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Two Asbestos Cases Properly Consolidated

The First Department, in a full-fledged opinion by Justice Mazzarelli, over a two-justice dissent, determined Supreme Court properly consolidated two cases alleging injury related to asbestos exposure.  One case involved a worker injured by asbestos dust from drywall sanding at a construction site.  The other involved a navy boiler technician who maintained steam valves containing asbestos.  The court determined that the cases had more commonality than differences:

Consolidation of cases is authorized by CPLR 602(a), which provides:

“When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”

As the statutory language suggests, joining cases together is designed to “reduce the cost of litigation, make more economical use of the trial court’s time, and speed the disposition of cases” … . Further, “[g]reat deference is to be accorded to the motion court’s discretion” in joining cases together … .

Malcolm v National Gypsum Co. (995 F2d 346 [2d Cir 1993]) is the seminal case concerning consolidation in asbestos cases. There, the Second Circuit endorsed “[a standard set of] criteria . . . as a guideline in determining whether to consolidate asbestos exposure cases[, including]: (1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged” … .

The court entertaining a consolidation motion is further required to take into consideration the number of separate cases (id. at 352). This Court has applied the Malcolm factors to asbestos cases … . Not all of the factors need be present; consolidation is appropriate so long as “individual issues do not predominate over the common questions of law and fact” (id.). However, in asbestos cases, it has been “routine” to join cases together for a single trial … . Matter of New York City Asbestos Litig, 2014 NY Slip Op 05054, 1st Dept 7-3-14

 

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Flawed Appraisals Would Not Allow a Determination of the Highest and Best Use of the Taken Land

The Third Department determined the appraisal reports submitted for both side were flawed such that the highest and best use of the taken land could not be determined.  The matter was sent back to the Court of Claims.  The court explained the operative principles:

When private property is appropriated for public use, just compensation must be paid, which requires that the owner be placed in the financial position that he or she would have occupied had the property not been taken … . Upon a partial taking of real property, an owner is not only entitled to the value of the land taken — i.e., direct damages — but also to consequential damages, which consist of the diminution in value of the owner’s remaining land as a result of the taking or the use of the property taken … . Damages must be measured based upon the fair market value of the property as if it were being put to its highest and best use on the date of the appropriation, whether or not the property was being used in such manner at that time … . Matter of State of New York…, 2014 NY Slip Op 05002, 3rd Dept 7-3-14

 

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Easement Grants Only the Right to Ingress and Egress, Not a Right to the Physical Passageway Itself

The Third Department determined Supreme Court should not have ordered defendant to remove a gravel driveway.  The easement over defendant’s land gave plaintiffs the right of ingress and egress.  Installing the gravel driveway did not impair plaintiff’s right to ingress and egress:

“[W]here the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder” … . Accordingly, “in the absence of a demonstrated intent to provide otherwise, a landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder’s right of passage is not impaired” … .

Here, the deed establishing the right-of-way states that it is “for the purpose of ingress and egress to” plaintiffs’ property. The uncontroverted evidence established that, while the turnaround was previously comprised of hard-packed dirt, defendant installed a gravel driveway on the turnaround. Plaintiffs did not submit any evidence establishing that the gravel driveway impeded their use of the turnaround. Although plaintiffs established that they had a right of passage for the purpose of ingress and egress, they failed to further establish that defendant’s addition of a gravel driveway impaired that right to any extent. Thibodeau v Martin, 2014 NY Slip Op 04996, 3rd Dept 7-3-14

 

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Capacity to Sue Does Not Go to the Jurisdiction of the Court—Court Can Not Dismiss a Complaint Sua Sponte On that Ground—Capacity to Sue Must Be Raised as a Defense in the Answer or in a Pre-Answer Motion

The Third Department determined Supreme Court did not have the authority to dismiss a complaint sua sponte based upon the plaintiff’s capacity to sue.  The capacity to sue is not jurisdictional and must be raised as a defense:

“The issue of lack of capacity to sue does not go to the jurisdiction of the court . . . . Rather, lack of capacity to sue is a ground for dismissal which must be raised by [pre-answer] motion [or in the answer] and is otherwise waived” … . Here, plaintiff’s capacity to sue was not raised by pre-answer motion or in defendant’s answer. Consequently, Supreme Court erred in raising the issue sua sponte and dismissing the complaint on that basis (see CPLR 3211 [e]). As such, the order must be reversed and the complaint reinstated. Town of Delhi v Telian, 2014 NY Slip Op 05008, 3rd Dept 7-3-14

 

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Procedure Used by Family Court in Custody-Modification Proceeding Did Not Meet the Criteria for a Fact-Finding Hearing

The Third Department determined the proceeding Family Court used in a custody-modification proceeding did not meet the criteria for the required fact-finding hearing:

Family Court erred in failing to conduct a fact-finding hearing. The final appearance was not a true hearing; the parties should have been “afforded a full and fair opportunity to be heard” … . While Family Court stated at the outset of the August 2013 appearance that the matter was set for a hearing that day, the court then allowed each party to deliver a long, unsworn narrative comprised mostly of hearsay — as the court had permitted the parties to do at each previous appearance. After the parties had discussed their views of the situation for an extended time, they were asked to swear to the statements they had made, following which the court rendered a determination without any opportunity for the parties to avail themselves of the usual attributes of a hearing, including the opportunity to present opening and closing statements, to present any other evidence or to conduct cross-examination (see id.). Thus, the court erred in modifying the prior order without holding a fact-finding hearing … . Matter of McCullough v Harris, 2014 NY Slip Op 04984, 3rd Dept 7-3-14

 

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Aggravation of Prior Injury Entitled Petitioner to Disability Benefits

Reversing the Comptroller, the Third Department determined that aggravation of a prior injury entitled petitioner to disability benefits:

This Court has repeatedly held that “‘when a preexisting dormant disease is aggravated by an accident, thereby causing a disability that did not previously exist, the accident is responsible for the ensuing disability'” ,,, . Here, although the Retirement System’s expert speculated that petitioner may have had some low level symptoms that he had learned to manage, there is no dispute that petitioner was not incapacitated prior to the February 2009 incident. The expert characterized the exacerbation of petitioner’s underlying conditions after that point as temporary, but could not explain why petitioner’s conceded disability had not resolved as of the date of the hearing, 3½ years after the accident. Under these circumstances, the Comptroller’s determination is not supported by substantial evidence and must be annulled … . Matter of Scannella v New York State Comptroller, 2014 NY Slip Op 05007, 3rd Dept 7-3-14

 

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Service Requirements of Business Corporation Law Trumped CPLR

The Third Department determined the service requirements of the Business Corporation Law trumped the CPLR:

It is well settled that the CPLR “govern[s] the procedure in civil judicial proceedings . . . except where the procedure is regulated by inconsistent statute” (CPLR 101…). As is relevant here, the procedure for the judicial dissolution of corporations is governed by Business Corporation Law article 11. Business Corporation Law § 1106 in particular provides that an order to show cause is to be served upon, among others, “the corporation[s] and upon each person named in the petition” (Business Corporation Law § 1106 [c]), while the petition need only be filed with the county clerk (see Business Corporation Law § 1106 [d]). As this is inconsistent with the requirements of CPLR 406 (b), the specific requirements of Business Corporation Law § 1106 control in this circumstance … . Matter of Gould Erectors & Rigging Inc, 2014 NY Slip Op 05004, 3rd Dept 7-3-14

 

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Former Assistant Principal Entitled to Full Report Generated In Response to Her Allegations of Harassment and Discrimination Against Superintendent

The Third Department determined a former assistant principal was entitled to the full report generated by special counsel at the request of the school board in response to her allegations of harassment and discrimination against the school superintendent:

In our view, the [school] Board’s interpretation [of its regulation] is inconsistent with the language of the regulation, which is mandatory and dictates that the complainant and the accused will have received at least one report “pertaining to the investigation/outcome of the formal complaint” prior to the Board holding a hearing on the matter. Even assuming that [counsel who wrote the report] was appointed to perform only the complaint officer’s role — as opposed to the superintendent’s role — in the adjudicatory structure set forth in the regulation, a complainant is entitled to a copy of the complaint officer’s report under the regulation. Nevertheless, respondents failed to provide either the complainant or this Court with a copy of the report. Matter of Yager v Massena Cent Schoo Dist, 2014 NY Slip Op 05014, 3rd Dept 7-3-14

 

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Adjunct Professor Entitled to Unemployment Benefits Between Spring and Fall Semesters

The Third Department determined an adjunct professor who taught two courses in the spring and was offered two courses in the fall was entitled to unemployment benefits for the period between the spring and fall semesters:

A professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment” … . “[T]he question of whether a claimant received a reasonable assurance of reemployment for the following academic year is a question of fact and, if the Board’s findings in that regard are supported by substantial evidence, they will not be disturbed”. .. . Here, the Board found that reasonable assurance was lacking, based upon a contingency in the employer’s offer that current full-time professors could, at any time up to the first day of classes, displace claimant and teach the courses assigned to him themselves. Under these circumstances, we conclude that the Board’s decision is supported by substantial evidence and, therefore, it will not be disturbed. Matter of Cardin …, 2014 NY Slip Op 04995, 3rd Dept 7-3-14

 

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Plaintiff Sufficiently Demonstrated the Possibility of Long-Arm Jurisdiction to Warrant Discovery

The Third Department determined Supreme Court should not have dismissed an attorney’s suit for fees on lack-of-personal-jurisdiction grounds. The underlying action was brought by a New York resident (Swanson) injured in Massachusetts.  In explaining the general principles of long-arm jurisdiction, the court noted that some discovery may be necessary to determine the jurisdiction issue:

New York courts “may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state” (CPLR 302 [a] [1]). Inasmuch as CPLR 302 (a) (1) is a “single act statute . . . proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” … . With respect to the requirement of a substantial relationship, “the existence of some articulable nexus between the business transacted and the cause of action sued upon” is “[e]ssential to the maintenance of a suit against a non-domiciliary under CPLR 302 [(a) (1)]” … . Although plaintiff bears the burden of proof as the party seeking to assert jurisdiction, that burden “does not entail making a prima facie showing of personal jurisdiction; rather, plaintiff need only demonstrate that it made a ‘sufficient start’ to warrant further discovery” … . In that regard, we note that the issue of whether long-arm jurisdiction exists often presents complex questions; “[d]iscovery is, therefore, desirable, [*3]indeed may be essential, and should quite probably lead to a more accurate judgment than one made solely on the basis of inconclusive preliminary affidavits” … .

In our view, plaintiff has made a “sufficient start” and demonstrated that additional facts establishing personal jurisdiction “may exist” but are within defendants’ exclusive control … . Specifically, plaintiff raised questions of fact regarding whether defendants interjected themselves into Swanson’s New York workers’ compensation proceeding, ultimately negotiating the workers’ compensation lien on the settlement proceeds from Swanson’s personal injury action. Gottlieb v Merrigan, 2014 NY Slip Op 05011, 3rd Dept 7-3-14

 

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