You are here: / Fourth Department

Tag Archive for: Fourth Department

Motion to Amend Answer Should Have Been Allowed—Prejudice in this Context Explained

In reversing Supreme Court in a case concerning whether an assault was covered under an insurance policy, the Fourth Department determined the defendant insurance company’s motion for leave to amend its answer should have been granted and plaintiffs’ motion for summary judgment should have been denied.  After finding that the amendment was meritorious, the Fourth Department explained how to analyze whether an amendment would “prejudice” the defendant:

“ ‘Prejudice may be found where a party has incurred some change in position or hindrance in the preparation of its case which could have been avoided had the original pleading contained the proposed amendment’ ”… . Here, the alleged prejudice would not have been avoided had the original answer contained the proposed amendment.    “[T]he fact that an amended pleading may defeat a party’s cause of action is not a sufficient basis for denying [a] motion to amend”….  Williams… v New York Central Fire Insurance Company, 705, 4th Dept 7-5-13

 

,

Attorney’s Illness Was Adequate Excuse—Vacation of Preclusion Order Allowed

The Fourth Department affirmed Supreme Court’s allowing plaintiff in a medical malpractice action to respond to discovery demands, after the court had precluded plaintiff for not responding.  Plaintiff’s attorney’s illness provided a reasonable excuse, and the expert’s affirmation (later converted to an affidavit as directed by the court) demonstrated a meritorious action:

“It is well established that the illness of an attorney may constitute a reasonable excuse for a default… . In support of the motion, plaintiff’s counsel averred that, from early 2010 until shortly before his motion to vacate the default order, he was suffering from recurring health issues stemming from two heart attacks, a serious infection requiring hospitalization, and uncontrolled Type II diabetes. According to counsel, those medical issues “affected [his] health in an ongoing manner and prevented [him] from diligently and timely responding to [defendants’] demands in this case.” There is no evidence that counsel’s neglect in this case was “willful, contumacious or manifested bad faith” … . Particularly in light of New York’s “strong public policy . . . [in favor of] disposing of cases on their merits”…, we conclude that “[w]here, as here, there is no evidence of willfulness, deliberate default, or prejudice to the defendants, the interest of justice is best served by permitting the case to be decided on its merits” ….  Loucks v Klimek, 477, 4th Dept 7-5-13

 

, ,

Legal Malpractice Action Accrues When Committed, Not When Client Learns of It

The Fourth Department explained when a legal malpractice action accrues (when it is committed, whether or not the aggrieved party is aware of it):

“ ‘A cause of action for legal malpractice accrues when the malpractice is committed’ ”….  “In most cases, this accrual time is measured from the day an actionable injury occurs, ‘even if the aggrieved party is then ignorant of the wrong or injury’ ”….“ ‘What is important is when the malpractice was committed, not when the client discovered it’ ” … .  Elstein v Phillips Lytle, LLP, 631, 4th Dept 7-5-13

 

,

Exception to Written Notice of Defect Prerequisite Did Not Apply; Question of Fact Whether Municipality Created Dangerous Condition (Gap in Bridge-Roadway)

The Fourth Department, over a dissent, determined the exception to the written notice requirement (notice to a municipality re: a dangerous condition) did not apply, but there was a question of fact whether the municipality created the dangerous condition, a gap in the roadway on a bridge, which caused the infant plaintiff to fall off his bicycle.  The Fourth Department wrote:

Where the municipality establishes that it lacked prior written notice, the burden shifts to the plaintiff to demonstrate the applicability of an exception to the rule, i.e., that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the municipality …. The affirmative negligence exception is “limited to work by the [municipality] that immediately results in the existence of a dangerous condition” ….    An omission on the part of the municipality “does not constitute affirmative negligence excusing noncompliance with the prior written notice requirement”…. We conclude that defendant met its initial burden of establishing as a matter of law that it did not receive prior written notice of any defective or dangerous condition on or near the bridge as required by Local Law No. 1 …. Viewing the evidence in the light most favorable to plaintiff, as we must …, we conclude, however, that plaintiff raised an issue of fact whether defendant created a dangerous condition that caused the accident ….  Hawley v Town of Ovid, 450, 4th Dept 7-5-13

 

, ,

Complaint Against Town for Sewage Backup in Home Dismissed

The Fourth Department affirmed the dismissal of a negligence complaint against a town arising from the backup of sewage in plaintiffs’ house.  The decision includes a concise but complete explanation of the issues relevant to municipal liability for negligence:

In an action against a municipality such as defendant, it is “the fundamental obligation of a plaintiff pursuing a negligence cause of action to prove that the putative defendant owed a duty of care.  Under the public duty rule, although a municipality owes a general duty to the public at large to [perform certain governmental functions], this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created.  This is an offshoot of the general proposition that ‘[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally’ ” … ..“The second principle relevant here relates not to an element of plaintiffs’ negligence claim but to a defense that [is] potentially available to [defendant]—the governmental function immunity defense . . . [T]he common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions . . . [pursuant to which] ‘[a] public employee’s discretionary acts—meaning conduct involving the exercise of reasoned judgment—may not result in the municipality’s liability even when the conduct is negligent’ ” … ..  Middleton v Town of Salina, 604, 4th Dept 7-5-13

 

4 ½ Inch Drop Raised Question of Fact About Dangerous Condition and Failure to Warn

The Fourth Department determined a 4 ½ inch drop just inside the entrance to a bowling alley raised a question of fact about whether the drop was a dangerous condition, even though no building codes applied.  In addition, there was a question of fact about the failure-to-warn cause of action.  Belsinger v M & M Bowling & Trophy Supplies, Inc, 558, 4th Dept 7-5-13

SLIP AND FALL

,

“Employer” of Independent Contractor Not Liable for Contractor’s Alleged Negligence

The Fourth Department reversed Supreme Court and granted summary judgment dismissing claims which alleged Sirota, who worked as an independent contractor for defendant Ridgeway, was negligent in advising plaintiff to purchase “certain security and investment vehicles.”  The Fourth Department determined Ridgeway was entitled to summary judgment as Ridgeway had demonstrated it owed no duty of care to plaintiff to supervise Sirota (an independent contractor) because it did not direct or control Sirota’s providing investment advice:

…“[O]rdinarily, a principal is not liable for the acts of independent contractors in that, unlike the master-servant relationship, principals cannot control the manner in which the independent contractors’ work is performed”… . Although there are exceptions to that general rule …, we conclude that none apply to the circumstances presented here.  Although plaintiff’s claim sounds in negligent supervision, one of the recognized exceptions…, it is well settled that “the mere retention of general supervisory powers over an independent contractor cannot form a basis for the imposition of liability against the principal”,,,  Wendt v Bent Pyramid Productions, LLC, et al, 448, 4th Dept 7-5-13

 

,

Default Finding Should Not Have Been Made Where Attorney Appeared and Asked for Adjournment

In reversing the order of Family Court, the Fourth Department determined the Support Magistrate should not have ruled respondent had defaulted (respondent’s attorney appeared and requested an adjournment) and the colloquy between petitioner and the Support Magistrate was not a sufficient basis for a factual finding respondent had willfully violated a support order.  Family Court, therefore, should not have confirmed the Support Magistrate’s order.  Matter of Manning v Sobotka, 739, 4th Dept 6-28-13

 

Child Support Awarded to Wife Even though Husband Awarded Sole Custody; Residency Shared Equally/Husband Has Much Higher Income than Wife

In a full-fledged opinion by Justice Lindley, the Fourth Department determined child support should have been awarded to the wife (defendant), even though the husband had sole legal custody, because the residency of the children was shared equally and the wife’s income was less than the husband’s:

…[T]he court erred in awarding child support to plaintiff and that the court instead should have awarded child support to her. It is well settled that in shared residency arrangements, where neither parent has the children for a majority of the time, the party with the higher income is deemed to be the noncustodial parent for purposes of child support….  Here, as noted, the residency schedule affords the parties equal time with the children, and thus neither party has the children for the majority of the time. Inasmuch as plaintiff’s income exceeds that of defendant — at the time of trial, plaintiff earned $134,924.48 annually, while the JHO imputed income of $25,000 to defendant, whose actual earnings were $14,109.53— plaintiff is the “noncustodial” parent and, as such, he must pay child support to defendant.

It is true, as plaintiff points out, that [the cited cases] involve awards of joint legal custody, whereas he was awarded sole legal custody; that fact, however, should not affect the child support determination.  Although the award of sole legal custody to plaintiff allows him to make important decisions in the children’s lives, that decision-making authority does not increase his child-related costs. A parent’s child-related costs are dictated by the amount of time he or she spends with the children, and, here, plaintiff spends no more time with the children than does defendant.  We note, moreover, that there is already a significant disparity in the parties’ incomes, and an award of child support to plaintiff would only widen that gulf.  In our view, the children’s standard of living should not vary so drastically from one parent’s house to the other.

Thus, under the circumstances of this case — where plaintiff has sole legal custody, but the residency schedule affords the parents equal time with the children — an award of child support to defendant will best “assure that [the] children will realize the maximum benefit of their parents’ resources and continue, as near as possible, their preseparation standard of living in each household” … .  Leonard v Leonard, 402, 4th Dept 6-28-13 

 

,

Contractual Relationship Did Not Preclude Causes of Action Sounding in Tort

In affirming most of Supreme Court’s denial of a defendant’s motion for summary judgment, the Fourth Department explained why the economic loss doctrine did not preclude plaintiff’s recovery in tort, in spite of the contractual relationship between plaintiff and defendant and the contract-based causes of action in the complaint.  Pursuant to two contracts, the defendant supplied electronics and fluorescent-tube recycling systems which allegedly failed resulting in mercury contamination:

…[T]he economic loss doctrine does not preclude plaintiff from recovering in tort as a matter of law.“ Pursuant to that doctrine, a plaintiff may not recover in tort against a manufacturer for economic loss that is contractually based, ‘whether due to injury to the product itself or consequential losses flowing therefrom’ ”…. Where, however, there is harm to persons or property other than the property that is the subject of the contract, a plaintiff is entitled to recover in tort… .  The factors to consider are “the nature of the defect, the injury, the manner in which the injury occurred, and the damages sought”…. We conclude that defendant failed to meet its initial burden on the motion with respect to the causes of action sounding in tort because the evidence submitted by defendant establishes that the mercury contamination of plaintiff’s facility, which was allegedly caused by defendant’s products, caused damage to persons and property other than the property that was the subject of the contracts.   Electrical Waste Recycling Group, Limited v Andela Tool & Machine, Inc…, 626, 4th Dept 6-28-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy