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Nature of Declaratory Judgment and Doctrine of Ripeness Explained

In affirming the result in an Article 78/declaratory judgment proceeding which unsuccessfully challenged the Department of Environmental Conservation’s finding that petitioner had violated statutory and regulatory provisions relating to the application of pesticide, the Fourth Department explained the principles underlying a declaratory judgment action and the doctrine of ripeness:

Petitioners sought a declaration of the rights of the parties with respect to a 2002 consent order, and also sought further declarations that petitioners had the right to obtain waivers of the right to notification of the approximate dates upon which petitioners would apply products to the property of other customers. Pursuant to CPLR 3001, “[t]he supreme court may render a declaratory judgment . .. as to the rights and other legal relations of the parties to a justiciable controversy.” “A declaratory judgment action thus ‘requires an actual controversy between genuine disputants with a stake in the outcome,’ and may not be used as ‘a vehicle for an advisory opinion’ ” … . Here, the court, with the consent of the DEC, dismissed all charges related to alleged violations of the 2002 consent order, and thus no active controversy remained with respect to it.  *  *  *

The test for ripeness is well settled, to wit, a determination must be final before it is subject to judicial review (see CPLR 7801 [1]). “In order to determine whether an agency determination is final, a two-part test is applied. ‘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 prevented or significantly ameliorated by further administrative action or by steps available to the complaining party’ ” … .  Matter of Green Thumb Lawn Care, Inc v Iwanowicz…, 372, 4th Dept, 6-7-13

 

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Past Psychological Records Deemed Relevant in Lead-Paint Injury Case Where Psychological Injury Alleged

In a lead-paint injury case, the Fourth Department determined medical records regarding psychological injury stemming from a sexual assault were discoverable because the plaintiff alleged psychological injury associated with exposure to lead paint.  The Court ordered an in camera inspection of the records to weed out irrelevant information.  Dominique D. v Koerntgen…, 512, 4th Dept, 6-7-13

 

Motion to Resettle Explained

In determining petitioner’s motion was not a motion to resettle because it sought to amend, rather than merely clarify, a judgment, the Third Department explained:

[A motion to resettle] is designed “not for substantive changes [in, or to amplify a prior decision of, the court], but to correct errors or omissions in form, for clarification or to make the [judgment] conform more accurately to the decision”…. Such  motions  rest on  the inherent power  of courts to  “‘cure mistakes,  defects  and  irregularities that  do  not  affect substantial rights of [the] parties'”…. Here, petitioners’ motion  sought, unsuccessfully, to amplify and substantively amend, not merely to clarify, Supreme Court’s prior judgment … .  Matter of Torpey v Town of Colonie, 515902, 3rd Dept,. 6-6-13

 

Forum Non Conveniens Doctrine Applied

In affirming the dismissal of a complaint on forum non conveniens grounds [after noting the first inquiry must be whether the court has jurisdiction over the parties], the First Department wrote:

“The applicability of foreign law is an important consideration in determining a forum non conveniens motion and weighs in favor of dismissal”… .. The question of whether defendants’ corporate veils should be pierced will be determined by the laws of each defendant’s state of incorporation… . That means that a New York court will have to apply the laws of Samoa, Hong Kong, and Canada.  The witnesses and documents required to show that defendants are alter egos will likely be located in Samoa, Hong Kong, and Canada. This also weighs in favor of dismissal… .  Other than the fact that plaintiff is trying to enforce a judgment of the Southern District of New York (which merely recognized a London judgment against Shipping), this case has no tie to New York… .  Flame SA v Worldlink Intl (Holding) Ltd, 2013 NY Slip Op 04107, 1st Dept, 6-6-13

 

Adjournment Which Would Not Affect Trial Date Should Have Been Granted

The First Department determined Supreme Court should not have denied a request for a one-day adjournment to conduct an independent medical examination (IME):

The court improvidently exercised its discretion by denying defendants a one-day adjournment to conduct the already scheduled IME, as there is no evidence that the failure to conduct it previously was willful, and no evidence that plaintiff would have been prejudiced by the delay …. Moreover, the court could have allowed the IME without vacating the note of issue…, thereby causing no delay in the trial. …  Pickering v Union 15 Rest Corp, 2013 NY Slip Op 04122, 1st Dept, 6-6-13

 

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“Crime-Fraud” Exception to Attorney-Client Privilege Re: Studies Funded by Defendant Casting Doubt on Relationship Between Asbestos and Cancer

In a full-fledged opinion by Justice Andrias, the First Department determined plaintiffs, as part of discovery in this asbestos litigation, were entitled to an in camera review of defendant’s internal communications and to the data underlying published research studies funded by the defendant. The studies purported to cast doubt on whether chrysotile asbestos caused cancer.  In the course of the opinion, the First Department explained the “crime-fraud” exception to the attorney-client privilege (the basis of the request for in camera review of defendant’s internal communications):

The motion court providently exercised its broad discretion …when it  …granted in camera review of the documents to determine whether the crime-fraud exception to the attorney-client privilege applied … .

The crime-fraud exception encompasses ” a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct'”…. “[A]dvice in furtherance of a fraudulent or unlawful goal cannot be considered sound.’ Rather advice in furtherance of such goals is socially perverse, and the client’s communications seeking such advice are not worthy of protection”….

A party seeking “to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime” … .However, “[a] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege”… .

To permit in camera review of the documents to analyze whether the communications were used in furtherance of such wrongful activity, there need only be “a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies” …. “Once that showing is made, the decision whether to engage in in camera review of the evidence rests in the sound discretion of the [] court” …. Matter of New York City Asbestos Litig, 2013 NY Slip Op 04127, 1st Dept, 6-6-13

 

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30-Day Time-Limit for Bringing Article 78 Proceeding Pursuant to Public Health Law Runs from Date of Determination, Not Date of Written Notice of Determination

The Third Department upheld the Appalachian Regional Emergency Medical Services Council’s determination that petitioner’s Article 78 action was untimely. Although the proceeding was brought within 30 days of the written notice of the Council’s determination, and the Council had a policy of issuing written notice, the Third Department determined the 30 day time-limit started when the determination was made, not when written notice was received:

Public Health Law  §  3008  (5) requires that an appeal be taken within 30 days of when a regional council makes its determination, and there is no statutory requirement that the determination be  in writing (see Public Health Law § 3008 [4]… .  Matter of Richmondville Volunteer Emergency Squad, Inc v NYS Department of Health…, 515688, 3rd Dept, 6-6-13

 

Nature of Motion to Resettle Explained

In dismissing the appeal from the denial of a motion to resettle or clarify, the Third Department explained the nature of a motion to resettle and some aspects of motions to reargue and renew:

Petitioner’s motion was one to resettle and/or clarify Supreme Court’s prior judgment regarding back pay. Such a motion is designed “not for substantive changes [in, or to amplify a prior decision of, the court], but to correct errors or omissions in form, for clarification or to make the [judgment] conform more accurately to the decision” … .  Such  motions  rest on  the inherent power  of courts to  “‘cure mistakes,  defects  and  irregularities that  do  not  affect substantial rights of [the] parties'” Here, petitioners’ motion  sought, unsuccessfully, to amplify and substantively amend, not merely to clarify, Supreme Court’s prior judgment  … Under established precedent, no appeal lies from the “‘denial of a motion to resettle [or clarify] a substantive portion of an order'” … .Moreover, even were we to view petitioners’ motion as one to reargue, which Supreme Court indicated would have been untimely (see CPLR 2221 [d] [3]), the motion was not “identified specifically as such” (CPLR  2221  [d] [1]), as required, and, in any event, no appeal lies from the denial of a motion to reargue ….  The motion likewise was not denominated as one seeking renewal (see CPLR 2221 [e] [1]) and was not based upon “new facts” or “a change in the law” (CPLR 2221 [e] [2]).  Accordingly, the appeal must be dismissed.  Matter of Torpey v Town of Colonie, 515902, 3rd Dept, 6-6-13

 

Certification Order Requiring Filing of Note of Issue in 70, Rather than 90, Days Could Not Be Basis of Dismissal

The Second Department determined that a certification order which required a note of issue be filed within 70 days, rather than 90 days, could not be the basis for dismissal of the action:

The certification order dated March 2, 2010, did not constitute a valid 90-day demand pursuant to CPLR 3216 because it directed the plaintiff to file a note of issue within 70 days, rather than 90 days, of the date of the order. Since the order failed to conform with a statutorily mandated condition precedent to dismissal of the action, the Supreme Court was not authorized to dismiss the action pursuant to CPLR 3216… . Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record, and could not have been avoided if brought to the attention of the Supreme Court… . Gu v Hatsis, 2013 NY Slip Op 03970, 2nd Dept, 6-5-13

 

Note of Issue Which States Discovery Not Complete Is a Nullity

The Second Department determined a note of issue which indicates discovery is not complete is a nullity:

Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial (see 22 NYCRR 202.21[a], [b]). While the filing of a note of issue within 90 days after service upon the plaintiff of a written demand to serve and file the note of issue precludes a court from dismissing the action …, here, the plaintiffs’ certificate of readiness stated, inter alia, that discovery proceedings now known to be necessary were not completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity, and that branch of the appellant’s motion which was to vacate the note of issue was properly granted… .  Furrukh v Forest Hills Hosp, 2013 NY Slip Op 03968, 2nd Dept, 6-5-13

 

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