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THE DEFENDANT HOSPITAL DID NOT DEMONSTRATE THAT A DOCTOR ORDERED THE RESTRAINT OF PLAINTIFF’S DECEDENT AND THEREFORE DID NOT DEMONSTRATE THAT MEDICAL MALPRACTICE, AS OPPOSED TO NEGLIGENCE, WAS THE APPROPRIATE THEORY; THE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED UPON THE EXPIRATION OF THE 2 1/2 YEAR STATUTE OF LIMITATIONS FOR MEDICAL MALPRACTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss the complaint on statute of limitations grounds should not have been granted. Plaintiff’s decedent’s injuries were alleged to relate to defendant-hospital’s improper restraint of plaintiff’s decedent (apparently to keep him from getting up from his hospital bed). Defendant argued the 2 1/2 year statute of limitations for medical malpractice actions had passed. The Second Department held that defendant did not demonstrate that a doctor had ordered the restraints; therefore the defendant had not made out a prima facie case that the action sounded in medical malpractice as opposed to negligence:

” The critical question in determining whether an action sounds in medical malpractice or simple negligence is the nature of the duty to the plaintiff which the defendant is alleged to have breached'” … . ” When the duty arises from the physician-patient relationship or is substantially related to medical treatment, the breach gives rise to an action sounding in medical malpractice, not simple negligence'” … . ” The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts'” … .

Here, the defendant failed to establish, prima facie, that the plaintiff’s claims were time-barred under the 2½-year statute of limitations applicable to medical malpractice actions (see CPLR 214-a). Since the defendant did not present any evidence that a doctor ordered the decedent to be restrained at any point prior to or during the subject incident, the defendant failed to establish that the plaintiff’s claims related to medical treatment, as opposed to the failure of hospital staff to exercise ordinary and reasonable care to prevent harm to the decedent … . ​Wesolowski v St. Francis Hosp., 2019 NY Slip Op 06646, Second Dept 9-18-19

 

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GOODYEAR DEMONSTRATED IT DID NOT HAVE SUFFICIENT AFFILIATIONS WITH NEW YORK TO CONFER JURISDICTION IN THIS TIRE-MALFUNCTION OUT-OF-STATE ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that Goodyear’s motion to dismiss the products liability complaint for lack of jurisdiction should have been granted. Plaintiff, a New York resident, was injured when a tire manufactured by Goodyear allegedly malfunctioned causing the car to overturn in Virginia. The Second Department held that plaintiff did not rebut Goodyear’s argument that it did not have significant affiliations with New York and noted that a corporation’s registration with the New York State Department of State does not confer jurisdiction on New York:

“While the ultimate burden of proof rests with the party asserting jurisdiction, the plaintiffs, in opposition to a motion to dismiss pursuant to CPLR 3211(a)(8), need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the Supreme Court” … . “General jurisdiction in New York is provided for in CPLR 301, which allows a court to exercise such jurisdiction over persons, property, or status as might have been exercised heretofore'”… . A court may exercise general jurisdiction over foreign corporations “when their affiliations with the State are so continuous and systematic as to render them essentially at home in the forum State” … .

Here, in opposition to Goodyear’s motion, the plaintiff failed to make a prima facie showing that personal jurisdiction over Goodyear existed under CPLR 301. The plaintiff did not rebut the evidence submitted by Goodyear showing that Goodyear’s affiliations with New York are not so continuous and systematic as to render it essentially at home here … . Furthermore, contrary to the Supreme Court’s determination, “a corporate defendant’s registration to do business in New York and designation of the Secretary of State to accept service of process in New York does not constitute consent by the corporation to submit to the general jurisdiction of New York for causes of action that are unrelated to the corporation’s affiliations with New York” … . Aybar v Goodyear Tire & Rubber Co., 2019 NY Slip Op 06584, Second Dept 9-18-19

 

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COURT OF APPEALS 2009 RULING THAT LANDLORDS RECEIVING J-51 TAX BENEFITS CANNOT DEREGULATE NEW YORK CITY APARTMENTS APPLIES RETROACTIVELY IN THIS CLASS ACTION FOR RENT OVERCHARGES BROUGHT BY TENANTS; THE CLASS, HOWEVER, SHOULD NOT HAVE BEEN EXPANDED AFTER THE ACTION WAS COMMENCED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Richter too comprehensive to fairly summarize here, modifying Supreme Court, determined that the class action by tenants in defendant’s large housing complex properly sought repayment of rent overcharges. The complaint alleged the landlord, under New York City rent control and stabilization law, and pursuant to a 2009 Court of Appeals case (Roberts v Tishman, 13 NY3d 270), could not deregulate apartments while receiving so-called “J-51” tax benefits. The landlord argued unsuccessfully that the Roberts decision did not apply retroactively. The First Department remanded the case for recalculation of the overcharges and further held that Supreme Court should not have expanded the class. With regard to the expansion of the class, the court wrote:

CPLR 902 provides that a class action “may be altered or amended before the decision on the merits.” However, that provision also states that “[an] action may be maintained as a class action only if the court finds that the prerequisites under [CPLR] 901 have been satisfied.” Those requirements are generally referred to as “numerosity, commonality, typicality, adequacy of representation and superiority” (City of New York v Maul, 14 NY3d 499, 508 [2010]). CPLR 902 further requires the court to consider a range of factors before certifying a class.

Here, the motion court improvidently exercised its discretion in expanding the class. The court’s order failed to analyze whether class action status was warranted based on the criteria set forth in CPLR 901 and CPLR 902. Conducting that analysis ourselves, we find that the redefined class represents such a fundamental change in the theory of plaintiffs’ case that expansion of the class would be improper. When the class was originally certified, plaintiffs maintained, and the court agreed, that its members were tenants who received deregulated leases while the complex was receiving J-51 benefits. The expanded class, however, would include tenants who never lived in the complex during defendant’s receipt of J-51 benefits, and who received regulated leases for their tenancies. Thus, the legal issues for this group of tenants are separate and distinct from those of the original class. Dugan v London Terrace Gardens, L.P., 2019 NY Slip Op 06578, First Dept 9-17-19

 

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A PRIVILEGE UNDER WISCONSIN INSURANCE LAW APPLIED IN THIS NEW YORK ACTION CONCERNING INSURANCE CLAIMS STEMMING FROM THE ISSUANCE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES (FIRST DEPT).

The First Department determined a privilege under Wisconsin Law protected certain emails and documents generated in a Wisconsin action by the Wisconsin Commissioner of Insurance concerning the payment of insurance claims stemming from the issuance of residential mortgage-backed securities, The decision doesn’t explain the underlying facts:

The Commissioner appointed a Special Deputy Commissioner (SDC) to oversee all activities … from Ambac’s [plaintiffs’] New York offices, and, at the SDC’s direction, plaintiffs commenced this action in New York, asserting claims of fraudulent inducement and breach of contract in connection with the policies Ambac issued on the securitizations sponsored by defendant. When defendant demanded the production of certain emails and other documents maintained by the SDC, plaintiffs responded by claiming the statutory privilege held by the Wisconsin Office of the Commissioner of Insurance (OCI) under Wisconsin law (see Wis Stat § 601.465). Defendant argued that New York law should be applied because, in adjudicating privilege issues, New York courts must apply the law of the place where the evidence will be introduced at trial or where the discovery proceeding is located. Supreme Court, after engaging in an interest-balancing analysis, determined that the Wisconsin statutory privilege was applicable, and denied defendant’s motion to compel. We affirm.

New York courts “routinely apply the law of the place where the evidence in question will be introduced at trial or the location of the discovery proceeding when deciding privilege issues” … . However, there are circumstances in which an interest-balancing analysis is properly undertaken to decide whether another state’s law should govern the evidentiary privilege … .  This is a case that presents such circumstances … . Ambac Assur. Corp. v Nomura Credit & Capital, Inc., 2019 NY Slip Op 06574, First Dept 9-17-19

 

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DEFENDANT’S AFFIRMATIVE DEFENSES SHOULD HAVE BEEN CONSIDERED IN ITS MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S ACTION AGAINST DEFENDANT BASED UPON HER DISMISSAL FROM A NURSING PROGRAM SHOULD HAVE BEEN BROUGHT IN AN ARTICLE 78 PROCEEDING AND WAS THEREFORE TIME-BARRED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the court should have considered defendant’s affirmative defenses, including the statute of limitations defense, in determining defendant’s summary judgment motion. Plaintiff brought fraud, breach of contract and prima facie tort causes of action against defendant. Plaintiff was enrolled in defendant’s licensed practical nurse (LPN) program and was dismissed by defendant based upon plaintiff’s performance in a clinical setting. The Third Department held that the action should have been brought in an Article 78 proceeding and was time-barred:

Supreme Court should have considered defendant’s affirmative defenses on the summary judgment motion. Although the notice of motion did not cite CPLR 3211 (a), it did seek dismissal of the complaint in its entirety, as well as “such other and further relief” as the court deemed just and proper, and defendant’s memorandum of law, submitted with the motion, addressed dismissal based on the statute of limitations and failure to exhaust administrative remedies, thereby providing plaintiff with adequate notice of these bases for the motion. … A defendant may raise an affirmative defense listed in CPLR 3211 (a) in a pre-answer motion to dismiss or, for most of those grounds, “may instead choose to raise that defense in its answer, and either move on that ground later in a motion for summary judgment, or wait until trial to have it determined” … . * * *

Plaintiff’s separate causes of action sounding in breach of contract, fraud and prima facie tort are all, at their core, challenges to defendant’s actions in dismissing her from the LPN program in a manner that allegedly was not in good faith and was without a sound factual basis, rendering her dismissal arbitrary and capricious. Thus, she should have brought her challenge in a CPLR article 78 proceeding. Although courts generally possess the authority to convert a plenary action to a CPLR article 78 proceeding if jurisdiction of the parties has been obtained (see CPLR 103 [c]), conversion is not appropriate where the claims are barred by the four-month statute of limitations governing CPLR article 78 proceedings … . Meisner v Hamilton, Fulton, Montgomery Bd. of Coop. Educ. Servs., 2019 NY Slip Op 06558, Third Dept 9-12-19

 

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MOTION TO SET ASIDE THE DAMAGES VERDICT IN THIS TRAFFIC ACCIDENT CASE AS INADEQUATE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED UNLESS DEFENDANT STIPULATES TO INCREASED AWARDS FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT). ​

The Second Department determined the motion to set aside the damages verdict as inadequate in this traffic accident case should have been granted. The Second Department ordered a new trial unless the defendant stipulates to an increased award of damages for past pain and suffering from $25,000 to $150,000 and for future pain and suffering from $0 to $100,000:

“While the amount of damages to be awarded for personal injuries is a question for the jury, and the jury’s determination is entitled to great deference'” … , it may be set aside if the award deviates materially from what would be reasonable compensation (see CPLR 5501[c] …). “Although prior damage awards in cases involving similar injuries are not binding upon the courts, they guide and enlighten them with respect to determining whether a verdict in a given case constitutes reasonable compensation” … ,

Under the circumstances of this case, where the plaintiff was required to undergo an anterior cervical discectomy and fusion surgery as a result of the accident, the jury’s award for past pain and suffering was inadequate to the extent indicated … .

Further, since it was undisputed that the cervical fusion, inter alia, permanently reduced the plaintiff’s cervical range of motion, the jury’s failure to award any damages for future pain and suffering was not based upon a fair interpretation of the evidence … , and was inadequate to the extent indicated … . Chung v Shaw, 2019 NY Slip Op 06468, Second Dept 9-11-19

 

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JUDGES IN THE 2ND DEPARTMENT HAVE THE DISCRETION TO ORDER UNIFIED PERSONAL INJURY TRIALS WHERE THE ISSUES OF LIABILITY AND THE INJURIES ARE INTERTWINED AS THEY WERE IN THIS CONSTRUCTION ACCIDENT CASE; DEFENSE VERDICT SET ASIDE AND A NEW UNIFIED TRIAL ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, setting aside the defense verdict on liability and ordering a new trial, determined that the trial judge had the discretion to order (and should have ordered) a unified trial (both liability and damages) in this Labor Law 240 (1), 241 (6), 200 and common law negligence action. Plaintiff (Castro) alleged the elevated work platform he was on collapsed and he fell 6 or 7 feet to the ground. There were no witnesses to the incident. Plaintiff alleged brain, head, shoulder and spine injuries. The defense alleged plaintiff was injured moving planks and did not in fact fall. Evidence of any brain injury was excluded from the trial. Because the evidence of brain injury was consistent with a fall, and inconsistent with moving planks, the exclusion of that evidence affected the fairness of the trial. The opinion makes it clear that judges in the Second Department have the discretion to order unified trials in personal injury cases:

Here, by any standard, a unified trial was warranted. Labor Law § 240(1) “imposes on owners or general contractors and their agents a nondelegable duty, and absolute liability for injuries proximately caused by the failure to provide appropriate safety devices to workers who are subject to elevation-related risks” … . [Defendants] disputed the plaintiffs’ claim that Castro fell from a scaffold and contended that the accident resulted not from an elevation-related risk, but from Castro’s action in lifting wooden planks. Evidence relating to Castro’s brain injuries, which would not have occurred from lifting wooden planks, was probative in determining how the incident occurred … . Thus, the nature of the injuries had an important bearing on the issue of liability.

The Supreme Court did not exercise its available discretion in denying the plaintiffs’ motion for a unified trial. The court’s determination was predicated upon its perception that a bifurcated trial was strictly required by the Second Department’s “rules.” However, neither the statewide rule nor the governing precedent absolutely requires that the trial of a personal injury action be bifurcated. Although bifurcation is encouraged in appropriate settings, bifurcation is not an absolute given and it is the responsibility of the trial judge to exercise discretion in determining whether bifurcation is appropriate in light of all relevant facts and circumstances presented by the individual cases. …

Because the issues of liability and Castro’s injuries were so intertwined, the court’s insistence upon bifurcation and its ensuing limitations on the scope of the medical evidence that could be elicited by the plaintiffs deprived them of a fair trial. Castro v Malia Realty, LLC, 2019 NY Slip Op 06466, Second Dept 9-11-19

 

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PRODUCTION OF THE ORIGINAL NOTE AND ENDORSEMENTS WAS “MATERIAL AND NECESSARY” TO THE DETERMINATION WHETHER THE BANK HAS STANDING TO BRING THE FORECLOSURE ACTION, DEFENDANT’S MOTION TO COMPEL DISCOVERY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion pursuant to CPLR 3124 to compel the bank in this foreclosure action to produce the original note and endorsements should have been granted. Defendant had challenged the bank’s standing to bring the foreclosure action and the production of the original note and endorsements was “material and necessary” to resolve the standing question:

It is undisputed that a copy of the underlying note was annexed to the complaint. However, it cannot be ascertained from the copy of the note provided by the plaintiff whether the separate page that bears the endorsement in blank was stamped on the back of the note, as alleged by the plaintiff, or on an allonge, and if on an allonge, whether the allonge was “so firmly affixed as to become a part thereof,” as required under UCC 3-202(2). Since the answers to these questions are “material and necessary” to the defense of lack of standing, the Supreme Court should have granted that branch of the defendant’s motion which was pursuant to CPLR 3124 to compel the plaintiff to produce the original note and endorsements … . Bayview Loan Servicing, LLC v Charleston, 2019 NY Slip Op 06463, Second Dept 9-11-19

 

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PROPERTY OWNER PROPERLY FOUND NEGLIGENT IN FAILING TO MOP UP TRACKED IN SNOW AND WATER IN THIS SLIP AND FALL CASE; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined defendant property owner (a school) was properly found negligent in failing to mop up tracked in snow and water in this slip and fall case. Defendant’s motion to set aside the verdict should not have been granted:

Although a defendant is not required to “provide a constant remedy to the problem of water being tracked into a building during inclement weather, and has no obligation to cover all of its floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation” … , a defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action … . Here, evidence was presented at trial demonstrating that the defendant had actual notice of the wet condition in the area where the plaintiff fell approximately an hour before the accident, yet failed to remedy it. …

Accordingly, viewing the evidence in the light most favorable to the plaintiff, and affording her every favorable inference which may properly be drawn from the facts presented, there is a valid line of reasoning and permissible inferences could lead rational individuals to the jury’s conclusion that the defendant was negligent in failing to maintain the premises in a reasonably safe condition and that its negligence was a substantial factor in causing the plaintiff’s accident … .  Allen v Federation of Jewish Philanthropies of N.Y., 2019 NY Slip Op 06462, Second Dept 9-11-19

 

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THE PROCESS SERVER WAS AWARE DEFENDANT IN THIS FORECLOSURE ACTION WAS IN THE MILITARY; THE “AFFIX AND MAIL” METHOD OF SERVICE DID NOT OBTAIN JURISDICTION OVER DEFENDANT (SECOND DEPT).

The Second Department determined personal jurisdiction was not obtained over defendant in this foreclosure action. The process server, who used the “affix and mail” method of service, was aware defendant was in the military:

After the hearing, the Supreme Court determined that the plaintiff had not established personal jurisdiction over the defendant. Service pursuant to CPLR 308(4), known as “affix and mail” service, “may be used only where service under CPLR 308(1) or 308(2) cannot be made with due diligence'” … . “While the precise manner in which due diligence is to be accomplished is not rigidly prescribed, the requirement that due diligence be exercised must be strictly observed, given the reduced likelihood that a summons served pursuant to [CPLR 308(4)] will be received”… . A mere showing of several attempts at service at either a defendant’s residence or place of business may not satisfy the “due diligence” requirement before resort to affix and mail service … . ” [D]ue diligence’ may be satisfied with a few visits on different occasions and at different times to the defendant’s residence or place of business when the defendant could reasonably be expected to be found at such location at those times” … . …

According to the affidavit of service and the process server’s in-house work order sheet, however, the process server knew that the defendant was in active military service. Since the process server was aware that the defendant was engaged in active military service at the time the process server attempted service at the address, the process server’s four attempts at service prior to resorting to affix-and-mail service were not made when the defendant “could reasonably be expected to be found at such location” … . Mid-Island Mtge. Corp. v Drapal, 2019 NY Slip Op 06488, Second Dept 9-11-19

 

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