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E-Mail Met All Criteria for a Stipulation of Settlement Including the “Subscribed Writing” Requirement

In a full-fledged opinion by Justice Sgroi, the Second Department determined an e-mail message satisfied the criteria of CPLR 2104 as a binding and enforceable stipulation of settlement.

The e-mail, written by plaintiff’s counsel, read:

“Per our phone conversation today, May 3, 2011, you accepted my offer of $230,000 to settle this case. Please have your client executed [sic] the attached Medicare form as no settlement check can be issued without this form.

“You also agreed to prepare the release, please included [sic] the following names: Xerox Corporation, Gelco Corporation, Mitchell G. Maller and Sedgwick CMS. Please forward the release and dismissal for my review. Thanks Brenda Greene.”

The court determined the phrase “Thanks Brenda Greene” rendered the e-mail a subscribed writing:

…[W]e hold that where, as here, an email message contains all material terms of a settlement and a manifestation of mutual accord, and the party to be charged, or his or her agent, types his or her name under circumstances manifesting an intent that the name be treated as a signature, such an email message may be deemed a subscribed writing within the meaning of CPLR 2104 so as to constitute an enforceable agreement. Forcelli v Gelco Corp, 2013 NY Slip Op 05437, 2nd Dept 7-24-13

 

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Dismissal of Complaint Was Too Severe a Sanction for Spoliation

The New York City Housing Authority (NYCHA) sued a security company and others based upon a fire that apparently was started by a cigarette carelessly thrown into a wastebasket.  During discovery defendants requested the surveillance video.  Plaintiff had reviewed the video and apparently had deleted portions of it considered unnecessary.  Defendants’ motion to dismiss pursuant to CPLR 3126 (spoliation of evidence) was granted and the complaint was dismissed.  The First Department determined dismissal of the complaint was too severe a penalty and ordered that plaintiff be precluded from using the video as evidence.  The court explained:

As a threshold issue, NYCHA unconvincingly argues that no sanction is appropriate because litigation was not pending when the video was edited. For a spoliation sanction to be applicable, there need only be the “reasonable anticipation of litigation” … . The day after the fire, [NYCHA] was already viewing and editing the video, identifying images he thought would be relevant to determine how the fire started. These actions indicate that NYCHA may have been contemplating litigation, or at least wanted to identify the culpable person, and therefore the records were destroyed with a “culpable state of mind” … . For the purposes of a spoliation sanction, “[a] culpable state of mind . . . includes ordinary negligence”… .

Although NYCHA should be sanctioned for the destruction of portions of the surveillance video, the dismissal of the complaint was too harsh a remedy. Dismissing an action is “usually not warranted unless the evidence is crucial and the spoliator’s conduct evinces some higher degree of culpability” … . It is a “drastic sanction” and should only be done when a party has destroyed key evidence… .

The record does not support defendants’ contention that dismissal is required because the unredacted video is key evidence without which they will be “substantially prejudiced”… . New York City Hous Auth v Pro Quest Sec, Inc, 2013 NY Slip Op 05429, 1st Dept 7-23-13

 

Janitorial Schedule Alone Not Enough to Demonstrate Lack of Constructive Notice

In a slip and fall case, over a dissent, the First Department determined the defendant did not demonstrate a lack of constructive notice of a wet substance on the stairway of defendant’s apartment building.  Although the defendant produced evidence of a janitorial schedule, the defendant did not present any evidence the schedule was followed on the day of the accident:

…[D]efendant submitted the deposition testimony of its superintendent about the building’s regular janitorial schedule. However, it offered no evidence that the schedule was followed on the day of the accident … . Moreover, constructive notice remains an issue in this case because defendant made no showing as to when the stairway was last inspected before plaintiff’s accident… . Gautier v 941 Intervale Realty, LLC, 2013 NY Slip Op 05432, 1st Dept 7-23-13

 

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Trivial Defect in Sidewalk Not Actionable/First Floor Tenant Abutting Sidewalk Not a Proper Defendant

In a sidewalk slip and fall case, over a substantial dissent, the First Department determined “a three-quarter-inch expansion joint, which was not filled to grade level, coupled with a one-fourth-inch height differential between slabs … was “trivial” and therefore not actionable as a matter of law…”.  Although there was evidence the width of the expansion joint exceeded the Department of Transportation construction specifications, the First Department noted there was no evidence the sidewalk was constructed with the defect.  The First Department also dismissed the action against the first-floor commercial tenant of the abutting building on the ground that the tenant was not an owner within the meaning of section 7-210 of the Administrative Code of the City of New York.  Fayolle v East W Manhattan Portfolio LP, 2013 NY Slip Op 05431, 1st Dept 7-23-13

 

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Agent Owed No Special Duty to Insured; No Duty to Advise Insured of Unpaid Premiums for Policy Assigned to Insured

The Fourth Department dismissed a negligence cause of action as time-barred and a contract cause of action because the defendant insurance agent owed no special duty to advise the plaintiff.  The plaintiff asked for and received an assignment of a workers’ compensation policy which had been held by nonparty API. Unbeknownst to the plaintiff at the time of the assignment, API owed unpaid premiums. In reversing Supreme Court’s denial of defendant’s motion for summary judgment, the Fourth Department determined the statute of limitations for the negligence cause of action started when the assignment of the workers’ compensation insurance policy to plaintiff was signed, not when plaintiff learned of the unpaid premiums, and the contract between plaintiff and the defendant insurance agent did not impose a special duty on the agent to advise the plaintiff about the unpaid premiums:

…[U]pon the execution of the assignment, which shifted liability for arrears in policy premiums from API to plaintiff, plaintiff’s damages were “sufficiently calculable to permit plaintiff to obtain prompt judicial redress of that injury” and plaintiff therefore had a “complete cause of action” …. The fact that plaintiff may not have learned of the amount owed … on the date on which NYSIF commenced the action against it [for the unpaid premiums], does not alter the analysis for statute of limitations purposes… .  * * *

“ ‘[A]n insurance agent’s duty to its customer is generally defined by the nature of the customer’s request for coverage’ ” ….  “ ‘Absent a specific request for coverage not already in a client’s policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide[ ] or direct a client to obtain additional coverage’ ” …. “To set forth a case for negligence or breach of contract against an insurance broker, a plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy” ….  “A general request for coverage will not satisfy the requirement of a specific request for a certain type of coverage”… .

Here, plaintiff requested only that defendant procure the “best policy value” for plaintiff’s workers’ compensation coverage.  This is “the very kind of request that has been repeatedly held to be insufficient” to trigger a special duty requiring defendant to advise plaintiff concerning its insurance coverage… . Defendant procured workers’ compensation coverage for plaintiff through the assignment of API’s policy.  …[T]he assignment itself indicated that plaintiff would be responsible “for the payment of any premiums or additional premiums . . . which may become due on account of this policy up to the effective date of this assignment of interest agreement.”  Plaintiff has thus failed to state a breach of contract cause of action because there was no specific request for coverage that defendant failed to meet… .  5 Awnings Plus, Inc v Insurance Group, Inc, 678, 4th Dept 7-19-13

 

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Pecuniary Loss Defined

In a wrongful death action, the Fourth Department determined that plaintiff, decedent’s brother, was entitled only to pecuniary loss for funeral expenses.  In explaining pecuniary loss, the court wrote:

Damages in a wrongful death action are limited to “fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought” (EPTL 5-4.3 [a]).  “Pecuniary loss” is defined as “the economic value of the decedent to each distributee at the time decedent died” and includes loss of income and financial support, loss of household services, loss of parental guidance, as well as funeral expenses and medical expenses incidental to death….  Generally, because it is difficult to provide direct evidence of wrongful death damages, the calculation of pecuniary loss “is a matter resting squarely within the province of the jury”… .  On this record, we conclude that there are issues of fact with respect to whether plaintiff, as decedent’s brother, suffered pecuniary loss in the form of funeral expenses and whether decedent’s brother Matthew suffered pecuniary loss given the evidence of their longstanding close and interdependent relationship.  Milczarski … v Walaszek…, 656, 4th Dept 7-19-13

 

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Failure to Appeal Dismissal of Underlying Medical Malpractice Action Did Not Preclude Related Legal Malpractice Action

The Fourth Department, over a dissent, allowed a legal malpractice action to go forward, finding that the plaintiff’s failure to appeal the dismissal of the underlying federal medical malpractice action did not preclude the related legal malpractice action. In the federal action, the court determined a physician was an independent contractor, not a government employee, and therefore had to be named individually as a defendant. The action against the physician was dismissed as time-barred. The dissent argued “if plaintiff had been successful in his appeal of the underlying federal action, we would not have a subsequent legal malpractice case.”  In holding that the failure to appeal the federal ruling did not preclude the legal malpractice action, the Fourth Department distinguished a prior case, Rupert v Gates and Adams, PC, 83 AD3d 1383, relied upon by the defendants:

We reject defendants’ invitation to extend the ruling in Rupert to a per se rule that a party who voluntarily discontinues an underlying action and forgoes an appeal thereby abandons his or her right to pursue a claim for legal malpractice. …

Although the precise question presented herein appears to be an issue of first impression in New York, we note that several of our sister states have rejected the per se rule advanced by defendants herein… .  … [S]uch a rule would force parties to prosecute potentially meritless appeals to their judicial conclusion in order to preserve their right to commence a malpractice action, thereby increasing the costs of litigation and overburdening the court system ….  The additional time spent to pursue an unlikely appellate remedy could also result in expiration of the statute of limitations on the legal malpractice claim ….  Further, requiring parties to exhaust the appellate process prior to commencing a legal malpractice action would discourage settlements and potentially conflict with an injured party’s duty to mitigate damages… .  Grace v Law, et al, 625, 4th Dept 7-19-13

 

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Fact that Medical Guidelines May Be Available to the Public Does Not Warrant Denial of Discovery of Such Documents from the Defendant

The Fourth Department determined Supreme Court had erred in denying certain of plaintiff’s discovery demands in a medical malpractice case alleging injuries sustained by infant plaintiff during birth.  The materials deemed material and necessary (and not unduly burdensome to produce) included: standards for fetal monitoring and pediatric advancement of life support; a protocol entitled “Circulating Vaginal Delivery;” interpretation and management of fetal heart rate patterns; and specified guidelines and standards published by medical associations.  The Fourth Department noted that the fact that standards and guidelines may be available to the public is not a ground for denying discovery.  The court explained the discovery criteria generally as follows:

…[W]e note that CPLR 3101 requires “full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR 3101 [a]).  The phrase “ ‘material and necessary should be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason’ ”… .  “Entitlement to discovery of matter satisfying the threshold requirement is, however, tempered by the trial court’s authority to impose, in its discretion, appropriate restrictions on demands which are unduly burdensome . . . and to prevent abuse by issuing a protective order where the discovery request may cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts”  (…see CPLR 3103 [a]).  In opposing a motion to compel discovery, a party must “establish that the requests for information are unduly burdensome, or that they may cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (…see generally CPLR 3103 [a]).  Rawlins…v St Joseph’s Hospital Health Center…, 659, 4th Dept 7-19-13

 

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Supreme Court’s Setting Aside Jury Verdict Reversed; Use of Juror-Affidavits to Correct Mistake in Verdict Okay

In a medical malpractice case, the Fourth Department reversed Supreme Court’s setting aside the jury verdict which found the negligence of one defendant (Caputo) was not a substantial factor in causing plaintiff’s injuries. In addition, over a dissent, the Fourth Department found the use of juror affidavits to correct a mistake in the verdict was proper.  The Fourth Department wrote:

“A verdict finding that a defendant was negligent but that such negligence was not a proximate cause of the [plaintiff’s injuries] is against the weight of the evidence only when [those] issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause”….  “Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” … .  Here, plaintiffs alleged four different theories of negligence against Dr. Caputo, and we conclude that there is a reasonable view of the evidence to support a finding that Dr. Caputo was negligent in failing to provide [the] resident staff with adequate information concerning the operative procedure and plaintiff’s postoperative care, but that such failures were not the proximate cause of plaintiff’s injuries… .

…[T]he court properly granted plaintiffs’ “supplemental motion” to correct the verdict with respect to the award of damages for plaintiff’s future pain and suffering.  In support of the “supplemental motion,” plaintiffs submitted affidavits from all six jurors, who averred that they understood and agreed that plaintiff would receive $60,000 per year for a period of 30 years, not a total of $60,000 over the course of that period….  We acknowledge that “public policy concerns disfavor the use of juror affidavits for posttrial impeachment of a verdict” … .  Here, however, “[t]he information afforded by the affidavits of the jurors is not to impeach, but to support the verdict really given by them”… .  Butterfield v Caputo, et a;l, 602, 4th Dept 7-19-13

 

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Expert’s Affidavit Too Speculative to Raise Question of Fact About Proximate Cause

In reversing Supreme Court and dismissing a medical malpractice complaint, the Fourth Department determined plaintiff’s expert affidavit was speculative and therefore failed to raise a question of fact about whether the alleged negligence (the failure to order a particular CT scan) was the proximate cause of the injury:

The expert contends that, if that CT scan had been performed on February 16, 2004, “then diagnosis of [decedent]’s aortic dissection . . . would, more probably than not, have been made.”  Significantly, however, the medical records indicate that it was a CT scan of decedent’s head and chest, not a scan of his pelvis and abdomen, that revealed an aortic dissection on March 1, 2004.  Thus, the opinion of plaintiff’s expert that an abdominal and pelvic CT scan performed on February 16, 2004 would more likely than not have revealed an aortic dissection is speculative.  Wilk … v James, et al, 401, 4th Dept 7-19-13

 

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