You are here: / Civil Procedure
,

Family Court Should Have Granted Father’s Motion to Vacate a Fact-Finding Order

In an abuse and neglect proceeding, the Second Department reversed Family Court’s denial of father’s motion to vacate a fact-finding order after a hearing at which father was not present:

If a parent is not present, the court may proceed to hear a petition pursuant to Family Court Act article 10 if the child is represented by counsel (see Family Ct Act § 1042). However, a timely motion to vacate the resulting fact-finding order shall be granted upon an affidavit showing, inter alia, a potentially meritorious defense to the petition unless the court finds that the parent willfully refused to appear at the hearing….  Under the circumstances presented, the appellant adequately demonstrated that his failure to appear was not willful…. Moreover, the father demonstrated a potentially meritorious defense to the petitions …. Matter of Mark W, 2013 NY Slip Op 04347, 2nd Dept, 6-12-13

 

, ,

Doctrine of Collateral Estoppel Re: Related Criminal Convictions Properly Applied

The Second Department determined Family Court properly applied the doctrine of collateral estoppel in an abuse proceeding based upon father’s criminal convictions:

The Family Court properly granted that branch of the motion of the ACS which was for summary judgment on the issue of the father’s derivative abuse. The ACS met its prima facie burden of showing that the doctrine of collateral estoppel is applicable…. “A determination in a criminal action may be given collateral estoppel effect in a Family Court proceeding where the identical issue has been resolved, and the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct”…. The father’s convictions of course of sexual conduct against a child in the first degree, course of sexual conduct against a child in the second degree, rape in the second degree, and endangering the welfare of a child were based upon the same acts alleged to constitute sexual abuse as set forth in Family Court Act article 10 petitions (see Family Ct Act § 1012[e][iii]).  Matter of Angelica M, 2013 NY Slip Op 04339, 2nd Dept, 6-12-13

 

, ,

Supreme Court’s Grant of Defendants’ Motion to Set Aside Verdict Reversed

The First Department, over a substantial dissent, reversed Supreme Court’s grant of defendants’ motion to set aside the verdict in a medical malpractice action:

“The question of whether a verdict is against the weight of the evidence is discretion-laden, and the critical inquiry is whether the verdict rested on a fair interpretation of the evidence”…. On this record, we conclude that the Supreme Court erred in setting aside the verdict as against the weight of the evidence, because it cannot be said that the jury could not have reached its verdict upon any fair interpretation of the evidence…. The jury was entitled to resolve in plaintiff’s favor the conflict between the decedent’s and Dr. Conte’s testimony as to the nature and timing of her complaints and whether he later made referrals for CT scans that she declined.  Rose v Conte, 2013 NY Slip Op 04297, 1st Dept, 6-11-13

 

, ,

Bear Stearns Complaint Stated a Cause of Action for Indemnification and Should Not Have Been Dismissed

In a full-fledged opinion by Judge Graffeo, the Court of Appeals reversed the Appellate Division and allowed a suit by Bear Stearns against its insurers (which had denied coverage) to go forward.  In response to a Security and Exchange Commission (SEC) investigation into late trading and market timing activities, Bear Stearns agreed to pay a 160-million-dollar disgorgement fee.  Bear Stearns then sought indemnification from the defendant insurance companies.  The complaint, which had been dismissed, alleged that 140 of the 160 million constituted profits that flowed to Bear Stearns’ customers, not funds improperly acquired by Bear Stearns. The Court of Appeals determined that it could not be discerned from the SEC order alone whether or not the funds were deemed improperly acquired by Bear Stearns.  Therefore the complaint stated a cause of action:

In the context of these dismissal motions, we must assume Bear Stearns’ allegations to be true unless conclusively refuted by the relevant documentary evidence, in this case, the SEC order. Contrary to the Insurers’ position, the SEC order does not establish that the $160 million disgorgement payment was predicated on moneys that Bear Stearns itself improperly earned as a result of its securities violations. Rather, the SEC order recites that Bear Stearns’ misconduct enabled its “customers to generate hundreds of millions of dollars in profits.” Hence, at this CPLR 3211 stage, the documentary evidence does not decisively repudiate Bear Stearns’ allegation that the SEC disgorgement payment amount was calculated in large measure on the profits of others.  JP Morgan Securities, Inc v Vigilant Insurance Company, No 113, CtApp 6-11-13

 

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

 

, , ,

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

 

, , , , , ,

“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

 

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