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CRITERIA FOR ATTORNEY WORK-PRODUCT PRIVILEGE, WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY, AND SPOLIATION OF EVIDENCE CLEARLY EXPLAINED.

The Second Department determined: (1) information procured by an attorney’s freedom of information law requests was not protected by work-product privilege; (2) defendants’ conduct during discovery was not willful and contumacious; and (3) an adverse inference instruction was an appropriate sanction for spoliation of evidence. The Second Department offered detailed summaries of the criteria for work-product privilege, sanctions for conduct during discovery, and spoliation of evidence which are worth reading. With respect to attorney work-product privilege, the court wrote:

The CPLR exempts attorney work product from disclosure … . However, “the party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation or constitutes attorney work product bears the burden of demonstrating that the material it seeks to withhold is immune from discovery by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” … . Furthermore, “[n]ot every manifestation of a lawyer’s labors enjoys the absolute immunity of work product. The exemption should be limited to those materials which are uniquely the product of a lawyer’s learning and professional skills, such as materials which reflect his [or her] legal research, analysis, conclusions, legal theory or strategy” … .

Here, the plaintiffs contend that materials obtained by their attorney via requests pursuant to state and federal freedom of information laws are privileged attorney work product. However, this material cannot be characterized as being “uniquely the product of [the plaintiffs’ counsel’s] learning and professional skills” or as reflecting his “legal research, analysis, conclusions, legal theory or strategy” … . Cioffi v S.M. Foods, Inc., 2016 NY Slip Op 05741, 2nd Dept 8-10-16

 

ATTORNEYS (CRITERIA FOR ATTORNEY WORK-PRODUCT PRIVILEGE, WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY, AND SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)/PRIVILEGE (ATTORNEY WORK PRODUCT PRIVILEGE CRITERIA EXPLAINED)/WORK PRODUCT (ATTORNEY WORK PRODUCT PRIVILEGE CRITERIA EXPLAINED)/CIVIL PROCEDURE (WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY, AND SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)/DISCOVERY (CIVIL, CRITERIA FOR FINDING WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY CLEARLY EXPLAINED)/EVIDENCE (CIVIL, CRITERIA FOR SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)/SPOLIATION (CRITERIA FOR SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)

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ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED.

The Second Department determined summary judgment in this Labor Law 240(1) and 241(6) action should not have been awarded to plaintiff. Although plaintiff had made out a prima facie case against defendant YAM, the motion was premature in that plaintiff had not yet been deposed:

… [T]he plaintiff made a prima facie showing that YAM failed to provide him with adequate safety devices, as required by Labor Law § 240(1), and that this violation of the statute was a proximate cause of the accident … . The plaintiff also made a prima facie showing that he was injured while he was engaged in an activity covered under Labor Law § 241(6), that there was a violation of an applicable provision of the Industrial Code, and that the violation was a proximate cause of the accident … .

Nonetheless, the plaintiff’s motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against YAM was premature since there has been almost no discovery in the case and the plaintiff has not been deposed. In the absence of such discovery, YAM’s ability to defend is impaired, since it is limited to the plaintiff’s own unchallenged account of the accident, set forth in the affidavit he submitted in support of his motion for summary judgment, and YAM has not had an opportunity to explore potential defenses … . Churaman v C&B Elec., Plumbing & Heating, Inc., 2016 NY Slip Op 05703, 2nd Dept 8-3-16

CIVIL PROCEDURE (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED)/SUMMARY JUDGMENT (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED)/LABOR LAW-CONSTRUCTION LAW (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED)

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WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT.

The Second Department, in a full-fledged opinion by Justice Balkin, determined, where liability is conceded by stipulation, prejudgment interest runs from the date of the subsequent damages verdict, not the date of the stipulation. Here the damages trial was held 2 1/2 years after the stipulation was entered. Had liability been determined by “verdict, report or decision,” interest would have run from the liability determination:

When the determinations of liability and damages are made together, the computation of prejudgment interest under CPLR 5002 is straightforward … . When, however, the determinations of liability and damages are bifurcated, the general rule is that prejudgment interest under CPLR 5002 runs from the date of the “verdict, report or decision” as to liability, rather than from the date of the “verdict, report or decision” as to damages … . * * *

Stipulations are different. They are not adjudications made by a third party, but voluntary agreements, or contracts, by which the opposing parties themselves chart their own course in a way that makes sense for them… . * * *

Clearly, the Legislature did not expressly include stipulations in CPLR 5002. Had the Legislature wished to include stipulations, it easily could have done so, as it has in other statutes… . Mahoney v Brockbank, 2016 NY Slip Op 05630, 2nd Dept 7-27-16

 

CIVIL PROCEDURE (WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)/NEGLIGENCE (PREJUDGMENT INTEREST, WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)/PREJUDGMENT INTEREST (WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)/INTEREST (PREJUDGMENT INTEREST, WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)/DAMAGES (PREJUDGMENT INTEREST, WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT)

PROPER VENUE FOR CONSOLIDATED ACTIONS STARTED IN DIFFERENT COUNTIES IS THE COUNTY WHERE THE FIRST ACTION WAS STARTED.

The Second Department determined the proper venue for consolidated actions which had been started in different counties was the county in which the first action was started:

… [I]n the absence of special circumstances, where the actions have been commenced in different counties, venue should be placed in the county having jurisdiction over the action commenced first … . Since venue properly lies in Richmond County with respect to this action, the first of the three subject actions to be commenced, venue of the action commenced in the Supreme Court, Kings County, and venue of the action commenced in the Civil Court, Queens County, should have been transferred to Richmond County. Oboku v New York City Tr. Auth., 2016 NY Slip Op 05635, 2nd Dept 7-27-16

CIVIL PROCEDURE (PROPER VENUE FOR CONSOLIDATED ACTIONS STARTED IN DIFFERENT COUNTIES IS THE COUNTY WHERE THE FIRST ACTION WAS STARTED)/VENUE (PROPER VENUE FOR CONSOLIDATED ACTIONS STARTED IN DIFFERENT COUNTIES IS THE COUNTY WHERE THE FIRST ACTION WAS STARTED)

ISSUE WHICH WAS NOT RAISED IN THE PRIOR FEDERAL ACTION BUT WHICH CONSTITUTED A COMPLUSORY COUNTERCLAIM UNDER FEDERAL LAW BARRED IN SUBSEQUENT STATE ACTION UNDER DOCTRINE OF RES JUDICATA.

The First Department determined the doctrine of res judicata prohibited litigation in state court of an issue which was not raised but which constituted a compulsory counterclaim in the prior federal action:

 

… [T]he Court of Appeals has provided clear guidance on this issue in Gargiulo v Oppenheim (63 NY2d 843, 845 [1984]), stating in dicta, “For purposes of the disposition of this appeal we assume, without deciding, that under the procedural compulsory counterclaim rule in the Federal Courts (FRCP rule 13[a] [in 28 USC, Appendix]) claim and issue preclusion would extend to bar the later assertion in the present State court action of a contention which could have been raised by way of a counterclaim … . … [W]e conclude that the later assertion in a state court action of a contention that constituted a compulsory counterclaim (FRCP rule 13[a]) in a prior federal action between the same parties is barred under the doctrine of res judicata … . Paramount Pictures Corp. v Allianz Risk Transfer AG, 2016 NY Slip Op 05618, 1st Dept 7-21-16

CIVIL PROCEDURE (ISSUE WHICH WAS NOT RAISED IN THE PRIOR FEDERAL ACTION BUT WHICH CONSTITUTED A COMPLUSORY COUNTERCLAIM UNDER FEDERAL LAW BARRED IN SUBSEQUENT STATE ACTION UNDER DOCTRINE OF RES JUDICATA)/RES JUDICATA (ISSUE WHICH WAS NOT RAISED IN THE PRIOR FEDERAL ACTION BUT WHICH CONSTITUTED A COMPLUSORY COUNTERCLAIM UNDER FEDERAL LAW BARRED IN SUBSEQUENT STATE ACTION UNDER DOCTRINE OF RES JUDICATA)/COUNTERCLAIMS (RES JUDICATA, ISSUE WHICH WAS NOT RAISED IN THE PRIOR FEDERAL ACTION BUT WHICH CONSTITUTED A COMPLUSORY COUNTERCLAIM UNDER FEDERAL LAW BARRED IN SUBSEQUENT STATE ACTION UNDER DOCTRINE OF RES JUDICATA)

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MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY.

The Second Department determined a debtor’s membership in a limited liability company can be reached by a judgment creditor. The court further determined that a remedy other than the assignment of the membership interest to the creditor was properly fashioned by Supreme Court:

In considering the remedies available to a judgment creditor such as the petitioner under CPLR article 52, the Supreme Court was not limited to considering the petitioner’s request for an order assigning to him [the debtor’s membership interest in the LLC. CPLR 5240, which was relied upon by the Supreme Court, provides, in pertinent part, that a court “may at any time, on its own initiative or the motion of any interested person, and upon such notice as it may require, make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure” … . This section grants the Supreme Court broad discretionary power to alter the use of procedures set forth in CPLR article 52 … . Limited Liability Company Law § 607 expressly provides that, on an application by a judgment creditor of a member of an LLC, “the court may charge” the debtor’s membership interest “with payment of the unsatisfied amount of the judgment with interest,” and “[t]o the extent so charged, the judgment creditor has only the rights of an assignee of the membership interest.” Thus, CPLR 5240 and Limited Liability Company Law § 607 give the court discretion, in an appropriate case, to issue a charging order instead of, inter alia, an order assigning or turning over the judgment debtor’s membership interest in an LLC to the judgment creditor … . Matter of Sirotkin v Jordan, LLC, 2016 NY Slip Op 05576, 2nd Dept 7-20-16

DEBTOR-CREDITOR (MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY)/CIVIL PROCEDURE (DEBTOR-CREDITOR, MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY)/LIMITED LIABILITY COMPANY (DEBTOR-CREDITOR, MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY)

UNTIMELY MOTION TO INTERVENE SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined a motion to intervene in a foreclosure action was untimely and should have been dismissed. The potential intervenor (Shelepers) knew of the foreclosure action at the time the property was transferred to it but waited four months to bring the motion:

Intervention under CPLR 1012 and 1013 requires a timely motion … . Here, Shelepers purchased the subject property with the knowledge that this foreclosure action was pending, and yet it waited over four months before seeking leave to intervene. Under the circumstances of this case, Shelepers’ motion for leave to intervene in the action was untimely … . Castle Peak 2012-1 Loan Trust v Sattar, 2016 NY Slip Op 05111, 2nd Dept 6-29-16

CIVIL PROCEDURE (UNTIMELY MOTION TO INTERVENE SHOULD NOT HAVE BEEN GRANTED)/INTERVENE, MOTION TO (UNTIMELY MOTION TO INTERVENE SHOULD NOT HAVE BEEN GRANTED)

PLAINTIFF NEED NOT SHOW BOTH A JUSTIFIABLE EXCUSE AND A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR NEGLECT TO PROCEED.

The Second Department, reversing Supreme Court, determined the action should not have been dismissed pursuant to CPLR 3216 for neglect to proceed. The court noted that plaintiff need not show both and justifiable excuse and meritorious cause of action to avoid dismissal:

CPLR 3216 is “extremely forgiving” … in that it “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed” … . While the Supreme Court is prohibited from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a potentially meritorious cause of action … , a dual showing of justifiable excuse and meritorious cause of action is not strictly necessary for a plaintiff to avoid dismissal of the action … . Bell v United Parcel Serv., Inc., 2016 NY Slip Op 05110, 2nd Dept 6-29-16

CIVIL PROCEDUR (NEGLECT TO PROCEED, PLAINTIFF NEED NOT SHOW BOTH A JUSTIFIABLE EXCUSE AND A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR NEGLECT TO PROCEED)/NEGLECT TO PROCEED (PLAINTIFF NEED NOT SHOW BOTH A JUSTIFIABLE EXCUSE AND A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR NEGLECT TO PROCEED)/CPLR 3216 (NEGLECT TO PROCEED, PLAINTIFF NEED NOT SHOW BOTH A JUSTIFIABLE EXCUSE AND A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR NEGLECT TO PROCEED)

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DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE, RELEVANT LAW CLEARLY EXPLAINED.

The First Department determined the trial court correctly found sanctions should be imposed on plaintiff (Arbor) for spoliation of evidence, but the dismissal of the complaint was too severe. The court offered a clear explanation of the relevant law:

“Failures which support a finding of gross negligence, when the duty to preserve electronic data has been triggered, include: (1) the failure to issue a written litigation hold []; (2) the failure to identify all of the key players and to ensure that their electronic and other records are preserved; and (3) the failure to cease the deletion of e-mail” … . Here, the motion court correctly determined that Arbor’s destruction of evidence was, at a minimum, gross negligence, since Arbor failed to institute a formal litigation hold until approximately two years after even Arbor admits it had an obligation to do so. The minutes further reveal the extent to which Arbor failed to identify all of the key players in the loan transaction, and failed to preserve their electronic records. Where, as here, the spoliation is the result of the plaintiff’s intentional destruction or gross negligence, the relevance of the evidence lost or destroyed is presumed … . Plaintiff failed to rebut this presumption. Accordingly, the motion court properly determined an appropriate sanction should be imposed on plaintiff. However, the sanction must reflect “an appropriate balancing under the circumstances,” … . Generally, dismissal of the complaint is warranted only where the spoliated evidence constitutes “the sole means” by which the defendant can establish its defense … , or where the defense was otherwise “fatally compromised” … or defendant is rendered “prejudicially bereft” of its ability to defend as a result of the spoliation … . The record upon renewal does not support such a finding, given the massive document production and the key witnesses that are available to testify … . Accordingly, an adverse inference charge is an appropriate sanction under the circumstances … . Arbor Realty Funding, LLC v Herrick, Feinstein LLP, 2016 NY Slip Op 05065, 1st Dept 6-28-16

CIVIL PROCEDURE (DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE, RELEVANT LAW CLEARLY EXPLAINED)/EVIDENCE (CIVIL, DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE, RELEVANT LAW CLEARLY EXPLAINED)/SPOLIATION (DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE, RELEVANT LAW CLEARLY EXPLAINED)

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STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE.

The Fourth Department, over an extensive dissent, determined striking defendant's answer in this slip and fall case was too severe a sanction for failing to preserve evidence, i.e., surveillance tapes:

… [W]e agree with plaintiff that a sanction was warranted inasmuch as defendant “wilfully fail[ed] to disclose information” that the court had ordered to be preserved (CPLR 3126). Nevertheless, we conclude that the court abused its discretion in striking defendant's answer and affirmative defenses. 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” … . Indeed, we note that the record does not demonstrate that the plaintiff has been ” prejudicially bereft' ” of the means of prosecuting his action … . Thus, we conclude that an appropriate sanction is that an adverse inference charge be given at trial with respect to the unavailable surveillance footage … . Sarach v M&T Bank Corp., 2016 NY Slip Op 04820, 4th Dept 6-17-16

NEGLIGENCE (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/CIVIL PROCEDURE (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/EVIDENCE (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/SLIP AND FALL  (STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES IN THIS SLIP AND FALL CASE)/SURVEILLANCE TAPES (SLIP AND FALL, STRIKING ANSWER TOO SEVERE A SANCTION FOR FAILING TO PRESERVE SURVEILLANCE TAPES)

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