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THE FAILURE TO AWARD DAMAGES FOR FUTURE PAIN AND SUFFERING AND FUTURE ECONOMIC LOSS WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE MOTION TO SET ASIDE THOSE ASPECTS OF THE VERDICT SHOULD HAVE BEEN GRANTED; THE FUTURE ECONOMIC LOSS ISSUE WAS NOT ABANDONED ON APPEAL (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that the failure to award damages for future pain and suffering and future economic loss in this back-injury case was against the weight of the evidence. The motion to set aside those aspects of the verdict should have been granted. A new trial was ordered on those elements of damages. The dissenters argued the future economic law issue was abandoned on appeal:

… [T]he jury’s failure to award any damages for future pain and suffering is ” contrary to a fair interpretation of the evidence and deviates materially from what would be reasonable compensation’ ” … . Although the evidence at trial established that plaintiff was permitted to return to work with no restrictions, the evidence also established that the injuries she sustained in the accident severely affected her ability to perform the same sorts of tasks that she had performed with ease prior to the accident. Moreover, as noted, the parties’ experts agreed that the injury to plaintiff’s lumbar spine was caused by the accident, and plaintiff presented uncontroverted medical testimony at trial establishing that she continues to experience pain as a result of that injury … .

We also agree with plaintiff that the jury’s failure to award damages for future economic loss is against the weight of the evidence.  Initially, we disagree with our dissenting colleagues that the contention was abandoned on appeal … and conclude that plaintiff adequately raised that specific contention in her brief … . Mast v DeSimone, 2019 NY Slip Op 08288, Fourth Dept 11-15-19

 

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ALTHOUGH THE ISSUE WAS NOT RAISED BY THE PARTIES, SUPREME COURT SHOULD NOT HAVE DISMISSED PLAINTIFF’S NEGLIGENCE ACTION BEFORE THE WORKERS’ COMPENSATION BOARD RULED ON WHETHER PLAINTIFF WAS INJURED WITHIN THE SCOPE OF HIS EMPLOYMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and reinstating the negligence action, determined Supreme Court did not have jurisdiction over the matter because the Workers’ Compensation Board had not yet ruled whether plaintiff was injured when acting in the scope of his employment. The parties did not raise this issue:

Although not raised by the parties, we conclude that Supreme Court erred in entertaining defendant’s motion. “It is well settled that primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board [(Board)] . . . [I]t is therefore inappropriate for the courts to express views with respect thereto pending determination by’ the Board” … . Whether plaintiff was injured within the scope of his employment “must in the first instance be determined by the [B]oard” … , and the court thus should not have entertained defendant’s motion at this juncture. Rather, the case should have been referred to the Board for a determination of plaintiffs’ eligibility for workers’ compensation benefits … . Warren v E.J. Militello Concrete, Inc., 2019 NY Slip Op 08300, Fourth Dept 11-15-19

 

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SHIFTING BURDENS OF PROOF AT THE SUMMARY JUDGMENT STAGE IN MEDICAL MALPRACTICE ACTIONS CLARIFIED; PRECEDENT TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED; PLAINTIFF’S FAILURE TO ADDRESS THEORIES OF LIABILITY REFUTED BY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT CONSTITUTED AN ABANDONMENT OF THOSE THEORIES (FOURTH DEPT).

The Fourth Department, reversing and modifying Supreme Court in three related appeals, clarified the respective burdens to be met at the summary judgment stage in a medical malpractice action. Applying those burdens, the Fourth Department found that summary judgment should have been awarded to the defendants in two of the three appeals. The court noted that plaintiff’s failure to address certain theories of liability refuted in defendant’s motion for summary judgment constituted abandonment of those theories. The facts are too complex to fairly summarize here. With respect to the burdens of proof, the court explained:

We note at the outset that the facts of this case provide the opportunity for this Court to review the appropriate standard for burden-shifting in medical malpractice cases. It is well settled that a defendant moving for summary judgment in a medical malpractice action ” has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby’ ” (O’Shea v Buffalo Med. Group, P.C., 64 AD3d 1140, 1140 [4th Dept 2009] … ). As stated in O’Shea, once a defendant meets that prima facie burden, “[t]he burden then shift[s] to [the] plaintiff[] to raise triable issues of fact by submitting a physician’s affidavit both attesting to a departure from accepted practice and containing the attesting [physician’s] opinion that the defendant’s omissions or departures were a competent producing cause of the injury” … .

Upon review, we conclude that the burden that O’Shea places on a plaintiff opposing a summary judgment motion with respect to a medical malpractice claim is inconsistent with the law applicable to summary judgment motions in general … . We therefore conclude that, when a defendant moves for summary judgment dismissing a medical malpractice claim, “[t]he burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact only after the defendant physician meets the initial burden . . . , and only as to the elements on which the defendant met the prima facie burden” … . To the extent that O’Shea and its progeny state otherwise, those cases should no longer be followed. Bubar v Brodman, 2019 NY Slip Op 08294, Fourth Dept 11-15-19

 

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WHETHER PLAINTIFFS WILL BE ABLE TO ESTABLISH THE CLAIMS IN A COMPLAINT IS NOT CONSIDERED ON A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; HERE THE DEFENDANTS’ ARGUMENT THAT PLAINTIFFS WILL NOT BE ABLE TO LEARN AN ESSENTIAL ASPECT OF THEIR CASE IN DISCOVERY BECAUSE OF STATUTORY IMMUNITY WAS NOT RELEVANT TO WHETHER THE COMPLAINT STATED CAUSES OF ACTION (FIRST DEPT).

The First Department determined defendant school’s motion to dismiss the complaint was properly denied. Plaintiffs alleged the school retaliated against them after they complained about race-related issues by making a false child neglect report to Child Protective Services (CPS). The school argued the plaintiffs will not be able to learn the identity of the person who reported the alleged neglect because of the immunity provided by the Social Services Law. The 2nd Department explained that the immunity question is not relevant to whether the complaint states causes of action:

… [P]laintiffs assert causes of action for intentional infliction of emotional distress, defamation, violations of the New York State and City Human Rights Laws, and negligent hiring, training and supervision … .

Defendants moved to dismiss all of these causes of action on the basis that plaintiffs would be unable to prove any of these claims because they did not know the identity of the CPS reporter and would be unable to learn it in discovery. …

… [I]n the context of this motion to dismiss, the Court does not assess the relative merits of the complaint’s allegations against defendant’s contrary assertions or to determine whether or not plaintiffs can produce evidence to support their claims … . Whether plaintiffs “can ultimately establish [their] allegations is not a part of the calculus in determining a motion to dismiss” … . Thus, regardless of whether plaintiffs will be able to obtain disclosure concerning the identity of the CPS reporter (Social Services Law § 422[4][A] …), defendants have not demonstrated entitlement to dismissal of the well-pleaded complaint for failure to state a cause of action … . M.H.B. v E.C.F.S., 2019 NY Slip Op 08276, First Dept 11-14-19

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED A MOTION TO AMEND THE COMPLAINT IN THE ABSENCE OF A MOTION AND PROPOSED PLEADINGS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judges should have, sua sponte, granted plaintiff leave to file a second amended complaint in the absence of a motion and a proposed pleading. The leave to amend was vacated:

The motion court should not have sua sponte granted plaintiff leave to file a second amended complaint to assert an unpleaded negligent misrepresentation claim in the absence of a cross motion and an accompanying proposed pleading (CPLR 3025[b]). The lack of a proposed pleading precludes meaningful review of the sufficiency of the allegations, including defendant’s contention that such a claim is time barred … . Sutton Animal Hosp. PLLC v D&D Dev., Inc.. 2019 NY Slip Op 08263, First Dept 11-12-19

 

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THE BANK DID NOT PRESENT SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE OF DEFAULT PROVISIONS OF THE MORTGAGE; THE BANK NEED NOT AFFIRMATIVELY ADDRESS COMPLIANCE WITH RPAPL 1304 NOTICE REQUIREMENTS IF THE ISSUE IS NOT RAISED IN THE ANSWER; REPLY PAPERS CAN PRESENT EVIDENCE FOR THE FIRST TIME IN RESPONSE TO ISSUES FIRST RAISED IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; BUT REPLY PAPERS MAY NOT PRESENT, FOR THE FIRST TIME, EVIDENCE ADDRESSING AN ISSUE RAISED IN THE DEFENDANT’S ANSWER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff bank (Aurora) did not provide sufficient proof of providing notice of default to defendants. The Second Department noted that the bank need not affirmatively prove compliance with the notice requirements of RPAPL 1304 because the issue was not raised in defendant’s answer. The court also noted that evidence submitted in reply papers addressing matters raised for the first time in opposition to plaintiff’s motion for summary judgment can be considered, but evidence submitted for the first time in reply papers addressing issues which were raised in the answer should not be considered:

In support of its motion, Aurora submitted two affidavits. The first affidavit was from Laura McCann, Vice President of Aurora, the loan servicer responsible for sending the notices of default. The second affidavit was from A.J. Loll, Vice President of Nationstar Mortgage, LLC, the current plaintiff and loan servicer. While McCann attested that Aurora was responsible for “providing notices pursuant to the terms of the note and mortgage evidencing the mortgage loan at issue, and specifically for providing notices such as the notice required under Section 22 of the mortgage,” nowhere in her affidavit did she attest to the actual mailing or delivery of those notices. As to the second affidavit, while Loll attested, inter alia, that “[t]he servicing records show that a 30-day letter was mailed to [the] defendants . . . … , which letter advised Defendants of their default,” and attached a purportedly “true copy” of the 30-day letter as Exhibit I, the affidavit did not contain a statement that the 30-day notice was sent in a manner according with the terms of the mortgage, i.e., “mailed by first class mail or . . . actually delivered to [borrower’s] notice address if sent by other means.” Moreover, Loll’s affidavit “did not contain a statement that [Loll] was familiar with [Aurora’s] mailing practices and procedures,” so as to establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . While Loll claimed that servicing records show that a 30-day letter was mailed to the defendants, she did not identify what those records are and did not authenticate them as business records and attach them to her affidavit … . Nationstar Mtge., LLC v Tamargo, 2019 NY Slip Op 08197, Second Dept 11-13-19

 

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COMPLAINT DID NOT STATE CAUSES OF ACTION FOR FALSE ARREST AND MALICIOUS PROSECUTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint did not state causes of action for false arrest and malicious prosecution:

“A civilian defendant who merely furnishes information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution” … . “To be held liable for false arrest, the defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his [or her] own volition” … . “Similarly, in order for a civilian defendant to be considered to have initiated the criminal proceeding so as to support a cause of action based on malicious prosecution, it must be shown that defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act” … . “Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or District Attorney” … . Here, the plaintiff’s complaint and his affidavit in opposition to the motion merely alleged that the defendants provided false information to the police, and therefore, did not establish that the plaintiff has a cause of action to recover damages for malicious prosecution or false arrest against the defendants … . Williston v Jack Resnick & Sons, Inc., 2019 NY Slip Op 08247, Second Dept 11-13-19

 

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THE UCC CRITERIA FOR PROOF OF POSSESSION OF A LOST NOTE WERE NOT MET; PLAINTIFF BANK THEREFORE DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate it had standing to bring the foreclosure action. The UCC’s requirements for demonstrating ownership of a lost note were not met:

… [T]he affidavit of possession of the original note, sworn to by a vice president of loan documentation for the plaintiff, does not contain any details of delivery of the note, except for the claim that it was delivered to the plaintiff sometime after its execution, and that the plaintiff “had possession of the Promissory Note on or before … the date that this action was commenced.” The lost note affidavit of another vice president of loan documentation employed by the plaintiff stated vaguely, and in a conclusory manner, that the note was “inadvertently lost, misplaced or destroyed,” that the plaintiff had not “pledged, assigned, transferred, hypothecated or otherwise disposed of the note,” and that the plaintiff had made “a diligent and extensive search of its records in a good faith effort to discover the lost note in accordance with its procedures for locating the lost note.” The lost note affidavit did not provide any facts as to when the search for the note occurred, who conducted the search, or when or how the note was lost … . Thus, it “failed to sufficiently establish the plaintiff’s ownership of the note” … .

Since the plaintiff failed to demonstrate its ownership of the lost note (see UCC 3-804), or that it had standing, “as the lawful holder or assignee of the subject note on the date it commenced this action, to commence the action … . Wells Fargo Bank, N.A. v Meisels, 2019 NY Slip Op 08243, Second Dept 11-13-19

 

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EXPERT’S OPINION THAT DEFENDANT’S IMPROPER INSTALLATION OF A SIDEWALK/MANHOLE CAUSED THE SIDEWALK HEIGHT DIFFERENTIAL IN THIS SLIP AND FALL CASE WAS NOT SUPPORTED BY EVIDENCE IN THE RECORD; THE DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court. determined the motion to set aside the verdict in this slip and fall case should have been granted. Although plaintiff’s expert was properly qualified, his opinion that defendant’s improper installation of the sidewalk/manhole caused the sidewalk height-differential over which plaintiff tripped and fell was not supported by evidence in the record:

… [T]he expert reached his conclusion as to the defendant’s negligence by assuming material facts not supported by the evidence and by guessing and speculating in drawing that conclusion … . For example, the expert testified to having no knowledge of when the sidewalk was constructed, when the manhole had been installed, or the weight and inside dimensions of the manhole structure. Yet, he opined that the defendant was responsible for the settling of the sidewalk flag and manhole due to improper backfilling, simply because the manhole belonged to the defendant at the time of the plaintiff’s fall.

Contrary to the plaintiff’s contention, absent the expert’s assumptive and speculative testimony, there was no evidence of the defendant’s negligence. ” Ippolito v Consolidated Edison of N.Y., Inc., 2019 NY Slip Op 08179, Second Dept 11-13-19

 

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DISCOVERY OF DEFENDANT’S SOURCE CODE, A TRADE SECRET, SHOULD HAVE BEEN ORDERED FOR “ATTORNEYS AND EXPERT EYES ONLY” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the discovery-production of defendant’s source code, a trade secret, should have been for “attorneys and expert eyes only.”

The production of defendants’ source code, which is a trade secret … , should have been ordered to be produced for “attorneys and expert eyes only” … . Plaintiffs’ assertion that they have the expertise to review and opine on the source code and should not be subjected to retaining an expert, does not support unfettered access to defendants’ confidential algorithm. BEC Capital, LLC v Bistrovic, 2019 NY Slip Op 08144, First Dept 11-12-19

 

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