In reversing an “amended judgment” in which the judge purported to correct an error in the calculation of child support and maintenance arrears, the Fourth Department noted: “a court has no power to reduce or increase the amount of a judgment when there is no clerical error…”. Meenan vs Meenan, 1493, CA12-01885 Fourth Dept. 2-8-13
The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the plaintiff in this personal injury action was entitled to a potential bias jury instruction. The fact witness subpoenaed by the defendant (CSI) was paid $10,000 and the high fee was not explained:
Plaintiff testified that she stepped into a “dip in the trench” that caused her to fall. To rebut this testimony, CSI subpoenaed a physician who had treated plaintiff in the emergency room shortly after the accident. The doctor was called merely as a fact witness to testify concerning his entry in the “history” section of his consultation note that plaintiff “tripped over a dog while walking last night in the rain” (emphasis supplied). He testified consistently with his documented note. During cross-examination, plaintiff’s counsel elicited from the doctor that CSI had paid him $10,000 for appearing and testifying. The doctor denied that his testimony was influenced by the payment, stating simply that he was there to “testify[ ] to my records.” His testimony consisted only of his verification that he made the entry into the emergency room record. No professional opinion was sought nor given. Plaintiff’s counsel requested that the court strike the doctor’s entire testimony or, in the alternative, issue either a curative instruction or a jury charge concerning monetary influence.
The following day, before summations, plaintiff’s counsel asked that the court charge the jury that, pursuant to CPLR 8001, the doctor, as a fact witness, was entitled to a witness fee of $15 per day and $.23 per mile to and from the place where he was served with the subpoena. Defense counsel countered that the witness fee was the statutory minimum and that [*3]there was no prohibition against paying a fact witness for time missed from work. * * *
We agree with plaintiff that Supreme Court should have issued a bias charge specifically tailored to address the payment CSI made to the doctor. Supreme Court generally instructed the jury that bias or prejudice was a consideration that it should consider in weighing the testimony of any of the witnesses, but this was insufficient as it pertained to CSI’s payment to the doctor. To be sure, Supreme Court properly acted within its discretion in concluding that the fee payment was fertile ground for cross-examination and comment during summation. But because CSI did not even attempt to justify the $10,000 payment for one hour of testimony, Supreme Court should have also crafted a charge that went beyond the CPLR 8001 requirements. Supreme Court should have instructed the jury that fact witnesses may be compensated for their lost time but that the jury should assess whether the compensation was disproportionately more than what was reasonable for the loss of the witness’s time from work or business. Should the [*5]jury find that the compensation is disproportionate, it should then consider whether it had the effect of influencing the witness’s testimony (see PJI 1:904) … . Caldwell v Cablevision Sys. Corp., 2013 NY Slip Op 00783 [20 NY3d 365], CtApp 2-7-13
This decision includes a clear discussion of the doctrines of res judicata and collateral estoppel, the (non)application of those doctrines to a “nominal party,” and the (non)application of those doctrines to a prior proceeding with a lower standard of proof. Matter of Sherwyn Toppin Marketing Consultants, Inc. vs New York State Liquor Authority, 2012-01119, Index No. 24980/11 Second Dept. 2-6-13
In a Freedom of Information Law (FOIL) case brought by the New York Times against the City of New York Police Department, the First Department determined several important procedural aspects of a FOIL request including the proper vehicle to address an untimely response or ruling (Article 78), the proper vehicle for hybrid FOIL and declaratory relief (combined petition and complaint), and the “futility exception” to the exhaustion of administrative remedies applies to FOIL requests. With respect to the substance of the FOIL request, the First Department ruled that the home addresses of handgun licensees and the home addresses of hate crime victims should not be released. New York Times Company vs City of New York Police Department, 7994, 116449/10 First Dept. 2-5-13
Request for a missing witness jury instruction must be made when it is learned the witness will not be called, not after the close of proof. Midstate Mutual Insurance Co vs Camp Road Transmission, Inc., 1462, CA 12-00961 Fourth Dept. 2-1-13
In a full-fledged opinion by Justice Richter discussing a breach of contract case with a convoluted history, the First Department dealt with the spoliation of evidence and the appropriate sanctions for spoliation under the CPLR. It was alleged that a document was deliberately scorched so its authenticity could not be determined by scientific tests. The Court remanded the case for a hearing on the spoliation issue and determined that, under the facts of the case, if spoliation is demonstrated at the hearing, striking the pleadings would not be an appropriate sanction. The Court suggested a monetary sanction. Although most of the decision deals with the factual history of the case, there are substantive discussions of sanctions for discovery abuse under CPLR 3126 and the doctrine of equitable estoppel. Melcher v Appolo Medical Fund Management, LLC, et al, 4759-4764, Index 604047/03 First Dept. 1-29-13.
The fact that the plaintiff signed a general release and hold-harmless agreement was not enough to settle the case. There was no proof the plaintiff’s attorney communicated plaintiff’s acceptance of the settlement offer to the defendant or defendant’s insurance carrier. Therefore, plaintiff, with a new attorney, was allowed to go forward with the lawsuit and plaintiff’s original attorney could not collect his contingency fee, which was based on the settlement-amount. Gyabaah v Rivlab Transportation Corp., et al, 7654, Index 309081/10 First Dept. 1-10-13
Plaintiff, a patient at defendant medical center, was assaulted by another patient. Shortly after the incident plaintiff’s attorney sent a letter to the medical center asking that it preserve all records of the incident, including videotape. The letter was apparently never forwarded to the defendant’s risk management department and any videotape of the incident was overwritten in the ordinary course of business. The trial court, pursuant to CPLR 3126, sanctioned the defendant by striking the defendant’s answer “to the extent of precluding the defendant from introducing evidence at trial that the alleged perpetrator was being supervised by its employees at the time of the incident.” The Second Department discussed the sanctions available for spoliation of evidence and held that, because the plaintiff was not prevented from establishing her case by the spoliation, the imposed sanction was too harsh. The appropriate sanction was an adverse inference charge to the jury. Jennings v Orange Regional Medical Center, 2012-00209, Index No. 5601/10 Second Dept. 1-9-13
In a medical malpractice action, where the plaintiff has a respondeat superior claim against a hospital based on the actions of nonparty physicians, the failure to name the individual doctors upon whom the claim is based within the applicable statute of limitations period does not compel dismissal of the vicarious liability claim against the hospital. Parilla v Buccellato, et al, 2011-09045, Index No. 500001/08 Second Dept. 1-9-13
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