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Providing 9000 Documents Without Indicating the Specific Discovery Demands to Which the Documents Related Was Improper

The Second Department determined Supreme Court upheld the Court Referee’s determination that the plaintiff’s response to discovery demands were not adequate.  Plaintiffs had provided a flash drive with 9000 documents and without any indication which of the documents related to the various demands.  The Court Referee ordered the plaintiffs to “provide their discovery responses in a manner that allows the defendants ‘to know and understand’ which documents apply to their separate discovery demands.” H.P.S. Mgt. Co., Inc. v St. Paul Surplus Lines Ins. Co., 2015 NY Slip Op 03320, 2nd Dept 4-22-15

 

Action for a Declaratory Judgment Must Be Based Upon a Concrete Dispute, Not the Mere Possibility of Prejudice—Complaint Properly Dismissed

In finding that the action for a declaratory judgment was properly dismissed, the Second Department explained that a declaratory judgment must be based upon a concrete dispute and may not be based upon merely hypothetical prejudice to the plaintiff.  Without a concrete dispute, the action seeks an impermissible advisory opinion:

An action for a declaratory judgment must be supported by the existence of a justiciable controversy (see CPLR 3001…). There must be a genuine, concrete dispute between adverse parties, not merely the possibility of hypothetical, contingent, or remote prejudice to the plaintiff … .

Contrary to the plaintiff’s contention, it failed to allege the existence of a justiciable controversy in this case, relying instead upon a hypothetical injury which would be contingent upon the occurrence of events which may or may not come to pass at some point in the future. Accordingly, the plaintiff sought an impermissible advisory opinion, and the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211(a)(7) to dismiss the complaint … . Premier Restorations of N.Y. Corp. v New York State Dept. of Motor Vehicles, 2015 NY Slip Op 03339, 2nd Dept 4-22-15

 

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Failure to Give the “Missing Witness” Jury Instruction Required Reversal of Defense Verdict—Criteria Explained

The Second Department reversed a defense verdict in a slip and fall case. Chinsamy, the owner and operator of the defendant business which abutted the sidewalk where plaintiff slipped and fell, did not testify at trial.  He had given a deposition about his knowledge of the condition of the sidewalk, which was read to the jury by plaintiff’s counsel.  Plaintiff’s request for the missing witness jury instruction should not have been denied.  Plaintiff was entitled to the instruction even though Chinsamy’s deposition testimony was placed in evidence. The court explained the relevant “missing witness charge” criteria:

A missing witness charge “instructs a jury that it may draw an adverse inference based on the failure of a party to call a witness who would normally be expected to support that party’s version of events. . . The preconditions for this charge, applicable to both criminal and civil trials, may be set out as follows: (1) the witness’s knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the control’ of the party against whom the charge is sought, so that the witness would be expected to testify in that party’s favor; and (4) the witness is available to that party” … .

Under the circumstances, and considering Chinsamy’s unexplained failure to appear and testify at trial, the Supreme Court should have granted the plaintiff’s request for a missing witness charge … . In this regard, we note that the plaintiff’s use of Chinsamy’s deposition testimony does not constitute a waiver of her right to request a missing witness charge… . Alli v Full Serv. Auto Repair, LLC, 2015 NY Slip Op 03308, 2nd Dept 4-22-15

 

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Admissions In Hospital Records Which Contradicted Plaintiff’s Trial Testimony Properly Admitted/Seat Belt Defense Should Not Have Been Submitted to the Jury—Insufficient Foundation/”Missing Witness” Jury-Instruction Request Not Supported by a Showing the Testimony Would Be “Material” and “Noncumulative”

The Second Department determined the plaintiff’s admission, contained in the hospital records, that he was not wearing a seat belt at the time of the collision was properly admitted at trial.  Although the statement was not relevant to diagnosis or treatment, it was admissible because it contradicted plaintiff’s trial testimony (plaintiff testified he was wearing a seat belt at the time of the accident). However, Supreme Court should not have submitted the seat belt defense to the jury because there was no foundational testimony explaining precisely how wearing a seat belt would have minimized plaintiff’s injuries.  The Second Department also noted plaintiff’s request for a missing witness jury instruction was properly denied because there was no showing the witness would have provided material, noncumulative testimony:

A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule only if the entry is germane to the diagnosis or treatment of the patient … . However, if the entry is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to diagnosis or treatment, as long as there is “evidence connecting the party to the entry” … . At trial, the plaintiff testified that he was using a seat belt at the time of the accident. The hospital records containing the challenged entries clearly indicated that the plaintiff was the source of the information contained therein … . Accordingly, the challenged entries were properly admitted into evidence.

Although the Supreme Court properly declined to redact the hospital record as requested by the plaintiff, the court nonetheless erred in submitting the seat belt defense to the jury, since the defendants failed to demonstrate, by competent evidence, that the plaintiff’s injuries would have been minimized had he been wearing a seat belt at the time of the accident … . At trial, both of the plaintiff’s treating physicians testified in general terms that use of a seat belt can reduce the risk of injury. This evidence was insufficient to satisfy the defendants’ burden of proof … . Robles v Polytemp, Inc., 2015 NY Slip Op 03341, 2nd Dept 4-22-15

 

 

Evidence Which Is “Material and Necessary” in the Context of Discovery Is Much Broader in Scope than Evidence Which Is Admissible at Trial

The First Department, over a two-justice dissent, determined that Supreme Court should have allowed discovery of documents relating to a prior steam pipe explosion (in Texas) in the instant proceeding, which also involves a steam pipe explosion. Defendant Con Ed sought the records of defendant Team Industrial Services, Inc. (Team), which applied pipe sealant where both explosions occurred, alleging that the pipe sealant application caused the explosions. The dissent felt the Appellate Division should defer to Supreme Court’s finding, made after an extensive review of the Texas records, that the two incidents were not sufficiently similar to warrant discovery. The First Department explained that the criteria for the reach of discovery is broad and goes beyond what might be admissible at trial:

The words “material and necessary,” as used in CPLR 3101(a) are “to be interpreted liberally to require disclosure . . . of any facts bearing on the controversy” … . “The weight to be given evidence of other [lawsuits or claims] on the issues of notice and causation, and indeed the very admissibility of such evidence . . . are not of concern in the context of disclosure” … .

In our view, the motion court applied too harsh a standard in determining that documents concerning the prior … incident are not discoverable. We are not concerned with the ultimate admissibility of the evidence at trial, but with the discovery of information concerning the prior incident, as to which a more liberal standard applies … . Matter of Steam Pipe Explosion at 41st St. & Lexington Ave., 2015 NY Slip Op 03269, 1st Dept 4-21-15

 

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In an Appeal from an Order Made Upon Appellant’s Default, Only Matters Contested Below Can Be Heard—Here the Only Matter Contested Below Was Appellants’ Request for an Adjournment to Obtain New Counsel—Relevant Review Criteria Explained

The Second Department noted that in an appeal from an order made upon the appellant’s default, the only issues which can be reviewed are those which were contested below.  Here only appellants’ request for an adjournment to obtain new counsel was contested, therefore that was the only issue the appellate court could consider.  The court determined the denial of the adjournment request was not an abuse of discretion.  “In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors, including the merit or lack of merit of the action, the extent of the delay, the number of adjournments granted, the lack of intent to deliberately default or abandon the action, and the length of the pendency of the proceeding … .” The court noted the appellants’ lack of cooperation with their second counsel and their consent to second counsel’s being relieved:

Where, as here, the order appealed from was made upon the appellants’ default, “review is limited to matters which were the subject of contest below” … . Accordingly, in this case, review is limited to the denial of the appellants’ request for an adjournment … .

The granting of an adjournment for any purpose rests within the sound discretion of the court … , and its determination will not be disturbed absent an improvident exercise of that discretion … . In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors, including the merit or lack of merit of the action, the extent of the delay, the number of adjournments granted, the lack of intent to deliberately default or abandon the action, and the length of the pendency of the proceeding … .

Applying these principles here, the Supreme Court did not improvidently exercise its discretion in denying the appellants’ request for an adjournment to obtain new counsel after their second counsel was relieved, as second counsel requested that the appellants permit it to be relieved of the obligation of representation, based on the appellants’ lack of cooperation with second counsel, and the appellants thereupon voluntarily consented to second counsel’s request … . Hawes v Lewis, 2015 NY Slip Op 03127, 2nd Dept 4-15-15

 

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Although the Doctor Was Employed by the Hospital, His Employment Did Not Encompass His Medical Practice—Therefore the Hospital Was Not Liable for the Doctor’s Medical Malpractice Under the Doctrine of Respondeat Superior/$6.8 Million Verdict Against the Doctors Based Upon a Delay in Diagnosing Cancer Should Not Have Been Set Aside

The Second Department determined Supreme Court properly dismissed the complaint against the hospital in a medical malpractice case, but improperly set aside the $6.8 million verdict against the doctors.  Plaintiff alleged the doctors caused a 13-month delay in the diagnosis of cancer, which required her to have extensive surgery and reduced her chance of survival.  The suit against the hospital was based upon respondeat superior. However the employment contract between the doctor, Aloia, and the hospital related to duties other than Aloia’s treatment of patients.  Therefore the complaint against the hospital was properly dismissed after trial pursuant to CPLR 4401. The Second Department determined there was sufficient evidence to support plaintiff’s allegations and, therefore, the verdict against the doctors should stand.  “…[T]here was a valid line of reasoning and permissible inferences from which the jury could have rationally concluded that the physician defendants departed from good and accepted medical practice, and that the delay in diagnosing the injured plaintiff’s cancer proximately caused her to have a worsened prognosis or decreased 10-year survival rate:”

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 doctrine of respondeat superior renders an employer vicariously liable for a tort committed by an employee while acting within the scope of employment. The general rule is that an employee acts within the scope of his employment when he is acting in furtherance of the duties owed to the employer and where the employer is or could be exercising some degree of control, directly or indirectly, over the employee’s activities” … . Although the issue is usually a factual issue for the jury, “[w]here the proof on the issue of control presents no conflict in evidence or is undisputed, the matter may properly be determined as a matter of law” … .

Here, there was no real dispute as to the employment arrangement between Aloia and [the hospital] as set forth in the clear and unambiguous employment contract … . Aloia’s employment contract permitted him to maintain his private practice in endocrinology, as well as internal medicine and bone densitometry, outside of his employment with [the hospital]. * * *

“A motion for judgment as a matter of law pursuant to CPLR . . . 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party” … . “In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'” … . Luna v Spadafora, 2015 NY Slip Op 03134, 2nd Dept 4-15-15

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Failure to Submit Lease to Show No Contractual Obligation to Remove Ice And Snow Precluded Summary Judgment to Defendant Out-of-Possession Landlord—Evidence First Submitted in Reply Papers Properly Not Considered

The Second Department determined defendant out-of-possession landlord was not entitled to summary judgment in a slip and fall case because it did not submit the lease and therefore did not demonstrate the absence of any obligation to remove ice and snow.  The court noted that it could not consider evidence presented for the first time in reply papers:

An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct” … . Here, the plaintiff did not allege that the landlord’s duty was statutory or based on a course of conduct. Thus, to prevail on its motion, [defendant] was required to demonstrate, prima facie, that it had not retained control over the premises, or that it had no contractual duty to remove snow and ice from the area where the plaintiff allegedly slipped and fell. [Defendant] failed to sustain this burden because it failed to submit a copy of the lease between it and the entity that was the tenant of the subject premises at the time of the accident … .  Poole v MCPJF, Inc., 2015 NY Slip Op 03142, 2nd Dept 4-15-15

 

CIVIL PROCEDURE A Stay Which Was to Last “45 Days from the Service” of an Order Never Expired Because the Order Was Never Served/Argument that the Stay Never Started Because the Order Was Not Served Rejected

While defendant’s motion for summary judgment was pending, plaintiff’s counsel moved to withdraw. The motion was granted and the court ordered the case stayed “for 45 days from the service…” of the order dismissing plaintiff’s attorney.  Plaintiff was not served with the order and defendant’s summary judgment motion was subsequently granted in plaintiff’s absence.  The First Department determined that the orders issued pursuant to the summary judgment motion were a nullity.  The 45 day stay never expired because the order granting the stay was never served on the plaintiff.  The defendant’s argument that the stay never started because the order was not served was rejected:

After his former counsel was granted leave to withdraw, the action was stayed by court order and operation of CPLR 321(c). Because Plaintiff was never served with the order dismissing his attorney, the 45 day stay never expired. Defendant cannot avoid the stay by arguing that it did not go into effect until served on plaintiff, since the failure to serve the order cannot accrue to defendant’s benefit.  Matos v City of New York, 2015 NY Slip Op 03074, 1st Dept 4-14-15

 

Although the Agreements at Issue Set Up an Investment Fund (Targeting Brazil) in the Cayman Islands, the Fact that the Agreements Were Negotiated, Drafted and Executed in New York Conferred Personal Jurisdiction Over the Defendant Fund

The First Department, in a full-fledged opinion by Justice Acosta, over a partial dissent, determined that the complaint should not have been dismissed for lack of personal jurisdiction over the defendant investment fund.  Although the agreements in question set up the investment fund in the Cayman Islands, targeting investments in Brazil, the agreements were negotiated, drawn up and executed in New York.  Because the claims arose “from defendants’ transaction of business in New York, CPLR 302(a)(1) confer[red] personal jurisdiction over defendants.” The court explained that “[d]etermining whether long-arm jurisdiction exists under the “transacts business” provision of CPLR 302(a)(1) … is a two-pronged inquiry: “a court must decide (1) whether the defendant transacts any business in New York and, if so, (2) whether [the] cause of action aris[es] from such a business transaction” … . [In addition] [t]he assertion of personal jurisdiction must … be predicated on a defendant’s “minimal contacts” with New York to comport with due process … :”

Under New York’s long-arm jurisdiction statute, “a court may exercise personal jurisdiction over any non-domiciliary . . . who . . . transacts any business within the state” (CPLR 302[a][1]). “By this single act statute . . . proof of one transaction in New York is sufficient to invoke jurisdiction . . . so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” … . Determining whether long-arm jurisdiction exists under the “transacts business” provision of CPLR 302(a)(1), therefore, is a two-pronged inquiry: “a court must decide (1) whether the defendant transacts any business in New York and, if so, (2) whether [the] cause of action aris[es] from such a business transaction” … . “In effect, the arise-from’ prong limits the broader transaction-of-business’ prong to confer jurisdiction only over those claims in some way arguably connected to the transaction” … .

The assertion of personal jurisdiction must also be predicated on a defendant’s “minimal contacts” with New York to comport with due process … . This requires an examination of the “quality and the nature of the defendant’s activity” and a finding of “some act by which the defendant purposefully avails itself of the privilege of conducting activities within [New York], thus invoking the benefits and protection of its laws” … . * * *

… [P]laintiff alleges that Citibank’s lawyers drafted the documents in New York. … “[T]he nature and purpose of a solitary business meeting conducted for a single day in New York may supply the minimum contacts necessary to subject a nonresident participant to the jurisdiction of our courts” … . [The drafting of the agreements] was not a “purely ministerial” act of merely executing a contract in New York that had been negotiated elsewhere, which would likely be insufficient to confer personal jurisdiction … . * * *

Finding that New York courts have personal jurisdiction over defendants in this case also comports with due process. “So long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there, due process is not offended if that party is subjected to jurisdiction . . . …. . Such is the case before us. Defendants had sufficient minimum contacts with New York by purposefully entering the state to negotiate and execute contracts … . Wilson v Dantas, 2015 NY Slip Op 03088, 1st Dept 4-14-15

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