Cautionary Note Against Filling Holes In The Plaintiff's Case

In Bolton v. Ejioleh Express, the jury returned a verdict in favor of the plaintiff.  On post-trial motion, the trial court set aside the verdict finding that it was not supported by legally sufficient evidence.  The Second Department, however, reversed reinstating the verdict. 

The Court held, "Any defect in the plaintiff's case was cured by the evidence presented on the defendants' direct case. Contrary to the defendants' contention, in determining whether the plaintiff's initial burden has been established, the Supreme Court is obliged to consider all of the evidence, including the proof adduced by the defendants which cures any defects in the plaintiff's case."

Useful Practice Tips : Helpful Summary Judgment Reminders

In Martinez v. Hunts Point Coop. Mkt., Inc., the First Department offers the following, helpful summary judgment reminders: (1) when moving for summary judgment the defendant is not required to prove a negative issue as to which he does not bear the burden of proof - for example, a defendant is not required to prove lack of notice where the plaintiff has not pointed to any evidence of notice; (2) hearsay cannot be the sole basis for denying summary judgment (citing DiGiantomasso v. City of New York, 55 AD3d 502, 503 [2008]); and (3) with respect to constructive notice, the mere observation of a condition is not enough, as the particular defect must have been visible and apparent (citing Hayes v. Riverbend Hous. Co., Inc., 40 AD3d 500 [2007]).

Recommendation To DOT Is Not Sufficient To Impose Liability For Injury

In Davies v. Peter Ferentini, plaintiff was injured when his car struck a guard rail that had been opened to allow an access road for the construction of a Home Depot store. Upon opening the guard rail, Type II End Assemblies were installed. The plaintiff argued that his car would not have flipped over and landed on its roof if Type I End Assemblies had been installed. Plaintiff had alleged that the Home Depot and its engineer had recommended the installation of the allegedly defective Type II End Assemblies, but the DOT had the final say as to installation. As to Home Depot, the Court found that its engineer, not Home Depot itself, had made the recommendation. As to the engineer, the Court held that "applying the Espinal factors, the actions of [engineer], in providing construction drawings calling for the installation of the Type II End Assemblies pursuant to the DOT's directives, review, inspection and approval, do not rise to the requisite standard of creating a dangerous condition so as to be deemed to have launched a force or instrument of harm (see Church v. Callanan Indus., 99 NY2d 104 [2002])."

Sanction For Destruction of Electronic Evidence

In 3824N & Jacob Ahroner v. Israel Discount Bank of New York, the defendant was ordered by the trial court to preserve defendant Bastante's hard drive. One day before plaintiff's forensic expert was supposed to review the hard drive, plaintiff was informed that the drive had been erased. As a spoliation sanction against defendant the trial court granted plaintiff: (i) an adverse inference charge at trial; (ii) costs to reimburse plaintiff for the amount paid to the forensic expert; and (iii) attorneys' fees. On appeal, the First Department affirmed. To establish that a spoliation sanction for the destruction of electronic evidence is warranted, it must be shown that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with "a culpable state of mind," and (3) the destroyed evidence was "relevant" to the moving party's claim or defense. "A 'culpable state of mind,' for purposes of a spoliation inference, includes ordinary negligence" (citing Zubulake v. UBS Warburg, LLC, 220 FRD 212, 220 [SDNY 2003]).

Clarification of Procedural Issues Regarding Reargument Motions

In Rostant v. Swersky, the First Department held that the plaintiff was not precluded from moving for reargument simply because the order deciding the motion she sought to reargue had not yet been entered. The First Department found that the trial court retained its power to reconsider and vacate its prior decision before issuing the order. The First Department also held that CPLR 2221 does not require that the original motion papers be submitted on reargument, and that whether such papers must be submitted is left to the sound discretion of the trial court. NOTE: Check your local rules when making a motion to reargue as it is this writer's experience that some Judges require the original motion papers to be submitted with the reargument motion.

Court Of Appeals Renders Significant Decision On Conditional Orders Of Preclusion

In Gibbs v. St. Barnabas, after repeated failures to comply with discovery requests and deadlines, the plaintiff failed to satisfy a court order directing him to supply a supplemental bill of particulars within 30 days.  The court then afforded plaintiff a final opportunity to comply by conditionally granting the defendant's motion to preclude, giving plaintiff 45 days to serve the supplemental bill.  The plaintiff failed to comply leading the defendant to move to enforce the conditional order of preclusion. The court did not order preclusion, but directed the plaintiff to pay $500 for his delay.  

The Appellate Division, with one Justice dissenting, affirmed. The majority concluded that the trial court did not abuse its discretion in declining to enforce the conditional preclusion order. The dissenter would have enforced the order and granted the defendant summary judgment, reasoning that the trial court erred in relieving plaintiff of his default without requiring him to demonstrate a reasonable excuse and a meritorious claim.  

The Court of Appeals reversed holding that to obtain relief from a conditional order of preclusion, "the defaulting party must demonstrate (1) a reasonable excuse for the failure to produce the requested items and (2) the existence of a meritorious claim or defense.  In cases involving a medical malpractice cause of action, 'expert medical opinion evidence is required to demonstrate merit' under the second requirement" (citations omitted).  In the Gibbs case, however, the plaintiff failed to provide an affidavit from a medical expert establishing the merits of his claim, requiring enforcement of the preclusion order.    

The Court of Appeals also held that a defendant does not have to prove that the failure to provide discovery was willful.  Where the Court enters a conditional order of preclusion, "'the court relieves itself of the unrewarding inquiry into whether a party's resistance was wilful'" (Siegel, NY Prac § 367, at 608 [4th ed]).

Recent Pain and Suffering Award for Unnecessary Mastectomy

In Williams v. New York City Health and Hospitals, citing Motichka v. Cody (279 AD2d 310) and King v. Jordan (265 AD2d 619), the First Department affirmed past and future pain and suffering awards of $600,000 and $400,000, respectively, as reduced by the trial court from $3.5 million and $3 million, respectively, to plaintiff who underwent an unnecessary mastectomy. In dissent, Justice Catterson observed that the 32-year-old single plaintiff suffered profound emotional and psychological damage from the loss of her healthy breast and the severe disfigurement of her upper and lower torso. Therefore, the awards, as reduced, were too low and should have been reduced to $1 million and $1.5 million respectively.

The dissenting opinion is particularly worthy of reading, as Justice Catterson provides a lengthy analysis of the cases relied upon by the majority. Justice Catterson further explains that the loss of a breast in a young, single woman cannot be compared to the older, married plaintiffs in those cases; hence, the Judge's opinion that the larger award should be for future pain and suffering. Finally, Justice Catterson observed that Motichka/King and the present case can also be distinguished on the basis that the plaintiffs in those cases had argued that their breast cancer required less invasive treatment, whereas the plaintiff in the present case was cancer-free and required no further treatment.

Two Cases Involving Falls From Permanent Staircases and Labor Law 240 Liability

In Ramirez v. Shoats, the plaintiff fell from an unfinished, permanent staircase. On motion by defendant building owner for summary judgment, the trial court found that questions of fact existed as to whether the staircase was the sole means of access for plaintiff to descend from his worksite, and thus a safety device within the meaning of the Labor Law. On appeal, the majority of the Panel agreed. In a two-Judge dissent, however, it was observed that alternative means of access were located at every floor of the worksite. As such, plaintiff used the stairway not as a safety device, but merely as a passageway. The dissent observed that, in such instance, all four Appellate Departments have consistently held that a permanent staircase is not a safety device within the meaning of the statute.

In Vasquez v. Urbahn Assoc. Inc., the plaintiff similarly fell from a permanent staircase. In Vasquez, however, the building was being demolished at the time of the accident. The majority of the Panel reversed summary judgment in favor of plaintiff on his Labor Law 240 claim, finding that whether the collapse of the stairs was foreseeable was a question of fact for the jury to determine. The two-Judge dissent refused to require the "foreseeability" element, with Judge Acosta, who had concurred in the Court's earlier opinion in Jones v. 414 Equities LLC (57 AD3d 65 [1st Dept. 2008]), now stating "I... believe that a better approach would be to not read into the statute a forseeability requirement, lest we encourage contractors, as here, to take a head-in-the-sand approach to their statutory obligations."

Notably, finality does not exist in either case. As such, appeal to the Court of Appeals at this time can only be had by permission. Of course, we will keep everyone posted as to whether leave is granted in either case.

Injury To Dominant Hand And Wrist

In Nutley v. New York City Transit Authority, the plaintiff suffered an injury to his dominant hand and wrist which required surgery. Despite the surgery, the plaintiff continued to experience pain, numbness, tingling, loss of strength, and loss of motion in his wrist and hand. The Second Department affirmed the jury's award of $300,000 for past pain and suffering and $200,000 for future pain and suffering. 

New Second Circuit Filing Rules

Effective December 15, 2010, the Second Circuit has shortened the time for briefing.  Appellant's can now request up to 91 days from the ready date to file their Brief and respondents (or appellees)  will have up to 91 days to file their brief.  The Notice is here.   

The Court has also created an expedited briefing schedule for appeals from district court orders that dismiss a complaint for (a) lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1); (b) failure to state a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6); or (c) filing a frivolous complaint, or for any other ground specified in 28 U.S.C. §1915(e)(2).

"If the order appealed from cites at least one of these grounds for dismissal, the parties must so identify the case by checking the appropriate box on revised Form C. The Clerk notifies the parties when an appeal is placed on the [Expedited Appeals Calendar] and sets the briefing schedule for all parties as follows: 35 days from the date of the Clerk’s notification for the appellant’s brief, 35 days from the date after the filing of the last appellant’s brief for the appellee, and 14 days from the filing of the last appellee’s brief for the reply."  The Notice is here. 

"Injury In Fact" Test Applied to Mold Exposure

In Downey v. 10 Realty Co., LLC, the plaintiff was exposed to mold during a period of time that defendant's, Greater New York Mutual's, policy was in effect. Plaintiff's injuries, however, did not manifest until after the policy had expired. In holding that GNYM had no duty to defend or indemnify its insured for plaintiff's injuries, the Court applied the "injury in fact" test and held that the insured was obligated to prove that "actual damage or injury" had occurred during the policy period.

Authorizing A Method Of Work Does Not Constitute Control Over The Work

In Delaney v. City of New York, plaintiff was working on a bridge owned by the City. He was struck by a pick-up truck operated by a co-employee when he entered a lane of travel on the roadway that had been closed to allow the work to be performed. The Court held that the accident arose out of his employer's means and methods, and that, simply because the City authorized lane closeures it could not be found to have exercised supervision and control over plaintiff's work within the meaning of Labor Law sect. 200. The Court also held that sect. 200 liability cannot be based upon alleged OSHA violations, as the City was not plaintiff's employer and OSHA applies only to employee/employer relationships.

Default For Attorney's Failure to Appear At PC Vacated

In Goodwin v. New York City Housing Authority, the plaintiffs' action was dismissed for their attorney's failure to appear at a preliminary conference. The First Department vacated the default, finding that the showing of merit necessary to vacate a default under 22 NYCRR 202.27 for failure to appear at a court conference "is less than what is necessary for opposing a motion for summary judgment." Therefore, given the availablity of pictures of the accident location, coupled with plaintiff's inability to remember the accident because of the injuries he sustained, plaintiffs' action should not have been dismisssed.

The Court further found that law office failure was a reasonable excuse for the default.

Lastly, the Court felt compelled to comment, somewhat scathingly: "This court is all too familiar with this case, having reversed Supreme Court's wrongful dismissal of the complaint once before... The lawsuit stemming from this eight-year-old accident accident has now survived two mistaken dismissals. No discovery has taken place. It is time for discovery to commence and finish expeditiously so that plaintiffs' claims may be addressed on their merits."

Obligation to Continue Defending Client Ceases When Insurer's Duty to Pay Defense Costs Has Ended

In Ruiz v. Frog Co., LLC, the First Department held that defense counsel cannot be compelled to continue defending its client when the client's insurer is no longer obligated to pay counsel's fees; "[counsel] should not be compelled to continue representation without compensation."

Recent Labor Law Decisions By The Court Of Appeals

On October 21st, we posted about the Court of Appeals decision in Gasques v. City of New York, a Labor Law case.  In Gasques, the plaintiff’s hand was crushed when it became wedged between part of an ascending “spider scaffold” and a leg of the Kosciuszko Bridge. The Court of Appeals held that the plaintiff could not recover under § 240(1) for injuries from the ascending scaffold pinning and crushing his hand because “the injury was not the direct consequence of the application of the force of gravity to an object or person.”

The Court, however, would subsequently find in Strangio v. Sevenson Envtl. Servs., Inc., that a question of fact existed as to whether defendants provided proper protection under Labor Law § 240(1) in a case involving the “unchecked descent” of a scaffold. Although the plaintiff was not injured by falling from the scaffold or by the fall of the scaffold itself, he was struck in the face with the handle of the scaffold’s hand-operated hoisting mechanism. Arguably, the fall of the malfunctioning scaffold caused or contributed to plaintiff’s injury and thus was directly related to the application of the force of gravity to the scaffold.

A distinction to be made between the two cases is that the scaffold in Strangio did not function as intended, causing an “unchecked descent.” By contrast, the scaffold in Gasques functioned as intended and the effects of gravity were not implicated. 

Notably, in Gasques the plaintiff had also asserted a Labor Law § 241(6) claim based on a violation of 12 NYCRR 23-1.5 (c)(1), which requires that equipment be in “good repair and in safe working condition.” According to the Court, this rule cannot serve as a predicate because it does not constitute a “specific, positive command” or said differently, the plaintiff’s proposed predicate rule did not “set forth a specific standard of conduct.”

The Court of Appeals then subsequently held in Nostrom v. A.W. Chesterton Co., that claims of vicarious liability under Labor Law § 241(6) may not be predicated on any of the regulations contained in part 12 of the Industrial Code, unless they are expressly incorporated into part 23 of the Industrial Code.

Court of Appeals Issues New Filing Rules

The Court of Appeals has reduced the number of paper copies of records, appendices and briefs for normal coursed appeals and certified question reviews from 25 to 20 copies.  All parties will also be required to file on disk digital versions of each paper filing. Appeals to be considered under section 500.11 of the Rules will be subject to a similar digital filing requirement. The new requirements regarding submission in digital format will apply to all appeals for which the preliminary appeal statement is filed on or after December 8th.  Here is a link to the Amended Rules.