top of page


September Page III

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)


Click on the Case Name to View Full Decision



Abuse of Discretion to Grant Conditional Order of Preclusion and to Deny Late Motion to Amend Bill of Particulars


The Second Department reversed Supreme Court in a medical malpractice action, finding that the conditional granting of defendants' motion to preclude the plaintiff from submitting evidence of neurological injuries and the denial of plaintiffs' motion to amend the bill of particulars constituted abuse of discretion.  The Second Department determined plaintiffs did not "willfully and contumaciously fail to appear for a neuropsychological examination" by the defendants' doctor and the amendment of the bill of particulars would not prejudice the defendants.  The court noted that the plaintiffs' request to audiotape the neurophsychological examination was not supported by "special and unusual circumstances" warranting it:


"The Supreme Court has broad discretion in making determinations concerning matters of disclosure, including the nature and degree of the penalty to be imposed under CPLR 3126" ... . However, "before a court invokes the drastic remedy of striking a pleading, or even of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious" ... . Here, the Supreme Court improvidently exercised its discretion in granting that branch of the hospital defendants' motion which was to conditionally preclude the plaintiffs from introducing evidence of the injured plaintiff's neurological injuries, since there was no clear showing that the injured plaintiff had willfully and contumaciously failed to appear for a neuropsychological examination. Moreover, under the circumstances of this case, it cannot be said that the conduct of the plaintiffs or their attorney warranted the imposition of sanctions. * * *


"Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'" ... . Where there is an unreasonable delay in seeking leave to amend, without excuse, and the motion for leave to amend is made close to or on the eve of trial, it is an improvident exercise of discretion to grant the relief ... . However, lateness alone is "not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side" ... . In this case, the proposed amendment was first sought in September 2011. Since the hospital defendants and Roca were aware of the plaintiffs' allegations well before the eve of trial, they were not prejudiced by the amendment. Under the totality of the circumstances, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to amend the bill of particulars ... . Dimouslas v Roca, 2014 NY Slip Op 06170, 2nd Dept 9-17-14




Wrong Party Name Could Not Be Remedied by Service of an Amended Summons and Complaint---Supreme Court Could Not Grant Motion to Serve Amended Pleadings Because the Court Never Had Personal Jurisdiction Over the Misnamed Party (Misnamed Party Never Served)---Relation Back Doctrine Did Not Apply


The Second Department reversed Supreme Court and granted defendant's motion to dismiss.  The pleadings named a trade name, not the correct name of the business. Supreme Court had allowed plaintiffs to serve an amended summons and complaint.  The Second Department determined Supreme Court never had jurisdiction over the defendant (because the defendant was never served) and the relation back doctrine did not apply:


The Supreme Court should have granted the appellant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against "Summit Business Media," as a trade name is not a jural entity amenable to suit ... . In addition, under CPLR 305(c), "an amendment to correct a misnomer will be permitted if the court has acquired jurisdiction over the intended but misnamed defendant provided that . . . the intended but misnamed defendant was fairly apprised that [it] was the party the action was intended to affect . . . [and] would not be prejudiced' by allowing the amendment" ... . Here, because neither the appellant nor its predecessor-in-interest, Summit Business Media, LLC, were served with process, the Supreme Court lacked personal jurisdiction over them, and lacked the authority to grant leave to amend the summons and complaint ... . Further, the plaintiffs failed to establish that the relation-back doctrine applied (see CPLR 203[b]...). Honeyman v Curiosity Works Inc, 2014 NY Slip Op 06176, 2nd Dept 9-17-14





Appellate Court Can Exercise Its Own Discretion Re: Scope of Discovery, Even in the Absence of Abuse


The First Department determined, over a dissent, that Supreme Court had improperly restricted the discovery of software code.  The court explained its power to overrule the trial court in this regard and the underlying principle allowing broad discovery:


New York strongly encourages open and full disclosure as a matter of policy ... . To that end, CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action."


A trial court is vested with broad discretion in its supervision of disclosure ... . Indeed, "deference is afforded to the trial court's discretionary determinations regarding disclosure" ... . However, "[t]his Court is vested with the power to substitute its own discretion for that of the motion court, even in the absence of abuse" ... . We have observed that we "rarely and reluctantly invoke" our power to substitute our own discretion for that of the motion court ... . We find that this case presents one of those rare instances in which we are compelled to substitute our discretion for that of the motion court. MSCI Inc v Jacob, 2014 NY Slip Op 06239, 1st Dept 8-18-14




Motion to Renew Was Not Based Upon a Change in the Applicable Law---Motion Court Had Simply Ignored the Controlling Precedent---Therefore the Motion Was Actually a Motion to Reargue, the Denial of Which Is Not Appealable


The First Department, in a full-fledged opinion by Justice Tom, determined that defendants' motion, which was labeled a motion to renew, was actually a motion to reargue, the denial of which is not appealable.  A motion to renew can be based upon a change in the law since the first motion was determined.  However, in this case, the trial judge who denied the original underlying motion, specifically refused to follow the appellate precedent in her department (re: the availability of nonpecuniary damages in a legal malpractice action). Because the underlying law did not change, but rather the law was simply ignored by the trial judge, there was no change in the law which could serve as a basis of a motion to renew. The legal malpractice action stemmed from defense counsel's failure to raise the speedy trial defense in a criminal matter.  The plaintiff was freed after14 years of imprisonment on the basis of defense counsel's failure.  D'Alessandro v Carro, 2014 NY Slip Op 06246, 1st Dept 9-18-14




Petition to Commence Action Against the Motor Vehicle Accident Indemnification Corporation (MVAIC) Should Not Have Been Denied In the Absence of a Hearing


The Second Department determined Supreme Court should not have summarily determined a petition to bring an action against the Motor Vehicle Accident Insurance Corporation (MVAIC) and ordered a hearing.  Plaintiff alleged he was injured (while riding a scooter) by a driver who left the scene:


Here, while the petitioner sufficiently pleaded the prima facie elements necessary to commence an action against the MVAIC (see Insurance Law §§ 5217, 5218), the MVAIC raised questions of fact precluding summary determination of the petition. Based on the record before us, the issues of (1) whether the petitioner is an uninsured resident of New York, and, therefore, a "qualified person" pursuant to article 52 of the Insurance Law (see Insurance Law § 5202[b]), (2) whether the accident was reported to the police within 24 hours (see Insurance Law § 5218[b]; 5208[a][2][A]), and (3) whether the petitioner served a notice of claim upon the MVAIC within 90 days of the accident (see Insurance Law § 5208[a][2][A]), could not have been resolved without an evidentiary hearing ... . Thus, the Supreme Court should not have summarily determined the petition (see CPLR 409, 410).  Matter of Hernandez v Motor Veh Acc Indem Corp, 2014 NY Slip Op 06203, 2nd Dept 9-17-14





Motion to Vacate Default Judgment in Foreclosure Action Properly Granted---Criteria Explained


The Second Department determined Supreme Court properly vacated a default judgment in a foreclosure action:


" A foreclosure action is equitable in nature and triggers the equitable powers of the court'" ... . "Under CPLR 5015(a), a court is empowered to vacate a default judgment for several reasons, including excusable neglect; newly-discovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order" ... .


"In addition to the grounds set forth in section 5015(a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice" ... . Indeed, the drafters of CPLR 5015(a) "intended that courts retain and exercise their inherent discretionary power in situations that warranted vacatur but [*2]which the drafters could not easily foresee" ... .


"The decision as to the setting aside of a default in answering is generally left to the sound discretion of the Supreme Court, the exercise of which will generally not be disturbed if there is support in the record therefor" ... .


Under the unique circumstances of this case, the Supreme Court providently exercised its discretion in vacating the judgment of foreclosure and sale entered on the default of the Cohen defendants "in the interests of substantial justice" ... . The documentary evidence submitted in support of the motion raises issues including, among others, whether the plaintiff had "knowledge of facts that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue" ... . Hudson City Sav Bank v Cohen, 2014 NY Slip Op 06177, 2nd Dept 9-17-14





Record Did Not Demonstrate Defendant Understood His Miranda Rights---Statement Should Have Been Suppressed


The Second Department determined defendant's statement should have been suppressed.  The People failed to demonstrate defendant understood his right to remain silent:


Contrary to the hearing court's determination, the evidence adduced at the suppression hearing was insufficient to establish that the defendant's statements to law enforcement officials were made after he knowingly, voluntarily, and intelligently waived his Miranda rights (see Miranda v Arizona, 384 US 436). Although the defendant's refusal to sign the Miranda card did not, in itself, preclude the finding of a valid waiver ..., the record was devoid of any indication that the defendant clearly understood his Miranda rights as read to him ... . People v Barnes, 2014 NY Slip Op 06209, 2nd Dept 9-17-14




Motion to Vacate Convictions Granted---People Failed to Provide "Brady" Material In Time for the Defense to Make Meaningful Use of It


The Second Department, pursuant to a CPL 440 motion, vacated the defendants' convictions because of the People's failure to turn over documents which would have aided the defense (a "Brady" violation).  Although the documents were provided at the time of jury selection, they were mixed in with a large volume of other documents which effectively deprived the defense of notice of their existence.  There was a "reasonable probability" the documents, had they been used at trial to impeach police witnesses, would have changed the outcome of the trial:


The People have an obligation to disclose exculpatory evidence, known as Brady material, in their possession which is favorable to the defendant and material to his or her guilt or innocence (see Brady v Maryland, 373 US 83, 87...). Such evidence is to be produced regardless of whether a defendant requests the material ... . The prosecutor's duty to exchange Brady material extends to the disclosure of evidence that can be used to impeach the credibility of a witness for the People whose testimony may be determinative of the defendant's guilt ... . Such material is to be turned over to the defendant in time for him or her to use it in a meaningful fashion during cross-examination or as evidence during his or her own case ... .


In order to establish a Brady violation, a defendant must prove: (1) the evidence at issue is favorable to him or her; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice ensued because the suppressed evidence was material ... . As to the element of materiality, where there was only a general request by the defendant at the time of trial for exculpatory material, evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different ... . Here, the manner in which the prosecution turned over the documents, during the course of jury selection, deprived the defendants of a meaningful opportunity to employ that evidence during their cross-examination of the prosecution's witnesses ... . People v Wagstaffe, 2014 NY Slip Op 06217, 2nd Dept 9-17-14




Plaintiff Was Catapulted Into the Air from a Flatbed Truck When a Heavy Bundle Landed on the Plank He Was Standing On---Labor Law 240(1) Action Should Not Have Been Dismissed


The Second Department determined that the Labor Law 240(1) cause of action should not have been dismissed.  Plaintiff was catapulted into the air when heavy bundles of rebar were being rolled off a flatbed truck.  A bundle landed on the plank plaintiff was standing on and the plank raised up sharply.  A hoist had previously been used to remove the bundles from the truck.  The court also noted that the common law negligence and Labor Law 200 causes of action against one of the defendants should not have been dismissed because of a question of fact about the defendant's supervisory role:


"Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" ... . "The relevant inquiry—--one which may be answered in the affirmative even in situations where the object does not fall on the worker--—is rather whether the harm flows directly from the application of the force of gravity to the object" ... .


The launch of the plaintiff from the truck along with the wooden "four by four" plank upon which he was standing flowed directly from the application of the force of gravity to the bundle of rebar ... . The elevation differential between the flatbed truck and the ground was significant given the 8,000-to-10,000-pound weight of the bundles of rebar, and the amount of force they were capable of generating, "even over the course of a relatively short descent" ... .


The causal connection between the bundles' "inadequately regulated descent and plaintiff's injury" was unmediated by any safety device, such as the crane that had hoisted the bundles earlier in the day ... .


The plaintiff's evidence established, prima facie, that the ... respondents violated Labor Law § 240 by failing to provide an enumerated safety device, such as the hoist that had been provided earlier in the day to secure the bundle of rebar as it was being lowered, and that the Tillary respondents' failure to provide an appropriate safety device was a proximate cause of the plaintiff's injury ... . Treile v Brooklyn Tillary LLC, 2014 NY Slip Op 06197, 2nd Dept 9-17-14




Plaintiff's Inability to Identify Cause of Fall Requires Dismissal


Plaintiff's inability to identify the cause of her fall required dismissal:


"In a slip-and-fall case, a plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation" ... . Smith v Jesadan Meat Corp, 2014 NY Slip Op 06194, 2nd Dept 9-17-14




Defendants Entitled to Summary Judgment in Slip and Fall Case Under the Storm in Progress Rule


The Second Department determined defendants demonstrated they were entitled to summary judgment in a slip and fall case pursuant to the "storm in progress" rule:


A defendant moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow and ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition ... . "Under the storm in progress' rule, a property owner will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'" ... . "However, once a property owner elects to engage in snow removal activities, the owner must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm" ... .


Here, the evidence submitted by the defendants in support of their motion for summary judgment, including certified climatological data and transcripts of the deposition testimony of the parties, demonstrated, prima facie, that a storm was in progress at the time of the accident ... . Furthermore, the defendants established, prima facie, that their efforts to remove snow and ice from the platform did not create a hazardous condition or exacerbate the natural hazard created by the storm ... . Talamas v Metropolitan Transp Auth, 2014 NY Slip Op 06196, 2nd Dept 9-17-15





Governmental Immunity Re: Plaintiff Does Not Insulate Governmental Defendants from Contribution Claim by Another Defendant to Whom the Governmental Defendants Owed a Duty of Care


The Second Department affirmed the dismissal of an action against the governmental defendants (the "appellants") based upon governmental immunity.  The appellants had referred one Smith to another defendant, the North Amityville Community Economic Council (NACEC), as a potential employee.  The appellants had agreed not to refer anyone with a criminal record to NACEC.  Smith was a sex offender who was hired by NACEC.  Smith sexually assaulted the plaintiff at the NACEC facility.  After explaining the relevant immunity criteria in depth, the Second Department determined Supreme Court properly dismissed the action against the appellants.  The Second Department also determined Supreme Court properly refused to dismiss the cross-claims against the appellants by NACEC, noting that governmental immunity did not protect the appellants from a contribution claim by a defendant to whom the appellants owed a duty of care:


Here, the appellants established, prima facie, their entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them on the ground of governmental immunity by demonstrating that they did not voluntarily assume a special duty to the plaintiff ... . Furthermore, the plaintiff does not allege that the appellants violated any statutory duty, and the appellants established that they did not assume positive direction and control in the face of a known, blatant, and dangerous safety violation ... .


"[A] defendant may seek contribution from a third party even if the injured plaintiff has no direct right of recovery against that party, either because of a procedural bar or because of a substantive legal rule. A contribution claim can be made even when the contributor has no duty to the injured plaintiff. In such situations, a claim of contribution may be asserted if there has been a breach of a duty that runs from the contributor to the defendant who has been held liable" ... . Here, the appellants agreed not to refer anyone to NACEC who had a criminal background. Nonetheless, Smith, who was a level three sex offender, was referred to NACEC by the appellants. Under these circumstances, there is a triable issue of fact as to whether the appellants breached a duty of care to NACEC ... . Tara NP v Western Suffolk Bd of Coop Educ Servs, 2014 NY Slip Op 06189, 2nd Dept 9-17-14





Motion for Leave to File Late Notice of Claim Properly Denied---Injuries to Infant Plaintiff Consistent with Premature Birth


The First Department, over an extensive dissent, determined Supreme Court properly denied a motion for leave to file a late notice of claim in a medical malpractice action which alleged injuries to an infant born prematurely:


In this action for medical malpractice, in which the infant plaintiff seeks to recover for injuries he suffered after being born at 27 weeks' gestation, the motion court considered the pertinent statutory factors and properly exercised its discretion in denying plaintiff's motion (General Municipal Law § 50-e[5]). The infant plaintiff's mother's excuses that she was unfamiliar with the requirement that she file a notice of claim, and that she was unaware that her son's injuries were caused by defendant Health and Hospital Corporation's (HHC) malpractice, are not reasonable. Nor is her attorney's assertion that he waited to make the motion until approximately three years and ten months after filing the untimely notice of claim because he needed to receive the medical records from HHC ... .


Further, the medical records demonstrate that the infant plaintiff's condition and prognosis are consistent with his premature birth and do not suggest any injury attributable to the hospital staff's malpractice ... . Moreover, plaintiff failed to demonstrate that the medical records put HHC on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia or that he would subsequently develop other deficits, delays, and disorders ... . Wally G v New York City Health & Hosps Corp, 2014 NY Slip Op 06241, 1st Dept 9-18-14





Criteria for Negligent Misrepresentation Cause of Action Explained


The First Department determined the complaint sufficiently alleged a cause of action for negligent misrepresentation and laid out the criteria, including a "special relationship" close to privity:


To properly assert a claim on a theory of negligent misrepresentation, a plaintiff must plead: "(1) that the existence of a special or privity-like relationship imposed a duty on the defendant to impart correct information to the plaintiff; (2) that the imparted information was actually incorrect; and (3) that the plaintiff reasonably relied on the information" ... .


As to the first element, a court will find a special relationship if the record supports "a relationship so close as to approach that of privity" ... or, stated another way, the "functional equivalent of contractual privity" ... . Under this standard, before liability for negligent misrepresentation may attach in favor of a third party, there must be: (1) an awareness by the maker of the statement that the statement is to be used for a particular purpose; (2) reliance by a known party on the statement in furtherance of that purpose; and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance... . North Star Contr Corp v MTA Capital Constr Co, 2014 NY Slip Op 06238, 1st Dept 9-18-14



Failure to Comply with Statutory Notice Requirements Required Dismissal of Action Seeking Review of Real Property Tax Assessments---Such a Dismissal is On the Merits


The Second Department determined dismissal of the proceeding questioning the assessment of a parcel of land was properly dismissed because the petitioner failed to comply with the notice requirements of Real Property Tax Law (RPTL) 708(3).  The court noted that such a dismissal is on the merits:


Contrary to the Supreme Court's determination, the City had standing to seek dismissal of the proceedings based on the petitioner's failure to give notice of the proceedings to the Superintendent of the District pursuant to RPTL 708(3) ... .


As the petitioner correctly concedes on appeal, it failed to give notice of the proceedings to the Superintendent of the District pursuant to RPTL 708(3), and lacked good cause for its failure. * * *


Since a dismissal pursuant to RPTL 708(3) operates as a dismissal upon the merits, the relief afforded by CPLR 205(a) is unavailable ... . Matter of Westchester Joint Water Works v Assessor of City of Rye, 2014 NY Slip Op 06208, 2nd Dept 9-17-14





Claimant Was an Employee Notwithstanding a Written Agreement Describing Her as an Independent Contractor


The Third Department determined claimant was an employee of Prometric Inc.  Claimant was hired as a nurse aide evaluator (NAE) to evaluate nursing assistant candidates.  The fact that the written agreement labeled claimant as an independent contractor was not determinative:


It is well settled that the existence of an employment relationship is a factual issue for the Board to decide and its determination will be upheld if supported by substantial evidence .... Significantly, where, as here, the work of medical professionals is involved, the pertinent inquiry is whether the purported employer retained overall control over the work performed ... .


Here, Prometric developed an assessment tool to be used to evaluate the skills that a test candidate needed to perform and conducted annual training sessions with claimant and other NAEs to ensure consistency in testing. Prometric interviewed individuals that it wished to retain as NAEs and reimbursed them for mileage and travel expenses. It established an hourly rate of pay for specific work activities, but other rates were sometimes negotiated depending upon the circumstances. The work of the NAEs was performed off site either at nursing homes or training facilities and the NAEs chose their work assignments from a computer-generated list. Although the NAEs had flexibility in scheduling their assignments and did not have set hours, if an NAE was unable to show, Prometric was responsible for finding a replacement or canceling the test. Notably, Prometric provided claimant with all testing materials and other equipment needed to evaluate the candidates, had him wear an identification badge and required him to maintain strict confidentiality. Furthermore, Prometric had a senior nurse evaluator conduct an annual review of claimant's work who assisted him in correcting any deficiencies. The foregoing indicates that Prometric retained sufficient overall control over the work of claimant and other similarly situated NAEs to be considered their employer ... . Accordingly, notwithstanding the written agreement labeling claimant an independent contractor ..., substantial evidence supports the Board's decisions. Matter of Makey, 2014 NY Slip Op 06226, 2nd Dept 9-18-14




"Contract Attorney" Properly Determined to Be an Employee


The Third Department determined an attorney who was hired by a firm as a "contract attorney" was entitled to unemployment benefits:


"[I]t is well settled that the existence of an employer-employee relationship is a factual issue for the Board to decide and its determination will not be disturbed if supported by substantial evidence" ... . Inasmuch as the work at issue here involved professional services that generally do not lend themselves to close supervision or control of the details of the work, the pertinent inquiry is whether the employer has retained "overall control," and "substantial evidence of control over important aspects of the services performed other than results or means is sufficient to establish an employer-employee relationship" ... . In that regard, West hired claimant after an interview and based upon his analytical expertise acquired during a federal clerkship. West set his rate of pay at $100 an hour or on a per project basis, and provided him with a parking pass, office, desk, computer, receptionist, a firm email address and information technology support. Two attorneys supervised him, gave him instructions on how to perform his tasks, told him to ask permission before pursuing new legal issues, reviewed his work and made revisions. He was also covered under West's malpractice insurance. In our view, the foregoing constitutes substantial evidence to support the Board's decision that claimant was an employee of West, even if evidence exists to support a contrary conclusion... . Matter of Lavalley, 2014 NY Slip Op 06232, 3rd Dept 9-18-14






Teacher's Refusing to Agree to One Year Extension of Probationary Period Did Not Constitute Disqualifying Misconduct


The Third Department reversed the Unemployment Insurance Appeal Board and determined that a teacher's refusing to sign an agreement that would have extended her probationary period was not disqualifying misconduct:


Refusing to comply with an employer's reasonable directive to sign a document can constitute insubordination and, thus, disqualifying misconduct ... . This is not a situation, however, in which claimant was asked, and refused, to sign a document that was necessary to the operation of the employer's business ... . Under the Education Law, where a teacher has been on probationary status for three years, the employer must either grant the teacher tenure, terminate the employment or agree to an extension of the probationary term (see Education Law § 2573 [1]; ... see also Education Law §§ 2509 [1]; 3012 [1]; 3014 [1]). Here, the employer chose not to grant claimant tenure and, instead, offered her an extension of probation. As opposed to refusing to perform a job duty, claimant merely declined to enter into a new contract with the employer on its proffered terms ... . Although claimant's refusal to sign the extension agreement could possibly be classified as her voluntarily leaving employment without good cause while the employer was offering continuing work, which would be a basis for denying unemployment insurance benefits ..., the employer did not assert that claimant quit. Matter of Jackson, 2014 NY Slip Op 06237, 2nd Dept 9-18-14


bottom of page