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DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW THAT PLAINTIFF’S EXPOSURE TO ASBESTOS WHEN MAINTAINING DEFENDANT’S PRODUCTS DID NOT CONTRIBUTE TO PLAINTIFF’S ASBESTOS-INJURIES; AT THE SUMMARY JUDGMENT STAGE, IT IS NOT ENOUGH FOR DEFENDANT TO ARGUE PLAINTIFF COULD NOT PROVE CAUSATION (THIRD DEPT). ​

The Third Department determined there were questions of fact whether plaintiff (Howard) was exposed to asbestos in his maintenance of defendant’s pumps on Navy submarines: Defendant failed to demonstrate as a matter of law that its products did not contribute to plaintiff’s asbestos-injuries:

“In order to establish entitlement to judgment as a matter of law, defendant[] bore the initial burden of demonstrating that [its] respective products ‘could not have contributed to the causation’ of [Howard]’s asbestos-related injuries” … . Defendant could not prevail on its motion for summary judgment by “merely pointing to gaps in . . . plaintiff[s’] proof” … . In other words, “[defendant] could not simply argue that plaintiff[s] could not affirmatively prove causation, but rather it had to affirmatively prove, as a matter of law, that there was no causation” … .

… According to Howard [plaintiff], his duties aboard these various vessels required, among other things, that he directly supervise maintenance on defendant’s pumps, which included asbestos-containing gaskets, packing and insulation. Howard stated that he would work in the immediate vicinity of the pumps when the gaskets were removed and scraped from the pumps, and when packing and insulation on the pumps was removed and replaced. Howard v A.O. Smith Water Prods., 2023 NY Slip Op 00017, Third Dept 1-5-23

Practice Point: In a toxic tort case, in order to prevail on a summary judgment motion, defendant must demonstrate as a matter of law that defendant’s products did not cause plaintiff’s injuries. The defendant will not win a summary judgment motion in this context by arguing plaintiff could not prove causation.

 

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NEW YORK HAS JURISDICTION OVER OUT-OF-STATE DEFENDANT JUUL LABS, THE MANUFACTURER OF ELECTRONIC CIGARETTES, AND TWO CORPORATE OFFICERS IN AN ACTION ALLEGING DECEPTIVE BUSINESS PRACTICES, FRAUD AND PUBLIC NUISANCE (FIRST DEPT). ​

The First Department determined New York had jurisdiction over the defendant JUUL, the manufacture of electronic cigarettes, and two corporate officers involved JUUL’s marketing campaign in New York. The complaint alleged “causes of action pursuant to General Business Law §§ 349 and 350, for deceptive acts and practices and for false advertising, respectively; pursuant to Executive Law § 63(12), for repeated and persistent fraud and illegal conduct in violation of General Business Law §§ 349 and 350 and section 5 of the Federal Trade Commission Act (15 USC § 45); and, for public nuisance.”:

… [T]he People submitted internal emails and reports demonstrating … that defendants traveled to New York City for investment meetings … ; that defendants personally attended JUUL’s launch party in New York City …, JUUL also sought to arrange in-person meetings between defendants and both “New York targets” and broadcast media organizations; and, that defendants and JUUL considered the New York City launch to have been a success.

… [D]efendants were involved in marketing strategy, which included … months of events in New York; identifying New York as the target of JUUL’s northeastern U.S. marketing efforts, at and after launch; advertising on billboards in Times Square; hosting in-store product samplings at New York vape shops and social events; and escalating marketing efforts in the New York City metropolitan area post-launch. After New York proved to be a substantial market for JUUL’s product, defendants went so far as to describe the efforts as “NYC takeover” and to declare that New York City users should be “the focus of [JUUL’s] branding/marketing.”

This evidence establishes that defendants conducted sufficient in-person activities within New York State related to the People’s claims against them in this action, and sufficiently supports the exercise of specific personal jurisdiction over them pursuant to CPLR 302(a)(1) … . People v JUUL Labs, Inc., 2023 NY Slip Op 00040, First Dept 1-5-22

Practice Point: Here New York demonstrated it had personal jurisdiction over the out-of-state manufacturer of electronic cigarettes and two corporate officers involved in marketing the cigarettes in New York. The complaint alleged deceptive business practices, fraud and public nuisance.

 

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TO DEPRIVE A PLAINTIFF OF THE SIX-MONTH RECOMMENCEMENT BENEFIT OF CPLR 205(A) THERE MUST HAVE BEEN A PATTERN OF NEGLECT, NOT, AS HERE, A SINGLE INSTANCE OF NEGLECT (PLAINTIFF WAS NOT READY FOR TRIAL); THERE WAS A DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined that dismissal for failure to prosecute requires more than one instance of neglect (here plaintiff was not ready to proceed on the trial date). Rather, a pattern of neglect must be shown in order to deprive plaintiff of the six-month recommencement benefit of CPLR 205(a):

While the prior action was dismissed due to plaintiff’s unreadiness to go forward with the trial as scheduled on December 16, 2022 … , the … trial court, in dismissing the case, did not set forth on the record any additional instances of neglect by the plaintiff that could “demonstrate a general pattern of delay in proceeding with the litigation” (CPLR 205[a] …), as opposed to one particular lapse, namely, the lack of readiness on the trial date. The court’s statement that the case had been “languishing since 2010” does not suffice, inasmuch as it fails to specify any “specific conduct . . . demonstrat[ing] a general pattern of delay” (CPLR 205[a] …). As this Court has recently held, a “general pattern of delay” must comprise more than one instance of dilatory conduct … . U.S. Bank Natl. Assn. v Fox, 2023 NY Slip Op 00046, First Dept 1-5-23

Practice Point: A plaintiff will not be deprived of the six-month recommencement benefit of CPLR 205(a) unless there has been more than a single instance of neglect (here plaintiff was not ready for trial). In addition, the judge must, in the order dismissing the action, set forth the facts demonstrating a pattern of neglect before the plaintiff will be prohibited from recommencing the action.

 

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THE ALLEGATIONS IN THE COMPLAINT WERE NOT SUFFICIENT TO SUPPORT LIABILITY ON A PIERCING-THE-CORPORATE-VEIL THEORY AND THE HOPE THAT DISCOVERY WOULD REVEAL SOMETHING WAS NOT A BASIS FOR DENIAL OF THE MOTION TO DISMISS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint did not allege sufficient facts to hold defendant MMC liable on a piercing-the-corporate veil theory in this medical malpractice case:

… [T]he complaint does not contain allegations sufficient to support holding MMC liable on a theory of piercing the corporate veil, since it does not allege facts supporting a finding that MMC completely dominated and controlled Nyack Hospital or abused the privilege of doing business in the corporate form (CPLR 3211[a][7] … ). Moreover, the lack of discovery does not excuse plaintiff’s failure to plead any facts that would support piercing the corporate veil …, and the hope that something will turn up in discovery is an insufficient basis to deny the motion to dismiss … . Yovich v Montefiore Nyack Hosp., 2023 NY Slip Op 00047, First Dept 1-5-23

Practice Point: If a complaint doesn’t allege facts demonstrating complete domination and control or abuse of the privilege of doing business in the corporate form the cause of action relying on the piercing-the-corporate-veil theory will be dismissed. The hope that discovery will reveal something relevant is not enough to prevent dismissal.

 

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THE NATIONAL VACCINE INJURY COMPENSATION PROGRAM (PART 2 OF THE NATIONAL CHILDHOOD VACCINE INJURY ACT OF 1986), WHICH LIMITS THE LIABILITY OF A PHYSICIAN WHO ADMINISTERS A VACCINE TO $1000, DOES NOT APPLY TO PHYSICIANS WHO SUBSEQUENTLY TREAT A VACCINATED PERSON FOR A VACCINE-RELATED CONDITION (FIRST DEPT).

The First Department determined the National Vaccine Injury Compensation Program, Part 2 of the National Childhood Vaccine Injury Act of 1986 (VICP or NCVIA) (42 USC § 300aa-10 et seq.), which limits the liability of a physician who administers a vaccine to $1000, applies only to those who actually administer the vaccine and not to those who subsequently treat the vaccinated person for medical problems that may be linked to the vaccine:

On April 14, 2006, defendant Gargi Gandhi, M.D. administered two vaccines to infant plaintiff Diksha Batish, then age 13. Plaintiff’s condition subsequently deteriorated. Two weeks after vaccination, plaintiff received care from defendant Drs. Imundo and Pascual. Several months later, in September 2006, plaintiff first sought treatment from Dr. Spiro. There is no dispute that only Dr. Gandhi administered the vaccines. * * *

Here, none of the moving defendants administered the vaccine. Neither … did they treat plaintiff for conditions allegedly exacerbated by subsequent vaccinations. They only provided post-vaccination care. Thus, the moving defendants cannot be considered vaccine administrators under the VICP. Since the moving defendants are not vaccine administrators, the VICP is inapplicable, and any toll authorized by the VICP is also inapplicable (see 42 USC § 300aa-16[c]). Batish v Gandhi 2022 NY Slip Op 07494, First Dept 12-29-22

Practice Point: The National Vaccine Injury Compensation Program, Part 2 of the National Childhood Vaccine Injury Act of 1986 (VICP or NCVIA) (42 USC § 300aa-10 et seq.) limits the liability of a physician who administers a vaccine to $1000.

 

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WHETHER THE CORPORATE VEIL SHOULD BE PIERCED IS A FACT-BASED DETERMINATION GENERALLY NOT SUITED FOR SUMMARY JUDGMENT; THE FINDINGS BY THE MOTION COURT WERE NOT SUPPORTED BY UNDISPUTED FACTS; SUMMARY JUDGMENT ALLOWING THE CORPORTE VEIL TO BE PIERCED REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion court should not have granted summary judgment allowing the corporate veil to be pierced and holding the defendants liable for a judgment against the corporation (DJJMS). The appellate division noted that a determination the corporate veil should be pierced is a fact-based analysis not suited to summary judgment:

The elements of veil piercing are that (1) the owners exercised complete domination and control of the corporation with respect to the transaction attacked; and (2) such domination was used to commit a fraud or wrong against the plaintiff, resulting in the plaintiff’s injury … . Plaintiffs who seek to pierce the corporate veil bear a heavy burden … .

“[C]omplete domination of the corporation is the key to piercing the corporate veil” … , but the motion court did not cite sufficient, undisputed facts to show that defendants exercised complete domination of DJJMS. It noted that veil piercing occurs “when the principals are using the corporation ‘as their personal piggy-bank'” but cited no facts to support its apparent determination that defendants so used DJJMS … . The motion court did not adequately detail relevant, undisputed facts to show that defendants have “abused the privilege of doing business in the corporate form,” including facts showing that, as a matter of law “there was a failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use” … . … The motion court apparently presumed that the transfer at issue …  caused DJJMS to be judgment proof, but the court does not cite any undisputed fact, other than the fact of the transfer itself, to support its conclusion. Etage Real Estate LLC v Stern, 2022 NY Slip Op 07499, First Dept 12-29-22

Practice Point: Whether the corporate veil should be pierced is a fact-laden inquiry which is not suited for summary judgment.

 

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THE TYPOGRAPHICAL ERROR IN THE CONTRACT RENDERED A CRUCIAL SENTENCE AMBIGUOUS; THE ERROR COULD NOT BE CORRECTED WITHOUT POSSIBLY ALTERING THE PARTIES’ INTENT; THEREFORE EXTRINSIC EVIDENCE IS NECESSARY TO INTERPRET THE CONTRACT (FIRST DEPT).

The First Department, in full-fledged opinion by Justice Webber, over an extensive two-justice dissent, determined there was a typographical error in the sentence describing the effective date of the contract which rendered the contract ambiguous. The dissent argued the intended meaning of the sentence was clear and the error should be corrected by the court: The effective date of the contract was crucial to a determination whether the contract was enforceable or had expired:

… [W]e are not ascribing one interpretation over the other. Rather, we are pointing out the multiple reasonable interpretations and concluding that additional information is necessary to ascertain the proper interpretation (see Castellano v State of New York, 43 NY2d 909 [1978]). In Castellano, when faced with a word in a lease clause that was grammatically inconsistent with the rest of the lease, the Court considered the different ways the parties proposed to change the clause to render it grammatically correct, both of which were reasonable. Each required altering a word in the lease. Rather than choosing one alteration over another, the Court found that there should be an exploration to ascertain the proper interpretation. …

… [T]hese are not “inadvertent errors,” or a “mistake” that can be corrected without altering the intent of the parties … . While “mistakes in grammar, spelling or punctuation should not be permitted to alter, contravene or vitiate manifest intention of the parties as gathered from the language employed” … , the [contract language] cannot be rendered grammatically correct without possibly altering the parties’ intent. “[T]he question of whether an ambiguity exists must be ascertained from the face of an agreement without regard to extrinsic evidence” … . Here, the … language is literally unclear and ambiguous and must be interpreted in light of extrinsic evidence. Mak Tech. Holdings Inc. v Anyvision Interactive Tech. Ltd., 2022 NY Slip Op 07507, First Dept 12-29-22

Practice Point: Although a court can correct an obvious typographical error in a contract, here the majority concluded there was more than one way to make the language grammatically correct, rendering the contract ambiguous. Extrinsic evidence was therefore necessary to interpret the contract.

 

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THE POLICE OFFICER’S TESTIMONY ABOUT HOW THE DEFENDANT’S DAUGHTER, WHO DID NOT TESTIFY AT THE TRIAL, DESCRIBED THE ALLEGED STABBING WAS INADMISSBILE TESTIMONIAL HEARSAY; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing defendant’s assault conviction, over a dissent, determined the police officer’s (Costello’s) testimony about the defendant’s daughter’s explanation of the alleged stabbing, which included a reinactment, was testimonial hearsay and should not have been admitted. The defendant’s daughter did not testify at the trial. In addition, the defendant’s son’s statement to the defendant at the scene (Why, why, why? Why did you stab my mom?”) should not have been admitted as an excited utterance because the son did not witness the alleged stabbing:

“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution” … . To determine which of these categories an out-of-court statement falls into, a court should focus on “the purpose that the statement was intended to serve” … , and to ascertain “the ‘primary purpose’ of an interrogation,” a court should “objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties” … .

… [T]he daughter’s statements to Costello regarding the circumstances under which the defendant had stabbed the victim were testimonial in nature. Viewing the record objectively, at the time the statements were made, there was no ongoing emergency. The victim had been removed from the scene and taken to a hospital. The defendant had been taken into custody and transported to a police station. Indeed, Costello testified that a detective was never even assigned to the case, precisely because the police already “had the alleged perpetrator in custody.” Although the daughter was still deeply upset as a result of the stabbing, she was not in need of police assistance, and it is clear that Costello’s questions were not asked for the purpose of facilitating such assistance. Rather, the primary purpose of Costello’s questioning of the daughter “was to investigate a possible crime” … . Costello “was not seeking to determine . . . what is happening, but rather what happened” … . Indeed, Costello expressly asked the daughter to “indicate to [him] what happened.” Moreover, Costello went beyond simply asking what happened and requested that the daughter describe and illustrate exactly how it happened using simple words and gestures. While the People argue that Costello requested the use of gestures merely to overcome a language barrier, the fact remains that he asked the daughter to convey information about past events. The daughter’s detailed account of those events, complete with a physical re-enactment of the crime, did “precisely what a witness does on direct examination,” and thus was “inherently testimonial” … . People v Vargas, 2022 NY Slip Op 07460, Second Dept 12-28-22

Practice Point: Here a police officer was allowed to testify about how defendant’s daughter described the alleged stabbing. The daughter did not testify at the trial. Because the officer was trying to ascertain what happened in the past (the defendant was already in custody), as opposed to “what is happening” during an emergency, what the daughter told the officer was testimonial hearsay which should not have been admitted. The decision includes a good explanation of the difference between testimonial and nontestimonial hearsay.

 

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ALTHOUGH DEFENDANT-WIFE’S ATTORNEY IN THIS DIVORCE ACTION MISSED A COUPLE OF THE 60-DAY BILLING PERIODS, THE ATTORNEY WAS IN SUBSTANTIAL COMPLIANCE WITH 22 NYCRR 1400.3(9) AND THE WIFE’S REQUEST FOR ATTORNEY’S FEES SHOULD NOT HAVE BEEN DENIED; $135,315.90 AWARDED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant-wife’s attorney was in substantial compliance with the billing requirements of 22 NYCRR 1400.3(9) and the wife’s request for attorney’s fess in this divorce action should not have been denied:

… [T]he defendant’s attorney was in substantial compliance with 22 NYCRR 1400.3(9) … . Although the attorney for the defendant was dilatory in sending an initial invoice approximately 154 days after he was retained, the billable hours during that interval were itemized and accounted for, and the remainder of the invoices he sent all complied with the 60-day rule. Under the circumstances, the court should not have precluded the defendant from recovering an award of attorneys’ fees for failure to comply with 22 NYCRR 1400.3(9), and we conclude that the plaintiff should be responsible for the balance of the defendant’s attorneys’ fees and expenses, net of his prior payments, less $3,487.50 related to a duplicative motion for expenses, which amounts to $135,315.90. Spataro v Spataro, 2022 NY Slip Op 07470, Second Dept 12-28-22

Practice Point: 22 NYCRR 1400.3(9) requires attorneys in divorce proceeding to bill every 60 days. Here the attorney missed a couple of the 60-day billing periods but the client’s request for attorney’s fees should not have been denied on that ground. The appellate division awarded $135,315.90.

 

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​ BY THE TERMS OF HIS LEASE, PLAINTIFF WAS RESPONSIBLE FOR SNOW AND ICE REMOVAL IN THIS SLIP AND FALL CASE; THE OUT–OF-POSSESSION LANDLORDS WERE NOT RESPONSIBLE AND THEIR MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined defendants-out-of-possession landlords were not responsible for snow and ice removal in the area where plaintiff slipped and fell, In fact, plaintiff, by the terms of his lease, was responsible for the snow and ice removal:

… [T]he defendants demonstrated, prima facie, that they were out-of-possession landlords who were not contractually obligated to remove snow and ice from the subject driveway, that they did not assume such a duty through a course of conduct, and that they did not violate any relevant statute or regulation … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants had a duty to remove snow or ice under statute or regulation, the terms of the lease, or a course of conduct … . Sweeney v Hoey, 2022 NY Slip Op 07471, Second Dept 12-28-22

Practice Point: Here the out-of-possession landlords were not responsible for snow and ice removal in the are where plaintiff-tenant fell. In fact, plaintiff, by the terms of his lease was himself responsible for the snow and ice removal.

 

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