You are here: / Fourth Department

Tag Archive for: Fourth Department

, ,

Dismissal as Time-Barred Is a Dismissal On the Merits for Purposes of Res Judicata

In an article 78 action challenging the prohibition (by the Buffalo Fiscal Stability Authority) of the implementation of a wage increase pursuant to a collective bargaining agreement, the Fourth Department noted that the dismissal of an action as time-barred is a determination on the merits for res judicata purposes:  “It is well established that a dismissal of a proceeding as time-barred “ ‘is equivalent to a determination on the merits for res judicata purposes’”… . Matter of Buffalo Professional Firefighters Association, Inc…, CA 12-02126, 371, 4th Dept, 4-26-13

 

, ,

Grant of Motion to Dismiss Based on Forum Non Conveniens Upheld

Plaintiff, a British citizen, was injured in England when he was a passenger on an all-terrain vehicle manufactured by a New York company, RII.  The Fourth Department affirmed the grant of RII’s motion to dismiss pursuant to CPLR 327 (forum non conveniens) and to have the proceeding moved to England.  Plaintiffs’ objections that contingency-fee arrangements are not allowed in England and loss of consortium damages are not recognized in England did not warrant denial of the motion.  The Fourth Department wrote:

…[T]he court properly determined that “the action, although jurisdictionally sound, would be better adjudicated elsewhere” …. Plaintiffs are both British citizens residing in Scotland. The accident occurred in England, and other witnesses, including the driver of the ATV, are located there. As the trial court in the federal action between the same parties noted, “highly material evidence, such as the eyewitness testimony, accident investigation documents and witnesses, the scene of the accident, and the vehicle itself, which will not be readily within plaintiffs’ control in this court, would be more accessible to both sides in a British forum” ….  Moreover, RII is amenable to service of process in Scotland or England, and it does not take issue with the conditions imposed by the court concerning the waiver of defenses based on jurisdiction and the statute of limitations.  Emslie v Recreative Industries, Inc., CA 12-01246, 139, 4th Dept, 4-26-13

 

, , ,

In Lead Paint Exposure Case, Court’s Order to Provide Medical Report Linking Injuries to Exposure Before Depositions Upheld

In a case which alleged plaintiff was injured by lead paint exposure, Supreme Court ordered plaintiff, as part of discovery, to produce a medical report linking the injuries to lead exposure before depositions.  The Fourth Department affirmed over a dissent which argued plaintiff was improperly being forced to hire an expert at the very outset of the litigation:

Under the unique circumstances of this case, we conclude that Supreme Court did not abuse its broad discretion in directing plaintiff to produce a medical report containing a diagnosis of the alleged injuries sustained by plaintiff and causally relating such injuries to lead exposure before any CPLR 3121 examinations are conducted.  As previously noted, plaintiff alleges numerous and wide- ranging neurological, physiological, psychological, educational, and occupational effects of his childhood exposure to lead. Although plaintiff disclosed his medical and educational records, none of those records diagnoses plaintiff with a lead-related injury or causally relates any of plaintiff’s alleged physical or mental conditions to lead exposure. Indeed, plaintiff’s mother testified at her deposition that no health care provider had ever told her that plaintiff had “any residual injuries from lead exposure.” The only reference in the disclosed records to an injury that may have been caused by exposure to lead is a school district health and development assessment, which states that “[e]levated [blood] lead level may have had an effect” on plaintiff’s educational performance. Although the dissent is correct that CPLR 3121 and 22 NYCRR 202.17 do not require the disclosure directed in this case, they likewise do not preclude a trial judge from proceeding in the manner at issue herein. Giles v A. Gi Yi, et al, CA 12-01288, 59, 4th Dept, 4-26-13

 

,

Jurisdiction Was Gained Over Out-of State Manufacturer Under Two Provisions of CPLR 302

Plaintiff was injured when he fell from a tree stand made by an out-of-state manufacturer and distributed in New York through Dick’s Sporting Goods.  In denying defendant’s motion to dismiss for lack of jurisdiction, the Fourth Department outlined the statutory and due process requirements for good service upon a foreign corporation under CPLR 302.  The court wrote:

Here, defendant had an exclusive distributorship agreement with Dick’s, and maintained a website that provided information relating to its products, directed consumers to retail locations where they could purchase the products, and allowed for the direct purchase of the products through a credit card. Therefore, defendant was transacting business in New York through the use of its website, and the court properly concluded that there is long-arm jurisdiction under CPLR 302 (a) (1).

… [D]efendant is subject to long- arm jurisdiction pursuant to CPLR 302 (a) (3) (ii). Under that provision, courts “may exercise personal jurisdiction over any non-domiciliary . . . who . . . commits a tortious act without the state causing injury to person . . . within the state . . . if he .expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” “The conferral of jurisdiction under [that] provision rests on five elements: First, that defendant committed a tortious act outside the State; second, that the cause of action arises from that act; third, that the act caused injury to a person or property within the State; fourth, that defendant expected or should reasonably have expected the act to have consequences in the State; and fifth, that defendant derived substantial revenue from interstate or international commerce” ….  Halas v Dick’s Sporting Goods…Big Dog Treestands, Inc, CA 12-01868, 336, 4th Dept, 4-26-13

 

E-Mail Service to Defendant Living in Iran Deemed Valid

The Fourth Department held that service by e-mail upon the defendant in a matrimonial action was valid.  The defendant was living in Iran and the trial judge (Supreme Court, Monroe County, Dollinger, J.) ordered that service be accomplished by e-mail pursuant to CPLR 308 (5).  The Fourth Department wrote:

“CPLR 308 (5) vests a court with the discretion to direct an alternative method for service of process when it has determined that the methods set forth in CPLR 308 (1), (2), and (4) are ‘impracticable’ ” …. “Although the impractability standard is not capable of easy definition” …, “[a] showing of impracticability under CPLR 308 (5) does not require proof of actual prior attempts to serve a party under the methods outlined pursuant to subdivisions (1), (2) or (4) of CPLR 308” ….“The meaning of ‘impracticable’ will depend upon the facts and circumstances of the particular case” ….

Here, we conclude that plaintiff made a sufficient showing that service upon defendant pursuant to CPLR 308 (1), (2), or (4) was impracticable, and thus that the court providently exercised its discretion in directing an alternative method of service …. Plaintiff submitted evidence that defendant left the United States with the parties’ child and declared her intention to remain in Iran with her family … . Further, plaintiff established that Iran and the United States do not have diplomatic relations and that Iran is not a signatory to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (20 UST 361, TIAS No. 6638). Plaintiff thus requested alternative service upon defendant’s parents in Iran, with whom defendant was residing.

In light of those unique circumstances, we conclude that the court properly determined that service upon defendant was “impracticable by any method of service specified in CPLR 308 (1), (2), and (4).”

“Once the impracticability standard is satisfied, due process requires that the method of service be ‘reasonably calculated, under all the circumstances, to apprise’ the defendant of the action” ….

“In order to be constitutionally adequate, the method of service need not guarantee that the defendant will receive actual notice” ….

Here, the court initially ordered service of the summons by (1) personal service upon defendant’s parents; (2) mail service upon defendant at her parents’ address in Iran; and (3) service upon defendant by plaintiff’s Iranian attorneys in accordance with Iranian law.

Pursuant to that order, plaintiff mailed the summons and notice to defendant at her parents’ last known address in Tehran and submitted a declaration by his Iranian attorney that at least two attempts were made to effect personal service upon defendant at that address.

Although defendant contended that the address used for service was “bogus,” the record reflects that the address was in fact used by defendant and/or her parents in some capacity.

Indeed, defendant supplied that address to the child’s pediatrician in requesting the child’s medical records, and she averred that her father ultimately received the documents from a “tenant” who lived at that address.

When plaintiff was unable to effect personal service upon defendant’s parents pursuant to the court’s order, the court relieved him of that obligation and instead permitted service “via email at each email address that [p]laintiff knows [d]efendant to have.” Although service of process by email “is not directly authorized by either the CPLR or the Hague Convention, it is not prohibited under either state or federal law, or the Hague Convention” … and, indeed, “both New York courts and federal courts have, upon application by plaintiffs, authorized [e]mail service of process as an appropriate alternative method when the statutory methods have proven ineffective” … .
Contrary to the contention of defendant, we conclude that plaintiff made the requisite showing that service by email was “reasonably calculated to apprise defendant of the pending lawsuit and thus satisfie[d] due process” … .
The record reflects that, for several months prior to the application for alternative service, the parties had been communicating via email at the two email addresses subsequently used for service. Although defendant claimed that she did not receive either of the emails, she acknowledged receipt of a subsequent email from plaintiff’s attorney sent to the same two email addresses.
We thus conclude that, under the circumstances of this case, the court properly determined that service of the summons with notice upon defendant by email was an appropriate form of service … .  Safadjou v Mohammadi, CA 12-00271, 359, 4th Dept, 4-26-13

 

 

,

Conclusory Allegations of Customer Confusion Insufficient to Defeat Motion for Summary Judgment

In reversing the motion court’s grant of summary judgment to the plaintiff in an unfair competition action, the Fourth Department determined that conclusory allegations of customer confusion or mistake in plaintiff’s affidavit were not sufficient, and the exhibits attached to the affidavit to demonstrate customer confusion were not admissible under the business records exception to the hearsay rule (insufficient foundation).  KG2, LLC … v Weller…, CA 12-01225, 338, 4th Dept. 4-26-13

 

Injury When Stepping Off a Ladder Not Actionable under Labor Law 240(1)—Injury Not Related to the Need for the Ladder

Plaintiff was injured when he stepped from a ladder onto a hose and grain dust.  The Fourth Department determined Supreme Court erred when it denied summary judgment to the defendant in a Labor Law 240 (1) action because “plaintiff’s injury resulted from a separate hazard wholly unrelated to the danger that brought about the need for the ladder in the first instance…”.  Smith v E E Austin & Son, Inc, CA 12-01554, 266, 4th Dept, 4-26-13

 

, ,

Criteria for Appellate Review of Arbitrator’s Award 

The Fourth Department explained the criteria for review of an arbitrator’s award (which involved the writing of a collective bargaining agreement) as follows:

Respondents failed to meet their “heavy burden of demonstrating that the arbitrator[s’] award is . . . totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … . Where, as here, the role of the arbitration panel is to “write collective bargaining agreements for the parties . . . , [i]t follows that such awards, on judicial review, are to be measured according to whether they are rational or arbitrary and capricious” … . “[I]t need only appear from the decision of the arbitrators that the criteria specified in the statute[, i.e., the Taylor Law,] were ‘considered’ in good faith and that the resulting award has a ‘plausible basis’ ” … . We conclude that the decision of the arbitrators meets that standard here.  Matter of Arbitration …, CA 12-02127, 377, 4th Dept, 4-26-13

 

 

Mental Health Counseling Can Not Be Made a Condition of Visitation and Court Can Not Delegate Authority to Determine When Visitation Should Be Resumed

In upholding Family Court’s denial of visitation to the mother, the Fourth Department noted:  “The court erred, however, in directing the mother to engage in mental health counseling as a condition of visitation and in delegating its authority to the children’s counselor to determine when a resumption of visitation would be appropriate … .”  Matter of Roskwitalski, v Fleming, CAF 12-01090, 370, 4th Dept, 4-26-13

 

Hearsay Evidence in Neglect Proceeding Was Not Admissible—Petition Dismissed

In reversing Family Court and dismissing a neglect petition against the father, the Fourth Department determined the hearsay evidence presented against the father was inadmissible:

At the fact-finding hearing…, “only competent, material and relevant evidence may be admitted” (§ 1046 [b] [iii]). Here, “[t]he evidence offered in support of the petition against the father consisted almost entirely of out-of-court statements made by the mother to a police officer and caseworker[s] concerning a domestic dispute” …. Those statements were not admissible against the father in the absence of a showing that they came within a statutory or common-law exception to the hearsay rule … Contrary to the statement of Supreme Court, we conclude that the hearsay statements were not admissible “under article 10” of the Family Court Act (see generally § 1046 [a]). Matter of Nicholas C, CAF 11-01532, 305, 4th Dept, 4-26-13

 

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