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The Jury Should Have Been Instructed on the Res Ipsa Loquitur Doctrine—Infection Developed After Injection

The Second Department determined plaintiff’s motion to set aside the verdict should have been granted because the jury should have been instructed on the res ipsa loquitur doctrine.  Plaintiff developed an infection after a cortisone injection.  There was expert testimony that such an infection would not develop if standard procedures had been followed:

Under appropriate circumstances, the evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event (see Restatement [Second] of Torts § 328D). “Res ipsa loquitur, a doctrine of ancient origin …, derives from the understanding that some events ordinarily do not occur in the absence of negligence” … . “In addition to this first prerequisite, plaintiff must establish, second, that the injury was caused by an agent or instrumentality within the exclusive control of defendant and, third, that no act or negligence on the plaintiff’s part contributed to the happening of the event … . Once plaintiff satisfies the burden of proof on these three elements, the res ipsa loquitur doctrine permits the jury to infer negligence from the mere fact of the occurrence” … . Moreover, “expert testimony may be properly used to help the jury bridge the gap’ between its own common knowledge, which does not encompass the specialized knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence, and the common knowledge of physicians, which does .. .

Here, the plaintiff presented expert testimony that a MRSA infection from an injection does not occur if the podiatrist adheres to the accepted standard of care. Bernard v Bernstein, 2015 NY Slip Op 02084, 2nd Dept 3-18-15

 

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Corporation Is a Proper Respondent in an Article 78/Mandamus to Compel Proceeding

The Third Department determined that respondent corporation (CGFNS), which contracted with the state to provide credential verification services to the Department of Education for foreign-trained nurses, was a proper respondent in an Article 78/mandamus to compel proceeding.  The proceeding was brought by the foreign nursing school after CGFNS indicated it could not verify the school’s credentials:

CGFNS argues that it is not a “body or officer” subject to CPLR article 78 (CPLR 7802 [a]) and that it did not make a “determination” reviewable in this proceeding (CPLR 7803 [3]). CPLR 7802 (a) defines a “body or officer” against whom a CPLR article 78 proceeding may be instituted to include, as relevant here, “every court, tribunal, board, [or] corporation” (emphasis added). CGFNS is a not-for-profit corporation. Courts have recognized that corporations, both public and private, may be subject to CPLR article 78 as quasi-governmental bodies because they are “beholden to the [s]tate for their franchise or charter or the exercise of their functions” (… Siegel, NY Prac § 558 at 989; § 564 at 1001-1002 [5th ed 2011]). As a corporate entity, CGFNS is a “body or officer” subject to a writ of mandamus under CPLR article 78 (CPLR 7802 [a]; see CPLR 7803 [1], [3]…). Matter of American Univ. of Antigua v CGFNS Intl., 2015 NY Slip Op 02028, 3rd Dept 3-12-15

 

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Criteria for Balancing the Need for a Public Trial and First Amendment Rights (Freedom of the Press) With the Defendant’s Right to a Fair Trial Discussed in Some Detail—Here the Court’s Sealing of Some Records and Closures of the Courtroom Reflected a Proper Discretionary Balance

The First Department, in a detailed decision, determined Supreme Court had properly balanced the requirement that a criminal trial be open to the public and the defendant’s right to a fair trial.  Because the court properly used its discretion to balance the two concerns neither mandamus nor prohibition was an available remedy.  The decision is worth reading—many of the issues discussed are not noted here:

The First Amendment guarantees the public and the press a qualified right of access to criminal trials … . This right must be kept in balance with the compelling interest of the defendant’s Sixth Amendment right to a fair trial and the right to privacy of prospective jurors … . The public’s right of access may be limited where there is a compelling governmental interest and closure is narrowly tailored to serve that interest … .

New York’s approach to courtroom closure is “comparable to the federal analysis” … . The press is not imbued with any special right of access, and while it possesses “the same right of access as the public,” it has no right to information about a trial that is “greater” or “superior” to that of the general public … . A ” trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity'” … . Decisions to seal or disclose records fall within the inherent power of the court to control the records of its own proceedings … . While a court must guarantee that the defendant receives a fair trial, it must do so in a manner that balances the interests of “the defendant, jurors, witnesses, attorneys and the public at large” … . Matter of Daily News, L.P. v Wiley, 2015 NY Slip Op 02010, 3rd Dept 3-12-15

 

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Engineer/Engineering Firm Did Not Have Standing to Contest Variance

The Third Department determined the petitioner, Klein, an engineer who claimed to be representing neighbors opposed to a variance granted by the town zoning board, did not have standing to contest the variance:

The Town Code permits appeals by “any person aggrieved” by, among other things, the zoning administrator’s decisions (Code of the Town of Queensbury § 179-14-040 [C]). As the Town Code does not define the quoted phrase, it must be interpreted according to its plain meaning … . This language seems to be taken directly from Town Law § 267-a (4). This same phrase in that statute has been consistently interpreted to mean a person who “has sustained special damage, different in kind and degree from the community generally” … . Even without establishing an injury in fact, a person is presumed to have standing if he or she falls within the statute’s zone of interests and his or her property is sufficiently proximate to the property at issue … .

The notice of appeal to the ZBA [Zoning Board of Appeals] listed Klein’s engineering firm as the appellant and Klein as the appellant’s agent. Klein and his firm did not exhibit any specialized harm and do not own property near the Kitchens’ property. Thus, Klein does not have standing in his individual capacity or as an agent for his firm. Klein asserts that at the public hearings and in letters he identified himself as appearing on behalf of neighbors. While this is true, at no point up until the day before the hearing on his appeal did he identify who his clients were. The other petitioners involved in this appeal, who later claimed that Klein was their agent, were not listed on the notice of appeal and did not file a formal designation form naming him as their agent — as the Town generally requires — prior to the expiration of the statute of limitations for appealing an administrative determination. Under the circumstances, the ZBA did not err in finding that Klein was not a duly authorized agent of an aggrieved party during the requisite limitations period for the appeal and was not himself aggrieved, so he had no standing … . Matter of Fund for Lake George, Inc. v Town of Queensbury Zoning Bd. of Appeals, 2015 NY Slip Op 518831, 3rd Dept 3-12-15

 

“Single Motion Rule” Barred Motions to Dismiss Pursuant to CPLR 3211(a)

The Second Department determined Supreme Court properly denied motions to dismiss pursuant to CPLR 3211(a) based upon the “single motion” rule.  The defendants had made motions to dismiss certain causes of action in the original complaint.  Therefore the defendants could not make those motions again with respect to an amended complaint:

CPLR 3211(e) provides, in relevant part, that at any time before service of a responsive pleading is required, a party may move to dismiss a pleading “on one or more grounds set forth” in CPLR 3211(a), and that “no more than one such motion shall be permitted.” Accordingly, this “single motion rule prohibits parties from making successive motions to dismiss a pleading” pursuant to CPLR 3211(a) … . The rule bars both repetitive motions to dismiss a pleading pursuant CPLR 3211(a), as well as subsequent motions to dismiss that pleading pursuant to CPLR 3211(a) that are based on alternative grounds … . Here, the defendants previously moved pursuant to CPLR 3211(a) to dismiss the original complaint on the grounds that documentary evidence established a complete defense to the action (see CPLR 3211[a][1]), that the action was time-barred (see CPLR 3211[a][5]), and that the complaint failed to state a cause of action (see CPLR 3211[a][7]). * * * Accordingly, those branches of the defendants’ motion which were to dismiss … [substantially identical] causes of action in the amended complaint were procedurally barred by the single-motion rule, and were properly denied (see CPLR 3211[e]…). Bailey v Peerstate Equity Fund, L.P., 2015 NY Slip Op 01911, 2nd Dept 3-11-15

 

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Sua Sponte Rulings Do Not Become the Law-of-the-Case and Do Not Bind an Appellate Court

The Second Department noted that a sua sponte determination does not become the law-of-the-case  and does not bind the appellate court:

Supreme Court determined that, pursuant to the law-of-the-case doctrine, it was bound by the prior Supreme Court order to hold that [a nonparty] was a bona fide purchaser of the subject property. On that ground, the Supreme Court concluded that, “[h]aving failed to obtain a stay pursuant to CPLR 5519 to prevent the property from being sold, [defendant] [was] relegated to an action for money damages, and would not be able to recover the real property” … . However, since the parties had not litigated the sua sponte determination as to [the nonparty’s] status, application of the doctrine of law of the case was improper … . In any event, this Court is not bound by the Supreme Court’s prior determination finding [the nonparty] to be a bona fide purchaser and may reach the merits of that issue … . Debcon Fin. Servs., Inc. v 83-17 Broadway Corp., 2015 NY Slip Op 01920, 2nd Dept 3-11-15

 

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Motion to Set Aside Verdict Properly Denied—The Jury Determined Defendant’s Negligence Was Not the Proximate Cause of the Accident—Analytical Criteria Explained

In finding the plaintiff’s motion to set aside the verdict as contrary to the weight of the evidence was properly denied, the Second Department explained how to analyze the jury’s conclusion the defendant’s negligence was not the proximate cause of the accident:

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . “A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . “[W]here there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view” … . Moffett-Knox v Anthony’s Windows on the Lake, Inc., 2015 NY Slip Op 01929, 2nd Dept 3-11-15

 

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Jury’s Failure to Award Damages for Future Pain and Suffering Did Not Warrant Setting Aside Verdict

The Second Department determined Supreme Court should not have granted plaintiff’s motion to set aside the verdict based upon the jury’s failure to award damages for future pain and suffering.  The court explained the relevant analytical criteria:

In determining a motion pursuant to CPLR 4404(a) to set aside a verdict as against the weight of the evidence, the court must decide whether the evidence so preponderates in favor of the movant that the verdict could not have been reached upon any fair interpretation of the evidence … . Resolution of the motion does not involve a question of law, but rather requires a discretionary balancing of many factors … . Moreover, “[g]reat deference is accorded to the fact-finding function of the jury, and determinations regarding the credibility of witnesses are for the factfinders, who had the opportunity to see and hear the witnesses” … . Thus, “[w]here the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” … .

Contrary to the plaintiff’s contention, the jury’s failure to award damages for future pain and suffering was based upon a fair interpretation of the evidence presented at trial, with consideration given to the credibility of the witnesses and the drawing of reasonable inferences therefrom, and there was no basis in the record for the trial court to disturb the jury’s resolution of credibility issues against the plaintiff … . Raso v Jamdar, 2015 NY Slip Op 01934, 2nd Dept 3-11-15

 

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Plaintiff Brought a Frivolous Lawsuit Solely to Harass/Costs Properly Imposed on Plaintiff

The Second Department determined plaintiff had brought a frivolous lawsuit to harass and costs were properly imposed on the plaintiff:

A court may award a party “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct” (22 NYCRR 130.1.1[a]). “In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” (22 NYCRR 130-1.1[a]…). “[C]onduct is frivolous if . . . (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” (22 NYCRR 130-1.1[c]…). The decision whether to impose costs or sanctions against a party for frivolous conduct, and the amount of any such costs or sanctions, is generally entrusted to the court’s sound discretion … .

Here, the Supreme Court properly determined, after a hearing, that the plaintiff engaged in frivolous conduct in commencing this action, as this action is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law,” and was undertaken primarily to harass the defendants … . Strunk v New York State Bd. of Elections, 2015 NY Slip Op 01936, 2nd Dept 3-11-15

 

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Question of Fact Re: Whether the “Continuous Representation Doctrine” Tolled the Three-Year Statute of Limitations in a Legal Malpractice Action

The Second Department determined plaintiff had raised a question of fact re: whether the three-year statute of limitations in a legal malpractice action was tolled by the continuous representation doctrine. The court explained the doctrine as follows:

The three-year limitations period applicable to causes of action to recover damages for legal malpractice “may be tolled by the continuous representation doctrine where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” … . “For the doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney” … . ” One of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties'” … . Beroza v Sallah Law Firm, P.C., 2015 NY Slip Op 01913, 2nd Dept 3-11-15