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PLAINTIFF IN PERSONAL INJURY ACTION NOT REQUIRED TO DISCLOSE (1) FACEBOOK PHOTOGRAPHS SHE DID NOT INTEND TO INTRODUCE AT TRIAL AND (2) INFORMATION ABOUT POST-ACCIDENT MESSAGES.

The First Department, over an extensive dissenting memorandum by Justice Saxe, reversing Supreme Court, determined plaintiff in a personal injury action was not required to turn over to the defendant post-accident photographs of herself posted on Facebook which she does not intend to introduce at trial, and, further, plaintiff was not required to provide defendant with authorizations allowing Facebook to disclose when private messages were posted by the plaintiff after the accident and how long those messages were:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” In determining whether the information sought is subject to discovery, “[t]he test is one of usefulness and reason” … . ” It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims'” … . Discovery demands are improper if they are based upon ” hypothetical speculations calculated to justify a fishing expedition'” … .

This Court has consistently applied these settled principles in the context of discovery requests seeking a party’s social media information.  Forman v Henkin, 2015 NY Slip Op 09350, 1st Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

CIVIL PROCEDURE (DISCLOSURE OF FACEBOOK PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)/DISCLOSURE (FACEBOOK PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)/FACEBOOK (DISCLOSURE OF PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)

DEFENDANT UNABLE TO DEMONSTRATE PLAINTIFF DID NOT KNOW THE CAUSE OF HIS FALL; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The First Department, over a dissent, determined defendant did not demonstrate, as a matter of law, that plaintiff did not know the cause of his slip and fall.  Therefore, defendant’s motion for summary judgment should not have been granted:

… [P]laintiff, who testified at his depositions through a Spanish interpreter, testified at his first deposition that upon exiting the convenience store he “stepped like on a hole,” and that he “stepped on something” on the defective ramp which caused his ankle to twist and him to fall to the ground. He further testified at that deposition that “[w]hen [he] stepped, it was that [he] felt like something — – that something was not right underneath,” “[l]ike [he] stepped on something not solid.” That plaintiff could not initially identify the location of his accident, based upon photographs he was shown at his first deposition that depicted only the bottom portion of a door with no other identifying features, is hardly surprising and not dispositive. Upon being shown, at his second deposition, additional photographs depicting the full entrance area and front of the convenience store, plaintiff was able to definitively identify and mark with an “X” the area on the ramp which was “not leveled” and caused him to fall … . Taveras v 1149 Webster Realty Corp., 2015 NY Slip Op 09192, 1st Dept 12-15-15

MONTHLY COMPILATION INDEX ENTRIES:

NEGLIGENCE (DEFENDANT DID NOT DEMONSTRATE PLAINTIFF DID NOT KNOW CAUSE OF HIS FALL)/SLIP AND FALL (DEFENDANT DID NOT DEMONSTRATE PLAINTIFF DID NOT KNOW THE CAUSE OF HIS FALL)

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DEFENDANT DID NOT ESTABLISH IT WAS AN OUT-OF-POSSESSION LANDLORD; MANAGEMENT AGREEMENT INCLUDED THE RIGHT TO INSPECT THE PROPERTY AND AN AGREEMENT TO INDEMNIFY TENANT FOR CLAIMS ARISING FROM TENANT’S NEGLIGENCE.

The First Department determined defendant did not demonstrate it was an out-of-possession landlord and defendant was therefore properly held liable for plaintiff’s slip and fall. Plaintiff worked for nonparty tenant Sunrise Senior Living Management, Inc. (SSLM) with which defendant had a property management agreement. Although the agreement required SSLM to maintain the facility, defendant had access to the facility for inspection and agreed to indemnify SSLM for claims arising from SSLM’s negligence:

Defendant failed to establish that it was an out-of-possession landowner with limited liability to third persons injured on the property … . Its management agreement with SSLM gave SSLM “complete and full control and discretion in the operation … of the Facility” and required SSLM to “maintain the Facility … in conformity with applicable Legal Requirements.” However, defendant had “access to the Facility at any and all reasonable times for the purpose of inspection,” had access to SSLM’s books and records, and was required to fund operating shortfalls, and SSLM was required to report to defendant regularly and to maintain bank accounts in approved financial institutions “as agent for [defendant].”

Significantly, the management agreement requires defendant to indemnify SSLM for claims arising out of SSLM’s own negligence in the performance of its duties. This agreement to indemnify is analogous to the procurement of insurance, which constitutes evidence of ownership and control … . It evidences defendant’s intent to be responsible for any accidents on the property. But for the fortuity of plaintiff’s being an employee who was barred from suing his employer, defendant would be responsible, through the indemnification provision, for his injuries. Waring v Sunrise Yonkers SL, LLC, 2015 NY Slip Op 09174, 1st Dept 12-10-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (DEFENDANT NOT AN OUT-OF-POSSESSION LANDLORD, PROPERLY HELD LIABLE FOR PLAINTIFF’S INJURIES)/LANDLORD-TENANT (DEFENDANT NOT AN OUT-OF-POSSESSION LANDLORD, PROPERLY HELD LIABLE FOR PLAINTIFF’S INJURIES)/OUT-OF-POSSESSION LANDLORD (DEFENDANT NOT AN OUT-OF POSSESSION LANDLORD, PROPERLY HELD LIABLE FOR PLAINTIFF’S INJURIES)

PLAINTIFF, WHO SOLD GOODS TO NEW JERSEY COMPANIES FOR WHICH IT WAS NOT FULLY PAID, FAILED TO DEMONSTRATE NEW YORK JURISDICTION; FACTS PLED DID NOT DEMONSTRATE LONG-ARM JURISDICTION; SITUS OF THE INJURY WAS NEW JERSEY, NOT NEW YORK.

The First Department determined plaintiff did not demonstrate New York jurisdiction under the long arm statute (CPLR 302(a)(1) or under the statute imposing jurisdiction based on an out-of-state tort causing injury in New York (CPLR 302(a)(3)(ii)). Plaintiff allegedly sold goods to two New Jersey companies for which plaintiff was not fully paid.  The assets of the two New Jersey companies were allegedly sold to a European company. Plaintiff alleged the transfer to the European company was a fraudulent conveyance. In finding both jurisdictional arguments lacking, the court wrote:

… [T]he purchase and sale transaction, whereby this in-state plaintiff shipped goods to the out-of-state defendants, who then failed to fully pay for the goods, is “[t]he classic instance in which personal jurisdiction is found not to exist” … . Plaintiff has offered nothing but conclusory assertions to support long-arm jurisdiction under CPLR 302(a)(1). * * *

The court also properly rejected plaintiff’s assertion of jurisdiction under CPLR 302(a)(3)(ii), for an alleged tort committed without the state causing injury within the state. As to the tort committed without the state, plaintiff points to the alleged fraudulent conveyance …. This fails, however, because the “the situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt” … . Thus, this alleged tortious act did not cause injury within New York, but in New Jersey. Plaintiff has also offered nothing but conclusory allegations that any defendant “derives substantial revenue from interstate or international commerce,” as required for jurisdiction under CPLR 302(a)(3)(ii). Cotia (USA) Ltd. v Lynn Steel Corp., 2015 NY Slip Op 09169, 1st Dept 12-10-15

CIVIL PROCEDURE (LONG-ARM JURISDICTION NOT DEMONSTRATED, SALE OF GOODS TO COMPANIES IN NEW JERSEY)/CIVIL PROCEDURE (JURISDICTION BASED UPON SITUS OF THE INJURY NOT DEMONSTRATED)/JURISDICTION (LONG-ARM JURISDICTION AND JURISDICTION BASED UPON SITUS OF THE INJURY NOT DEMONSTRATED)/LONG-ARM JURISDICTION (SALE OF GOODS TO OUT-OF-STATE BUYER NOT SUFFICIENT)/SITUS OF INJURY JURISDICTION (SITUS OF INJURY FROM ALLEGED FRAUDULENT CONVEYANCE WAS NOT NEW YORK)

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INADMISSIBLE TESTIMONIAL HEARSAY, PROSECUTORIAL MISCONDUCT, AND JUDGE’S ACTIONS TO COERCE THE JURY TO REACH A VERDICT DEPRIVED DEFENDANT OF A FAIR TRIAL.

The First Department reversed defendant’s conviction, finding several distinct flaws which deprived defendant of a fair trial. Testimonial hearsay which served to bolster the complainant’s identification of the defendant was improperly admitted. The prosecutor improperly referred to stricken testimony in summation. And the judge effectively coerced the jury into reaching a verdict.  With respect to the coerced verdict, the court wrote:

During jury deliberations, the court should have granted defendant’s mistrial motion, made on the ground that any verdict would be reached under coercive circumstances. The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial. The jury returned two notes, on the second and fourth day of deliberations, announcing that the jury was deadlocked; the second note emphatically listed different types of evidence the jury had considered. The court’s Allen charges in response to both notes were mostly appropriate but presented the prospect of protracted deliberations by improperly stating that the jury had only deliberated for a very short time when it had actually deliberated for days … . The court initially informed the jury that its hours on one day would be extended to 7:00 p.m., before reversing that decision and merely extending the hours to 5:00 p.m., and then it extended the hours to 6:00 p.m. on the next day, a Friday. The court improperly described those changes as a “tremendous accommodation” that was “loathed” by the system … .

The court further indicated that the jury would likely continue deliberating into the next week although jurors had been told during jury selection that the case would be over by the aforementioned Friday, raising concerns for one juror who was going to start a new job the following Monday and another juror who was solely responsible for his child’s care in the first three days of the next week … . After the court informed the latter juror that he would be required to show up the next week despite the juror’s purportedly fruitless efforts to obtain alternative childcare, and then brought the juror back into the courtroom solely to reiterate that point more firmly, the jury apparently returned its verdict within less than nine minutes, at about 3:29 p.m. on the Friday … . The totality of the circumstances supports an inference that the jury was improperly coerced into returning a compromise verdict. People v DeJesus, 2015 NY Slip Op 08959, 1st Dept 12-8-15

CRIMINAL LAW (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)/CRIMINAL LAW (PROSECUTORIAL MISCONDUCT, REFERENCE TO STRICKEN TESTIMONY)/CRIMINAL LAW (COERCED VERDICT, MISTRIAL SHOULD HAVE BEEN GRANTED)/EVIDENCE (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)/HEARSAY (TESTIMONIAL HEARSAY IMPROPERLY ADMITTED)PROSECUTORIAL MISCONDUCT (REFERENCE TO STRICKEN TESTIMONY)/COERCED VERDICT (JURY IMPROPERLY PRESSURED TO REACH VERDICT BY JUDGE)/VERDICT (COERCED, JURY IMPROPERLY PRESSURED TO REACH VERDICT BY JUDGE)/MISTRIAL (JUDGE IMPROPERLY COERCED JURY TO REACH A VERDICT, MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED)

NOTE WITH 12% INTEREST RATE FOR LESS THAN A YEAR WAS USURIOUS.

The First Department determined a note was void as usurious.  Although the face of the note indicated the interest rate was 12%, the duration of the note was less than a year.  The actual interest was a usurious 36%:

It is true that the stated rate on the four-month note is 12%. However, it does not say 12% per annum. Where, as here, the loan is for less than a year, the interest rate is annualized … , and thus, the annual rate on the note is 36%, well above the criminal usury rate of 25%. It is also true that the note says, “in no event shall the rate of interest payable hereunder exceed the maximum interest permitted to be charged by applicable law and any interest paid in excess of the permitted rate shall be credited to principal and any balance refunded to” defendant. However, that does not make the subject note nonusurious … . Furthermore, even if defendant drafted the note, that “does not relieve the lender from a defense of usury” … . Bakhash v Winston, 2015 NY Slip Op 08966, 1st Dept 12-8-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

USURY (EFFECTIVE ANNUAL INTEREST ON NOTE WAS 36%)

RARE CASE WHERE DEFENDANT SUBMITTED SUFFICIENT EVIDENCE TO DEMONSTRATE SNOW REMOVAL EFFORTS DID NOT CREATE OR EXACERBATE A DANGEROUS CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined defendant (Sailsman) was entitled to summary judgment in a slip and fall case. Defendant demonstrated that his snow removal efforts did not create or exacerbate a dangerous condition. [This case is noteworthy because the vast majority of defendants’  motions for summary judgment in similar cases are denied for failure to present the necessary evidence.]:

Sailsman made a prima facie showing that his property is a two-family home in which he resides, not subject to liability pursuant to Administrative Code of City of NY § 7-210 (b), and that his voluntary snow removal efforts did not create or exacerbate the alleged hazardous condition on the sidewalk … . Sailsman testified that the day before the accident, he removed the snow and ice from the sidewalk and applied enough salt to completely melt the ice, and provided a neighbor’s affidavit confirming that the sidewalk was clear and safe to walk on, as well as photographs taken shortly after the accident. Montiel v Sailsman, 2015 NY Slip Op 08968, 1st Dept 12-8-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (PROPERTY OWNER DEMONSTRATED SNOW REMOVAL EFFORTS DID NOT CREATE DANGEROUS CONDITION)/SNOW REMOVAL EFFORTS (DEFENDANT DEMONSTRATED IT DID NOT CREATE DANGEROUS CONDITION)/SLIP AND FALL (SNOW REMOVAL DID NOT CREATE DANGEROUS CONDITION)

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PROOF REQUIREMENTS FOR RACIAL DISCRIMINATION UNDER THE NEW YORK CITY HUMAN RIGHTS LAW EXPLAINED; PLAINTIFF’S ACTION SHOULD HAVE BEEN DISMISSED.

The First Department, in a full-fledged opinion by Justice Acosta, determined plaintiff, who had brought a racial-discrimination action under the New York City Human Rights Law,  was unable to show that the employer’s reasons for terminating her were pretextual. The court held that the phrase “a leopard does not change its spots” and the term “tirade,” used in reference to plaintiff’s behavior, did not have discriminatory meanings. With respect to the proof requirements under the NYC Human Rights Law (“City HRL”), the court explained:

How the City HRL’s distinctive substantive definitions, standards, and frameworks interact with existing standards for summary judgment has been the subject of some confusion … . As with any other civil case, a discrimination plaintiff must produce enough evidence to preclude the moving defendant from being able to prove that (1) no issues of material fact have been placed in dispute by competent evidence, and (2) a reasonable jury (resolving all inferences that can reasonably be drawn in favor of the non-moving party) could not find for the plaintiff on any set of facts under any theory of the case. But recognizing that the general evidentiary standard remains the same in discrimination cases does not permit a court to apply the standard in a manner that ignores the distinctiveness of City HRL causes of action. All the general standard does, in other words, is provide the template that says, “Defendant must prove that no reasonable jury can conclude X.” The “X” depends on the cause of action.

Thus, the only substantive requirement in a City HRL case where the plaintiff goes the “pretext” route is for the plaintiff to produce some evidence to suggest that at least one reason is “false, misleading, or incomplete.” A plaintiff who satisfies this requirement may well have produced less evidence than would be required under the state and federal laws. But he or she will have produced enough evidence to preclude the defendant from proving that no reasonable jury could conclude that any of the defendant’s reasons was pretextual. In other words, the general evidentiary standard comfortably co-exists with the distinctive substantive framework that must be applied to City HRL claims. Cadet-Legros v New York Univ. Hosp. Ctr., 2015 NY Slip Op 08984, 1st Dept 12-6-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

EMPLOYMENT LAW (NYC HUMAN RIGHTS LAW RACIAL DISCRIMINATION ACTION DISMISSED)/HUMAN RIGHTS LAW, NEW YORK CITY (PROOF REQUIREMENTS EXPLAINED)/DISCRIMINATION (NYC HUMAN RIGHTS LAW ACTION DISMISSED)/ MUNICIPAL LAW (DISCRIMINATION ACTION UNDER THE NEW YORK CITY HUMAN RIGHTS LAW)

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STATEMENTS ATTRIBUTED TO PLAINTIFF PROPERLY REDACTED FROM HOSPITAL RECORDS; EXPERT TESTIMONY DISCLOSED DAYS BEFORE TRIAL PROPERLY PRECLUDED.

In a case with a substantial plaintiff’s verdict, the First Department noted the statement that the driver “made an illegal left turn,” which was attributed to the plaintiff, was properly redacted from the hospital records.  It was not clear the plaintiff made the statement.  Even if she did, plaintiff was not the driver so it was not a statement against plaintiff’s interest. The statement was not made for the purpose of diagnosis and treatment. And the statement does not relate to a matter of fact (“illegal” is a conclusion of law). The First Department further noted that the trial court’s preclusion of testimony by defendants’ experts was not an abuse of discretion. The defendants served their disclosures only days before the trial:

The trial court providently exercised its discretion in precluding testimony from defendants’ biomechanical and accident reconstruction experts because defendants served their disclosures only days before the scheduled trial date. We see no reason to disturb the trial court’s exercise of discretion in precluding this testimony … , whether applying a “good cause” standard … or a “willful or prejudicial” standard … . We also see no reason to disturb the trial court’s exercise of discretion in precluding testimony regarding a seatbelt defense … . Coleman v New York City Tr. Auth., 2015 NY Slip Op 08906, 1st Dept 12-3-15

NEGLIGENCE (ADMISSIBILITY OF STATEMENTS IN HOSPITAL RECORDS)/EVIDENCE (ADMISSIBILITY OF STATEMENTS IN HOSPITAL RECORDS)/HOSPITAL RECORDS (ADMISSIBILITY OF STATEMENTS INCLUDED IN)/EXPERT TESTIMONY (LATE NOTICE, PROPERLY PRECLUDED)/EVIDENCE (PRECLUSION OF EXPERT TESTIMONY PROPER, LATE DISCLOSURE)

A QUESTION OF FACT EXISTS WHETHER DEFENDANT DRUG TREATMENT FACILITY OWED A DUTY OF CARE TO PLAINTIFF WHO WAS STABBED BY A PATIENT OF THE FACILITY SHORTLY AFTER DISCHARGE.

The First Department, in a full-fledged opinion by Justice Sweeny, over a full-fledged dissenting opinion by Justice Saxe, determined defendant drug treatment facility (Queens Village) did not demonstrate that it owed no duty  of care to plaintiff who was stabbed by a patient who had just been discharged by the facility. Queens Village is an alternative to incarceration. The patient was there because he had robbed a cab driver at gunpoint. The patient was discharged because he had pushed another patient to the ground and admitted drinking alcohol. The director of Queens Village indicated that the plan was to transfer the patient to an interim facility until he could be returned to the TASC program [Treatment Alternatives for Safer Communities]. However, the patient apparently became enraged when told he was being discharged and was “escorted” from Queens Village by the police. There was no evidence the police took the patient into custody, or that the police were told by Queens Village to take the patient to the interim facility. The majority concluded that the evidence demonstrated Queens Village exercised sufficient control over the patient (he was to be transferred to an interim facility, not released) to give rise to a duty of care owed to plaintiff. Because Queens Village moved for summary judgment, the court deemed that Queens Village did not demonstrate, as a matter of law, that it did not owe plaintiff a duty of care:

Generally, the common law does not impose a duty to control the conduct of third persons to prevent them from causing injury to others; rather, liability for the negligent acts of third persons “arises when the defendant has authority to control the actions of such third persons” … . * * *

The key factor in determining whether a defendant will be liable for the negligent acts of third persons is whether the defendant has sufficient authority to control the actions of such third persons … . Such authority, at a minimum, requires “an existing relationship between the defendant and the third person over whom charge’ is asserted” … .There is no question that Queens Village had “an existing relationship” and sufficient authority to control [the patient’s] actions. Oddo v Queens Vil. Comm. for Mental Health for Jamaica Community Adolescent Program, Inc., 2015 NY Slip Op 08943, 1st Dept 12-3-15

NEGLIGENCE (DUTY OF CARE RE: THIRD PARTY)/DUTY OF CARE (OWED TO THIRD PARTY)/THIRD PARTY (DUTY OF CARE OWED TO)

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