New York Civil Law

New York Appellate Division, First Judicial Department Grants Spoliation Sanctions for Destroyed Personal Journal

The plaintiff or defendant in your case destroyed a piece of evidence you deem essential to your case. You liken the spoliation to Arthur Andersen shredding documents for Enron and seek the ultimate sanction of dismissal of the case (plaintiff's spoliation) or striking the answer (defendant's spoliation). New York courts have a different idea, though.

In a recent New York Appellate Division, First Department appeal -- Clarke v Povella -- the spoliation was substantial. In Clarke, the plaintiff commenced a lawsuit against defendants concerning a motor-vehicle/pedestrian accident. The plaintiff alleged emotional and psychological injuries from the accident.

Through the plaintiff's deposition, the defendants learned that the plaintiff kept a private journal. At the deposition, the defendant requested production of the journal. The plaintiff's attorney apparently did not move for a protective order to quash the demand. The plaintiff allegedly claimed she lost the journal, giving vague reasons why she did not preserve the journal once the defendant requested production of it.

The First Department concluded that the defendant's demand for the journal was not beyond the scope of disclosure, disagreeing with the trial court. The First Department reasoned that the journal was discoverable material even though it contained private information, noting that the plaintiff put her emotional and psychological state at issue and the journal could shed light on those allegations.

Notably, the First Department cited to the New York Court of Appeals' decision in Forman v Henkin, which discussed discovery as it applied to social media and, in particular, Facebook. Citing Forman, the First Department noted that the defendants were not required to meet any special threshold burden to maintain the journal. The Court's point being that New York's discovery rules are broad and material will be subject to discovery where there is a showing that it is likely to lead to "material and necessary" information.

The First Department held that spoliation sanctions were warranted because the plaintiff had an obligation to preserve the journal once the defendants demanded it during the plaintiff's deposition; the Court stated that the plaintiff was grossly negligent in failing to preserve the journal. Nevertheless, the Court concluded that an adverse inference jury charge was more appropriate -- i.e., a charge that the contents of the journal likely would have been relevant to the plaintiff's emotional and psychological claims. Choosing to not impose the ultimate sanction, the Court reasoned that the defendants had access to information on her psychological health through authorizations to the plaintiff's psychological treatment. The Court also reasoned that the plaintiff testified about her psychological health at her deposition. 

The lesson in Clarke is an attorney should immediately move for a protective order when he or she deems a discovery request is beyond the scope of discovery. For a non-spoliating party, you can surely ask for the ultimate sanction but know that the court will make all efforts to fashion a remedy that punishes the spoliating party and still allows the case to be decided on the merits.

Photo Credit: Sh4rp_i

(40 years ago this week, Daryl Hall and John Oates were halted at No. 3 on the Billboard 100 for the pulsating pop hit, "Maneater.")

New York Court of Appeals Will Hear Oral Argument Today Re: Whether Verified Pleading Suffices to Raise Issue of Fact on Summary Judgment

The New York Court of Appeals will hear oral argument today in Sanchez v. Nat'l R.R. Passenger Corp., among other appeals (here is the summary). The case addresses an interesting issue concerning evidentiary proof in a summary judgment motion. The appeal turns on when the plaintiff's accident occurred; there is a statute of limitations issue here. At her deposition, the plaintiff could not recall the exact date of her accident. An accident report places the accident at an earlier date than the date the plaintiff alleges in her verified pleadings. 

The Court will address whether, even in the face of the plaintiff's deposition testimony, her verified pleading can raise a material issue of fact regarding the date when the accident occurred and, as such, when her claim accrued for statute of limitations purposes.

New York Court of Appeals Hears Oral Argument Today on CPLR article 52 Issue

The New York Court of Appeals will hear, among others, oral argument in Verizon New England Inc. v. Transcom Enhanced Servs., Inc. The case concerns nuances of enforcing a judgment in New York (see appeal summary here).

New York Evidence/New York Court of Appeals Grants Motion for Leave to Appeal - Secondary Evidence

Clarke v. Rodriguez (Motion for leave to appeal granted on Nov. 23, 2010)

73 A.D.3d 677 (2d Dep’t 2010)

 Trial attorneys will want to follow this appeal concerning a point of a little-discussed exception to the best evidence rule.  The appeal concerns the admission of secondary evidence.  A proponent of an written instrument who is unable to produce the paper because it is under the control of the opponent may produce secondary evidence of what is contained in the original instrument.

 The defendant appealed a Supreme Court judgment that, after a nonjury trial, was in favor of the plaintiff and against him directing specific performance for the sale of real property.  Supreme Court allowed the plaintiff to submit secondary evidence of the contents of the original contract of sale.  The Second Department concluded that the plaintiff sufficiently explained the unavailability of the primary evidence -- i.e., the contract of sale for the real property.  The plaintiff established that the defendant’s former attorney, who did not testify at the trial, possessed the original contract of sale.

 The Court will revisit its holding in Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639 (1994). 

 

Arbitration/New York Court of Appeals Grants Leave to Appeal - Vacating Award Based on Bias or Partiality

 U.S. Electronics, Inc. v. Sirius Satellite Radio, Inc. (Motion for leave to appeal granted on Nov. 18, 2010)

73 A.D.3d 497 (1st Dep’t 2010)

This appeal addresses the judicial review of arbitration awards and in what instances may a court vacate an arbitration.  The arbitration concerned a contractual dispute between the petitioner and satellite radio company Sirius Satellite Radio, Inc.  By way of background, Sirius and former competitor XM Satellite Radio announced a merger in February 2007.  The merger was subject to the approval of the Federal Communications Commission.

The petitioner in the appeal argued that the chairman of the arbitration panel improperly failed to disclose the relationship between his son, who is a congressman, and Sirius.  The chairman’s son publicly supported the merger between Sirius and XM.

The First Department noted that the chairman should have disclosed his son’s position irrespective of when the petitioner learned of the congressman’s support of the intended merger.  Nevertheless, the First Department held that the petitioner failed to meet its burden of proving by clear and convincing evidence that any impropriety or misconduct of the arbitrator prejudice its rights or the integrity of the arbitration process or award.  It proffered no proof of actual bias or even the appearance of bias on the part of the chairman.

The Court of Appeals will likely address whether the undisclosed facts provided a basis for challenging the arbitration award and set out a bright-line for future matters.

 

New York Court of Appeals Recently Holds That CPLR 2001 May Cure Defect In Service of Summons and Complaint In Some Instances

Even though the CPLR is clear on this point, litigants still seem to make mistakes when serving their summons and complaints.  In Ruffin v. Lion Corp., 2010 N.Y. Slip Op. 8767, 2010 N.Y. LEXIS 3464 (Nov. 30, 2010), the plaintiff used a process server who was not a New York resident to serve the defendants with the summons and complaint concerning her personal-injury action.  Two years after a default judgment was entered against the defendant, it moved to dismiss the action under CPLR 3211(a)(8) and to vacate the default judgment.  The defendant argued that the process server was not authorized under CPLR 313 to effect service in Pennsylvania because he was not a New York resident, he was not a sheriff authorized to make service by Pennsylvania law, and he was not an attorney, solicitor, barrister or equivalent.

The plaintiff conceded that the process server was not authorized to make service in Pennsylvania but challenged the jurisdictional implication of the improper service by relying on CPLR 2001.  CPLR 2001, among other things, applies to the commencement of an action regarding mistakes in the filing process. The Court of Appeals concluded that the error regarding the plaintiff’s failure to fulfill the service requirements of CPLR 313 could be disregarded.  Analyzing CPLR 2001 and the legislative history of its recent amendment, the Court concluded that CPLR applies to both non-prejudicial defects in filing and service of initiatory papers such as a summons and complaint.

The Court pointed out that the CPLR 2001 point was not dispositive because the service of initiatory papers also implicated due process concerns of notice.  The Court noted that courts should analyze whether the error is merely technical or one that impacted whether notice was reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.  The Court provided two examples where an error was more than just a technicality: (1) simply mailing the document to the defendant or e-mailing them to the defendant’s web address, or (2) the delivery of a summons and complaint to the wrong person.  The Court noted that delivery of a summons and complaint by a process server who is unauthorized to serve simply because of his place of residence will not affect the likelihood that the summons and complaint will reach defendant and inform him that he is being sued.  As such, the Court concluded that a defect related to the residence of a process server has no effect on the likelihood of defendant's receipt of actual notice, and the court may choose to correct or disregard it as a technical infirmity under CPLR 2001.

 This opinion serves as a reminder that these procedural details should be followed closely when initiating an action to avoid unnecessary motion practice.  On the other side of the caption, defendants should not gloss over analyzing these details upon receiving these initiatory papers.

 

New York Court of Appeals Grants Leave to Appeal Regarding Emergency Doctrine Instruction

Last week, the New York Court of Appeals granted leave to appeal in Lifson v. City of Syracuse.  The issue likely to be decided is whether a trial court can instruct a jury on the emergency doctrine where the evidence does not support that a weather or lighting condition was sudden or unforeseen.

In Lifson, the defendant driver injured the decedent pedestrian after striking her with his motor vehicle.  The defendant stopped at a stop sign at the intersection in question.  He looked to the left and to the right and the proceeded to make a left turn.  The defendant claimed that, as he was in the process of making the left turn, his vision was momentarily obstructed by sun glare.  He took his eyes off the road and, when he looked back up again, he observed decedent approximately one foot in front of his vehicle.  The defendant "slammed" on the brakes but was unable to avoid hitting the decedent.

The Fourth Department Majority concluded, among other things, that the trial court did not err by giving an emergency instruction with respect to the assertion of the defendant that he failed to observe the decedent because he was blinded by sun glare.  The Court reasoned that there was a reasonable view of the evidence establishing that the sun glare was a sudden and unforeseen circumstance justifying the emergency instruction.

Justice Peradotto dissented, noting that she agreed with the plaintiff that Supreme Court erred in giving an emergency instruction with respect to the assertion of the defendant that he failed to observe the decedent because he was blinded by sun glare.  Justice Peradotto noted that the defendant never testified at trial that he was unaware that the sun was out or that he did not expect to be driving into the sun when he turned left to travel west.  

Justice Peradotto concluded that

[The] defendant should have anticipated the possibility that he might encounter glare from the sun when he began to turn his vehicle to travel west into the setting sun.  Because the condition defendant faced was not unexpected in light of the sunny weather and the time of day, [the] defendant was not entitled to the benefit of an emergency instruction.

New York Civil Law will keep you apprised of the developments on this appeal 

Rare Dissent In New York Court of Appeals' Dismissal of Appeal As of Right

We've all read the short entries from the New York Court of Appeals regarding appeals as of right and motions for leave to appeal.  They're enigmatic to most.  The conciseness often demonstrates that the Court jealously guards its jurisdiction.

Although not unheard of, there is rarely a dissent when the Court dismisses an appeal as of right.  It's even more unheard of to have a dissent criticize the Court's internal jurisdictional precedent.

Yesterday, Judge Smith dissented in Matter of Kachalsky v. Casace regarding the Court's dismissal of the appeal as of right pursuant to CPLR 5601(b)(1).  The petitioner was challenging Penal Law sec. 400.00(2)(f), which requires "proper cause" for the issuance of a license to carry a concealed pistol or revolver.

It appears that the Majority determined that the appeal was not "substantial," which is a Court interpretation of one of the requirements of an appeal as of right under CPLR 5601(b).  The word "substantial" can be amorphous.  I once overhead a legendary Court of Appeals' Deputy Clerk tell a pro se petitioner that a "substantial" constitutional question is like a tough stain on a shirt, not like the ordinary daily stains that we all get and rub out with some elbow grease.  

In Casace, Judge Smith took issue with the Court's application of the "substantiality" requirement in the past and in the present appeal, noting that the Court's treatment conferred discretion similar to whether the Court should grant a motion for leave to appeal.  Clearly, the New York Constitution and the CPLR does not want the Court to treat appeals as of right as if it were determining whether to grant or deny motions for leave to appeal.

Although enigmatic in its own right, Judge Smith's dissent offers a rare peak behind the curtain that is the New York Court of Appeals' internal jurisdiction.

New York Court of Appeals Grants Leave to Appeal in Interest Rate Issue

The Court of Appeals granted leave to appeal in Grobman v. Chernoff last month.  The matter surrounds an interest rate issue within the context of a personal-injury action.

In 1996, the plaintiff was injured as a passenger in an automobile that the defendant Chernoff drove and the defendant Grobman owned.  A bifurcated trial was held.  In June 2000, the jury determined during the liability phase that the defendants were 100% liable.  During a subsequent trial on damages, the jury found that the plaintiff sustained a "serious injury" under Insurance Law sec. 5102(d).  It awarded the plaintiff damages for future medical expenses, but did not award anything for future pain and suffering.  

A judgment was subsequently entered on the verdict in the principal sum of $10,000 - $1,100 for past pain and suffering and $8,900 for future medical expenses.  On appeal, the Second Department reversed the judgment and concluded that the jury award was inconsistent.  The matter was remitted for a damages trial.

The parties agreed to submit the damages issue to an arbitrator for resolution.  A dispute arose as to whether the "serious injury" should be submitted to the arbitrator.  Ultimately, the Appellate Division, Second Department, on a second appeal, determined that the "serious injury" issue was a binding issue based on the jury's determination and could not be relitigated at arbitration.

The arbitration agreement, dated December 13, 2004, contained a section with a heading which read, "AT ISSUE: Damages," and it further indicated the parties' agreement to high/low parameters of $150,000 and $10,000.  The agreement was silent on the issue of whether any damages award included interest.

The arbitration went forward and the plaintiff was awarded $125,000 on April 9, 2008.  The award was silent on the issue of interest.

The plaintiff moved pursuant to CPLR article 75 to confirm the award and to enter judgment thereon.  The defendants submitted an affirmation of counsel in "partial opposition" to the motion.  The defendants' counsel stated that a check in the sum of $125,000 dated May 23, 2009 had been tendered to the plaintiff's attorney, who "implied" that the plaintiff was entitled to interest in the amount of $90,000.  The defendants' counsel argued that any attempt to seek a judgment in excess of $125,000 was improper.

By notice of cross motion, the defendants sought to preclude the plaintiff from recovering pre-arbitration award interest.  The plaintiff opposed the cross motion.  The plaintiff argued that the liability verdict in her favor was rendered on June 25, 2000 and if she was to be made whole in the context of the bifurcated procedure used in her case, interest on her damages award had to be computed from that date to the date of entry of the final judgment.

Relying on Love v. State of New York, the Second Department held that the the plaintiff should recover interest on her personal injury award from the date the defendants' liability was first fixed -- i.e., from June 25, 2000.  The Court also noted that Supreme Court correctly directed post-award interest to run up to the date of payment, rather than to the date of judgment.

New York Civil Law will keep you abreast of this matter as it winds its way through the Court of Appeals

Tips on Contacting a Court Clerk's Office

My colleague Bill O'Connell and I recently wrote this blog post on tips on contacting a court clerk's office.