Civil Procedure Update January 2019

Civil Procedure Update January 2019

Course #MSC1140 (Transitional and Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Hybrid Accreditation for February 5, 2020, through February 4, 2021

This Course Is Appropriate for Newly Admitted and/or Experienced Attorneys

Areas of Professional Practice: 0.5 CLE Credit Hour

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between January 1, 2019 and January 31, 2019 which address issues in “Civil Procedure.” Similar CLE courses are continuously being submitted for approval to the NYS CLE Board for each month from January 2019 to the present, to provide readers with CLE credit simply for keeping up to date with the latest appellate decisions.  Each monthly CLE course will be posted on the New York Appellate Digest website as it is approved by the NYS CLE Board.

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly “Update Pamphlets” which are accessed in the “Update Service.” The monthly “Update Pamphlets” posted in the “Update Service” comprise the written materials for each of these monthly 1/2-to-1-credit-hour CLE courses.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey.” Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will then email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 0.5 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (“Revised Civil Procedure Pamphlet January 2019”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

Revised Civil Procedure Pamphlet January 2019

Civil Procedure Update January 2019 Attorney Affirmation

Civil Procedure Update January 2019 Evaluation Survey

Topics Covered in the “Civil Procedure Update January 2019” Course Are Described Below (the podcast does not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the “Revised Civil Procedure Pamphlet January 2019”

BORROWING STATUTE.

LEGAL MALPRACTICE ACTION BROUGHT BY A NEW JERSEY RESIDENT IS UNTIMELY PURSUANT TO NEW YORK’S BORROWING STATUTE, NEW YORK’S SHORTER STATUTE OF LIMITATIONS WAS APPLIED (FIRST DEPT). 6

DEBTOR-CREDITOR, JOINT TENANTS, SAFETY DEPOSIT BOX.

THE CONTENTS OF A SAFE DEPOSIT BOX CONSTITUTED THE PROPERTY OF JOINT TENANTS WITH RIGHTS OF SURVIVORSHIP, THEREFORE THE CONTENTS ARE AVAILABLE TO SATISFY A JUDGMENT AGAINST ONLY ONE OF THE JOINT TENANTS (FIRST DEPT). 7

DISCOVERY, ATTORNEY-CLIENT PRIVILEGE, WAIVER.

NEW YORK CITY HOUSING AUTHORITY COULD NOT AVOID DISCLOSURE OF RELEVANT DOCUMENTS BY RELYING ON ATTORNEY-CLIENT PRIVILEGE BECAUSE IT HAD PLACED THE KNOWLEDGE OF ITS LAW DEPARTMENT AT ISSUE, MOTION TO COMPEL WAS PROPERLY GRANTED, MONETARY SANCTIONS WERE PROPERLY ORDERED, WILLFUL AND CONTUMACIOUS BEHAVIOR NEED NOT BE SHOWN UNLESS A DRASTIC REMEDY LIKE STRIKING THE PLEADINGS IS IMPOSED (FIRST DEPT). 8

DISCOVERY, CLASS ACTIONS.

TIMELINESS OF A MOTION SEEKING CLASS CERTIFICATION IS MEASURED BY THE INITIAL MOTION, NOT A SUBSEQUENT MOTION TO RENEW AFTER DENIAL WITHOUT PREJUDICE, DEFENDANTS WERE EFFECTIVELY PREVENTING PLAINTIFFS FROM RENEWING THE CLASS CERTIFICATION MOTION BY REFUSING TO TURN OVER PAYROLL DATA TO WHICH THE PLAINTIFFS WERE ENTITLED (SECOND DEPT). 9

DISCOVERY, RESPONDEAT SUPERIOR, NEGLIGENCE, MUNICIPAL LAW.

CITY’S POTENTIAL LIABILITY FOR THE ACTIONS OF A CITY BUS DRIVER WAS BASED ON RESPONDEAT SUPERIOR, THEREFORE A NEGLIGENT HIRING AND RETENTION ACTION WAS NOT VIABLE AND THE DRIVER’S PERSONNEL FILE WAS NOT DISCOVERABLE (SECOND DEPT). 10

DISCOVERY, SOCIAL MEDIA, PHYSICAL ACTVITIES.

MOTION TO COMPEL ACCESS TO PLAINTIFF’S DEVICES, EMAIL ACCOUNTS AND SOCIAL MEDIA ACCOUNTS TO OBTAIN EVIDENCE OF PLAINTIFF’S PHYSICAL ACTIVITIES SINCE THE TRAFFIC ACCIDENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). 11

FORECLOSURE, AFFIRMATION.

AFFIRMATION CONTESTING SERVICE DID NOT CONFORM TO NEW YORK LAW AND THEREFORE DID NOT REBUT THE PROCESS SERVER’S AFFIDAVIT (SECOND DEPT). 11

FORECLOSURE, JUDGES, SUA SPONTE.

JUDGE WAS NOT PRESENTED WITH ANY EXTRAORDINARY CIRCUMSTANCES JUSTIFYING, SUA SPONTE, DISMISSAL OF THE COMPLAINT IN THIS FORECLOSURE ACTION (SECOND DEPT) 12

FORECLOSURE, STANDING, APPEALS.

PLAINTIFF, AFTER FAILING TO ARGUE THAT DEFENDANTS WAIVED THE LACK OF STANDING DEFENSE BEFORE SUPREME COURT, COULD NOT RAISE DEFENDANTS’ WAIVER OF THE DEFENSE FOR THE FIRST TIME ON APPEAL, PLAINTIFF DID NOT DEMONSTRATE STANDING TO COMMENCE THE FORECLOSURE ACTION (SECOND DEPT). 13

FORECLOSURE, STANDING.

DEFENDANT DID NOT MAKE A PRIMA FACIE SHOWING THAT PLAINTIFF BANK DID NOT HAVE STANDING IN THIS FORECLOSURE ACTION BY MERELY POINTING OUT ALLEGED GAPS IN PLAINTIFF’S CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, THEREFORE, SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 14

FORECLOSURE, STANDING.

MERE DENIAL OF THE ALLEGATIONS IN A FORECLOSURE COMPLAINT THAT THE PLAINTIFF IS THE OWNER AND HOLDER OF THE NOTE AND MORTGAGE IS NOT SUFFICIENT TO ASSERT THE DEFENSE THAT THE PLAINTIFF LACKS STANDING, PRECEDENT TO THE CONTRARY OVERRULED (SECOND DEPT). 14

FORECLOSURE, STANDING.

PLAINTIFF BANK WAS PROPERLY ALLOWED TO RECOMMENCE THE FORECLOSURE ACTION AFTER IT WAS DISMISSED AS ABANDONED PURSUANT TO CPLR 3215, HOWEVER PLAINTIFF DID NOT DEMONSTRATE IT HAD STANDING AND ITS SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT). 16

INSURANCE LAW, CONTRACT LAW, CONSEQUENTIAL DAMAGES.

THERE IS NO HEIGHTENED PLEADING REQUIREMENT FOR CONSEQUENTIAL DAMAGES STEMMING FROM A BREACH OF AN INSURANCE CONTRACT, PLAINTIFF ALLEGED THE INSURER’S DELAY IN PAYING THE CLAIM FOR DAMAGE TO PLAINTIFF’S BUILDING, WHICH SHIFTED WHEN WORK WAS DONE ON AN ADJOINING BUILDING, RESULTED IN AN ARRAY OF CONSEQUENTIAL DAMAGES, THE CONSEQUENTIAL DAMAGES ASPECT OF THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). 17

JUDGES, JURORS.

TRIAL JUDGE SHOULD HAVE CONDUCTED AN INQUIRY AFTER RECEIVING A NOTE INDICATING THAT A JUROR COULD NOT CONTINUE, INSTEAD THE JUDGE REPLACED THE JUROR WITH AN ALTERNATE WITHOUT AN INQUIRY, NEW TRIAL ORDERED (SECOND DEPT). 18

JUDGES, SUA SPONTE, DECLARATORY JUDGMENTS.

IN THIS HYBRID ARTICLE 78-DECLARATORY JUDGMENT ACTION, THE PORTIONS OF THE PETITION WHICH SOUGHT A DECLARATION THAT AMENDMENTS TO THE ZONING CODE ARE ILLEGAL AND RELATED DAMAGES SHOULD NOT HAVE BEEN DISMISSED, SUA SPONTE, IN THE ABSENCE OF A SPECIFIC DEMAND FOR DISMISSAL (SECOND DEPT). 19

JUDGES, SUA SPONTE.

JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THIS DIVORCE ACTION ON A GROUND NOT RAISED BY THE PARTIES (SECOND DEPT). 19

JURISDICTION, FOREIGN CORPORATIONS.

A CORPORATION’S REGISTRATION WITH THE DEPARTMENT OF STATE IS NO LONGER DEEMED CONSENT TO BE SUED IN NEW YORK, FORD’S AND GOODYEAR’S MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED, THE SUIT STEMMED FROM A ROLLOVER ACCIDENT IN VIRGINIA (SECOND DEPT). 20

JURISDICTION, LONG-ARM.

PLAINTIFF’S DECEDENT WAS NOT ENGAGED IN CONSTRUCTION WORK COVERED BY LABOR LAW 240 (1) AND 241 (6) WHEN A BRIDGE FORM HE WAS UNLOADING FELL ON HIM, PLAINTIFF MADE A SUFFICIENT SHOWING OF LONG-ARM JURISDICTION TO WARRANT DISCOVERY (THIRD DEPT). 21

ORDER TO SHOW CAUSE, SERVICE DIRECTIONS.

FAILURE TO COMPLY WITH THE SERVICE DIRECTIONS IN THE ORDER TO SHOW CAUSE DEPRIVED SUPREME COURT OF JURISDICTION TO ENTERTAIN THE ORDER TO SHOW CAUSE (SECOND DEPT). 22

PARTIES, NECESSARY PARTIES, JOINDER.

FAILURE TO JOIN A NECESSARY PARTY JUSTIFIED DISMISSAL AFTER THE STATUTE OF LIMITATIONS HAS RUN (FIRST DEPT). 23

PARTIES, RELATION-BACK DOCTRINE, RESPONDEAT SUPERIOR.

THE RELATION BACK DOCTRINE ALLOWED PLAINTIFF TO SERVE A SUPPLEMENTAL SUMMONS AND COMPLAINT ON THE DRIVER’S EMPLOYER IN THIS TRAFFIC ACCIDENT CASE PURSUANT TO THE RESPONDEAT SUPERIOR THEORY OF LIABILITY, AFTER THE ACTION WAS STARTED PLAINTIFF LEARNED THAT THE DRIVER OF THE CAR IN WHICH PLAINTIFF’S DECEDENT WAS A PASSENGER WAS PAID BY THE EMPLOYER TO TRANSPORT THE OTHER EMPLOYEES IN THE CAR TO WORK (FIRST DEPT). 23

PARTIES, VICARIOUS LIABILITY.

BECAUSE THE ANESTHESIOLOGY GROUP (ATLANTIC) WAS ADDED AS A PARTY AFTER THE STATUTE HAD RUN BASED SOLELY ON VICARIOUS LIABILITY FOR ITS EMPLOYEE (DEBRADY) WHO HAD BEEN TIMELY SERVED, ATLANTIC’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION CEASED WHEN DEBRADY’S MOTION FOR SUMMARY JUDGMENT WAS GRANTED, ATLANTIC COULD NOT BE HELD LIABLE FOR THE ACTIONS OF ANOTHER EMPLOYEE WHO WAS NEVER A PARTY (CANTALUPO), ALTHOUGH PLAINTIFF SUED A JOHN DOE, NO STEPS WERE TAKEN TO SUBSTITUTE CANTALUPO FOR THE JOHN DOE, ATLANTIC’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). 24

RES JUDICATA, COLLATERAL ESTOPPEL.

THE STATE ACTION ON A MULTI-MILLION DOLLAR DEBT SHOULD NOT HAVE BEEN DISMISSED ON CLAIM PRECLUSION OR RES JUDICATA GROUNDS BASED UPON THE DISMISSAL OF A FEDERAL ACTION AGAINST A DEFENDANT WHO WAS NOT A PARTY IN THE STATE ACTION, THE FACT THAT THE PLAINTIFFS IN THE STATE ACTION MAY HAVE BEEN ABLE TO INTERVENE OR ASSIGN THEIR RIGHTS TO THE DEFENDANT IN THE FEDERAL ACTION WAS NOT A PROPER GROUND FOR CLAIM PRECLUSION (FIRST DEPT). 26

VERDICT, MOTION TO SET ASIDE, DAMAGES.

MOTION TO SET ASIDE THE DAMAGES VERDICT IN THIS TRAFFIC ACCIDENT CASE AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED, THE JURY FOUND THE INJURY TO BE PERMANENT BUT DID NOT AWARD DAMAGES FOR FUTURE PAIN AND SUFFERING, DAMAGES FOR PAST PAIN AND SUFFERING TOO LOW, MAY HAVE BEEN AN IMPERMISSIBLE COMPROMISE VERDICT (SECOND DEPT) 27

VERDICT, MOTION TO SET ASIDE, DOG-BITE.

VERDICT IN THIS DOG BITE CASE WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE, EVIDENCE THAT THE DOG BIT PLAINTIFF’S FACE WHILE ATTEMPTING TO BITE THE FOOD IN PLAINTIFF’S HAND AND EVIDENCE THAT THE DOG ONLY BECAME RAMBUNCTIOUS AROUND FOOD SUPPORTED THE JURY’S CONCLUSION THAT THE DOG HAD NOT EXHIBITED VICIOUS PROPENSITIES (SECOND DEPT). 28

VERDICT, MOTION TO SET ASIDE, EXPERT OPINION.

PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION SET ASIDE IN THE INTEREST OF JUSTICE, DEFENDANTS WERE NOT ALLOWED TO CROSS EXAMINE PLAINTIFF’S EXPERTS ABOUT THE POSSIBLE NEGLIGENCE OF TWO NON-PARTY DOCTORS WHO ALSO TREATED PLAINTIFF, IN ADDITION, PLAINTIFF’S EXPERTS WERE NOT SHOWN TO BE QUALIFIED TO OFFER OPINION EVIDENCE CONCERNING EMERGENCY MEDICINE (SECOND DEPT). 29

VERDICT, MOTION TO SET ASIDE, PROXIMATE CAUSE.

DEFENSE VERDICT IN THIS SLIP AND FALL CASES SHOULD HAVE BEEN SET ASIDE, THE JURY FOUND DEFENDANT NEGLIGENT BUT FURTHER FOUND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE FALL, HOWEVER, THE NEGLIGENCE AND PROXIMATE CAUSE WERE INEXTRICABLY INTERTWINED (SECOND DEPT). 30

VEXATIOUS LITIGATION, LEGAL MALPRACTICE.

PLAINTIFF’S PRO SE LEGAL MALPRACTICE COMPLAINT WAS PROPERLY DISMISSED AND LIMITS ON PLAINTIFF’S ABILITY TO ENGAGE IN FUTURE VEXATIOUS LITIGATION PROPERLY IMPOSED (SECOND DEPT). 31