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Failure to File Retainer Agreement In Medical Malpractice Action Remedied Nunc Pro Tunc

The Second Department determined Supreme Court correctly granted leave to file a retainer agreement in a medical malpractice action, nunc pro tunc.  The attorney (Siegel) was the second attorney retained in the matter (to handle the trial).  After the case settled, the second attorney sued the first (Glassman) over the amount of the fee.  The second attorney (Siegel) , however, had not filed a retainer agreement and made a motion to file late:

Every attorney practicing law in the Second Judicial Department who is retained with respect to, inter alia, a medical malpractice action must file a retainer statement with the OCA within 30 days after being retained … . Additionally, every “attorney retained by another attorney, on a contingent fee basis, as trial or appeal counsel or to assist in the preparation, investigation, adjustment or settlement of any such action, claim or proceeding shall, within 15 days from the date of such retainer, sign personally and file with the [OCA] a written statement of such retainer” (22 NYCRR 691.20[a][3]). Filing a retainer statement with the OCA is a condition precedent to the receipt of a fee for any case to which 22 NYCRR 691.20 applies … . Attorneys failing to correctly file a retainer statement with the OCA pursuant to 22 NYCRR 691.20 are precluded from asserting breach of contract causes of action for outstanding fees, and are limited to suit in quantum meruit … . However, a late filing of a retainer statement is sufficient to preserve an attorney’s right to recover fees where that attorney first obtains leave of court to file the statement nunc pro tunc … .

In exercising its discretion to extend the time to file the subject retainer statement pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the person opposing the motion … . Here, the reason for the delay, in effect, Siegel’s law office failure, was an isolated, inadvertent mistake … and there is no prejudice to Glassman… . Siracusa v Fitterman, 2013 NY slip Op 07025, 2nd Dept 10-30-13

 

Vacation of a Note of Issue Does Not Constitute Marking Off the Calendar/One Year Automatic Dismissal Did Not Apply

In affirming Supreme Court’s granting of plaintiff’s motion to restore a Labor Law action, the Second Department explained that vacating a note of issue does not constitute “marking off” or “striking” from the calendar under CPLR 3404:

CPLR 3404 states, in relevant part:

“[a] case . . . marked off’ or struck from the calendar or unanswered [*2]on a clerk’s calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.”

The vacatur of a note of issue, as was done in this case on September 11, 2008, returns the case to pre-note of issue status. It does not constitute a marking “off” or striking the case from the court’s calendar within the meaning of CPLR 3404 … . Thus, contrary to the defendant’s contention, the one-year period under CPLR 3404 for automatic dismissal did not start to run on September 11, 2008, when the note of issue was vacated, and the case was not properly dismissed on that date under CPLR 3404. Accordingly, the plaintiff was not required to establish his entitlement to restoration of the action under that statute… . Montalvo v Mumpus Restorations, Inc, 2013 NY Slip Op 07017, 2nd Dept 10-30-13

 

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Affirmative Defense Waived by Absence from Initial Answer May Be Included in Amended Answer.

he Second Department determined a “lack of standing” defense to a mortgage foreclosure action, although initially waived by its absence from the pleadings, could be added in an amended answer:

Leave to amend a pleading “shall be freely given” (CPLR 3025[b]), provided that the amendment is not palpably insufficient as a matter of law, does not prejudice or surprise the opposing party, and is not patently devoid of merit … . The decision of whether to allow an amendment is committed “almost entirely to the [motion] court’s discretion” … . “Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine” … .

Although …the homeowner defendants…waived the defense of lack of standing by failing to assert it as an affirmative defense in their initial answer (see CPLR 3211[e]), this defense can nevertheless be interposed by leave of court pursuant to CPLR 3025(b) so long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay… .  HSBC Bank v Picarello, 2013 NY Slip Op 07011, 2nd Dept 10-30-13

 

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Grant of Writ of Prohibition Reversed—Criteria for Writ Explained

Supreme Court granted a writ of prohibition finding the state police did not have the legal authority to seize cigarettes purchased by a Nebraska Indian tribe from a manufacturer located on the St. Regis Mohawk Indian Reservation in St. Lawrence County.  The cigarettes did not have state tax stamps.  The Third Department reversed describing the relevant analysis as follows:

Pursuant to well-established law, a CPLR article 78 proceeding for a writ of prohibition is an extraordinary remedy … that “lies only where there is a clear legal right to such relief, and only when [the body or officer involved] acts or threatens to act without jurisdiction in a matter . . . over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” (…see also CPLR 7803 [2]).  Even where such a proceeding is permissible, the court has the discretion to deny the issuance of a writ of prohibition after considering such factors as “‘the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal or at law or in equity and the remedial effectiveness of prohibition if such an adequate remedy does not exist'”… .

…[P]etitioner failed to prove the absence of other avenues of relief that would adequately address the challenged seizure of the cigarettes… . * * *

…[P]etitioner failed to establish a clear entitlement to a writ of prohibition.  As relevant here, Tax Law § 471 (1) imposes “a tax on all cigarettes possessed in the state by any person for sale,” except under circumstances where “this state is without power to impose such tax” (Tax Law § 471 [1]; see 20 NYCRR 74.1 [a] [1]).4  All cigarettes within the state are presumed to be subject to tax unless “the contrary is established,” with the burden of proof of nontaxibility falling upon the person in possession of the cigarettes (Tax Law § 471 [1]).  In claiming that the sale here was not a taxable event, petitioner relies upon regulations which provide that no tax may be imposed on cigarettes sold to an out-of-state purchaser (see 20 NYCRR 74.1 [c] [4]; 76.1 [a] [1]). However, the same regulations that establish such exemption also require that all out-of-state sales be made by a duly licensed cigarette agent and that a certificate be obtained from the out-of-state purchaser showing that the cigarettes “will be immediately removed from the State to an identified location for such purposes and that such cigarettes shall not be returned to the State for sale or use herein” (20 NYCRR 76.3 [b] [emphasis added]).

…[P]etitioner has produced no evidence that the cigarettes would not be reintroduced into the state.   In fact, respondents submitted evidence in the form of, among other things, petitioner’s corporate shipment records and a statement by the driver of the truck, which suggest that petitioner regularly transports back into the state cigarettes purchased from the same manufacturer involved here.  HCI Distribution, Inc v NYS Police…, 516040, 3rd Dept 10-24-13

 

Case Brought by UK Citizen Re: Death in Dubai Dismissed on Forum Non Conveniens Grounds

Over a substantial dissent, the Second Department affirmed Supreme Court’s grant of a dismissal motion on forum non conveniens grounds.  Plaintiff’s decedent died of Legionnaire’s disease after staying in defendant’s hotel in Dubai.  The only connection with New York was defendant’s global headquarters in White Plains. The plaintiffs were citizens of the UK:

The doctrine of forum non conveniens permits a court to stay or dismiss an action when, although it may have jurisdiction over a claim, the court determines that “in the interest of substantial justice the action should be heard in another forum” (CPLR 327[a]…). A defendant bears the burden on a motion to dismiss on the ground of forum non conveniens to “demonstrate relevant private or public interest factors which militate against accepting the litigation” … . “On such a motion, the Supreme Court is to weigh the parties’ residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system” … . “No one factor is dispositive” … . “The Supreme Court’s determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors” … . Boyle v Starwood Hotels & Resorts Worldwide, Inc, 2013 NY Slip Op 06830, 2nd Dept 10-23-13

 

Plaintiff Cannot Proceed With Case Taking a Position Different from That Taken in a Prior Action

The First Department determined plaintiff could not proceed with her discrimination action against an organization (ECEC) which had agreed to hire her because there had been a determination in another discrimination action that she was employed by the defendant (East Bronx Day Care) in that action.  The court explained the doctrine of judicial estoppel:

The doctrine of judicial estoppel prevents a party who assumed a certain position in a prior proceeding and secured a ruling in his or her favor from advancing a contrary position in another action, simply because his or her interests have changed … . Also known as the “doctrine of estoppel against inconsistent positions” …, the doctrine “rests upon the principle that a litigant should not be permitted to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise” … . Applying this doctrine, we find that plaintiff has failed to show that she was “qualified” for the ECEC position, as required to make out a prima facie case of discrimination since plaintiff is judicially estopped from denying that, at the time she was allegedly discriminated against by defendants, she was actually employed with East Bronx Day Care, which would make it impossible for her to carry out her duties for defendants. Becerril v City of New York Dept of Health & Mental Hygiene, 2013 NY Slip Op 06783, 1st Dept 10-17-13

 

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Eliot Spitzer, Former New York Attorney General, Was a Necessary Party in FOIL Proceeding Seeking His Private Emails In Connection With Civil Enforcement Action against AIG Chief Financial Officer

Petitioner, former Chief Financial Officer of AIG, was the subject of a civil enforcement action against him brought in 2005 by then Attorney General Eliot Spitzer.  Supreme Court granted petitioner’s Freedom of Information Law (FOIL) request for access to private emails of Spitzer.  The Third Department determined that, given the nature of the documents requested, and Spitzer’s current status as a private person, he was a necessary party to the action:

Since at this juncture the object of this proceeding is Spitzer’s private email account(s), and the outcome of this appeal could be a directive to respondent to gain access to and review those private accounts, Spitzer would certainly be “inequitably affected by a judgment in th[is] [proceeding]” and “ought to be [a] part[y] if complete relief is to be accorded between the persons who are parties to [this proceeding]” (CPLR 1001 [a]).  As such, Spitzer is a necessary party herein … .  While not raised directly by the parties, “the court may at any stage of a case and on its own motion determine whether there is a nonjoinder of necessary parties” … .  “The rule . . . insures fairness to third parties who ought not to be prejudiced or ’embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard'” … .

In this matter, resolution of the disputed FOIL demand directly impacts the personal property of Spitzer, now a private citizen who is not before this Court and whose significant private rights and property cannot be said to be protected by the current respondent, which admittedly does not represent Spitzer’s private interests.  However, “[t]his [C]ourt has previously held that a court may not, on its own initiative, add or direct the addition of a party” (…see CPLR 1003).  Accordingly, the matter must be remitted to Supreme Court to order Spitzer to be joined if he is subject to the jurisdiction of the court and, if not, to permit Spitzer’s joinder by stipulation, motion or otherwise and, “if joinder cannot be effectuated, the court must then determine whether the [proceeding] should be permitted to proceed in the absence of necessary parties”… .  Matter of Smith v NYS Office of the Attorney General, 515758, 3rd Dept 10-17-13

 

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Stay During Appellate Process Expires Five Days After Court of Appeals Denies Leave to Appeal

A police officer was dismissed from the force just before his retirement pension vested. The dismissal was vacated by Supreme Court because of flaws in serving the officer with notice of the charges.  The First Department affirmed and the Court of Appeals denied leave to appeal.  The First Department noted that the stay of the proceedings which was in effect during the appeals process (CPLR 5519(a)) terminated five days after the Court of Appeals denied leave (CPLR 5519(e)(ii)).  The commissioner’s failure to hold a new hearing and issue a new dismissal order within thirty days of the denial of leave resulted in the automatic vesting of the officer’s pension. Matter of Toolasprashad v Kelly, 2013 NY Slip Op 06772, 1st Dept 10-17-13

 

Second Summary Judgment Motion Properly Denied—Not Based on Newly Discovered Evidence

The Second Department affirmed Supreme Court’s denial of a motion for summary judgment because it was the second such motion and, although it included new deposition testimony, it did not include evidence that met the definition of “newly discovered:”

“Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause” … . Although, in this context, newly discovered evidence may consist of “deposition testimony which was not elicited until after the date of a prior order denying an earlier motion for summary judgment” …, such evidence is not “newly discovered” simply because it was not submitted on the previous motion …. Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means… . Vinar v Litman, 2013 NY Slip Op 06675, 2nd Dept 10-16-13

 

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Ad on Internet, Together With Communications With Florida Medical Group, Did Not Confer Long-Arm Jurisdiction Over the Group in a Malpractice Action Based On Surgery Done in Florida

In a full-fledged opinion by Justice Sgroi, over two dissenters, the Second Department determined that an ad on the Internet by a Florida medical group (LSI) and the group’s website, together with communications between the New York plaintiff and the Florida group, were insufficient to provide New York with long-arm jurisdiction over a medical malpractice case brought by the plaintiff who had undergone surgery in Florida:

…[I]t is not the number of contacts which is determinative of whether a defendant purposely availed itself of the benefits and privileges of conducting business in New York. Each jurisdictional inquiry pursuant to CPLR 302(a)(1) will turn upon the examination of the particular facts of the case, “[a]nd although determining what facts constitute purposeful availment’ is an objective inquiry, it always requires a court to closely examine the defendant’s contacts for their quality” .. . “Purposeful activities are those with which a defendant, through volitional acts avails itself of the privilege of conducting activities with the forum State, thus invoking the benefits and protections of its laws” … . “Whether a non-domiciliary has engaged in sufficient purposeful activity to confer jurisdiction in New York requires an examination of the totality of the circumstances” … .

In the case at bar, the “totality of circumstances” does not provide the plaintiff with a basis for imposing long-arm jurisdiction over the defendants. Initially, we note that personal jurisdiction cannot be based upon LSI’s website, since, as far as the record reveals, this website was informational only and, thus, “passive” in nature. There is no indication that the website permitted a user thereof to purchase any goods or services from LSI, that it contained any online form application process, or that it allowed any interaction through the site … . “When a website is passive . . . plaintiffs may have to prove something more’ to justify the exercise of personal jurisdiction–that is, plaintiffs must show that defendant purposefully (albeit electronically) directed his activity in an substantial way to the forum state'” … .

This Court has also recently held that such a passive website, without more, cannot be used as the basis for the assertion of long-arm personal jurisdiction. Paterno v Laser Spine Inst, 2013 NY Slip Op 06669, 2nd Dept 10-16-13

 

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