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LIMITED LIABILITY PROVISION PRECLUDED RECOVERY FOR BREACH OF CONTRACT FOR ANY AMOUNT OVER THE LIMITATION, ALTHOUGH THE LIMITATION OF LIABILITY WAS AN AFFIRMATIVE DEFENSE, IT WAS PROPERLY CONSIDERED ON A MOTION TO DISMISS (FIRST DEPT).

The First Department determined the limitation of liability provision precluded recovery for breach of contract for any amount over the limitation. The contract was an exclusive licensing agreement (ELA) for a securities trading system (ATS). The First Department noted that it was proper to consider the limitation of liability, an affirmative defense, on a motion to dismiss:

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It was not error for Supreme Court to rule on the enforceabilty of the liability limitation provision, although it is an affirmative defense, on a motion to dismiss. In the ordinary course of deciding motions, courts consider whether documentary evidence establishes an asserted defense, in this case a defense concerning the limitation of liability provisions in the parties’ contracts … .

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New York courts routinely enforce such liability-limitation provisions, especially when negotiated by sophisticated parties. The Court of Appeals has recognized that “[a] limitation on liability provision . . . represents the parties’ Agreement on the allocation of the risk of economic loss in the event that the contemplated transaction is not fully executed, which the courts should honor.* * * [The parties] may later regret their assumption of the risks of non-performance in this manner, but the courts let them lie on the bed they made”… . However, such clauses are unenforceable when, “[i]n contravention of acceptable notions of morality, the misconduct for which it would grant immunity smacks of intentional wrongdoing. This can be explicit, as when it is fraudulent, malicious or prompted by the sinister intention of one acting in bad faith. Or, when, as in gross negligence, it betokens a reckless indifference to the rights of others, it may be implicit” … . Electron Trading, LLC v Morgan Stanley & Co. LLC, 2018 NY Slip Op 00380, First Dept 1-15-18

CONTRACT LAW (LIMITED LIABILITY PROVISION PRECLUDED RECOVERY FOR BREACH OF CONTRACT FOR ANY AMOUNT OVER THE LIMITATION, ALTHOUGH THE LIMITATION OF LIABILITY WAS AN AFFIRMATIVE DEFENSE, IT WAS PROPERLY CONSIDERED ON A MOTION TO DISMISS (FIRST DEPT))/CIVIL PROCEDURE (MOTION TO DISMISS, AFFIRMATIVE DEFENSE, (LIMITED LIABILITY PROVISION PRECLUDED RECOVERY FOR BREACH OF CONTRACT FOR ANY AMOUNT OVER THE LIMITATION, ALTHOUGH THE LIMITATION OF LIABILITY WAS AN AFFIRMATIVE DEFENSE, IT WAS PROPERLY CONSIDERED ON A MOTION TO DISMISS (FIRST DEPT))/AFFIRMATIVE DEFENSE (CIVIL PROCEDURE, MOTION TO DISMISS, LIMITED LIABILITY PROVISION PRECLUDED RECOVERY FOR BREACH OF CONTRACT FOR ANY AMOUNT OVER THE LIMITATION, ALTHOUGH THE LIMITATION OF LIABILITY WAS AN AFFIRMATIVE DEFENSE, IT WAS PROPERLY CONSIDERED ON A MOTION TO DISMISS (FIRST DEPT))

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PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF’S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT).

The Third Department, affirming Supreme Court's preclusion of plaintiff's (Colucci's) expert evidence and the grant of summary judgment to defendant, determined the failure of plaintiff to meet the deadline for expert disclosure warranted preclusion. Plaintiff had leased business space from defendant and alleged that exposure to sewage and mold at the premises caused health problems. Plaintiff did not disclose her expert, one of her treating physicians (Johanning), until a year after the discovery deadline imposed by Supreme Court. Defendant had timely submitted expert evidence opining there was no causal relationship between plaintiff's exposure to sewage and mold at the leased premises and plaintiff's health problems:

… [T]his Court has interpreted CPLR 3101 (d) (1) (i) as “requiring disclosure of any medical professional, even a treating physician or nurse, who is expected to give expert testimony” … . Thus, while Johanning was listed in Colucci's responses to defendant's bill of particulars as one of 28 treating physicians or medical providers, and medical treatment records for her were disclosed, this at most indicated to defendant that Johanning might have been called as an expert by plaintiffs; it did not obviate the need for plaintiffs to comply with CPLR 3101 (d) (1) (i) and Supreme Court's order by disclosing their intent to rely on him as an expert, as well as the substance of the facts and opinions to which he was expected to testify… . To that end, the expert disclosure statute requires, in relevant part, “reasonable detail [of] the subject matter on which [the] expert is expected to testify, the substance of the facts and opinions . . . and a summary of the grounds for [the] expert's opinion” (CPLR 3101 [d] [1] [i]), none of which was timely disclosed to defendant … . Notably, “the burden of providing expert witness disclosure and setting forth the particular details required by the statute lies with the party seeking to utilize the expert; it is not opposing counsel's responsibility to cull through [copious medical records] to ferret out the qualifications of the subject expert, the facts or opinions that will form the basis for his or her testimony at trial and/or the grounds upon which the resulting opinion will be based”… . Moreover, the record supports Supreme Court's conclusions that Johanning's expert affidavit, submitted for the first time in opposition to defendant's motion, offered substantially new medical and scientific theories not reflected in his medical records … . Thus, the court providently precluded Johanning's expert affidavit and testimony. Colucci v Stuyvesant Plaza, Inc., 2018 NY Slip Op 00211, Third Dept 1-11-18

NEGLIGENCE (EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/TOXIC TORTS  (EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/CIVIL PROCEDURE (TOXIC TORTS, EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/EVIDENCE (TOXIC TORTS, EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/EXPERT OPINION (TOXIC TORTS, EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/CPLR 3101 (TOXIC TORTS, EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))

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2008 LETTER INFORMING DEFENDANT SHE WAS IN DEFAULT DID NOT ACCELERATE THE DEBT, THEREFORE THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN AND THE CURRENT FORECLOSURE PROCEEDING IS TIMELY (THIRD DEPT).

The Third Department determined a 2008 letter from the bank's counsel informing defendant she was in default did not expressly accelerate the debt. Therefore the statute of limitations did not begin to run in 2008 and the current proceeding is timely:

“The six-year statute of limitations in a mortgage foreclosure action begins to run from the due date for each unpaid installment unless the debt has been accelerated; once the debt has been accelerated by a demand or commencement of an action, the entire sum becomes due and the statute of limitations begins to run on the entire mortgage”  … . …

The August 2008 letter advised defendant and Luma that they had violated the terms of the note and mortgage by failing to make monthly payments and that counsel had been retained “to exercise all of [the loan servicer's] rights and remedies at law, and in equity, including, but not limited to, the right to sell the above captioned premises at a public sale.” The letter therefore left all legal and equitable avenues open, did not indicate that immediate payment was demanded and, indeed, went on to state that the debt's validity would not be assumed unless there was an absence of timely written objection to some or all of it. There was, moreover, neither an explicit demand for payment in the letter nor the use of the word “accelerate.” Bank of Am., Natl. Assn. v Luma, 2018 NY Slip Op 00214, Third Dept 1-11-18

FORECLOSURE (STATUTE OF LIMITATIONS, 2008 LETTER INFORMING DEFENDANT SHE WAS IN DEFAULT DID NOT ACCELERATE THE DEBT, THEREFORE THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN AND THE CURRENT FORECLOSURE PROCEEDING IS TIMELY (THIRD DEPT))/CIVIL PROCEDURE (FORECLOSURE, STATUTE OF LIMITATIONS,  2008 LETTER INFORMING DEFENDANT SHE WAS IN DEFAULT DID NOT ACCELERATE THE DEBT, THEREFORE THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN AND THE CURRENT FORECLOSURE PROCEEDING IS TIMELY (THIRD DEPT))/STATUTE OF LIMITATIONS (FORECLOSURE, 2008 LETTER INFORMING DEFENDANT SHE WAS IN DEFAULT DID NOT ACCELERATE THE DEBT, THEREFORE THE STATUTE OF LIMITATIONS DID NOT BEGIN TO RUN AND THE CURRENT FORECLOSURE PROCEEDING IS TIMELY (THIRD DEPT))

DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO DISMISS THE COMPLAINT FOR FAILURE OF PROPER SERVICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing about whether the complaint should be dismissed for failure to properly serve her:

“A process server's affidavit of service ordinarily constitutes prima facie evidence of proper service” … . “Bare and unsubstantiated denials are insufficient to rebut the presumption of service” … . “However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing”… . “If an issue regarding service turns upon a question of credibility, a hearing should be held to render a determination on this issue” … .

Here, the Supreme Court erred in determining that branch of the motion of the defendant Delia Archibong (hereinafter the defendant) which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction without first conducting a hearing. The defendant demonstrated her entitlement to a hearing on the issue of service through her affidavit, in which she denied that she knew anyone by the name of Tom Jonel, the person allegedly served at her house, that no one by that name or with that physical description lived in her house, and that she was the only person at home when the summons and complaint were allegedly served … . HSBC Bank USA, N.A. v Archibong, 2018 NY Slip Op 00131, Second Dept 1-10-18

CIVIL PROCEDURE (SERVICE OF PROCESS, DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO DISMISS THE COMPLAINT FOR FAILURE OF PROPER SERVICE (SECOND DEPT))/SERVICE OF PROCESS (DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO DISMISS THE COMPLAINT FOR FAILURE OF PROPER SERVICE (SECOND DEPT))

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THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined plaintiff's motion to dismiss the third-party complaint was properly granted because the third-party action was commenced four years after the suit began and would unduly delay the main action. The Second Department also determined that Supreme Court properly ordered that defendants disclose information about post-accident repairs in this stairway slip and fall case. Defendants had not disclosed the identity of the party which exercised control over the stairway:

“CPLR 1010 provides a safety valve for cases in which the third-party claim will unduly delay the determination of the main action or prejudice the substantial rights of any party'”… . Where the record indicates that a third-party plaintiff knowingly and deliberately delayed in commencing the third-party action, the Supreme Court acts within its discretion to dismiss the third-party complaint… . Contrary to the defendants' contentions, the court correctly granted the plaintiff's motion to dismiss the third-party complaint because the defendants deliberately and intentionally delayed commencing the third-party action for more than four years.

“CPLR 3101(a) requires full disclosure of all evidence material and necessary in the prosecution or defense of an action” … . ” Evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case unless there is an issue of maintenance or control'” … . Contrary to the defendants' contentions, an issue exists as to the identity of the entity responsible for the structural maintenance and control of the stairway. Accordingly, the Supreme Court correctly directed the defendants to produce discovery concerning the post-accident repairs. Soto v CBS Corp., 2018 NY Slip Op 00185, Second Dept 1-10-18

NEGLIGENCE (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/EVIDENCE  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/POST-ACCIDENT REPAIRS (SLIP AND FALL, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/CIVIL PROCEDURE  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/CPLR 1010  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/CPLR 3101  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/REPAIRS, POST-ACCIDENT  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))

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IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT).

The First Department determined there was a question of fact whether defendant bus company (Hudson) was liable for plaintiff's fall. She stepped in a hole in the sidewalk as she got off the bus. The court noted a duty to provide a safe place to get off the bus and a contractual duty to notify Port Authority of needed repairs:

Issues of fact exist as to whether Hudson breached its duty as a common carrier to provide plaintiff with a safe place to disembark … . The record shows that 15 or 20 passengers exited the bus before plaintiff. As she alighted, she stepped into a hole on the sidewalk and fell. The bus driver corroborated this testimony, stating that the hole was on the sidewalk, “[w]ithin one step” of where plaintiff disembarked. The bus driver further admitted that the hole caused plaintiff to fall. Additionally, plaintiff testified that, upon seeing where she fell, the bus driver exclaimed, “[Y]ou fell in that hole, they're supposed to fix that hole.” Under the circumstances, where plaintiff stepped into a hole immediately upon alighting from the bus, the fact that a number of passengers safely descended before she did does not entitled Hudson to summary judgment … .

Issues of fact as to, among other things, whether Hudson breached its contractual duty to notify Port Authority of any needed repairs at the gate where the accident occurred compel denial of summary judgment on Port Authority's contractual indemnification claim. Bruno v Port Auth. of N.Y. & N.J., 2018 NY Slip Op 00069, First Dept 1-4-18

NEGLIGENCE (IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))/CONTRACT LAW (IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))/SLIP AND (FALL QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))/CONTRACT LAW (IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))/BUSES  (IN THIS SLIP AND FALL CASE, QUESTIONS OF FACT WHETHER BUS COMPANY LIABLE FOR FAILURE TO PROVIDE A SAFE PLACE FOR PASSENGERS TO DISEMBARK AND FAILURE TO NOTIFY PORT AUTHORITY OF NEED FOR REPAIR (FIRST DEPT))

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FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT).

The Third Department determined the fact that the pro se notice of claim was not verified was properly overlooked by Supreme Court and, although the notice did not explicitly describe a cause of action for malicious prosecution, the allegations were sufficient to put the municipality on notice that a malicious prosecution cause of action was contemplated. Only a mailcious prosecution claim was timely (the false arrest and false imprisonment claims were untimely):

Plaintiff's notice of claim does not specifically refer to the fact that he was charged with harassment in the second degree or to the dismissal of those charges. Nonetheless, plaintiff's assertions that he was falsely arrested without legitimate cause, that no crime took place and that City employees acted maliciously provided sufficient notice to defendants that plaintiff potentially had a claim for malicious prosecution. Although they protect different personal interests and are composed of different elements, claims for “false arrest and malicious prosecution are kindred actions insofar as they often aim to provide recompense for illegal law enforcement activities” … . Causes of action for false arrest and malicious prosecution are related closely enough that, in a trial of both, the court must instruct the jury not to make a duplicate award of damages… . Moreover, actual malice is an element of a cause of action for malicious prosecution, but not of a cause of action for false arrest … . Thus, receipt of a notice of claim alleging that its agents acted maliciously in executing a false arrest when no crime had occurred provided the City with the opportunity to investigate all circumstances related to plaintiff's arrest, including whether he had been arrested pursuant to a warrant — which would have insulated defendants from liability for false arrest … — and whether plaintiff's arrest had resulted in him being charged with, or prosecuted for, a crime. Hone v City of Oneonta, 2018 NY Slip Op 00055, Third Dept 1-4-18

MUNICIPAL LAW (NOTICE OF CLAIM, FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT))/CIVIL PROCEDURE (MUNICIPAL LAW, NOTICE OF CLAIM, FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT))/MALICIOUS PROSECUTION (MUNICIPAL LAW, NOTICE OF CLAIM, FACT THAT PRO SE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED, FACTS IN NOTICE SUFFICIENT TO NOTIFY CITY OF MALICIOUS PROSECUTION CLAIM (THIRD DEPT))

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BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT).

The Third Department, modifying Supreme Court, determined an state prison inmate's action in Supreme Court against doctors (Lieb and Angell) alleging medical malpractice should not have been dismissed as duplicating an action against the same doctors in the Court of Claims. It was possible the state would not indemnify the doctors who were not employees of the state and plaintiff would be left without recourse. The Supreme Court action should have been stayed, not dismissed:

The legal theory in the Court of Claims action is nearly identical to the Supreme Court action, and it is not disputed that the two actions arise out of the same set of facts. Moreover, Correction Law § 24-a provides that licensed physicians providing contractual medical care at the request of DOCCS are covered by the defense and indemnity provisions in Public Officers Law § 17, as long as the injury was not the result of intentional wrongdoing. As such, it appears that the dismissal of the Supreme Court action would not prejudice plaintiff's right to receive full recovery from all defendants, as intentional wrongdoing is not part of the Supreme Court action and any damages attendant to Lieb's or Angell's malpractice or negligence would be borne by the state in the Court of Claims action.

However, while these defense and indemnity provisions appear to apply to Lieb and Angell, the record is not fully developed at this time to make such a definite determination. Indeed, despite currently defending Angell, the state has neither conceded nor admitted in any of its submissions or pleadings that it is statutorily bound by Correction Law § 24-a and Public Officers Law § 17 (3) (a) to indemnify Lieb and Angell. Rothschild v Braselmann, 2018 NY Slip Op 00054, Third Dept 1-4-18

CIVIL PROCEDURE (BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT))/COURT OF CLAIMS (BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT))

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IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT).

The First Department, modifying Supreme Court, limited the amount of discovery about the rear stairs of the bus where plaintiff fell and allowed representatives of defendants to be present when the bus was inspected and photographed by plaintiff:

… [D]iscovery [is limited] to documents concerning the rear stairs of the bus on which plaintiff fell, and the absence of warning signs and handrails in the rear of the bus, for a period of five years preceding the date of the accident, and records relating to any modifications or changes to the interior stairs, handrails, or warning signs in the rear of the bus from the day of the accident to the day of the inspection, and the production of the bus for inspection and photographing by plaintiff in the presence of defendants' representatives … .

Predecessor models of the bus on which plaintiff fell and buses with front-facing rear seating are not relevant to whether the bus on which plaintiff fell was defectively designed (CPLR 3101[a]… ). Similarly, while material concerning the rear stairs, handrails, and warning signs in the rear of the subject bus, i.e., the alleged dangerous conditions, is relevant, material concerning other sections of the bus or other defects is not relevant. The production of 15 years' worth of records is burdensome … . Curran v New York City Tr. Auth., 2018 NY Slip Op 00038, First Dept 1-2-18

NEGLIGENCE (IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/CIVIL PROCEDURE (NEGLIGENCE, SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/CPLR 3101 (NEGLIGENCE, SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/SLIP AND FALL (DISCOVERY, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/BUSES (SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/DISCOVERY (IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))

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THE AGREEMENT TO ARBITRATE WAS NOT A DEFENSE TO THE COMPLAINT, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, RATHER, THE ACTION SHOULD HAVE BEEN STAYED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the action on the complaint should have been stayed, not dismissed, based upon the agreement to arbitrate. The Third Department further held that the complaint, augmented by affidavits, stated causes of action and should not have been dismissed:

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Supreme Court improperly dismissed the action against [defendant], rather than staying the action. Initially, there is no dispute on this record that plaintiff and [defendant], in the settlement agreement, consented to arbitrate any and all disputes regarding, among other things, the subject property. However, under established law, “[a]n agreement to arbitrate is not a defense to an action” and, thus, “may not be the basis for a motion to dismiss” … . [Defendant’s] cross motion to dismiss based upon CPLR 3211 (a) (1), premised upon the agreement to arbitrate, does not entitle him to dismissal of this action… . Rather, where, as here, there is a valid arbitration clause in an agreement and the party sued … moves to compel arbitration, the court should stay the judicial action rather than dismiss it (see CPLR 7503 [a]…). By statute, the order granting [defendant’s] motion to compel arbitration “operate[s] to stay [the] pending or subsequent action” (CPLR 7503 [a]). …

We further find that Supreme Court improperly dismissed the complaint against the remaining defendants … . Importantly, on the remaining defendants’ pre-answer cross motions to dismiss the complaint pursuant to CPLR 3211, the court was bound to “accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . The court was also authorized to “consider affidavits submitted by plaintiff[] to remedy any defects in the complaint” … . Piller v Tribeca Dev. Group LLC, 2017 NY Slip Op 09209, Third Dept 12-28-17

ARBITRATION (THE AGREEMENT TO ARBITRATE WAS NOT A DEFENSE TO THE COMPLAINT, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, RATHER, THE ACTION SHOULD HAVE BEEN STAYED (THIRD DEPT))/CIVIL PROCEDURE (THE AGREEMENT TO ARBITRATE WAS NOT A DEFENSE TO THE COMPLAINT, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, RATHER, THE ACTION SHOULD HAVE BEEN STAYED (THIRD DEPT))/CPLR 7503  (THE AGREEMENT TO ARBITRATE WAS NOT A DEFENSE TO THE COMPLAINT, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, RATHER, THE ACTION SHOULD HAVE BEEN STAYED (THIRD DEPT))

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