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
Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy