The First Department determined plaintiff, who was eleven at the time of the accident, should have been allowed to file an amended notice of claim. The original notice described the wrong address. At the 50-h hearing the plaintiff identified the correct location after seeing photographs of the incorrect location. The defendant did not meet its burden of demonstrating prejudice. Gonzalez v NYC Hous Auth, 2013 NY Slip Op 04287, 1st Dept, 6-11-13
In affirming the dismissal of a complaint on forum non conveniens grounds [after noting the first inquiry must be whether the court has jurisdiction over the parties], the First Department wrote:
“The applicability of foreign law is an important consideration in determining a forum non conveniens motion and weighs in favor of dismissal”… .. The question of whether defendants’ corporate veils should be pierced will be determined by the laws of each defendant’s state of incorporation… . That means that a New York court will have to apply the laws of Samoa, Hong Kong, and Canada. The witnesses and documents required to show that defendants are alter egos will likely be located in Samoa, Hong Kong, and Canada. This also weighs in favor of dismissal… . Other than the fact that plaintiff is trying to enforce a judgment of the Southern District of New York (which merely recognized a London judgment against Shipping), this case has no tie to New York… . Flame SA v Worldlink Intl (Holding) Ltd, 2013 NY Slip Op 04107, 1st Dept, 6-6-13
The First Department determined Supreme Court should not have denied a request for a one-day adjournment to conduct an independent medical examination (IME):
The court improvidently exercised its discretion by denying defendants a one-day adjournment to conduct the already scheduled IME, as there is no evidence that the failure to conduct it previously was willful, and no evidence that plaintiff would have been prejudiced by the delay …. Moreover, the court could have allowed the IME without vacating the note of issue…, thereby causing no delay in the trial. … Pickering v Union 15 Rest Corp, 2013 NY Slip Op 04122, 1st Dept, 6-6-13
In a full-fledged opinion by Justice Andrias, the First Department determined plaintiffs, as part of discovery in this asbestos litigation, were entitled to an in camera review of defendant’s internal communications and to the data underlying published research studies funded by the defendant. The studies purported to cast doubt on whether chrysotile asbestos caused cancer. In the course of the opinion, the First Department explained the “crime-fraud” exception to the attorney-client privilege (the basis of the request for in camera review of defendant’s internal communications):
The motion court providently exercised its broad discretion …when it …granted in camera review of the documents to determine whether the crime-fraud exception to the attorney-client privilege applied … .
The crime-fraud exception encompasses ” a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct'”…. “[A]dvice in furtherance of a fraudulent or unlawful goal cannot be considered sound.’ Rather advice in furtherance of such goals is socially perverse, and the client’s communications seeking such advice are not worthy of protection”….
A party seeking “to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime” … .However, “[a] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege”… .
To permit in camera review of the documents to analyze whether the communications were used in furtherance of such wrongful activity, there need only be “a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies” …. “Once that showing is made, the decision whether to engage in in camera review of the evidence rests in the sound discretion of the [] court” …. Matter of New York City Asbestos Litig, 2013 NY Slip Op 04127, 1st Dept, 6-6-13
The First Department affirmed the dismissal of a slip and fall complaint finding the one-half-inch differential between the level of the sidewalk and the frame of the cellar door was trivial and could not serve as the basis of liability. Boynton v Haru Sake Bar, 2013 NY Slip Op 04113, 1st Dept, 6-6-13
The First Department determined the SORA court improperly assessed 15 points for violence because there was insufficient evidence of physical injury:
The court erred in assessing 15 points under the risk factor for use of violence, because the People did not meet their burden of establishing, by clear and convincing evidence, that defendant caused physical injury (see Penal Law 10.00[9]) to the victim. Although minor injuries may cause substantial pain, a showing of “more than slight or trivial pain” is required …. The People do not dispute defendant’s assertion that the photographs of the injuries depicted only “faint marks and superficial scratches.” Although evidence of medical treatment is unnecessary to establish physical injury …, here the victim’s bare statement that her knee “hurt” was insufficient to support the inference that she suffered substantial pain, given the absence of evidence that she even used ice or an over-the-counter pain reliever. Furthermore, the injury was not sustained as a result of a deliberate assault or other act supporting an inference that it caused substantial pain …. Therefore, the court should have assessed 10 points for forcible compulsion, but not 15 points. People v Quito, 2013 NY Slip Op 03938, 1st Dept, 6-4-13
In determining the search of defendant’s backpack was unlawful because there were no exigent circumstances to justify it, the First Department wrote:
The search of defendant’s backpack following his arrest was unlawful because he was handcuffed at the time of the search and it was no longer in his control…. The contents of the backpack, which included a pair of pliers and unused garbage bags, should have been suppressed because even where a container is not in the exclusive control of the police, exigency justifying its search incident to arrest is not established in the absence of “some reasonable basis for the belief that the contents of those containers might pose a danger to the arresting officers or when there is legitimate concern for the preservation of evidence which might reasonably be thought to reside within the containers”…. People v Diaz, 2013 NY Slip Op 03937, 1st Dept, 6-4-13
SUPPRESSION
In affirming the dismissal of the action on forum non conveniens grounds, the First Department described the criteria and relevant facts as follows:
The doctrine of forum non conveniens, as codified under CPLR 327, permits a court to stay or dismiss an action “where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere” …. The doctrine rests on considerations of justice, fairness and convenience … . * * *
The subject matter of this action – insurance coverage for liability relating to the manufacture of products in Massachusetts – has no substantial connection to New York. When the policies were issued, Warren was a Massachusetts corporation and had its principal place of business in that state. Liberty Mutual, the insurer under the policies at issue, is a Massachusetts corporation that has its principal place of business in that state. Both plaintiffs are foreign corporations that maintain their principal places of business in other states… . Century Indem Co v Liberty Mut Ins Co, 2013 NY Slip Op 03953, 1st Dept, 6-4-13
The First Department affirmed Supreme Court’s precluding plaintiff from offering any evidence and/or testimony at trial in opposition to defendants’ defenses and counterclaims stemming from plaintiff’s discarding a computer containing crucial evidence:
Plaintiff’s conduct evinces a higher degree of culpability than mere negligence…. Indeed, the record shows that, despite numerous court orders and the court’s assignment of a special referee to supervise discovery, plaintiff delayed discovery and did not disclose to defendants that it had discarded the subject computer for almost two years, notwithstanding that such disclosure was specifically requested by defendants. Further, the testimony of plaintiff’s bookkeeper that a litigation hold, either written or oral, was never issued directing him to preserve electronic data, supports a finding that plaintiff’s disposal of the subject computer was, at the very least, grossly negligent …. Defendants established that plaintiff’s spoliation of critical evidence compromised defendants’ ability to prosecute their counterclaims … . Accordingly, the court did not abuse its discretion in determining that preclusion was an appropriate spoliation sanction. Harry Wiess, Inc v Moskowitz, 2013 NY Slip Op 03927, 1st Dept, 5-30-13
In affirming the dismissal of a complaint in which it was alleged the purchase of a building was induced by misrepresentations, the First Department noted there can be no action for conversion of real property, and there can be no action for conversion of money which was transferred pursuant to an agreement:
The motion court properly dismissed plaintiff’s sixth cause of action alleging conversion. As it accurately noted, to the extent plaintiff based that cause of action on an alleged conversion of its 7% fee interest in the premises, the claim must fail because a party may not sustain a claim for conversion of real property …. Similarly, while a party can properly assert a claim for conversion of money …the $2 million cannot be the subject of a conversion claim here. Even accepting the truth of the allegations in the complaint, plaintiff does not allege that defendants wrongfully exercised dominion over those funds in derogation of plaintiff’s ownership … [conversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner’s rights][internal citations omitted]). On the contrary, by alleging that it agreed to, and did, transfer the funds in return for the 7% interest in the property, plaintiff tacitly concedes that possession of the money was authorized. B & C Realty, co v 159 Emmut Props LLC, 3013 NY Slip Op 03913, 1st Dept, 5-30-13
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