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PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court’s denial of plaintiff’s motion to set aside the defense verdict and ordering a new trial in this slip and fall case, determined the defense verdict was against the weight of the evidence:

“A jury verdict should not be set aside as contrary to the weight of the evidence unless ‘the jury could not have reached the verdict on any fair interpretation of the evidence'” … . Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors … . Where, as here, “a jury verdict with respect to negligence and proximate causation is irreconcilably inconsistent, that verdict must be set aside as contrary to the weight of the evidence” … .

Under the circumstances of this case, the Supreme Court should have granted that branch of the plaintiffs’ motion which was, in effect, to set aside the jury verdict as contrary to the weight of the evidence, as the finding that the defendants’ negligence was not a proximate cause of the accident was not supported by a fair interpretation of the evidence … . The infant plaintiff testified that she slipped on a step that was cracked, sloped down, and uneven. That testimony was consistent with the testimony of the plaintiffs’ expert engineer. The defendants failed to adduce any evidence to refute the testimony of the infant plaintiff and the plaintiffs’ expert witness. Middleton v New York City Tr. Auth., 2021 NY Slip Op 06613, Second Dept 11-24-21

 

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THE CHILD IN THIS CUSTODY MATTER RESIDED IN ITALY, THEREFORE NEW YORK WAS NOT THE CHILD’S “HOME STATE” AND NEW YORK DID NOT HAVE JURISDICTION; FATHER’S APPLICATION FOR SUBSTITUTE SERVICE IN ITALY SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, reversing Supreme Court in this custody matter, determined: (1) New York was not the child’s “home state” because the child had resided in Italy for the 10 months before the action was commenced (therefore New York did not have jurisdiction): and (2) father’s application for substitute service in Italy should not have been granted because he did not make the required showing of the “impracticality” of the method of service required by the Hague Convention:

Applying the proper standard set forth in Domestic Relations Law § 76 (1) (a), it is incontrovertible that Italy, not New York, is the child’s home state. The child moved to Italy with the wife in July 2019 in accordance with the separation and settlement agreement, which clearly demonstrated the parties’ intention that the child live with the wife in Italy for a period of roughly three years. The child continued to live in Italy from July 2019 through this action’s commencement in June 2020. Although the child visited the husband in New York twice between July 2019 and February 2020, first for a period of about three weeks and later for a period of about six weeks, those periods merely constituted temporary absences that do not interrupt the six-month residency period required by the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act] for home state status … . * * *

In support of his application for substituted service, the husband failed to come forward with sufficient proof demonstrating an actual effort to effectuate service upon the wife at her residence in Italy. The only proof submitted by the husband was an email — dated August 12, 2020, more than two months after commencement of the action — from an associate at a process service company that the husband’s counsel often used for service of process. The email estimated that service upon the wife in Italy in accordance with the Hague Convention would take roughly 18 to 20 weeks in total, which included “a few days” for Italian translation, 10 to 14 weeks for service and an additional two to four weeks for return of the proof of service. Although we are mindful that the COVID-19 pandemic remained an issue at the time of the August 2020 email, there was no indication in the email that the 18 to 20-week estimate was atypical or that the COVID-19 pandemic rendered service of process under the Hague Convention impracticable. Joseph II. v Luisa JJ., 2021 NY Slip Op 06586, Third Dept 11-24-21

 

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A SUBPOENA ISSUED BY AN ATTORNEY IS A “JUDICIAL” SUBPOENA SUBJECT TO A CONTEMPT PROCEEDING WITHOUT THE NEED TO FIRST SEEK A COURT ORDER COMPELLING COMPLIANCE (FIRST DEPT).

The First Department, reversing Supreme Court, determined a subpoena issued by an attorney was a “judicial” subpoena and defendant Patterson’s failure to appear for a deposition and produce documents was punishable by contempt without the need to first obtain a court order compelling compliance:

Critical to the resolution of this appeal is whether this type of subpoena is a “judicial” subpoena, as defined by CPLR 2308(a), or a “non-judicial” subpoena, as defined by CPLR 2308(b). … [T]he disobedience of a judicial subpoena is punishable by contempt of court, while a person served with a non-judicial subpoena cannot be held in contempt unless the court first issues an order compelling compliance with the subpoena that is then disobeyed  … .

We find that the subpoena is a “judicial” subpoena, the disobedience of which is punishable by contempt … . CPLR 2308(a) embraces subpoenas issued by an officer of the court (such as an attorney) at any stage of a judicial proceeding, regardless of whether the subpoena was specifically returnable in court … . Cadlerock Joint Venture, L.P. v Patterson, 2021 NY Slip Op 06535, First Dept 11-23-21

 

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IN THIS CHILD VICTIMS ACT ACTION ALLEGING SEXUAL ABUSE BY THE DEFAULTING DEFENDANT WHO ALLEGEDLY WAS AN EMPLOYEE OF THE NON-DEFAULTING DEFENDANT, IT WAS AN IMPROVIDENT EXERCISE OF DISCRETION TO DELAY THE DAMAGES ASPECT OF THE SUIT AGAINST THE DEFAULTING DEFENDANT UNTIL THE TRIAL OR DISPOSITION OF THE SUIT AGAINST THE NON-DEFAULTING DEFENDANT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined delaying the damages aspect of the action against a defaulting defendant until the trial or disposition of the action against a non-defaulting defendant was improper under the facts. The Fourth Department noted that it can substitute its discretion for the lower court’s, even where there has been no abuse of discretion by the lower court. The defaulting defendant was an employee of the non-defaulting defendant, YMCA Buffalo Niagara, when he allegedly sexually abused plaintiff. The lawsuit was brought pursuant to the Child Victims Act:

… [Although] a court may, under appropriate circumstances, defer entry of judgment and a determination of damages against a defaulting defendant until resolution of a separately-commenced companion action against non-defaulting defendants, we … agree with plaintiff’s … contention that the court’s decision to do so here constitutes an improvident exercise of its discretion … . We therefore substitute our own discretion “even in the absence of abuse [of discretion]” … .

… [W]e agree with plaintiff that “further delay undermines the purpose of the Child Victims Act, which is to ‘finally allow justice for past and future survivors of child sexual abuse, help the public identify hidden child predators through civil litigation discovery, and shift the significant and lasting costs of child sexual abuse to the responsible parties’ ” … . Given the schedule of the separate action and the accompanying “uncertainty as to when plaintiff’s claims may be resolved against [YMCA Buffalo Niagara], additional delay may hinder [plaintiff’s] efforts to prove damages against defendant and secure a final judgment, particularly considering defendant’s age and the prospect that defendant’s assets may be dissipated in the interim” … . By contrast, we note that the court did not identify any prejudice to YMCA Buffalo Niagara … . “Although judicial economy, which is an important consideration under CPLR 3215 (d) . . . , may favor a single damages proceeding involving both the defaulting and non-defaulting defendants,” we conclude here that “such consideration does not outweigh the significant prejudice that may inure to plaintiff … . LG 46 DOE v Jackson, 2021 NY Slip Op 06507, Fourth Dept 11-19-21

 

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PLAINTIFF’S TITLE IX AND 42 USC 1983 CAUSES OF ACTION, BASED ON ALLEGATIONS OF SEXUAL ABUSE BY A TEACHER IN 1972 AND 1973, ARE TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff’s Title IX and 42 USC 183 causes action, based upon allegations plaintiff was sexually abused by a teacher in 1972 – 1973, were time barred:

“The federal civil rights statutes do not provide for a specific statute of limitations, establish rules regarding the tolling of the limitations period, or prescribe the effect of tolling” … . Thus, “courts entertaining claims brought under 42 U.S.C. § 1983 [and Title IX] should borrow the state statute of limitations for personal injury actions” … . Where a state “has one or more statutes of limitations for certain enumerated intentional torts, and a residual statute for all other personal injury actions[,] . . . the residual or general personal injury statute of limitations applies”… . Here, defendant correctly contends, and plaintiff does not dispute, that New York’s three-year statute of limitations for non-specified personal injury claims applies to the federal causes of action asserted here (see CPLR 214 [5] …).

… Plaintiff contends that CPLR 214-g, which revives certain civil claims and causes of action for damages suffered as a result of childhood sexual abuse that would otherwise be barred by a statute of limitations, must be borrowed along with CPLR 214 (5) in determining whether her federal causes of action are timely. …

We … conclude that CPLR 214-g is not a revival statute related to the residual personal injury statute of limitations applicable to plaintiff’s section 1983 cause of action … . * * *

… [W]e conclude that plaintiff’s Title IX cause of action should also have been dismissed as time-barred. BL DOE 3 v Female Academy of the Sacred Heart, 2021 NY Slip Op 06480, Fourth Dept 11-19-21

 

PUBLIC HEALTH LAW SECTION 18 (2) (e) DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR THE VIOLATION OF THE REQUIREMENT THAT NO MORE THAN $ .75 PER PAGE CAN BE CHARGED FOR MEDICAL RECORDS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a concurrence, determined there is no private right of action for a violation of Public Health Law section 18 (2) (e), which limits the charge for copies of medical records to $ .75 per page. Defendant charged plaintiff $1.50 per page:

Applying the Sheehy factors here, we conclude that no private cause of action exists for violations of Public Health Law § 18 (2) (e). The first factor is satisfied. Ortiz [plaintiff] is clearly part of a class that section 18 was designed to protect. The original law and its subsequent amendment were intended to increase patient access to medical records, and prevent medical providers from overcharging patients for copies of their medical records … . …

Turning to the second factor, it is unclear whether a private right of action would promote the legislative purpose.  * * * … [G]iven the substantial fines the Commissioner and the Attorney General can impose, the additional deterrent effect of a private right of action is difficult to ascertain.

Even assuming the second factor is satisfied, though, the final factor—consistency with the legislative scheme—is clearly not. … [E]nforcement mechanisms already exist for section 18. First, the Commissioner and Attorney General’s ability to impose substantial fines against providers that overcharge for copies of records acts as a deterrent … . Second, the Attorney General’s duty to seek injunctive relief upon the request of the Commissioner provides a legal mechanism for ending any widespread practices violating section 18. Finally, an individual patient’s ability to commence an article 78 proceeding to enforce the law’s provisions provides recourse for individual patients who are unable to access their records due to illegally high costs. Ortiz v Ciox Health LLC, 2021 NY Slip Op 06425, Ct App 11-18-21

 

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PLAINTIFFS DEMONSTRATED A DEMAND ON THE BOARD OF DIRECTORS TO PURSUE A DERIVATIVE ACTION WAS FUTILE; THE COMPLAINT ADEQUATELY ALLEGED BREACH OF FIDUCIARY DUTY, A CLAIM FOR WHICH NO DAMAGES NEED BE ALLEGED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the requirement that a demand on the board of directors to pursue a derivative action was futile and therefore is excused. In addition, the complaint adequately alleged a breach of fiduciary duty:

Plaintiffs properly alleged demand futility as required under Business Corporation Law § 626 (c) by asserting that at least four out of seven of the members of derivative plaintiff/nominal defendant Xerox Holdings Corporation’s board of directors were controlled by Icahn, Xerox’s largest single shareholder, and thus lacked the independence to make an impartial decision on bringing suit … . * * *

… [T]he claim for breach of fiduciary duty was pleaded with the particularity required by CPLR 3016(b), as the complaint states that the Icahn defendants used confidential information about Xerox’s planned acquisition of HP Inc. to buy HP common shares before news of the acquisition became public and before HP’s stock price increased … . …

… [P]laintiffs’ claims do not fail for lack of damages, as damages “have never been considered to be an essential requirement for a cause of action founded on a breach of fiduciary duty” … . The function of an action for breach of fiduciary duty “is not merely to compensate the plaintiff for wrongs committed by the defendant but . . . to prevent them, by removing from . . . trustees all inducement to attempt dealing for their own benefit in matters . . . to which their . . . trust relates” … . Miami Firefighters’ Relief & Pension Fund v Icahn, 2021 NY Slip Op 06446, First Dept 11-18-21

 

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PURSUANT TO THE DOCTRINE OF LACHES, THE DEFENDANT CITY WAS NOT ENTITLED TO THE LOWER 5.76% INTEREST RATE ON THE MULTIMILLION DOLLAR JUDGMENT; THE TRIAL JUDGE PROPERLY IMPOSED THE 9% INTEREST RATE PURSUANT TO CPLR 5004 (FIRST DEPT).

The First Department reduced the multimillion dollar damages award in this lawsuit by a student severely burned during a chemistry demonstration at his public high school. The trial judge properly imposed a 9% interest rate on the judgment because the defendant city was late (laches) in seeking the lower interest rate (5.75%) authorized by law:

[The judgment] awarding the principal sums of $29,585,000 million for past pain and suffering and $29,585,000 for future pain and suffering over 54 years, plus 9% interest, unanimously modified, on the facts, to vacate the awards … , and remand for a new trial of those issues, unless plaintiff stipulates … to reduce the awards for past pain and suffering to $12,000,000 and for future pain and suffering to $17,000,000 … . * * *

… [D]efendants … should have formally moved to compute interest on the verdict at a lower rate than 9% … . This way, plaintiff would have had the opportunity to submit proof to the contrary, and the court could have ordered a hearing if necessary … . Given defendants’ laches in seeking to avail themselves of a lower interest rate authorized by law, Supreme Court providently declined to depart from CPLR 5004’s presumptive 9% interest rate … . Yvonne Y. v City of New York, 2021 NY Slip Op 06468, First Dept 11-18-21

 

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THE COMPLAINT SUFFICIENTTLY ALLEGED A BREACH OF THE COVENANT OF GOOD FAITH CAUSE OF ACTION IN THIS INSURANCE COVERAGE DISPUTE; THE “IMPLIED COVENANT” CAUSE OF ACTION ALLEGED CONDUCT DIFFERENT FROM THE BREACH OF CONTRACT CAUSE OF ACTION AND WAS THEREFORE NOT DUPLICATIVE; SUPREME COURT IMPROPERLY REDUCED THE ATTORNEYS’ FEES AWARDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the breach of the implied covenant of good faith and fair dealing cause of action in this insurance coverage dispute should not have been dismissed. The court noted that the “breach of the implied covenant” cause of action was not based on the same conduct as the breach of the insurance policy cause of action and therefore was not “duplicative.” The court also found Supreme Court improperly reduced the attorneys’ fees awards:

This appeal arises out of an insurance coverage dispute between the plaintiff and its insurer, the defendant, in connection with a School Board Legal Liability Policy … (hereinafter the policy). While the policy was in effect, a putative class action entitled Montesa v Schwartz (hereinafter the underlying action) was commenced … in … the Southern District of New York against … the plaintiff and its current and former school board members, alleging various constitutional violations, school segregation, breach of fiduciary duty, and fraud. … [P]laintiff timely submitted a notice of claim to the defendant regarding the underlying action and requested coverage under the policy, and the defendant denied coverage to the plaintiff and its board members. * * *

The plain language of the complaint reflects the plaintiff’s allegation that the defendant breached the implied covenant of good faith and fair dealing. The complaint alleged … that the defendant failed to investigate in good faith the claims in the underlying action, denied coverage to the plaintiff based upon a manufactured and/or “nonexistent” assertion, deviated from industry practices by denying coverage to the plaintiff where “[n]o reasonable insurer would have denied [such] coverage,” and “[disclaimed] coverage with gross disregard for the facts and applicable law” … . In determining the defendant’s motion to dismiss, the court was required to accept as true the facts alleged in the complaint, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged by the plaintiff fit within any cognizable legal theory … . …

… [W]here, as here, the cause of action to recover damages for breach of the policy and the cause of action to recover damages for breach of the implied covenant of good faith and fair dealing allege different conduct on the part of the defendant and seek different categories and/or types of damages, the cause of action seeking damages for breach of the implied covenant of good faith and fair dealing should not be dismissed as “duplicative” of the cause of action alleging breach of contract … . East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 2021 NY Slip Op 06341, Second Dept 11-17-21

 

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PLAINTIFF HAD NO MEMORY OF EVENTS BEYOND WALKING TOWARD THE BUS AT A BUS STOP; SHE SUFFERED A CRUSHED FOOT; THE MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the plaintiff’s verdict in this pedestrian-bus accident case should have been granted. Plaintiff had no memory of the incident beyond walking a couple of feet toward the bus at a bus stop. She suffered a crushed foot. But there was simply no evidence of negligence on the part of the bus driver:

“A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as [*2]a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial” … . In determining such a motion, a court must accept the plaintiff’s evidence as true and accord the plaintiff the benefit of every favorable inference which can reasonably be drawn from the evidence presented at trial … . However, “[a] jury verdict must be based on more than mere speculation or guesswork” …

Here, there was no rational process by which the jury could find in favor of the plaintiff and against the defendants on the issue of liability. Even if the circumstantial evidence sufficiently supported a conclusion that the plaintiff was injured due to an impact with a bus, the mere fact that the plaintiff was struck by a bus did not prove the defendants’ negligence … . In addition to establishing the fact of the accident, it was the plaintiff’s burden to demonstrate what actually happened at the time of the accident so as to enable the jury to find that the defendants were negligent and that their negligence was a proximate cause of the accident … . Kirwan v New York City Tr. Auth., 2021 NY Slip Op 06350, Second Dept 11-17-21

 

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