The First Department concluded preclusion and an adverse inference charge were appropriate discovery sanctions for defendant’s failure to produce documents and the apparent destruction of evidence: Having been conditionally ordered to produce all correspondence …, and the transcripts of the audio tapes of meetings …, in order to successfully oppose plaintiff’s motion for discovery sanctions, […]
The First Department, in a full-fledged opinion by Justice Roman, determined the defendant’s acknowledgment of a debt in his bankruptcy petition restarted the 20 statute of limitations for the enforcement of a judgment: Contrary to defendant’s contention, enforcement of the judgment issued against him is not barred by CPLR 211(b). While [plaintiff] first sought to […]
The relation back doctrine was applied in a medical malpractice action to allow the addition of a doctor as a defendant after the statute of limitations expired. The doctrine applies where “(1) both claims arose out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, […]
Plaintiffs brought an action for personal injuries and property damage allegedly caused by toxic emissions released by defendant Tonawanda Coke Corporation. An owner and officer of Tonawanda Coke (Crane) moved to dismiss the cause of action suing him in an individual capacity. In affirming the denial of that motion, the Fourth Department wrote: Although “[a] […]
The Fourth Department reversed the trial court and granted a summary judgment motion brought by the owners of a golf course. At a party that was not hosted by the landowners (and at which the landowners were not present), plaintiff was injured by another party-goer. In determining the landowners had demonstrated they were not liable, […]
The Fourth Department. in this negligence, Labor Law 200 and Labor Law 241 (6) action discussed the applicable theories of notice and liability for an allegedly dangerous condition just outside a portable toilet at the work site which caused plaintiff to fall and sustain injury. With respect to the Labor Law 241 (6) cause of action, […]
In affirming the denial of a summary judgment motion brought by the defendant-employer in an employment (disability) discrimination action, the Fourth Department determined the employer did not eliminate all the triable issues of fact concerning whether reasonable accommodation to the employee’s needs was possible: Assuming, arguendo, that defendant met its initial burden of establishing that […]
A curative instruction regarding admitted evidence was requested by the defendant and the court gave the requested instruction to the jury. The defendant did not object to the instruction and did not seek a mistrial. Therefore, the curative instruction “must be deemed to have corrected the error to the defendant’s satisfaction,” precluding appeal on that […]
In reversing the trial court’s termination of the plaintiff-husband’s obligation to provide defendant-wife with medical coverage, the Fourth Department explained that it must apply the doctrine of res judicata, even where the prior ruling had been erroneously decided: We agree with defendant that the court erred in terminating plaintiff’s obligation to provide her with medical […]
In the context of a SORA determination, the Fourth Department noted that proof the victim had been diagnosed as mildly mentally retarded did not demonstrate the victim suffered from a “mental disability” within the meaning of the Correction Law: We agree with defendant, however, that the People failed to present the requisite clear and convincing […]
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