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MOTHER WAS EXPERIENCING COVID-LIKE SYMPTOMS AND THE COURT RULES PROHIBITED HER ENTRY; HER REQUEST FOR AN ADJOURMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the court abused its discretion in denying mother’s request for an adjournment:

… [T]he court abused its discretion in denying her attorney’s request for an adjournment. The mother had not previously requested an adjournment, and there was no indication in the record that an adjournment would have adversely affected the child … . Further, the mother was experiencing COVID-like symptoms and, under the court’s own rules, she was prohibited from entering the courthouse … . We therefore vacate those parts of the order determining that the mother permanently neglected the subject child and terminating her parental rights … . Matter of Jiryan S., 2022 NY Slip Op 04514. Fourth Dept 7-8-22

Practice Point: Here mother was experiencing COVID-like symptoms and requested an adjournment. Court rules prohibited her entry into the building. Her request for an adjournment should have been granted.

 

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THE JUDGE HAD BEEN MADE AWARE A WEEK BEFORE THE HEARING THAT MOTHER’S ATTORNEY WAS NO LONGER REPRESENTING HER; AT THE HEARING MOTHER EXPLAINED SHE HAD COMMUNICATED WITH ANOTHER LAWYER WHO COULD NOT ATTEND THAT DAY; MOTHER ASKED FOR AN ADJOURNMENT; THE JUDGE ABUSED HER DISCRETION IN DENYING THE REQUEST (FOURTH DEPT).

The Fourth Department, reversing Family Court in this custody proceeding, determined mother’s request for an adjournment should have been granted. Mother’s relationship with her attorney had broken down. The attorney had notified the judge a week before and the attorney did not appear for the hearing. At the hearing, mother told the judge she had communicated with another lawyer (who had other obligations) and asked for an adjournment. The request denied and mother represented herself:

Approximately one week prior to the hearing on the father’s petition, the mother’s attorney informed Family Court that there had been a breakdown in her attorney-client relationship with the mother, as a result of which she was no longer representing the mother, and she requested an adjournment of the hearing. On the morning of the hearing, the court failed to make any inquiry of the mother concerning the fact that her attorney was not present at the hearing, nor did the court make any mention of the attorney’s adjournment request. The mother herself then sought an adjournment and confirmed to the court that there had been a fundamental breakdown in the relationship with her attorney. The mother explained that she had spoken to, and scheduled a meeting with, a new attorney and that the new attorney could not be present due to a preexisting obligation. …

… [T]he court abused its discretion in denying her request to adjourn the hearing … . The record establishes that the mother’s request was not a delay tactic and did not result from her lack of diligence in retaining new counsel … . We therefore reverse the order and remit the matter to Family Court for a new hearing on the petition. Matter of Dupont v Armstrong, 2022 NY Slip Op 04509, Fourth Dept 7-8-22

Practice Point: Here mother had never requested an adjournment before and the judge was aware mother’s relationship with her attorney had broken down. At the time of the hearing mother told the judge she had communicated with another lawyer who could not attend that day and asked for an adjournment. The judge’s denial of the request was an abuse of discretion.

 

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PETITIONER SOUGHT TO DEMONSTRATE THAT HIS DECEASED MOTHER DID NOT HAVE THE CAPACITY TO EXECUTE A DOCUMENT DESIGNATING RESPONDENT AS HER AGENT TO CONTROL THE DISPOSITION OF HER REMAINS; PETITIONER SUBMITTED PROOF HIS MOTHER HAD BEEN DIAGNOSED WITH DEMENTIA, BUT DEMENTIA IS NOT THE EQUIVALENT OF INCOMPETENCE OR INCAPACITY; THE PETITION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, held that the petition pursuant to Public Health Law 4201 for a determination concerning the disposition of petitioner’s deceased mother’s remains should have been dismissed. The deceased was also the mother of the respondent in this action. The issue was whether the deceased had the capacity to execute a document designating the respondent as her agent to control the disposition of her remains. The proceeding under the Public Health Law is handled like a motion for summary judgment. Although petitioner demonstrated his mother was diagnosed with dementia in 2014, dementia is not the equivalent of incompetence:

Every dispute relating to the disposition of the remains of a decedent shall be resolved . . . pursuant to a special proceeding” (Public Health Law § 4201 [8]). Upon the return date of the petition in a special proceeding, “[t]he court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised,” and “may make any orders permitted on a motion for summary judgment” (CPLR 409 [b] …). “[E]very hearing of a special proceeding is equivalent to the hearing of a motion for summary judgment” … . …

Even assuming, arguendo, that the heightened contractual capacity standard is applicable in this case … , we conclude that petitioner failed to establish that the decedent was incapable “of comprehending and understanding the nature of the transaction at issue” … .  Although petitioner submitted evidence establishing that the decedent had been diagnosed with dementia in 2014, “there is no presumption that a person suffering from dementia is wholly incompetent” … . “Rather, it must be demonstrated that, because of the affliction, the individual was incompetent at the time of the challenged transaction” … . Here, petitioner failed to set forth any evidence that the decedent was without capacity to execute the designating document in September 2017 … . Matter of Hurlbut v Leo M. Bean Funeral Home, Inc., 2022 NY Slip Op 04439, Fourth Dept 7-8-22

Practice Point: A proceeding pursuant to the Public Health Law to determine the disposition of the remains of a decedent is in the nature of a special proceeding and is handled like a summary judgment motion. Here the petitioner did not raise a question of fact about whether the decedent had the capacity to designate the respondent as her agent to control the disposition of her remains. Proof decedent had been diagnosed with dementia did not raise a question of fact about decedent’s competence or capacity.

 

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IN THIS DOG-BITE CASE, VETERINARY RECORDS ARE DISCOVERABLE BY SUBPOENA (FOURTH DEPT).

The Fourth Department, in this dog bite case, determined veterinary records are not protected by Education Law 6714 and are discoverable:

Education Law § 6714 (1) provides that, “[u]pon written request from the owner of an animal which has received treatment from or under the supervision of a veterinarian, such veterinarian shall provide to such owner within a reasonable time period a copy of all records relating to the treatment of such animal. For the purposes of this section, the term ‘records’ shall mean all information concerning or related to the examination or treatment of the animal kept by the veterinarian in the course of his or her practice. A veterinarian may impose a reasonable charge for providing copies of such records. A veterinarian may make available to the owner either the original or a copy of such record or document including x-rays, electrocardiograms and other diagnostic tests and may impose a reasonable fee for the reproduction of such copies.”

Nothing in the plain language of that statute prohibits a veterinarian from providing a copy of treatment records pursuant to a subpoena. Had the legislature intended to create such an exemption, it could have done so using language similar to that found in Education Law § 6527 (3), which provides that “records relating to performance of a medical or a quality assurance review function . . . shall [not] be subject to disclosure under article thirty-one of the [CPLR] except as hereinafter provided or as provided by any other provision of law” … . Ashley M. v Marcinkowski, 2022 NY Slip Op 04437, Fourth Dept 7-8-22

Practice Point: Pursuant to Education Law 6714, veterinary records in this dog-bite case are discoverable by subpoena.

 

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AFTER THE STATUTE OF LIMITATIONS HAD RUN IN THIS SLIP AND FALL CASE PLAINTIFF SOUGHT TO AMEND HER COMPLAINT TO ADD PARTIES UNDER THE “RELATION BACK” DOCTRINE; HOWEVER THE ADDED PARTIES DID NOT MEET THE “UNITY OF INTEREST” REQUIREMENT; THE MOTION TO AMEND SHOULD HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the plaintiff’s motion to amend the complaint after the statute of limitations had run to add parties under a “relation back” doctrine should not have been granted. The decision includes comprehensive discussions of the “unity of interest” component of the “relation back” doctrine which are too detailed to fairly summarize here:

“[T]he relation back doctrine allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for [s]tatute of [l]imitations purposes where the two defendants are united in interest” … . Group, however, “was not a codefendant” when plaintiff moved for leave to amend the complaint because the court had already granted Group’s motion for summary judgment seeking dismissal of the complaint against it on the ground that it was a similarly named, but unrelated entity mistakenly sued by plaintiff that conducted a different business in a different state and never had any relationship to the subject plaza … .

.. [P]aintiff also failed to meet her burden of establishing that appellants were united in interest with Square. The record … indicates that appellants and Square are ” ‘separate and distinct business entities which have no jural relationship’ ” … , and plaintiff “failed to come forward with evidence that there is any type of interrelationship between them that would give rise to vicarious liability and entitle [her] to rely upon the relation back doctrine” … . Stepanian v Bed, Bath, & Beyond, Inc., 2022 NY Slip Op 04477, Fourth Dept 7-8-22

Practice Point: To add parties under the “relation back” doctrine, the parities must be “united in interest” with those named in the original complaint. This decision discusses the criteria for “united in interest” in some detail and is worth consulting on that issue.

 

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IN THIS FORECLOSURE ACTION, THE BANKRUPTCY STAY DID NOT TERMINATE WHEN DEFENDANT BOUGHT THE SUBJECT PROPERTY FROM THE BANKRUPTCY ESTATE; THE STAY TERMINATED LATER WHEN DEFENDANT RECEIVED A DISCHARGE FROM THE BANKRUPTCY COURT; THE FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dowling, in a matter of first impression, determined the foreclosure action, which had been stayed when defendant twice filed for bankruptcy, was timely brought. If the stay ceased when defendant bought the subject property from the bankruptcy estate, the foreclosure would have been untimely. But the Second Department held that the stay did not cease until the subsequent discharge order, rendering the action timely:

… [D]efendant’s purchase of the Middle Pond Road property from the bankruptcy estate pursuant to the November 26, 2013 order did not terminate the automatic bankruptcy stay barring commencement of the instant foreclosure action, but rather, under the circumstances of this case, the automatic bankruptcy stay terminated when the defendant received a discharge from the Bankruptcy Court on November 3, 2014.

Pursuant to the plain language of 11 USC § 362(c)(1), the discharge of the … property from the bankruptcy estate pursuant to the November 26, 2013 order terminated the stays of an act against “property of the estate,” which stays are established by 11 USC § 362(a)(3) and (4). Here, however, upon the defendant’s purchase of the … property from the bankruptcy estate pursuant to November 26, 2013 order, ownership of the … property returned to the defendant, as debtor in the bankruptcy proceeding … . Consequently, the termination of the stay of an act against “property of the estate” provided for by 11 USC § 362(c)(1) has no bearing on the stays established by 11 USC § 362(a)(1) and (5), which expressly apply to acts taken against “the debtor” or “property of the debtor,” and which continued in effect. Deutsche Bank Natl. Trust Co. v Lubonty, 2022 NY Slip Op 04288, Second Dept 7-6-22

Practice Point: Here whether the foreclosure action was timely depended on when the bankruptcy stay terminated. The defendant in the foreclosure action was the “debtor” in the bankruptcy proceeding. The defendant bought the property which was the subject of the foreclosure action from the bankruptcy estate. Based on the applicable bankruptcy statute, the bankruptcy stay did not terminate when defendant bought the property. It terminated later when defendant received a discharge from the Bankruptcy Court. Because the stay terminated on the later date, the foreclosure action was timely.

 

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THE IDENTITY OF PLAINTIFF’S EMPLOYER WAS NOT A DISPUTED ISSUE IN THE WORKERS’ COMPENSATION PROCEEDING; THEREFORE DEFENDANTS WERE NOT COLLATERALLY ESTOPPED FROM CONTESTING THE IDENTITY OF PLAINTIFF’S EMPLOYER IN THIS RELATED NEGLIGENCE ACTION AND ARGUING PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION; HOWEVER DEFENDANTS PRESENTED CONFLICTING EVIDENCE OF THE IDENTITY OF PLAINTIFF’S EMPLOYER AND THEREFORE WERE NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined the collateral estoppel doctrine preclude defendants from disputing the identity of plaintiff’s employer because the issue was not in dispute the Workers’ Compensation proceeding. Plaintiff was a matron on a school bus and was injured when the bus was involved in a collision. Plaintiff sued the bus driver (Bonhome) and the bus company (Reliant). Defendants alleged plaintiff and Bonhome were both employed by Reliant and, therefore, Workers’ Compensation was plaintiff’s only remedy. But the defendants submitted conflicting evidence of the identity of plaintiff’s employer and therefore were not entitled to summary judgment:

… Bonhome and Reliant were not barred by the doctrine of collateral estoppel from disputing the identity of the plaintiff’s employer. “Under the doctrine of collateral estoppel, a party is precluded from ‘relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same'” … . “The quasi-judicial determinations of administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal” … . Here, the plaintiff failed to demonstrate that the identity of her employer was a disputed issue at a proceeding before the Workers’ Compensation Board, or that the Workers’ Compensation Board specifically adjudicated that issue…. .

… [T]he defendants submitted conflicting evidence regarding the identity of the plaintiff’s employer. Thus, they failed to demonstrate, prima facie, that both Bonhome and the plaintiff were employees of Reliant at the time of the accident … . Calixte v City of New York, 2022 NY Slip Op 04286, Second Dept 7-6-22

Practice Point: In this traffic accident case the identity of plaintiff’s employer was not in dispute in the prior Workers’ Compensation proceeding. The collateral estoppel doctrine, therefore, did not apply and defendant can contest the identity of plaintiff’s employer in the related negligence proceeding. If both plaintiff and defendant were employees of the same employer, Workers’ Compensation would be plaintiff’s only remedy.

 

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THE PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN SET ASIDE IN THE INTEREST OF JUSTICE; THE JUDGE PRECLUDED CROSS-EXAMINATION OF PLAINTIFF’S EXPERT ABOUT WHETHER THE OTHER DOCTORS WHO CONSULTED ON PLAINTIFF’S TREATMENT DEPARTED FROM ACCEPTED PRACTICE BY FAILING TO DO FURTHER DIAGNOSTIC TESTING; IF SO, FAULT WOULD BE SHARED PURSUANT TO CPLR 1601 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant doctor’s (Sourour’s) motion to set aside the verdict in the interest of justice in this medical malpractice action should have been granted. The evidence supported the jury’s finding that the failure to do diagnostic testing decreased the plaintiff’s chance of a better outcome. During the trial Sourour sought to but was precluded from cross-examining plaintiff’s expert about whether other doctors who consulted on the case also departed from accepted practice by not performing the additional diagnostic testing. That was deemed reversible error:

“A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . “In considering such a motion, [t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected . . . and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision” … . …

If, as Sourour proposes, a jury were to find that these doctors departed from accepted medical practice and that their departures were a substantial factor in depriving the decedent of a chance for an improved outcome, they could be found at fault together with Sourour … . As a result, any evidence as to the culpability of these doctors was relevant under CPLR 1601(1) … . The court’s error in precluding testimony on this issue deprived Sourour of “substantial justice” … . Schuster v Sourour, 2022 NY Slip Op 04317, Second Dept 7-6-22

Practice Point: Here the defendant doctor’s failure to do further diagnostic testing for cancer was deemed to have decreased the chance of a better outcome. Therefore the plaintiff’s verdict was supported by the evidence and properly survived a motion set aside as a matter of law. However, the judge erroneously precluded cross-examination of plaintiff’s expert about whether the other doctors who consulted on plaintiff’s treatment departed from accepted practice failing to order further diagnostic testing. If so, fault would have been shared pursuant to CPLR 1601.

 

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A PLAINTIFF BRINGING A SUMMARY JUDGMENT MOTION MUST ADDRESS AFFIRMATIVE DEFENSES RAISED IN THE ANSWER; HERE IN THIS TRAFFIC ACCIDENT CASE THE GRAVES AMENDMENT, WHICH PROVIDES THAT THE OWNER OF A LEASED CAR IS NOT LIABLE FOR THE NEGLIGENCE OF THE DRIVER, WAS RAISED AS AN AFFIRMATIVE DEFENSE; BECAUSE PLAINTIFF DID NOT ADDRESS THAT ISSUE IN THE SUMMARY JUDGMENT MOTION, THE MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this traffic accidence case did not demonstrate the owner of defendants’ vehicle, PV Holding, was vicariously liable for the negligence of the driver of the vehicle. Therefore plaintiff’s summary judgment motion with respect to PV Holding should not have been granted. Defendants apparently raised the affirmative defense that the vehicle was leased from PV Holding and therefore was not liable under the Graves Amendment. Because that defense was not addressed in plaintiff’s summary judgment papers, the motion should have been denied:

… [I]n 2005, Congress enacted the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users. That act included the Graves Amendment (49 USC § 30106), which provides that the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if the owner (1) is engaged in the trade or business of renting or leasing motor vehicles, and (2) engaged in no negligence or criminal wrongdoing contributing to the accident … .* * *

“CPLR 3212(b) requires the proponent of a motion for summary judgment to demonstrate the absence of genuine issues of material fact on every relevant issue raised by the pleadings, including any affirmative defenses” … . Pierrelouis v Kuten, 2022 NY Slip Op 04314, Second Dept 7-6-22

Practice Point: A plaintiff bringing a motion for summary judgment must address affirmative defenses raised in the answer. Failure to do so requires denial of the motion. Here the Graves Amendment was raised as an affirmative defense in this traffic accident case. The Graver Amendment provides that companies in the business of leasing cars are not vicariously liable for the negligence of the drivers. Plaintiff did not address that defense in the motion for summary judgment.

 

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IN THIS “CHILD VICTIMS ACT” ACTION ALLEGING SEXUAL ABUSE IN THE 1950’S BY EMPLOYEES OF THE NOW DISSOLVED YMCA NIAGARA FALLS, THERE ARE QUESTIONS OF FACT WHETHER THE DE FACTO MERGER DOCTRINE APPLIES RENDERING YMCA BUFFALO LIABLE FOR THE TORTS OF YMCA NIAGARA FALLS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined this “Child Victims Act” action against YMCA Buffalo, alleging sexual abuse in the 1950’s by employees at the now dissolved YMCA Niagara Falls, should not have been dismissed. The decision is comprehensive and cannot be fairly summarized here. There exist triable issues of fact whether the de facto merger doctrine applies rendering YMCA Buffalo liable for the torts of YMCA Niagara Falls:

… [A]s a general rule, “a corporation which acquires the assets of another is not liable for the torts of its predecessor” ,,, . There are exceptions, however, and thus “[a] corporation may be held liable for the torts of its predecessor if (1) it expressly or impliedly assumed the predecessor’s tort liability, (2) there was a consolidation or merger of seller and purchaser, (3) the purchasing corporation was a mere continuation of the selling corporation, or (4) the transaction is entered into fraudulently to escape such obligations” … . Plaintiff relies exclusively on the second exception, which implicates the de facto merger doctrine … . The de facto merger doctrine is “based on the concept that a successor that effectively takes over a [corporation] in its entirety should carry the predecessor’s liabilities as a concomitant to the benefits it derives from the good will purchased,” which “is consistent with the desire to ensure that a source remains to pay for the victim’s injuries” … . Dutton v Young Men’s Christian Assn. of Buffalo Niagara, 2022 NY Slip Op 04238, Fourth Dept 7-1-22

Practice Point: In this Child Victims Act action alleging sexual abuse in the 1950’s by employees of the now dissolved YMCA Niagara Falls, there are questions of fact about whether the de facto merger doctrine makes defendant YMCA Buffalo liable for the torts of YMCA Niagara Falls. The decision is comprehensive and discusses every conceivable aspect of the de facto merger doctrine as it applies to not-for-profit corporations.

 

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