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​ IN THIS LEGAL MALPRACTICE ACTION, THE EVIDENCE SUBMITTED BY DEFENDANT ATTORNEYS IN SUPPORT OF THE MOTION TO DISMISS WAS NOT “DOCUMENTARY EVIDENCE;” THE PROOF REQUIREMENTS FOR A MOTION TO DISMISS ARE DIFFERENT FROM THE PROOF REQUIREMENTS FOR SUMMARY JUDGMENT; THE MOTION TO DISMSS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss in this legal malpractice case should not have been granted because the evidence offered in support of the motion (a letter from the insurer denying coverage and the insurance policy) was not “documentary evidence.” In addition, the Second Department noted that any deficiencies in the complaint were remedied by plaintiff’s affidavit submitted in opposition to the motion to dismiss. The complaint alleged defendant attorneys failed to timely file an action seeking recovery for personal injuries from a disability-insurance carrier:

“‘Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 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, [thereby] 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)” … . Maursky v Latham, 2023 NY Slip Op 04115, Second Dept 8-2-23

Practice Point: Irrespective of the possible result of a summary judgment motion, a motion to dismiss which depends on evidence and is not supported by “documentary evidence” will lose.

 

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THE DEFENDANT’S AFFIDAVIT SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS WAS NOT “DOCUMENTARY EVIDENCE” WHICH UTTERLY REFUTED THE ALLEGATIONS IN THE COMPLAINT; EVEN THOUGH DEFENDANT MIGHT WIN AT THE SUMMARY JUDGMENT STAGE, THE PROOF REQUIREMENTS FOR DISMSSAL ARE DIFFERENT AND WERE NOT MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant contractor’s motion to dismiss the complaint against him individually should not have been granted. Defendant, Gabbay, executed the subject home renovation contract on behalf of “Dansha Corp.,” an entity which does not exist. Defendant asserted in an affidavit submitted to support the motion to dismiss, that “Dansh Corp.” is a trade name for “Dansha Realty Corp.,” which does exist. Therefore, defendant argued, he can not be individually liable on the contract. However, irrespective of what might be determined in a motion for summary judgment, a motion to dismiss which relies on evidence must be supported by “documentary evidence.” Defendant’s affidavit does not constitute “documentary evidence:”

Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), and such proof is considered but the motion has not been converted to one for summary judgment, ‘the criterion is whether the proponent of the pleading has a cause of action, not whether [the proponent] has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it[,] . . . dismissal should not eventuate'” … . “‘Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss'” … . “A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law” … . …

Although there is “no individual liability for principals of a corporation for actions taken in furtherance of the corporation’s business” … , “‘a person entering into a contract on behalf of a nonexistent corporate entity may be held personally liable on the contract'” … . Here, accepting the allegations in the complaint as true and giving the plaintiff the benefit of every possible favorable inference, the complaint states causes of action against Gabbay to recover damages for breach of contract … and money had and received … . There is no dispute that “Dansha Corp.,” the entity named as the general contractor in the contract, does not exist. Furthermore, the evidence submitted by Gabbay failed to conclusively establish that “Dansha Realty Corp.” was the intended party to the contract for purposes of a prediscovery CPLR 3211 motion to dismiss … . The affidavit submitted by Gabbay in support of the motion was not “documentary” within the meaning of CPLR 3211(a)(1) … , and the remainder of the evidence, including invoices sent to the plaintiff from “Dansha Corp.,” do not prove that “Dansha Corp.” is a trade name for “Dansha Realty Corp.” … . Churong Liu v Gabbay, 2023 NY Slip Op 04108, Second Dept 8-2-23

Practice Point: This decision illustrates the different proof requirements for a motion to dismiss based on documentary evidence and a motion for summary judgment. Irrespective of whether a party may win a summary judgment motion, a motion to dismiss supported by an affidavit which is not “documentary evidence” will not win.

 

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THE PAVING CONTRACTOR FAILED TO DEMONSTRATE IT DID NOT LAUNCH AN INSTRUMENT OF HARM (A LIP OR HEIGHT DIFFERENTIAL IN THE ROAD SURFACE) WHICH CAUSED PLAINTIFF’S SLIP AND FALL; THEREFORE THE CONTRACTOR DID NOT NEGATE THE APPLICABILITY OF THE ESPINAL EXCEPTION TO THE RULE THAT CONTRACTORS ARE GENERALLY NOT LIABLE TO THIRD PARTIES (SECOND DEPT).

​The Second Department, reversing (modifying) Supreme Court, determined the defendant paving company (DeBartolo) failed to eliminate a question of fact about whether it created the dangerous condition (i.e., launched the instrument of harm) which is alleged to have caused plaintiff’s slip and fall. The complaint alleged DeBartolo paved over existing pavement, created the height-differential over which plaintiff tripped. Although a contractor like DeBartolo ordinarily does not owe a duty of care to a third party who is not a party to the contract, the so-called Espinal exceptions apply when a contractor is alleged to have “launched an instrument of harm.” Once that theory of liability is alleged, the contractor seeking summary judgment must present evidence negating the allegation which DeBartolo failed to do:

… [T]he plaintiffs pleaded in their amended complaint and bill of particulars that DeBartolo Landscaping created the alleged dangerous condition that caused the injured plaintiff to fall as a result of, among other things, failing to properly repave the area. Therefore, DeBartolo Landscaping, in support of that branch of its motion which was for summary judgment dismissing the amended complaint insofar as asserted against it, had to establish, prima facie, that it did not create the dangerous or defective condition alleged (see Espinal v Melville Snow Contrs., 98 NY2d at 140 …). * * * … [The] evidence reveals … that DeBartolo Landscaping resurfaced Shady Glen Court in the area of the crosswalk prior to the subject accident, and that the resurfacing, which involved the application of new asphalt on top of the existing pavement, immediately resulted in a lip or elevation differential at the seam between the existing pavement and new asphalt. Thus, this evidence failed to demonstrate that Debartolo Landscaping did not create the alleged dangerous condition that caused the injured plaintiff to fall … . Camelio v Shady Glen Owners’ Corp., 2023 NY Slip Op 04105, Second Dept 8-2-23

Practice Point: Generally contractors are not liable to persons who are not parties to the contract. However, under the Espinal case, contractors can be liable to third persons if they “launch an instrument of harm.” If, as here, the plaintiff alleges the contractor launched an instrument of harm, the contractor must negate that allegation to be entitled to summary judgment. Here the proof did not negate the applicability of the Espinal exception.

 

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DEFENDANTS’ EXPERTS’ CLAIMS THAT DEFENDANTS PROVIDED PROPER CARE AND ADVICE IN THIS MEDICAL MALPRACTICE ACTION WERE BELIED BY THE MEDICAL RECORDS AS EXPLAINED BY PLAINTIFF’S EXPERTS; QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff’s experts in this medical malpractice action raised questions of fact about the negligence of each defendant. The decision is fact-specific and far too detailed to fairly summarize, but it provides insight into when expert affidavits are deemed sufficiently substantive to raise questions of fact:

… [W]hen viewed in a light most favorable to plaintiff, we find that the record raises several questions of fact as to whether each defendant satisfied the standard of care applicable to him or it … . Despite that each defendant and their respective experts opined that decedent was not presenting with the signs or symptoms of a stroke, this is belied by the medical record, which establishes that decedent was experiencing a stroke and/or vertebral artery dissection during the relevant time period that they treated decedent and presented with the “classic” symptoms associated with a stroke. At a minimum, these differing opinions create a question of fact, which plaintiff’s experts highlighted in so far that each defendant deviated from the standard of care by failing to refer decedent to a specialist or neurologist … . McCarthy v Town of Massena, N.Y. (Massena Mem. Hosp.)2023 NY Slip Op 03959, Third Dept 7-27-23

Practice Point: Here the medical records as explained by plaintiff’s experts raised questions of fact about whether plaintiff’s decedent was exhibiting symptoms of a stroke at the time defendants treated him, a diagnosis defendants allegedly failed to make.

 

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ORDERS COMPELLING ANSWERS TO DEPOSITION QUESTIONS OR PRECLUDING QUESTIONING ARE NOT APPEALABLE AS OF RIGHT; A REQUEST FOR PERMISSION TO APPEAL AFTER THE APPEAL IS PERFECTED IS GENERALLY DENIED; THE HOSPITAL DID NOT DEMONSTRATE THE SUBJECT MEDICAL RECORDS WERE PRIVILEGED AS PART OF A QUALITY ASSURANCE REVIEW (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined (1) there is no appeal as of right from the denial of a motion to compel a witness to answer deposition questions, (2) there is no appeal as of right from a protective order precluding certain questioning, (3) an appellate court will generally not consider a request for permission to appeal made after the appeal is perfected, (4) the hospital did not demonstrate certain medical records were privileged as part of a quality assurance review:

… [T]he plaintiffs sought leave to appeal after their appeal was perfected. As this Court has repeatedly observed under comparable circumstances, “‘we are disinclined to grant leave to parties who have taken it upon themselves to perfect an appeal without leave to appeal'” … . * * *

Pursuant to Education Law § 6527(3), certain documents generated in connection with the “performance of a medical or a quality assurance review function,” or reports “required by the department of health pursuant to [Public Health Law § 2805-l],” are generally not discoverable … . Nyack Hospital, as the party seeking to invoke the privilege, had the burden of demonstrating that the documents sought were prepared in accordance with the relevant statutes … . Nyack Hospital merely asserted that a privilege applied to the requested documents without making any showing as to why the privilege attached. Martino v Jae Ho Lee, 2023 NY Slip Op 03915, Second Dept 7-26-23

Practice Point: If an order is not appealable as of right (here orders re: compelling answers or precluding questions during deposition), the appellate court will not generally grant permission to appeal after the appeal is perfected.

Practice Point:  Here in this med mal case the hospital did not demonstrate the medical records were privileged as part of a quality assurance review.

 

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IN THIS SLIP AND FALL CASE, THE JURY PROPERLY FOUND THE LANDLORD NEGLIGENTLY FAILED TO MAINTAIN A HANDRAIL BUT THE LOOSE HANDRAIL WAS NOT A PROXIMATE CAUSE OF THE FALL (SECOND DEPT). ​

The Second Department, over a dissent, determined the jury in this slip and fall case properly rejected plaintiff’s testimony because it was inconsistent. The jury found that the landlord negligently failed to maintain a handrail which had become loose, but that the loose handrail was not a proximate cause of plaintiff’s fall:

Given the nature of the plaintiff’s testimony, there is no basis to disturb the jury’s determination. “Where, as here, ‘there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view'” … .

Moreover, the jury was not required to accept the testimony of the plaintiff’s expert to the exclusion of the facts and circumstances provided by other testimony and evidence—including the plaintiff’s own inconsistent version of the accident … . Although the plaintiff’s expert opined that the proximate cause of the accident was the loose handrail, the expert admitted at trial that the plaintiff’s testimony that she was disposing of a bag of garbage prior to the accident was not included in his report. Thus, the jury was free to reject the opinion proffered by the plaintiff’s expert despite the absence of a defendant’s expert. Galeano v Giambrone, 2023 NY Slip Op 03909, Second Dept 7-26-23

Practice Point: Because of the plaintiff’s inconsistent testimony about how she fell, the jury properly rejected her testimony as well and the plaintiff’s expert’s testimony, despite the absence of a defense expert. The jury could have properly determined the landlord was negligent in failing to maintain a handrail, but the loose handrail was not a proximate cause of the plaintiff’s fall.

 

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THE NEGLIGENCE AND NEGLIGENT SUPERVISION AND HIRING CAUSES OF ACTION AGAINST THE WARREN COUNTY DEFENDANTS IN THIS CHILD VICTIMS ACT CASE ALLEGING ABUSE IN FOSTER CARE SHOULD HAVE BEEN DISMISSED; THE COMPLAINT DID NOT ADEQUATELY ALLEGE THE WARREN COUNTY DEFENDANTS WERE AWARE OF THE DANGER POSED BY PLAINTIFF’S FOSTER FATHER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the negligence and negligent supervision causes of action against the Warren County defendants in this Child Victims Act case should have been dismissed. The complaint did not adequately allege the Warren County defendants were aware of the danger posed by plaintiff’s foster father:

… [W]e agree with the Warren County defendants that Supreme Court should have dismissed the negligence and negligent hiring, retention, supervision and/or direction causes of action as they relate to the conduct in Warren County. The complaint alleged that, in approximately 1979, plaintiff was placed in a foster home in Warren County, where he was sexually abused by his foster father on numerous occasions. Although we are cognizant that pleadings alleging negligent hiring, retention and supervision need not be pleaded with specificity … , the complaint merely asserts that the Warren County defendants “knew or, in the exercise of reasonable care, should have known” that the foster father “had the propensity to engage in sexual abuse of children.” Unlike in the counties of Albany and Cayuga — where plaintiff alleges that he reported the sexual abuse, thereby providing the municipal defendants with notice of the dangerous condition — the complaint fails to assert any allegations of fact that would have provided the Warren County defendants with notice that the foster father presented a foreseeable harm. Because plaintiff failed to sufficiently plead that the Warren County defendants were provided notice of a dangerous condition present in the Warren County foster home, that claim could not survive a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7) … , and Supreme Court should have dismissed those claims against the Warren County defendants. Easterbrooks v Schenectady County, 2023 NY Slip Op 03889, Third Dept 7-20-23

Practice Point: In order to adequately plead a county was negligent in placing plaintiff in a foster-care situation where plaintiff was abused, the complaint must allege facts demonstrating the county was aware of the danger posed by the foster parent.

 

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DEFENDANT DID NOT PROVE THE EXISTENCE OF A PRESCRIPTIVE EASEMENT OVER PLAINTIFF’S LAND; PLAINTIFF DID NOT PROVE THE DAMAGES ELEMENT OF TRESPASS (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the requirements for a prescriptive easement over plaintiff’s property were not met and plaintiff did not prove the damages element of the trespass action. Plaintiff, however, was entitled to nominal damages for trespass:

… [O]ur independent review of the trial evidence reflects that defendant did not establish that the adverse use of the road continued for the requisite 10-year period. It follows that defendant’s counterclaim for a prescriptive easement must be dismissed and that, in the absence of that easement, [defendant] committed a trespass when he entered upon plaintiff’s property in 2004 … . * * *

… [P]laintiff failed to meet her burden of proving “[t]he lesser of the diminution in value of the property or the cost to repair” that would be the ordinary measure of damages for a trespass … or, for that matter, the loss of a specific number of trees for purposes of RPAPL 861 … . She was accordingly not entitled to an award of actual damages. Nevertheless, because “nominal damages can be presumed in an action for trespass to real property,” dismissal of her trespass claim was not warranted upon that basis … . Mastbeth v Shiel, 2023 NY Slip Op 03895, Third Dept 7-20-23

Practice Point: Here defendant did not prove 10 years of hostile use of plaintiff’s property and therefore did not demonstrate a prescriptive easement. Plaintiff did not prove the damages element of trespass and therefore was entitled only to nominal damages.

 

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ALTHOUGH THE PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY ORDERS WAS WILLFUL AND CONTUMACIOUS, PRECLUSION OF EXPERT EVIDENCE IN THIS MEDICAL MALPRACTICE CASE WAS TOO SEVERE A SANCTION; PLAINTIFF’S ATTORNEY FINED $5000 (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined preclusion of evidence in this medical malpractice case as a sanction for failure to provide discovery was too severe a sanction. The appellate court imposed a monetary sanction on plaintiff’s attorney:

Supreme Court found that plaintiff’s trial counsel engaged in willful and contumacious conduct which delayed resolution of this case, and the record supports such a finding. Defense counsel requested an amended bill of particulars in May 2019 and an amended expert disclosure in October 2019. Despite a plethora of emails and letters from defense counsel, various conferences, scheduling orders and an order compelling compliance with discovery, plaintiff’s trial counsel failed to correct the deficiencies in the discovery disclosure prior to defendant filing a motion for sanctions. Under these circumstances, we agree with Supreme Court that the conduct exhibited by plaintiff’s trial counsel was willful and contumacious and that, upon such finding, the drastic sanction of preclusion was available … . * * *

Having considered the record as a whole, including the supplemental discovery disclosures, the affidavit of merit, the lack of prejudice to defendant and the nature and root of the misconduct, we vacate the August 2022 order that precluded plaintiff from proffering certain evidence and expert witnesses. Exercising our discretion, and given the strong public policy favoring resolution of actions on the merits, we accept the late amended bill of particulars as responsive to the outstanding demand … .. However, the willful and contumacious misconduct by plaintiff’s trial counsel cannot be condoned, as disregard of court orders hinders the efficient resolution of cases … . To dissuade this conduct from repeating, we impose a monetary sanction on plaintiff’s trial counsel in the amount of $5,000 … . M.F. v Albany Med. Ctr., 2023 NY Slip Op 03896, Third Dept 7-20-23

Practice Point: Here the appellate court determined the preclusion of evidence, including expert evidence, in this medical malpractice action was too severe a sanction for disobeying discovery orders. The attorney was fined $5000 for willful and contumacious conduct.

 

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​ PLAINTIFF’S FAILURE TO PROVIDE DISCOVERY AND A BILL OF PARTICULARS WARRANTED DISMISSAL OF THE COMPLAINT AS A SANCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s motion to dismiss the complaint by plaintiff Morales based upon Morales’s failure to provide discovery and a bill of particulars should have been granted:

… Morales’s willful and contumacious conduct can be inferred from her repeated failures over an extended period of time to comply with court-ordered discovery and the parties’ discovery stipulation and to respond to the defendants’ demands for a verified bill of particulars and discovery without an adequate excuse … . Contrary to the Supreme Court’s determination, the requirements of 22 NYCRR 202.7 were satisfied by the affirmations of the defendants’ attorneys, which, inter alia, adequately set forth counsels’ good faith efforts to resolve the discovery issues raised by the defendants’ motion … . Morales v Valeo, 2023 NY Slip Op 03861, Second Dept 7-19-23

Practice Point: Here plaintiff’s failure to provide discovery and a bill of particulars warranted dismissal of the complaint (by the appellate court) as an appropriate sanction.

 

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