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Disclosure of Appraisal Documents Not Entitled to Conditional Immunity Even If Prepared Solely for Litigation/No Other Way for Claimants to Obtain Relevant Evidence

In a matter related to the taking of property for the construction of a highway, the Third Department determined the claimants were entitled to an appraisal done by the defendants, even if the documents were prepared solely in anticipation of litigation.  The claimants demonstrated that they had no other avenue to obtain the evidence relevant to their claims:

Even if the documents were prepared solely in anticipation of litigation, claimants demonstrated that the conditional immunity should not prevent disclosure because they have a substantial need and an inability to otherwise obtain the documents.  … The Court of Claims … acknowledged that the subpoenaed documents were relevant to the claim for property damage, to prove the condition of the property immediately before the construction.  Thus, even if the documents were drafted solely for litigation purposes, the appraisal and supporting documents would be subject to disclosure based on claimants’ substantial need and their lack of another source for that proof (see CPLR 3101 [d] [2]). Lerner v State of New York, 516774, 3rd Dept 1-9-14

 

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Rear-End Collision: No Rational Process By Which Jury Could Have Found Plaintiff Negligent

The Second Department determined there was no rational process by which the jury could have found the plaintiff negligent in a rear-end collision case.  Plaintiff’s CPLR 4401 motion for judgment as a matter of law should have been granted. The plaintiff was stopped to allow a pedestrian, who had run in front of the vehicle, to cross.  The defendant acknowledged that he took his eyes off the road briefly to look at the pedestrians and then struck the rear of plaintiff’s car:

” A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision'” … . Moreover, although the issue of comparative fault generally presents a question of fact …, that issue should be submitted to a jury “only where there is a triable issue of fact as to whether the frontmost driver also operated his or her vehicle in a negligent manner” … .

Here, viewing the evidence in the light most favorable to the defendant, there is no rational process by which the jury could find that the defendant had a nonnegligent explanation for the accident, or that the plaintiff was, to any extent, at fault in the happening of the accident. Clarke v Phillps, 2013 NY Slip Op 08585, 2nd Dept 12-26-13

 

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Criteria for Pre-Action Disclosure and Defamation Explained

The Second Department determined that a request for pre-action disclosure of the name of an anonymous blogger (whom petitioners alleged posted defamatory remarks during an election campaign) should not have been granted.  Pre-action disclosure should only be allowed when the petitioner has alleged facts indicating the existence of a cause of action.  Here the facts alleged did not make out a cause of action for defamation:

Before an action is commenced, “disclosure to aid in bringing an action” may be obtained by court order (CPLR 3102[c]), including “discovery in order to obtain information relevant …to determining who should be named as a defendant” … . A petition for pre-action discovery limited to obtaining the identity of prospective defendants should be granted where the petitioner has alleged facts fairly indicating that he or she has some cause of action …

Contrary to the Supreme Court’s determination, the petitioners failed to allege facts fairly indicating that they have a cause of action to recover damages for defamation based on the two posts at issue by the blogger Q-Tip. “The elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se” … . “In determining whether a complaint states a cause of action to recover damages for defamation, the dispositive inquiry is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the plaintiff”… . Further, “[a] false statement constitutes defamation per se when it charges another with a serious crime or tends to injure another in his or her trade, business, or profession” … .

Here, given the context in which the challenged statements were made, on an Internet blog during a sharply contested election, a reasonable reader would have believed that the generalized reference to “downright criminal actions” in a post entitled “Would You Buy A Used Car From These Men?” was merely conveying opinion, and was not a factual accusation of criminal conduct … . Further, the petitioners failed to demonstrate that the remaining portions of the challenged statements by Q-Tip constituted defamation per se… .  Matter of Konig v CSC Holdings LLC, 2013 NY Slip Op 08632, 2nd Dept 12-26-13

 

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Defendant Estopped from Claiming He Was Not Properly Served Because He Never Notified DMV of His Change of Address

The Second Department determined the defendant, who brought a motion to vacate a default judgment in an automobile-accident case, was estopped from claiming he was not properly served because he never notified the Department of Motor Vehicles of his change of address:

Since the respondent failed to notify the DMV of his change of residence, as required by Vehicle and Traffic Law § 505(5), he was estopped from raising a claim of defective service … . Accordingly, that branch of the respondent’s motion which was pursuant to CPLR 5015(a)(4), based on lack of personal jurisdiction, should have been denied. Likewise, the respondent was not entitled to relief pursuant to CPLR 5015(a)(1), based upon excusable default; the respondent’s purported change of residence is not a reasonable excuse, because he failed to comply with Vehicle and Traffic Law § 505(5) … .

Moreover, the respondent was not entitled to relief pursuant to CPLR 317, since his failure to receive notice of the summons was a deliberate attempt to avoid such notice… . Canales v Flores, 2013 NY Slip Op 08584, 2nd Dept 12-26-13

 

 

Criteria for “Insanity Toll” of Statute of Limitations Pursuant to CPLR 208 Not Met

The Second Department determined the “insanity toll” of a statute of limitations (CPLR 208) did not apply to plaintiff’s decedent, and the lawsuit was therefore time-barred.  Plaintiff alleged plaintiff’s decedent was unable to protect his legal rights when he was hospitalized:

CPLR 208 provides, in pertinent part, that where the plaintiff is suffering from the disability of insanity at the time the cause of action accrues, the statute of limitations is extended “by the period of disability.” The toll for insanity applies “to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society,” and should be narrowly interpreted … . “The provision of CPLR 208 tolling the Statute of Limitations period for insanity, a concept equated with unsoundness of mind, should not be read to include the temporary effects of medications administered in the treatment of physical injuries” … . Further, the fact that the plaintiff’s decedent was able to retain an attorney, and arrange for the service of notices of claim during his hospital stay, indicated that he was not mentally incapacitated during that period… . Thompson v Metropolitan Transp Auth, 2013 NY Slip Op 08614, 2nd Dept 12-26-13

 

Dismissal for Failure to Show Up at a Conference with the Judge Constituted a Dismissal for Neglect to Prosecute within the Meaning of CPLR 205/2008 Amendment to CPLR 205 Did Not Apply Retroactively

In a full-fledged opinion by Justice Dickerson, the Second Department determined the plaintiffs could not recommence a lawsuit which was dismissed pursuant to 22 NYCRR 202.27 when the plaintiffs failed to show up at a conference with the judge. CPLR 205 precludes the recommencement of a lawsuit dismissed for neglect to prosecute. In 2008 CPLR 205 was amended to require the judge to put on the record the specific conduct constituting neglect and to specify that the conduct involved a general pattern of delay.  In order for the plaintiffs to prevail in their attempt to restart the suit, the 2008 amendment would have to be deemed to apply retroactively.  The Second Department determined that the dismissal for failure to show up at the conference was a dismissal for neglect to prosecute, and the 2008 amendment did not apply retroactively. Therefore the plaintiffs attempt to restart the suit failed:

…[W]e conclude that the prior action commenced by the plaintiffs was dismissed for failure to prosecute. We further conclude that the 2008 amendment to CPLR 205(a) is not to be applied retroactively and, thus, the plaintiffs may not avail themselves of the saving provision of CPLR 205(a) regardless of whether the Supreme Court set forth in the record the specific conduct constituting the plaintiffs’ neglect to prosecute or evidence that the plaintiffs were engaged in a general pattern of delay. Marrero v Nails, 2013 NY Slip Op 08599, 2nd Dept 12-26-13

 

 

French Court Never Had Personal Jurisdiction Over New York Defendant/Service Not Accomplished In Accordance with Hague Convention

The Second Department determined a foreign (French) judgment could not be enforced in New York because the plaintiff did not demonstrate the French court had personal jurisdiction over the defendant.  The defendant was not served in the French action in accordance with the Hague convention:

…[A] foreign country judgment is not conclusive, and thus may not be recognized, if (1) it was “rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law” or (2) “the foreign court did not have personal jurisdiction over the defendant” (CPLR 5304[a][1]…). A plaintiff seeking enforcement of a foreign country judgment bears the burden of making a prima facie showing that the mandatory grounds for nonrecognition do not exist … .

Here, the plaintiff failed to make a prima facie showing that the Superior Court of Paris had personal jurisdiction over the defendant. Pursuant to the Hague Convention, service in a signatory country may be made, inter alia, “by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory” (20 UST 361[5][a]). In the United States, the methods prescribed for service under the Hague Convention are set forth in Rule 4(e)(1) and (2) of the Federal Rules of Civil Procedure … . Rule 4(e)(1) authorizes service to be made by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made,” and Rule 4(e)(2) sets forth three specific authorized methods of service. …[P]laintiff submitted the affidavit of a process server indicating that service was effected by delivering the writ of summons to a person of suitable age and discretion at the defendant’s place of business in New York. Delivery of the summons to a person of suitable age and discretion at the defendant’s actual place of business is a state law method of service authorized by CPLR 308(2), and thus permissible under Rule 4(e)(1). However, CPLR 308(2) additionally requires that the summons be mailed to either the defendant’s last known address or actual place of business, and personal jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been complied with … . Since the affidavit of the plaintiff’s process server did not aver that the writ of summons was additionally mailed to the defendant, it was insufficient to establish, prima facie, that service was properly effected pursuant to CPLR 308(2) …, and therefore conformed to Rule 4(e)(1). Daguerre, S.A.R.L. v Rabizadeh, 2013 NY Slip Op 08587, 2nd Dept 12-26-13

 

Untimely Summary Judgment Motion Denied—No Showing of Good Cause for the Delay/Motion Was Mislabeled as a Cross Motion

In a full-fledged opinion by Justice Feinman, over a dissent, the First Department determined an untimely motion for summary judgment was properly denied because there was no explanation for the delay.  The court noted the motion was mislabeled as a cross-motion because it did not address the issues raised in the original motion, but rather addressed the allegations in the complaint:

Brill v City of New York (2 NY3d 648 [2004]) addressed the “recurring scenario” of litigants filing late summary judgment motions, in effect “ignor[ing] statutory law, disrupt[ing] trial calendars, and undermin[ing] the goals of orderliness and efficiency in state court practice” (2 NY3d at 650). Brill holds that to rein in these late motions, brought as late as shortly before trial, CPLR 3212(a) requires that motions for summary judgment must be brought within 120 days of the filing of the note of issue or the time established by the court; where a motion is untimely, the movant must show good cause for the delay, otherwise the late motion will not be addressed … .  * * * Brill draws a bright line based on the two elements of CPLR 3212(a): the statutorily imposed or court-imposed deadlines for filing summary judgment motions, and the showing of good cause by a late movant in order for its motion to be considered. * * *

We do not hold that when a summary judgment motion is filed past the deadline, the court must automatically reject it. Rather, we enforce the law as written by the legislature, and as explained in Brill. It is up to the litigant to show the court why the rule should be flexible in the particular circumstances, or, in the words of the statute, that there is “good cause shown” for the delay. * * *

To the extent [the] motion was directed at the complaint, as opposed to any cross claims …, and was not made returnable the same day as the original motion, it was not a cross motion as defined in CPLR 2215. The rule is that a cross motion is an improper vehicle for seeking relief from a nonmoving party… . Kershaw v Hospital for Special Surgery, 2013 NY Slip Op 08548, 1st Dept 12-24-13

 

 

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Defendant-Doctor in a Medical Malpractice Action May Be Questioned (by the Plaintiff) As an Expert About His Own Treatment of Plaintiff

The Third Department determined (1) the defendant doctor in a medical malpractice action can be deposed as an expert (by the plaintiff)  with respect to his treatment (the doctor was asked whether the treatment as described in the records deviated from the standard of care); (2) the defendant doctor must answer the question whether he has given any statements to a quality assurance committee, even though the statements themselves would be privileged; (3) substantial changes to deposition testimony in an errata sheet would be allowed, but, based on the substantive nature of the changes, further deposition of the witness was appropriate as well.  With respect to questioning the defendant doctor as an expert about his own treatment, the court wrote:

In the context of a medical malpractice action, the Court of Appeals has held that “a plaintiff . . . is entitled to call the defendant doctor to the stand and question him [or her] both as to his [or her] factual knowledge of the case (that is, as to his [or her] examination, diagnosis, treatment and the like) and, if he [or she] be so qualified, as an expert for the purpose of establishing the generally accepted medical practice in the community” … .  Thus, although “one defendant physician may not be examined before trial about the professional quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness[,] [w]here . . . the opinion sought refers to the treatment rendered by the witness, the fact that it may also refer to the services of a codefendant does not excuse the defendant witness from [being deposed] as an expert” … . Lieblich … v Saint Peter’s Hospital of the City of Albany…, 516736, 3rd Dept 12-19-13

 

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Motion to Renew Based Upon New Evidence Should Have Been Granted/Request to Depose Knowledgeable Witnesses In Addition to the Witnesses Initially Provided by the Municipality Should Have Been Granted

The Third Department determined a motion to renew based upon newly discovered evidence and a motion to depose additional knowledgeable witnesses (from the municipality) should have been granted:

To be entitled to renewal, plaintiffs were required to provide new facts that would change the prior determination as well as a justifiable excuse for not providing such facts earlier (see CPLR 2221 [e] [2], [3]…).  “While we generally decline to disturb the decision to grant or deny a motion to renew, we will do so if there was an abuse of discretion” … . * * *

Renewal of that part of plaintiffs’ motion which sought the production of knowledgeable witnesses should have, to a large extent, also been granted.  “While a municipality, in the first instance, has the right to determine which of its officers or employees with knowledge of the facts may appear for an examination before trial, a plaintiff may demand the production of additional witnesses, upon a showing that the representative already deposed had insufficient knowledge or was otherwise inadequate”… . Hurrel-Harring… v State of New York…, 517132, 3rd Dept 12-19-13

 

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