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ALLEGATION THE LADDER PLAINTIFF WAS USING SHIFTED FOR NO APPARENT REASON ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (SECOND DEPT).

The Second Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action based upon the allegation the ladder he was using shifted for no apparent reason:

The plaintiff made a prima facie showing of entitlement to judgment as a matter of law through his deposition testimony, demonstrating that the ladder on which he was working shifted for no apparent reason, causing him to fall … . In opposition, the defendants failed to raise a triable issue of fact … . Vicuna v Vista Woods, LLC, 2019 NY Slip Op 00635, Second Dept 1-30-19

 

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PLAINTIFF’S PROOF THAT DEFENDANT SUPPLIED THE ALLEGEDLY DEFECTIVE WIRE MESH TO THE RETAILER IN THIS PRODUCTS LIABILITY ACTION WAS SPECULATIVE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Prime Source’s motion for summary judgment in this products liability case should have been granted. Plaintiff alleged he was injured when a roll of wire mesh recoiled and struck him. Prime Source presented it was not in the manufacturing or distribution chain of the wire mesh and plaintiff’s proof too speculative to raise a question of fact:

In strict products liability, a manufacturer, wholesaler, distributor, or retailer who sells a product in a defective condition is liable for injury which results from the use of the product regardless of privity, foreseeability, or the exercise of due care … . Liability, however, may not be imposed upon a party that is outside the manufacturing, selling, or distribution chain … . The identity of the manufacturer or supplier of a defective product may be established by circumstantial evidence … . The circumstantial evidence of the identity of the manufacturer or supplier of a defective product causing personal injury must establish, however, “that it is reasonably probable, not merely possible or evenly balanced, that the defendant was the source of the offending product” … . “Speculative or conjectural evidence of the manufacturer’s identity is not enough” … .

Prime Source established its prima facie entitlement to judgment as a matter of law by demonstrating that it was outside the manufacturing, selling, or distribution chain of the mesh … . In opposition to the motion by Prime Source, the plaintiff’s attorney submitted an affirmation in which he stated that on the return date of the order to show cause which commenced the proceeding to obtain pre-action disclosure, a representative from Sand Man [the retailer] “produced a sheet of paper on which she had written the names of two suppliers she claims had supplied wire mesh to Sand Man” prior to the date of the subject accident. This affirmation was insufficient to raise a triable issue of fact, because it did not establish “that it is reasonably probable, not merely possible or evenly balanced” … that Prime Source, rather than Steel Services, was the source of the mesh … . The plaintiff failed to come forward with any evidence “that might permit a reasoned inference” that Prime Source, rather than Steel Services, supplied the mesh to Sand Man … . Tyminskyy v Sand Man Bldg. Materials, Inc., 2019 NY Slip Op 00632, Second Dept 1-30-19

 

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CITY’S POTENTIAL LIABILITY FOR THE ACTIONS OF A CITY BUS DRIVER WAS BASED ON RESPONDEAT SUPERIOR, THEREFORE A NEGLIGENT HIRING AND RETENTION ACTION WAS NOT VIABLE AND THE DRIVER’S PERSONNEL FILE WAS NOT DISCOVERABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city’s motion to vacate the order compelling disclosure of the city bus driver’s personnel file should have been granted. Plaintiff alleged she was injured when she fell on a city bus. The city acknowledged that the driver was acting within the scope of his employment when the accident occurred. Therefore the city’s potential liability was based upon respondeat superior, and a negligent hiring and retention action was not viable. Therefore the personnel records were not discoverable:

“Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior, and a plaintiff may not proceed with a cause of action to recover damages for negligent hiring and retention”… . In light of the defendants’ formal concession that the bus driver was acting within the scope of his employment when the accident occurred, the personnel records of the bus driver are not discoverable… . Furthermore, the plaintiff failed to show any other basis to justify granting her request for the personnel records, as “any prior acts of carelessness or incompetence of the defendant’s employee would not be admissible at trial” … . Therefore, the additional discovery sought by the plaintiff is not relevant or reasonably calculated to lead to evidence relevant to the issue of the driver’s alleged negligence … . Trotman v New York City Tr. Auth., 2019 NY Slip Op 00631, Second Dept 1-30-19

 

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PLAINTIFF’S PRO SE LEGAL MALPRACTICE COMPLAINT WAS PROPERLY DISMISSED AND LIMITS ON PLAINTIFF’S ABILITY TO ENGAGE IN FUTURE VEXATIOUS LITIGATION PROPERLY IMPOSED (SECOND DEPT).

The Second Department determined Supreme Court properly dismissed plaintiff’s pro se legal malpractice action and properly limited plaintiff’s ability to file additional motions:

“Public policy generally mandates free access to the courts” … . Although a pro se litigant is afforded ” some latitude,'” he or she is not entitled to rights greater than any other litigant and may not disregard court rules or deprive an adversary of rights normally enjoyed by an opposing party … . Accordingly, “when a litigant is abusing the judicial process by harassing individuals solely out of ill will or spite, equity may enjoin such vexatious litigation” … . Here, the plaintiff’s pattern of vexatious and duplicative motion practice warranted the modest limitation of directing the plaintiff to bring future motions via order to show cause … . Strujan v Kaufman & Kahn, LLP, 2019 NY Slip Op 00630, Second Dept 1-30-19

 

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PLAINTIFF WAS INJURED UNLOADING A TRUCK, HIS MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted. Plaintiff was injured when a truck was being unloaded:

A hydraulic lift was being used to lower the flooring materials in pallets, or “skids,” weighing approximately 2,500 to 3,000 pounds, from the bed of the truck to the ground, an elevation of approximately four feet. One of the skids, which had been loaded onto the lift, fell off the lift and struck the plaintiff. …

” Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'” … . The plaintiff’s evidence established, prima facie, that the … defendants violated Labor Law § 240(1) by failing to provide an appropriate safety device to secure the subject materials as they were being lowered, and that this failure was a proximate cause of the plaintiff’s injury … . Ramos-Perez v Evelyn USA, LLC, 2019 NY Slip Op 00629, Second Dept 1-30-19

 

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EVIDENCE THAT DEFENDANT USED HIS FAMILIAL RELATIONSHIP WITH THE WITNESS (DEFENDANT’S COUSIN) TO INDUCE THE WITNESS’S REFUSAL TO TESTIFY WAS SUFFICIENT TO WARRANT INTRODUCTION OF THE WITNESS’S PRIOR STATEMENTS AT TRIAL (SECOND DEPT).

The Second Department determined the evidence presented at the Sirois hearing was sufficient to warrant the conclusion that a witness, defendant’s cousin, refused to testify because of the actions of the defendant. Therefore statements made by the defendant’s cousin were properly admitted at trial:

The People presented phone records evidencing the dates and the content of certain calls made by the cousin to other individuals while the cousin was incarcerated at Riker’s Island, and calls by the defendant to other individuals believed to be family members. The People contended these calls demonstrated that the defendant and other family members secured the cousin’s agreement not to testify against the defendant. The People also represented to the Supreme Court that they planned to offer the testimony of an inmate who knew the defendant and his family, who claimed, among other things, that the defendant had told him that the defendant had “put the wolves out” on the cousin to keep him from testifying, and that the defendant was confident that he would beat the charges as a result. According to the People, the inmate subsequently refused to testify at the hearing out of fear. An Assistant District Attorney testified at the hearing as to the substance of her interview of the inmate, which had taken place the day before. …

… [T]the People “demonstrate[d] by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused [the] witness’s unavailability” … . Misconduct is not limited to threats or intimidation; it can also include situations where, as here, the People established by clear and convincing evidence that the defendant used his close personal relationship with his cousin and/or threats to pressure him not to testify … . People v Walton, 2019 NY Slip Op 00623, Second Dept 1-30-19

 

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DEFENSE COUNSEL GAVE DEFENDANT THE WRONG INFORMATION ABOUT THE MAXIMUM SENTENCE SHOULD HE GO TO TRIAL, DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY, EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL APPLIED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined: (1) the plea was not voluntary because defendant was given the wrong information about the possible maximum sentence if he went to trial; and (2) the error is an exception to the preservation requirement for appeal because defendant could not have known of the error at the time of the plea:

The Court of Appeals … has carved out an exception to the preservation doctrine “because of the actual or practical unavailability of either a motion to withdraw the plea’ or a motion to vacate the judgment of conviction,'” in certain instances, reasoning that ” a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge'” … . Moreover, the defendant’s contention that his plea of guilty was not knowing, voluntary, and intelligent survives his valid appeal waiver … . …

Here, the defendant’s plea was not made knowingly, voluntarily, and intelligently. The record demonstrates that the defendant was not presented with legitimate alternatives about the maximum sentence he faced in the event he chose to reject the People’s plea offer and was convicted after trial. … On this record, given the difference between the incorrect maximum aggregate sentence of 3 to 5 years that defense counsel communicated to the defendant, the actual maximum aggregate sentence of 2 to 4 years, and the bargained-for sentence of 1½ to 3 years, the threat of a higher sentence rendered the defendant’s plea involuntary … . People v Keller, 2019 NY Slip Op 00620, Second Dept 1-30-19

 

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THE CONTENTS OF A SAFE DEPOSIT BOX CONSTITUTED THE PROPERTY OF JOINT TENANTS WITH RIGHTS OF SURVIVORSHIP, THEREFORE THE CONTENTS ARE AVAILABLE TO SATISFY A JUDGMENT AGAINST ONLY ONE OF THE JOINT TENANTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, in a matter of first impression, determined the presumption of joint tenancy with rights of survivorship applied to the contents of a safe deposit box. The judgment debtor NYCB was owed $11 million by one of two persons (Rachel and Ari) who signed rental agreements for a safe deposit box. The First Department held that Supreme Court properly ordered the safe deposit box opened and the contents turned over to satisfy the judgment against Ari:

CPLR 5225(b) provides for an expedited special proceeding by which a judgment creditor can recover “money or other personal property” belonging to a judgment debtor “against a person in possession or custody of money or other personal property in which the judgment debtor has an interest” in order to satisfy a judgment … . When two or more persons open a bank account, making a deposit of cash, securities, or other property, a presumption of joint tenancy with right of survivorship arises (Banking Law § 675[b] …). If the presumption is applied, each named tenant “is possessed of the whole of the account so as to make the account vulnerable to the levy of a money judgment by the judgment creditor of one of the joint tenants” … .

By relying on the terms of the rental agreement, NYCB met its burden of establishing Ari and Rachel as joint tenants with rights of survivorship of the safe deposit box account. The safe deposit box is controlled by each of them, each of them has access to the box at all times, and each of them can deposit property into the box or remove property from it without each other’s permission. Should either one of them die, the survivor would have access to the box and could remove all its contents … . Matter of New York Community Bank v Bank of Am., N.A., 2019 NY Slip Op 00544, First Dept 1-24-19

 

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MOTION TO COMPEL ACCESS TO PLAINTIFF’S DEVICES, EMAIL ACCOUNTS AND SOCIAL MEDIA ACCOUNTS TO OBTAIN EVIDENCE OF PLAINTIFF’S PHYSICAL ACTIVITIES SINCE THE TRAFFIC ACCIDENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the motion to compel “access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities” should have been granted:

Private social media information can be discoverable to the extent it “contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims” … . Here, plaintiff, who at one time was a semi-professional basketball player, claims that he has become disabled as the result of the automobile accident at issue, such that he can no longer play basketball. Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident, were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury. That plaintiff did not take the pictures himself is of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. Plaintiff’s response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations. The access to plaintiff’s accounts and devices, however, is appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities … . Vasquez-Santos v Mathew, 2019 NY Slip Op 00541, First Dept 1-24-19

 

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NEW YORK CITY HOUSING AUTHORITY COULD NOT AVOID DISCLOSURE OF RELEVANT DOCUMENTS BY RELYING ON ATTORNEY-CLIENT PRIVILEGE BECAUSE IT HAD PLACED THE KNOWLEDGE OF ITS LAW DEPARTMENT AT ISSUE, MOTION TO COMPEL WAS PROPERLY GRANTED, MONETARY SANCTIONS WERE PROPERLY ORDERED, WILLFUL AND CONTUMACIOUS BEHAVIOR NEED NOT BE SHOWN UNLESS A DRASTIC REMEDY LIKE STRIKING THE PLEADINGS IS IMPOSED (FIRST DEPT).

The First Department, over a dissent, determined Supreme Court properly sanctioned the defendant, the New York City Housing Authority (NYCHA), for failure to turn over documents in the discovery phase of a contract action. NYCHA alleged that third party defendants “engaged in [a]conspiracy to defraud NYCHA by submitting fraudulent certifications attesting that plaintiff’s former owners had not been charged or convicted of a crime. … Third-party defendants maintain that they informed NYCHA that the charges … had been terminated with a conditional discharge based upon the payment of less than $200 in court costs. They assert that NYCHA extended all three of the contracts … while having full knowledge of these facts.” NYCHA alleged the contested documents were protected by attorney-client privilege:

[Supreme Court] granted plaintiff and third-party defendants’ motion to compel [NYCHA] to comply with discovery orders to the extent of ordering NYCHA to produce discovery material previously redacted on the ground of attorney-client privilege … and … to pay $3,000 as a sanction for its behavior during discovery and for violation of prior court orders, and to certify that it did not possess additional documents responsive to the discovery demands or court orders … . * * *

The court correctly found that having placed the knowledge of its law department at issue, NYCHA waived attorney-client privilege with respect to the subject documents. NYCHA cannot seek to prevent the disclosure of evidence showing that its attorneys — the very individuals who performed the bid review function for NYCHA — recommended that NYCHA award the contracts to plaintiff despite knowledge of the operative facts … .

Further, NYCHA may not rely on attorney-client privilege while selectively disclosing other self-serving privileged communications … .

The motion court providently exercised its discretion in finding that NYCHA’s conduct during discovery warranted sanctions. …

… [I]t is unnecessary to demonstrate willful and contumacious behavior in order to impose a sanction like a monetary sanction or preclusion, as opposed to a more drastic sanction such as the striking of a pleading … . Metropolitan Bridge & Scaffolds Corp. v New York City Hous. Auth., 2019 NY Slip Op 00526, First Dept 1-24-19

 

 

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