Monthly Archives: June 2015

Piacente v Bernstein,

127 A.D.3d 1365, 6 N.Y.S.3d 793 [3rd Dept., 2015]

At the beginning of the trial, where there are six jurors in the box, plus alternates, should the alternates be separately designated from the beginning? Or, should the designation of alternates be made just before the jury retires to deliberate? The perceived problem with advance designation of alternates is that the alternates might assume that they will not be needed, and so be tempted to pay less than full attention to the trial. Delaying the designation maintains the suspense, and is thought to make all of the jurors more likely to concentrate.

This case presented a conflict between the CPLR and local rules for the designation of alternates, and it is noted here only to point out the problem. Supreme Court, Albany County, held that the local rule could not be imposed over a party’s objection, and wound up directing a new trial. The Appellate Division contented itself with noting that Supreme Court acted within its discretion, but did not resolve the conflict in procedures.

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Walton v Strong Mem. Hosp.

___ NY3d ___, 2015 NY Slip Op 04786 [2015]

The Court of Appeals has just issued this significant opinion reviewing its major precedents concerning the foreign-object rule in medical malpractice cases, arriving at the factors determining when a given object may qualify for the discovery rule codified in CPLR 214-a, and when it must be excluded as a “fixation device.”

Recall that where a med mal action is based on the discovery of a foreign object in the patient’s body, the statute allows for an extension of the limitations period, for a year after the discovery. Excepted from consideration as “foreign objects” are chemical compounds, fixation devices, and prosthetic aids or devices. Defendants will argue for a broad definition of these terms, thus narrowing the category of foreign objects subject to the discovery rule. Plaintiffs, of course, take the opposite tack.

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Menche v Meltzer, Lippe, Goldstein & Breitstone, LLP,

___ AD3d ___, 2015 NY Slip Op 04617 [2d Dept., 2015]

In this legal malpractice case, the letter of engagement contained a broad arbitration clause, broad enough to cover the legal malpractice claim itself, as well as a claim for breach of fiduciary duty. The letter of engagement being indisputably a document within the meaning of CPLR 3211 (a)(1), and the arbitration provision clear, Supreme Court granted the motion to dismiss and the Appellate Division affirmed.

All of which sounds reasonable and plausible, until we ask why dismissal was the appropriate remedy.

Arbitration and its relationship to actions in court are the subject of CPLR Article 75. CPLR 7503 deals, in part, with the situation presented here: A party to an arbitration agreement has attempted to bypass the agreement by commencing an action in court.

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Altman v Kelly,

___ AD3d ___, 2015 NY Slip Op 04076 [2d Dept., 2015]

The notice to admit can be a useful, but limited, device to eliminate undisputed matters of fact from litigation. The limitation comes from well-established law holding that a notice to admit cannot be used to establish a fact that is an “ultimate conclusion” in the action, or one which “goes to the heart of the matters at issue.” (Priceless Custom Homes, Inc. v. O’NeillIn this motor vehicle negligence case the defendant Islip Pizza made admissions which, had they stood, would have established the essential issue of respondeat superior. That was sufficient cause to allow it to withdraw the admissions in the face of the plaintiff’s motion for summary judgment.

The individual defendant Kelly was driving his own vehicle at the time of the accident. Liability on Islip Pizza, therefore, accrued by virtue of respondeat superior or not at all. Plaintiff’s notice sought admissions that the offending driver was “in the course of his employment” with Islip Pizza at the time, that he was “acting in the scope of his employment”, and was “acting in furtherance” of its business. Islip Pizza, of course, could have objected to the notice as seeking admissions of ultimate fact. It might also have denied the requested admissions, or even ignored the notice. Instead, it admitted each of the facts. Note, by the way, that while a failure to respond to a proper request for admissions establishes the facts involved for the purpose of the litigation, there is no obligation to respond to a request which seeks admission as to contested ultimate issues (Orellana v. City of New York, 203 A.D.2d 542 [2d Dept., 1994]). The recipient’s failure to respond does not transform improper requests into admissions (Williams v. City of New York.)

Based in part on the admissions, plaintiff moved for summary judgment on liability against Islip Pizza. Islip Pizza cross-moved to withdraw the admissions. Supreme Court granted summary judgment, and denied the cross-motion. The Second Department reversed on both counts. Respondeat superior was an ultimate issue in the case, and the requests for admissions were therefore improper. CPLR 3123 (b) gives the court authority to allow a party to withdraw an admission at any time. In support of its cross-motion, Islip Pizza showed evidence that Kelly was in fact not acting within the scope if his employment. The court noted that the relevant facts could be addressed at the depositions. “[T]he purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial.” (DeSilva v Rosenberg, 236 AD2d 508 [2d Dept., 1997]) Without the admissions, plaintiff failed to establish his entitlement to judgment, and the motion for summary judgment was denied without prejudice to renewal after disclosure.