In assigning liability, how many degrees of separation can there be as between the surgeon and the hospital?

Three days after having been admitted to the hospital, plaintiff was referred to an attending vascular surgeon, who treated her and performed an unsuccessful saphenous vein bypass. In Cunningham v. St. Barnabas Hosp., decided on January 30, 2007, the First Department affirmed that "the hospital is not liable for the acts of the private attending physician." Nor does liability run to a hospital resident who "merely assisted" and took orders from the operating surgeon.

When stipulating to a settlement, is "You've got mail" enough?

No, according to the Second Department in DeVita v. Macy's E., Inc., decided on January 23, 2007. "The plain language of CPLR 2104 requires that such an agreement be in writing and signed by the parties (or attorneys of the parties) to be bound by it," and here it was determined that "a confirmatory e-mail sent to the plaintiffs' former attorney by counsel to the insurer of one of the defendants, either alone or in conjunction with an e-mail sent by the plaintiffs' former counsel in response, did not constitute a writing sufficient to bring the purported settlement into the scope of CPLR 2104."

What showing is necessary in seeking the disclosure of employee records?

In Beckles v. Kingsbrook Jewish Med. Ctr., decided on January 23, 2007, the Second Department denied plaintiff's demand for documents relating to the qualifications of more than 100 of defendant's employees. While looking to support her racial discrimination claim, plaintiff had made no showing that the employees in question were white or that their jobs had been comparable to hers in terms of requisite credentials. In short, plaintiff had not met the "material and necessary" threshold of CPLR 3101(a).

"Turn out the lights, the party's over..."

In Timoney v. Newmark & Co. Real Estate, decided on January 16, 2007, the Second Department invoked res judicata in granting defendant's motion to dismiss. In 1999, plaintiff had brought the action which was dismissed in 2001. In denying leave to renew, the court said, "The plaintiff may not relitigate claims arising from the same transaction or series of transactions, notwithstanding his attempts to allege new facts or theories of recovery."

Other than that, Counselor, what do you think about him?

On January 16, 2007, in O'Neil v. Klass, the Second Department agreed that plaintiff had been deprived of a fair trial because, among other things, defense counsel had made "many improper, inflammatory remarks during the cross-examination of the plaintiff's experts and summation. For instance, during the cross-examination of one of the plaintiff's expert witnesses, the defense counsel repeatedly characterized the witness's responses as 'lies,' accused the witness of 'deliberately misleading the jury,' and called him 'an evasive person' as well as a 'professional' witness. In summation, he stated '[T]he man is a lie,' and argued that the witness was a 'self-admitted professional witness.'"

Time Matters.

On January 18, 2007, in Cabibel v. XYZ Associates, the First Department reinstated the complaint because defendants, without seeking leave, had moved for summary judgment 60 days after the date set by the court. What's more, defendants had not sought to enlarge their time to file, and they offered an excuse for their lateness only in their reply to plaintiff's opposition.

Can you get a case restored more than a year after it has been stricken from the trial calendar, pursuant to CPLR 3404?

Yes, according to the First Department in Kaufman v. Bauer, decided on January 16, 2007. The Court has the discretion to grant a restoration motion if the movant demonstrates the merits of the claim; a lack of prejudice to the other side; a lack of intent to abandon the action; and a reasonable excuse for the delay.

Q. When do you lose even when you win?
A. When you don't timely enter.

Plaintiffs did not move within one year, as required by CPLR 3215(c), for leave to enter a default judgment after the defendant had failed to answer the complaint. To defeat a motion to dismiss as to that defendant, they had to demonstrate a reasonable excuse for the delay and a meritorious cause of action. In Costello v. Reilly, decided on January 9, 2007, the Second Department found that plaintiffs had demonstrated neither: after a delay of more than four years, their excuse of law office failure was unsubstantiated, and the verified complaint alone could not establish a meritorious cause of action since it was verified by plaintiffs' attorney and not by plaintiffs themselves.

Putting Too Fine a Point on Court Rules

In Lee v. Marino, decided on January 9, 2007, the First Department found that the motion court had "clearly abused its discretion" in striking an affidavit because it violated court rules regarding the length of the writing and the use of exhibit tabs. The Court said these were not "gross" violations which would justify denying the plaintiff her day in court.

When is an insurance policy "in force"?

On November 8, 2004, an insurer served a complaint claiming that the insured had fraudulently obtained two life insurance policies which contained language to the effect that they could not be contested after they had been in force, during the insured's lifetime, for two years from the earlier of the policy date or the issue date.

The policy date for both was November 1, 2002, and the issue dates were November 8, 2002, and December 3, 2002, respectively.

When the insured moved to dismiss because the period in which to contest the policies had expired, the insurer argued that the policies were contestable because they were not in force prior to November 8, 2002.

On January 9, 2007, in Security Mutual v. Herpal, the First Department held the complaint to be time-barred in New York, where the issue date controls unless expressly stated in the writing. Here, the insurer had given the insured an earlier date to trigger the incontestability period.

Does it sound in malpractice when the doctor's out?

Not in and of itself, according to the First Department, in Brown v. Bauman, decided on January 4, 2007. Plainfiffs had alleged that the obstetrician's failure to appear in the delivery room in time to deliver their child was a departure from accepted medical practice, and a proximate cause of a laceration of the mother's perineum during the birth. Defendant answered that he had arranged for a substitute physician and, according to his expert's unrebutted affirmation, when an obstetrician is unable to attend a delivery, accepted standards of practice call for the obstetrician to arrange for a competent, experienced, substitute physician. The Court found that the issue, then, is the competence of the substitute, and not defendant's absence from the operating room.

A law firm sued a former client and her husband for allegedly defamatory statements they had made in a letter firing the firm which had represented the woman and her brother in a family business dispute. In addition to criticizing the quality of the firm's representation, the letter accused the firm of charging excessive interest on its outstanding fees. The letter was copied to the former client's brother and to two attorneys who also had been advising the woman in the litigation. On January 4, 2007, in Sexter & Warmflash v. Margrabe, the First Department found that "a kind of communication at issue here - a letter among parties and counsel on the subject of pending or prospective litigation - enjoys the protection of the absolute privilege for judicial proceedings." The Court made it clear that persons involved in any judicial proceeding are absolutely privileged to speak about it among themselves, regardless of the speaker's motive.

Can the State be held liable for the intentional infliction of emotional harm?

No, according to the Court of Claims, in Griffen v. The State of New York, decided on December 4, 2006. "The State is an entity, incapable of forming the requisite intent. Furthermore, “. . . public policy prohibits a claim for intentional infliction of emotional distress from being brought against the State . . . (citation omitted),” De Lesline v State of New York, 91 AD2d 785, 786 (3d Dept 1982); and the State is not subject to punitive damages. Sharapata v Town of Islip, 56 NY2d 332, 334 (1982); Wheeler v State of New York, 104 AD2d 496, 498 (2d Dept 1984)."

For a cause of action to sound in negligence against a municipality there must have been a special relationship, which requires, among other things, direct contact with the plaintiff. See Badillo, January 1 post below. Can that direct contact be transferred?

No. On December 21, 2006, in Laratro v. City of New York, the Court of Appeals held that there was no special relationship when the City's 911 operator had not communicated directly with the plaintiff, but only with the plaintiff's co-worker, and, therefore, the plaintiff himself could not have relied on any undertaking by the 911 operator.

In the matter of service, what constitutes due diligence?

County of Nassau v. Long
Decided on December 26, 2006
Appellate Division, Second Department

Contrary to the plaintiff's contention, the Supreme Court properly concluded that the attempts to serve the defendant Patrick Long at his residence did not satisfy the "due diligence" requirement for so-called "nail and mail" service under CPLR 308(4). Here, the attempts preceding service were made on August 18, 2005, a Thursday, at 7:00 P.M., August 19, 2005, at 3:45 P.M., and August 23, 2005, a Tuesday, at 7:44 P.M. These attempts were made on weekdays during hours when it reasonably could have been expected that Long was either working or in transit to or from work (see County of Nassau v Letosky, AD3d [2d Dept, Nov. 8, 2006]; O'Connell v Post, 27 AD3d 630, 631). Moreover, there is no indication that the process server made any attempt to locate Long's business address or to effectuate personal service thereat (see County of Nassau v Letosky, supra; Sanders v Elie, 29 AD3d 773, 774).

Can plaintiff amend, and then untimely file, proof of service?

County of Nassau v. Gallagher
Decided on December 26, 2006
Appellate Division, Second Department

In opposition to the defendant's motion to dismiss the complaint for lack of personal jurisdiction, the plaintiff submitted a document labeled "Amended Affidavit of Service," which was sworn to and filed more than three months after the alleged mailing of the summons and complaint to the defendant. In granting the defendant's motion, the Supreme Court noted that the plaintiff failed to file the proof of service with the office of the clerk of the court within 20 days after the mailing of the summons and complaint, as required under CPLR 308(2). Subsequently, in connection with its motion for leave to reargue the defendant's motion, the plaintiff submitted a copy of a prior, timely filed affidavit of service, and explained that the Amended Affidavit of Service was filed to correct the original affidavit's recitals of the dates of the delivery and the mailing of the summons and complaint, which were obviously incorrect. In opposing the defendant's motion to dismiss the complaint, however, the plaintiff had not requested that the original affidavit of service be amended, and had not even submitted that document to the court (see CPLR 3211[e]). Moreover, the plaintiff never sought an order permitting a late filing of proof of service (see Bank of New York v Schwab, 97 AD2d 450; Marazita v Nelbach, 91 AD2d 604).

Is the notice of claim requirement a statute of limitations or a condition precedent, and should the practitioner care?
What, if any, tolling provisions apply, and for how long?
How should the notice of claim be served?
What was the last date for the notice of claim to be timely served?
What was the last date for the action to be timely filed?
Who bears the burden to prove or disprove prejudice?

Webb v. New York City Housing Authority
Decided on December 28, 2006
Appellate Division, First Department

Allen Webb was an infant at the time he suffered severe hot water burns, allegedly when left unattended in a bath at his foster home within the Rosedale Houses, one of defendant's premises in the Bronx. On July 6, 1988, the day after his injuries, a social worker from the City's Human Resources Administration, Department of Social Services (HRA), met with a management assistant at the premises to investigate "building maintenance" in connection with the incident. This visit was noted in the foster mother's tenant folder. Shortly thereafter, upon his release from the hospital as an in-patient, Allen was removed from that foster home and became the foster child of plaintiff Leta Webb, who later adopted him. There was no attempt to serve defendant with a notice of claim until Allen reached the age of majority, some 15 years later. Defendant rejected attempted service of a notice of claim three times within 90 days after Allen's 18th birthday, July 5, 2003. Plaintiffs then commenced their negligence action in late September 2004 and moved for leave to serve a late notice of claim on October 1, 2004, which was granted.
Leave was improvidently granted in view of the lack of a reasonable excuse for failure to timely serve a notice of claim, the inadequacy of the alleged actual notice provided to defendant, and the prejudice to defendant resulting from the passage of 16 years between the injury and the motion. The only excuse plaintiffs offer is ignorance of the law, which this Court has held to be insufficient (see Ocasio v New York City Health & Hosps. Corp., 14 AD3d 361 [2005]; Gaudio v City of New York, 235 AD2d 228 [1997]). The alleged "actual knowledge of the essential facts constituting the claim" (General Municipal Law § 50-e[5]) received by defendant was vague at best. The entry in the then-foster mother's tenant file summarizing the social worker's investigatory visit was silent as to a causal connection between the child's injuries and negligence on the part of defendant (see Pineda v City of New York, 305 AD2d 294 [2003]). The lack of further information from HRA or the social worker, despite her promise to follow up, left defendant with no knowledge of its possible culpability in the incident and no reason to investigate. Moreover, a few months later, defendant received notification that the child had been removed from his foster home, which strongly suggested that abuse was the cause of his injuries, as HRA in fact found. Finally, the lengthy passage of time prejudiced defendant's ability to adequately investigate and prepare a defense. For example, the employee who noted the social worker's visit in the tenant file submitted an affidavit stating that he had made the entry, but due to the passage of time, had no independent recollection of the surrounding facts and circumstances and believed, based upon the scant information contained in the entry, that he did not generate an incident report on the matter. Indeed, no such report or related documentation concerning complaints or repairs could be found.

Without more, can an employee's failure to follow the employer's protocols sound in negligence?

Badillo v City of New York
Decided on December 28, 2006
Appellate Division, First Department

Plaintiffs allege that the four teenage boys drowned because emergency personnel did not respond to a 911 cell phone call made by one of the decedents. The complaints, given every favorable inference did not show justifiable reliance demonstrating the special relationship necessary to impose liability for the failure to send rescue personnel, i.e., that the call lulled the decedents into a false sense of security and thereby induced them to forgo other possibilities of rescue (see Cuffy v City of New York, 69 NY2d 255, 261 [1987]; De Long v County of Erie, 60 NY2d 296, 305 [1983] [assurance that police would arrive "right away" only increased the risk to the victim's life]). The decedents' alleged reasonable expectation that help was on the way is not enough to establish justifiable reliance. In addition, plaintiffs must show that the decedents acted on that reliance to their detriment, such that as a result of the call, they were put in a worse position than they would have been in had the call not been made (see Grieshaber v City of Albany, 279 AD2d 232, 235-236 [2001], lv denied 96 NY2d 719 [2001]). We reject plaintiffs' alternative argument that the alleged failure of 911 personnel to comply with departmental protocols and standards of conduct accepted throughout the 911 industry is an independent basis for liability, apart from the existence of a special relationship. The special relationship requirement applies where, as here, the acts or omissions complained of are in the nature of nonfeasance, not malfeasance (Haggerty v Diamond, 251 AD2d 455 [1998], lv denied 92 NY2d 814 [1998]; cf. Rodriguez v City of New York, 189 AD2d 166, 172-173 [1993]).

New Blog

Marking the first day of a new year, this is the first post of a new blog. The subject matter is effective New York practice, with the lessons drawn from newly decided cases. As each lesson unfolds, I look forward to communicating with you.