Plaintiff Excused from 50-H Hearing in City Action

            In Hymowitz v. City of New York (NYLJ 1202676425279 at 1, App. Div., 2nd, decided October 15, 2014), the plaintiff, the administrator/representative of a decedent's estate brought a wrongful death action against the City of New York after the decedent was struck by a bicyclist on a bicycle trail near Cunningham Park in Queens County.  Soon after the accident, counsel for the decedent served a notice of claim on the City (a prerequisite for a lawsuit against a municipality), and thereafter the City served a demand for a hearing pursuant to General Municipal Law §50-h.  Counsel for the decedent responded back to the City that they were unable to attend a hearing as a representative of decedent's estate was not appointed yet.

            After a representative of decedent's estate was appointed, then plaintiff informed the City that it was available for the 50-H hearing.  However, the City failed to respond to plaintiff's notice of availability, and as a result plaintiff moved forward and filed a summons and complaint against the City.  Nearly two years later though, on June 3, 2013, the City moved to dismiss the complaint for failure to comply with General Municipal Law §50-h, and the Queens County Supreme Court granted the motion.

            Plaintiff appealed, and the Appellate Division, Second Department reversed the trial court's decision, stating as follows: "Compliance with a demand for a General Municipal Law §50-h examination is a condition precedent to the commencement of an action against a municipal defendant, and the failure to so comply warrants dismissal of the action...[t]he failure to submit to such an examination, however, may be excused in exceptional circumstances, such as extreme physical or psychological incapacity...[u]nder the circumstances of this case, the failure to appear for an examination pursuant to General Municipal Law §50-h should have been excused in light of the decedent's death before service of the demand for her examination, the administrator's willingness to appear at a hearing, and the defendants' failure to demand the examination of any other person...[a]ccordingly, the defendants' motion to dismiss the complaint for failure to comply with their demand to examine pursuant to General Municipal Law §50-h should have been denied."

Salvatore R. Marino, Esq.

Cross-Examination and Tax Returns

           The decision Young & Rondinello v. Lacy highlights the law regarding cross-examination of a plaintiff's tax return information in a personal injury trial (CA 13-01918, NYLJ 1202672225674, at 1, App. Div., 4th, decided September 26, 2014).

            In Young, the plaintiffs sued the defendant for injuries sustained in an automobile collision.  At trial, the defendant sought to cross-examine one of the plaintiffs regarding her tax return information (hoping to elicit an admission that she committed tax fraud in the past, which could cast doubt on her overall credibility).  The judge disallowed such questioning by defendant, holding that it was a collateral issue (which is an issue taken upon a matter aside from the merits of the case), and ultimately a jury awarded damages of $329,517 to the plaintiffs.  The defendant appealed, arguing for a new trial as, among other things, she should have been allowed to cross-examine the plaintiff regarding her tax return information.

            The Appellate Division, Fourth Department agreed with the defendant, and reversed the trial court's decision, ordering a new trial and allowing the defendant to question the plaintiff regarding the tax return information.  The Appellate Division held that, although questions regarding the plaintiff's tax return information is a collateral issue, the defendant nevertheless had the right to ask the plaintiff about it (though could not attempt to refute the plaintiff's answers by way of extrinsic evidence), stating as follows: "Although it is true, as plaintiff points out, that, because of the collateral evidence rule, defendant's attorney would have been bound by plaintiff's answers concerning her federal tax returns without 'refuting [those] answers by calling other witnesses or by producing extrinsic evidence'...we nevertheless conclude that defendant's attorney should have been allowed to ask the questions (see McNeill v. LaSalle Partners, 52 AD3d 407, 410)."

Salvatore R. Marino, Esq.

Default Judgment and 50 USCS Appx § 521

            In Ellis v. Fortune (31932-2012, NYLJ 1202667402623, at 1), the Suffolk County Supreme Court denied a plaintiff's motion for a default judgment against a defendant who allegedly failed to appear in the action.  According to the Court, the reason for the denial was due to the plaintiff's non-compliance with 50 USCS Appx §521, which protects military service members from default judgments, as it requires that an affidavit must be supplied to the court when seeking a default judgment that (a) states whether or not the defendant is in military service and showing necessary facts to support the affidavit, or (b) if the plaintiff is unable to determine whether or not the defendant is in military service, states that the plaintiff is unable to determine whether or not the defendant is in military service.  In this case, the Court held that both conditions were not satisfied, thereby resulting in the denial of the motion.

            Particularly, the Court stated the following: "Here, the plaintiffs' affidavits of service do not contain the statutorily required statement as to the military status of the defendants.  For example, defendant Fabrice Fortune was allegedly served pursuant to CPLR 308(2) by delivery to a person of suitable age and discretion, 'Jane Doe.'  The military service portion of the plaintiffs' affidavit of service upon Fabrice Fortune merely states that the process server 'asked the person spoken to whether the recipient [Jane Doe] was in active military service…Recipient [Jane Doe] wore ordinary civilian clothes and no military uniform…Upon information and belief I aver that the recipient [Jane Doe] is not in the military service….' (emphasis added).  Similarly, although defendant Marie C. Fortune was allegedly served pursuant to CPLR 308(4), the so-called 'nail and mail' method of service, by affixing the summons and complaint to her door, the military service portion of the affidavit of service states, 'Upon information and belief I aver that the recipient [the door] is not in the military service….' (emphasis added). Obviously, neither of these affidavits concerning the military status of the defendants is credible. Therefore, pursuant to 50 USCS Appx §521(b), a judgment of default may not be entered against either defendant."

Salvatore R. Marino, Esq.

U.S. Supreme Court Edits Decisions Without Notice

            According to a recent article in the New York Times by Adam Liptak ("Final Word on U.S. Law Isn't: Supreme Court Keeps Editing," 5/24/14), the United State Supreme Court has been regularly editing its decisions - without making public notice of the revisions.  According to Richard J. Lazarus in the article, law professor at Harvard and the author of a new study regarding the practice, the edits include "truly substantive changes in factual statements and legal reasoning."

            This practice is seemingly troublesome - particularly for attorneys across the country - as the decisions are relied upon for guidance, and the finality of them is now discovered to be uncertain with respect to significant legal holdings.  This was particularly noted by Jeffrey L. Fisher in the article, a law professor at Stanford, who stated, "[i]n Supreme Court opinions, every word matters...[w]hen they’re changing the wording of opinions, they’re basically rewriting the law."

            One reason the article notes for the revisions is due to the time constraints the Justices have when writing and publishing their decisions (which sometimes lead to inaccuracies and misstatements of law).  Also, according to Mr. Liptak, the final versions of decisions do not always fully replace the original ones, and the only way the public can identify most changes is by a rigorous comparison of early versions of decisions to ones published years later.

Salvatore R. Marino, Esq. 

Negligent Security Case is Dismissed

            In Vekhter v. Vishnyakov and Astoria Caterers, Inc. (NYLJ 1202653274435, at 1, Sup., Kings, decided April 21, 2014), the plaintiff brought a negligence action against a defendant restaurant, alleging that the restaurant was liable for injuries he suffered as a result of being attacked by another patron of the establishment when he was there.  Particularly, the plaintiff alleged the following causes of action: negligence and battery; intentional infliction of emotional distress; assault; negligent infliction of emotional distress; premises liability; negligent hiring, supervision, and retention; failure to provide security as required by New York City Administrative Code §20-359; and punitive damages.

            After the defendant made a motion for summary judgment (seeking to dismiss the plaintiff's action), the Kings County Supreme Court granted the defendant's motion, holding, among other things, that the plaintiff failed to raise a triable issue of fact with respect to issues of proximate cause and foreseeability.  The Court also stated the following: "While the owner of a public establishment has the duty to control the conduct of persons on its premises when it has the opportunity to do so and is reasonably aware of the need for such control, it has no duty to protect customers against an unforseen and unexpected assault...Nonetheless, plaintiff's vague and conclusory assertion that 'fights like [his] regularly happened' is insufficient to support a duty on [defendant's] part to provide security either generally or for [the event].  Plaintiff provides no evidence of a history of assaults or altercations either at [defendant's restaurant] or [similar events] held elsewhere."

Salvatore R. Marino, Esq.

HDFC Tenants' Rights

            A recent court decision highlights Housing Development Fund Corporation (also known as "HDFC") tenants' rights with respect to eviction proceedings, and the greater protections those tenants have.

            In 823 East 147th Street Housing Development Fund Corp. v. Hinnant (NYLJ 1202649981134, at 1, Civil Court, Bronx, decided March 28, 2014), the petitioner landlord, a non-profit Housing Development Fund Cooperative Corporation, commenced a holdover eviction proceeding at the expiration of the tenant's lease, but without service of a predicate termination notice.  Before serving an answer, the tenant moved pursuant to CPLR 3211(a) to dismiss the proceeding asserting that the petition failed to state a cause of action upon which relief could be granted (including that it failed to provide a reason for the eviction), and the petitioner opposed and argued that it was not required to allege a reason for the termination because the tenant did not take possession of the subject apartment until after the HDFC conversion.

            Ultimately, the Bronx Civil Court dismissed the petitioner's action, citing the lack of any reason for the eviction (other than the expiration of the tenancy), and that HDFC tenants are entitled to greater protections by way of the U.S. Constitution as HDFC facilities are "entwined" with the government, as displayed as follows: "[i]t is well established that where a governmental entity meaningfully participates in the operation or control of a building so as to be significantly 'entwined' with it, eviction proceedings must comply with constitutional Procedural Due Process guarantees...[w]ith respect to HDFCs, a government agency fixes their rentals, requires the availability of units to occupants within certain income guidelines, and restricts the use of any their profits...thereby triggering Due Process protections.  Among the most basic of these protections is notice to the tenant of the cause for the eviction, other than mere expiration of the tenancy...." 

Salvatore R. Marino, Esq.

Tort of "Negligent Words"

            In Ripp v. Lavore (BASC 434-13, NYLJ 1202646720701, at 1, District Court, Suffolk, decided February 28, 2014), the facts are as follows: plaintiff and defendant entered into a written contract to make repairs on plaintiff's boat - those repairs included removing and replacing two rotted stringers; at some point during the work's progress, defendant advised plaintiff that it was not necessary to replace the full stringers because the fore and aft sections were "rock solid"; upon completion of this revised work plan, however, by early July 2011, the boat began to leak on the port side; as a result of the foregoing, plaintiff filed a small claims complaint against the defendant alleging breach of a contract to repair plaintiff's boat.

            After the conclusion of a trial de novo for said matter, the Court ruled in favor of plaintiff's breach of contract claim - citing contract law (particularly, that the oral modification to the written contract was unenforceable), and the tort of "negligent words" as plaintiff relied on defendant's representations to his detriment.

            With respect to the tort law, the Court stated the following: "Liability in [negligent words] cases arises only where there is a duty, if one speaks at all, to give the correct information.  And that involves many considerations.  There must be knowledge or its equivalent that the information is desired for a serious purpose; that he to whom it is given intends to rely and act upon it; that if false or erroneous he will because of it be injured in person or property.  Finally the relationship of the parties, arising out of contract or otherwise, must be such that in morals and good conscience the one has the right to rely upon the other for information, and the other giving the information owes a duty to give it with care" [quoting International Products Co. v. Erie R. Co., 244 N.Y. 331, 338 (1927)]."

Salvatore R. Marino, Esq.

Order to Show Cause Improper for Wrongful Death Settlement

            In Cutrone v. Tsahalis (21344/13, NYLJ 1202641851331, at 1, Sup., Kings, decided February 03, 2014), the New York Kings County Supreme Court rejected an application by a plaintiff's attorney for a wrongful death settlement as it was improperly submitted.

            The Court's reasons included the following: (1) an Order to Show (and any other special proceeding) is not the proper route to resolve a wrongful death matter pursuant to law - rather, submission of a wrongful death compromise application to the Surrogate's Court is; (2) the respondent was never served with the application (just his insurance company was served); and (3) a wrongful death claim was never pending in the Supreme Court.

            The Court also stated the following in its decision: "[t]he allocation of responsibility between Supreme Court and Surrogate's Court for the approval of settlements of wrongful death claims and the distribution of settlement proceeds is not a matter of legislative accident...[u]nlike CPLR 1207, concerning the settlement of a claim by an infant, judicially declared incompetent, or conservatee, which explicitly provides for a special proceeding for that purpose if no action is pending, the Court is aware of no similar provision for a special proceeding for judicial approval of the settlement of a wrongful death claim.  Whether Supreme Court has inherent power to entertain such a proceeding pursuant to the State Constitution's grant of almost unlimited general jurisdiction...and whether the Surrogate's limit on the authority of a personal represented in the manner illustrated by the Letters Testamentary granted here would preclude such a proceeding...are not questions the Court is prepared to address on this record."

Salvatore R. Marino, Esq.

Meteorologist Report Fails to Create Issue of Fact

            In Gibel v. Resnik Holdings (30761/2010, NYLJ 1202638795883, at 1, Sup., Westchester, decided January 8, 2014), on Sunday February 14, 2010, the plaintiff slipped and fell on chunks of ice in front of East 5th Street near its intersection with South Fulton Avenue, Mount Vernon.  Prior to the accident, it had snowed 10 inches on February 10, 2010, but there was no additional precipitation between then and the day of the plaintiff's accident.  On February 17, 2012, the plaintiff commenced a personal injury action against the defendant, the owner of the building located at 336 South Fulton Avenue, in Mount Vernon.  After the discovery process concluded, the defendant moved for summary judgment seeking to dismiss the plaintiff's complaint on the ground that the defendant did not create nor have notice of the icy condition which caused plaintiff's fall.

            In support of its motion, the defendant relied on, among other things, the affidavit of its president, who stated that in February 2010 he did not observe any condition on the sidewalk which would constitute a dangerous condition or defect.  The defendant also relied on his deposition, in which he testified that he did not receive any complaints regarding the condition of the sidewalk before plaintiff's accident, and that the businesses in his building were closed on Saturday and Sunday that week and since there was no precipitation on those days, no one returned to the premises to check the condition of the sidewalk.  In opposition, the plaintiff argued that there are questions of fact regarding whether defendant created the icy condition.  In support of her opposition, the plaintiff submitted the affidavit of a meteorologist, who opined that the ice chunks upon which plaintiff fell were made by artificial means.

            The Westchester County Supreme Court ultimately granted the defendant's motion, thereby dismissing the plaintiff's claim, stating the following: "Defendant has establish prima facie entitlement to summary judgment by establishing that it lacked either actual or constructive notice of the condition that allegedly caused plaintiff's fall.  Plaintiff's opposition to the motion fails to raise a triable issue of fact as to whether the ice condition was created by defendant or whether defendant had notice of the condition for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it...Plaintiff's attempt to raise an issue of fact by submitting the affidavit of [a Meteorologist] is unavailing because [his] opinion that the ice chunks upon which plaintiff fell were artificially made is pure speculation.  [He] did not observe the ice chucks which caused the fall or even the area where plaintiff fell.  Rather, he bases his opinion solely on the weather conditions in New York City at the time of plaintiff's accident.  Accordingly, defendant's motion for summary judgment dismissing the complaint is granted." 

Salvatore R. Marino, Esq.

Late Request for Jury Trial Denied

            In Phillip v. Lancman (7556/11, NYLJ 1202635385724, at 1, Sup., Kings, decided December 19, 2013), the facts are as follows: the plaintiffs served a summons and complaint on April 1, 2011; on June 3, 2011, the defendant served an answer with affirmative defenses; on November 19, 2012, the plaintiff served and filed a note of issue, requesting a trial without a jury; and on JUne 28, 2013, the defendant made until June 28 a motion requesting permission to request a jury (as the defendant failed to timely do so pursuant to the CPLR, which requires one to request a jury no later than 15 days after the filing of the note of issue).

            In opposing the defendant's motion, the plaintiffs note, among other things, that the statutory deadline for filing a jury trial demand expired more than seven months ago, and that the plaintiffs would be unduly prejudiced if the defendant was permitted to demand a jury trial because the infant plaintiff and plaintiff's counsel have been preparing for a trial based upon the assumption that it would be a non-jury trial.  In reply, the defendant reiterates and argues, among other things, that the failure to timely file a jury demand was due to the inadvertence of counsel, and that there would be no prejudice to plaintiffs because there have been settlement discussions and a scheduled mediation.

            The Kings County Supreme Court denied the defendant's motion, citing CPLR 4102 (a), which states that "[a]ny party served with a note of issue not containing such a demand may demand a trial by jury by serving upon each party a demand for a trial by jury and filing such demand in the office where the note of issue was filed within fifteen days after service of the note of issue."  The Court also held the following: "[h]ere, the extent of defendant's delay in seeking the requested relief - over 7 months - weighs heavily against a finding of excusable conduct...[f]urthermore, the Second Department has held that a defendant's explanation that he or she failed to realize that the note of issue was filed with a request for a non-jury trial (as defendant herein claims) is an inadequate excuse...[c]onsequently, under the circumstances presented herein, defendant has failed to make an adequate factual showing that her failure to demand a jury trial was inadvertent.  Accordingly, the motion is denied." 

Salvatore R. Marino, Esq.

Growling Not Enough to Show "Vicious Propensities" in Dog Bite Case

            In Gervais v. Laino (111537/10, NYLJ 1202636603421, at 1, App. Div., 1st, decided December 31, 2013), the Appellate Division, First Department reversed a lower court's order denying a defendant's motion for summary judgment in a dog bite case.  The relevant facts are as follows: the plaintiff brought a lawsuit against a dog owner (the defendant) after she was allegedly scratched or bitten in the face by the dog; the plaintiff stated that she was walking in Central Park when she saw the defendant's dog, whose hind paw was caught in a fence, wailing in pain; the plaintiff claimed that she was leaning over the dog and deciding what to do, when the dog lunged at her and scratched or bit her face (however, both the hospital records and police report state that plaintiff was attempting to free the dog); the defendant dog owner, who was present and rushing over to her dog, stated that the plaintiff wrapped her arms around the dog's head and neck.

            In support of the motion for summary judgment, the defendant submitted evidence of her dog's gentle disposition and her lack of knowledge of any vicious propensities, including four affidavits from neighbors and other dog owners who know the defendant's dog, as well as test results indicating that the dog was awarded the American Kennel Club's Good Citizen certification.  In opposition, the plaintiff submitted deposition testimony from the defendant's neighbor who stated that, prior to this incident, the neighbor's two dogs and defendant's dog, had a history of growling at each other and had been involved in two scuffles, one where one of the neighbor's dogs bit defendant's dog and one or possibly two where defendant's dog was the aggressor but she retreated when the neighbor reprimanded her.  The neighbor further testified that she complained to defendant about her dog's behavior, but acknowledged that defendant's dog was not aggressive toward her and had never bitten or hurt her dogs.

            After the discovery process, the defendant made a motion for summary judgment, seeking to dismiss the plaintiff's lawsuit on the theory that no triable issues of fact exist for trial.  The trial court denied the defendant's motion, and the plaintiff appealed.  On appeal, the Appellate Division reversed the trial court decision, stating the following: "[i]n order to establish liability, there must be some evidence that the dog demonstrated vicious propensities prior to the incident...[t]he only case with facts at all comparable to those here is Rosenbaum v. Rauer, 80 AD3d 686 (2nd Dept 2011), in which the plaintiff was also injured when trying to assist a dog who was caught in a fence.  In Rosenbaum, however, there was evidence that the defendants' dog 'had frequently…growled, shown its teeth, and snapped at the plaintiffs'...[a]ccordingly, the Second Department found that there was a triable issue of fact as to the animal's vicious propensities when it bit the injured plaintiff." 

            The Court then held the following: "[n]o court has found that a dog's growling at one or two other dogs is sufficient to establish vicious propensities, and the Third Department has specifically held that growling and baring of teeth, even at people, is insufficient to give notice of a dog's vicious propensities...[h]ere, the evidence, which establishes only that defendant's dog growled at two other dogs, one of whom had bitten her, and never growled or bared her teeth at any people, is insufficient to raise an issue of fact as to the dog's vicious propensities.  Accordingly, defendant is entitled to summary judgment dismissing the complaint."

Salvatore R. Marino, Esq.

New Trial on Damages Ordered

            In Killon v. Parrotta (51539, NYLJ 1202635187065, at 1, Sup., Warren, decided December 23, 2013), an action for battery was commenced after the plaintiff was allegedly attacked by the defendant with a baseball bat, resulting in serious injuries to the plaintiff's face that required substantial medical and surgical treatment.  A trial was held in this case, and the jury awarded damages to the plaintiff in the amount of $200,000.00 for past medical expenses, no damages for past pain and suffering, and $25,000.00 for future pain and suffering.  After the verdict, the plaintiff then moved pursuant to CPLR 4404(a) for an order setting aside the verdict of the jury as to the $25,000.00 award for future pain and suffering and their award of no damages for past pain and suffering. The plaintiff argued that the verdict, in those two instances, was contrary to the weight of the evidence and inadequate as a matter of law, materially deviating from what is considered reasonable compensation for the pain and suffering experienced and to be experienced in the future (the plaintiff does not contest the jury's verdict in the amount of $200,000.00 for medical expenses though).

The Court noted the following with respect to the applicable law: "[t]he standard on a motion to set aside the jury's verdict as against the weight of the evidence is whether the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence...[f]urthermore, the amount of damages to be awarded for pain and suffering is primarily a question of fact and considerable deference should be accorded to the interpretation of the evidence by the jury...[a]s frequently observed, awards for pain and suffering cannot be precisely quantified and their reasonableness is measured by reviewing comparable cases, and analyzing such factors as 'the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury'...[t]he challenge on a motion such as this is the inherently subjective nature of non-economic awards which will not produce mathematically precise results and the shortage of 'comparable cases' entombed in memorandum opinions with limited facts - a task which 'is easier said than done.'"

The Court ultimately held that the jury's award of no damages for past pain and suffering could not have been reached on any fair interpretation of the evidence, and that the jury's future pain and suffering award without setting forth the period of years of which such amounts were intended to provide compensation was problematic.  As a result, the Court ordered a new trial on the issue of damages for the plaintiff's past and future pain and suffering.

Salvatore R. Marino, Esq.