You are here: / Civil Procedure
,

Proper Way to Handle an Inconsistent Verdict Explained

The Second Department explained the proper procedure when a verdict is inconsistent (either have the jury reconsider the verdict or order a new trial):

“When a jury’s verdict is internally inconsistent, the trial court must direct either reconsideration by the jury or a new trial” … . Here, the jury’s verdict was internally inconsistent, as the jury attributed 10% of the fault for the plaintiff’s accident to both the plaintiff and [one of the two defendants], despite having found that their negligence was not a substantial factor in causing the accident … . The Supreme Court should have resolved the substantial juror confusion, as demonstrated by the internally inconsistent verdict, by either resubmitting the case to the jury for reconsideration or directing a new trial on the issue of liability (see CPLR 4111[c]…). Kumar v PI Assoc LLC, 2015 NY Slip Op 00849, 2nd Dept 2-4-15

 

Party Moving for a Change of Venue Must Demonstrate the Change Will Better Serve the Convenience of Material Witnesses

In affirming the denial of a motion for a change of venue, the Second Department explained the criteria:

“The party moving for a change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses would be better served by the change” … . In doing so, the moving party must set forth: (1) the names, addresses, and occupations of material witnesses, (2) the facts to which these witnesses will testify at trial, (3) a showing that those witnesses are willing to testify, and (4) a showing that those witnesses would be inconvenienced if the venue of the action was not changed … . MI v Trinity-Pawling School, 2015 NY Slip Op 00852, 2nd Dept 2-4-15


, ,

Despite Mandatory Language In the Statute Requiring that an Action Against a School District Be Brought in the County Where the School District Is Located, the Court Has the Discretion to Grant a Motion for a Change of Venue Based Upon the Convenience of Material Witnesses and the Absence of Prejudice to the School District

The Second Department determined that, despite the mandatory language of CPLR 504, a change of venue based upon the convenience of witness was appropriate in an action against a school district:

CPLR 504 provides, in relevant part, that “the place of trial of all actions against . . . school districts . . . shall be . . . in the county in which such . . . school district . . . is situated” (CPLR 504[2]…). “The purpose of CPLR 504, which applies not just to school districts but also to counties, cities, towns, and villages, is to protect municipal entities and their employees from the inconvenience of an alternative venue … . “Nevertheless, and despite the seemingly unforgiving language of the statute, venue may be changed to a non-mandated county upon a showing of special circumstances” … . The decision of whether to grant a change of venue is committed to the providently exercised discretion of the trial court … .

Here, the plaintiff established that the convenience of material witnesses and the ends of justice outweigh the asserted governmental inconvenience … . The plaintiff produced the affirmations from his treating physicians, both of whom maintain a surgical practice in Kings County, and an affidavit from an eyewitness to the accident, who resides in Kings County … . Each prospective witness disclosed the facts underlying his proposed testimony and asserted that he will be inconvenienced if the trial were conducted in Suffolk County rather than in Kings County … . The defendant, however, did not assert that any of its employees witnessed the accident … . Furthermore, the defendant failed to establish that any of its trial witnesses would be inconvenienced by traveling to Kings County. Accordingly, the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 510(3) to change the venue of the action from Suffolk County to Kings County. Xhika v Rocky Point Union Free School Dist, 2015 NY Slip OP 00874,d 2nd Dept 2-4-15


,

Four-Month Statute of Limitations Starts Running When Administrative Agency’s Policy Change Is “Readily Ascertainable,” Not When Notice of the Policy Change Is Actually Received

The Third Department explained when the four-month statute of limitations begins to run when the triggering event is a policy memorandum issued by an administrative agency:

…[B]oth the statute and case law make clear that the statute of limitations period for a CPLR article 78 proceeding begins to run when “the determination to be reviewed becomes final and binding upon the petitioner” (CPLR 217 [1]…). Such determination, in turn, “becomes ‘final and binding’ when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies. First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party” … . In the context of quasi-legislative determinations such as the one at issue here, actual notice of the challenged determination is not required in order to start the statute of limitations clock; rather, the statute of limitations begins to run once the administrative agency’s “definitive position on the issue [becomes] readily ascertainable” to the complaining party … . Matter of School Adm’rs Assn of NY State v New York State Department of Civ Serv, 2015 NY Slip Op 00676, 3rd Dept 1-29-15

 

Right-to-Intervene Criteria Explained (Criteria Not Met Here)

The Second Department described the criteria for intervening in an action (criteria not met here):

Upon a timely motion, a person is permitted to intervene in an action as of right, “1. when a statute of the state confers an absolute right to intervene; or 2. when the representation of the person’s interest by the parties is or may be inadequate and the person is or may be bound by the judgment; or 3. when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment” (CPLR 1012[a]). Additionally, upon a timely motion, the court, in its discretion, may permit a person to intervene, “when a statute of the state confers a right to intervene . . . or when the person’s claim or defense and the main action have a common question of law or fact” (CPLR 1013). In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party (see id.).  Wells Fargo Bank NA v Mazzara, 2015 NY Slip Op 00750, 2nd Dept 1-28-15

 

Cause of Action Based Upon a Legal Theory Which Could Have Been Raised in a Prior Action Stemming from the Same Events Precluded by the Doctrine of Res Judicata

The Second Department determined Supreme Court properly dismissed a cause of action which originated from the same events which gave rise to a prior action and merely relied on a different legal theory than was raised in the prior action.  The court explained the criteria for the application of the doctrine of res judicata:

” Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding'” … . “Res judicata thus operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding'” … .

The third cause of action asserted herein could have been raised in a prior action …, as it originates from the same events which gave rise to the prior action, and merely relies upon a different legal theory. Pedote v STP Assoc LLC, 2015 NY Slip Op 00738, 2nd Dept 1-28-15

 

Action Should Not Have Been Dismissed Pursuant to CPLR 3211 (a)(4)—Action Was Not “Sufficiently Similar” to Pending Action

The Second Department determined Supreme Court should not have dismissed an action pursuant to CPLR 3211 (a)(4) because the dismissed action was not “sufficiently similar” to a pending action.  The initial personal injury action stemmed from alleged Labor Law violations. The second action, alleging a fraudulent conveyance, stemmed from the defendant’s transfer of the property where plaintiff was injured:

Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed on the ground that there is another action pending between the same parties for the same cause of action … . A court may dismiss an action pursuant to CPLR 3211(a)(4) where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same … . It is not necessary that “the precise legal theories presented in the first action also be presented in the second action” … . The critical element is whether both suits arise out of the same subject matter or series of alleged wrongs … .

Here, the personal injury action and the instant action do not arise out of the same subject matter or series of alleged wrongs, and do not seek the same or substantially similar relief. The personal injury action arises from the defendants’ alleged breach of Labor Law § 200 and the common-law duty to provide a safe workplace, and their alleged violations of the safety requirements imposed on property owners by Labor Law §§ 240(1) and 241(6). The sole relief sought in the personal injury action is a money judgment for damages. The instant action arises from the post-accident transfer …, and the plaintiff seeks various relief authorized by Debtor and Creditor Law article 10, including setting aside the alleged fraudulent conveyance. Contrary to the defendants’ contention, the claims asserted in both actions are not “sufficiently similar” to warrant dismissal simply because the plaintiff raised an argument pertaining to constructive fraud as a basis for the imposition of liability … for violation of Labor Law § 240(1) in the personal injury action. Jadron v 10 Leonard St LLC, 2015 NY Slip Op 00730, 2nd Dept 1-28-15

 

,

Criteria for Denial of Coverage Based Upon Noncooperation of the Insured Party Explained/Default Judgment In Favor of Defendant American States Re: Other Defendants Did Not Preclude, Under the Doctrine of Collateral Estoppel, Plaintiff’s Direct Action Against American States

The Second Department determined a question of fact existed about whether the “noncooperation-of-an-insured-party” rationale for denying coverage applied.  The court noted that a prior default judgment in favor of defendant American States re: other defendants did not preclude, under the doctrine of collateral estoppel, plaintiff’s direct action against American States:

American States prevailed in that declaratory judgment action against the defendants in the underlying action which determined that American States is not obligated to defend and indemnify the defendants in the underlying action. However, those orders were entered upon the underlying defendants’ default, and thus, did not collaterally estop the plaintiff from bringing the instant, direct action against American States pursuant to Insurance Law § 3420(a)(2) … . …

The noncooperation of an insured party in the defense of an action is a ground upon which an insurer may deny coverage, and may be asserted by the insurer as a defense in an action on a judgment by an injured party pursuant to Insurance Law § 3420(a)(2) … . In order to establish a proper disclaimer based on its insured’s alleged noncooperation, an insurer is required to demonstrate that “it acted diligently in seeking to bring about its insured’s cooperation, that its efforts were reasonably calculated to obtain its insured’s cooperation, and that the attitude of its insured, after the cooperation of its insured was sought, was one of wilful [sic] and avowed obstruction'” … . The insurer has a “heavy” burden of proving lack of cooperation … . Here, the submissions of the American States defendants were insufficient to sustain their prima facie burden on the cross motion for summary judgment, with respect to American States. West St Props LLC v American States Ins Co, 2015 NY Slip Op 00751, 2nd Dept 1-28-15

 

, , ,

Injury Caused by Another Student In Gym Class Could Not Have Been Prevented by Supervision/Unsigned Depositions Which Were Certified by the Stenographer Should Have Been Considered by the Court

The Second Department determined summary judgment should have been granted to the defendant in an action stemming from infant-plaintiff’s participation in a gym-class basketball game.  The actions of another player, which caused the injury, could not have been prevented by supervision.  The Second Department noted that the unsigned deposition transcripts, which were certified by the stenographer, should have been considered by Supreme Court:

The Supreme Court also should have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the New York City Department of Education (hereinafter the DOE). In support of their motion, the defendants submitted the transcripts of the deposition testimony of the infant plaintiff and teachers … . While those transcripts were unsigned, they were certified by the stenographer, and the plaintiffs do not challenge their accuracy. Thus, contrary to the plaintiffs’ contention, the transcripts were admissible and should have been considered by the Supreme Court on the defendants’ motion … . This evidence demonstrated, prima facie, that the spontaneous act of the other student in grabbing the infant plaintiff’s left arm from behind and throwing or dragging him to the ground as the infant plaintiff attempted to shoot a basketball during a basketball game in gym class occurred in such a short span of time that it could not have been prevented even by the most intense supervision … . Moreover, the other student’s alleged prior conduct was insufficient to place the DOE on notice of the conduct that led to the infant plaintiff’s injury … . Thomas v City of New York, 2015 NY Slip Op 00748, 2nd Dept 1-28-15

 

,

Criteria for Collateral Estoppel Explained (Criteria Not Met Here)

The Second Department reversed Supreme Court finding that plaintiff’s housing discrimination action was not precluded by the landlord’s prior successful eviction action under the doctrine of collateral estoppel.  Although it was determined that there was a nondiscriminatory reason for the eviction, the eviction proceeding did not address issues raised in the discrimination action.  The court explained the criteria for collateral estoppel:

“The doctrine of collateral estoppel . . . precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” … . “The two elements that must be satisfied to invoke the doctrine of collateral estoppel are that (1) the identical issue was decided in the prior action and is decisive in the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to contest the prior issue” … . “Preclusive effect, however, will only be given where the particular issue was actually litigated, squarely addressed and specifically decided'” … . “Generally, for a question to have been actually litigated’ so as to satisfy the identity requirement, it must have been properly raised by the pleadings or otherwise placed in issue and actually determined in the prior proceeding'” … .

Here, while the Supreme Court and the landlords characterize the instant action as one to recover damages for “wrongful eviction,” that is not the essence of the plaintiff’s claim. Rather, the complaint alleges that, upon learning that the plaintiff suffered from a mental illness, the defendants engaged in a course of “harassment, discrimination and hostile conduct” against him that spanned several years and predated the decision to enforce the rule pertaining to carpeting of the floor against him. The prior summary proceeding did not decide whether the plaintiff was subjected to harassment based on his mental illness, whether such harassment affected a term, condition, or privilege of his housing, or any other elements of his cause of action to recover damages for housing discrimination based on disability in violation of Executive Law § 296(5) … . Curley v Bon Aire Props Inc, 2015 NY Slip Op 00718, 2nd Dept 1-28-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy