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MOTION TO COMPEL DISCOVERY OF INFORMATION POSTED ON FACEBOOK SHOULD HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined the defendant city was entitled to compel discovery of plaintiff’s Facebook posts in this wrongful arrest and prosecution action. The Facebook information tended to show the use of an alias by plaintiff (Moe), which plaintiff had denied, and included a photograph of plaintiff’s nephew who was present at the premises where the search warrant was executed:

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… [T]he City made a threshold showing that examination of the above Facebook accounts will result in the disclosure of relevant evidence bearing on the claim… . As such, plaintiff is directed to review and provide or permit access to those Facebook and associated Messenger accounts, including their messenger components, and any deleted materials which contain any information connecting plaintiff to the accounts in question, connecting him to any variation of the nickname “Moe,” or relevant to his claims that he has had no connection to the apartment searched or the contraband located thereat. Plaintiff shall also provide an authorization permitting Facebook to release the photograph purported to be of plaintiff’s nephew, including any metadata associated with the photograph. Production shall be made within 30 days of this order and it is without prejudice to plaintiff seeking, prior to the expiration of the 30-day period, a protective order for expressly identified materials on these Facebook accounts seeking protection from discovery for reasons other than relevancy. Flowers v City of New York, 2017 NY Slip Op 05040, 1st Dept 6-20-17

CIVIL PROCEDURE (DISCOVERY, FACEBOOK POSTS, MOTION TO COMPEL DISCOVERY OF INFORMATION POSTED ON FACEBOOK SHOULD HAVE BEEN GRANTED)/DISCOVERY (CIVIL PROCEDURE, FACEBOOK POSTS, MOTION TO COMPEL DISCOVERY OF INFORMATION POSTED ON FACEBOOK SHOULD HAVE BEEN GRANTED)/FACEBOOK (CIVIL PROCEDURE, MOTION TO COMPEL DISCOVERY OF INFORMATION POSTED ON FACEBOOK SHOULD HAVE BEEN GRANTED)

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SUMMARY JUDGMENT TO PLAINTIFF ON THE LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A LADDER, WAS PREMATURE AS IT WAS BASED SOLELY ON PLAINTIFF’S DEPOSITION.

The Fourth Department, reversing Supreme Court, determined the grant of summary judgment to plaintiff in this Labor Law 240 (1) action, based on plaintiff’s fall from a ladder, was premature. The ruling on the motion was based solely on the deposition of the plaintiff:

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Stephen J. Jones (plaintiff), an employee and owner of third-party defendant Stephen J. Jones Contracting, Inc., fell from a ladder while working on a single-family home. Plaintiff and his wife thereafter commenced this Labor Law and common-law negligence action against, inter alia, defendant-third-party plaintiff Jay P. Tovey Co., Inc. (defendant), the general contractor on the project. Insofar as relevant to this appeal, plaintiffs cross-moved for partial summary judgment on the issue of defendant’s liability under Labor Law § 240 (1). We agree with defendant that, in view of the limited discovery that has been conducted, Supreme Court erred in granting the cross motion … . Notably, discovery has been limited to plaintiff’s own account of the accident during his examination before trial, and defendant has not had an opportunity to explore potential defenses … . Jones v Jay P. Tovey Co., Inc., 2017 NY Slip Op 05017, 4th Dept 6-16-17

LABOR LAW-CONSTRUCTION LAW (SUMMARY JUDGMENT TO PLAINTIFF ON THE LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A LADDER, WAS PREMATURE AS IT WAS BASED SOLELY ON PLAINTIFF’S DEPOSITION)/CIVIL PROCEDURE (LABOR LAW-CONSTRUCTION LAW, SUMMARY JUDGMENT TO PLAINTIFF ON THE LABOR LAW 240 (1) CAUSE OF ACTION, BASED UPON A FALL FROM A LADDER, WAS PREMATURE AS IT WAS BASED SOLELY ON PLAINTIFF’S DEPOSITION)

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STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE.

The Fourth Department reversed the dismissal of this Labor Law retaliatory discharge cause of action in the interest of justice. The two-year statute of limitations ended on a Saturday. The action was commenced on the next business day (a Tuesday following Columbus Day), rendering the action timely. The correct calculation had not been raised below or on appeal:

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Defendant failed to meet its initial burden of establishing that the statute of limitations period had expired … . Even assuming, arguendo, that plaintiff’s cause of action accrued on October 10, 2013, we note that the two-year statute of limitations period ended on a Saturday and therefore was extended until “the next succeeding business day” (General Construction Law § 25-a [1]…). Because Columbus Day fell on the Monday following that Saturday (see § 24), the next business day was October 13, 2015, the date on which the action was commenced. Plaintiff’s complaint therefore was timely.

Although plaintiff did not assert that calculation in opposing defendant’s motion before the motion court or on this appeal, we deem it appropriate to consider it sua sponte in the interest of justice … . As noted above, defendant had the burden of establishing that the statute of limitations period had expired, and it could not refute that such period was extended by operation of law to October 13, 2015 … . Wilson v Exigence of Team Health, 2017 NY Slip Op 04993, 4th Dept 6-16-17

 

CIVIL PROCEDURE (STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)/STATUTE OF LIMITATIONS (CALCULATION, STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)/GENERAL CONSTRUCTION LAW (CALCULATION OF STATUTE OF LIMITATIONS, STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)/APPEALS (STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)

NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY.

The Fourth Department, reversing Supreme Court, determined that plaintiff’s notices of discontinuance were timely. Supreme Court had held the notices were not timely because they were filed after defendants’ motions to dismiss.  The statute requires that a discontinuance (without the need for court involvement) be filed before any responsive pleadings. A motion to dismiss is not a responsive pleading:

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We conclude that the notices of discontinuance were not untimely because a motion to dismiss pursuant to CPLR 3211 is not a “responsive pleading” for purposes of CPLR 3217 (a) (1). A motion pursuant to CPLR 3211 does not fall within the meaning of a “pleading” as defined by CPLR 3011. Rather, a “motion” is defined in the CPLR as “an application for an order” (CPLR 2211). Indeed, the terms “responsive pleading” and “motion to dismiss pursuant to CPLR 3211” are not used interchangeably in the CPLR but, rather, are treated as distinct, separate items. For instance, CPLR 3211 (d) provides that, under certain circumstances, “the court may deny the [CPLR 3211] motion, allowing the moving party to assert the objection in his responsive pleading” ([emphasis added]). Likewise, CPLR 3211 (e) provides that, “[a]t any time before service of the responsive pleading is required, a party may move on one or more grounds set forth in [CPLR 3211 (a)].” It is clear from the language used throughout the CPLR that the Legislature did not intend a CPLR 3211 motion to be considered a “responsive pleading.”  Harris v Ward Greenberg Heller & Reidy LLP, 2017 NY Slip Op 04970, 4th Dept 6-16-17

CIVIL PROCEDURE (NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY)/DISCONTINUANCE, NOTICE OF (NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY)/DISMISS, MOTION TO (CIVIL PROCEDURE, NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY)/RESPONSIVE PLEADINGS (CIVIL PROCEDURE, NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY)

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THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE.

The First Department, reversing Supreme Court, determined the plaintiff’s verdict against the transit authority in this slip and fall case should not have been set aside. Plaintiff regularly used the unlighted subway stairway when he returned from work without incident. The jury, therefore, could reasonably have found plaintiff’s use of the unlighted stairway was not negligent:

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In this action for personal injuries, plaintiff alleges that he fell while descending a covered and unlit exterior subway staircase owned by defendant. The jury found that defendant was negligent in its maintenance of the lighting on the staircase, that defendant’s negligence was a substantial factor in causing plaintiff’s injuries’, and that plaintiff was not negligent.

The trial court erred in setting aside as against the weight of the evidence the jury’s finding that plaintiff was not negligent … . Although plaintiff conceded that he descended an unlighted staircase, the jury could reasonably have concluded that his decision to do so was not negligent, as plaintiff testified that he used the same staircase every night while coming home from work, and had in fact done so without incident on previous evenings when the lights were inoperative. Sanchez v New York City Tr. Auth., 2017 NY Slip Op 04899, 1st Dept 6-15-17

 

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/MUNICIPAL LAW (SLIP AND FALL, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/CIVIL PROCEDURE (SET ASIDE VERDICT, NEGLIGENCE, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/SLIP AND FALL (MUNICIPAL LAW, NEGLIGENCE, CIVIL PROCEDURE,  THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)

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THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE.

The First Department, reversing Supreme Court, determined the plaintiff’s verdict against the transit authority in this slip and fall case should not have been set aside. Plaintiff regularly used the unlighted subway stairway when he returned from work without incident. The jury, therefore, could reasonably have found plaintiff’s use of the unlighted stairway was not negligent:

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In this action for personal injuries, plaintiff alleges that he fell while descending a covered and unlit exterior subway staircase owned by defendant. The jury found that defendant was negligent in its maintenance of the lighting on the staircase, that defendant’s negligence was a substantial factor in causing plaintiff’s injuries’, and that plaintiff was not negligent.

The trial court erred in setting aside as against the weight of the evidence the jury’s finding that plaintiff was not negligent … . Although plaintiff conceded that he descended an unlighted staircase, the jury could reasonably have concluded that his decision to do so was not negligent, as plaintiff testified that he used the same staircase every night while coming home from work, and had in fact done so without incident on previous evenings when the lights were inoperative. Sanchez v New York City Tr. Auth., 2017 NY Slip Op 04899, 1st Dept 6-15-17

 

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/MUNICIPAL LAW (SLIP AND FALL, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/CIVIL PROCEDURE (SET ASIDE VERDICT, NEGLIGENCE, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/SLIP AND FALL (MUNICIPAL LAW, NEGLIGENCE, CIVIL PROCEDURE,  THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)

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ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF.

The Third Department, reversing the Court of Claims, determined claimant limited liability company’s (LLC’s) notice of claim could be amended to add an attorney’s signature. The notice of claim was timely filed pro se. The defendant argued that the failure to have the claim filed by an attorney representing the LLC violated CPLR 321 (a) and was a jurisdictional defect. The Third Department disagreed, finding the application of CPLR 321 (a) flexible and the related requirement nonjurisdictional. The court also noted that the claimant’s demand for equitable relief was not incidental to the requested monetary relief and therefore must be dismissed as beyond the jurisdiction of the Court of Claims:

… [D]efendant does not point to any service or filing provision — or any other provision — of the Court of Claims Act that prohibits claimant from pro se representation. Instead, defendant relies on CPLR 321 (a), which provides that, subject to express exceptions, a “corporation or voluntary association shall appear by attorney” to “prosecute or defend a civil action,” and “like a corporation or a voluntary association, [an] LLC may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the state of New York” … . Thus, as an initial matter, we conclude that compliance with CPLR 321 (a) does not implicate subject matter jurisdiction, as compliance with that provision is not a prerequisite to the waiver of sovereign immunity pursuant to the Court of Claims Act … . * * *

… [G]iven the flexibility of the prohibition on corporate pro se representation and the Legislature’s express intent that technical irregularities in filing are subject to correction, absent prejudice and upon just terms … we hold that, under these circumstances, the irregularity of claimant’s initial filing was one that the Court of Claims could have disregarded, given counsel’s subsequent appearance on behalf of claimant, by granting so much of claimant’s motion to amend the claim as added counsel’s signature … . Hamilton Livery Leasing, LLC v State of New York, 2017 NY Slip Op 04943, 3rd Dept 6-15-17

COURT OF CLAIMS (LIMITED LIABILITY COMPANY, EQUITABLE RELIEF, ATTORNEYS, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/CORPORATION LAW (LIMITED LIABILITY COMPANIES, COURT OF CLAIMS,  ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT)/ATTORNEYS (LIMITED LIABILITY COMPANIES, COURT OF CLAIMS, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/NOTICE OF CLAIM (COURT OF CLAIMS, LIMITED LIABILITY COMPANIES, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/EQUITABLE RELIEF (COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/CIVIL PROCEDURE (COURT OF CLAIMS, LIMITED LIABILITY COMPANIES, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/LIMITED LIABILITY COMPANIES (COURT OF CLAIMS,  ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT)

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SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE.

The Second Department, reversing Supreme Court, determined Supreme Court’s sua sponte ordering of a Frye hearing in this medical malpractice action was an impermissible avoidance of the law of the case doctrine. Another justice, in the same action, had denied the summary judgment motion brought by defendant doctor (Vartolomei). The Second Department held that Supreme Court’s ordering a Frye hearing and thereafter dismissing the complaint against Vartolomei was improper, as the hearing was used to rehear and grant the previously denied summary judgment motion:

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The general purpose of a Frye hearing is to determine whether an expert’s opinion is ” based on principles that are sufficiently established to have gained general acceptance as reliable'” … . Here, however, the overall nature of the questions posed at the hearing directed, sua sponte, by the Supreme Court, as well as statements by the court, establish that the true purpose of the hearing was not to determine whether Dr. Epstein’s opinions were based on principles that are sufficiently established to have gained general acceptance as reliable. Rather, the hearing purported to revisit the determination made in the order … denying Vartolomei’s motion for summary judgment insofar as asserted against her. In doing so, the court violated the doctrine of law of the case by completely disregarding the prior order, issued by a Justice of coordinate jurisdiction, that had concluded that triable issues of fact existed as to whether Vartolomei departed from accepted medical standards of care and whether such departures were a proximate cause of the injuries sustained by the decedent … .

Moreover, this Court has held that “[a] court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, there were no extraordinary circumstances warranting the sua sponte dismissal of the complaint insofar as asserted against Vartolomei. Aguilar v Feygin, 2017 NY Slip Op 04811, 2nd Dept 6-14-17

 

CIVIL PROCEDURE (LAW OF THE CASE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, LAW OF THE CASE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/MEDICAL MALPRACTICE (CIVIL PROCEDURE, FRYE HEARING, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/EVIDENCE (MEDICAL MALPRACTICE, FRYE HEARING,  SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/LAW OF THE CASE (MEDICAL MALPRACTICE, FRYE HEARING, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/FRYE HEARING (MEDICAL MALPRACTICE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/SUA SPONTE DISMISSAL OF COMPLAINT (MEDICAL MALPRACTICE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)

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ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED.

The First Department, over a detailed dissent which lays out the complicated facts, affirming Supreme Court (Reed, J.), determined the action by insurer’s subrogee (Nationwide) against the insured’s subrogee (US Underwriters) in this Labor Law (construction accident) action was barred by collateral estoppel and res judicata. The underlying action had settled for about $1.55 million.

FROM THE DISSENT (THE FACTS):

On or about July 9, 2001, Kerwin Park, an employee of Armadillo Construction Corp., a demolition contractor, sustained personal injuries while working on a construction site. Park commenced the underlying Labor Law action against the general contractor (Artimus) and others. Nationwide, Artimus’s insurer, tendered the defense of the action to Armadillo and Armadillo’s insurer, U.S. Underwriters; Artimus was an additional insured on the U.S. Underwriters policy. By letter dated August 31, 2001, U.S. Underwriters denied coverage to Artimus, copying the broker and Armadillo on the letter, based on late notice of occurrence and various exclusions in the policy. …[T]he underlying action settled for approximately $1.55 million. Nationwide contributed to the settlement on Artimus’s behalf. Artimus also obtained a default judgment on its third-party indemnification claim against Armadillo. … Artimus moved to restore its claims against Armadillo to the active calendar in the declaratory judgment action. In granting the motion, the court (Ramos, J.) cited to Justice Cahn’s earlier decision in the action and observed that no decision had been made concerning Armadillo’s entitlement to coverage. * * * Justice Reed granted U.S. Underwriters’ motion to dismiss the complaint, concluding that Artimus, as Armadillo’s subrogee, was collaterally estopped from bringing the instant action, because it was in privity with Armadillo, and whatever rules of collateral estoppel applied to Armadillo would also apply to Artimus (and its subrogee, Nationwide). The court found that as a consequence, Artimus was bound by Justice Cahn’s order. The court also found that the action was barred by the doctrine of res judicata.

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FROM THE MAJORITY:

… [T]he parties were afforded a full and fair opportunity to litigate the insurance coverage issues in the prior action. Nationwide is therefore collaterally estopped from litigating the same issues already decided against its subrogor, Artimus, who in turn is estopped from litigating the same issues decided against its subrogor, Armadillo, as a subrogee of the insured.

Moreover, the principles of res judicata favor defendants herein. Nationwide and Artimus seek to enforce the judgment that they were awarded against Armadillo in the third-party personal injury action. However … in the prior action the court found that the coverage exclusion with respect to the personal injury action in U.S. Underwriters policy was applicable. By bringing this action as subrogees of Artimus and Armadillo under Insurance Law § 3420, Nationwide and Artimus are essentially seeking to relitigate Artimus’s claims for coverage. “Res judicata is designed to provide finality in the resolution of disputes, recognizing that [c]onsiderations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation” … . Nationwide Mut. Ins. Co. v U.S. Underwriters Ins. Co., 2017 NY Slip Op 04774, 1st Dept 6-13-17

 

 

INSURANCE LAW (ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/CIVIL PROCEDURE (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/LABOR LAW-CONSTRUCTION LAW (INSURANCE LAW, CIVIL PROCEDURE, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/COLLATERAL ESTOPPEL (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/RES JUDICATA (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/PRIVITY (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)

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ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT.

The Fourth Department determined defendants should be sanctioned for spoliation of evidence, but that striking the answer is too severe a sanction. Plaintiff allegedly slipped and fell on stairs which were replaced by defendants at a time when plaintiff’s expert had yet to examine them. Plaintiff, however, had photographs of the stairs and was therefore able to proceed with the suit:

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… [W]e conclude that the court abused its discretion in striking defendants’ answer and granting plaintiff partial summary judgment on liability based on defendants’ destruction of the stairway … . In deciding whether to impose sanctions, and what particular sanction to impose, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness … . The burden is on the party requesting sanctions to make the requisite showing … . “It is well established that a less drastic sanction than dismissal of the responsible party’s pleading may be imposed where[, as here,] the loss does not deprive the nonresponsible party of the means of establishing his or her claim or defense’ ” … . Here, the record does not demonstrate that plaintiff has been left ” prejudicially bereft’ ” of the means of prosecuting her action … , given that plaintiff has in her possession, among other evidence of the condition of the stairs, photographs of the stairs taken after the commencement of this action. Thus, we conclude that an appropriate sanction is that an adverse inference charge be given at trial with respect to any now unavailable evidence of the condition of the stairs … . Burke v Queen of Heaven R.C. Elementary Sch., 2017 NY Slip Op 04593, 4th Dept 6-9-17

CIVIL PROCEDURE (NEGLIGENCE, SPOLIATION OF EVIDENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/NEGLIGENCE (CIVIL PROCEDURE, SPOLIATION OF EVIDENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/EVIDENCE (CIVIL PROCEDURE, NEGLIGENCE, SPOLIATION,  ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)/SPOLIATION OF EVIDENCE (CIVIL PROCEDURE, NEGLIGENCE, ALTHOUGH DEFENDANTS SHOULD BE SANCTIONED FOR REPLACING THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL, STRIKING THE ANSWER WAS TOO SEVERE, PLAINTIFF HAD PHOTOGRAPHS OF THE STAIRS AND COULD PROCEED WITH THE SUIT)

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