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Including “Statute of Limitations” in a Catch-All Paragraph Listing Many Affirmative Defenses Did Not Provide Plaintiff with Sufficient Notice—At a Bare Minimum, the Duration of the Relevant Statute of Limitations, Six Years Here, Should Be Pled

The First Department, in a full-fledged opinion by Justice Acosta, with an extensive concurrence, determined that the inclusion of the “statute of limitations” in a catch-all paragraph listing many affirmative defenses did not provide sufficient notice to the plaintiff.  In addition to failing to separately number and plead each affirmative defense (as required by the CPLR) the defendant failed to plead what the applicable statute of limitations (six years here) was. The court criticized a Court of Appeals case which said that simply mentioning the “statute of limitations” as an affirmative defense is sufficient notice—the First Department specifically suggested that the Court of Appeals revisit the issue. The court held that the plaintiff was prejudiced by the failure to plead the applicable (six-year) statute of limitations because the issue was not directly addressed during discovery as a result of the insufficient notice.  Supreme Court’s grant of summary judgment to the defendant was reversed on the merits (competing expert affidavits raised questions of fact). The defendant was allowed to replead the affirmative defense and the plaintiff was allowed further discovery on the issue:

The result of defendant’s failure to comply with CPLR 3014 is that its statute of limitations defense lay buried within a paragraph of mostly irrelevant, and conclusory, defenses. Although plaintiff could have moved to compel separate numbering …, it was not required to make such a motion because defendant’s answer did not necessitate a responsive pleading (see CPLR 3018; CPLR 3024). Thus, plaintiff cannot be forced to accept the defective answer simply because it declined to make a motion to compel separate numbering.

Further, we have no doubt that defendant was permitted to plead its affirmative defenses hypothetically — which it apparently attempted to do by “reserving” those defenses unto itself — but only insofar as those defenses were concise, separately numbered, and sufficiently stated (CPLR 3013; CPLR 3014). A permissive hypothetical pleading does not extend so far as to authorize a defendant to plead each and every affirmative defense that might exist without regard to its relevance to the cause(s) of action presented by the complaint. Permitting such conduct here would effectively sanction deception on the part of defendant, whether intentional or not, thereby avoiding the CPLR’s notice requirement. In other words, defendant’s formulation of its laundry list of defenses in hypothetical terms does not exempt it from the other requirements of CPLR 3014.

The question, therefore, becomes one of prejudice. That is, the CPLR directs us to construe a defendant’s answer liberally and disregard defects unless a substantial right of the plaintiff would be prejudiced (see CPLR 3026). This must be done in light of the overarching directive that the CPLR “be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding” (CPLR 104). “[W]e must literally apply the mandate [to construe pleadings liberally] as directed and thus make the test of prejudice one of primary importance” … . * * *

It seems clear that a court cannot require a level of particularity beyond that outlined by the Official Forms; to do so would contravene CPLR 107’s command that pleadings that comply with the forms are sufficient as a matter of law … . Thus, the most that a court could require of a defendant pleading the statute of limitations is to state the applicable period of limitations, as set forth in Official Form 17. We acknowledge that Official Form 17 establishes a ceiling, not a floor. To be sure, a defendant whose answer pleads the “statute of limitations” and includes the applicable period of limitations will necessarily be in compliance with the official form, and courts must deem that pleading sufficient pursuant to CPLR 107 and CPLR 3013. Scholastic Inc. v Pace Plumbing Corp., 2015 NY Slip Op 03489, 1st Dept 4-28-15

 

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Special Proceedings, Here a Motion to File a Late Notice of Claim, Are Subject to the Same Standards and Rules as Motions for Summary Judgment—Supreme Court Should Not Have Considered New Evidence Presented for the First Time in Reply Papers

In finding that plaintiff’s motion to file a late notice of claim should not have been granted (inadequate excuse for delay, misrepresentations made to the court), the First Department explained that Supreme Court should not have considered matters raised for the first time in petitioner’s reply papers.  The court noted that special proceedings are subject to the same standards and rules as those applied to summary judgment motions:

As a matter of procedure, the motion court erred in entertaining arguments advanced for the first time in petitioners’ reply papers and in accepting their offer of new proof, unnecessarily protracting summary proceedings. As succinctly stated by this Court:

“It is settled that a special proceeding is subject to the same standards and rules of decision as apply on a motion for summary judgment, requiring the court to decide the matter upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised'” … .

We further held that where, as here, a petition is unsupported by sufficient evidentiary proof, the petitioning party will not be entitled to remedy those deficiencies …, thereby extending a procedure providing for summary disposition through “unnecessary and unauthorized elaboration” … . We have consistently stated that in proceedings subject to summary determination, no consideration is to be accorded to novel arguments raised in reply papers … . That this Court may, in the exercise of discretion, entertain such arguments upon review … does not endorse the unnecessary extension of summary proceedings. Under these circumstances, it was improvident to excuse petitioners’ deceit and grant their application to serve a late notice of claim. Matter of Gonzalez v City of New York, 2015 NY Slip Op 03467, 1st Dept 4-28-15

 

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Declaratory Judgment Action Is the Appropriate Vehicle for Challenging a County Law—The Legislative Body Which Enacted the Law Is a Necessary Party

In the course of determining an Article 78 petition which, in part, alleged that the Westchester County Human Rights Law violated state law, the Second Department noted that the challenge must be made in a declaratory judgment proceeding.  The court could not convert the proceeding to one for a declaratory judgment because it did not have jurisdiction over all of the necessary parties—specifically the legislative body which enacted the challenged law:

…[T]he petitioners are, in effect, seeking a declaration that certain sections of the Westchester County Human Rights Law violate State law. However, the petitioners are not entitled to such relief. “A declaratory judgment action is the proper vehicle for challenging the validity of a legislative enactment” … . Pursuant to CPLR 103(c), this Court has the power to convert a proceeding into an action. However, that power is conditioned upon this Court having jurisdiction over all of the necessary parties … . “In a declaratory judgment action challenging a local law or ordinance, the legislative body that enacted the challenged local law or ordinance is a necessary party” … . Since the Westchester County Board of Legislators was not named as a party or joined in this proceeding, this Court cannot exercise its authority pursuant to CPLR 103(c) … . Matter of Hoffmann Invs. Corp. v Ruderman, 2015 NY Slip Op 03361, 2nd Dept 4-22-15

 

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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