Could Not Be Remedied by Service of an Amended Summons and Complaint—Supreme Court Could Not Grant Motion to Serve Amended Pleadings Because the Court Never Had Personal Jurisdiction Over the Misnamed Party (Misnamed Party Never Served)—Relation Back Doctrine Did Not Apply

The Second Department reversed Supreme Court and granted defendant’s motion to dismiss.  The pleadings named a trade name, not the correct name of the business. Supreme Court had allowed plaintiffs to serve an amended summons and complaint.  The Second Department determined Supreme Court never had jurisdiction over the defendant (because the defendant was never served) and the relation back doctrine did not apply:

The Supreme Court should have granted the appellant’s motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against “Summit Business Media,” as a trade name is not a jural entity amenable to suit … . In addition, under CPLR 305(c), “an amendment to correct a misnomer will be permitted if the court has acquired jurisdiction over the intended but misnamed defendant provided that . . . the intended but misnamed defendant was fairly apprised that [it] was the party the action was intended to affect . . . [and] would not be prejudiced’ by allowing the amendment” … . Here, because neither the appellant nor its predecessor-in-interest, Summit Business Media, LLC, were served with process, the Supreme Court lacked personal jurisdiction over them, and lacked the authority to grant leave to amend the summons and complaint … . Further, the plaintiffs failed to establish that the relation-back doctrine applied (see CPLR 203[b]…). Honeyman v Curiosity Works Inc, 2014 NY Slip Op 06176, 2nd Dept 9-17-14

 

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Petition to Commence Action Against the Motor Vehicle Accident Indemnification Corporation (MVAIC) Should Not Have Been Denied In the Absence of a Hearing

The Second Department determined Supreme Court should not have summarily determined a petition to bring an action against the Motor Vehicle Accident Insurance Corporation (MVAIC) and ordered a hearing.  Plaintiff alleged he was injured (while riding a scooter) by a driver who left the scene:

Here, while the petitioner sufficiently pleaded the prima facie elements necessary to commence an action against the MVAIC (see Insurance Law §§ 5217, 5218), the MVAIC raised questions of fact precluding summary determination of the petition. Based on the record before us, the issues of (1) whether the petitioner is an uninsured resident of New York, and, therefore, a “qualified person” pursuant to article 52 of the Insurance Law (see Insurance Law § 5202[b]), (2) whether the accident was reported to the police within 24 hours (see Insurance Law § 5218[b]; 5208[a][2][A]), and (3) whether the petitioner served a notice of claim upon the MVAIC within 90 days of the accident (see Insurance Law § 5208[a][2][A]), could not have been resolved without an evidentiary hearing … . Thus, the Supreme Court should not have summarily determined the petition (see CPLR 409, 410).  Matter of Hernandez v Motor Veh Acc Indem Corp, 2014 NY Slip Op 06203, 2nd Dept 9-17-14

 

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Motion to Vacate Default Judgment in Foreclosure Action Properly Granted—Criteria Explained

The Second Department determined Supreme Court properly vacated a default judgment in a foreclosure action:

” A foreclosure action is equitable in nature and triggers the equitable powers of the court'” … . “Under CPLR 5015(a), a court is empowered to vacate a default judgment for several reasons, including excusable neglect; newly-discovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order” … .

“In addition to the grounds set forth in section 5015(a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice” … . Indeed, the drafters of CPLR 5015(a) “intended that courts retain and exercise their inherent discretionary power in situations that warranted vacatur but [*2]which the drafters could not easily foresee” … .

“The decision as to the setting aside of a default in answering is generally left to the sound discretion of the Supreme Court, the exercise of which will generally not be disturbed if there is support in the record therefor” … .

Under the unique circumstances of this case, the Supreme Court providently exercised its discretion in vacating the judgment of foreclosure and sale entered on the default of the Cohen defendants “in the interests of substantial justice” … . The documentary evidence submitted in support of the motion raises issues including, among others, whether the plaintiff had “knowledge of facts that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue” … . Hudson City Sav Bank v Cohen, 2014 NY Slip Op 06177, 2nd Dept 9-17-14

 

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Record Did Not Demonstrate Defendant Understood His Miranda Rights—Statement Should Have Been Suppressed

The Second Department determined defendant’s statement should have been suppressed.  The People failed to demonstrate defendant understood his right to remain silent:

Contrary to the hearing court’s determination, the evidence adduced at the suppression hearing was insufficient to establish that the defendant’s statements to law enforcement officials were made after he knowingly, voluntarily, and intelligently waived his Miranda rights (see Miranda v Arizona, 384 US 436). Although the defendant’s refusal to sign the Miranda card did not, in itself, preclude the finding of a valid waiver …, the record was devoid of any indication that the defendant clearly understood his Miranda rights as read to him … . People v Barnes, 2014 NY Slip Op 06209, 2nd Dept 9-17-14

 

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Motion to Vacate Convictions Granted—People Failed to Provide “Brady” Material In Time for the Defense to Make Meaningful Use of It

The Second Department, pursuant to a CPL 440 motion, vacated the defendants’ convictions because of the People’s failure to turn over documents which would have aided the defense (a “Brady” violation).  Although the documents were provided at the time of jury selection, they were mixed in with a large volume of other documents which effectively deprived the defense of notice of their existence.  There was a “reasonable probability” the documents, had they been used at trial to impeach police witnesses, would have changed the outcome of the trial:

The People have an obligation to disclose exculpatory evidence, known as Brady material, in their possession which is favorable to the defendant and material to his or her guilt or innocence (see Brady v Maryland, 373 US 83, 87…). Such evidence is to be produced regardless of whether a defendant requests the material … . The prosecutor’s duty to exchange Brady material extends to the disclosure of evidence that can be used to impeach the credibility of a witness for the People whose testimony may be determinative of the defendant’s guilt … . Such material is to be turned over to the defendant in time for him or her to use it in a meaningful fashion during cross-examination or as evidence during his or her own case … .

In order to establish a Brady violation, a defendant must prove: (1) the evidence at issue is favorable to him or her; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice ensued because the suppressed evidence was material … . As to the element of materiality, where there was only a general request by the defendant at the time of trial for exculpatory material, evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different … . Here, the manner in which the prosecution turned over the documents, during the course of jury selection, deprived the defendants of a meaningful opportunity to employ that evidence during their cross-examination of the prosecution’s witnesses … . People v Wagstaffe, 2014 NY Slip Op 06217, 2nd Dept 9-17-14

 

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