Monthly Archives: September 2015

Baez v Parkway Mobile Homes, Inc.,

125 AD3d 905 [2d Dept., 2015]

This is the first of a series of three notes on voluntary discontinuances. Today’s case concerns when a voluntary discontinuance should, or more properly should not, be allowed. Next will be a discussion of when a voluntary discontinuance should be considered a disposition on the merits for res judicata purposes. Finally, a consideration of when the court should impose some form of costs or attorney’s fees on the plaintiff as a condition of discontinuance.

CPLR 3217 (a) allows the plaintiff to withdraw a claim without court order within a brief window after asserting it, or by stipulation of all appearing parties (it applies to any party asserting a claim, but let’s keep things simple). If any appearing party will not stipulate, an order is required. CPLR 3217 (b) allows the motion at any time before submission of the case to the court or jury, and specifies that the court may impose terms and conditions on the discontinuance. It does not otherwise specify when the discontinuance should be allowed or not.

Case law establishes that a voluntary discontinuance should ordinarily be allowed, unless there is a specific reason not to.

“ordinarily a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted.” (Tucker v Tucker, 55 NY2d 378, 383 [1982])

Tucker itself presented such special circumstances, as the plaintiff in a divorce action sought to avail herself of the more favorable provisions of the Equitable Distribution statutes, in a manner contrary to the legislative scheme. Plaintiff had in fact commenced a second action, so that no one was compelling her to litigate. Rather, under the circumstances she was stuck with her first action and its controlling law.

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Gaffey v Shah,

___ AD3d ___, ___ NYS3d ___ 2015 NY Slip Op 06779 [2d Dept., 2015]

Ah, live by the technicality, die by the technicality.

Plaintiff here received an answer from the defendant, but relied on a defect in the verification to reject the answer and treat it as a nullity. Plaintiff then moved for a default judgment based upon the defendant’s purported failure to answer. The motion was properly denied, based upon a technical defect in the letter rejecting the answer.

The answer here was verified by defendant’s counsel, upon the statement that the defendant resided in a county other than where the attorney has his office. Plaintiff’s counsel rejected the answer, stating only that the answer lacked a proper verification, without specifying the defect. Plaintiff then moved for a default judgment, now specifying that the defendant’s residence and his attorney’s office were in fact in the same county. Plaintiff claimed to have satisfied the diligence requirement, entitling him to treat the answer as a nullity. Supreme Court denied the motion, and the Second Department affirmed.

A party rejecting a pleading based on a defective verification must give notice of the rejection “with due diligence.” (CPLR 3022) The statute specifies neither the content nor the timing of the rejection, but the Court of Appeals has read it to include a requirement that the nature of the defect must be specified (Miller v Bd. of Assessors, 91 N.Y.2d 82, 86 [1997]; Lepkowski v State of New York, 1 NY3d 201, 210 [2003]). The rejection letter here, therefore, was “ineffective” for failure to specify the nature of the defect in the verification. Also, even if the verification were improper, there was no prejudice to the plaintiff and the defect should have been ignored (see, CPLR 2001).

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Abdulla v Gross,

124 AD3d 1255 [4th Dept., 2015]

The release in this case had two, seemingly inconsistent, clauses. According to the first, it covered everything “from the beginning of the world.” According to the second, it covered one specific occurrence. Is either of the clauses controlling, or is the release ambiguous?

Plaintiff had two successive accidents in her home, and sued her landlord on the first. The parties reached a settlement, and counsel for the defendant thought it encompassed both accidents. The court held that the language of the release indicated otherwise, however, and so plaintiff’s action on the second accident was not barred.

Plaintiff’s first accident was in June of 2009, and her second on September 5 of the same year. As noted, she sued on the first accident only, but of course the second accident came up during disclosure, and defendant obtained disclosure on the injuries arising from it. The injuries were in fact related, with the plaintiff alleging that the September accident exacerbated the injuries sustained in June.

A settlement was reached in June of 2011, but plaintiff failed to send a release and stipulation of settlement until October 23, 2012. The “General Release” had in fact been executed by plaintiff in December of 2011. The defendant accepted the release and stipulation, paid on the settlement and filed the stipulation of discontinuance.

What counsel for the defendant did not know was that on the very last day of the limitations period, on September 5, 2012, the plaintiff had started a second action, based on the second accident. Defendant moved to dismiss the second action based on the release, arguing that the settlement was intended by the parties to encompass both accidents.

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Tracy v Vassar Bros. Hosp.,

130 A.D.3d 713, 13 N.Y.S.3d 226 [2d Dept., 2015]

This is another of the many cases about the distinction between ordinary negligence and medical malpractice, with their differing limitations periods. Ordinary negligence claims get a 3-year period, but med mal claims get only 2 ½, and so many plaintiffs with claims falling on the edge between the two seem to sue right in that 6-month gap, giving folks like me something to write about.

Here, the main actor was a surgeon named Panos, who operated on the plaintiff on February 5, 2009, at the defendant hospital. Plaintiff’s lawsuit was commenced on January 26, 2012, well beyond 2 ½ years and just before the expiration of 3 years. The hospital, of course, moved to dismiss on limitations grounds. Supreme Court denied the motion, holding that some of plaintiff’s claims sounded in ordinary negligence and were timely. As to the others, Supreme Court denied the motion as premature in advance of disclosure on the plaintiff’s claim to an equitable estoppel.

The plaintiff’s claim of estoppel was based on the idea that the hospital knew of Panos’ negligence, and that its failure to stop him constituted a fraud on the public. The invocation of the word “fraud,” however, is not sufficient to justify an equitable estoppel against the limitations defense. In this context, the fraud must in some way have concealed the malpractice so as to prevent the plaintiff from bringing suit. Therefore, the medical malpractice claims against the hospital should have been dismissed. So far, there is nothing remarkable here.

It is the claims which the court sustained as ordinary negligence which I find interesting. The cases have acknowledged the difficulty in distinguishing between malpractice and ordinary negligence, especially in the hospital context. To say that the distinction lies in whether the hospital’s negligence was in fulfilling some duty other than treating the patient does not always make the question any clearer (see, Weiner v Lenox Hill Hospital, 88 NY2d 784, 650 N.Y.S.2d 629 [1996]). “Here, the allegations in the complaint pertaining to the number of surgeries Panos was scheduling for any given day, the allegations that Vassar failed to establish procedures regarding the number of surgeries that could be scheduled for a given day, and the allegations that Vassar failed to investigate or respond to warnings and complaints from its employees regarding Panos’s practices generally, all sound in ordinary negligence rather than medical malpractice”. The court found that these allegations do not involve medical judgment or analysis regarding the plaintiff’s treatment.