CPLR 1015(a) and 1021
The First Department denied defendant's motion to dismiss the complaint for failure to timely substitute a representative for deceased plaintiff, in Peters v. City of New York Health & Hosp. Corp., which was decided on February 26, 2008. By submitting its expert's affidavit of merit and a reasonable explanation for the delay in seeking substitution, decedent's estate showed adequate cause why this medical malpractice action should not have been dismissed for failure to timely move for substitution, pursuant to CPLR 1015[a] and 1021.
New York practice point: Even after a lengthy delay, a motion to substitute a party will be granted absent a defendant's showing of prejudice. There is no prejudice when, as here, the action will likely rely on medical records and other documentary evidence and not on the testimony of eyewitnesses.
February 29, 2008
General Municipal Law § 50-e(5)
The First Department remanded for reconsideration of plaintiff's application for leave to serve a late notice of claim, in Berete v. New York Health & Hospitals Corp., which was decided on February 26, 2008. Supreme Court erroneously concluded that it was without discretion to deny leave to serve a late notice of claim to a plaintiff who allegedly suffered a neonatal injury at defendant's facility, where there was a medical record memorializing the details of the delivery.
New York practice point: General Municipal Law § 50-e (5) requires courts to exercise discretion in determining whether to grant or deny leave to file a late notice of claim. The statute contains a nonexhaustive list of factors that the court should weigh, and requires consideration of all relevant facts and circumstances.
The First Department remanded for reconsideration of plaintiff's application for leave to serve a late notice of claim, in Berete v. New York Health & Hospitals Corp., which was decided on February 26, 2008. Supreme Court erroneously concluded that it was without discretion to deny leave to serve a late notice of claim to a plaintiff who allegedly suffered a neonatal injury at defendant's facility, where there was a medical record memorializing the details of the delivery.
New York practice point: General Municipal Law § 50-e (5) requires courts to exercise discretion in determining whether to grant or deny leave to file a late notice of claim. The statute contains a nonexhaustive list of factors that the court should weigh, and requires consideration of all relevant facts and circumstances.
February 28, 2008
CPLR 3216
The Second Department dismissed the action, for failure to comply with an order to file a note of issue within 90 days, in Anjum v. Karagoz, which was decided on February 19, 2008. In a compliance conference Order, Supreme Court specified that, if plaintiff did not file a note of issue within 90 days, the action would be deemed dismissed. Plaintiff's counsel signed the Order. Plaintiff did not comply, and did not move to extend the period for filing, and the action was dismissed.
To vacate the dismissal, plaintiff was required to demonstrate a justifiable excuse for not responding to the Order and a meritorious cause of action. The excuse that plaintiff had disappeared and did not maintain contact with his attorney was insufficient to justify plaintiff's delay of two years and nine months in responding to the Order.
New York practice point: The compliance conference Order had the same effect as a 90-day notice, pursuant to CPLR 3216.
The Second Department dismissed the action, for failure to comply with an order to file a note of issue within 90 days, in Anjum v. Karagoz, which was decided on February 19, 2008. In a compliance conference Order, Supreme Court specified that, if plaintiff did not file a note of issue within 90 days, the action would be deemed dismissed. Plaintiff's counsel signed the Order. Plaintiff did not comply, and did not move to extend the period for filing, and the action was dismissed.
To vacate the dismissal, plaintiff was required to demonstrate a justifiable excuse for not responding to the Order and a meritorious cause of action. The excuse that plaintiff had disappeared and did not maintain contact with his attorney was insufficient to justify plaintiff's delay of two years and nine months in responding to the Order.
New York practice point: The compliance conference Order had the same effect as a 90-day notice, pursuant to CPLR 3216.
February 27, 2008
Labor Law § 200, 240 and 241
Plaintiff was injured when he was unloading sheetrock from a hoist that had been used to deliver the material to the 37th floor of the building under construction. The hoist suddenly dropped down the shaft and fell 13 stories, pulling plaintiff down with it. Evidence established that the shaft's safety bar was not engaged when the hoist went down. Had the gate and safety bar been in place, plaintiff would not have fallen.
On these facts, the First Department granted plaintiff summary judgment on his Labor Law § 240(1) claim, in Campbell v. Columbus Ctr., which was decided on February 21, 2008. The court noted that summary judgment was also appropriate under Labor Law § 241(6), since there was a failure to comply with the sufficiently specific Industrial Code (12 NYCRR) § 23-6.3(d)(4), requiring that the gates at a hoistway entrance be kept closed when the car is not at the entrance. Finally, the court said that plaintiff was entitled to summary judgment on his Labor Law § 200 claim against the construction manager, which employed and had supervisory control over the hoist's operator and the signalmen who worked with him.
New York practice point: On these facts, there was no viable claim under Labor Law § 241(5), since it relates only to the construction of a material hoist, and not to its operation.
Plaintiff was injured when he was unloading sheetrock from a hoist that had been used to deliver the material to the 37th floor of the building under construction. The hoist suddenly dropped down the shaft and fell 13 stories, pulling plaintiff down with it. Evidence established that the shaft's safety bar was not engaged when the hoist went down. Had the gate and safety bar been in place, plaintiff would not have fallen.
On these facts, the First Department granted plaintiff summary judgment on his Labor Law § 240(1) claim, in Campbell v. Columbus Ctr., which was decided on February 21, 2008. The court noted that summary judgment was also appropriate under Labor Law § 241(6), since there was a failure to comply with the sufficiently specific Industrial Code (12 NYCRR) § 23-6.3(d)(4), requiring that the gates at a hoistway entrance be kept closed when the car is not at the entrance. Finally, the court said that plaintiff was entitled to summary judgment on his Labor Law § 200 claim against the construction manager, which employed and had supervisory control over the hoist's operator and the signalmen who worked with him.
New York practice point: On these facts, there was no viable claim under Labor Law § 241(5), since it relates only to the construction of a material hoist, and not to its operation.
February 26, 2008
Social Services Law § 419
The First Department reversed the motion court and dismissed the complaint, in Chapdelaine v. Administration for Children's Services, which was decided on February 21, 2008. Plaintiffs had alleged that the city had improperly taken the child from her parents and that the child had been sexually abused by the foster parents with whom she had been placed. The court noted that the case had originated with a hospital's call to ACS, and that the case was given high priority because there had been at least four other complaints about the family's treatment of the child.
During the investigation, it was established that the mother had pushed the child, and the mother herself related certain incidents to the ACS child protective specialist concerning her boyfriend and the child. The child protective specialist confirmed that the boyfriend had a prior arrest for domestic violence. The court concluded that ACS justifiably believed that, in the absence of any changed circumstances, the mother was placing the child at risk by continuing to allow her boyfriend to have access to the child.
Plaintiffs' claims that ACS failed to adequately supervise the foster parents so as to prevent the alleged sexual abuse were not barred by statutory immunity, but plaintiffs failed to raise an issue of fact whether defendants had sufficiently specific knowledge or notice of the dangerous conduct which caused the alleged injury.
New York practice points: (1) A showing of willful misconduct or gross negligence is required to defeat the statutory presumption that ACS acted in good facility in investigating the hospital's complaint, and in filing the petition to temporarily remove the child from her home, pursuant to Social Services Law § 419. (2) Plaintiffs' claim of intentional infliction of emotional distress is not available against a governmental entity.
The First Department reversed the motion court and dismissed the complaint, in Chapdelaine v. Administration for Children's Services, which was decided on February 21, 2008. Plaintiffs had alleged that the city had improperly taken the child from her parents and that the child had been sexually abused by the foster parents with whom she had been placed. The court noted that the case had originated with a hospital's call to ACS, and that the case was given high priority because there had been at least four other complaints about the family's treatment of the child.
During the investigation, it was established that the mother had pushed the child, and the mother herself related certain incidents to the ACS child protective specialist concerning her boyfriend and the child. The child protective specialist confirmed that the boyfriend had a prior arrest for domestic violence. The court concluded that ACS justifiably believed that, in the absence of any changed circumstances, the mother was placing the child at risk by continuing to allow her boyfriend to have access to the child.
Plaintiffs' claims that ACS failed to adequately supervise the foster parents so as to prevent the alleged sexual abuse were not barred by statutory immunity, but plaintiffs failed to raise an issue of fact whether defendants had sufficiently specific knowledge or notice of the dangerous conduct which caused the alleged injury.
New York practice points: (1) A showing of willful misconduct or gross negligence is required to defeat the statutory presumption that ACS acted in good facility in investigating the hospital's complaint, and in filing the petition to temporarily remove the child from her home, pursuant to Social Services Law § 419. (2) Plaintiffs' claim of intentional infliction of emotional distress is not available against a governmental entity.
February 25, 2008
CPLR 510 and 511
The First Department denied defendant's motion to change venue, in Kurfis v. Shore Towers Condominium, which was decided on February 19, 2008. The action was improperly venued in Bronx County since plaintiff and defendants reside in Queens County and the action arose in Queens. However, for a change in venue based on plaintiff's designating an improper county, pursuant to CPLR 510[1], the demand must be served with or prior to the answer, pursuant to CPLR 511[a]. Here, the demand was served more than a year after joinder of issue. The court rejected defendants' argument that their untimely service of the demand resulted from plaintiff's misleading statements regarding residence or from active efforts to conceal her residence. The complaint did not misstate plaintiff's residence, but was silent as to her residence.
New York practice points: (1) Since the demand was ineffective, plaintiff was not required to respond. (2) Even though venue is improper, there is no jurisdictional impediment to conducting the trial in Bronx County.
The First Department denied defendant's motion to change venue, in Kurfis v. Shore Towers Condominium, which was decided on February 19, 2008. The action was improperly venued in Bronx County since plaintiff and defendants reside in Queens County and the action arose in Queens. However, for a change in venue based on plaintiff's designating an improper county, pursuant to CPLR 510[1], the demand must be served with or prior to the answer, pursuant to CPLR 511[a]. Here, the demand was served more than a year after joinder of issue. The court rejected defendants' argument that their untimely service of the demand resulted from plaintiff's misleading statements regarding residence or from active efforts to conceal her residence. The complaint did not misstate plaintiff's residence, but was silent as to her residence.
New York practice points: (1) Since the demand was ineffective, plaintiff was not required to respond. (2) Even though venue is improper, there is no jurisdictional impediment to conducting the trial in Bronx County.
February 22, 2008
CPLR 4404
Plaintiff allegedly was injured when she fell from her seat while riding on defendant's bus, and she claimed that her fall was caused by the bus operator's negligence. The jury found that the bus operator was not negligent, and the Second Department affirmed the denial of plaintiff's motion to set aside the verdict, in Martin v. New York City Transit, which was decided on February 13, 2008. The court noted that, to recover damages against a common carrier for injuries sustained as a result of the vehicle's movement, plaintiff is required to establish that there was a jerk or a lurch which was unusual and violent. Here, the court found that, since the alleged movement did not cause any other passenger to fall, the jury reasonably could have concluded that plaintiff's fall was not caused by any negligence on the part of the bus operator.
Practice point: Pursuant to CPLR 4404, the standard for determining whether a jury verdict is against the weight of the evidence is whether the evidence so preponderated in favor of movant that the verdict could not have been reached upon any fair interpretation of the evidence.
Plaintiff allegedly was injured when she fell from her seat while riding on defendant's bus, and she claimed that her fall was caused by the bus operator's negligence. The jury found that the bus operator was not negligent, and the Second Department affirmed the denial of plaintiff's motion to set aside the verdict, in Martin v. New York City Transit, which was decided on February 13, 2008. The court noted that, to recover damages against a common carrier for injuries sustained as a result of the vehicle's movement, plaintiff is required to establish that there was a jerk or a lurch which was unusual and violent. Here, the court found that, since the alleged movement did not cause any other passenger to fall, the jury reasonably could have concluded that plaintiff's fall was not caused by any negligence on the part of the bus operator.
Practice point: Pursuant to CPLR 4404, the standard for determining whether a jury verdict is against the weight of the evidence is whether the evidence so preponderated in favor of movant that the verdict could not have been reached upon any fair interpretation of the evidence.
February 21, 2008
CPLR 4401
The Second Department affirmed the granting of defendant's motion for judgment as a matter of law, in Borbeck v. Hercules Construction Corp., which was decided on February 13, 2008. The court found that defendant-construction manager was not the owner's statutory agent, pursuant to Labor Law § 240(1). There was no evidence that defendant had the authority to enforce the provisions of the contracts entered into by the owner with the project's prime contractors. Nor did defendant have the authority to stop the work in the event that an unsafe condition or work practice came to light.
Practice point: Pursuant to CPLR 4401, a party may move for judgment as a matter of law after the other party has completed its presentation of evidence, or at any time based on admissions. The standard is whether there is any rational basis on which a fact-trier could find for the opposing party.
The Second Department affirmed the granting of defendant's motion for judgment as a matter of law, in Borbeck v. Hercules Construction Corp., which was decided on February 13, 2008. The court found that defendant-construction manager was not the owner's statutory agent, pursuant to Labor Law § 240(1). There was no evidence that defendant had the authority to enforce the provisions of the contracts entered into by the owner with the project's prime contractors. Nor did defendant have the authority to stop the work in the event that an unsafe condition or work practice came to light.
Practice point: Pursuant to CPLR 4401, a party may move for judgment as a matter of law after the other party has completed its presentation of evidence, or at any time based on admissions. The standard is whether there is any rational basis on which a fact-trier could find for the opposing party.
February 20, 2008
Conflict of law.
The First Department affirmed that New York law controls where plaintiff allegedly sustained serious injuries when the automobile in which he was a passenger was involved in an accident in New Jersey with a vehicle owned and driven by a Pennsylvania resident, in Wosner v. Elrac, Inc., which was decided on February 14, 2008. Plaintiff was riding in a car which was registered and insured in New Jersey under a long-term rental agreement with its defendant-owner, a Delaware corporation with its headquarters in New Jersey. The vehicle's defendant-driver primarily used, garaged and drove the vehicle in New York, and at the time of the accident, he and plaintiff were traveling between two New York locations, and just happened to pass briefly into New Jersey due to a fortuitous circumstance.
Practice point: Where, as here, the driver-host and the passenger-guest are New York domiciliaries, New York law generally controls.
The First Department affirmed that New York law controls where plaintiff allegedly sustained serious injuries when the automobile in which he was a passenger was involved in an accident in New Jersey with a vehicle owned and driven by a Pennsylvania resident, in Wosner v. Elrac, Inc., which was decided on February 14, 2008. Plaintiff was riding in a car which was registered and insured in New Jersey under a long-term rental agreement with its defendant-owner, a Delaware corporation with its headquarters in New Jersey. The vehicle's defendant-driver primarily used, garaged and drove the vehicle in New York, and at the time of the accident, he and plaintiff were traveling between two New York locations, and just happened to pass briefly into New Jersey due to a fortuitous circumstance.
Practice point: Where, as here, the driver-host and the passenger-guest are New York domiciliaries, New York law generally controls.
February 19, 2008
Future lost earnings.
The First Department affirmed the dismissal of the complaint and plaintiff's claim for future lost earnings, in Velasco v. Green-Wood Cemetery, which was decided on February 14, 2008. Plaintiff, who had been granted summary judgment on liability under Labor Law § 240(1), failed to offer evidence responsive to defendants' showing, based on plaintiff's deposition, that plaintiff returned to the same type of work he was doing at the time of the accident only four months after the accident. While the Workers' Compensation Board found that he has a permanent partial disability, and awarded him benefits, the benefits ran for only the four-month period immediately following the accident, and there was no finding that plaintiff was unable to return to work.
Practice point: The expected testimony of a vocational rehabilitation expert and orthopedic surgeon, set forth in expert disclosure notices prepared by plaintiff's attorney, is not evidentiary proof in admissible form, as is required to defeat a meritorious motion for summary judgment.
The First Department affirmed the dismissal of the complaint and plaintiff's claim for future lost earnings, in Velasco v. Green-Wood Cemetery, which was decided on February 14, 2008. Plaintiff, who had been granted summary judgment on liability under Labor Law § 240(1), failed to offer evidence responsive to defendants' showing, based on plaintiff's deposition, that plaintiff returned to the same type of work he was doing at the time of the accident only four months after the accident. While the Workers' Compensation Board found that he has a permanent partial disability, and awarded him benefits, the benefits ran for only the four-month period immediately following the accident, and there was no finding that plaintiff was unable to return to work.
Practice point: The expected testimony of a vocational rehabilitation expert and orthopedic surgeon, set forth in expert disclosure notices prepared by plaintiff's attorney, is not evidentiary proof in admissible form, as is required to defeat a meritorious motion for summary judgment.
February 18, 2008
CPLR 3126
The Second Department granted defendant's motion to strike a pleading, pursuant to CPLR 3126(3), in McArthur v. New York City Housing Authority, which was decided on February 5, 2008. The court began by noting that the striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful and contumacious. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failures to respond to demands and/or to comply with discovery orders.
Practice point: Here, the court found willful and contumacious character in plaintiff's repeated failures to comply with the court's discovery orders to appear for a deposition and an independent medical examination, and to provide certain disclosure, including authorizations to obtain information and medical and employment records, without an adequate excuse.
The Second Department granted defendant's motion to strike a pleading, pursuant to CPLR 3126(3), in McArthur v. New York City Housing Authority, which was decided on February 5, 2008. The court began by noting that the striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful and contumacious. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failures to respond to demands and/or to comply with discovery orders.
Practice point: Here, the court found willful and contumacious character in plaintiff's repeated failures to comply with the court's discovery orders to appear for a deposition and an independent medical examination, and to provide certain disclosure, including authorizations to obtain information and medical and employment records, without an adequate excuse.
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