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Two Asbestos Cases Properly Consolidated

The First Department, in a full-fledged opinion by Justice Mazzarelli, over a two-justice dissent, determined Supreme Court properly consolidated two cases alleging injury related to asbestos exposure.  One case involved a worker injured by asbestos dust from drywall sanding at a construction site.  The other involved a navy boiler technician who maintained steam valves containing asbestos.  The court determined that the cases had more commonality than differences:

Consolidation of cases is authorized by CPLR 602(a), which provides:

“When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”

As the statutory language suggests, joining cases together is designed to “reduce the cost of litigation, make more economical use of the trial court’s time, and speed the disposition of cases” … . Further, “[g]reat deference is to be accorded to the motion court’s discretion” in joining cases together … .

Malcolm v National Gypsum Co. (995 F2d 346 [2d Cir 1993]) is the seminal case concerning consolidation in asbestos cases. There, the Second Circuit endorsed “[a standard set of] criteria . . . as a guideline in determining whether to consolidate asbestos exposure cases[, including]: (1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged” … .

The court entertaining a consolidation motion is further required to take into consideration the number of separate cases (id. at 352). This Court has applied the Malcolm factors to asbestos cases … . Not all of the factors need be present; consolidation is appropriate so long as “individual issues do not predominate over the common questions of law and fact” (id.). However, in asbestos cases, it has been “routine” to join cases together for a single trial … . Matter of New York City Asbestos Litig, 2014 NY Slip Op 05054, 1st Dept 7-3-14

 

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Termination of Teacher for Failure to Control Special-Education Class to Which He Was Assigned After an Unblemished 18-Year Career Shocked the Court’s Sense of Fairness

The First Department, over a two-justice dissent, determined that the termination of a teacher shocked the court’s sense of fairness. The teacher had an unblemished 18-year record before being assigned to a special-education class.  Although the court agreed that the teacher’s inability to control the class had been demonstrated, the punishment was deemed too severe:

While we do not dispute the specific findings of the Hearing Officer concerning petitioner’s deficiencies in the management of this one special education class, we find that under the circumstances presented here the penalty of termination shocks our sense of fairness … . Matter of Russo v New York City Department of Educ, 2014 NY Slip Op 05032, 1st Dept 7-3-14

 

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Error for Trial Judge to Defer to Prosecutor’s Wish to Dismiss a Count of an Indictment—The Judge Must Exercise His or Her Own Discretion on the Issue

The First Department determined the trial judge had erroneously deferred to the prosecutor’s wish to dismiss a count of the indictment before submitting the case to the jury.  The judge, not the prosecutor, has the discretion to dismiss counts.  The error was deemed harmless however:

Defendant argues on appeal that the court improperly deferred to the People’s desire to withdraw the fourth-degree possession charge, relying on People v Extale (18 NY3d 690 [2012]). In Extale, the defendant was indicted for, inter alia, first-degree assault and first-degree vehicular assault, in connection with his having intentionally driven a pickup truck into a police officer. Before the trial of those charges, the prosecutor announced the People’s intention to withdraw the vehicular assault count, and the court agreed with the prosecutor that the People had “the authority” to do so. The Court of Appeals disagreed, holding that “the issue was one for the trial court’s discretion, not the prosecutor’s” (18 NY3d at 695). * * *

On the merits, we agree with defendant that the court’s position with respect to the count was no different from that of the trial court in Extale, which was found by the Court of Appeals to be erroneous. No fair reading of the trial record supports the People’s argument that the trial court exercised its discretion in dismissing the charge. Indeed, its comment that “the People can dismiss [the count]” was equivalent to the Extale trial court’s comment that the prosecutor “ha[d] the authority” to dismiss the vehicular assault count (18 NY3d at 693). People v Silvestre, 2014 NY Slip Op 04562, 1st Dept 6-19-14

 

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Court’s Erroneous Jury Instruction Re: State’s Territorial Jurisdiction Over the Alleged Crime Was Not a Mode of Proceedings Error—Objection Is Required to Preserve the Issue for Appeal

The First Department determined that the court’s erroneous jury instruction concerning the state’s terretorial jurisdiction over the case, as opposed to whether the state actually had territorial jurisdiction, required preservation by objection:

The trial court instructed the jury that the prosecution was required to establish the State’s territorial jurisdiction by a preponderance of evidence. As the People concede, the charge was erroneous in this regard . On the contrary, the People were required to establish the State’s territorial jurisdiction by proof beyond a reasonable doubt (see People v McLaughlin, 80 NY2d at 470). Moreover, territorial jurisdiction is not waivable (id. at 471). Our analysis, however, does not end with a citation to McLaughlin. The issue before us involves the trial court’s charge on jurisdiction as opposed to jurisdiction itself. Although a challenge to a court’s territorial jurisdiction cannot be waived, a claim of error in a court’s instructions on the subject requires preservation by way of an appropriate objection at the court of first instance. Nonetheless, the requirement of preservation is subject to an exception that exists for “mode of proceedings” errors that consist of the most fundamental flaws implicating jurisdictional matters or constitutional rights that go to the very heart of the criminal justice process … . Defendant asserts that the mode of proceedings exception applies here. People v Carvajal (6 NY3d 305 [2005]), a case involving an interstate drug operation, is illustrative. In Carvajal, the Court noted that the defendant had “relinquished his opportunity to hold the People to their burden of proof, and did not preserve his current contention that the jury should have decided whether the People proved jurisdiction beyond a reasonable doubt” (id. at 311-312). Citing People v Greenberg (89 NY2d 553 [1997]), the Carvajal Court aptly observed that “a defendant’s failure to request a jury charge on territorial jurisdiction amounts to a waiver of a jury charge claim, that failure does not amount to waiver of the fundamental question whether – as a matter of law – this State has the power to hear the case” (id. at 312). In this case, it is undisputed that defendant did not object to the trial court’s erroneous charge on the burden of proof with respect to territorial jurisdiction. Guided by Carvajal, we find that defendant was required, but failed, to preserve his present challenge to the trial court’s charge on jurisdiction.  People v Polk, 2014 NY Slip Op 04561, 1st Dept 6-19-14

 

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Statute of Limitations Starts When the Alleged Malpractice Occurred, Not When Plaintiff Becomes Aware of It/Continuous Representation Doctrine Can Not Be Invoked to Toll Statute of Limitations When Plaintiff Was Notified Representation Was Formally Closed

In affirming the dismissal of an attorney malpractice cause of action, the First Department noted that the cause of action accrued when an appeal was dismissed for lack of prosecution, irrespective of whether the plaintiff was aware of the dismissal.  In addition, the court noted that a letter to the plaintiff which indicated the defendants’ represented of plaintiff was formally closed precluded the plaintiff from relying on the continuous representation doctrine to toll the statute of limitations:

The first cause of action, alleging legal malpractice, accrued at the time that plaintiff’s appeal of the order that granted summary judgment dismissing his underlying Labor Law claims was dismissed for want of prosecution, in July 2006, notwithstanding his lack of knowledge of the dismissal … . Plaintiff then had three years to commence a malpractice action against defendants (see CPLR 214[6]), absent an applicable ground for tolling the limitations period. He did not commence this action until March 2012.

Plaintiff relies on the continuous representation doctrine. However, in June 2008, defendants sent him a letter enclosing the 2nd Department’s affirmance of the underlying judgment and formally closing their representation of him. The letter, which plaintiff did not object to, demonstrates that the parties lacked “a mutual understanding of the need for further representation on the specific subject underlying the malpractice claim” … . Even accepting that defendants concealed from plaintiff the fact that his appeal was dismissed as abandoned, their letter placed him on notice that his attorney-client relationship with them had ended… . McDonald v Edelman & Edelman, PC, 2014 NY Slip Op 04560, 1st Dept 6-19-14

 

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All Ambiguities Re: Letters of Credit Resolved Against the Issuer—“Independence Principle” Applied—Beneficiaries of Letters of Credit Entitled to Payment

In a full-fledged opinion by Justice Andrias, the First Department reversed Supreme Court and determined plaintiffs were entitled to payment as beneficiaires of irrevocable standby letters of credit.  The opinion is detailed and meticulously resolved all ambiguities in the relevant documents against the issuer of the letters of credit.  The opinion includes an extended discussion of the “independence principle” in this context.  With respect to the basic analytical principles to be applied, the court wrote:

Under New York law, in order to recover on its claim that the issuer wrongfully refused to honor its request to draw down on a letter of credit, the beneficiary must prove that it strictly complied with the terms of the letter of credit … . “The corollary to the rule of strict compliance is that the requirements in letters of credit must be explicit, and that all ambiguities are construed against the [issuer]” … . The reasoning is that “[s]ince the beneficiary must comply strictly with the requirements of the letter, it must know precisely and unequivocally what those requirements are” … . “Where a letter of credit is fairly susceptible of two constructions, one of which makes it fair, customary and one which prudent men would naturally enter into, while the other makes it inequitable, the former interpretation must be preferred to the latter, and a construction rendering the contract possible of performance will be preferred to one which renders its performance impossible or meaningless” … . * * *

In November 2000, the independence principle was codified in a general revision of article 5 of the UCC. UCC 5—103(d) now provides that:

“[r]ights and obligations of an issuer to a beneficiary or a nominated person under a letter of credit are independent of the existence, performance, or nonperformance of a contract or arrangement out of which the letter of credit arises or which underlies it, including contracts or arrangements between the issuer and the applicant and between the applicant and the beneficiary.”

The doctrine of independent contracts, as codified in UCC article 5, allows the letter of credit to provide ” a quick, economic and trustworthy means of financing transactions for parties not willing to deal on open accounts'”… . “Only staunch recognition of this principle by the issuers and the courts will give letters of credit the continuing vitality that arises from the certainty and speed of payment under letters of credit” … .BasicNet SpA v CFP Servs Ltd, 2014 NY Slip Op 04585, 1st Dept 6-19-14

 

Ladder Which “Kicked Out” from Under Plaintiff Entitled Plaintiff to Partial Summary Judgment/Replacement of Cracked Glass Constituted Covered “Repair” Not Routine Maintenance

The First Department, over a dissent, determined that the replacement of cracked glass in skylight constituted repair rather than routine maintenance, and therefore was a covered activity under Labor Law 240 (1).  A ladder used by the plaintiff to access the skylight “kicked out” from under him:

“The plaintiff need not demonstrate that the [safety device] was defective or failed to comply with applicable safety regulations,” but only that it “proved inadequate to shield [plaintiff] from harm directly flowing from the application of the force of gravity to an object or person” … . The inexplicable shifting of an unsecured ladder may alone support a § 240(1) claim if a worker is caused to fall due to such shifting … . A worker’s prima facie entitlement to partial summary judgment on his or her § 240(1) claim may be established by proof that the ladder provided collapsed under the worker while he or she was engaged in an enumerated task … .

The crux of this case involves the question of whether plaintiff was involved in repair or maintenance work. “Essentially, routine maintenance for purposes of the statute is work that does not rise to the level of an enumerated term such as repairing or altering” … . In distinguishing between what constitutes repair as opposed to routine maintenance, courts will consider such factors as “whether the work in question was occasioned by an isolated event as opposed to a recurring condition” …; whether the object being replaced was “a worn-out component” in something that was otherwise “operable” …; and whether the device or component that was being fixed or replaced was intended to have a limited life span or to require periodic adjustment or replacement …

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Here, plaintiff described the panes as being constructed of “heavy plate glass” with wire running through them and stated that they simply “do not crack or wear out over time.” Plaintiff showed, without contradiction, that these panes were not being replaced as a result of normal wear and tear, as they were not expected to be regularly replaced. Soriano v St Mary’s Orthodox Church of Rockland, Inc, 2014 NY Slip Op 04419, 1st Dept 6-17-14

 

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Under NYC Administrative Code, Abutting Owners Have Duty to Maintain Sidewalk in a Reasonably Safe Condition

In reversing Supreme Court, the First Department noted that, pursuant to the NYC Administrative Code, owners of abutting properties are responsible for the safe condition of the sidewalk.  Here it was alleged that defendant’s workers placed garbage bags on the sidewalk which leaked and plaintiff slipped on the slippery sidewalk:

Plaintiff alleges that she slipped on a greasy liquid leaking from garbage bags placed on the public sidewalk by defendant’s workers. Pursuant to Administrative Code of the City of New York § 7-210(b), the owner of property abutting a public sidewalk has a duty to maintain the sidewalk in a reasonably safe condition and is liable for failure to do so … .

Plaintiff’s testimony that she saw defendant’s workers placing garbage bags on the sidewalk in the morning raises issues of fact as to whether defendant is responsible for creating the alleged slippery condition … . Torres v New York City Hous Auth, 2014 NY Slip Op 04425, 1st Dept 6-17-14

 

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Allegation of “But For” Element of Attorney Malpractice Too Speculative

The First Department determined plaintiff had not sufficiently alleged the “but for” element of an attorney malpractice action.  Plaintiff alleged she would have won the arbitration in which the attorney represented her if the attorney had submitted certain evidence. The First Department found the allegation too speculative to support the action:

Plaintiff failed to allege facts that would satisfy the proximate cause element, namely, that “but-for” defendants’ alleged inadequate and ineffective representation of her in the underlying arbitration, she would have succeeded in demonstrating that her parents lacked an ownership interest in a contested family asset … . Plaintiff stated that if defendants had introduced her parents’ personal income tax returns in the underlying arbitration proceeding, the arbitration panel would have had no choice but to consider them, credit their contents, and hold that the information contained therein (i.e., that the parents allegedly made no claim of an ownership interest in the contested family asset) was binding against the parents in accordance with the tax estoppel doctrine. The contention that mere submission of the parents’ personal income tax filings in the arbitration proceeding would necessarily have altered the arbitration panel’s determination regarding the parents’ ownership interest in the subject asset is grounded in speculation, and thus, insufficient to sustain a claim for legal malpractice … . Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker, 2014 NY Slip Op 04428, 1st Dept 6-17-14

 

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General Language—“Disposition”—Limited in Scope by More Specific Words—“Sale or Transfer”

The First Department, over a dissent, determined that the rules of contract interpretation did not allow the collection of a “transaction fee” by plaintiff financial advisor with respect to the defendant’s purchase of notes in anticipation of the purchase of a mine.  When the financing for the mine fell through, the defendant sold back the notes in accordance with the purchase agreement with the seller of the notes.  The plaintiff sought a “transaction fee” for that transaction:

…[T]he motion court unreasonably construed the parties’ agreement in arriving at the conclusion that plaintiff was entitled to a “transaction fee” in connection with defendant’s aborted acquisition of a participation interest in the notes. The letter agreement provides that plaintiff is entitled to a “transaction fee” following the consummation or closing of a “transaction,” which it defines as the “sale, transfer or other disposition . . . [of] a portion of the assets, businesses or securities of [defendant].” The acquisition in question was admittedly not a “sale” or “transfer.” Nor can it be considered a “disposition,” as plaintiff contends. The term “disposition” does not appear in isolation in the agreement, but as a catch-all at the end of the phrase “sale, transfer or other disposition.” Thus, under the principle of ejusdem generis, the general language “or other disposition” must be construed as limited in scope by the more specific words “sale” and “transfer” that preceded it … . Miller Tabak + Co LLC v Senetek PLC, 2014 NY Slip Op 04418, 1st Dept 6-17-14

 

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