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ALLEGATIONS IN COMPLAINT AND AFFIDAVIT SUBMITTED IN RESPONSE TO A MOTION TO DISMISS MUST BE TREATED AS TRUE, PLAINTIFF RAISED A QUESTION OF FACT WHETHER RELEASE PROCURED BY FRAUD (SECOND DEPT).

The Second Department determined defendants’ motion to dismiss the complaint in this personal injury action, based upon a release signed by the plaintiff, was properly denied. Plaintiff submitted an affidavit which, together with the complaint, raised the issue whether the release was procured by fraud:

“In resolving a motion for dismissal pursuant to CPLR 3211(a)(5), the plaintiff’s allegations are to be treated as true, all inferences that reasonably flow therefrom are to be resolved in his or her favor, and where, as here, the plaintiff has submitted an affidavit in opposition to the motion, it is to be construed in the same favorable light” … . “A party may move for judgment dismissing one or more causes of action asserted against him on the ground that . . . the cause of action may not be maintained because of . . . [a] release” (CPLR 3211[a][5]). However, a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint on the basis of a release “should be denied where fraud or duress in the procurement of the release is alleged” … .

Here, in support of their motion to dismiss the complaint, the defendants submitted an affidavit of their insurance carrier’s claims representative and a copy of the release signed by the plaintiff, which, by its terms, barred the instant action against them … . In opposition, however, the plaintiff’s allegations were sufficient to raise a question of fact as to whether the defendants procured the release by fraud, whether the release was signed by the plaintiff under circumstances which indicate unfairness, and whether it was “not fairly and knowingly made” … . Sacchetti-Virga v Bonilla, 2018 NY Slip Op 01210, Second Dept 2-21-18

CONTRACT LAW (ALLEGATIONS IN COMPLAINT AND AFFIDAVIT SUBMITTED IN RESPONSE TO A MOTION TO DISMISS MUST BE TREATED AS TRUE, PLAINTIFF RAISED A QUESTION OF FACT WHETHER RELEASE PROCURED BY FRAUD (SECOND DEPT))/RELEASES (ALLEGATIONS IN COMPLAINT AND AFFIDAVIT SUBMITTED IN RESPONSE TO A MOTION TO DISMISS MUST BE TREATED AS TRUE, PLAINTIFF RAISED A QUESTION OF FACT WHETHER RELEASE PROCURED BY FRAUD (SECOND DEPT))/FRAUD (RELEASES, ALLEGATIONS IN COMPLAINT AND AFFIDAVIT SUBMITTED IN RESPONSE TO A MOTION TO DISMISS MUST BE TREATED AS TRUE, PLAINTIFF RAISED A QUESTION OF FACT WHETHER RELEASE PROCURED BY FRAUD (SECOND DEPT))/CIVIL PROCEDURE (MOTION TO DISMISS, ALLEGATIONS IN COMPLAINT AND AFFIDAVIT SUBMITTED IN RESPONSE TO A MOTION TO DISMISS MUST BE TREATED AS TRUE, PLAINTIFF RAISED A QUESTION OF FACT WHETHER RELEASE PROCURED BY FRAUD (SECOND DEPT))/CPLR 3211 (a)(5) (ALLEGATIONS IN COMPLAINT AND AFFIDAVIT SUBMITTED IN RESPONSE TO A MOTION TO DISMISS MUST BE TREATED AS TRUE, PLAINTIFF RAISED A QUESTION OF FACT WHETHER RELEASE PROCURED BY FRAUD (SECOND DEPT))

COMPULSORY COUNTERCLAIM IN FEDERAL ACTION WAS NOT RAISED, FEDERAL CLAIM PRECLUSION RULES PROHIBITED A SUBSEQUENT STATE ACTION BASED UPON THE COUNTERCLAIM (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge concurring opinion and a dissenting opinion, determined that the failure to raise a compulsory counterclaim in a federal action precluded a subsequent state action based upon the same counterclaim. In the federal action, investors sued Paramount pictures for securities fraud (federal question), common law fraud (state question) and unjust enrichment (state question). Paramount did not make any counterclaims, relying on a contractual waiver of liability (covenant not to sue). The federal district court found the waiver was binding and dismissed the investors’ actions. Then Paramount sued in state court, seeking $8 million in attorney’s fees. The opinions, dealing in depth with the underpinnings of claim preclusion and issue preclusion, as well as the applicability of federal law in this context, cannot be fairly summarized here:

Pursuant to federal principles of claim preclusion — the applicable rules of decision in this case (Semtek, 531 US at 507) — Paramount’s covenant not to sue claim is transactionally related to the investors’ claims in the federal case, amounting to the same “claim” for purposes of res judicata. As such, Paramount’s claim should have been asserted in the parties’ prior federal action. Because it was not, it is now barred. Paramount Pictures Corp. v Allianz Risk Transfer AG, 2018 NY Slip Op 01150, CtApp 2-20-18

CIVIL PROCEDURE (COMPULSORY COUNTERCLAIM IN FEDERAL ACTION WAS NOT RAISED, FEDERAL CLAIM PRECLUSION RULES PROHIBITED A SUBSEQUENT STATE ACTION BASED UPON THE COUNTERCLAIM (CT APP))/RES JUDICATA (COMPULSORY COUNTERCLAIM IN FEDERAL ACTION WAS NOT RAISED, FEDERAL CLAIM PRECLUSION RULES PROHIBITED A SUBSEQUENT STATE ACTION BASED UPON THE COUNTERCLAIM (CT APP))/CLAIM PRECLUSION COMPULSORY COUNTERCLAIM IN FEDERAL ACTION WAS NOT RAISED, FEDERAL CLAIM PRECLUSION RULES PROHIBITED A SUBSEQUENT STATE ACTION BASED UPON THE COUNTERCLAIM (CT APP))/COMPULSORY COUNTERCLAIM  (COMPULSORY COUNTERCLAIM IN FEDERAL ACTION WAS NOT RAISED, FEDERAL CLAIM PRECLUSION RULES PROHIBITED A SUBSEQUENT STATE ACTION BASED UPON THE COUNTERCLAIM (CT APP))

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PLAINTIFF RAISED A QUESTION OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE IN THIS MEDICAL MALPRACTICE CASE, DESPITE A 30 MONTH PERIOD BETWEEN VISITS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a three-judge dissent, determined that plaintiff had raised a question of fact about whether the continuous treatment doctrine tolled the statute of limitations in this medical malpractice action, despite a 30-month period between visits. Decision holding that a gap in treatment longer than the statute of limitations precludes the application of the continuous treatment doctrine should not be followed:

Plaintiff saw defendant over the course of four years, underwent two surgeries at his hand, and saw no other doctor for her shoulder during this time. She returned to him after the thirty-month gap, discussed yet a third surgery with him, and accepted his referral to his partner only because defendant was no longer performing such surgeries. Plaintiff’s testimony regarding feeling discouraged with defendant’s treatment does not demonstrate as a matter of law that she never intended to return to his care; in fact, her testimony reveals that she considered defendant her only doctor during this time. Nor does the fact that defendant repeatedly told plaintiff she should return “as needed” foreclose a finding that the parties anticipated further treatment. Notably, Plaintiff’s injury was a chronic, long-term condition which both plaintiff and defendant understood to require continued care. Each of plaintiff’s visits to defendant over the course of seven years were “for the same or related illnesses or injuries, continuing after the alleged acts of malpractice” … . As to the 30-month period between visits, we have previously held that a gap in treatment longer than the statute of limitations “is not per se dispositive of defendant’s claim that the statute has run” … . To the extent that lower courts have held to the contrary … , those cases should not be followed. Lohnas v Luzi, 2018 NY Slip Op 01114, CtApp 2-15-18

NEGLIGENCE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, PLAINTIFF RAISED A QUESTION OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE IN THIS MEDICAL MALPRACTICE CASE, DESPITE A 30 MONTH PERIOD BETWEEN VISITS (CT APP))/MEDICAL MALPRACTICE (CONTINUOUS TREATMENT DOCTRINE, PLAINTIFF RAISED A QUESTION OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE IN THIS MEDICAL MALPRACTICE CASE, DESPITE A 30 MONTH PERIOD BETWEEN VISITS (CT APP))/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, PLAINTIFF RAISED A QUESTION OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE IN THIS MEDICAL MALPRACTICE CASE, DESPITE A 30 MONTH PERIOD BETWEEN VISITS (CT APP))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, PLAINTIFF RAISED A QUESTION OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE IN THIS MEDICAL MALPRACTICE CASE, DESPITE A 30 MONTH PERIOD BETWEEN VISITS (CT APP))/STATUTE OF LIMITATIONS  (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, PLAINTIFF RAISED A QUESTION OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE IN THIS MEDICAL MALPRACTICE CASE, DESPITE A 30 MONTH PERIOD BETWEEN VISITS (CT APP))

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STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this sidewalk slip and fall case should have been denied. The evidence of a storm in progress was insufficient. The climatological analysis report submitted in the reply papers should not have been considered. There was no evidence when the sidewalk was last inspected prior to the fall:

… [T]he defendants submitted a copy of the transcript of the plaintiff’s deposition, at which she testified that light rain began to fall about 15 minutes prior to her accident, and that no precipitation fell the day before the accident. The defendants also submitted a copy of the transcript of the deposition of the office manager [the occupant of the abutting property], who testified that she had no recollection of the weather conditions on the day of the accident. The office manager also did not know when the sidewalk was last inspected or what it looked like within a reasonable time prior to the accident. The defendants also submitted video footage and screen shots from a security camera, but this evidence was not probative because it did not clearly depict the surface where the plaintiff slipped. Finally, the defendants submitted a climatological analysis report which was not signed and notarized, and therefore not admissible … .

The defendants submitted a signed and notarized climatological analysis report with their reply papers. However, the Supreme Court should not have considered that report, as it was improperly submitted for the first time with the reply papers … . Brandimarte v Liat Holding Corp., 2018 NY Slip Op 01042, Second Dept 2-14-18

NEGLIGENCE (SLIP AND FALL, STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (REPLY PAPERS, STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REPLY (CIVIL PROCEDURE, STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CIVIL PROCEDURE, REPLY PAPERS, STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the in-court stipulation of settlement in a divorce action should not have been set aside. Neither party requested that the stipulation be set aside:

The defendant contends that the Supreme Court erred in, sua sponte, setting aside the stipulation. We agree. Neither the decedent nor the defendant requested that the court set aside the stipulation … . Moreover, stipulations of settlement are favored by the courts and not lightly cast aside. “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” … . Here, the court did not conclude that any of these grounds were present. Estate of Michael Reid v Reid, 2018 NY Slip Op 01044, Second Dept 2-14-18

FAMILY LAW (STIPULATION OF SETTLEMENT, SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT))/STIPULATIONS (FAMILY LAW, SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT))/CIVIL PROCEDURE (SUA SPONTE, FAMILY LAW, STIPULATIONS, SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT))/SUA SPONTE (STIPULATIONS, FAMILIY LAW, SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT))

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MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT).

The Second Department determined Supreme Court properly denied petitioner’s motion to discontinue the action which challenged the tax assessments of several lots. Supreme Court abused its discretion, however, when it, sua sponte, directed merger of several parcels into a single tax lot:

A motion for leave to discontinue an action is addressed to the sound discretion of the court … , and generally should be granted unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results … .

In this case, the Supreme Court providently exercised its discretion in denying the petitioner’s motion, since the record supports the conclusion that the requested discontinuance would prejudice the respondents’ ability to defend against the proceeding … , and was improperly sought to avoid the consequences of a potentially adverse determination and to obtain an improper result.

However, the Supreme Court improvidently exercised its discretion by, sua sponte, directing that the six parcels be merged into a single tax lot. “Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'” .. . Here, the court failed to abide by this principle. None of the parties sought merger of the parcels or similar relief, merger of all the parcels at issue into one tax lot is not supported by the record, and merger of all the parcels could be potentially prejudicial to the petitioner. Matter of Blauvelt Mini-Mall, Inc. v Town of Orangetown, 2018 NY Slip Op 01051, Second Dept 2-14-18

CIVIL PROCEDURE (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/DISCONTINUANCE  (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/SUA SPONTE (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/REAL PROPERTY TAX LAW (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))

MATTER ERRONEOUSLY TRANSFERRED TO A COURT WITHOUT SUBJECT MATTER JURISDICTION (CIVIL COURT) CAN BE RETRANSFERRED TO THE CORRECT COURT (SUPREME COURT) AFTER JUDGMENT, THE CIVIL COURT JUDGMENT IS VOID AND CANNOT BE ADOPTED BY THE SUPREME COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, addressing two issues of first impression, determined: (1) a matter erroneously transferred to a court which did not have subject matter jurisdiction (Civil Court) can be retransferred to the correct court (Supreme Court); and (2) after the matter is retransferred the error cannot be remedied in Supreme Court by adopting the disposition of the Civil Court, which is void. The fact that the Civil Court judge was an Acting Supreme Court Justice did not afford subject matter jurisdiction to the Civil Court:

While Judge Marrazzo, by virtue of his designation as an Acting Justice of the Supreme Court, would have been authorized to preside over the trial of this matter had it been pending in the Supreme Court, the same cannot be said for the trial in the Civil Court where the Administrative Order had no administrative or substantive relevance.

Where subject matter jurisdiction is concerned, courts, including our own, may not cut corners. As a matter of both constitutional adherence and public policy, the Appellate Division must guard against courts acting outside of their subject matter jurisdiction, even if they do so unwittingly, in good faith, or in furtherance of judicial economy. Accordingly, we hold that the duties of an Acting Justice of the Supreme Court directed to matters pending in the Supreme Court operate only as to actions and proceedings pending in that particular court, and not for cases litigated elsewhere. …

… [S]ince the Civil Court was without jurisdiction to try the instant matter, rendering the trial and judgment void, its findings of fact and conclusions of law cannot as a matter of comity, res judicata, law of the case, or otherwise, be recognized by the Supreme Court upon its CPLR 325(b) removal of the action, and cannot provide a basis for the Supreme Court judgment presently on appeal. Caffrey v North Arrow Abstract & Settlement Servs., Inc., 2018 NY Slip Op 01043, Second Dept 2-14-18

CIVIL PROCEDURE (SUBJECT MATTER JURISDICTION, MATTER ERRONEOUSLY TRANSFERRED TO A COURT WITHOUT SUBJECT MATTER JURISDICTION (CIVIL COURT) CAN BE RETRANSFERRED TO THE CORRECT COURT (SUPREME COURT) AFTER JUDGMENT, THE CIVIL COURT JUDGMENT IS VOID AND CANNOT BE ADOPTED BY THE SUPREME COURT (SECOND DEPT))/JURISDICTION, SUBJECT MATTER (MATTER ERRONEOUSLY TRANSFERRED TO A COURT WITHOUT SUBJECT MATTER JURISDICTION (CIVIL COURT) CAN BE RETRANSFERRED TO THE CORRECT COURT (SUPREME COURT) AFTER JUDGMENT, THE CIVIL COURT JUDGMENT IS VOID AND CANNOT BE ADOPTED BY THE SUPREME COURT (SECOND DEPT))/CPLR 325(b) (SUBJECT MATTER JURISDICTION, MATTER ERRONEOUSLY TRANSFERRED TO A COURT WITHOUT SUBJECT MATTER JURISDICTION (CIVIL COURT) CAN BE RETRANSFERRED TO THE CORRECT COURT (SUPREME COURT) AFTER JUDGMENT, THE CIVIL COURT JUDGMENT IS VOID AND CANNOT BE ADOPTED BY THE SUPREME COURT (SECOND DEPT))/SUBJECT MATTER JURISDICTION  (MATTER ERRONEOUSLY TRANSFERRED TO A COURT WITHOUT SUBJECT MATTER JURISDICTION (CIVIL COURT) CAN BE RETRANSFERRED TO THE CORRECT COURT (SUPREME COURT) AFTER JUDGMENT, THE CIVIL COURT JUDGMENT IS VOID AND CANNOT BE ADOPTED BY THE SUPREME COURT (SECOND DEPT))

MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to compel plaintiff to accept an answer which was two days late should have been granted pursuant to CPLR 2004:

CPLR 2004 provides that, “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” Given the strong public policy favoring the resolution of cases on the merits, “the Supreme Court may compel a plaintiff to accept an untimely answer (see CPLR 2004, 3012[d]) where the record demonstrates that there was only a short delay in appearing or answering the complaint, that there was no willfulness on the part of the defendant, that there would be no prejudice to the plaintiff, and that a potentially meritorious defense exists”… . Here, in light of the defendant’s brief and unintentional delay in serving its answer, the lack of prejudice to the plaintiff, and the existence of a potentially meritorious defense, the Supreme Court improvidently exercised its discretion in denying the defendant’s motion pursuant to CPLR 2004 to compel the plaintiff to accept its late answer … . Baldwin Rte. 6, LLC v Bernad Creations, Ltd., 2018 NY Slip Op 01039, Second Dept 2-14-18

CIVIL PROCEDURE (MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ANSWER (CIVIL PROCEDURE, MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 2004 (MOTION TO COMPEL ACCEPTANCE OF A LATE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT))

NO SPECIAL RULES APPLY TO DISCOVERY OF FACEBOOK POSTS IN A PERSONAL INJURY ACTION, THE SCOPE OF DISCOVERY SHOULD BE BASED UPON RELEVANCE TO THE ACTION BALANCED AGAINST PRIVACY CONCERNS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, reversing the appellate division, clarified the standards to be applied to a defendant’s discovery request for Facebook posts in a personal injury case. Plaintiff was injured falling from defendant’s horse and alleged her cognitive and physical abilities were diminished significantly by her injuries. Plaintiff had posted pictures reflecting her lifestyle on her Facebook page, which was deactivated six months after the accident. Defendant sought plaintiff’s entire “private” Facebook account, arguing that photographs and written postings (showing her cognitive abilities) were material and necessary to the defense (CPLR 3101(a)). “Supreme Court granted the motion to compel to the limited extent of directing plaintiff to produce all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial, all photographs of herself privately posted on Facebook after the accident that do not depict nudity or romantic encounters, and an authorization for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in the messages. … [The appellate division] modified by limiting disclosure to photographs posted on Facebook that plaintiff intended to introduce at trial (whether pre- or post-accident) and eliminating the authorization permitting defendant to obtain data relating to post-accident messages …”. In reinstating Supreme Court’s order, the Court of Appeals held that no special rules apply to Facebook accounts and courts should allow discovery based upon relevance, balanced against privacy concerns:

… [C]ourts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. …

With respect to the items Supreme Court ordered to be disclosed (the only portion of the discovery request we may consider), defendant more than met his threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence. At her deposition, plaintiff indicated that, during the period prior to the accident, she posted “a lot” of photographs showing her active lifestyle. Likewise, given plaintiff’s acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the accident might be reflective of her post-accident activities and/or limitations. …

… [I]t was reasonably likely that the data revealing the timing and number of characters in posted messages would be relevant to plaintiffs’ claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer, particularly her claim that she is painstakingly slow in crafting messages. Forman v Henkin, 2018 NY Slip Op 01015, CtApp 2-13-18

CIVIL PROCEDURE (DISCOVERY, FACEBOOK, NO SPECIAL RULES APPLY TO DISCOVERY OF FACEBOOK POSTS IN A PERSONAL INJURY ACTION, THE SCOPE OF DISCOVERY SHOULD BE BASED UPON RELEVANCE TO THE ACTION BALANCED AGAINST PRIVACY CONCERNS (CT APP))/DISCOVERY (FACEBOOK,  NO SPECIAL RULES APPLY TO DISCOVERY OF FACEBOOK POSTS IN A PERSONAL INJURY ACTION, THE SCOPE OF DISCOVERY SHOULD BE BASED UPON RELEVANCE TO THE ACTION BALANCED AGAINST PRIVACY CONCERNS (CT APP))/FACEBOOK (DISCOVERY, NO SPECIAL RULES APPLY TO DISCOVERY OF FACEBOOK POSTS IN A PERSONAL INJURY ACTION, THE SCOPE OF DISCOVERY SHOULD BE BASED UPON RELEVANCE TO THE ACTION BALANCED AGAINST PRIVACY CONCERNS (CT APP))

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PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the hospital’s (Crouse Hospital’s) motion for summary judgment in this medical malpractice action should have been granted. The defendant doctor was not a hospital employee and no hospital employee was named in the complaint or bill of particulars. The plaintiff, in answering the hospital’s summary judgment motion, claimed for the first time that two nurses were negligent. That new theory of recovery could not defeat the motion:

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Following discovery, the hospital moved for summary judgment dismissing the complaint against it, contending that the physician defendant was not its employee and that the hospital therefore could not be held vicariously liable for his alleged negligence. In opposing the motion, plaintiff did not address the hospital’s contention with respect to the physician defendant’s employment status and instead argued for the first time that two of the hospital’s nurses were negligent and that the hospital was vicariously liable for their actions. In our view, that is a new theory of recovery and thus could not be used by plaintiff to defeat the hospital’s motion … . We note that plaintiff did not move to amend the bill of particulars to allege that the hospital was vicariously liable for the nurses’ negligence. Inasmuch as plaintiff did not dispute that the hospital was not vicariously liable for the alleged negligence of the physician defendant, there was no basis to deny the motion, which we now grant. DeMartino v Kronhaus, 2018 NY Slip Op 00974, Fourth Dept 2-9-18

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/MEDICAL MALPRACTICE (CIVIL PROCEDURE, PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE,  PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SUMMARY JUDGMENT (ANSWERING PAPERS,  PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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