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MOTION FOR CLASS CERTIFICATION BASED UPON ALLEGEDLY ADULTERATED FUEL OIL SHOULD NOT HAVE BEEN GRANTED BECAUSE THE NUMEROSITY REQUIREMENT WAS NOT SUPPORTED BY ADMISSIBLE EVIDENCE; DISMISSAL WAS WITHOUT PREJUDICE AND LEAVE TO RENEW WAS GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion for class certification should have been denied because the proof of the numerosity prerequisite was not in admissible form. The dismissal was without prejudice because it appeared the evidence could be properly presented:

The gravamen of plaintiffs’ claim, and that for which they seek class certification, is that defendant provided them and others similarly situated “with inferior, adulterated heating oil, i.e. that the fuel oil that was delivered to them contained oils of lesser value mixed into the ordered grade of fuel oil, so that the delivered product did not meet the standards of the parties’ contracts” … . Contrary to defendant’s contention, this is the predominant question of law and fact in this case, and it is common among the class. In any event, “the fact that questions peculiar to each individual may remain after resolution of the common questions is not fatal to the class action” … . Moreover, “CPLR article 9 affords the trial court considerable flexibility in overseeing a class action,” and the court could even “decertify the class at any time before a decision on the merits if it becomes apparent that class treatment is inappropriate” … . Supreme Court is more than able to recognize if its class certification becomes unduly cumbersome, and, if so, how best to fashion a remedy.

Nevertheless, “[t]he proponent of class certification bears the burden of establishing the criteria promulgated by CPLR 901(a) and must do so by tender of evidence in admissible form” … . Here, plaintiffs failed to submit admissible evidence demonstrating that the numerosity prerequisite to class certification was satisfied. However, the record suggests that such evidence is in plaintiffs’ possession but simply was not submitted in connection with their motion. Accordingly, plaintiffs are given leave to renew their motion for class certification, upon admissible evidence providing a sufficient basis for determining the size of the potential class. Mid Is. LP v Hess Corp., 2020 NY Slip Op 03270, First Dept 6-11-20

 

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ACCOUNTING CAUSE OF ACTION IN THIS SHAREHOLDERS’ DERIVATIVE SUIT SHOULD NOT HAVE BEEN DISMISSED; ALTHOUGH SUA SPONTE ORDERS ARE NOT APPEALABLE, THE APPEAL WAS HEARD IN THE INTEREST OF JUSTICE; PROPER WAY TO HANDLE A SUA SPONTE ORDER IS TO MOVE TO VACATE AND THEN APPEAL (FIRST DEPT).

The First Department, reversing Supreme Court in this shareholders’ derivative action against a low-income Housing Development Fund Corporation (HDFC), determined: (1) although a sua sponte order is not appealable, the appeal of the dismissal of the cause of action for an accounting is heard in the interest of justice; (2) the proper way to handle a sua sponte order is to move to vacate it and then appeal; (3) there was no need to amend the complaint because the accounting cause of action included the right to damages for wrongdoing (here the alleged failure to account for the sale of an apartment for $90,000):

An order issued sua sponte is not appealable as of right (see CPLR 5701[a][2] …). Plaintiffs’ remedy is to move to vacate the court’s order, and, if the motion is denied, appeal from that order (CPLR 5701[a][3] …). …

… [W]e find that Supreme Court erred in dismissing the complaint because the cause of action for an equitable accounting was not moot. Supreme Court conflated the first cause of action for the inspection of the HDFC’s books and records with the second cause of action for an equitable accounting … . Defendants failed to demonstrate what happened to the $90,000 from the sale of Apartment 6A, and the funds do not appear in the HDFC’s financials. Defendants’ affidavits did not address this glaring deficiency.

… An equitable accounting involves a remedy “designed to require a person in possession of financial records to produce them, demonstrate how money was expended and return pilfered funds in his or her possession” … . Available relief includes a personal judgment against the wrongdoer … . Hall v Louis, 2020 NY Slip Op 03268, First Dept 6-11-20

 

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NO APPEAL LIES FROM DECLINING TO SIGN AN ORDER TO SHOW CAUSE (FIRST DEPT).

The First Department noted that no appeal lies from declining to sign an order to show cause:

No appeal lies from an order declining to sign an order to show cause, since it is an ex parte order that does not decide a motion made on notice (CPLR 5701[a][2] … ). To the extent defendant seeks review of the ex parte order pursuant to CPLR 5704, such relief is denied. Review under CPLR 5704 would not, in any event, address the merits of the motion defendant sought to make by order to show cause … .

To the extent defendant contends that we should review the order or grant leave to appeal in the interest of justice, we decline to do so. Chi Young Lee v Osorio, 2020 NY Slip Op 03186, First Dept 6-4-20

 

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RARE CASE WHERE PLAINTIFF’S SUMMARY JUDGMENT MOTION ON LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION WAS APPROPRIATELY GRANTED (FIRST DEPT).

The First Department determined this was a rare case where summary judgment was appropriate on a Labor Law 200, common-law negligence cause of action:

Here, PSJV, the entities responsible for site cleanliness and trade coordination, at a time when the project was open to the elements, covered a recessed area of the third floor, where rainwater regularly collected, with non-waterproof planking, and never inspected it for water accumulation. Further, PSJV did not warn plaintiff or his employer that he was working under the recessed area, and when he drilled into the second floor ceiling to affix electrical equipment, the sludgy, oily water poured down onto him, causing him to lose his balance and injure himself. Thus, plaintiffs made a prima showing that the accident occurred due to a defective condition on the premises of which PSJV had actual notice, having caused and created it … . In response, PSJV failed to adduce credible evidence that anyone else, including plaintiff electrician, negligently caused the accident … . Langer v MTA Capital Constr. Co., 2020 NY Slip Op 03171, First Dept 6-3-20

 

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COMPLAINT IN PUTATIVE CLASS ACTION ALLEGING DISCRIMINATION AGAINST PERSONS WHO CANNOT USE STAIRS PROPERLY SURVIVED MOTIONS TO DISMISS; 360 OF 427 NYC SUBWAY STATIONS ARE ACCESSIBLE ONLY BY STAIRS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, determined that the transit authority’s and the city’s motions to dismsiss the complaint in this putative class action were properly denied. The complaint, brought pursuant to the NYC Human Rights Law (NYCHRL), alleged discrimination against persons with disabilities which prevent them from using stairs. 360 of the 427 subway stations in NYC are accessible only by stairs. The First Department held: (1) the action was not time-barred because the continuous violation doctrine applied; (2) the action was not preempted by either Transportation Law 15-b or Public Authorities Law 1266 (8); (3) the controversy is justiciable; and (4) the city, which owns the stations, was not entitled to pre-discovery dismissal. With respect to the continuous violation doctrine, the court wrote:

… [T]he reach of the continuous violation doctrine under NYCHRL is broader than under either federal or state law. A broad interpretation is consistent with a “rule that neither penalizes workers who hesitate to bring an action at the first sign of what they suspect could be discriminatory trouble, nor rewards covered entities that discriminate by insulating them[selves] from challenges to their unlawful conduct that continues into the limitation period” … . Thus, defendants’ claimed failure to provide an accessible subway system is a continuous wrong for purposes of tolling the statute of limitations under the NYCHRL Center for Independence of the Disabled v Metropolitan Transp. Auth., 2020 NY Slip Op 03203, First Dept 6-4-20

 

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PLAINTIFF, A NURSE ASSAULTED BY A PSYCHIATRIC PATIENT, WAS ENTITLED TO DEPOSE THE DEFENDANT TREATING PSYCHIATRISTS WITH RESPECT TO ANY NON-PRIVILEGED INFORMATION; THE DEFENDANTS SHOULD NOT HAVE REFUSED TO ATTEND THE DEPOSITIONS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to compel the defendant-psychiatrists’ depositions should have been granted. Plaintiff, a nurse in a psychiatric facility, was seriously injured in an assault by a patient. She sought to depose the defendant psychiatrists who had treated the patient. Although the defendants may legitimately invoke the doctor-patient privilege, there maybe be non-privileged information which can be the subject of a deposition. The proper procedure is for the defendants to attend the depositions and invoke the privilege where appropriate:

Generally, “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by . . . a party” (CPLR 3101[a][1]). However, even relevant discovery is subject to preclusion if the requested information is privileged (see CPLR 3101[b] …).

Information relating to the nature of medical treatment and the diagnoses made, including “information communicated by the patient while the physician attends the patient in a professional capacity, as well as information obtained from observation of the patient’s appearance and symptoms,” is privileged and may not be disclosed (… see CPLR 4504; Mental Hygiene Law § 33.13[c][1] …). However, “[t]he physician-patient privilege generally does not extend to information obtained outside the realms of medical diagnosis and treatment” … .

… [T]he plaintiff is entitled to inquire into any nonprivileged information regarding the patient … . …

… [T]he prospect that a witness may be asked questions at a deposition as to which an objection based on privilege may be asserted is not a proper reason for declining to appear for a deposition.  Jayne v Smith, 2020 NY Slip Op 03101,Second Dept 6-3-20

 

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NOTICE OF DEFAULT DID NOT ACCELERATE THE MORTGAGE DEBT; THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the mortgage debt was never accelerated and therefore the six-year statute of limitations did not begin to run in this foreclosure action:

An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]). “[E]ven if a mortgage is payable in installments …, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt” … .

… [T]he May 3, 2007, notice of default, which advised that the loan would be accelerated if the default was not cured by June 7, 2007, was “nothing more than a letter discussing acceleration as a possible future event, which [did] not constitute an exercise of the mortgage’s optional acceleration clause”  … . U.S. Bank N.A. v Mongru, 2020 NY Slip Op 03137, Second Dept 6-3-20

 

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MISNOMER DID NOT PREJUDICE THE CITY; CITY’S MOTION TO DISMISS SHOULD HAVE BEEN DENIED AND PLAINTIFF’S CROSS MOTION TO AMEND THE SUMMONS AND COMPLAINT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the mis-description of the defendant in the summons and complaint did not prejudice the city, which was notice of the plaintiff’s suit:

The summons and complaint were served on Corporation Counsel for the City of New York, which answered on behalf of the City of New York. Defendant’s motion to dismiss the complaint should have been denied and plaintiff’s cross motion to amend the summons and complaint to correct the misnomer granted. The City was not prejudiced by the mis-description and was on notice that plaintiff intended to seek a judgment against it (see CPLR 305[c] … ). Rivera v New York City Dept. of Sanitation, 2020 NY Slip Op 03085, First Dept 5-28-20

 

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OUT OF POSSESSION LANDLORD MAY BE LIABLE IN THIS SIDEWALK SLIP AND FALL CASE PURSUANT TO A 2019 COURT OF APPEALS DECISION; VIOLATION OF NYC ADMINISTRATIVE CODE CAN BE RAISED FOR THE FIRST TIME IN OPPOSITION TO SUMMARY JUDGMENT MOTION; QUESTION OF FACT ABOUT THE APPLICABILITY OF THE STORM IN PROGRESS DOCTRINE (FIRST DEPT). ​

The First Department, reversing Supreme Court in this sidewalk slip and fall case, determined: (1) a 2019 Court of Appeals decision clarified the defendant out-of-possession landlord’s duty to keep sidewalks safe, notwithstanding any maintenance arrangement with a tenant; (2) although the plaintiff was required to allege the defendant violated the NYC Administrative Code and failed to do so, plaintiff could rely on the Code provision in opposition to defendant’s summary judgment motion; and (3) plaintiff raised a question of fact whether the ice condition existed before the alleged storm in progress at or near the time of the fall:

… [T]he court’s determination that defendant was entitled to summary judgment dismissing the complaint on the ground that he is an out-of-possession landlord is no longer sound in light of the Court of Appeals’s decision in Xiang Fu He v Troon Mgt., Inc. (34 NY3d 167 [2019]). …[E]ven if … plaintiff was required to plead defendant’s violation of Administrative Code of City of New York § 7-210 – which he undisputedly failed to do – plaintiff’s reliance thereon for the first time in opposition to defendant’s motion for summary judgment was permissible, given that doing so did not raise any new theory of liability or prejudice … . Herrera v Vargas, 2020 NY Slip Op 03082, First Dept 5-28-20

 

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MOTIONS IN LIMINE WHICH AFFECT THE SCOPE OF THE TRIAL ARE APPEALABLE; TWO-YEAR WRONGFUL DEATH STATUTE OF LIMITATIONS APPLIED TO THE MUNICIPALITIES; PRECLUDING EXPERT TESTIMONY BASED UPON DISCLOSURE DEFICIENCIES WAS AN ABUSE OF DISCRETION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined: (1) plaintiff did not allege separate claims for personal injury and wrongful death, therefore the two-year wrongful-death statute of limitations in EPTL 5-4.1, not the one-year-ninety-days statute of limitations for negligence, applied to the actions against the municipalities; (2) motions in limine which limit the scope of the trial are appealable; and (3) preclusion of plaintiff’s expert’s testimony, based upon deficient disclosure pursuant to CPLR 3101 (d)(1), was an abuse of discretion. The action arose from a gas explosion at the great grandfather’s house which killed plaintiff’s 15-month-old son. Plaintiff sued the village, the town, the county and the New York State Electric & Gss Corporation (NYSEG). With regard to the motions in limine, the Third Department wrote:

“An order ruling on a motion in limine is generally not appealable as of right or by permission since an order made in advance of trial which merely determined the admissibility of evidence is an unappealable advisory ruling. However, an order that limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party, is appealable” … . As to plaintiff’s objection to that part of the order as allowed evidence of the great grandfather’s negligence as a defense to the claim of res ipsa loquiter does not limit the scope of issues or impact a substantial right, such issue is not appealable … . Plaintiff also contends that Supreme Court erred in partially granting NYSEG’s motion to preclude the testimony of Reiber, plaintiff’s economist. Finding that the expert disclosure lacked reasonable detail as to how the value that Reiber assigned to plaintiff’s lost services and support would be calculated, Supreme Court precluded his testimony with regard to said damages. … However, because this ruling restricted plaintiff’s ability to prove and recover damages, this issue is appealable … . Reed v New York State Elec. & Gas Corp., 2020 NY Slip Op 03054, 5-28-20

 

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