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CLASS ACTION PROPERLY CERTIFIED IN CASE ALLEGING NEGLIGENT DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE.

In an action alleging defendants negligently discharged chemicals into the atmosphere, resulting in a reduction of property values and quality of life, the Fourth Department determined a class action was properly certified. The court explained the criteria:

“[A] class action may be maintained in New York only after the five prerequisites set forth in CPLR 901 (a) have been met, i.e., the class is so numerous that joinder of all members is impracticable, common questions of law or fact predominate over questions affecting only individual members, the claims or defenses of the representative parties are typical of the class as a whole, the representative parties will fairly and adequately protect the interests of the class, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy” … . A plaintiff seeking class certification has the “burden of establishing the prerequisites of CPLR 901 (a) and thus establish[ing] . . . entitlement to class certification” … .

Although the individual class members may have sustained differing amounts of damages, it is well settled that ” the amount of damages suffered by each class member typically varies from individual to individual, but that fact will not prevent the suit from going forward as a class action if the important legal or factual issues involving liability are common to the class’ ” … . * * *

… [B]ecause “the typicality requirement relates to the nature of the claims and the underlying transaction, not the amount or measure of damages, [the fact that the class representative’s] damages may differ from those of other members of the class is not a proper basis to deny class certification” … . DeLuca v Tonawanda Coke Corp., 2015 NY Slip Op 09739, 4th Dept 12-31-15

CIVIL PROCEDURE (CLASS ACTION PROPERLY CERTIFIED DESPITE DIFFERENCES IN DAMAGES)/CLASS ACTION (PROPERLY CERTIFIED DESPITE DIFFERENCES IN DAMAGES)/NEGLIGENCE (CLASS ACTION BASED ON DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE)/ENVIRONMENTAL LAW (CLASS ACTION BASED ON DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE)

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SHERIFF IS NOT VICARIOUSLY LIABLE FOR EMPLOYEES OF THE SHERIFF’S DEPARTMENT; SHERIFF, THEREFORE, IS NOT UNITED IN INTEREST WITH THE SHERIFF’S DEPARTMENT OR THE COUNTY; RELATION-BACK DOCTRINE DOES NOT APPLY; SHERIFF CANNOT BE ADDED TO THE COMPLAINT AFTER THE STATUTE OF LIMITATIONS HAS RUN.

Plaintiff sued the county alleging plaintiff’s decedent was not properly screened and supervised when placed in the Erie County Holding Center where plaintiff’s decedent committed suicide. After the statute of limitations had run, plaintiff was allowed to add the Erie County Sheriff as a defendant. The Fourth Department reversed, explaining that the Sheriff is not vicariously liable for the actions of the Sheriff’s Department and is therefore not “united in interest” with the County/Sheriff’s Department:

In order for the relation back doctrine to apply, a plaintiff must establish that “(1) both claims arose out of [the] same conduct, transaction or occurrence, (2) the new party is united in interest with the original defendant[s], and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (3) the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well” … .

…. [Plaintiff did not satisfy the second prong, i.e., unity of interest. “In [the] context [of this case], unity of interest means that the interest of the parties in the [subject matter] is such that they stand or fall together and that judgment against one will similarly affect the other . . . Although the parties might share a multitude of commonalities, . . . the unity of interest test will not be satisfied unless the parties share precisely the same jural relationship in the action at hand . . . Indeed, unless the original defendant[s] and new [defendant] are vicariously liable for the acts of the other[,] . . . there is no unity of interest between them” … .

Here, defendant County of Erie (County) is not united in interest with the Sheriff inasmuch as the County cannot be held vicariously liable for the alleged negligent acts of the Sheriff or his deputies … . Nor is defendant Erie County Sheriff’s Department (Sheriff’s Department) united in interest with the Sheriff for purposes of the relation back doctrine. The Sheriff is not vicariously liable for the alleged negligent acts of the deputies employed at the Holding Center … . In addition, the Sheriff’s Department does not have a legal identity separate from the County … , and thus an “action against the Sheriff’s Department is, in effect, an action against the County itself” … . Given that the Sheriff and the County are not united in interest, it follows that the Sheriff and the Sheriff’s Department are not united in interest, and the court therefore erred in granting plaintiff’s motion for leave to amend the complaint to add the Sheriff as a party. Johanson v County of Erie, 2015 NY Slip Op 09736, 4th Dept 12-31-15

CIVIL PROCEDURE (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)/RELATION-BACK DOCTRINE (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)/MUNICIPAL LAW  (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)/SHERIFF  (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)

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RECORDINGS OF 911 CALLS RE: PLAINTIFF’S DECEDENT’S CAR ACCIDENT DISCOVERABLE IN A WRONGFUL DEATH ACTION.

In a matter of first impression at the appellate level, the Second Department determined the recordings of 911 calls relating to plaintiff’s decedent’s (Reece’s) car accident were discoverable. The wrongful death action was brought against the state alleging that a traffic counting device shattered when plaintiff’s decedent’s car drove over it, puncturing the gas tank and causing a fire which killed plaintiff’s decedent and two children. The claimant served a subpoena upon non-party county for the recordings and the county moved to quash the subpoena. The Second Department held that the motion to quash was properly denied:

The County moved to quash the subpoena on the ground that under County Law § 308(4), 911 recordings and documents are not discoverable by any entity or person other than certain designated public agencies and emergency medical providers. The claimant opposed the motion and thereafter moved to compel discovery of, inter alia, the 911 tapes, arguing that they were discoverable under CPLR 3101 as material and relevant matter. Specifically, the claimant argued that the material may be expected to reveal why Reece’s vehicle left the roadway, the length of time the vehicle’s occupants experienced conscious pain and suffering, and the amount of time it took for police to respond to the scene. * * *

We view the language of County Law § 308(4) as generally prohibiting entities and private individuals from accessing 911 tapes and records … . However, the statute is not intended to prohibit the disclosure of matter that is material and relevant in a civil litigation, accessible by a so-ordered subpoena or directed by a court to be disclosed in a discovery order … . Indeed, in analogous criminal practice, 911 tapes and records are frequently made available to individual defendants as part of the People’s disclosure obligations pursuant to People v Rosario (9 NY2d 286…) and are admitted at trials to describe events as present sense impressions of witnesses … , to identify perpetrators as present sense impressions … , or as excited utterances … . Clearly, the general language of County Law § 308(4), which is part of the statute governing the establishment of an emergency 911 system in various counties, cannot be interpreted as prohibiting court-ordered discovery of 911 material in civil litigation. Anderson v State of New York, 2015 NY Slip Op 09648, 2nd Dept 12-30-15

CIVIL PROCEDURE (911 TAPES DISCOVERABLE IN WRONGFUL DEATH ACTION)/MUNICIPAL LAW (911 TAPES DISCOVERABLE IN WRONGFUL DEATH ACTION)/EVIDENCE (911 TAPES DISCOVERABLE IN WRONGFUL DEATH ACTION)/NEGLIGENCE (911 TAPES DISCOVERABLE IN WRONGFUL DEATH ACTION)/WRONGFUL DEATH (911 TAPES DISCOVERABLE)/911 TAPES (DISCOVERABLE IN WRONGFUL DEATH ACTION)

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NAMING THE PRESIDENT OF AN UNINCORPORATED ASSOCIATION AS A DEFENDANT PROPERLY JOINED THE ASSOCIATION.

The Second Department determined an association was properly sued by naming the president as a defendant. An unincorporated association cannot sue or be sued solely in the association name:

An unincorporated association such as the Condominium has “no legal existence separate and apart from its individual members” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C1025:2 at 341). “Unlike a partnership, an unincorporated association may not sue or be sued solely in the association name” … . General Associations Law § 13 provides:

“An action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally.”

Thus, by commencing the action against Fogarty, as president of the Condominium, the plaintiffs joined the Condominium … . Pascual v Rustic Woods Homeowners Assn., Inc., 2015 NY Slip Op 09415, 2nd Dept 12-23-15

CIVIL PROCEDURE (UNINCORPORATED ASSOCIATION PROPERLY JOINED BY NAMING PRESIDENT AS DEFENDANT)/ASSOCIATIONS (UNINCORPORATED ASSOCIATION PROPERLY JOINED BY NAMING PRESIDENT AS DEFENDANT)

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JUDGE’S IMPROPER COMMENTS CONCERNING PLAINTIFF’S EXPERT WARRANTED A NEW TRIAL ON DAMAGES.

In finding a motion to set aside the verdict in a personal injury case should have been granted, the Second Department determined the plaintiff was entitled to a new trial on damages (in part) because of the improper comments made by the judge. The judge cast doubt on the plaintiff’s expert’s testimony:

A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice may be granted where improper comments by the trial court deprive a party of a fair trial … . “[L]itigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court” … . A trial court “has broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary” … . Nevertheless, “[a] trial judge should at all times maintain an impartial attitude and exercise a high degree of patience and forebearance. A trial judge may not so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammeled spirit necessary to effect justice” … .

Here, at the trial on the issue of damages, the plaintiff presented the expert testimony of an orthopedic surgeon who examined the injured plaintiff. Before that examining physician testified, the trial court directed plaintiffs’ counsel to ask questions in hypothetical form as to the physician’s opinion regarding prognosis and the need for future medical care, and during the physician’s direct testimony, defense counsel made a number of objections to those questions. In responding to those objections, the trial court gratuitously and repeatedly emphasized that the physician was an examining rather than treating physician and that he was only “assuming” that the injured plaintiff would need future medical care that was causally related to the accident. The record reflects that, with these repeated comments, “[t]he court conveyed an impression of incredulity” toward the physician’s opinions … . The cumulative effect of the court’s comments deprived the plaintiffs of a fair trial on the issue of damages … . Ioffe v Seruya, 2015 NY Slip Op 09407, 2nd Dept 12-23-15

CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT SHOULD HAVE BEEN GRANTED BASED ON JUDGE’S IMPROPER COMMENTS)/MOTION TO SET ASIDE VERDICT (JUDGE’S IMPROPER COMMENTS)/JUDGES (IMPROPER COMMENTS WARRANTED SETTING ASIDE DAMAGES VERDICT)

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PRINCIPAL OFFICE OF A FOREIGN LIMITED LIABILITY COMPANY, AS LISTED ON THE DEPARTMENT OF STATE APPLICATION FOR AUTHORITY TO CONDUCT BUSINESS, IS THE CONTROLLING LOCATION FOR VENUE PURPOSES.

The Second Department, reversing Supreme Court, determined that appellant’s motion for a change of venue should have been granted. Appellants demonstrated that the foreign limited liability company’s application for authority to conduct business in New York listed a principal office in New York County. Plaintiff brought the action in Queens County, alleging appellant’s principal place of business is in Queens County.  The principal office in New York County, pursuant to Limited Liability Company Law 102[s], was the controlling location for venue purposes:

Pursuant to CPLR 503(a), the venue of an action is properly placed in the county in which any of the parties resided at the time of commencement … . In support of their motion, the appellants established that QPS was a resident of New York County at the time of commencement by producing a certified copy of QPS’s application for authority to conduct business filed with the New York State Department of State, which listed New York as the county in which its principal office was located … . The plaintiff did not dispute the fact that the application for authority designated New York County as the location of QPS’s principal office, but claimed that QPS is a resident of Queens County because that is the location of its principal place of business. However, the sole residence of a foreign corporation or a foreign limited liability company for venue purposes is the county where its principal office is located as designated in its application for authority to conduct business filed with the New York State Department of State, regardless of where it transacts business or maintains its actual principal office or facility (see CPLR 503[c]…). Such office need not be a place where business activities are conducted by the limited liability company … . Carlton Group, Ltd. v Property Mkts. Group, Inc., 2015 NY Slip Op 09423, 2nd Dept 12-23-15

CIVIL PROCEDURE (VENUE, PRINCIPAL OFFICE ON DEPARTMENT OF STATE APPLICATION IS THE CONTROLLING LOCATION OF A FOREIGN LIMITED LIABILITY COMPANY FOR VENUE PURPOSES)/VENUE (FOREIGN LIMITED LIABILITY COMPANY, LOCATION OF PRINCIPAL OFFICE AS LISTED ON DEPARTMENT OF STATE APPLICATION)/LIMITED LIABILITY COMPANY, FOREIGN (FOR VENUE PURPOSES, LOCATION OF PRINCIPAL OFFICE AS LISTED ON DEPARTMENT OF STATE APPLICATION IS CONTROLLING LOCATION)

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ANALYTICAL CRITERIA FOR MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION, WHERE DEFENDANT SUBMITS EVIDENCE, CLEARLY EXPLAINED; PLAINTIFF IS NOT PENALIZED FOR NOT SUBMITTING EVIDENCE IN OPPOSITION; BURDEN NEVER SHIFTS TO PLAINTIFF.

The Second Department determined the complaint stated a cause of action for specific performance of a real estate contract. The court offered a clear explanation of the analytical criteria to be used when defendant submits evidence in support of a motion to dismiss for failure to state a cause of action. Here, the fact that plaintiff submitted no evidence in opposition was of no consequence. The evidence submitted by defendant was not sufficient to demonstrate, as a matter of law, the complaint did not state a cause of action:

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), “the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Whether a plaintiff can ultimately establish its allegations is not part of the calculus” … .

“A court is . . . permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)” … . However, “on a motion made pursuant to CPLR 3211(a)(7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party” …, and a plaintiff “will not be penalized because he [or she] has not made an evidentiary showing in support of his [or her] complaint” … . When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, “the criterion is whether the [plaintiff] has a cause of action, not whether he [or she] has stated one, and, unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate” … .

Contrary to the defendant’s contention, the complaint adequately alleged a cause of action for specific performance of a contract for the sale of real property. E & D Group, LLC v Vialet, 2015 NY Slip Op 09400, 2nd Dept 12-23-15

CIVIL PROCEDURE (MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION, BURDEN NEVER SHIFTS TO PLAINTIFF EVEN IF DEFENDANT SUBMITS EVIDENCE)/MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION (BURDEN NEVER SHIFTS TO PLAINTIFF EVEN IF DEFENDANT SUBMITS EVIDENCE)

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QUESTION OF FACT WHETHER DOCTRINE OF EQUITABLE ESTOPPEL PRECLUDED STATUTE OF LIMITATIONS DEFENSE, CRITERIA EXPLAINED.

The Second Department determined plaintiff raised a question of fact whether the doctrine of equitable estoppel precluded defendants’ statute of limitations defense. The court explained the criteria:

The doctrine of equitable estoppel will preclude a defendant from asserting the statute of limitations as a defense ” where it is the defendant’s affirmative wrongdoing . . . which produced the long delay between the accrual of the cause of action and the institution of the legal proceeding'” … . A plaintiff seeking to invoke the doctrine of equitable estoppel must “establish that subsequent and specific actions by defendants somehow kept [the plaintiff] from timely bringing suit” … . “Equitable estoppel is appropriate where the plaintiff is prevented from filing an action within the applicable statute of limitations due to his or her reasonable reliance on deception, fraud or misrepresentations by the defendant” … . Where the defendant has a fiduciary duty to the plaintiff, the doctrine of equitable estoppel may be invoked based on the defendant’s failure to disclose facts underlying the claim … . North Coast Outfitters, Ltd. v Darling, 2015 NY Slip Op 09409, 2nd Dept 12-23-15

CIVIL PROCEDURE (EQUITABLE ESTOPPEL DOCTRINE EXPLAINED)/EQUITABLE ESTOPPEL (CRITERIA EXPLAINED)

PLAINTIFF IN PERSONAL INJURY ACTION NOT REQUIRED TO DISCLOSE (1) FACEBOOK PHOTOGRAPHS SHE DID NOT INTEND TO INTRODUCE AT TRIAL AND (2) INFORMATION ABOUT POST-ACCIDENT MESSAGES.

The First Department, over an extensive dissenting memorandum by Justice Saxe, reversing Supreme Court, determined plaintiff in a personal injury action was not required to turn over to the defendant post-accident photographs of herself posted on Facebook which she does not intend to introduce at trial, and, further, plaintiff was not required to provide defendant with authorizations allowing Facebook to disclose when private messages were posted by the plaintiff after the accident and how long those messages were:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” In determining whether the information sought is subject to discovery, “[t]he test is one of usefulness and reason” … . ” It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims'” … . Discovery demands are improper if they are based upon ” hypothetical speculations calculated to justify a fishing expedition'” … .

This Court has consistently applied these settled principles in the context of discovery requests seeking a party’s social media information.  Forman v Henkin, 2015 NY Slip Op 09350, 1st Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

CIVIL PROCEDURE (DISCLOSURE OF FACEBOOK PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)/DISCLOSURE (FACEBOOK PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)/FACEBOOK (DISCLOSURE OF PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)

EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS PROPERLY CONSIDERED.

The Second Department determined Supreme Court had properly considered an affidavit submitted with the bank’s reply papers in a mortgage foreclosure action. In the answering papers, appellant claimed that the bank did not properly serve notices of default. In the reply papers, the bank submitted an affidavit demonstrating proper service. The court explained when evidence submitted in reply papers can be considered:

Although a party moving for summary judgement cannot meet its prima facie burden by submitting evidence for the first time in reply … , and generally, evidence submitted for the first time in reply papers should be disregarded by the court … , exceptions to the rule arise when the evidence submitted is in response to allegations raised for the first time in the opposition papers … . Citimortgage, Inc. v Espinal, 2015 NY Slip Op 09242,, 2nd Dept 12-16-15

CIVIL PROCEDURE (EVIDENCE IN REPLY PAPERS PROPERLY CONSIDERED)/REPLY PAPERS (EVIDENCE SUBMITTED IN REPLY PAPERS PROPERLY CONSIDERED)

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