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Individual Employees of Defendant Can Be Named In the Complaint Even Though They Were Not Named in the Notice of Claim

In this case a notice of claim was filed naming the Erie County Medical Center Corporation (ECMCC) as defendant. In the complaint, the individual doctors, employees of ECMCC, were named as defendants. Overruling precedent to the contrary, the Fourth Department determined it was not necessary to name the individual employees in the notice of claim in order to sue them. In a full-fledged opinion by Justice Scudder, the Fourth Department wrote:

 …[D]efendants contend that, although service of the notice of claim on the Employee Defendants was not required, plaintiff was nevertheless required to name those individual defendants in the notice of claim as a condition precedent to the commencement of an action against them. Despite precedent supporting that contention, we agree with Supreme Court that there is no such requirement. * * *

Although “[p]recedents involving statutory interpretation are entitled to great stability” …, we conclude that the courts have misapplied or misunderstood the law in creating, by judicial fiat, a requirement for notices of claim that goes beyond those requirements set forth in the statute.

If the legislature had intended that there be a requirement that the individual employees be named in the notices of claim, it could easily have created such a requirement. Goodwin, et al, v Pretorius, et al, 101, CA 12-01441, 4th Dept. 3-22-13

 

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Relation Back Doctrine Allowed Adding Doctor as Defendant in Medical Malpractice Action after Expiration of Statute of Limitations.

The relation back doctrine was applied in a medical malpractice action to allow the addition of a doctor as a defendant after the statute of limitations expired. The doctrine applies where “(1) both claims arose out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits, and (3) the additional party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well.”  The fact that the omission of the party may have been “negligent,” as opposed to a “mistake,” did not prevent the application of the doctrine. Kirk, et al, v University Ob-Gyn Associates, Inc., et al, 159, CA 12-01405, Fourth Dept. 3-15-13

 

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Owner/Officer of Company Can Be Personally Liable for Toxic Emissions Released by Company.

Plaintiffs brought an action for personal injuries and property damage allegedly caused by toxic emissions released by defendant Tonawanda Coke Corporation.  An owner and officer of Tonawanda Coke (Crane) moved to dismiss the cause of action suing him in an individual capacity.  In affirming the denial of that motion, the Fourth Department wrote:

Although “[a] corporate officer is not held liable for the negligence of the corporation merely because of his official relationship[,]” that officer will be held liable if it is established “that the officer was a participant in the wrongful conduct” … .Plaintiffs alleged in the first amended complaint that Crane was or should have been aware of the relevant environmental regulations, was ultimately responsible for reporting benzene emissions to the Environmental Protection Agency, and personally supervised and exercised control over Tonawanda Coke’s operations … .Thus, plaintiffs have alleged that Crane actively participated in the wrongful conduct by approving the policies that allegedly caused the environmental contamination … .   Abbot v Tonawanda Coke Corporation, et al, 155, CA 12-01384, Fourth Dept. 3-15-13

 

Absent Landowners Not Liable for Injuries at Party Hosted on their Property.

The Fourth Department reversed the trial court and granted a summary judgment motion brought by the owners of a golf course.  At a party that was not hosted by the landowners (and at which the landowners were not present), plaintiff was injured by another party-goer.  In determining the landowners had demonstrated they were not liable, the Fourth Department explained:

In general, “[landowners] are under a common-law duty to ‘control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control’ ” …Thus, landowners who are not present when a guest engages in harmful conduct and who have neither notice of nor control over such conduct are under no duty to protect others from such conduct …, unless the nature of the relationship between the landowners and the party host is such that the landowners, even if absent, are deemed to share in the duty imposed upon the host …. Pettit v Green, et al, 80, CA 12-01293, Fourth Dept. 3-15-13

third party assault

Meaning of “Passageway” at Work Site Explained

The Fourth Department. in this negligence, Labor Law 200 and Labor Law 241 (6) action discussed the applicable theories of notice and liability for an allegedly dangerous condition just outside a portable toilet at the work site which caused plaintiff to fall and sustain injury. With respect to the Labor Law 241 (6) cause of action, the Court determined that the area where the accident occurred was not a “passageway” within the meaning of 12 NYCRR 23-1.7(e)(1) which provides that passageways shall be kept free of obstructions.  Justice Whalen dissented, arguing that 12 NYCRR 23-1.7(e)(1) applied and there was an issue of fact whether the regulation was violated.  Steiger v LPCiminelli, Inc., et al, 1439, CA 12-01229, 4th Dept. 3-15-13​

 

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Employer’s Failure to Demonstrate a Proper Inquiry Was Made to Determine Whether Reasonable Accommodations Were Possible for a Disabled Employee Precluded Summary Judgment

In affirming the denial of a summary judgment motion brought by the defendant-employer in an employment (disability) discrimination action, the Fourth Department determined the employer did not eliminate all the triable issues of fact concerning whether reasonable accommodation to the employee’s needs was possible:

Assuming, arguendo, that defendant met its initial burden of establishing that “plaintiff could not perform the essential functions of the position of a” center manager …, we conclude that there are triable issues of fact “whether, ‘upon the provision of reasonable accommodations, [plaintiff was qualified to hold his position and to] perform [ ] in a reasonable manner’ the essential function of that position” … . [U]nder the broad[ ] protections afforded by the State [Human Rights Law], the first step in providing a reasonable accommodation is to engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested” … .Thus, “[t]he need for individualized inquiry when making a determination of reasonable accommodation is deeply embedded in the fabric of disability rights law . . . [E]mployers (and courts) must make a clear, fact-specific inquiry about each individual’s circumstance” … .In an employment discrimination case based on allegations of disability discrimination, “summary judgment is not available where there is a genuine dispute as to whether the employer has engaged in a good faith interactive process” … .Here, the court properly determined that defendant failed to eliminate all triable issues of fact with respect to, inter alia, whether defendant engaged in an interactive process to ascertain plaintiff’s needs and whether a reasonable accommodation was possible. Martin v United Parcel Service of America, Inc., 135, CA 12-01377, 4th Dept. 3-15-13

 

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Failure to Object to Curative Instruction Precludes Appeal

A curative instruction regarding admitted evidence was requested by the defendant and the court gave the requested instruction to the jury.  The defendant did not object to the instruction and did not seek a mistrial.  Therefore, the curative instruction “must be deemed to have corrected the error to the defendant’s satisfaction,” precluding appeal on that issue.  People v Mendez, 47, KA 09-01194, 4th Dept. 3-15-13

 

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Prior Court Ruling Can Not Be Altered Even If Erroneous

In reversing the trial court’s termination of the plaintiff-husband’s obligation to provide defendant-wife with medical coverage, the Fourth Department explained that it must apply the doctrine of res judicata, even where  the prior ruling had been erroneously decided:

We agree with defendant that the court erred in terminating plaintiff’s obligation to provide her with medical insurance coverage inasmuch as our prior order requires plaintiff to provide her with that coverage. As a general rule, the doctrine of res judicata bars relitigation of previously adjudicated disputes “even where further investigation of the law or facts indicates that the controversy has been erroneously decided, whether due to oversight by the parties or error by the courts” … .As relevant here, “a final judgment of divorce settles the parties’ rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated” … .“[A]bsent unusual circumstances or explicit statutory authorization, the provisions of [such a] judgment are final and binding on the parties, and may be modified only upon direct challenge” … .Here, plaintiff did not take an appeal from our prior order, seek reargument of that order, or make a proper application to modify it. He is therefore foreclosed from collaterally attacking it in the context of this action … . Lomaglio v Lomaglio, 142, CA 12-01317, 4th Dept. 3-15-13

 

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In SORA Context, Mild Mental Retardation Is Not a “Mental Disability”

In the context of a SORA determination, the Fourth Department noted that proof the victim had been diagnosed as mildly mentally retarded did not demonstrate the victim suffered from a “mental disability” within the meaning of the Correction Law:

We agree with defendant, however, that the People failed to present the requisite clear and convincing evidence that the victim of the underlying crime suffered from a “mental disability” (see generally Correction Law § 168-n [3]), and thus the court erred in assessing 20 points against him under risk factor 6. Although the People presented evidence that the victim was diagnosed as mildly mentally retarded, “[t]he law does not presume that a person with mental retardation is unable to consent to sexual [activity], . . . and proof of incapacity must come from facts other than mental retardation alone” (People v Cratsley, 86 NY2d 81, 86). Here, the remaining evidence in the record relating to the victim’s capacity failed to establish that she was “incapable of appraising the nature of [her] own sexual conduct” (id. at 87; see People v Easley, 42 NY2d 50, 55-57; cf. People v Jackson, 70 AD3d 1385, 1385, lv denied 14 NY3d 714).  People v Green, 254, KA 11-00973, 4th Dept. 3-15-13

 

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17-Year Pre-Indictment Delay Did Not Violate Right to Speedy Trial

A 17-year pre-indictment delay did not violate defendant’s right to a speedy trial.  The Fourth Department wrote:

On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]), defendant contends that the 17-year preindictment delay violated his constitutional right to a speedy trial.We reject that contention. In examining the Taranovich factors (People v Taranovich, 37 NY2d 442, 445), we conclude that, although the 17-year preindictment delay was substantial, the nature of the charge was serious, and defendant remained at liberty until he was indicted. Moreover, the People met their burden of establishing a good-faith basis for the delay (see People v Decker, 13 NY3d 12, 14-16; People v Chatt, 77 AD3d 1285, 1285, lv denied 17 NY3d 793). In particular, they established that there was insufficient evidence to charge defendant shortly after the crimes occurred, and it was not until a witness gave new information to the police that identified defendant as the perpetrator and DNA testing was completed that the People brought the charges against defendant. While the delay may have caused some degree of prejudice to defendant, “ ‘a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant’ ” (Decker, 13 NY3d at 14).  People v Gaston, 176, KA 11-00406, 4th Dept. 3-15-13

 

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