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How to Handle a Motion to Dismiss for Failure to State a Claim When Documentary Evidence Is Considered Explained/Dismissal of Foreclosure Action Based on Lack of Standing Is Not a Dismissal on the Merits/Striking of a Foreclosure Complaint for Failure to Comply with a Discovery Order Is Not a Dismissal on the Merits

The Second Department determined plaintiff did not have a cause of action to discharge his mortgage.  The court explained how a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a claim is handled when documentary evidence is submitted and considered on the motion.  [With respect to the plaintiff’s allegations that the defendant could not institute new foreclosure proceedings against him, the court noted that the dismissal of a foreclosure complaint premised on a lack of standing is not a dismissal on the merits for res judicata purposes, and the striking of a complaint for noncompliance with a discovery order is also not a dismissal on the merits:]

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory … . Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate … . Caliguri v JPMorgan Chase Bank NA, 2014 NY Slip Op 07319, 2nd Dept 10-29-14

 

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Hospital Not Vicariously Liable for Acts of Non-Employee Midwife/Hospital May Be Liable for Staff’s Failure to Summon Obstetrician When Problems with the Birth Developed/Midwife’s Assistant, Who Worked Under the Supervision of the Midwife and Did Not Exercise Independent Judgment, Not Liable

The Second Department determined: (1) the hospital (Phelps) defendants were not vicariously liable for the actions of a midwife who was not an employee; (2) there was a question of fact whether the hospital staff was negligent in failing to summon an obstetrician when problems with the birth developed; and (3) the action against the midwife’s assistant (Milligan) was properly dismissed because the assistant worked under the supervision of the midwife and did not exercise independent judgment:

In general, “a hospital may not be held [liable] for the acts of [a physician] who was not an employee of the hospital, but one of a group of independent contractors” … . However, a hospital can be held concurrently liable with a private attending physician if its employees commit independent acts of negligence or the attending physician’s orders are contraindicated by normal practice … . “When supervised medical personnel are not exercising their independent medical judgment, they cannot be held liable for medical malpractice unless the directions from the supervising superior or doctor so greatly deviates from normal medical practice that they should be held liable for failing to intervene”  * * *

The Supreme Court erred in granting that branch of the Phelps defendants’ motion which was for summary judgment dismissing so much of the complaint as alleged they were concurrently liable with Mahoney for the alleged independent negligence of their nursing staff. In opposition to the Phelps defendants’ prima facie showing of their entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact as to whether the Phelps defendants’ nursing staff departed from good and acceptable medical practice by failing to summon an obstetrician when the infant plaintiff’s fetal heart rate dropped below normal… . …

Milligan met her prima facie burden of demonstrating that, during the infant plaintiff’s birth, she did not exercise any independent medical judgment, but was under the direct supervision of Mahoney, the attending nurse-midwife, whose directions did not so greatly deviate from normal medical practice that she should be held liable for failing to intervene. Zhuzhingo v Milligan, 2014 NY Slip Op 07350, 2nd Dept 10-29-14 

 

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Sole Eyewitness’ Testimony at Trial Indicating She Could Not Identify the Shooter (Because of the Passage of Time and the Effects of Alcoholism and Depression) Did Not Allow the Prosecutor to Impeach Her with Her Grand Jury Testimony and Prior Identification of the Shooter

In reversing defendant’s conviction, the Second Department explained that the prosecution should not have been allowed to impeach its own witness when the witness failed to identify the shooter in her trial testimony.  In addition, it was error to allow a detective to testify that the witness previously identified the defendant:

…[T]he Supreme Court erred in permitting the prosecutor to impeach the sole eyewitness with her grand jury testimony and photo array identification of the shooter. A party may impeach its own witness with prior inconsistent statements only when the testimony of that witness on a material issue tends to disprove the party’s position or affirmatively damages the party’s case (see CPL 60.35…). “Trial testimony that the witness has no knowledge of or cannot recall a particular event, whether truthful or not, does not affirmatively damage the People’s case” … . Here, the testimony of the eyewitness that she did not remember the face of the shooter and could not identify the shooter because of the passage of time between the shooting and the trial, and because of her struggles with alcohol and depression, did not tend to disprove or affirmatively damage the People’s case … . Accordingly, it was error to permit the prosecutor to impeach the testimony of the eyewitness with her grand jury testimony and photo array identification. People v Ayala, 2014 NY Slip Op 07362, 2nd Dept 10-29-14

 

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Although Not the Case Here, the Court Explained How a Collision Between a Vehicle Entering the Roadway and a Vehicle Which Is In the Roadway (and Has the Right-of-Way) Can Possibly Have Two Proximate Causes

The Second Department determined the defendant, who apparently struck plaintiff’s car as plaintiff pulled into traffic from a parking lot, was entitled to summary judgment.  Plaintiff was negligent as a matter of law based on a violation of Vehicle and Traffic law 1143, which requires a driver entering a roadway to yield to drivers within the right-of-way.  And there was no showing defendant was negligent.  The decision has a good explanation of how there can be two proximate causes of an accident under such facts (not the case here):

There can be more than one proximate cause of an accident …, because each driver has a duty to exercise reasonable care under the circumstances to avoid an accident … . As a result, even where there is evidence that another driver involved in the accident was negligent as a matter of law due to a violation of the Vehicle and Traffic Law, “the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law” … . Thus, a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident … . However, “[a] driver with the right-of-way who has only seconds to react to a vehicle that has failed to yield is not comparatively negligent for failing to avoid the collision” … . Desio v Cerebral Palsy Transp Inc, 2014 NY Slip Op 07322, 2nd Dept 10-29-14

 

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Land Owner Entitled to “Rental-Value” Compensation for Area Encompassed by Temporary Easement for Roadway Widening Project, Not “Rental-Value” Compensation for the Entire Parcel

The Second Department affirmed the Court of Claims ruling that a temporary easement along the roadway taken by the state during a road-widening project did not affect the entire parcel.  Therefore the proper measure of compensation was the rental value of the area encompassed by the easement, not the rental value of the whole:

Generally speaking, a claimant is entitled to compensation for any loss suffered as a result of the taking of a temporary easement … . There is, however, no recovery where there is no loss … . Indeed, ” compensation need not be paid for the State’s taking of a temporary easement when there is no actual interference with the property owner’s use of his [or her] property'” … .

Where a taking of a temporary easement encumbers a parcel’s entire highway frontage, as in the instant case, the measure of damages is “the rental value of the land encompassed within the temporary easement for so long as the easement is in effect plus, as consequential damages, the rental value of the parcel’s unencumbered interior acreage for any period of time when highway access was not possible by virtue of the easement’s use” … . A condemnee is entitled to consequential damages comprising the rental value of the parcel’s unencumbered interior acreage for the easement’s duration only if the condemnor does not meet its burden of proving the duration of the “interval of actual obstruction,” or if the condemnee establishes that the “mere existence” of the temporary easement interfered with highest and best use of the property “in more than a conjectural sense” … . Ronmar Realty Inc v State of New York, 2014 NY Slip Op 07343, 2nd Dept 10-29-15

 

Insufficient Proof Plaintiff Was Defendant’s Special Employee

The Second Department determined the defendant did not demonstrate plaintiff was its special employee.  Therefore summary judgment dismissing plaintiff’s personal injury suit based upon plaintiff’s receiving Workers’ Compensation benefits from his general employer should not have been granted:

“The receipt of Workers’ Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer” … . In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee’s work, the method of payment, the furnishing of equipment, and the right to discharge … . “A significant and weighty factor . . . is who controls and directs the manner, details and ultimate result of the employee’s work'” … .

Contrary to the determination of the Supreme Court, the defendant failed to come forward with sufficient evidence of a special employment relationship to demonstrate its prima facie entitlement to judgment as a matter of law, since its submissions on the motion did not establish, inter alia, that it controlled and directed the manner, details, and ultimate result of the plaintiff’s work … . Nolan v Irwin Contr Inc, 2014 NY Slip Op 07339, 2nd Dept 10-29-14

 

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Where Deportation As a Result of a Guilty Plea Is Not Mentioned by the Court, Preservation of the Error Is Not Required

The Second Department noted that, where the court does not mention the prospect of deportation as a result of a guilty plea, the error need not be preserved and the defendant should be given the opportunity to demonstrate to the court the guilty plea would not have been entered if the possibility of deportation were known. People v Al-Mulwallad, 2014 NY Slip OP 07361, 2nd Dept 10-29-14

 

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Criteria for Dismissal of a Complaint Pursuant to CPLR 3211(a)(1) [Defense Based Upon Irrefutable Documentary Evidence] and CPLR 3211(a)(7) [Failure to State a Cause of Action] Explained

In the context of a legal  malpractice action, in affirming the denial of motions to dismiss, the Second Department explained the criteria for motions to dismiss pursuant to CPLR 3211(a)(1) [defense founded on documentary evidence] and CPLR 3211(a)(7) [failure to state a claim]:

A party seeking relief pursuant to CPLR 3211(a)(1) on the ground that his or her defense is founded upon documentary evidence ” has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim'” … . In the instant matter, the documentary evidence submitted by the defendants, consisting of the orders issued by the Supreme Court in the underlying action, failed to utterly refute the plaintiff’s allegations of malpractice or conclusively establish a defense as a matter of law in the instant action … . * * *

On a motion to dismiss pursuant to CPLR 3211(a)(7), the facts alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … . Here, the plaintiff alleged that, but for the defendants’ negligence, including their failure to assert “appropriate claims against the proper parties, . . . the Plaintiff’s medical malpractice claim would have succeeded and resulted in a different, better and/or more positive outcome.” Construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, as required, the plaintiff stated a cause of action to recover damages for legal malpractice … . Tooma v Grossbarth, 2014 NY Slip Op 07347, 2nd Dept 10-29-14

 

An “Administrative Evaluation,” As Opposed to a Formal Disciplinary Reprimand, Can Remain in a Teacher’s File Even though the Evaluation Was Issued In the Absence of the Formal Notice and Hearing Requirements of Education Law 3020-a

The Second Department determined an “administrative evaluation,” opposed to a formal disciplinary reprimand, could remain in a teacher’s file, even though the evaluation was issued in the absence of the formal notice and hearing procedures mandated by Education Law 3020-a:

In New York, a tenured teacher may not be “disciplined” without being afforded the procedures set forth in Education Law § 3020-a, which requires that formal charges first be referred to the board of education for a determination of probable cause, after which the teacher is given written notice of the charges and an opportunity for a hearing (Education Law § 3020; see Education Law § 3020-a). However, section 3020-a does not “insulat[e] tenured teachers from all written critical comment from their supervisors” … . While a formal disciplinary reprimand may not be issued without compliance with section 3020-a, a critical “administrative evaluation” may properly be included in a teacher’s personnel file without resort to such procedures … .

Here, the letter the petitioner sought to have removed from his personnel file “[fell] within [the] permissible range of administrative evaluation,” and the respondent Elmsford Union Free School District did not act unlawfully in making it part of the petitioner’s personnel file without complying with Education Law § 3020-a… . Matter of Weinberger v Elmsford Union Free School District, 2014 NY Slip Op -7360, 2nd Dept 10-29-14

 

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Personal Injury Suit by Student Against School District Alleging Negligent Supervision Properly Survived Summary Judgment

The Second Department determined a personal injury suit by a student alleging negligent supervision properly survived summary judgment.  The student was injured when she was pushed by those behind her into a door which should not have been locked:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . While schools are not insurers of student safety, they have a duty to exercise the same degree of care toward their students as would a reasonably prudent parent under comparable circumstances … . Here, the evidence submitted by the defendants, which included the deposition testimony of the infant plaintiff and Breen, was insufficient to establish, prima facie, that they properly supervised the infant plaintiff and her physical education class or that their alleged negligent supervision was not a proximate cause of the infant plaintiff’s injuries … . In addition, the defendants’ evidence was insufficient to establish that the locked door of the girls’ locker room was open and obvious and not inherently dangerous under the circumstances … . “Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances,” as the condition may be rendered a trap where it is obscured or the plaintiff is distracted … . Maneri v Patchogue-Medford Union Free Sch Dist, 2014 NY Slip Op 07336, 2nd Dept 10-29-14

 

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