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Defendant’s Failure to Comply with Discovery Orders Warranted Striking the Answer

The Second Department determined defendant’s answer was properly struck due to defendant’s failure to comply with the court’s orders concerning discovery:

“[A] trial court is given broad discretion to oversee the discovery process” … . When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court’s discretion to strike the “pleadings or parts thereof” (CPLR 3126[3]) as a sanction against such party … . However, public policy favors the resolution of cases on the merits … . Accordingly, “the drastic remedy’ of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious” … . “Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply . . . with court-ordered discovery over an extended period of time” … .

Here, the plaintiff moved to strike the answer insofar as asserted by the defendant Roger Powell (hereinafter the defendant) almost three years after commencing this action. At that time, the defendant still had not appeared for a deposition, despite numerous “so-ordered” extensions entered into between counsel for the parties, and in violation of a court order directing him to appear for such deposition. In opposition to the motion, defense counsel’s investigator stated that he had been unable to locate the defendant. Under these circumstances, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s motion which was to strike the answer insofar as asserted by the defendant and to direct an inquest against him … . Stone v Zinoukhova, 2014 NY Slip Op 05532, 2nd Dept 7-30-14

 

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Law Firm Representing Wife in a Divorce Proceeding Entitled to Charging Lien Pursuant to Judiciary Law 475 But Not Entitled to Money Judgment with Interest

In reversing Supreme Court, the Second Department determined the law firm which represented the wife in a divorce was entitled to a charging lien for outstanding legal fees (to be paid from the proceeds of the upcoming sale of the marital residence).  However, in the absence of a plenary action, the law firm was not entitled to enter a money judgment with interest (Judiciary Law 475):

Judiciary Law § 475 provides that, from the commencement of an action in any court, the attorney who appears for a party has a lien upon his client’s cause of action, claim, or counterclaim, which attaches to a verdict, report, determination, decision, judgment, or final order in his client’s favor, and the proceeds thereof. “A charging lien is a security interest in the favorable result of litigation, giving the attorney equitable ownership interest in the client’s cause of action and ensuring that the attorney can collect his fee from the fund he has created for that purpose on behalf of the client” … . ” Where an attorney’s representation terminates upon mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains his or her right to enforce the statutory lien'” … . In a matrimonial action, a charging lien will be available ” to the extent that an equitable distribution award reflects the creation of a new fund by an attorney greater than the value of the interest already held by the client'” … . Wasserman v Wasserman, 2014 NY Slip Op 05535, 2nd Dept 7-30-14

 

Disclaimer of Coverage Unreasonably Untimely as a Matter of Law

The Second Department determined the defendant insurer’s disclaimer of coverage was unreasonably untimely as a matter of law:

An insurance company has an affirmative obligation to provide written notice of a disclaimer of coverage as soon as is reasonably possible, even where the policyholder’s own notice of the claim to the insurer is untimely … . Here, the defendant learned by January 6, 2012, at the latest, about the underlying personal injury action. The defendant was aware by that date of the grounds for disclaimer of coverage … . Nevertheless, it did not disclaim coverage until March 28, 2012, almost three months later, a delay that, under the circumstances of this case, is unreasonable as a matter of law … . Darling Ferreira v Global Liberty Ins Co of NY, 2014 NY Slip Op 05409, 2nd Dept 7-23-14

 

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Failure to Specifically Demonstrate When Area Where Fall Occurred Was Last Inspected or Cleaned Required Denial of Summary Judgment

The Second Department determined the defendant did not meet its burden of demonstrating a lack of constructive notice of the condition of the stairway where plaintiff fell (allegedly the presence of dirty paper and urine):

Although the defendant submitted an affidavit from the supervisor of the caretaker assigned to clean the subject building on the day immediately preceding the plaintiff’s nighttime accident, that affidavit was insufficient to establish when the stairway was last inspected and cleaned relative to the plaintiff’s fall. The affidavit was conclusory and only referred, in a general manner, to the janitorial schedule followed on normal weekdays. Moreover, another caretaker testified at his deposition, and the defendant concedes, that the normal weekday janitorial schedule was not in effect on the day preceding the plaintiff’s accident, which was the Thanksgiving holiday. Since the defendant did not provide evidence regarding any specific cleaning or inspection of the area in question on that day, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law… . Williams v New York City Hous Auth, 2014 NY Slip Op 05425, 2nd Dept 7-23-14

 

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County Water Authority Had Standing to Bring Action Based Upon the Chemical Contamination of Its Wells—CPLR 214-c Governs Actions Based Upon Contamination—Action Was Untimely

The Second Department, in a full-fledged opinion by Justice Hinds-Radix, determined that the plaintiff Suffolk County Water Authority (SCWA) had standing to bring a negligence/nuisance/trespass/products liability action against defendants alleging contamination of wells caused by chemicals (PCE and TCE).  However, the court determined the action was barred as untimely by CPLR 214-c.  In the course of the opinion, the court explained what the “two-injury” rule is in the context of a continuing wrong.  The court determined that CPLR 214-c was designed to eliminate the continuing-wrong statute of limitations calculation in contamination cases.  In addition, the court explained the difference between latent and patent injuries with respect to CPLR 214-c:

Generally, a plaintiff has standing to sue if it has suffered an injury in fact … in some way different from that of the public at large and within the zone of interests to be protected by relevant statutory and regulatory provisions … .

We reject the movants’ contention that the SCWA lacked standing to seek damages for injury to 115 wells where the PCE contamination level fell below the MCL (federal and state “maximum contamination level” for PCE). The MCL is only a regulatory standard which governs conduct in supplying water to the public. While the MCL may be helpful in determining whether an injury has occurred, the MCL does not set a bar below which an injury cannot have occurred … . Similarly, the MCL does not define whether an injury has occurred, since contamination below that level could result in some injury, such as increased monitoring costs … . It is undisputed that the SCWA has expended resources in its effort to address the widespread contamination, even at wells where the contamination has not risen to or exceeded the MCL. Thus, the SCWA has alleged that it has suffered an injury for which it may seek redress, irrespective of the level of contamination. * * *

CPLR 214-c was enacted in 1986 to ameliorate the effect of a line of cases which held that toxic tort claims accrued upon the impact or exposure to the substance, even though the resulting injury or illness did not manifest itself until some time later … . CPLR 214-c provides for a three-year limitations period for actions to recover damages for injuries to person or property “caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property” (CPLR 214-c[2]). The three-year period is “computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” (CPLR 214-c[2]…). For the purposes of CPLR 214-c, “discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, the injured party discovers the primary condition on which the claim is based'” … . Suffolk County Water Auth v Dow Chem Co, 2014 NY Slip Op 05420, 2nd Dept 7-23-14

 

Extremely Forgiving Nature of CPLR 3216 (Dismissal for Neglect to Prosecute) Explained

The Second Department noted the “extremely forgiving” nature of CPLR 3216 in affirming Supreme Court’s denial of a motion to dismiss for neglect to prosecute:

CPLR 3216 is “extremely forgiving” … in that it “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … . While the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a meritorious cause of action (see CPLR 3216[e]…), such a dual showing is not strictly necessary to avoid dismissal of the action … . Altman v Donnenfeld, 2014 NY Slip Op 05402, 2nd Dept 7-23-14

 

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Building Owner Entitled to Summary Judgment in Slip and Fall Case Based Upon Tracked In Water (Inclement Weather)–Tenant Ordinarily Does Not Have a Duty of Care Re: Common Areas

The Second Department determined the building owner was entitled to summary judgment in a slip and fall case based upon water tracked in during inclement weather.  The court noted that a tenant does not have a duty of care with respect to the condition of common areas of the building:

“In a slip-and-fall case, the defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . Moreover, a property owner is not obligated to provide a constant remedy to the problem of water being tracked into a building during inclement weather …, and has no obligation to cover all of its floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation … . A tenant ordinarily owes no duty of care with respect to a dangerous condition in a common area of a building … .

The owner and the tenant, on their respective motions, established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them. In support of their motions, the owner and the tenant each presented evidence that it had not created the alleged defective condition. The owner also presented evidence that it had neither actual nor constructive notice of the alleged defective condition, i.e., the alleged presence of water on the vestibule floor of the subject building. Paduano v 686 Forest Ave LLC, 2014 NY Slip Op 05415, 2nd Dept 7-23-14

 

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Criteria for Determining a Motion to Amend the Pleadings Explained

In reversing Supreme Court’s denial of a motion for leave to serve a second amended complaint, the Second Department explained the criteria for determining the motion:

“Applications for leave to amend pleadings under CPLR 3025(b) should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit” … .

“No evidentiary showing of merit is required under CPLR 3025(b)” … . “The court need only determine whether the proposed amendment is palpably insufficient’ to state a cause of action or defense, or is patently devoid of merit” (id.). “[A] court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt” … . Favia v Harley-Davidson Motor Co Inc, 2014 NY Slip Op 05408, 2nd Dept 7=23=14

 

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City Can Not Be Held Liable for Injuries Caused by Attacking Dogs About Which Complaints Had Been Made—No Special Relationship Between Plaintiff’s Decedent and City

The Second Department determined no special relationship existed between plaiintiff’s decedent and the city such that the city could be held liable for the alleged failure to address complaints about the dogs which attacked plaintiff’s decedent, who died from the injuries.  The court explained why none of the criteria for a special relationship applied:

” A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation'” … .

As for the first way of forming a special relationship, contrary to the plaintiff’s contention, a private right of action may not be fairly implied from Agriculture and Markets Law (hereinafter AML) § 123 … . The Supreme Court properly determined that the recognition of a private right of action would be inconsistent with the legislative scheme underlying AML § 123 … . Accordingly, no special relationship was created between the City and the decedent through the breach of a statutory duty.

As for the second way of forming a special relationship, the City met its prima facie burden of demonstrating its entitlement to judgment as a matter of law by submitting evidence that it did not voluntarily assume a duty toward the decedent. To demonstrate that a municipality voluntarily assumed an affirmative duty and a plaintiff justifiably relied on the municipality’s undertaking, four elements must be shown: “(1) an assumption by a municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) knowledge on the part of a municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … . Here, the City established and the plaintiff concedes that the decedent never made direct contact with the City, and the circumstances here did not give rise to one of the narrow exceptions to this requirement … . The absence of direct contact negates the existence of a special relationship pursuant to the City’s voluntary assumption of a duty to the decedent … .

As for the third way of forming a special relationship, which has been recognized in only rare circumstances, the City must affirmatively act to place the plaintiff in harm’s way … . Contrary to the plaintiff’s contention, the evidence established, prima facie, that the City did not take positive direction and control in the face of a known, blatant, and dangerous safety violation. Sutton v City of New York, 2014 NY Slip Op 05421, 2nd Dept 7-23-14

 

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No Special Duty Owed by School to School Employee Injured by Students Who Collided with Her

The Second Department determined that a school’s duty to supervise students does not extend to an adult school employee injured when two students collided with her:

A school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge, at least in the absence of a special duty to the person injured … . Under the doctrine that a school district acts in loco parentis with respect to its minor students, a school district owes a “special duty” to the students themselves … . Accordingly, a school district may be held liable to a student when it breaches that duty, so long as all other necessary elements of a negligence cause of action are established … . The special duty owed to the students themselves does not, however, extend, as a general matter, to teachers, administrators, and other adults on or off of school premises … .

Here, the defendants established, prima facie, that they did not owe the plaintiff a special duty… . Ferguson v City of New York, 2014 NY Slip Op 04464, 2nd Dept 6-18-14

 

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