Civil Procedure – Page 278 – New York Appellate Digest

NEW YORK LAW APPLIED WHERE BOTH PLAINTIFF AND HIS EMPLOYER ARE CANADIAN, PLAINTIFF, WHO WAS SHOCKED BY ELECTRIC WIRES ON THE FLOOR, ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION.

The First Department determined New York law applied here where plaintiff and plaintiff’s employer, Nygard, a third-party defendant, are Canadian and further held plaintiff was entitled to summary judgment on his Labor Law 241(6) cause of action. Plaintiff was shocked by electric wires which were on the floor of the workplace:

To the extent, if any, Manitoba law, unlike New York law, might prohibit the third-party claims asserted by defendants (both domiciled in New York) against Manitoba-domiciliary Nygard, plaintiff’s employer, the availability of a third-party claim against plaintiff’s employer is governed by the law of the place of injury — here, New York — “where the local law of each litigant’s domicile favors that party, and the action is pending in one of those jurisdictions” … . The application of New York law on this issue is appropriate because this state, where the accident occurred, “is the place with which both [defendants and Nygard] have voluntarily associated themselves” … , and “comports with the reasonable expectations of [these] parties in conducting their business affairs” … .

Plaintiff was engaged in “construction” work at the time of the incident (Labor Law § 241[6]), and Owner’s attempt to isolate the activities in which plaintiff was involved at the moment of the incident ignores the general context of the work … . Further, the record established a violation of 12 NYCRR 23-1.13(b)(4), which requires that workers who may come into contact with an electric power circuit be protected against electric shock “by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means.” That plaintiff was electrically shocked, as confirmed by another Nygard International employee, demonstrated that the circuit was not de-energized, grounded, or guarded by effective insulation. Plaintiff also established that the violation of the provision was a result of negligence … . Owner’s contention that an issue of fact exists as to plaintiff’s comparative negligence is unavailing. Plaintiff testified that he had objected to having the temporary lighting work performed in the manner that it was done, and that Nygard International’s principal overruled him. The principal’s insistence that plaintiff perform the temporary wiring work, despite plaintiff’s objections, established negligence by Nygard, for which Owner is vicariously liable … . O’Leary v S&A Elec. Contr. Corp., 2017 NY Slip Op 02888, 1st Dept 4-13-17

LABOR LAW-CONSTRUCTION LAW (NEW YORK LAW APPLIED WHERE BOTH PLAINTIFF AND HIS EMPLOYER ARE CANADIAN, PLAINTIFF, WHO WAS SHOCKED BY ELECTRIC WIRES ON THE FLOOR, ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION)/CIVIL PROCEDURE (NEW YORK LAW APPLIED WHERE BOTH PLAINTIFF AND HIS EMPLOYER ARE CANADIAN, PLAINTIFF, WHO WAS SHOCKED BY ELECTRIC WIRES ON THE FLOOR, ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION)/CHOICE OF LAW (LABOR LAW-CONSTRUCTION LAW, (NEW YORK LAW APPLIED WHERE BOTH PLAINTIFF AND HIS EMPLOYER ARE CANADIAN, PLAINTIFF, WHO WAS SHOCKED BY ELECTRIC WIRES ON THE FLOOR, ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION)

April 13, 2017

Agency, Civil Procedure, Negligence

EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE.

The First Department determined plaintiffs raised sufficient questions about whether defendant Starwood was an apparent or ostensible agent of the property owner, Sheraton, to justify further discovery and denial of defendant’s summary judgment motion as premature. Plaintiff was injured in a slip and fall on a hotel walkway alleged to be defective. Plaintiff sued Starwood. Starwood moved for summary judgment arguing the hotel was owned by Sheraton and the walkway maintenance was under the exclusive control of an independent contractor, ZLC. Plaintiffs demonstrated there was evidence Starwood held itself out as the owner of the property on its website:

Starwood demonstrated that it did not own or control the hotel, and that, under the terms of the license agreement with Sheraton, ZLC was an independent contractor and was responsible for the day-to-day operations of the hotel. Under these circumstances, even if Starwood were a party to the license (or franchise) agreement, the mere existence of a franchise relationship would not provide a basis for the imposition of vicarious liability against Starwood for the negligence of the franchisee, ZLC … .

However, in opposition, plaintiff submitted evidence that Starwood’s reservations website holds the hotel out to the public as a Starwood property, and that plaintiff relied on the representations on Starwood’s website in choosing to book a room at the hotel. This evidence of public representations and reliance may support a finding of apparent or ostensible agency, which may serve as a basis for imposing vicarious liability against Starwood … . Although the license agreement required ZLC to disclose that it was an “independent legal entity operating under license” from Sheraton and to place “notices of independent ownership” on the premises, Starwood did not provide any evidence that ZLC complied with those requirements. Stern v Starwood Hotels & Resorts Worldwide, Inc., 2017 NY Slip Op 02882, 1st Dept 4-13-17

CIVIL PROCEDURE (EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE)/AGENCY (EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE)/NEGLIGENCE (EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE)

April 13, 2017

Agency, Civil Procedure

PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED.

The First Department, over a dissent, determined plaintiffs did not demonstrate defendants were subject to long-arm jurisdiction in New York. The dissent argued jurisdiction was obtained through the activities of defendants’ New York agents. The majority held that the conclusory allegations concerning the purported agency relationship were insufficient to survive the motion to dismiss:

To establish that a defendant acted through an agent, a plaintiff must “convince the court that [the New York actors] engaged in purposeful activities in this State in relation to [the] transaction for the benefit of and with the knowledge and consent of [the defendant] and that [the defendant] exercised some control over [the New York actors]” … . “[T]]o make a prima facie showing of control, a plaintiff’s allegations must sufficiently detail the defendant’s conduct so as to persuade a court that the defendant was a primary actor’ in the specific matter in question; control cannot be shown based merely upon a defendant’s title or position within the corporation, or upon conclusory allegations that the defendant controls the corporation” … . Coast to Coast Energy, Inc. v Gasarch, 2017 NY Slip Op 02876, 1st Dept 4-13-17

CIVIL PROCEDURE (PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED)/LONG ARM JURISDICTION (PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED)/AGENCY (LONG ARM JURISDICTION, PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED)/AGENCY (PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED)

April 13, 2017

Banking Law, Civil Procedure, Debtor-Creditor

NOT CLEAR WHETHER $1740 EXEMPTION FROM A JUDGMENT CREDITOR’S RESTRAINT OF FUNDS HELD BY A BANK APPLIES TO ALL ACCOUNTS IN THE AGGREGATE OR TO EACH ACCOUNT, BANK’S MOTION TO DISMISS THE COMPLAINT ALLEGING EACH ACCOUNT MUST BE CONSIDERED SEPARATELY PROPERLY DENIED.

The Second Department determined the Bank of America’s (BOA’s) motion to dismiss a CPLR Article 52 proceeding contesting BOA’s application of the Exempt Income Protection Act (EIPA) was properly denied. The EIPA exempts $1740 in a bank account from restraint by judgment creditors. BOA aggregated the amount in all of the plaintiffs’ accounts, sent the plaintiffs $1740 and froze the rest. The plaintiffs argued the accounts should not be aggregated, rather the $1740 exemption should be applied to each account separately. The court deemed the statutory language ambiguous (the word “account,” singular, was used). The Second Department noted that Supreme Court’s conversion of the action to the correct format, a CPLR Article 52 special proceeding, was proper:

… [W]e find that CPLR 5222(i) is ambiguous as to whether it applies to an “amount” on deposit at a bank or to each “account” maintained at a bank. Turning to the legislative history of the EIPA, the bill jacket indicates that the stated legislative purpose was to create a procedure for the execution of money judgments on bank accounts containing exempt funds to ensure that debtors can keep access to exempt funds … . The legislative history, as reflected in the bill jacket, particularly in a letter in support of the bill written by the bill’s Assembly sponsor, Helene Weinstein, indicates that the statute applies to each account.

Accordingly, BOA failed to establish its entitlement to dismissal of the cause of action alleging violations of the EIPA, and that branch of its motion pursuant to CPLR 3211(a) was properly denied. Jackson v Bank of Am., N.A., 2017 NY Slip Op 02780, 2nd Dept 4-12-17

CIVIL PROCEDURE (EXEMPT INCOME PROTECTION ACT (EIPA), NOT CLEAR WHETHER $1740 EXEMPTION FROM A JUDGMENT CREDITOR’S RESTRAINT OF A FUNDS HELD BY A BANK APPLIES TO ALL ACCOUNTS IN THE AGGREGATE OR TO EACH ACCOUNT, BANK’S MOTION TO DISMISS THE COMPLAINT ALLEGING EACH ACCOUNT MUST BE CONSIDERED SEPARATELY PROPERLY DENIED)/BANKING LAW (EXEMPT INCOME PROTECTION ACT (EIPA), NOT CLEAR WHETHER $1740 EXEMPTION FROM A JUDGMENT CREDITOR’S RESTRAINT OF A FUNDS HELD BY A BANK APPLIES TO ALL ACCOUNTS IN THE AGGREGATE OR TO EACH ACCOUNT, BANK’S MOTION TO DISMISS THE COMPLAINT ALLEGING EACH ACCOUNT MUST BE CONSIDERED SEPARATELY PROPERLY DENIED)DEBTOR-CREDITOR LAW (EXEMPT INCOME PROTECTION ACT (EIPA), NOT CLEAR WHETHER $1740 EXEMPTION FROM A JUDGMENT CREDITOR’S RESTRAINT OF A FUNDS HELD BY A BANK APPLIES TO ALL ACCOUNTS IN THE AGGREGATE OR TO EACH ACCOUNT, BANK’S MOTION TO DISMISS THE COMPLAINT ALLEGING EACH ACCOUNT MUST BE CONSIDERED SEPARATELY PROPERLY DENIED)/EXEMPT INCOME PROTECTION ACT (EIPA) (NOT CLEAR WHETHER $1740 EXEMPTION FROM A JUDGMENT CREDITOR’S RESTRAINT OF A FUNDS HELD BY A BANK APPLIES TO ALL ACCOUNTS IN THE AGGREGATE OR TO EACH ACCOUNT, BANK’S MOTION TO DISMISS THE COMPLAINT ALLEGING EACH ACCOUNT MUST BE CONSIDERED SEPARATELY PROPERLY DENIED)

April 12, 2017

Civil Procedure

FAILURE TO COMPLY WITH DISCOVERY DEMANDS WARRANTED STRIKING THE ANSWER.

The Second Department determined the defendants’ repeated failure to comply with discovery demands warranted striking defendants’ answer:

The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is within the broad discretion of the motion court … . The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery is willful and contumacious … . The willful and contumacious character of a party’s conduct can be inferred from the party’s repeated failure to comply with discovery demands or orders without a reasonable excuse … .

Here, the defendants’ willful and contumacious conduct can be inferred from their repeated failures, without an adequate excuse, to comply with discovery demands and the Supreme Court’s discovery orders … . Accordingly, the court providently exercised its discretion in granting the plaintiffs’ motion pursuant to CPLR 3126 to strike the defendants’ answer and for leave to enter a default judgment against the defendants. Mears v Long, 2017 NY Slip Op 02782, 2nd Dept 4-12-17

CIVIL PROCEDURE (FAILURE TO COMPLY WITH DISCOVERY DEMANDS WARRANTED STRIKING THE ANSWER)/DISCOVERY (FAILURE TO COMPLY WITH DISCOVERY DEMANDS WARRANTED STRIKING THE ANSWER)

April 12, 2017

Civil Procedure, Education-School Law, Negligence

MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT.

The Second Department determined defendant school district’s motion to set aside the verdict in this personal injury case was properly granted. Plaintiff was a matron on a school bus. The bus suddenly stopped when a student grabbed the steering wheel and plaintiff fell. The Second Department explained the criteria for a motion to set aside a verdict as a matter of law and held the school district could not be liable unless there was a special relationship between the plaintiff and the district (no special relationship was demonstrated):

“To be awarded judgment as a matter of law pursuant to CPLR 4401, a defendant must show that, upon viewing the evidence in the light most favorable to the plaintiff, there is no rational basis by which the jury could find for the plaintiff against the moving defendant” … . “The plaintiff’s evidence must be accepted as true, and the plaintiff is entitled to every favorable inference that can be reasonably drawn therefrom” … . …

With regard to teachers, administrators, or other adults on or off school premises, a special relationship with a municipal defendant can be formed in three ways: “(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … .

A special relationship based upon a duty voluntarily assumed by the municipality requires proof of the following four elements: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … . Moreover, “[t]he assurance by the municipal defendant must be definite enough to generate justifiable reliance by the plaintiff” … . Destefano v City of New York, 2017 NY Slip Op 02626, 2nd Dept 4-5-17

NEGLIGENCE (MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT)/EDUCATION-SCHOOL LAW (MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT)/CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT)/SPECIAL RELATIONSHIP (EDUCATION-SCHOOL LAW, NEGLIGENCE, MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT)

April 5, 2017

Civil Procedure, Civil Rights Law, Immunity, Municipal Law

HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED.

The Second Department determined the defendant city’s motion to set aside the verdict as a matter of law should have been granted (criteria explained). Plaintiff, a 72-year-old woman (who was not named in the search warrant) was handcuffed while the police searched her house. Plaintiff alleged she suffered anxiety-related symptoms but no physical injury. Only the excessive force cause of action went to the jury. The Second Department held that physical injury, not emotional injury, was required, and further held that qualified immunity applied to the act of placing her in handcuffs (which was deemed reasonable):

Here, although the plaintiff did not resist or attempt to flee, the actions of the officers were reasonable given that they had reason to believe that illegal drugs were being sold from the premises, and that a known drug dealer might be present. Under the circumstances, where the police were executing a search warrant to find illegal drugs and did not know who they might encounter or whether any occupants of the house might have weapons, it was reasonable for them to handcuff the plaintiff for a few minutes until they determined that she was not a threat, notwithstanding her age at the time of the incident. …

Furthermore, a plaintiff must have sustained some injury to maintain a claim of excessive force, although that injury need not be severe … . Emotional pain and suffering cannot form the basis of an excessive force claim … . Here, the plaintiff failed to establish that she sustained any injury that resulted from the act of handcuffing her … . Boyd v City of New York, 2017 NY Slip Op 02619, 2nd Dept 4-5-17

CIVIL RIGHTS LAW (18 USC 1983) (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITYS MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/MUNICIPAL LAW (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/IMMUNITY (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/POLICE (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/EXCESSIVE FORCE (POLICE, HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)

April 5, 2017

Civil Procedure

LAWSUIT SHOULD NOT HAVE BEEN DISMISSED BASED ON THE DIAGNOSIS PLAINTIFF WAS SEVERELY MENTALLY RETARDED, HEARING ABOUT APPOINTMENT OF A GUARDIAN AD LITEM SHOULD HAVE BEEN HELD.

The Second Department determined plaintiff’s lawsuit should not have been dismissed on the ground he was severely mentally retarded. Plaintiff had not been judicially declared incompetent. Supreme Court should have held a hearing about the appointment of a guardian ad litem to aid plaintiff:

The plaintiff, who has never been judicially declared incompetent, commenced this action to recover damages for personal injuries. By way of background information, he alleged, inter alia, that he previously had been diagnosed as “severely mentally retarded,” that he receives ongoing medical and psychiatric treatment at a residential facility for the developmentally disabled, and that he is entirely dependent on others for his care. Based on these allegations, the defendants separately moved pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against each of them on the ground that the plaintiff lacked the legal capacity to sue. The Supreme Court granted the motions.

An individual who is of unsound mind, but who has not been judicially declared incompetent, may sue or be sued in the same manner as any other person… . Therefore, the Supreme Court erred in directing summary dismissal of the complaint based upon the plaintiff’s alleged lack of mental capacity. Rather, since the plaintiff may require the assistance of a guardian ad litem to protect his interests, the court should have conducted a hearing to determine whether a guardian should be appointed for the plaintiff pursuant to CPLR 1201 … . Piggott v Lifespire, Inc., 2017 NY Slip Op 02686, 2nd Dept 4-5-17

CIVIL PROCEDURE (LAWSUIT SHOULD NOT HAVE BEEN DISMISSED BASED ON THE DIAGNOSIS PLAINTIFF WAS SEVERELY MENTALLY RETARDED, HEARING ABOUT APPOINTMENT OF A GUARDIAN AD LITEM SHOULD HAVE BEEN HELD)/MENTAL RETARDATION (CIVIL PROCEDURE, LAWSUIT SHOULD NOT HAVE BEEN DISMISSED BASED ON THE DIAGNOSIS PLAINTIFF WAS SEVERELY MENTALLY RETARDED, HEARING ABOUT APPOINTMENT OF A GUARDIAN AD LITEM SHOULD HAVE BEEN HELD)/GUARDIANS (CIVIL PROCEDURE, MENTAL RETARDATION, AWSUIT SHOULD NOT HAVE BEEN DISMISSED BASED ON THE DIAGNOSIS PLAINTIFF WAS SEVERELY MENTALLY RETARDED, HEARING ABOUT APPOINTMENT OF A GUARDIAN AD LITEM SHOULD HAVE BEEN HELD)

April 5, 2017

Attorneys, Civil Procedure, Legal Malpractice, Negligence

QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY.

The Second Department, reversing Supreme Court, determined there was a question of fact whether the continuous representation doctrine rendered the legal malpractice cause of action timely. The malpractice allegation stemmed from the alleged failure of the attorneys to recognize that the sale of plaintiff’s business required the creation of a pension fund ($500,000). There was evidence a meeting was held to discuss the pension fund problem at a time which would rendered the malpractice action timely:

A claim to recover damages for legal malpractice accrues when the malpractice is committed … . “However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates” … . For the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” … .

Here, the defendant satisfied its initial burden by demonstrating, prima facie, that the alleged legal malpractice occurred more than three years before this action was commenced in March 2015 … . In opposition, however, the plaintiffs raised a question of fact as to whether the applicable statute of limitations was tolled by the continuous representation doctrine. The plaintiffs submitted Andrew Stein’s affidavit, in which he averred that he met with members of the defendant on July 26, 2012, to determine how to rectify the pension liability issue. Andrew indicated that he was not satisfied with their recommendations concerning how to rectify the issue and directed them to formulate another idea. Andrew’s affidavit was sufficient to raise a question of fact as to whether the defendant engaged in a course of continuous representation intended to rectify or mitigate the initial act of alleged malpractice … . Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP. 2017 NY Slip Op 02688, 2nd Dept 4-5-17

ATTORNEYS (QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/ATTORNEYS (LEGAL MALPRACTICE, (QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/LEGAL MALPRACTICE (QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/CIVIL PROCEDURE (LEGAL MALPRACTICE, QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)/CONTINUOUS REPRESENTATION DOCTRINE (LEGAL MALPRACTICE, QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY)

April 5, 2017

Civil Procedure, Contract Law, Negligence

RACE TRACK WAIVER OF LIABILITY INVALID, PRIMARY ASSUMPTION OF RISK NOT APPLICABLE, IMPLIED ASSUMPTION OF RISK APPLICABLE, LAW OF THE CASE DID NOT PRECLUDE DIRECTED VERDICT AFTER DENIAL OF SUMMARY JUDGMENT ON THE SAME ISSUES.

The Fourth Department, in a substantive decision dealing with several liability and damages issues not summarized here, determined the trial court properly granted plaintiff’s motion for a directed verdict finding the liability waiver invalid and the doctrine of primary assumption of risk inapplicable. The Fourth Department concluded the doctrine of implied assumption of risk was applicable, however. The Fourth Department further held that the law of the case doctrine did not preclude the court from directing a verdict in plaintiff’s favor after denying plaintiff’s motion for summary judgment on the same issues. Plaintiff’s son was in an auto race at defendant race track. Plaintiff was in the pit area when defendant driver (Holland) backed his car into plaintiff:

Contrary to defendants’ contention, the court properly granted plaintiff’s motion for a directed verdict establishing that the liability waiver was invalid and that the action was not barred by the doctrine of primary assumption of the risk, inasmuch as there was “no rational process” by which the jury could have found in favor of defendants on those issues … . With respect to the waiver, General Obligations Law § 5-326 voids any such agreement entered into in connection with, as relevant here, the payment of a fee by a “user” to enter a place of recreation. Plaintiff testified at trial that he was a mere spectator on the night of the accident, thereby establishing that he was a user entitled to the benefit of section 5-326 … , and there was no evidence from which the jury could have rationally found that plaintiff was a participant in the event whose attendance was “meant to further the speedway venture” … . …

With respect to the doctrine of primary assumption of the risk, we conclude that the risk that a pedestrian will be struck by a driver backing up in the pit area, well before the driver is participating in a race, is not inherent in the activity of automobile racing … , and thus that the doctrine is inapplicable to this case … .

We reject defendants’ further contention that the doctrine of law of the case precluded the court from directing a verdict in plaintiff’s favor after it had denied prior motions by plaintiff directed at the issues of waiver and primary assumption of the risk, including a motion for partial summary judgment. ” A denial of a motion for summary judgment is not necessarily . . . the law of the case that there is an issue of fact in the case that will be established at the trial’ “… . …

We further agree with defendants that a charge on implied assumption of the risk should have been given because there was evidence that plaintiff “disregard[ed] a known risk by voluntarily being in a dangerous area” … . Inasmuch as the jury was properly instructed on comparative negligence and apportioned 20% of the liability for the accident to plaintiff, however, we conclude that this error did not prejudice a substantial right of defendants and thus does not warrant reversal … . Knight v Holland, 2017 NY Slip Op 02525, 4th Dept 3-31-17

March 31, 2017

NEW YORK LAW APPLIED WHERE BOTH PLAINTIFF AND HIS EMPLOYER ARE CANADIAN, PLAINTIFF, WHO WAS SHOCKED BY ELECTRIC WIRES ON THE FLOOR, ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION.

EVIDENCE DEFENDANT HOTEL HELD ITSELF OUT AS THE PROPERTY OWNER ON ITS WEBSITE RAISED THE POSSIBILITY OF LIABILITY IN THIS SLIP AND FALL CASE AS THE APPARENT AGENT OF THE OWNER, SUMMARY JUDGMENT PROPERLY DENIED AS PREMATURE.

PLAINTIFFS’ CONCLUSORY ALLEGATIONS OF AN AGENCY RELATIONSHIP INSUFFICIENT TO DEMONSTRATE A BASIS FOR LONG-ARM JURISDICTION, MOTION TO DISMISS PROPERLY GRANTED.

NOT CLEAR WHETHER $1740 EXEMPTION FROM A JUDGMENT CREDITOR’S RESTRAINT OF FUNDS HELD BY A BANK APPLIES TO ALL ACCOUNTS IN THE AGGREGATE OR TO EACH ACCOUNT, BANK’S MOTION TO DISMISS THE COMPLAINT ALLEGING EACH ACCOUNT MUST BE CONSIDERED SEPARATELY PROPERLY DENIED.

FAILURE TO COMPLY WITH DISCOVERY DEMANDS WARRANTED STRIKING THE ANSWER.

MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT.

HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED.

LAWSUIT SHOULD NOT HAVE BEEN DISMISSED BASED ON THE DIAGNOSIS PLAINTIFF WAS SEVERELY MENTALLY RETARDED, HEARING ABOUT APPOINTMENT OF A GUARDIAN AD LITEM SHOULD HAVE BEEN HELD.

QUESTION OF FACT WHETHER CONTINUOUS REPRESENTATION DOCTRINE RENDERED LEGAL MALPRACTICE ACTION TIMELY.

RACE TRACK WAIVER OF LIABILITY INVALID, PRIMARY ASSUMPTION OF RISK NOT APPLICABLE, IMPLIED ASSUMPTION OF RISK APPLICABLE, LAW OF THE CASE DID NOT PRECLUDE DIRECTED VERDICT AFTER DENIAL OF SUMMARY JUDGMENT ON THE SAME ISSUES.

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