Litigation

Reasonable Excuse And Meritorious Defense Lead To Vacation Of Default Judgment (NY)

When a plaintiff obtains a default judgment against a defendant in New York, the fight does not end there. While the discretion ultimately remains with the court, a default judgment may be vacated when the defendant can establish a reasonable excuse along with a meritorious defense, pursuant to CPLR §5015(a)(1). In Damsky v. Williams, the Appellate Division, Second Department, recently addressed these issues in a case involving an altercation between the plaintiff and defendant, who was a Metropolitan Transit Authority operator. The defendant was operating a train and pulled into the last stop informing all passengers to exit. Plaintiff refused to leave, resulting in an altercation in which defendant struck the plaintiff. Plaintiff filed a lawsuit against the defendant and a preliminary conference was scheduled. Defense counsel failed to appear at the conference, and plaintiff was awarded a default judgment against the defendant. Defense counsel was out of the country on business when he received notice of the default judgment. Counsel subsequently filed a motion to vacate the default pursuant to CPLR §5015(a)(1), explaining that he did not receive proper notice of the preliminary conference because notice was not e-filed per court rules and the notices were sent to his former law office. Defense counsel also demonstrated that the defendant acted in self-defense since the plaintiff verbally and physically attacked him. The lower court granted the motion, vacating the judgment, and plaintiff appealed. The Second Department affirmed, finding that that the trial court properly exercised its discretion in determining that the defendant demonstrated a reasonable excuse for his default in appearing at the conference and that the defendant demonstrated a meritorious defense. Accordingly, the court upheld the vacation of the default judgment. The Damsky case provides both a reminder regarding the grounds needed to vacate a default judgment against a defendant and a warning for parties and counsel to avoid missing court conferences. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions.Read More

New York Appellate Court Emphasizes The Importance Of Timely Settlement Payments

In New York, when an action to recover damages is settled, the settling defendant has twenty-one (21) days after tender of the required documents to pay all sums to the settling plaintiff. CPLR 5003-a. If the settling defendant fails to do so, then the plaintiff is authorized to enter a judgement “for the amount set forth in the release, together with costs and lawful disbursements, and interests,” without further notice to the defendant. CPLR 5003-e. The Appellate Division, Second Department addressed these rules in the recent case of Levine v. American Multi-Cinema, Inc. In that case, plaintiff tripped and fell on property owned by the defendant and the case was settled for $25,000. Two weeks after settling, counsel for defendant informed the Supreme Court that the parties had settled, and a stipulation of discontinuance would soon be filed. Prior to doing so, defense counsel sent plaintiff’s attorney a draft release. The plaintiff’s attorney subsequently returned an executed copy of the release and, citing CPLR 5003-a, requested that defendant send the settlement check within twenty-one (21) days. Twenty-six (26) days later, defense counsel informed plaintiff’s attorney that they would only disburse the settlement proceeds after a Medicare lien had been paid, and a lien payoff letter issued. The insurer then paid the lien in the amount of $1,716.18. Plaintiff moved for leave to enter a judgment with interest, pursuant to CPLR 5003-a. As this motion was pending, a Clerk’s judgment was entered against the defendant for $25,000, plus costs, disbursements, and interest. Defendant subsequently paid the settlement check, minus the lien payment, which was rejected by plaintiff’s counsel. Defendant then cross-moved to vacate the clerk’s judgment and the Supreme Court granted the motion. The Second Department reversed, holding that plaintiff had fulfilled the obligations set forth in CPLR 5003-a when she tendered a duly executed general release and stipulation of discontinuance to defendant’s counsel. Contrary to defendant’s argument, nothing in their general release obligated the plaintiff to provide lien information or a payoff letter as a condition precedent to payment, so the Supreme Court’s decision was incorrect. The Levine case highlights the importance of complying with CPLR 5003 when paying personal injury settlements in New York. The failure to do so can subject defendants and their insurers with additional exposure in the form of costs and interest. The case also highlights the importance of addressing Medicare issues before settlement and the need to include appropriate language in releases if lien or payoff information is required. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions.Read More

Forum Shopping Comes Up Empty (PA)

In a recent ruling from the Superior Court of PA, Kendall v. Ford Motor Company, the Court affirmed a lower Court granting defendant’s motion to transfer based on forum non conveniens. The complaint concerned a traffic accident that occurred in Bucks County, yet plaintiff’s counsel filed the complaint in Philadelphia County, a plaintiff friendly trial pool. The court held that because the accident, the defendant, and all witnesses resided in Bucks County Philadelphia was improper venue affirming the lower Court’s order. Plaintiff’s counsel brought the case in Philadelphia County hoping to gain the benefit of Philadelphia’s jury pool. The plaintiff argued for jurisdiction on manufacturers and retail sellers of the plaintiff’s car from Philadelphia, bringing claims of strict liability, negligence, and breach of warranty.  Defense moved to transfer the venue to Bucks County using three compelling arguments. First, Bucks County provided access to witnesses. Second, the plaintiff was a resident a Montgomery County and worked in Bucks County.  All defendants were residents of Bucks County. Third, the accident occurred in Bucks County and was investigated by local police. The defendants further bolstered their argument using affidavits of witness hardship.  Based on all of the above the Court affirmed the lower Court’s ruling that the Bucks County was the proper venue for the claim, and for this case at least, the Court shut down an ambitious plaintiff. Thanks to Kevin Riley for his assistance with this post.  Should you have any questions, please feel free to contact Tom Bracken.Read More

Summary Judgment Without Deposition discovery Permitted In NY Labor Law Case

Courts often deny early summary judgment motions on the basis that they are premature pending completion of discovery on the issues in dispute. In Lapota v. PPC Commercial, LLC, the Appellate Division, First Department took a different approach in examining a trial court’s decision to deny plaintiff’s early motion for summary judgment as to his Labor Law §240 (1) claim against the defendant. The Court based its determination on affidavits of the plaintiff and his co-worker which stated that plaintiff’s accident occurred when an unstable ladder he was using, which was missing rubber feet, shifted and caused plaintiff to fall. The work performed by the plaintiff was covered under Labor Law section 240 (1). In reversing the lower court’s decision, the First Department rejected defendant’s argument that plaintiff’s motion was premature since depositions had not been taken. The Court reasoned that though depositions were not taken, summary judgment was not precluded since the defendant failed to show that discovery might lead to facts that would support its opposition to the motion and that facts essential to its opposition were exclusively within the knowledge of the plaintiff. The Court did not agree with defendant’s argument that plaintiff’s deposition testimony might further illuminate issues raised by the affidavits. The Court reasoned that mere hope that evidence sufficient to defeat summary judgment may be uncovered during discovery was insufficient to defeat summary judgment. This case serves as a reminder of the vulnerability of defendants under the Labor Law and the importance of conducting prompt discovery in Labor Law cases where the possibility of early motion practice exists. Please contact John Diffley with any questions.Read More

Minority Tolling Under N.J.S.A. 2A:14-2(a) Does Not Apply To New Jersey Wrongful Death Claims

In Monk v. Kennedy University Hospital, Inc., the New Jersey Appellate Division recently addressed whether the minority tolling provision in N.J.S.A. 2A:14-2(a), which allows minors to file medical malpractice claims until the age of 13, applies to wrongful death lawsuits filed on behalf of minor decedents or their estates. In that case, the parents of a deceased minor who died six months after his premature birth sued several defendants for medical malpractice and wrongful death.

The lawsuit was filed more than 4 years after the minor’s death and defendants moved for summary judgment, arguing that the plaintiffs’ claims were barred by the two-year statute of limitations for wrongful death and survival claims. Relying on the minority tolling provision in N.J.S.A. 2A:14-2(a), the trial court denied the motion and found that the statute of limitations was tolled until the minor would have reached the age of 13.

The Appellate Division reversed, holding that the minority tolling provision did not apply under the Wrongful Death Act, N.J.S.A. 2A:31-4. The court noted that when the Wrongful Death Act was drafted, the legislature intended for wrongful death cases be filed within two years of a decedent’s death and not to include minority tolling for claims brought on behalf of deceased minors. The court held that the minority tolling provision did not apply because the statute allows only actions “by or on behalf of a minor” and a “minor” refers to a living infant or person under the age of legal competence. The Court reasoned that had the Wrongful Death Act intended to apply minority tolling to claims brought on behalf of deceased minors, it would have stated so, and there was nothing in the plain language of the statute to suggest that. The court further observed that the purpose of the minority tolling was to give a minor the opportunity to assert his or her legal rights at an age of maturity. However, this opportunity does not exist once a minor dies.

Because the minor in the case was deceased when the complaint was filed, the Court found that the two-year statute of limitations applied. However, the court also remanded the case back to the trial court to address the plaintiffs’ argument that they had substantially complied with the statute of limitations, an issue that had not been reached by the trial court.

The Monk decision makes clear that wrongful death claims involving minors must be filed within the two-year statute of limitations and that the minority tolling provision for medical malpractice does not apply to such claims.

Thank you to Arianna Arca for her contribution to this post. Please contact Andrew Gibbs with any questions.

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Federal Court Cracks Down On Discovery Orders (PA)

In a recent ruling from the Eastern District of PA, In re Zostavax, the Court granted the defendant’s motion to dismiss the plaintiff’s complaint for failure to comply with discovery deadlines. The complaint was part of a multidistrict litigation (“MDL”), related to a products liability claim to vaccine from defendant Merck. MDL litigation requires basic initial information necessary to move the case forward. This information is similar to initial disclosures in any federal court case. The plaintiff failed to provide the initial information or provide any required discovery on time.

The plaintiff failed to timely provide a PFS pursuant to Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure. Further the plaintiff failed to comply with a court order to provide the required discovery after missing various deadlines. As a result, the defendant moved to dismiss the case under, Rule 41 (b), that provides “If the plaintiff fails to … comply with … a court order, a defendant may move to dismiss the action.” A court considers the following factors when ruling on a motion to dismiss the action for failure to provide discovery; (1) the extent of the party’s personal responsibility; (2) prejudice to the adversary; (3) a history of dilatoriness; (4) whether the conduct of the party was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984).

The court concluded based on plaintiff’s various violations concerning deadlines dismissal was appropriate and dismissed the case. It is the plaintiff’s responsibly to prove their case and failure to provide information to allow the defendant to evaluate the case prejudices the defense.

Thanks to Kevin Riley for his contribution to this post.  Should you have any questions, please contact Tom Bracken.

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Open And Obvious Danger Leaves Plaintiff In the Pit (NY)

In Lebron v. City of New York, NY Slip Op 04960 (2^nd Dept. 2022), a claim was filed by plaintiff when he fell into an inspection pit for vehicles at the garage facility operated by the New York City Taxi & Limousine Commission. Defendants moved for summary judgment arguing that the condition was an open and obvious defect and it did not require any duty by the property owner to warn the public. “There is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous” (Rosenman v Siwiec, 196 A.D.3d 523, 524 [internal quotation marks omitted]; see Cerrato v Jacobs, 173 A.D.3d 1134, 1135; Schiavone v Bayside Fuel Oil Depot Corp., 94 A.D.3d 970, 971; Rivas-Chirino v. Wildlife Conservation Socy., 64 A.D.3d 556, 557), or “where the condition on the property is inherent or incidental to the nature of the property, and could be reasonably anticipated by those using it” (Cerrato v Jacobs, 173 AD3d at 1135; see, Torres v State of New York, 18 AD3d 739).

The City however argued that an inspection pit in a taxi facility would be considered an inherent part of the nature of the property. Although the trial court judge rejected defendants’ argument, the Second Department overturned and granted summary judgment dismissal to the City. The judge’s panel felt that the inspection pit was an open and obvious condition that was not inherently dangerous because of the nature of the facility, and plaintiff’s expert affidavit in opposition failed to specify any violation of an applicable statute or relevant industry standard showing the City’s negligence. The takeaway from this case is that the open and obvious standard is fluid and applicable on a case-by-case basis. Under any other circumstances, a large hole in the ground without any perimeter guard or fence would be considered dangerous, except in a taxi garage setting where one would expect to find it.

Thanks to Ray Gonzalez for his assistance with this post.  Should you have any questions, please contact Tom Bracken.

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Pennsylvania Landowners Also Have a Duty to Protect Invitees from Intentional Harm

In Massaro v. McDonalds Corporation, the Pennsylvania Superior Court found that landowners had an affirmative duty to protect invitees from intentional harmful acts of third parties. On September 21, 2018, the plaintiff, Thomas Massaro, went to a McDonald’s restaurant in Philadelphia to tutor a student. While tutoring the student, a man named Bryant Gordon entered the store and began berating Massaro with racial slurs and hateful remarks. The beratement went on for an hour while McDonald’s staff watched. Massaro repeatedly asked McDonald’s staff to intervene or call 911; however, they did nothing. Bryant physically threatened Massaro and the student and said that he would harm them. Massaro fell during the assault and suffered injuries to his skull. Massaro filed suit against McDonald’s, alleging it was negligent by failing to prevent the attack. In response, McDonald’s filed preliminary objections to the complaint in the nature of a demurrer. Specifically, McDonald’s asserted that the complaint had no legal basis as McDonald’s did not owe a duty to Massaro because (1) Massaro assumed the risk of an attack by remaining in the McDonald’s; and (2) McDonald’s did not have a duty to prevent Massaro from intentional harm. The trial court granted McDonald’s preliminary objections, but Massaro appealed. The Pennsylvania Superior Court reversed reasoning that a landowner has an affirmative duty to protect invitees not only against known dangers, but also against dangers that might be discovered with reasonable care. In Massaro’s case, it was clear that the danger presented to him was clear to McDonald’s employees. Further, Massaro did not assume the risk of an attack. There were no facts indicating that before he went to the McDonald’s he had information that the attacker would be there. Further, it was apparent on the complaint’s face that Massaro feared further harm if he left and the Court thus took issue with the business’ failure to prevent the harm. Thanks to John Lang for his contribution to this article.  Should you have any questions, please contact Tom Bracken.Read More

Court Finds Defendants Did Not Exacerbate Hazard Though Engaged In Snow Removal During Storm

In Keeney v. Hempstead Turnpike, LLC, et al., the plaintiff appealed from an order granting summary judgment to defendant/second third-party plaintiff, Stop and Shop Supermarket Company, LLC (“Stop & Shop”), to defendant/third-party plaintiff, Hempstead Turnpike, LLC (“Hempstead Turnpike”), the second third-party defendant, S & S Levittown, LLC (“S & S”), and, on a separate motion, granted summary judgment to third-party defendant, East Coast Lot & Pavement Maintenance Corporation (“EC Lot & Pavement”) dismissing the complaint as against the defendant/third-party plaintiff, Hempstead Turnpike.

Plaintiff slipped and fell on snow on a sidewalk in front of a store operated by Defendant Stop & Shop. The plaintiff sued Stop & Shop and the owner of the property, defendant Hempstead Turnpike, which in turn commenced a third-party action against EC Lot & Pavement, a snow removal contractor. Stop & Shop commenced a second third-party action against S & S, the holder of the ground lease for the property.

The Court examined the facts under the now well-settled storm-in-progress rule citing that a property owner, tenant in possession, or, where relevant, a snow removal contractor is not liable for accidents caused by snow or ice that accumulates during a storm until sufficient time since a storm’s cessation has passed to allow the opportunity to mitigate any hazards caused by the storm. The Court noted, however, that if a landowner or tenant in possession decides to remove snow during a snowstorm, then, in such an instance, the landowner and tenant in possession must act with reasonable care not to create a hazardous condition or make worse a hazardous condition created by the storm.

Though the plaintiff in the underlying action claimed the sidewalk looked like someone removed snow earlier in the day with parts of it having melted spots, did not have no salt or sand on it, had about ½ an inch of snow where the plaintiff slipped, and the parking lot was salted and sanded, the defendants here successfully established that their efforts to remove snow and ice from the sidewalk during the storm did not create a hazardous condition or exacerbate the natural hazard caused by the storm.

This case serves as a reminder of the potential liability exposure of owners and tenants in possession along with those they contract with, such as a snow removal contractor, when attempting to ameliorate a snowy condition while snow is still falling from the sky, as well as, the factual depth and development necessary for the defense of such cases.

Should you have any questions, contact John Diffley.Read More

Absolute Liability Arising From Violations of NY Labor Law §240 Depends On Exact Scope Of Employment

In Gonzalez v. DOLP 205 Properties II, LLC, 206 A.D.3d 468 (2d Dep’t 2022), the plaintiff construction worker sustained injuries after falling from stilts he was standing on while performing work. Given his injuries stemmed from an elevation-related hazard, the plaintiff claimed the defendant property owner was liable under New York Labor Law § 240(1), and initially prevailed on his summary judgment motion.

On appeal, the Appellate Division, First Department, reversed the Supreme Court’s grant of summary judgment to the plaintiff. In particular, the court pointed to evidence indicating that the plaintiff’s boss explicitly instructed the plaintiff to remain on ground level while performing assigned work. Despite this, the plaintiff claimed that his boss’s assistant instructed him to perform elevated work on the stilts. Thus, the court found the existence of a “triable issue[] of fact as to whether plaintiff’s duties were expressly limited to work that did not expose him to an elevation-related hazard within the purview of Labor Law §240(1).”

The court also noted the significance of the exact chain of command which the plaintiff received directives from on the issue of liability. Since absolute liability under § 240(1) requires a finding that the injury was proximately caused by a failure to provide appropriate safety measures, evidence that the plaintiff proximately caused the accident could preclude liability on the defendant. Here, the court noted the existence of another issue of fact where the plaintiff allegedly asked a third on-site individual for a different pair of non-defective stilts, but it was unclear whether this individual was a superior or merely a co-worker.

This case serves as a useful reminder to attorneys in § 240 cases of the importance of clarifying a plaintiff’s scope of employment and the precise individuals the plaintiff received directives from.

Thanks to Andrew Henriquez for his contribution to this post.  Should you have any questions, please contact Tom Bracken.

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