Thursday, September 29, 2016

First Department Judges Continue Internal Disagreement Over Whether Plaintiff Must Prove Freedom From Comparative Fault to Establish Entitlement to Summary Judgment

Rodriguez v. City of New York, demonstrates once again that the First Department lacks unanimity as to whether a plaintiff can obtain summary judgment where questions of fact remain as to the plaintiff's comparative fault. As the majority writes: "we are revisiting a vexing issue regarding comparative fault: whether a plaintiff seeking summary judgment on the issue of liability must establish, as a matter of law, that he or she is free from comparative fault. This issue has spawned conflicting decisions between the judicial departments, as well as inconsistent decisions by different panels within this Department." Most of the Justices in the First Department are in accord with the Second Department's stance on this issue, i.e. that a plaintiff must make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability.  The Fourth Department would allow partial summary judgment on the issue of a defendant's negligence even if an open question exists regarding the plaintiff's comparative fault (see Simoneit v Mark Cerrone, Inc., 122 AD3d 1246 [4th Dept 2014]).    

The majority explains that the difference between awarding partial summary judgment and denying the plaintiff's motion in its entirety is that, if the motion were granted then the issue of contributory negligence would have to be considered during the damages portion of the case, whereas if the motion were denied then the issue must be considered during the liability phase of the trial.

The First Department's stance on this issue is traced back to Thoma v Ronai (189 AD2d 635 [1st Dept 1993], affd 82 NY2d 736 [1993]), in which the plaintiff's motion was denied because she had failed to demonstrate that she was free from comparative negligence as a matter of law.  The Court of Appeals affirmed the First Department's decision, finding that the "'plaintiff did not satisfy her burden of demonstrating the absence of any material issue of fact' on the question of her freedom from comparative negligence and therefore did not meet her burden on proof on the motion (82 NY2d at 737)."

As stated by the majority in Rodriguez: "The clear direction of Thoma is that a plaintiff may not be awarded partial summary judgment on the issue of a defendant's negligence if the defendant has raised an issue of fact as to the plaintiff's comparative negligence."

The rationale in support of the denial of summary judgment on this issue was best explained in Maniscalco v New York City Tra. Auth. (95 AD3d 510 [1st Dept 2012]), where the Court stated that "the causal role of each party's conduct should not be determined in isolation" (id. at 513).  Quoting from Professor Alexander the majority observed:

"Conceptually, any amount of negligence by a defendant could trigger his or her liability, and CPLR 3212(e)allows for the entry of partial summary judgment as to any part of a cause of action. But few, if any, litigation efficiencies are achieved by the entry of partial summary judgment in this context because the defendant would still be entitled, at trial to present an all-out case on the plaintiff's culpable conduct. Furthermore, it is possible that a jury might find plaintiff's culpability to be the sole proximate cause of the accident if the issues of the defendant's liability and the plaintiff's comparative fault are seen, in the words of the dissent in Johnson v New York City Tra. Auth., 88 AD3d 321, 332 [1st Dept 2011] 'as an integrated whole.'" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B C1412) (emphasis added).

To hold otherwise, the majority colloquially stated, "defendant [would be] essentially entering the batter's box with two strikes already called."

The majority also observed that the Pattern Jury Instructions, PJI 2:36 et seq., provides that, in a comparative negligence case, the jury must be given instructions as to the defendant's liability and the plaintiff's liability at the same time (see 1A NY PJI3d 2:36 at 273 et seq.[2016]), which permits the jury to consider the actions of both parties as a whole in making their determination.

Addressing the dissenting opinion, the majority stated that the dissent had taken "the curious position" that summary judgment should nevertheless be granted as a matter of law where "plaintiff met his prima facie burden of establishing defendant's negligence as a proximate cause of the injury, and defendant failed to raise triable issues of fact with respect to its own negligence, but successfully raised triable issues of fact as to comparative negligence on the part of plaintiff." The majority noted, however, that such a determination would be contrary to the PJI, Professor Alexander's commentaries, and the First Department's holding in Maniscalco (95 AD3d 510) that "the causal role of each party's conduct should not be determined in isolation" (id. at 513). The majority further observed, as noted by Professor Alexander, the dissents position ignores the fact that "'a jury might find plaintiff's culpability to be the sole proximate cause of the accident' where the issues are tried as a whole. By finding, as a matter of law, that a defendant is at fault, the court denies the jury the opportunity to determine the issue of proximate cause."

The dissenters quoted from the concurring opinion in Capuano v Tishman Constr. Corp. (98 AD3d 848 [1st Dept 2012] [Acosta, J., concurring]), "I would hold that a plaintiff does not have th[e] burden [of disproving the affirmative defense of comparative negligence]. Once a prima facie showing [of defendant's negligence] is made, the burden shifts to the defendant to raise issues of fact, such as by submitting evidence in support of an affirmative defense" (id. at 852). Thus, "where a defendant fails to raise issues of fact as to his or her own negligence, but succeeds in raising issues of fact as to the plaintiff's comparative negligence, partial summary judgment on liability with respect to defendant's negligence is warranted, because the defendant will be liable to the extent his or her misconduct proximately caused the injury" which would allow for an argument during a subsequent trial on liability and damages that plaintiff was comparatively at fault. Therefore, the dissent would have granted plaintiff's motion finding defendant negligent as a matter of law and remanded the matter for a determination of liability attributable to each party.

The dissent disagreed with the majority's holding that by observing that comparative fault is an affirmative defense and a plaintiff should not be obligated to disprove that defense in order to obtain partial summary judgment on liability.  According to the dissent, plaintiff's only burden is to show that defendants was negligent.  The dissent further indicated that Thoma v Ronai did not require a different analysis because "the Court of Appeals said nothing about whether a plaintiff's prima facie burden includes disproving the affirmative defense of comparative fault." As such, the dissent indicated that the majority's reliance on Thoma was "unfounded."

The dissent further indicated that plaintiff could be granted summary judgment to the extent of finding defendant negligent as a matter of law, and allowing the jury to apportion fault. To that end, the dissent recommended that the matter be remanded "first for a trial on liability, during which the jury would consider the conduct of both parties and apportion fault accordingly. A trial on damages would follow, during which the jury would determine the total amount of damages (to be reduced in proportion to the apportionment of fault)." The jury would be instructed that "it cannot completely absolve the defendant of liability or find plaintiff 100% liable."  The dissent qualified its recommendation in this regard by observing that it would only be available in a case where it has already been established, as a matter of law, that the plaintiff could not have been the sole proximate cause of his accident.

First Department Finds Distinct and Independent Questions of Fact Regarding Adequacy of Safety Device and Recalcitrance/Sole Proximate Cause of Worker In Labor Law § 240(1) Case

In Albino v. 221-223 W. 82 Owners Corp., the plaintiff was injured in a fall from a roof while attempting to step into a scaffold that was located on the side of the building. Plaintiff had planned to use the scaffold to descend from the roof. As relevant here, the accident was unwitnessed and plaintiff gave differing accounts as to why he fell. Immediately after the accident he told his foreman that he fell because his foot slipped as he stepped onto the scaffold. Plaintiff testified at his deposition, however, that a wire attached to the scaffold snapped, causing the scaffold to swing away from the building, which resulted in plaintiff's fall.

In addition, although plaintiff testified that he could not use the harness he had in his possession because there were no safety lines, the foreman testified that he had worked with plaintiff earlier in the day and they had both had worn attached harnesses. The foreman also contradicted plaintiff's testimony that plaintiff would have been fired if he waited until safety lines were installed. the foreman indicated that he instructed all of his employees, including plaintiff, to wear safety equipment and that when he left plaintiff in charge he never instructed plaintiff to work without wearing an attached safety harness.

The First Department affirmed the denial of plaintiff's motion for partial summary judgment on liability pursuant to Labor Law § 240(1), finding that questions of fact existed both as to whether plaintiff was the sole proximate cause of his accident and whether the scaffold was an adequate safety device. 

Notably, the Court specifically found that these two questions were distinct and independent. More specifically, "a factfinder could rationally determine, based on the foreman's testimony concerning plaintiff's original account of the accident, that plaintiff fell simply because he misplaced his foot when stepping onto the scaffold, without the scaffold moving or otherwise malfunctioning or failing. It would follow from such a finding — even assuming that the harness issue is determined in plaintiff's favor — that his injuries were not proximately caused by any violation of section 240(1)." Simply stated, if the jury were to find that the scaffold was adequate, then the lack of a safety line would not have been a violation of the statute. 

Wednesday, August 24, 2016

This Summer's Notable Decisions Regarding Pre-judgment Interest, Appellate Procedure and Other Issues

The Appellate Courts release fewer decisions and with less frequency during the summer months. Below are a few of this Summer's notable decisions. 

Second Department Concludes That Pre-Judgment Interest Is Not Triggered By a Stipulation of Liability

In Mahoney v. Brockbank, the defendant stipulated to liability in exchange for plaintiff’s stipulation to discontinue a cause of action against defendant for punitive damages. Approximately 2 ½ years later, a trial on damages was held, resulting in an award in favor of plaintiff on damages.  Both sides submitted proposed judgments. The plaintiff’s proposed judgment included pre-judgment interest calculated from the date of the stipulation. The defendant’s proposed judgment included interest from the date of the jury verdict on damages. The trial court signed the defendant’s judgment and the plaintiff appealed.

The Second Department observed that CPLR 5002 governs pre-judgment interest “from the date the verdict was rendered or the report or decision was made.” The Court further observed that there are extensive cases regarding what constitutes a verdict, report or decision including decisions on motions for summary judgment, to enter default judgment and to strike defendant’s answer; decisions on unopposed applications for a directed verdict on liability; binding arbitrators’ awards; confirmation of a referee’s report; and the decision of an Appellate Court reversing the denial of a plaintiff’s motion for summary judgment on liability. The Second Department noted that each of these was an adjudication by a jury, court or arbitrator.

By contrast, in the present case, the stipulation was not an adjudication of liability – it was an agreement between the parties. Had the Legislature intended to include stipulations in CPLR 5002 it could have done so. Therefore, finding that it was significant that the Legislature had omitted stipulations from CPLR 5002, the Second Department concluded that the stipulation did not trigger an obligation to pay pre-judgment interest, and instead pre-judgment interest was properly calculated from the date of the jury verdict on damages.

Second Department Holds that Denial of Untimely Appeal Is Not an Adjudication on the Merits

In Mosby v Parilla, the Second Department points to a noteworthy distinction between an appeal that is dismissed because of a failure to timely perfect and an appeal that is dismissed because it was not timely taken. Here, the jury found for plaintiff in a medical malpractice suit. The defendant then moved, pursuant to CPLR 4404(a), to have the verdict set aside. While the 4404(a) motion was still pending, plaintiff caused judgment to be entered and defendant appealed. The Second Department subsequently dismissed defendant’s appeal as untimely, but the lower court granted defendant’s earlier CPLR 4404(a) motion and the verdict was set aside as a matter of law.

Plaintiff appealed, stating that the Second Department’s dismissal of defendant’s untimely appeal precluded the Supreme Court from subsequently granting defendant’s 4404(a) motion. In holding for defendant, the Second Department noted that the “dismissal of an appeal as untimely does not constitute an adjudication on the merits” (unlike the dismissal of an appeal for a failure to perfect) and therefore the CPLR 4404(a) motion survived the collateral estoppel arguments raised by plaintiff.

Second Department Holds that Contractor Did Not Exacerbate Dangerous Condition

In Barone v Nickerson, plaintiff was injured when he tripped and fell while ascending stairs, which defendant was hired by the property owners to repair. Defendant was a third party whose contractual obligations were to the property owners, not the plaintiff. Plaintiff brought an action against defendant and the trial court granted defendant’s motion for summary judgment.

On appeal, plaintiff claimed that defendant fell within one of the three Espinal exceptions, which may give rise to tort liability under contractual obligations of third parties: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, [or] (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal v Melville Snow Contrs., 98 NY2d 136 (2002)). Specifically, plaintiff alleged that defendant had violated the first factor by exacerbating the dangerous condition. Defendant was then required to make a prima facie showing negating only the applicability of the exception “expressly pleaded” by the plaintiff. In holding for defendant, the Second Department held that defendant had met his burden by showing that he did not leave the steps or handrail in a condition more dangerous than he had found it.

First Department Grants Partial Summary Judgment of Non-culpability for Innocent Driver

Oluwatayo v Dulinayan involved a motor vehicle accident, where plaintiff was rear-ended by defendant driver who was also rear-ended by another co-defendant driver. Plaintiff sought summary judgment on liability against both drivers. The lower court denied the motion, as plaintiff failed to meet his burden of eliminating triable issues of fact.

On appeal, the First Department, although agreeing with the lower court that there were triable issues of fact relating to the proportional fault of each defendant driver, held that the plaintiff was entitled to partial summary judgment under CPLR §3212(g) (“Limitation of issues of fact for trial”). In reviewing a series of cases involving innocent plaintiff passengers, the court stated the fact that the plaintiff driver here was rear-ended, while stopped was analogous to other cases where passenger plaintiffs were “entitled to a determination that [plaintiff] had no culpable conduct on the issue of liability irrespective of the unresolved issue of a defendant driver's negligence.” Unlike the innocent passenger cases, however, plaintiff here failed to establish the proportionality of fault of each defendant driver. Plaintiff was granted partial summary judgment “to the extent of finding no culpable conduct by plaintiff on the issue of liability.”


This Summer's Notable Labor Law Decisions

During the summer months the Appellate Courts release fewer decisions and release those decisions less frequently.  Below are two notable Labor Law decisions issued this summer. A third case regarding who is an "owner" under the Labor Law will follow in a separate blog entry. 

First Department Looks at Labor Law §240 Claim Where Plaintiff was Injured on Hilltop

In Ankers v Horizon Group, plaintiff was injured on a condominium construction site when a motorized wheelbarrow, which he was standing on, inadvertently rolled down a hill and caused plaintiff to tumble about fifteen feet. Among other claims, plaintiff brought a Labor Law §240(1) claim against defendant. The trial court granted plaintiff’s motion for summary judgment on the §240 claim and defendant appealed.

Under a Labor Law §240 claim contractors, owners, and their agents are responsible to furnish or erect devices to give proper protection from “gravity related” risks. The issue here was whether the wheelbarrow rolling down the hill was such a risk or an ordinary danger of the work site. The First Department held that because this determination was a genuine issue of fact, summary judgement on the §240(1) claim was improper and reversed the lower court’s decision.

Second Department Finds That Safety Consultant Is Not a Proper Labor Law Defendant

In Marquez v. L&M Dev. Partners, Inc., plaintiff was injured at a construction site when he fell through a plywood covered hole. Pro Safety Services (PSS) had been retained by the owner to provide “loss control and safety consulting services.” PSS solely acted in a consulting capacity and did not have any actual authority to control plaintiff’s work or the condition on which plaintiff was allegedly injured. As such, the Second Department granted summary judgment to PSS dismissing plaintiff’s complaint, finding that PSS was not a “statutory agent” of the owner and therefore not a proper labor law defendant for purposes of Labor Law §§240(1) and 241(6), and PSS’s lack of control over the work and the site conditions also entitled PSS to dismissal of plaintiff’s Labor Law §200 and common law negligence claims.

Tuesday, June 28, 2016

Court of Appeals States That the Appellate Division Does Not Need to Expressly Compare Damages Awards When Reviewing For Excessiveness or Inadequacy Under CPLR 5501(c)

For some time it has been argued that CPLR 5501(c), which mandates that the Appellate Division review awards for damages to determine if they deviate materially from reasonable compensation, requires the Appellate Division to provide a meaningful comparison of cases that involve awards for similar injuries in order to determine if the awards at present are excessive or inadequate.

In Matter of New York City Asbestos Litigation, the Court of Appeals stated that there is no such requirement. More specifically, the Court stated that "we reject TLC's contention that the Appellate Division applied the wrong legal standard in assessing whether Supreme Court's reduced damages award deviated materially from reasonable compensation. Neither CPLR 5501 (c) nor CPLR 5522 requires the Appellate Division to expressly compare the damages award in the judgment appealed from with damages awards in other cases in its written decision." Therefore, according to the Court of Appeals, it would be enough for the Appellate Division to simply state that it has considered the arguments regarding excessiveness or inadequacy and finds that the awards for damages do not deviate materially from reasonable compensation without providing either a rationale or comparable cases to support its decision.

Monday, June 20, 2016

Second Department Holds that “Graves Amendment” Defense Not Sufficient to Succeed on a CPLR 3211(a)(1) and (7) Motion to Dismiss

In Argelo v Hanif, plaintiff passengers were injured when defendant hit their car while driving a rented U-Haul truck. The plaintiffs then brought a negligence claim against the drivers of both vehicles and U-Haul as owner of the truck. U-Haul moved pursuant to CPLR 3211(a)(1) and (7) to have the claims dismissed relying on 49 USC § 30106(a) (“Graves Amendment”), which relieves a motor vehicle owner from liability if the owner is (1) engaged in the trade or business of renting motor vehicles, and (2) engaged in no negligence or criminal wrongdoing. U-Haul relied on the affidavit of its investigator who opined that he believed that the accident had been staged. U-Haul’s motion to dismiss was denied and they appealed to the Second Department.

On appeal, although U-Haul could show pursuant to CPLR 3211(a)(1), regarding documentary evidence, that they were engaged in the business of renting motor vehicles, the court held that the affidavit of U-Haul's investigator could not be considered in support of this portion of U-Haul's motion because it was not "documentary evidence" within the meaning of the statute.

With respect to CPLR 3211(a)(7), U-Haul failed to establish that no “significant dispute exists” as to whether U-Haul was negligent. The only evidence which U-Haul presented was the affidavit of its investigator related to insurance fraud and that the accident was staged.  This evidence, however, did not support the fact that U-Haul was not negligent in the maintenance of the vehicle. Therefore, accepting as true the allegations in the plaintiffs' complaint, which the the Second Department was compelled to do, the Court affirmed the lower court’s decision to deny U-Haul’s motion to dismiss. 

Second Department Affirms Jury Verdict Despite Admittance of Improper Hearsay Evidence

In Parris v New Work City Transit Auth., plaintiff was injured when he came into contact with a bus owned by defendant. The plaintiff claimed that he had no memory of the accident.  During trial, hearsay evidence (a NYCTA accident report) was admitted stating that the driver of the bus saw plaintiff drinking from a bottle before the accident occurred. The jury rendered a verdict for defendants, finding that although defendants were negligent, such negligence was not a substantial factor in causing the accident. The plaintiff moved to set aside the jury's verdict and his motion was denied. As such, the plaintiff appealed to the Second Department.

First, the plaintiff contented that the lower court erred in not holding a unified trial on issues of liability and damages based on the fact that plaintiff could not recall how the accident happened. The Second Department affirmed the lower court’s decision to deny plaintiff’s motion in limine stating that “[c]ourts are encouraged to bifurcate issues of liability and damages in personal injury trials.”  A unified trial is only appropriate when “the nature of the injuries has an important bearing on the issue of liability.”  The court held that plaintiff failed to show such a relationship existed.

Next, the Second Department agreed with plaintiff that it was error to admit hearsay evidence, which did not qualify under any exception to the hearsay rule. The error, however, did not “constitute prejudice or reversible error” and the Court found that the trial result would have been the same even if the statement had been excluded. Plaintiff’s other contentions, including an argument that the jury should have held him to a lesser standard of proof because of his alleged amnesia, were unfounded. The Court found that plaintiff could recall the events leading up to the accident, but not the accident itself and that he failed to submit medical proof that his amnesia was caused by the defendants. Therefore, the Court affirmed the jury's verdict in favor of the defendants.