Litigation

Failure to Confirm Judgment Leads to Defense Victory (NY)

When a plaintiff obtains a default judgment against a defendant, sometimes the fight is far from over. While the discretion ultimately remains with the court, a default judgment may be vacated against a defendant, or an inquest will be held if the motion to vacate is denied. However, even after an inquest is held and damages are determined, a plaintiff must submit a notice of settlement and proposed judgment within 60 days or else it will be void. 22 NYCRR 202.48(a) For example, in Cruz v. Pierce, 2022 NY Slip Op 07054 (2^nd Dep’t December 14, 2022) the plaintiff was injured while performing work at real property that was owned by the defendant. After being served with the summons and complaint, the defendant failed to answer. Plaintiff subsequently moved for leave to enter a default judgment. The Court not only granted the motion but directed an inquest for damages. At the close of the inquest, Plaintiff was entitled to recovering $274,541.54. The Court directed the plaintiff to settle judgment on notice. Thereafter, the plaintiff failed to submit a notice of settlement and proposed judgment until nearly 2 years after the order. Accordingly, the defendant moved to vacate the decision made after the inquest based upon the plaintiff’s failure to submit the notice of settlement and proposed judgment within 60 days as the Court directed them to. Accordingly, the Second Department granted the Defendant’s motion on the grounds that the plaintiff failed to timely settle the judgment pursuant to 22 NYCRR 202.48(a) and on plaintiff’s failure to show good cause for his lengthy delay in submitting the notice. This case shows that the procedural rules must always be followed – or not, at your own peril. Thanks to Lauren Howard for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

A Motion to Amend the Complaint in NY Leads to Dismissal of Action

When a plaintiff seeks to recover damages for personal injuries from the defendants and thereafter, moves for leave to amend the complaint, the Court must not only consider the motion for leave to amend but must also consider any defendant’s motion for dismissal. For example, in Langley v. Melville Fire Dist., 2023 NY Slip Op 00656 (2d Dep’t February 8, 2023), the plaintiff was standing in a roadway in Melville when he was struck by a tree limb that fell from a tree adjacent to the roadway. Plaintiff subsequently commenced a lawsuit against the defendants, Melville Fire District and Melville Fire Department to recover damages for personal injuries. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. Subsequently, the plaintiff cross-moved pursuant to CPLR 3025(b) for leave to amend the complaint. In opposition, the defendants’ argued the amended complaint should be dismissed because the evidentiary submissions demonstrated there was no cause of action for plaintiff to recover. The lower court held that the defendants’ motion should be denied, but the second department recently reversed this decision. The Second Department reasoned “[w]here a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed.” Accordingly, the Second Department held that the amended complaint was predicated on a special relationship existing between the plaintiff and Fire Department and the evidentiary proof established there was no special relationship wherein defendants had no duty to maintain or prune the tree because it was not on their land. As such, the Supreme Court should have granted the defendants’ motion to dismiss. Thanks to Lauren Howard for her contribution to this article.  Should you have any question, contact Matthew Care.Read More

Eyewitness Accounts Of A Rear-End Motor Vehicle Accident Ignored In Summary Judgment Motion (NY)

Recent case law regarding rear-end motor vehicle collisions highly favors the front most car.  It is increasingly difficult to dispute liability and defense counsel are typically left mitigating damages. This has been re-affirmed by a recent Second Department decision,  An v. Abbate, 2023 NY Slip Op 00977, where the lower court’s decision was overturned and summary judgment was granted in favor of plaintiff. While, it comes to no surprise to some that plaintiff was awarded summary judgment on the issue of liability, what is surprising is what plaintiff was able to overcome in obtaining judgment in their favor. The accident occurred on Roosevelt Avenue near 154^th Street in Queens. It appeared to be standard rear-end collision, plaintiff claimed to be fully stopped, and defendant’s vehicle came into contact with the rear bumper. However, Defendant Abbate was able to obtain an affidavit of an eyewitness who swore that while defendant was driving forward, he witnessed plaintiff’s vehicle go in reverse and back up before the two vehicles made contact.  Despite this eyewitness affidavit, the Second Department overturned the lower court’s grant of summary judgment to defendant on the issue of liability and specifically stated that the eyewitness account “that the plaintiff’s vehicle was backing up at the same time was insufficient to raise a triable issue of fact because that statement related only to the plaintiff’s comparative fault.” (An v. Abbate, 2023 NY Slip Op 00977 citing Rodriguez v City of New York, 31 NY3d at 323-324; Whitehead v David Rosen Bakery Supplies, Inc., 208 AD3d 533). Thus, courts are bending over backward to permit plaintiffs get their cases to a jury, and even ignore eyewitness accounts. Thanks to Christopher Palmieri for his assistance with this post.  Should you have any questions, please contact Tom Bracken.Read More

Plaintiff’s Lack Of Diligence Merits Dismissal In PA

The Superior Court of Pennsylvania recently issued an opinion in which the court laid out the burden that a plaintiff must satisfy when she files a writ of summons to commence a lawsuit. In Senyk v. Ukrainian Catholic Archeparchy of Philadelphia, 2023 WL 127520 (Pa. Super. Jan. 9, 2023), the plaintiff was injured when she slipped and fell while visiting a cemetery in Philadelphia. She thereafter retained counsel and, four days before the expiration of the two-year statute of limitations, she filed a praecipe for a writ of summons to commence a lawsuit against the church organization that operates the cemetery. The plaintiff, however, made no formal attempt to effectuate service on the defendant church organization. Instead, her counsel communicated directly with a claims specialist employed by the organization’s third-party insurance administrator both before and after the filing of the writ of summons. Importantly, in the days between the filing of the writ and the expiration of the statute of limitations, counsel for the plaintiff exchanged emails with the third-party administrator concerning the plaintiff’s accident but did not mention the filing of the writ of summons. Approximately six months after the writ of summons was file and the statute of limitations expired, the plaintiff filed her complaint. The church organization filed preliminary objections in the nature of a demurrer asserting that the plaintiff failed to comply with the rule set forth in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), in which the Supreme Court of Pennsylvania held that a writ of summons is effective to commence a lawsuit only if the plaintiff thereafter “refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” The Superior Court held that the plaintiff did not make a “good-faith effort to effectuate notice of commencement of the action” within the thirty-day window following the writ of summons. The key holding of the case is that generally, in Pennsylvania, communication between a plaintiff and a defendant’s insurance carrier does not qualify as a good faith attempt at service under Lamp. In Pennsylvania, “the plaintiff is always required to undertake diligent efforts to effectuate notice under Lamp.” Where, as in Senyk, the plaintiff does not comply with their obligations to make a good-faith attempt and undertake diligent efforts, the court will grant preliminary objections in the nature of a demurrer in favor of the defendant. Thanks to Jason Laicha for his contribution to this article.  Should you have any questions, contact Matthew Care.Read More

Communications Decency Act Protects TikTok from Wrongful Death Suit (PA)

The Eastern District of Pennsylvania recently held that social media platform TikTok, Inc. and ByteDance, Inc.(a technology company) are immune from a mother’s wrongful death claim under the Communications Decency Act. Tawainna Anderson, the mother of a deceased 10-year-old Nylah Anderson, sued TikTok after her daughter died when she attempted to perform a viral TikTok challenge known as the “Blackout Challenge,” which encourages children to choke themselves until passing out. In her Complaint, Anderson alleged that the challenge was thrust in front of her daughter on her daughter’s TikTok “For You” Page as a result of TikTok’s algorithm. Plaintiff’s mother alleged that while the companies are not liable as publishers, they are as organizations responsible for their own independent conduct as the designers, programmers, manufacturers, sellers, and/or distributors of their dangerously defective social media products and their own independent acts of negligence. Plaintiff argued her claim fell outside of the potential protections afforded by Section 230(c) of the Communications Decency Act. Additionally, Plaintiff brought a strict liability claim against the Defendants for failure to warn. Regardless of Plaintiff’s allegations, the Court held that Congress precluded interactive service providers from being treated as the publisher of third-party content and thus immunized the providers from “decisions relating to the monitoring, screening, and deletion of content.” The Court reiterated that algorithms are not content in themselves and that Defendant simply published content. Thus, TikTok and ByteDance are shielded from liability under Section 230. Thanks to Jean Scanlan for her assistance in this post. Should you have any questions, please contact Tom Bracken.Read More

Don’t Drag Your Feet And Assume That NY Courts Will Grant Extensions Of Time

When requesting an extension of time, clients and attorneys must be cautious in assuming that New York courts will unilaterally grant their requests simply because they think they deserve one. In LaSalle Bank, NA v. Ferrari, the plaintiff filed a mortgage foreclosure action against the defendant in August 2008. In late 2014, plaintiff moved for an order of reference and defendant cross moved to dismiss the complaint. Two years later, the Supreme Court held the motions in abeyance pending the outcome of a hearing to determine the validity of service of process on the defendant. On the date of the scheduled hearing, plaintiff informed the court that it needed an extension because their original process server had died, and plaintiff’s counsel was unable to discover additional information and that was admissible. The request was granted, and the hearing adjourned until the following month. After a series of administrative delays, the Supreme Court ultimately denied plaintiff’s motion for an extension of time to serve the defendant. The Second Department affirmed, recognizing that a court may extend the time for service “upon good cause” or “in the interest of justice.” The court found that plaintiff failed to establish good cause because even though the original process server had passed away, the plaintiff could have produced the server’s logbook or other similar evidence to rebut the defendant’s assertions that process was served on a different person with a similar name as the defendant. The Court also found that plaintiff failed to satisfy the “in the interest of justice” standard. To prevail on this standard, the plaintiff would not need to show reasonably diligent efforts in order to be granted the extension as long as the defendant would not be prejudiced. However, the Court found that plaintiff knew in late 2014 that service might be defective but waited until the hearing date in November 2016 to ask for an extension. The Ferrari decision serves as a reminder that extension requests should be made in a timely manner and that parties should not wait until the minute or risk losing their rights. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions.Read More

PA Appeals Court Holds that Statute of Repose Cannot be Tolled by Repairs

In Venema v. Moser Builders, the Superior Court of Pennsylvania (“Superior Court”) upheld the trial court’s decision to dismiss the plaintiff’s complaint with prejudice. The Superior Court affirmed the plaintiff’s claims were time-barred by the 12-year Statute of Repose for actions concerning construction defects. The subject premises in this case is located in Chester Springs, Pennsylvania and was constructed by Moser Builders (“Moser”) in 2003. A certificate of occupancy was issued for the residence on August 13, 2003. The residence was than purchased by the Plaintiffs’ Matthew Venema and Liza Squires (collectively “Plaintiffs”) in October 2004. Plaintiffs did not commence their suit against Moser until August 26, 2019. After Plaintiffs filed their complaint, Moser filed an answer contending Plaintiffs’ claims were barred by the Statute of Repose because over 12 years at passed since the date construction was completed and Plaintiffs’ complaint was filed. Moser filed a motion for judgment on the pleadings seeking a dismissal of all remaining counts in Plaintiffs’ complaint. Plaintiffs responded stating Moser had regularly made repairs to the home from 2004 until 2008 thus delaying the Statute of Repose. Moser replied arguing that the date the certificate of occupancy was granted is the date of completion for Statute of Repose purposes. The Superior Court reviewed the trial court’s decision to determine if the ruling was based on a clear error of law. “A defendant in a construction defect case has the burden of proving that the Statute of Repose precludes liability.” In order to bar a plaintiff’s claim three elements must be met: “(1) what is supplied [by defendant] is an improvement to real property; (2) more that twelve years have elapsed between the completion of the improvements to the real estate and the injury; and (3) the activity of the moving party must be within the class which is protected by the statute.” In this appeal, the only element at issue was the second element. Specifically, whether the clock started tolling upon the issuance of the CO or upon completion of repairs. The Superior Court affirmed the trial court’s ruling that the Plaintiffs’ claims are time barred stating a residence is unusable until a certificate of occupancy is granted. “The issuance of the certificate hinges on a satisfactory ‘final inspection’ showing that construction of the residence comports with the governing building codes.” Plaintiffs did not cite any statute or case supporting the idea that Moser’s repairs to the building delay the completion of the residence’s construction and toll the Statute of Repose. Rather, as the Supreme Court previously held that the Statute of Repose “generally may not be tolled, even in cases of extraordinary circumstances beyond a plaintiff’s control.”  Therefore, the beginning of the tolling period was 2003 after the certificate of occupancy was granted and the trial court did not err in their decision. Thanks to Erin Russell for her contribution to this article.  Should you have questions, contact Matthew Care.Read More

A Tale Of Two Transit Authorities: Relation Back Doctrine Found Not to Apply Where Defendants Were Not United In Interest

In New York, a claim asserted against a new defendant will “relate back” to the date of the original claim if plaintiff establishes that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that the new defendant will not be prejudiced in maintaining its defense on the merits by the delayed claim; and (3) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the new defendant as well. See CPLR 203(b). The Appellate Division, Second Department recently addressed the “relation back” doctrine in Chandler v. New York City Transit Authority. In that case, plaintiff was allegedly injured after a city bus driver closed the door on plaintiff’s hand and began to drive away. Plaintiff commenced an action only against the New York City Transit Authority, an improper party. After the statute of limitations expired, plaintiff moved for leave to amend the action to include Metropolitan Transit Authority Bus Company, the proper entity. The Supreme Court denied the motion, finding that the claims against the newer defendant did not relate back to the initial pleading. The Second Department affirmed, holding that while both claims arose out of the same conduct, transaction, or occurrence, plaintiff failed to establish that the Transit Authority defendants were united in interest. To do so, it must be shown that the defendants “stand or fall together and that judgment against one will similarly affect the other.” In a negligence action, to be united in interest further means that “the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other.” Since plaintiff could not make such a showing, the court affirmed the denial of plaintiff’s motion to name the Metropolitan Transit Authority Bus Company as a defendant. The takeaway from Chandler is that New York has specific requirements for claims asserted against newer defendants after the expiration of the statute of limitations to “relate back” to claims made in the initial complaint. Claims not meeting these requirements are subject to challenge and dismissal. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions.Read More

Can A Verdict Render An Appeal Moot? (NY)

In a noteworthy decision, the Court of Appeals recently held that where a triable issue of fact is litigated and a final verdict reached, that issue of fact is rendered moot on pending appeal.  Meaning, if 1) a party moves for summary judgment on liability, 2) that motion is denied, 3) the movant appeals that decision, and 4) a trial verdict decides liability before the appeal is heard, that verdict becomes the law of the case, and the appeal is rendered moot.  This is a big deal. The recent decision of Bonczar v. American MultiCinema Inc., 38 N.Y.3d 1023, 1025, 188 N.E.3d 1000, reargument denied, 38 N.Y.3d 1170, 195 N.E.3d 526 (2022), presented a plaintiff who sought damages against the defendant for violating Labor Law §240(1) and moved for partial summary judgment on that claim. While the lower court granted plaintiff’s summary judgment motion, the Appellate Division reversed finding issues of fact as to whether a statutory violation occurred.  Subsequently, plaintiff’s Labor Law §240(1) was brought before a jury. At the conclusion, the jury held in favor of the defendant finding that plaintiff’s acts were in fact the sole proximate cause of his injury. The Appellate Division affirmed the jury’s verdict on appeal. Thereafter, plaintiff brought both the order denying his partial summary judgment motion and the order affirming the jury’s verdict before the Court of Appeals. The Court of Appeals held that pursuant to CPLR 5501(a) the denial of plaintiff’s summary judgment motion may be reviewed on appeal only if the nonfinal order necessarily affects the final judgment. In a matter of first impression, the court explained that to determine whether a nonfinal order necessarily affects the final judgment, the question is: “whether the nonfinal order necessarily removes a legal issue from the case so that there is no further opportunity during the litigation to raise the question decided by the prior non-final order.” The court explained that here, when the Appellate Division reversed the plaintiff’s motion for summary judgment, finding issues of fact, that nonfinal order did not remove any issues from the case; rather, it was left undecided. Instead, the parties had the opportunity to litigate those issues at trial, and in fact did so.   Therefore, the Court of Appeals held that the Appellate Division’s order denying plaintiff summary judgment did not necessarily affect the final judgment and thus, the Court of Appeals could not review it now on appeal. The decision is a big deal, because if a trial takes places while a summary judgment appeal is still pending — which can happen — the verdict trumps the appeal, and therefore.  Bonczar significantly reduces the leverage held by the appealing party in the scenario described above.    To that end, we recently attended a CAMP Conference at the 2nd Department, and the presiding judge was pressing the importance of Bonczar, to further incentivize settlement to all parties. Thanks to Gabi Scarmato for her contribution to this post.  For any questions about Bonczar, or how we expect it will be applied in the future, please contact Brian Gibbons.  Read More

A Lift Is Not A Safety Device In NY Labor Law

In Carlson v. Tappan Zee Constructions, LLC., et al. Index No. 58719/2019, the Hon. Damaris E. Torrent denied a plaintiff’s motion for summary judgment on the issue of liability under Labor Law §240(1). Plaintiff was working on an aerial boom lift attached to a barge when the wakes of two passing boats had caused the barge to rock. As a result, the lift platform swung and crashed into a concrete tower, causing plaintiff to be tossed about inside the basket on top of the lift. It was undisputed that plaintiff did not fall and that no object fell. Plaintiff argued that the subject lift was a safety device within the meaning of Labor Law § 240(1), which required the lift to be constructed, placed, and operated to provide proper protection, and the lift failed to meet this standard. He further agued the fact he did not fell, or nothing fell on him was immaterial to establish a § 240(1) claim; his injuries were a direct result of the application of the force of gravity. In opposition, defendants argued that plaintiff’s accident was not the type contemplated by the statute, and the statute was not intended to address every injury which occurs while a worker is working at a height. While the Court acknowledged it has been held a fall is not required under § 240(1), the Court still denied plaintiff’s motion for summary judgment, finding that plaintiff at all times remained secured inside the basket and there was no contention the lift failed to operate as intended. Additionally, plaintiff failed to establish that large boats speeding was a foreseeability risk inherent in the work he was performing at the time of the accident. This case demonstrates that a hazard unrelated to the elevation risk is not sufficient to bring a § 240(1) claim. Thanks to Gina Rodriguez for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More