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STRIKING THE COMPLAINT WAS TOO SEVERE A SANCTION FOR PLAINTIFF’S FAILURE TO RESPOND TO DISCOVERY DEMANDS; $2500 PENALTY IMPOSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined sanctions were in order for plaintiff’s failure to respond to discovery demands, but striking the complaint was too severe. A monetary penalty was imposed:

… [T]he plaintiff’s failure to comply with discovery demands and orders directing discovery or respond to the letters from the defendants’ counsel concerning discovery, without providing a reasonable excuse, supports an inference of willful or contumacious conduct … . However, under the circumstances, the sanction imposed was too drastic a remedy and the defendants’ motion pursuant to CPLR 3126 to strike the complaint should have been granted only to the extent of directing the plaintiff’s counsel to personally pay the sum of $2,500 as a sanction to the defendants … . Mirabile v Kuwayama, 2024 NY Slip Op 04958, Second Dept 10-9-24

Practice Point: This case presents another instance of an appellate court’s determination the striking of a pleading as a sanction is too severe a penalty. Here plaintiff failed to respond to discovery demands and a $2500 penalty was deemed an appropriate sanction by the Second Department.

 

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IN THIS CHILD VICTIMS ACT CASE, THE SCHOOL DEFENDANTS DID NOT ELIMINATE QUESTIONS OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ALLEGED SEXUAL ABUSE OF PLAINTFF STUDENT BY TWO TEACHERS; THE FREQUENCY OF THE ALLEGED ABUSE RAISED QUESTIONS ABOUT NOTICE (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the school defendants did not eliminate questions of fact about constructive notice of the sexual abuse of plaintiff student by two teachers. The relevant law is described in detail and should be consulted as a complete overview of the relevant issues:

… [T]o the extent the complaint is premised on the conduct of the music teacher, the defendants failed to establish, prima facie, that they lacked constructive notice of the music teacher’s alleged abusive propensities and conduct … . The defendants’ own submissions established that the plaintiff testified that the alleged abuse by the music teacher occurred once or twice a week during the school year … . In light of the frequency of the alleged abuse, the defendants did not eliminate a triable issue of fact as to whether they should have known of the alleged abuse … . Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the music teacher or the plaintiff was not negligent … .

Although the single incidence of alleged sexual abuse by the English teacher occurred off of school property and outside of school hours, the defendants’ own submissions demonstrate that the music teacher introduced the plaintiff to the English teacher, describing the plaintiff as his “friend” and a “good girl,” and that, in the presence of the music teacher, the English teacher made arrangements with the plaintiff during school hours and on school grounds to meet after school when the alleged abuse by the English teacher took place … . C. M. v West Babylon Union Free Sch. Dist., 2024 NY Slip Op 04954, Second Dept 10-9-24

Practice Point: Here the frequency of the alleged sexual abuse of plaintiff student by a teacher raised a question of fact about constructive notice by the school defendants.

 

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ONCE AGAIN THE FAILURE TO PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 REQUIRED REVERSAL IN A FORECLOSURE ACTION; THE SECOND DEPARTMENT CAREFULLY EXPLAINED ALL THE FLAWS IN THE PROOF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof requirements for sending the RPAPL 1304 notice of foreclosure to the defendants were not met. This frequently recurring error was carefully explained by the Second Department, perhaps in an effort to instruct the bar:

… [T]he plaintiff submitted an affidavit of Kimberly Dutchess, an authorized representative of M & T Bank (hereinafter M & T), the plaintiff’s loan servicer and attorney-in-fact, along with a power of attorney authorizing M & T to act on the plaintiff’s behalf … . Although Dutchess laid a proper foundation for the admission of various business records annexed to her affidavit, inter alia, by attesting to her “familiar[ity] with business records maintained by M & T for the purpose of servicing mortgage loans,” she “failed . . . to attest that [s]he personally mailed the subject notices or that [s]he was familiar with the mailing practices and procedures of [M & T]” at the time the notices were sent … . Nor was Dutchess’s assertion that she “acquired personal knowledge of the matters stated in [her] affidavit by examining the [relevant] business records” sufficient to demonstrate her personal knowledge of M & T’s mailing procedures, since “a review of records maintained in the normal course of business does not vest an affiant with personal knowledge” … . Therefore, Dutchess “failed to establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … .

Moreover, although Dutchess’s affidavit laid a proper foundation for the admission of the business records annexed thereto, the content of those records did not demonstrate, prima facie, the plaintiff’s strict compliance with RPAPL 1304 … . The only purported proof of first-class mailing attached to Dutchess’s affidavit was a letter log, which “failed to establish that the 90-day notice was actually mailed to both of the defendants . . . by first-class mail” … . Among other issues, the letter log did not contain any information regarding the method of mailing for any of the documents contained therein. It also contained only one entry for the 90-day notice allegedly mailed to both of the defendants in February 2018, notwithstanding that a “plaintiff must separately mail a 90-day notice to each borrower as a condition precedent to commencing the foreclosure action” … . Furthermore, although the letter log listed Alexander W. Swanson III as the borrower, it did not mention Nancy L. Swanson’s name, and the plaintiff did not provide any records showing that the 90-day notice was mailed to Nancy L. Swanson by first-class mail … . Notably, “[i]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . In any event, even if Dutchess had established that she had personal knowledge of M & T’s mailing procedures, her affidavit did not sufficiently clarify any of these issues … . Since the plaintiff did not demonstrate that it mailed the 90-day notices to both of the defendants by first-class mail, it failed to establish, prima facie, its strict compliance with RPAPL 1304 … . Lakeview Loan Servicing, LLC v Swanson, 2024 NY Slip Op 04952, Second Dept 10-9-24

Practice Point: It is not easy to prove compliance with the foreclosure notice requirements in RPAPL 1304 by affidavit. The same flaws in the proof have been the basis for foreclosure reversals for a decade now.​

 

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DEFENDANT DID NOT PRESENT A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT; DEFENDANT’S STATEMENT THAT HIS “BRAKES FAILED” WAS DEEMED SELF-SERVING AND INADMISSIBLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s failure to offer a nonnegligent explanation for the rear-end collision warranted the award of summary judgment to plaintiff. The statement attributed to defendant in a certified police report claiming his “brakes failed” was deemed self-serving and inadmissible:

… [T]he plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by submitting their respective affidavits, which demonstrated, inter alia, that the plaintiffs’ vehicle was traveling at a constant speed of 35 miles per hour in the right lane for at least one minute when it was struck in the rear by the defendants’ vehicle … . The plaintiffs also established their prima facie entitlement to judgment as a matter of law dismissing the defendants’ first affirmative defense, alleging comparative negligence, by demonstrating that they were not comparatively at fault in the happening of the accident … . Barr v Canales, 2024 NY Slip Op 04944, Second Dept 10-9-24

Practice Point: Defendant’s statement that his “brakes failed” was deemed self-serving and inadmissible in this rear-end collision case.

 

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THE QUESTION WHETHER THE SEXUAL ASSAULT OF PLAINTIFF IN DEFENDANT GYM’S STEAM ROOM WAS FORESEEABLE SHOULD NOT HAVE BEEN DECIDED AGAINST THE PLAINTIFF AS A MATTER OF LAW; THERE WAS EVIDENCE OF PRIOR SIMILAR ASSAULTS (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact about the foreseeability of the underlying incident, an alleged sexual assault in the steam room at defendant Equinox’s gym, which precluded summary judgment. Although Equinox had no prior notice with respect to the person who allegedly assaulted plaintiff, there was evidence Equinox was aware of other similar incidents in the steam room:

The Court of Appeals has “repeatedly emphasized” that “[o]nly in rare cases” can questions concerning foreseeability be decided as a matter of law … . * * *

Here, the motion court determined that plaintiff’s alleged attack was not foreseeable because “the ‘notice’ plaintiff relies upon concerns other alleged incidents in the steam room, none of which involved plaintiff’s assailant” and that “some of the other incidents]appear to involve consensual behavior.” New York courts, however, have never required prior incidents to have been committed by the same assailant or even be of the same type of conduct to which the plaintiff was subjected … . … [A]t least three of the other gym members reported that they had been sexually harassed, including the member who complained mere weeks before the assault on plaintiff … .

The motion court additionally found that, even if defendants did have a duty to plaintiff to prevent his alleged assault, “they met their duty to implement reasonable policies to decrease the likelihood of such an incident” and plaintiff failed to present a material issue of fact “with respect to these policies and procedures.”  * * *

We find that whether plaintiff’s alleged assault was foreseeable to Equinox and whether Equinox implemented adequate security measures to decrease the likelihood of such incidents are questions of fact and plaintiff’s negligence claim should advance to a jury trial. We cannot say, as a matter of law, that another gym member allegedly assaulting plaintiff against the backdrop of multiple complaints of inappropriate sexual conduct inside the steam room was “extraordinary under the circumstances or not foreseeable in the normal course of events” … . Crandall v Equinox Holdings, Inc., 2024 NY Slip Op 04902, First Dept 10-8-24

Practice Point: Whether an injury to plaintiff was foreseeable from defendant’s perspective can rarely be decided as a matter of law.

 

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THE IDENTITIES OF THE SUBJECTS OF TWO SCHOLARLY ARTICLES LINKING TALCUM-POWDER PRODUCTS WITH MESOTHELIOMA SHOULD BE RELEASED; THE INFORMATION IS NOT PROTECTED BY HIPAA OR THE FEDERAL COMMON RULE; PRODUCTION OF THE INFORMATION WOULD NOT BE UNDULY BURDENSOME AND WOULD NOT DETER FUTURE RESEARCH (FIRST DEPT).

The First Department, reversing Supreme Court’s denial of a petition to enforce an out-of-state subpoena, determined the identities of the subjects of two scholarly articles linking cosmetic talcum powder products with mesothelioma were not protected by HIPAA’s privacy rule or the federal Common Rule:

The information sought by the subpoenas … is clearly relevant to the underlying New Jersey personal injury action. It goes directly to the credibility of these articles, which speak to the central issues in dispute and are relied on by three testifying experts, and whose author was to testify as an expert until she voluntarily withdrew … .

The information sought by the subpoenas is not protected from disclosure by HIPAA’s privacy rule, which does not apply where, as here, the health care providers did not provide physician services in connection with the articles and the subjects were never their patients … .

The information sought by the subpoenas is also not protected from disclosure by the federal Common Rule because the articles to which they relate fall within the exemption for secondary research based on publicly available identifiable private information or biospecimens … .The burden was on the party opposing the subpoenas to prove that this information was produced in the underlying litigations subject to a protective order … . Neither party opposing disclosure of the information has offered any such proof.

Production of the information sought by the subpoenas would not be unduly burdensome, nor is it likely to have a chilling effect on future medical research. The subject information consists of just a few pages, is easily located, does not concern ongoing research, and does not reveal the unpublished thought processes of the researchers. Moreover, the subjects never actually agreed to participate in any research, having released their information in connection with public litigation, and so it is unclear how allowing disclosure of their identities might deter future research participation … . Matter of Johnson & Johnson v Northwell Health Inc., 2024 NY Slip Op 04909, First Dept 10-8-24

Practice Point: The decision outlines the issues involved in seeking the identities of the subjects of two scholarly articles linking talcum-powder products with mesothelioma.

 

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FAILURE TO PRESERVE VIDEO SHOWING THE AREA WHERE PLAINTIFF SLIPPED AND FELL PRIOR TO THE FALL WARRANTED AN ADVERSE INFERENCE CHARGE; UNDER THE FACTS, STRIKING DEFENDANT’S ANSWER WAS TOO SEVERE A SANCTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined striking defendant’s answer for destruction of video evidence in this slip and fall case was not warranted, an adverse inference jury instruction was a sufficient sanction. Defendant provided video of plaintiff’s fall in compliance with plaintiff’s attorney’s request. Nine months later plaintiff’s attorney requested video showing the area prior to the fall, but it had been overwritten by then:

Plaintiffs’ counsel sent defendants a preservation letter approximately seven days following the accident. Defendants responded by producing several minutes of video of the accident itself, which was reasonably compliant with plaintiffs’ request for video surveillance of “the incident.” However, there was no pre-fall video footage provided to aid plaintiffs in establishing defendants’ actual or constructive notice of the alleged hazardous condition on the floor. Defendants’ employee, who culled the video footage provided, was no longer in defendants’ employ and was not available to be deposed as to his or her reasons for selecting particular video footage. Plaintiff’s counsel did not alert defendants of a need for additional video footage depicting the pre-fall circumstances at the accident site until nine months after receipt of the initial video clip, which was well after the software that operated defendants’ surveillance cameras had overwritten the video surveillance from plaintiff’s accident date.

Plaintiff’s proof established that defendants had control over the relevant surveillance and preserved it to the extent requested, but absent deposition testimony from defendant’s former employee who prepared the video clip as to his reasons for selecting the footage he or she did, the culpability issue cannot be definitively resolved. Nevertheless, the destroyed evidence video compromised the fairness of the litigation so as to warrant an adverse inference sanction … . Lev v Eataly USA LLC, 2024 NY Slip Op 04910, First Dept 10-8-24

Practice Point: Plaintiff’s counsel requested video of “the incident” in this slip and fall case, which was provided. Nine months later plaintiff’s counsel requested video showing the area prior to the fall re: the issue of defendant’s notice of the condition. By that time the video had been overwritten. Plaintiff was entitled to an adverse inference jury instruction. Striking the defendant’s answer was deemed too severe a sanction.

 

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THE ARBITRATOR’S INTERPRETATION OF THE COLLECTIVE BARGAINING AGREEMENT WAS NOT IRRATIONAL; THE AWARD MUST BE CONFIRMED EVEN WHERE THE COURT DISAGREES WITH THE INTERPRETATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the arbitrator’s ruling that petitioner firefighters were entitled to paid emergency leave should have been confirmed. In recent weeks, the appellate courts across the state have been emphasizing the finality of an arbitrator’s award, even where the court might have decided the matter differently:

“[J]udicial review of arbitration awards is extremely limited” … . “The court must vacate an arbitration award where the arbitrator exceeds a limitation on his or her power as set forth in the CBA [collective bargaining agreement]” … . The court, however, lacks the authority to “examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one” … .

Here, the arbitrator merely interpreted and applied the provisions of the relevant CBA, as he had the authority to do … . We are powerless to set aside that interpretation even if we disagree with it … . Contrary to respondent’s urging, the arbitrator’s determination was not irrational; nothing in the CBA suggests that a request for emergency leave may not be made prior to the start of a tour of duty, and the arbitrator provided a justification for his determination … . Matter of Local 32, Intl. Assn. of Fire Fighters, A.F.L.-C.I.O.-C.L.C. (City of Utica), 2024 NY Slip Op 04878, Fourth Dept 10-4-24

Practice Point: The appellate courts are making it clear that an arbitrator’s award should not be tampered with by the courts as long as the arbitrator has not exceeded his or her powers.

 

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INFANT PLAINTIFFS ALLEGED MULTIPLE INSTANCES OF SEXUAL MISCONDUCT BY A MALE STUDENT ON THE SCHOOL BUS FROM KINDERGARTEN THROUGH SECOND GRADE; THE FOURTH DEPARTMENT DETERMINED THE DEFENDANT SCHOOL’S EVIDENCE DID NOT CONCLUSIVELY ESTABLISH A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the negligent supervision causes of action against the defendant school, school district, board of education and department of transportation should not have been dismissed. Infant plaintiffs alleged they were subjected to sexual misconduct on a school bus by a male student from kindergarten through second grade. The Fourth Department found that the evidence submitted by the defendants did not demonstrate a lack of notice:

Defendants, as parties moving for summary judgment, had the initial burden of establishing as a matter of law that they lacked actual or constructive notice of “the dangerous conduct which caused injury” … . Here, we conclude that defendants did not meet that burden. In support of their motion, defendants submitted, inter alia, the deposition testimony of the principal of the school at the time of the alleged misconduct. The principal, when asked at his deposition whether he had been aware of any prior “incidents of student sexual assaults” on the bus and whether he had ever had to deal with any student at the school who had been characterized as “sexually violent,” answered both questions in the negative … . That testimony was insufficient to meet defendants’ burden because it failed to address whether the principal knew of incidents within the broader category of sexual misconduct alleged by plaintiffs in their complaints. Plaintiffs alleged that the perpetrator engaged in a wide range of sexual misconduct—some of which was not equivalent to “sexual assault [ ]” and was not “sexually violent.” In short, the principal’s testimony failed to establish that defendants had no actual or constructive notice of any sexual misconduct of the types alleged by plaintiffs … .

Additionally, to the extent that defendants submitted deposition testimony of various other witnesses—including the infant plaintiffs and the bus driver—we conclude that it was insufficient to satisfy defendants’ initial burden with respect to actual or constructive notice. In particular, although the infant plaintiffs and the bus driver testified that they did not report instances of the alleged misconduct to defendants, they were not in a position to know whether there had been prior incidents of sexual misconduct involving the perpetrator and, if so, whether defendants had actual or constructive notice of any of those incidents prior to the sexual misconduct alleged in the complaint … . Their testimony could not establish whether defendants obtained notice by other means … . Porschia C. v Sodus Cent. Sch. Dist., 2024 NY Slip Op 04885, Fourth Dept 10-4-24

Practice Point: Here, on defendant school’s motion for summary judgment in this negligent supervision case, the Fourth Department looked carefully at the school’s evidence of a lack of notice of a student’s sexual misconduct and found the evidence did not address all the possible scenarios which could demonstrate liability and therefore did not support summary judgment.

 

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THE FACT THAT THE POLICE WERE AWARE THE VAN THEY STOPPED HAD REPORTEDLY BEEN INVOLVED IN TWO PRIOR INCIDENTS—(1) A ROAD RAGE SHOOTING AND (2) NEARLY RUNNING OVER A TRAFFIC AGENT ABOUT TO ISSUE A PARKING TICKET—PROVIDED REASONABLE SUSPICION SUPPORTING THE LEVEL THREE TRAFFIC STOP, DESPITE THE FACT THE POLICE DID NOT KNOW WHO WAS DRIVING THE VAN DURING THE PRIOR INCIDENTS (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice O’Neill, affirming defendant’s conviction, over an extensive dissent, determined the police had reasonable suspicion supporting a level three traffic stop. The registration number of the van defendant was driving had been the subject of police reports for two prior incidents, a road rage incident during which a firearm was discharged, and nearly running a traffic agent over when the agent was about to place a parking ticket on the van. When the van was stopped, the driver was asked to step out of van because of the firearm incident. Defendant refused to get out and picked up a firearm. One of the officers tased the defendant three times and he was arrested:

A forceable stop and detention is authorized “[w]here a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor” … .

“Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand. To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion” … .

Here, before stopping the van, the BOLO [be-on-the-lookout] alert notified Officers Amaral and Stokes of the criminal activity involving the van on April 28th; the officers were also aware of the May 17th incident because they both responded to the traffic enforcement agent’s call for backup. The officers’ knowledge of either incident alone furnished reasonable suspicion of criminal activity at hand … . People v Zubidi, 2024 NY Slip Op 04824, First Dept 10-3-24

Practice Point: Here the fact that defendant’s van had reportedly been involved in a road rage shooting and had nearly run over a traffic agent about to issue a parking ticket provided reasonable suspicion justifying a level three traffic stop, despite the fact that the identity of the driver involved in the prior incidents was not known at the time of the stop.

 

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