New York Civil Law

Appellate Division, First Department Decides Case Regarding Emails within Settlement Context

In a holding I have not seen before, the Appellate Division, First Department held in Williamson v.Delsener that email exchanges between the plaintiff and defendant satisfied the statute of frauds and indicated that the parties agreed to settle the matter.  The Court reasoned that the emails between the parties' counsel contained the printed names and, therefore, constituted signed writings within the statute of frauds.  Also, the Court noted that the defendant's refusal to sign a general release or stipulation of discontinuance did not invalidate the settlement.

Appellate Division, Third Department Grants New Trial Regarding Ex Parte Communications With Plaintiff's Treating Physician

The New York Court of Appeals recently held in Arons v. Jutkowitz that a plaintiff who puts his or her physical or mental condition at issue must execute HIPAA-compliant authorizations.  This ruling allows defense counsel to conduct an ex parte interview with a a plaintiff's treating physician post-note of issue.  

What happens when defense counsel conducts an ex parte interview but does not seek HIPAA-compliant authorizations?

The Appellate Division, Third Department in Straub v. Yalamanchili recently affirmed a trial court's granting of the plaintiff's motion to set aside a jury verdict based on defense counsel's two ex parte interviews with the plaintiff's treating physicians without obtaining the plaintiff's authorization under HIPAA.  Notably, the motion to set aside the verdict was based on the interests of justice.  The Court noted that defense counsel, through the ex parte interviews, was able to obtain information that came as a complete surprise to the plaintiff's counsel and that plaintiff's counsel was unable to rebut.

New York Court of Appeals Addresses "Law Office Failure" Excuse Within Context of CPLR 3404

The New York Court of Appeals addressed a CPLR 3404 recently in Okun v. Tanners.  In Okun, the "law office failure" excuse could not win the day for the plaintiff.  The case concerned CPLR 3404, which provides that after a case is struck from the calendar because of a missed calendar call, it must be restored within a year or will be dismissed as abandoned.

On November 11, 2002, the plaintiff in Okun commenced a breach of contract action against the defendant, and a note of issue was filed on July 23, 2004. On May 9, 2005, Supreme Court struck the action from the trial calendar based on the plaintiff's counsel's failure to appear at four pretrial conferences between January 26, 2005 and May 9, 2005.  On the same day the action was struck from the trial calendar, the defendant's counsel mailed a copy of the order to the plaintiff's counsel. 

In January 2007, the defendant moved to dismiss the action based on the plaintiff's failure to move to restore the action within one year, and the plaintiff cross moved to restore the action.  In support of the cross motion, the plaintiff's counsel stated that he had no notice of the May 9, 2005 conference, insinuated that he had no notice that the action had been struck from the trial calendar, and asserted that the “plaintiff never actively manifested an interest to abandon the prosecution of this matter.”  At oral argument on the motions, the plaintiff’s counsel offered the following excuse for the failure to prosecute: “[F]rom May 9th [, 2005] . . . what happened to this case can only be called law office failure. It just fell through the cracks.”

The Court of Appeals held that the plaintiff's conclusory and unsubstantiated claim of law office failure was not a reasonable excuse for 20-month delay in pursuing breach of contract action after it was struck from calendar.  The Court also held the plaintiff's inactivity between the time the action was marked off the calendar and defendant's motion to dismiss fails to rebut the presumption of abandonment that arose pursuant to CPLR 3404.

The Court’s terse memorandum opinion carriers several lessons.  First, a motion to dismiss the matter after the plaintiff has moved to restore the action to the calendar is unnecessary.  The action is dismissed by operation of law.  Second, a plaintiff will have to come forward with a legitimate excuse for his or her failure to restore the matter; the frequently tossed-around “law office failure” excuse does not cut it.

It's extremely helpful to read the Appellate Division, First Department's Majority and Dissenting opinions, here.

New York Court of Appeals Addresses Discovery Issues

The New York Court of Appeals this upcoming Session will address an issue of discovery in Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc.  The appeal concerns a Special Referee's recommendation (1) that the defendant business produce a witness (who lives in Belgium) for a deposition in New York, and (2) that the defendant business produce testimony and documents of a confidential arbitration proceeding in Belgium to which the defendant business is not a party.  The discovery dispute arises out of a declaratory judgment between an insurer and insured (the defendant business) regarding a claim for allegedly stolen diamonds.

Although the facts of the case appear to be fact-specific, the Court's decision on the appeal will no doubt expand on the sparse case law on discovery and deposition, specifically. 

New York Court of Appeals Addresses Partial Indemnification Provisions

This week, the New York Court of Appeals will address a long-awaited question: whether General Obligations Law sec. 5-322.1 allows for partial indemnification provisions.  In the Judlau v. Brooks Contracting, Inc., the Appellate Division, Second Department held that the statute does not contemplate partial indemnification provisions.

Judlau concerned an ironworker that Thunderbird Constructors, Inc. employed.  The ironworker was injured while working on an overpass in Queens, New York.  Thunderbird was the subcontractor for the project.  The general contractor had installed a safety cable to mark the end of the partially-dismantled overpass to prevent falls.  The injured worker grabbed the safety cable with his hand, but it gave way.  The worker fell 25 feet to the parkway below.  The worker sued the general contractor, and Supreme Court awarded him summary judgment on liability.

The general contractor commenced a third-party action against the subcontractor for contractual indemnification.    Supreme Court dismissed the general contractor's indemnification claim against Thunderbird upon finding that the general contractor had been negligent and its negligence was "a substantial factor in causing the accident."  It said, "[T]he court determines that the installation by [the general contractor] of a safety cable was done in an ineffective and unsafe manner because it broke.  The degree of negligence the court is not determining, but [the general contractor] is negligent at least to some degree, 1 percent, 10 percent, 20 percent, and ... is an active tort feasor, active negligence."  The court declined to consider partial indemnification. The Second Department affirmed, ruling the general contractor's indemnification claim was properly dismissed because the general contractor itself was found to be negligent.

NYCL will keep you apprised of the decision, which will likely be handed down in October 2008.

The New York Court of Appeals Revisits Timing for Summary Judgment Motion

Practitioners often grumble about the New York Court of Appeals' holding in Brill v. City of New York -- i.e., the outside time limit for a summary judgment motion is 120 days after the filing of the note of issue, unless good cause is shown for the delay.  During the first Session of the Court's new Term, the Court will revisit what constitutes "good cause" under CPLR 3212.

The Court will hear oral arguments in Crawford v. Liz Claiborne, Inc. during its September Term.  In Crawford, the parties entered into a scheduling order in New York County.  The outside deadline to file summary judgment motions was pursuant to the local rules.  The local rules provide that movants have an outside deadline of 60 days after the filing of the note of issue, rather than the 120-day deadline.

The defendant unfortunately overlooked the local rules and, upon realizing the oversight, served and filed its summary judgment motion a few days after the 60-day deadline.  The trial court considered the motion, even though the motion was beyond the 60-day deadline, and dismissed the complaint.  The Appellate Division, First Department reversed the Decision and Order, holding that an oversight regarding the court rules did not constitute "good cause" under Brill and CPLR 3212.  Justice Tom and Williams dissented.

The Court of Appeals will address whether this type of oversight constitutes "good cause."  New York Civil Law will keep you apprised of the Court's holding, which should be handed down in October.

United States Court of Appeals for the Second Circuit Certifies Two Questions Regarding Attorney Deceit

The United States Circuit Court of Appeals for the Second Circuit in Amalfitano v. Rosenberg certified the following two questions to the New York State Court of Appeals:

(1) Can a successful lawsuit for treble damages brought under N.Y. Jud. Law § 487 be based on an attempted but unsuccessful deceit upon a court by the defendant? and (2) In the course of such a lawsuit, may the costs of defending litigation instituted by a complaint containing a material misrepresentation of fact be treated as the proximate result of the misrepresentation if the court upon which the deceit was attempted at no time acted on the belief that the misrepresentation was true?

NYCL will keep you apprised on whether the Court accepts or rejects the certified questions.

Press Release on New York Court of Appeals' Recent Scaffold Law Decision

I ran across this interesting press release on the New York Court of Appeals' recent Labor Law sec. 240 decision -- Sanatass et al., v Consolidated Investing Company, Inc. 

A more detailed analysis of the decision will follow in the near future.

New York County Bar Association's Ethics Opinion on Metadata

The New York County Lawyers'  Association issued this ethics opinion on mining an adversary's responding documents in discovery for metadata (see opinion).  Here's a press release on the opinion.  The New York State Bar Association issued an opinion on the same subject several years ago (see opinion).

I agree with the view that an adversary should not mine a document for metadata; I compare it to the disclosing party inadvertently handing over a privileged document.  If it's obvious that the disclosure is inadvertent, professional courtesy (especially in today's practice of large volume of e-mails and faxes) and ethical considerations warrant returning the privilege document (and ceasing analyzing the document once the inadvertent disclosure becomes clear).

Hat Tip to Sui Generis and Legalethics.com.

New York Court of Appeals Recent Decision on Personal Jurisdiction

In Fischbarg v. Doucet, the New York Court of Appeals augments its case law interpreting what constitutes the transaction of business in New York under CPLR 302(a)(1) for purposes of this state's long-arm jurisdiction statute.  The crux of the decision is that courts should look to the quality of an out-of-state party's contacts with New York, not the quantity, in determining whether the party's activities justify a New York court's juridiction over that party.  Also, the Court dispels the myth that an out-of-state party cannot be hauled into New York courts where it has not physically entered the state.

The appeal concerns a dispute over fees between the plaintiff (a New York attorney who performed all his work in the underlying matter in New York) and the defendants (a California individual and corporation).  The defendants retained the New York attorney through a telephone call and subsequent letter, and frequently communicated with the attorney through email and telephone conversations. The dispute transpired entirely in Oregon.

The Court held that the defendants' actions in seeking out this New York attorney and engaging in frequent telephone conversations was of a quality that constituted transacting business under New York's long-arm statute.

Fischbarg provides one more example to flesh out the boundaries of CPLR 302(a)(1).