Bongiovanni v Cavagnuolo, ___ AD 3d ___, 2016 NY Slip Op 00638

In a malpractice action an opinion as to causation may be rendered by an expert in a field related to the injury, even though the underlying claim of negligence relates to a specialist in a different field. In this malpractice action against a chiropractor, therefore, opinions as to the causation of plaintiff’s disk injuries could be received from non-chiropractors whose expertise was in orthopedics and radiology. These opinions related to causation only, which was within the experts’ fields of expertise, and not to the standard of care applicable to chiropractors.

One of the hallmarks of a professional negligence case is that the profession itself is generally allowed to set the standard of good and accepted practice. Negligent care, or malpractice, is a departure from that standard. It follows that expert testimony as to whether the care at issue departed from that standard must come from those whose expertise is established either by their being practitioners in the same field or through some other combination of training, skill or experience. The principle also extends to specialists: Expert opinion must come from specialists in the same field or those who can otherwise establish the reliability of their opinions.

In a chiropractic malpractice case such as this, therefore, whether the defendant departed from the standard of good and accepted practice would normally require expert testimony from chiropractors. Normally, an orthopedic surgeon could not testify as to whether a given chiropractic treatment deviated from the chiropractic standard.

There is, of course, a second issue: whether or not the acts of malpractice were the proximate cause of the plaintiff’s injuries. Here, expert testimony need not necessarily come from experts in the same field of treatment, but may come from anyone whose expertise as to the nature of the injuries would justify an opinion as to their origin and causation.

The plaintiff’s claim here was that the defendant chiropractor engaged in improper and unduly forceful manipulations of her thoracic spine, resulting in trauma to a cervical disk, requiring a discectomy and fusion surgery.

Defendant moved for summary judgment both as to a deviation from acceptable standards of care and as to causation. As to deviation, defendant offered his own affidavit, to the effect that there was no deviation from accepted standards. This is of course permitted.

Defendant then offered the affidavits of an orthopedic surgeon and a radiologist. Both of these were restricted to the issue of causation, saying nothing about the standard of chiropractic care. Both concluded that the injuries were degenerative, pre-existing the treatment at issue. In opposition, the plaintiff offered the affidavit of a radiologist, who also restricted his opinion to causation, finding that the injury was caused by a significant amount of force, consistent with the plaintiff’s claims.

Supreme Court held that the opinions of defendant’s experts were inadmissible, as the experts had not established a knowledge of chiropractic treatment. The court held that the defendant had accordingly not sustained his initial burden of proof on the motion, and denied it.

The Appellate Division affirmed, but on a different ground. The opinions of the experts, being limited to the causation of the plaintiff’s disk injuries, were squarely within their areas of expertise. They were therefore admissible on the motion. The disagreement between them raised a triable issue of fact, and that was the proper rationale for denial of the motion.

As to the issue of deviation from the standard of care, the Appellate Division held that the defendant’s affidavit failed to establish the applicable standard of care, rendering his opinion as to the lack of any deviation to be conclusory. He therefore failed to sustain his initial burden on this score, and the court did not consider the plaintiff’s opposition.

McCord v Larsen, 132 A.D.3d 1115, 18 N.Y.S.3d 458 [3rd Dept., 2015]

Plaintiff alleged that she was injured in a building owned by the defendant, due to a defective porch railing. She sued, and claimed to have served the summons by deliver-and-mail (CPLR 308 [2]). The defendant did not answer, and judgment by default was obtained against him.

He now moved to vacate the default judgment on the grounds that he had not received the summons and complaint in time to defend, and to dismiss the action for lack of jurisdiction. Supreme Court denied both branches of the motion.

The first question must be the jurisdictional one, since if there is no personal jurisdiction the judgment is void. The first step in deliver-and-mail service is delivery to a person of suitable age and discretion at the defendant’s actual place of business, dwelling place, or usual place of abode. The delivery in this case was made to the defendant’s ex-wife, at her residence in the Town of Blooming Grove, Orange County. The defendant had moved out long before the delivery, and claimed that he had moved his business from that address as well. However, the plaintiff showed proof that he advertised his business from that address, and had not changed the address with either the Postal Service or DMV. Delivery was therefore held to have been validly made, and jurisdiction properly upheld.

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Faison v Lewis, 25 N.Y.3d 220, 10 N.Y.S.3d 185 [2015]

            In a 4-3 decision, the Court of Appeals held here that claims challenging conveyances or encumbrances based on a forged deed are not subject to statutes of limitations.

            The claim here was that the interest of plaintiff’s decedent, her father Percy Lee Gogins, had been purportedly conveyed to his sister and niece, the defendants Dorothy and Tonya Lewis, by means of a forged deed, recorded in 2001. Plaintiff clearly knew of the claimed forgery as early as 2002, when she commenced an action to set aside the deed. That first action was dismissed for lack of capacity, since plaintiff was not at that time the administrator of Gogins’ estate. In 2009, the defendant Tonya Lewis over $269,000 from Bank of America, secured by a mortgage against the property. By August of 2010, plaintiff had been made administrator of Gogins’ estate, and commenced this action against Dorothy Lewis, Tonya Lewis, Bank of America and others, to declare both the deed and mortgage null and void as based on a forged deed. The defendants raised limitations defenses, and moved to dismiss. The plaintiff cross-moved to strike the defenses.

            A forged deed is void ab initio, that is, void in its inception, it is a legal nullity and conveys no interest at all in the property it purports to transfer. It follows that the holder of such a document has no interest in that property, and a mortgage granted to that holder also conveys no interest in the property. So much is settled law. (Marden v Dorthy, 160 N.Y. 39 [1899])

            The nullity of a forged deed must be distinguished from the status of a deed which was obtained by fraud. A deed obtained by fraud in the inducement is voidable and not void, and unless and until it is set aside it does transfer title to the fraudulent grantee, who may in turn convey an interest to a purchaser in good faith. (Marden v Dorthy, 160 N.Y. at 50)

            The majority in Faison held that the nullity of the void deed led to the conclusion that no limitations period applied. The forged deed being void, its “legal status cannot be changed, regardless of how long it may take for the forgery to be uncovered.”[3] Specifically, a forged deed cannot be regarded as simply a fraud, governed by CPLR 213 (8), even though that contains an extension for delayed discovery of the fraud. The Court analogized the situation of a forged deed with that of an illegal contract, also void in its inception, which carries no limitations period. (see, Riverside Syndicate, Inc. v. Munroe, 10 N.Y.3d 18 [2008]) The mere passage of time, or the expiration of a limitations period, cannot have the effect of validating what the law has expressly rejected.

            The dissent would have held that the discovery provisions of CPLR 213 (8) provide a sufficiently long period in which to discover and challenge a forged deed as well as a merely fraudulent one, and that the interests of protecting interests in property against stale claims mandated its applicability here.

Pegasus Aviation I, Inc. v Varig Logistica S.A., ___ NY3d ___, ___ NYS3d ___, 2015 NY Slip Op 09187 [2015]

The Court of Appeals here endorsed the holding of VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 A.D.3d 33, 939 N.Y.S.2d 321 [1st Dept., 2012], concerning imposition of sanctions for spoliation of evidence. Imposition of a sanction for spoliation requires proof of three elements: (1) control over the evidence and an obligation to preserve it; (2) that the party destroyed or lost the evidence with a “culpable state of mind”; and (3) that the evidence was relevant to the claim or defense.  “Culpable state of mind” includes ordinary negligence. Relevance is established where the evidence is lost intentionally or willfully, so as to amount to gross negligence; but where the loss is merely negligent relevance must be shown by the proponent of sanctions. Gross negligence, such as to support a finding of relevance, may be shown by serious failings such as not issuing a written litigation hold to employees, failing to identify “key players” and ensure that their documents are preserved, or continuing to delete emails. The distinction between simple and gross negligence thus becomes highly important.

Here, the dispute centered primarily on just that distinction: whether the defendant Varig Logistica (“VarigLog”) had failed to preserve electronically stored information (“ESI”) due to ordinary negligence or gross negligence.

VarigLog had failed to preserve emails, had not instituted any sort of litigation “hold” to ensure that materials were preserved, did not even have a centralized storage system for emails but stored them on the computers of individual employees, and that such as it did have on a central system had been lost in a series of computer crashes. Supreme Court held that the failure to establish a litigation hold established gross negligence, struck VarigLog’s answer, and imposed a trial sanction of an adverse inference upon certain other defendants. The Appellate Division was divided on the issue, but the majority rejected the finding that the failure to establish a litigation hold amounted to gross negligence per se, and reviewing the facts found only simple negligence. The majority held that the plaintiff had failed to show that the missing information was relevant, and struck the trial adverse inference sanction. The majority also noted its view that the adverse inference charge was so strong as to amount to summary judgment.

The Court of Appeals held that the record supported the Appellate Division conclusion of simple negligence. Rejecting the idea that the failure to institute a litigation hold, or some other factor, would lead to a per se finding of gross negligence, the Court agreed with the Appellate Division majority that all of the facts led to a determination of simple negligence. It did not, however, agree with the Appellate Division as to the sanction. It found that the majority had ignored the plaintiff’s arguments as to relevance. The Court remitted the matter to Supreme Court for further findings as to relevance.

There was a two-judge dissent, which would have found gross negligence. The dissent noted that the Court’s opinion fails to define “gross negligence,” and would have adopted the standard of the failure to exercise even slight care.

Lawrence v North Country Animal Control, 133 A.D.3d 932 [3rd Dept., 2015]

The question presented here is whether there is a path to relief from a conditional disclosure order where the direction to disclose is not objected to, but where the conditional penalty seems excessive. The answer from the Appellate Division is that there is no immediate avenue of relief. If the conditional order is not complied with, the penalty will become absolute, and the path to relief will be a motion to vacate the conditional order.

The plaintiffs here alleged that they had adopted a dog from the defendant animal shelter, that in doing so they relied on the defendants’ misrepresentations concerning the nature and history of the dog, that the dog had repeatedly attacked them, and that they had returned the dog to the defendants. The defendants had sent the dog to a rescue shelter in Pennsylvania. Plaintiffs wanted the dog produced for a behavioral examination, which would bear on the defendants’ knowledge of its vicious propensities. Supreme Court ordered the defendants to produce the dog, adding that if the dog were not produced, they would be precluded from offering evidence that they did not know that the dog was dangerous and vicious when they sold him to the plaintiffs, and any defense of lack of knowledge would be stricken from their answer. How the animal’s behavior, four years after the incidents complained of, would prove the what the defendants knew at the time, is not set forth in the opinion. Nevertheless, on appeal the defendants did not challenge the relevance of the examination, or challenge the direction to produce it. They limited their appeal to the severity of the conditional penalty.

Note the severity of the conditional sanction. The burden of proof on the issue of notice of vicious propensities at trial will be on the plaintiff. Striking any defense on this issue is tantamount to resolving the issue in the plaintiffs’ favor. In considering the appropriate penalty for what amounts to spoliation of evidence, the dispositive consideration is the extent to which the party demanding disclosure has been prejudiced. (Compare, Scordo v Costco Wholesale Corp., 77 AD3d 725 [2d Dept., 2010]; and Shayovich v 800 Ocean Parkway Apt. Corp., 77 AD3d 814 [2d Dept., 2010].) Can it really be said that the failure to produce the dog has prevented the plaintiffs from proving notice of vicious propensities? It certainly would seem that, should the defendants prove unable to retrieve the dog from the rescue shelter, they would have a legitimate argument that the sanctions in the conditional order are disproportionate to the prejudice caused.

The defendants’ appeal was limited to the sanctions in the conditional order. The Appellate Division held that the only avenue of redress will be a motion to vacate the order, supported by proof of a reasonable excuse for the failure to comply with the order and of a meritorious defense. Even if the excuse is insufficient, should the defendants be deprived of their opportunity to argue that the sanction is excessive? If the court below had determined that the failure to produce the dog was willful, and had decided to impose sanctions under CPLR 3126 absolutely instead of conditionally, the defendants would have been allowed to argue for a lesser sanction. Why should they lose that opportunity when the order imposing sanctions was conditional?

Phillip v D&D Carting Co., Inc., ___ AD3d ___, ___ NYS3d ___, 2015 NY Slip Op 09084 [2d Dept., 2015]


The Second Department reminds the bench that the mere fact of a rear-end collision does not automatically result in summary judgment, not even into a stopped vehicle and not even for a passenger in the stopped vehicle. Also, that CPLR 3212 (g) allows the court, even when denying summary judgment, to ascertain from the papers before it “what facts are not in dispute or are incontrovertible”, and in this way limit the issues at trial.

The stopped vehicle here was a passenger van, discharging passengers at a Brooklyn intersection. The rear of the van protruded into the traffic lane. The plaintiff was a passenger, belted into a seat in the last row. The rear-ending vehicle was a garbage truck. The plaintiff moved for summary judgment prior to depositions, against the owner and the driver of the truck. Plaintiff’s motion offered as proof the fact that she operated neither vehicle, was a passenger in the stopped vehicle, and so could not herself be at fault. The truck driver submitted an affidavit, in which he explained that he applied his brakes, but that the truck skidded on oil on the pavement. Supreme Court granted the plaintiff summary judgment, but the Appellate Division reversed.

Certainly, it is the rule that a rear-end collision into a stopped vehicle is enough to create an inference of negligence, and places the burden on the driver of the rear-ending vehicle to rebut the inference with a non-negligent explanation. The plaintiff must also establish his freedom from contributory negligence.

The plaintiff thus established her prima facie case on her motion, but the truck driver’s affidavit showed a non-negligent explanation, which was sufficiently detailed given the pre-deposition posture of the action. There was a triable issue of fact precluding summary judgment.

No party claimed that the plaintiff was contributorily negligent, since she was seat-belted in the last row of the van. Therefore, it was appropriate under CPLR 3212 (g) for the court to order that she was free from contributory negligence in the happening of the accident.

Haber v Raso,

130 AD3d 781 [2d Dept., 2015]

CPLR 3217(a) allows a brief window for a plaintiff to withdraw, or voluntarily discontinue, an action, without requiring either a stipulation of any appearing parties or leave of court. Plaintiff needs to serve a notice of discontinuance on all parties before a responsive pleading is served or within twenty days of the service of the complaint. (Again, this actually applies to any party asserting a claim.) The notice of discontinuance is then filed with the clerk.

Where the plaintiff voluntarily discontinues the action by mere notice, 3217 (c) states that the discontinuance is without prejudice, and the plaintiff is free to commence another action when and where he chooses. The only catch is that the plaintiff cannot play this game forever. If the claim has already been interposed and discontinued, by any method, in any state or federal court, a subsequent discontinuance by notice “operates as an adjudication on the merits”.

That seems categorical. Is it really?

In today’s case, plaintiff sued in Supreme Court for rent arrears and damage to real property. The problem was that the plaintiff had sued on the same claim twice before, in Civil Court and in Supreme, and voluntarily discontinued both actions. The second discontinuance, at least, was accomplished by serving and filing a notice of discontinuance.

Defendants moved to dismiss, arguing that the second discontinuance was an adjudication on the merits, and that this third action was barred by res judicata. Supreme Court denied the motion, but the Appellate Division reversed and dismissed. The court noted that “[u]nder the circumstances of this case, where there was no legitimate purpose for discontinuing the second action” the discontinuance operated as an adjudication on the merits. [emphasis supplied]

That phrase raises the question of whether there can be circumstances where a discontinuance by notice is not an adjudication on the merits, despite the categorical language of CPLR 3217 (c). The answer is “yes,” where the discontinuance is for some good cause and not for harassment by means of successive lawsuits.

In Tortorello v Carlin, 162 AD2d 291 [1st Dept., 1990], cited in Haber, plaintiff sued for legal malpractice, twice, and each suit had been discontinued. The underlying dispute was over legal fees. Defendants had represented plaintiff in a matrimonial action, and had been relieved as counsel and awarded a charging lien by the matrimonial court. A hearing had been ordered, in the matrimonial action, to fix the amount of the lien. Plaintiff then sued claiming legal malpractice. The action was discontinued by agreement, since defendants didn’t want to notify their malpractice carrier, and the parties expected to resolve the dispute by negotiation. When no agreement was reached, plaintiff sued a second time. Plaintiff then defaulted on the lien hearing, and judgment was entered in favor of the defendants.

Plaintiff filed a stipulation of discontinuance of the second action, but the only signature on it was that of plaintiff’s counsel.

Plaintiff now sued for malpractice, a third time, and defendants moved to dismiss on the basis of the two earlier discontinuances. Plaintiff’s first argument was that the second discontinuance was by stipulation, not mere notice, making CPLR 3217 (c) inapplicable. A stipulation requires the signature of all parties, however, and so the purported stipulation, served on all parties and filed with the clerk, was held to be a notice of discontinuance. It was not deemed an adjudication on the merits, however, since it was done not for purposes of harassment but for the legitimate purpose of conserving the plaintiff’s resources and achieving an agreement by negotiation.

Note also, by the way, that the discontinuance of a second action by notice is only an adjudication on the merits where the first action was ended by some form of discontinuance. If the first action was ended in some other manner, 3217 (c) does not apply. Where, for example, the first action was not discontinued, but dismissed as abandoned, there is no predicate for deeming the discontinuance by notice of a second action an adjudication on the merits and a third action is not barred (Rodrigues v. Samaras, 117 A.D.3d 1022 [2d Dept., 2014]).

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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