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NO ONE OBJECTED TO THE VERDICT SHEET BEFORE THE VERDICT AND JUROR AFFIDAVITS ALLEGING CONFUSION ARE NOT TO BE CONSIDERED EXCEPT IN EXTRAORDINARY CIRCUMSTANCES NOT PRESENT HERE; THE MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the verdict should not have been set aside on the ground of jury confusion. No objection was made to the verdict sheet until after the verdict and the juror affidavits alleging confusion should only be considered in extraordinary circumstances:

The trial court should not have set aside the verdict based on a determination that the verdict sheet was, on its face, unclear and confusing. None of the parties or the court perceived any lack of clarity until after the jury was discharged, and there was no evidence in the trial record of substantial juror confusion … . Although the court stated that it gave no consideration to the posttrial juror affidavits stating that they believed that they were supposed to deduct from the damage award the amount of plaintiff’s comparative fault, that was the only evidence of jury confusion provided by plaintiff. However, “[ j]uror affidavits should not be used to impeach a jury verdict absent extraordinary circumstances,” not present here …   Moreover, plaintiff did not object to the verdict sheet or the charge until after the jury was discharged, and therefore, waived such objections … . Suarez v Ades, 2023 NY Slip Op 00175, First Dept 1-12-23

Practice Point: The verdict should not have been set aside on jury-confusion grounds. No one objected to the verdict sheet before the verdict and the juror affidavits alleging confusion should only be considered in extraordinary circumstances not present in this case.

 

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PLAINTIFFS’ COUNSEL’S GOOD-FAITH AFFIRMATION DID NOT INCLUDE DETAILS OF ANY EFFORTS TO RESOLVE THE DISCOVERY ISSUE AND WAS THEREFORE INADEQUATE; PLAINTIFFS’ MOTION TO COMPEL DEFENDANT TO SUBMIT TO A DEPOSITION UNDER THREAT OF PRECLUSION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the motion compelling defendant to appear for a deposition under threat of preclusion should not have been granted because plaintiffs’ counsel’s good-faith affirmation was inadequate:

Pursuant to 22 NYCRR 202.7(a) and (c), a motion relating to disclosure must be accompanied by an affirmation from moving counsel attesting to a good faith effort to resolve the issues raised in the motion, including the time, place, and nature of the consultation as well as the issues discussed. Here, the affirmation of good faith submitted by the plaintiffs’ counsel in support of their motion to compel disclosure and for other related relief failed to provide any detail of their efforts to resolve the issues. Therefore, the plaintiffs’ motion should have been denied … . Muchnik v Mendez Trucking, Inc., 2023 NY Slip Op 00100, Second Dept 1-11-23

Practice Pont: Here the affidavit plaintiffs’ counsel submitted did not detail the efforts made to resolve the discovery issue and was therefore inadequate. Therefore Supreme Court should not have granted plaintiffs’ motion to compel defendant’s deposition under threat of preclusion.

 

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​HERE THERE IS AN UNRESOLVED QUESTION ABOUT WHETHER PLAINTIFF IS ENTITLED TO WORKERS’ COMPENSATION BENEFITS; SUPREME COURT SHOULD GRANTED SUMMARY JUDGMENT TO DEFENDANTS AND REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the matter should have been referred to the Workers’ Compensation Board and therefore defendants’ motion for summary judgment in this slip and fall case should have been granted:

The plaintiff allegedly was injured when she fell at certain property owned by the defendants (hereinafter the property). Thereafter, the plaintiff commenced this action against the defendants to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint, contending that the plaintiff was injured in the course of her employment as a housekeeper/household employee at the property and that the Workers’ Compensation Law provided the exclusive remedy for the damages alleged in the complaint. The Supreme Court denied the motion, as premature, without prejudice to renew.

Primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board (hereinafter the Board) and it is therefore inappropriate for the courts to express views with respect thereto pending determination by the Board … . “Where the issue of the applicability of the Workers’ Compensation Law is in dispute, and a plaintiff fails to litigate that issue before the Board, a court should not express an opinion as to the availability of compensation, but should refer the matter to the Board because the Board’s disposition of the plaintiff’s compensation claim is a jurisdictional predicate to the civil action” … .

Here, the Supreme Court should have referred the matter to the Board for a hearing and determination as to whether the plaintiff is relegated to benefits under the Workers’ Compensation Law … . Lall v Harnick, 2023 NY Slip Op 00080, Second Dept 1-11-23

Practice Point: Any question about whether plaintiff is entitled to Workers’ Compensation benefits must be resolved by the Workers’ Compensation Board. Here in this slip and fall case Supreme Court should have granted defendants’ motion for summary judgment and referred the matter to the Workers’ Compensation Board.

 

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THE EVIDENCE SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS WAS NOT “DOCUMENTARY EVIDENCE” WITHIN THE MEANING OF CPLR 3211(A)(1); THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant-employer’s motion to dismiss in this traffic accident case should not have been granted. The employer argued the defendant-employee was driving his own car and was not operating the car in the course of his employment. The evidence submitted by the employer was not “documentary evidence” which would support a motion to dismiss:

“A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . “[T]o be considered ‘documentary,’ evidence must be unambiguous and of undisputed authenticity” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” … . “Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” … . Davis v Henry, 2023 NY Slip Op 00076, Second Dept 1-11-23

Practice Point: “Documentary evidence” which will support a motion to dismiss include mortgages, deeds, contracts, etc., not affidavits, deposition testimony or letters.

 

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MEDICAL (SURGICAL) RECORDS IN A NO-FAULT FILE RELATED TO A PRIOR INJURY SUFFERED BY PLAINTIFF SHOULD NOT HAVE BEEN ADMITTED IN THIS DAMAGES TRIAL; NEW TRIAL ON DAMAGES ORDERED (FIRST DEPT).

​The First Department, reversing the damages judgment and ordering a new trial, determined medical records included the the no-fault file regarding a prior injury suffered by plaintiff should not have been admitted:

The court … should not have allowed into evidence the operative and pathology reports from the 2002 surgical procedure that were contained in the file of the no-fault insurance carrier. While the no-fault file was properly admitted as a business record under CPLR 4518(a), the reports therein were not created by the carrier and, thus, were inadmissible … . There was no evidence of a relationship between the carrier and the surgeon or the hospital where the procedure was performed so as to permit the reports to remain as part of the carrier’s file … . Basden v Liberty Lines Tr., Inc., 2023 NY Slip Op 00050, First Dept 1-10-22

Practice Pont: Although the no-fault file re: a prior accident in which plaintiff was injured was admissible, the surgical records included in the file were not. New trial on damages ordered.

 

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PLAINTIFF STATED CAUSES OF ACTION FOR EMPLOYMENT DISCRIMINATION AND VIOLATIONS OF THE LABOR LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had stated causes of action for employment discrimination, failure to pay overtime, and failure to pay weekly:

… [P]laintiff has sufficiently stated a cause of action for employment discrimination under both the New York State and New York City Human Rights Laws … . Plaintiff alleges that she is a member of a protected class; that she was qualified for the position by, among other things, having a decade of experience in leadership roles; and that she was subject to an adverse employment action under circumstances giving rise to an inference of discrimination … . Specifically, plaintiff, a Black woman, alleges that her supervisor … , irritated that she had telephoned Human Resources for advice, allegedly stated to her the night before her termination, “Why did you call HR? Blacks . . . I should have never hired her.”

… [W]e find that she has sufficiently stated a claim for unpaid overtime under the Labor Law by alleging that she worked more than 40 hours per week and that defendants never paid her for the overtime (CPLR 3013 …).

Plaintiff’s claim based on defendants’ failure to pay her weekly also is sufficiently pleaded, as she alleges that she was a nonexempt employee under Labor Law § 190, and that defendants were required to pay her each week as a manual worker under New York Labor Law § 191. Kirby v Carlo’s Bakery 42nd & 8th LLC, 2023 NY Slip Op 00059, First Dept 1-10-23

Practice Point: Here plaintiff stated causes of action for employment discrimination (a racist remark just prior to her termination), as well as failure to pay overtime and failure to pay weekly in violation of the Labor Law.

 

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PLAINTIFF SLIPPED AND FELL COMING OUT OF THE SHOWER, INJURING HER GENITAL AND PELVIC AREAS; DEFENDANTS WERE ENTITLED TO AN INDEPENDENT MEDICAL EXAMINATION WHICH MIRRORED THE EXAM DONE BY PLAINTIFF’S OWN PHYSICIAN, INCLUDING A GYNECOLOGICAL EXAM AND A FULL PELVIC EXAM; SUPREME COURT HAD DENIED THE FULL PELVIC EXAM; THERE WAS AN EXTENSIVE DISSENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over a full-fledged dissenting opinion, reversing (modifying) Supreme Court, determined defendants in this slip and fall case was entitled to an independent medical examination (IME) of plaintiff which included both a gynecological exam and a full pelvic exam, conducted by a female doctor. Plaintiff alleged she slipped and fell coming out of a shower, injuring her genital and pelvic areas. Supreme Court had allowed the gynecological exam but not the pelvic exam:

… [W]hat we cannot overlook is that plaintiff, who is seeking substantial damages from defendants, has already gone through a comprehensive gynecological examination by her treating physician, without any medically reported adverse effects. The prior comprehensive gynecological exam clearly included a pelvic examination, as indicated by the treating physician’s own finding of pelvic- related injuries. Indeed, the treating physician categorized the proposed pelvic examination as a routine practice (i.e., “classic pelvic exam techniques”) … .

… [W]e find that plaintiff cannot raise her concerns as a bar to similar tests by the party she charges with responsibility for her current condition and injuries. Defendants do not have to rely upon previous pelvic examinations conducted by plaintiff’s treating physician … . Absent any support for the claim that the pelvic examination would be harmful, defendants are entitled to conduct their own pelvic examination for the purpose of refutation or confirmation of plaintiff’s alleged serious and permanent injuries, and their correlation to plaintiff’s current symptoms.

… [A]pplying basic principles of CPLR discovery to require a plaintiff, who puts her gynecological condition at issue, to submit to an IME in the form of a gynecological examination that includes a routine pelvic examination, is … consistent with our role as judges to be fair and balanced even in the most difficult cases. A plaintiff who has voluntarily submitted to a routine pelvic examination by her own treating physician without adverse effects should be required to undergo a similar examination that is material and necessary to defend against her claims that she sustained serious gynecological injuries. Pettinato v EQR-Rivertower, LLC, 2023 NY Slip Op 00068, First Dept 1-10-23

Practice Point: Here plaintiff fell coming out of the shower injuring her genital and pelvic areas. Defendants requested an independent medical examination (IME) which mirrored the exam done by plaintiff’s physician. The motion court allowed a gynecological exam but denied the full pelvic exam. Because plaintiff’s physician had conducted a full pelvic exam to determine the injuries, defendants were entitled to conduct their own full pelvic exam.

 

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NEW YORK HAS JURISDICTION OVER OUT-OF-STATE DEFENDANT JUUL LABS, THE MANUFACTURER OF ELECTRONIC CIGARETTES, AND TWO CORPORATE OFFICERS IN AN ACTION ALLEGING DECEPTIVE BUSINESS PRACTICES, FRAUD AND PUBLIC NUISANCE (FIRST DEPT). ​

The First Department determined New York had jurisdiction over the defendant JUUL, the manufacture of electronic cigarettes, and two corporate officers involved JUUL’s marketing campaign in New York. The complaint alleged “causes of action pursuant to General Business Law §§ 349 and 350, for deceptive acts and practices and for false advertising, respectively; pursuant to Executive Law § 63(12), for repeated and persistent fraud and illegal conduct in violation of General Business Law §§ 349 and 350 and section 5 of the Federal Trade Commission Act (15 USC § 45); and, for public nuisance.”:

… [T]he People submitted internal emails and reports demonstrating … that defendants traveled to New York City for investment meetings … ; that defendants personally attended JUUL’s launch party in New York City …, JUUL also sought to arrange in-person meetings between defendants and both “New York targets” and broadcast media organizations; and, that defendants and JUUL considered the New York City launch to have been a success.

… [D]efendants were involved in marketing strategy, which included … months of events in New York; identifying New York as the target of JUUL’s northeastern U.S. marketing efforts, at and after launch; advertising on billboards in Times Square; hosting in-store product samplings at New York vape shops and social events; and escalating marketing efforts in the New York City metropolitan area post-launch. After New York proved to be a substantial market for JUUL’s product, defendants went so far as to describe the efforts as “NYC takeover” and to declare that New York City users should be “the focus of [JUUL’s] branding/marketing.”

This evidence establishes that defendants conducted sufficient in-person activities within New York State related to the People’s claims against them in this action, and sufficiently supports the exercise of specific personal jurisdiction over them pursuant to CPLR 302(a)(1) … . People v JUUL Labs, Inc., 2023 NY Slip Op 00040, First Dept 1-5-22

Practice Point: Here New York demonstrated it had personal jurisdiction over the out-of-state manufacturer of electronic cigarettes and two corporate officers involved in marketing the cigarettes in New York. The complaint alleged deceptive business practices, fraud and public nuisance.

 

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TO DEPRIVE A PLAINTIFF OF THE SIX-MONTH RECOMMENCEMENT BENEFIT OF CPLR 205(A) THERE MUST HAVE BEEN A PATTERN OF NEGLECT, NOT, AS HERE, A SINGLE INSTANCE OF NEGLECT (PLAINTIFF WAS NOT READY FOR TRIAL); THERE WAS A DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined that dismissal for failure to prosecute requires more than one instance of neglect (here plaintiff was not ready to proceed on the trial date). Rather, a pattern of neglect must be shown in order to deprive plaintiff of the six-month recommencement benefit of CPLR 205(a):

While the prior action was dismissed due to plaintiff’s unreadiness to go forward with the trial as scheduled on December 16, 2022 … , the … trial court, in dismissing the case, did not set forth on the record any additional instances of neglect by the plaintiff that could “demonstrate a general pattern of delay in proceeding with the litigation” (CPLR 205[a] …), as opposed to one particular lapse, namely, the lack of readiness on the trial date. The court’s statement that the case had been “languishing since 2010” does not suffice, inasmuch as it fails to specify any “specific conduct . . . demonstrat[ing] a general pattern of delay” (CPLR 205[a] …). As this Court has recently held, a “general pattern of delay” must comprise more than one instance of dilatory conduct … . U.S. Bank Natl. Assn. v Fox, 2023 NY Slip Op 00046, First Dept 1-5-23

Practice Point: A plaintiff will not be deprived of the six-month recommencement benefit of CPLR 205(a) unless there has been more than a single instance of neglect (here plaintiff was not ready for trial). In addition, the judge must, in the order dismissing the action, set forth the facts demonstrating a pattern of neglect before the plaintiff will be prohibited from recommencing the action.

 

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THE ALLEGATIONS IN THE COMPLAINT WERE NOT SUFFICIENT TO SUPPORT LIABILITY ON A PIERCING-THE-CORPORATE-VEIL THEORY AND THE HOPE THAT DISCOVERY WOULD REVEAL SOMETHING WAS NOT A BASIS FOR DENIAL OF THE MOTION TO DISMISS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint did not allege sufficient facts to hold defendant MMC liable on a piercing-the-corporate veil theory in this medical malpractice case:

… [T]he complaint does not contain allegations sufficient to support holding MMC liable on a theory of piercing the corporate veil, since it does not allege facts supporting a finding that MMC completely dominated and controlled Nyack Hospital or abused the privilege of doing business in the corporate form (CPLR 3211[a][7] … ). Moreover, the lack of discovery does not excuse plaintiff’s failure to plead any facts that would support piercing the corporate veil …, and the hope that something will turn up in discovery is an insufficient basis to deny the motion to dismiss … . Yovich v Montefiore Nyack Hosp., 2023 NY Slip Op 00047, First Dept 1-5-23

Practice Point: If a complaint doesn’t allege facts demonstrating complete domination and control or abuse of the privilege of doing business in the corporate form the cause of action relying on the piercing-the-corporate-veil theory will be dismissed. The hope that discovery will reveal something relevant is not enough to prevent dismissal.

 

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