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									                                        2004 Update

                          Civil Litigation in New York, 4th Ed.

       This memorandum was prepared by Oscar G. Chase and Robert A. Barker for the

benefit of students and faculty. The closing date for materials was June 30, 2004.

Permission is granted to distribute copies free of charge to students in classes using the

casebook.

       The excellent research assistance of Bryant Smith, NYU School of Law, Class of

2006, is acknowledged with gratitude.




                                             1
                                         Chapter 1

           Jurisdiction over the Defendant: Is New York the Right Forum?

§ 1.06 Jurisdiction Based On Specific Contacts With The State

        [A] Transacting Business in New York: CPLR 302(a)(1)

p. 72

[Add to note (1)]

        A consensus is emerging under which out-of-state attorneys who perform legal

services in New York for non-residents will be held subject to jurisdiction under CPLR

302(a)(1). In additions to Shreve City, supra, see Liberatore v. Calvino, 293 A.D.2d 217,

221, 742 N.Y.S.2d 291, 293 (1st Dep’t 2002) and cases cited. In Liberatore jurisdiction

was upheld over a Rhode Island lawyer sued for legal malpractice in New York brought

by a Rhode Island resident who alleged the negligent prosecution of plaintiff’s underlying

New York personal injury action which arose out of a New York accident. The lawyer,

who had referred the case to a New York attorney after preliminary investigation from

Rhode Island “he projected himself into the state to perform services by contracting with

plaintiff to legally represent her here for . . . her New York personal injury claim … in

accordance with New York law. He transacted business in New York by purposefully

pursuing redress for plaintiff over a three-year. . . . He engaged in numerous written and

telephonic communications with New York. . . . In rendering his services, he availed

himself of the benefits and protections offered by various New York statutes. . . . The

totality of the circumstances . . . makes it unquestionably fair and just that he be subject




                                              2
to New York jurisdiction for the legal malpractice claim resulting from his negligence in

providing such services.”

       Compare the detailed opinion in O’Brien v. Hackensack Univ. Med. Ctr., 760

N.Y.S.2d 425, 305 A.D.2d 199 (1st Dept. 2003). Reversing the lower court, the appellate

division held in this medical malpractice action brought by a New York resident, that

jurisdiction could not be obtained over a New Jersey medical center even though it

allegedly solicited and treated patients from New York, including plaintiff. There were

insufficient contacts to justify jurisdiction under CPLR 302(a)(1). Nor was CPLR

302(a)(3) applicable because the injury took place where the alleged act of malpractice

was committed.

       Indosuez Int’l Fin. B.V. v. Nat’l Reserve Bank, 98 N.Y.2d 238, 746 N.Y.S.2d 631,

774 N.E.2d 696 (2002), was an action by a Dutch corporation against, a Russian bank,

that alleged a default on a series of option contracts. Long arm jurisdiction was found by

virtue of the following facts: The defendant maintained a New York bank account, the

agreement provided that payments were to be made through that account, and some

payments had in fact been so made. Alternatively, jurisdiction was proper because some

of the documents contained a clause designating New York as the forum and the court

found that the parties intended the forum selection clause to apply to all of the

agreements.




                                              3
§1.08 Matrimonial Litigation

p. 112

[add to Note on Child Custody Jurisdiction after the first full paragraph, which talks

about “home states” and “continuing jurisdiction.”]

         In Vernon v. Vernon, 800 N.E.2d 1085, 100 N.Y.2d 960, 768 N.Y.S.2d 719

(2003), the Court of Appeals asserted its continuing jurisdiction over a child who had left

New York several years earlier with her mother. New York had subject matter

jurisdiction over the child in the original settlement agreement, and the court found that

the “home state” requirement of the Federal Parental Kidnapping Prevention Act did not

apply because this was a case of continuing jurisdiction, rather than an initial

determination. Under the PKPA, in cases of continuing jurisdiction, the state continues

to have jurisdiction if any of the parties remains a resident of New York and if state law

permits it to do so. The Domestic Relations Law § 75-d (1)(b), in effect at the time, gave

New York jurisdiction when the child and at least one contestant have a significant

connection with the state and when substantial evidence of the child’s care is found in the

jurisdiction, both of which the court determined were met in this case. The child in

Vernon had lived in three states after leaving New York, but she had a “significant

connection” with New York because her father continued to live in New York, and she

visited him regularly there. The court cited the intent of both the PKPA and the UCCJA

to give stability to child custody decrees, to promote interstate cooperation, and to further

the best interests of the child in determining that allowing for the removal of jurisdiction

in this case “would essentially encourage ‘unilateral removal of children undertaken to




                                              4
obtain [favorable] custody and visitation’ (Pub L 96-611 § 7[c] [6])—the very antithesis

of the statutory purpose.” 100 N.Y.2d at 971, 800 N.E.2d at 1091, 768 N.Y.S.2d at 725.



                                         Chapter 5

                Commencing The Action And Service Of The Summons

§ 5.01 Introductory Note

p. 177

         The third paragraph of page 177 erroneously states that under CPLR 306-b

process must be served “within fifteen days of commencement in an action or proceeding

governed by a statute of limitations of four months or less.” In fact, CPLR 306-b provides

that “where the applicable statute of limitations is four months or less, service shall be

made not later than fifteen days after the date on which the applicable statute of limitation

expires” (emphasis added). We apologize for the error.



§ 5.02 Commencement by Filing

p. 184

[Add this paragraph to note 2]

         In Mendon Ponds Neighborhood Ass’n v. Dehm, 98 N.Y.2d 745, 751 N.Y.S.2d

819, 781 N.E.2d 883 (2002), the Court adopted a narrow definition of the “clerk” to

whom papers must be delivered to properly commence an action or proceeding under

CPLR 304. Petitioner in an Article 78 proceeding against a town zoning board paid a fee

and received an index number at the County Clerk’s office, then submitted the petition

and notice of petition to the Chief Clerk of the Monroe Supreme and County Courts for




                                              5
filing. Petitioner served the respondents but never filed the papers with the County Clerk

and this proved fatal to the proceeding. Section 304 requires filing with “the clerk of the

court.” But, said the Court of Appeals, that does not mean the actual clerk of the courts.

Article VI, §6(e), New York State Constitution provides that County Clerks shall be the

clerks of the Supreme Court, as does County Law §525(1). Hence, the papers should

have been served on the County Clerk. Because no such filing was made, the Court held

that the proceeding was properly dismissed on motion. The Court said: “Adherence to

this procedure ensures that the time of filing is authoritatively fixed when the County

Clerk date-stamps the papers.” 98 N.Y.2d at 747, 751 N.Y.S.2d at 820, 781 N.E.2d at 884.



p. 185

[Add to note (3)]

         Do not overlook the distinction made in the Fry case involving the failure to pay

the filing fee required by CPLR 304: If the fee is not paid the action is a “nullity” and

will be dismissed even in the absence of a motion by the defendant, see Gershel v. Porr,

89 N.Y.2d 327, 653 N.Y.S.2d 82, 675 N.E.2d 836 (1996); Chiacchia & Fleming, LLP v.

Guerra, 309 A.D.2d 1213, 765 N.Y.S.2d 134 (4th Dep’t 2003) (where first action was

dismissed without prejudice to recommencement and second action was commenced

using the index number purchased for the first action, the second action was dismissed

because of a failure to purchase a new index number and pay a new fee).




                                              6
                                         Chapter 7

                    The Statute of Limitations and Related Concepts

§ 7.02 Finding the Applicable Statute of Limitations and Determining When It

                Began to Run

                              [A] Tort and Contract Claims

p. 271

[Add new paragraph, n. (3)]

         In Kretschmann v. Bd. of Educ., 294 A.D.2d 39, 744 N.Y.S.2d 106 (4th Dep’t

2002), plaintiff sued an architect on a claim based on malpractice committed more than

10 years in the past and neglected to serve the 90-day notice. The complaint was

dismissed, but within six months the notice was served and the action restarted. Plaintiff

argued that the six-month extension afforded by CPLR 205(d) applied (see casebook p.

340, et seq.) even though the time had run on her cause of action after the dismissal.

Defendant argued that the notice requirement is a jurisdictional prerequisite to an action

and that CPLR 205(a) specifically exempts jurisdictional defects from its coverage. Held:

The CPLR 214-d notice requirement is not jurisdictional; rather, it is a condition

precedent to commencement of the action and thus is a matter of defective pleading

which is covered under CPLR 205(a).



p. 271

[Add to note 4]

         Unlike the situation with contribution and indemnification, the right of

subrogation begins to run from the date of the wrong. This is because the subrogee’s




                                              7
right arises through subrogation of the subrogor’s right, not independent of it. In Allstate

Ins. Co. v. Stein, 807 N.E.2d 268, 269, 1 N.Y.3d 416, 418 (2004), the Court of Appeals

held that action accrued, for limitations purposes, “from the date of the accident,” rather

than on date when first APIP benefits were paid. The defendant struck a vehicle and

Allstate paid the injured party according to the principle of no-fault insurance. The

victim then sued the tortfeasor to recover noneconomic and extended economic loss, the

second of which was covered by her insurance plan. This action was settled for $300,000,

but all three parties understood the settlement differently. The tortfeasor believed his

entire obligation to have been paid, and the victim understood that she would keep all the

settlement money for herself, but Allstate thought they had retained their right to recover

their payments to the victim. Allstate paid the victim more than $42,000 for her extended

economic loss, then, immediately following the settlement of the first case, Allstate sued

the tortfeasor to recover this money. The court ruled that the action was time-barred

because the statute of limitations began to run when the accident occurred, not when

Allstate paid the victim. Faulting Allstate for not insisting on some consideration in the

original settlement, the court expressed the inherent risk that subrogee’s might be time-

barred from bringing subrogation claims even before the right of subrogation exists. In

this way, the court is allowing a plaintiff to deliberately disregard the health insurer’s

interest in a settlement, even though Teichman [see page 430] would not allow a plaintiff

to inadvertently do the same thing.




                                              8
p. 287

[Add new note (9)]

         The court limited the scope of the discovery rule of CPLR 214-c(2) in the case of

Germantown Cent. Sch. Dist. v. Clark, 791 N.E.2d 398, 761 N.Y.S.2d 141, 100 N.Y.2d

202 (2003) by holding that the rule did not apply where injuries were not “‘caused by

latent effects of exposure’ to a toxic substance.” 791 N.E.2d at 400, 761 N.Y.S.2d at 143,

100 N.Y.2d at 206. The owner of a school building had hired the defendants thirteen

years previously to remove asbestos from the building. During renovations asbestos in

the building was discovered, and the building owner sued to recover the money paid

defendants and the costs to remove the asbestos. Because there was “no allegation by the

plaintiff that the asbestos migrated to a different location,” the injury was deemed to have

occurred at the original installation of asbestos in the building. The court applied a

general statute of limitations for malpractice instead of the three-year discovery-based

statute of limitations, and, therefore, the suit was untimely.



p. 298

[Add the following, n. (1)]

         In Plummer ex rel. Heron v. N.Y. City Health & Hosps. Corp., 98 N.Y.2d 263,

746 N.Y.S.2d 647, 774 N.E.2d 712 (2002) the court refused to apply the continuous

treatment rule to an otherwise time-barred case. The malpractice suit was based on an

allegation of negligent pre- and postnatal care of an infant. Plaintiffs made numerous

appointments for treatment of the infant’s birth defects which were not kept. It was

understood that defendant’s treatment of the infant would cease when plaintiffs moved to




                                              9
Florida. Except for one visit upon the infant’s return from Florida for a problem

unrelated to the birth defects, he was not examined again by defendant until 16 months

later.

         In Hein v. Cornwall Hosp., 302 A.D.2d 170, 753 N.Y.S.2d 71 (1st Dep’t 2003)

plaintiff alleged that defendants failed to diagnose and timely treat a bowel obstruction in

a late malpractice action that could only be saved by the continuous treatment rule.

Defendants offered the argument that since there had been no correct diagnosis, there had

been no continuing treatment, i.e., that repeated treatment of plaintiff’s symptoms

without an understanding of the cause would not be treatment for “the same illness,

injury or condition.” The court rejected this argument and held that the action was timely

because there was a course of treatment for the same condition of which the plaintiff had

complained, albeit that it was not correctly diagnosed initially.



p. 305

[Add to the Note on Other Professional Malpractice]

         In McCoy v. Feinman, 99 N.Y.2d 295, 755 N.Y.S.2d 693 (2002), the Court held

that the three-year period for attorney malpractice ran from the date in 1988 when the

attorney allowed a negligently drafted stipulation of settlement to be filed in the

underlying divorce action. The stipulation failed to preserve important rights of the

plaintiff, former wife, to her husband’s death benefits. It was held irrelevant that she did

not learn of the malpractice until after the former husband died in 1994. Nor was the

limitation period tolled under a continuous representation theory; although defendant had




                                             10
represented plaintiff in a subsequent matter in a separate Family Court support action

against her former husband, that action was held unrelated to the death benefits.



p. 307

[Add the following new subsection]

         [F] Defamation

         CPLR 215(3) provides a one-year limitation period for actions to recover

damages for libel and slander. The time runs from the publication of the statement.

Under the “single publication” rule the publication creates a single cause of action

regardless of the number of copies sent out, or the number of outlets if broadcast over the

air. Gregoire v. G.P. Putnam’s Sons, 298 N.Y. 119, 81 N.E.2d 45 (1948). A

republication of the defamatory material, however, will restart the limitation period. For

instance, if a book comes out in a second printing a new cause of action would arise.

         When the defamatory material is on a website does republication occur each time

the website is accessed? In Firth v. State, 98 N.Y.2d 365, 747 N.Y.S.2d 69, 775 N.E.2d

463 (2002) the Court of Appeals answered in the negative. If the website statement is

supplemented or changed there will be no republication if the new material is unrelated to

the original alleged defamatory statement. In Firth it was not related. The implication in

Firth is that if there is a relationship between the original alleged defamation and the later

supplemented website material, there will be a republication.




                                             11
§ 7.04 Applying State Limitations Periods to Federal Claims

p. 317

[Add to note (3)]

         The Supreme Court has held that the four-year period of 28 USC § 1658 applies

to all causes of action created by Congress after 1990, even if the new cause of action

was added to an existing Act of Congress by an amendment, see Jones v. R. R. Donnelley

& Sons Co., 124 S. Ct. 1836, 158 L. Ed. 2d 645, 2004 U.S. LEXIS 3236, 72 U.S. Law

Week 4332 (2004).



p. 317

[Add to n. (4)]

         28 U.S.C. § 1367 provides that a federal court with original jurisdiction in a civil

matter may exercise supplemental jurisdiction over state claims bound up in the same

“case or controversy.” If the federal court declines to assert supplementary jurisdiction

the state claims may be commenced only in state court. What if the state statute of

limitations has run? Section 1367(d) provides for a toll for the period the claims are

pending in federal court, and for 30 days after dismissal. In Jinks v. Richland County,

123 Sup. Ct. 1667, 155 L.Ed.2d 631, 71 USLW 4298 (2003), the Supreme Court rejected

the argument that the tolling provision violated state sovereignty principles and held it

constitutional.




                                              12
§ 7.05 Laches: The Judge-Made Limitation of Time

p. 323

[Add new note 3]

         In Saratoga County Chamber of Commerce v. Pataki, 798 N.E.2d 1047, 100

NY2d 801, 766 N.Y.S.2d 654 (2003), the Court of Appeals invalidated a 1993 compact

between the state and the St. Regis Mohawk Tribe allowing gambling on the Akwesasne

Reservation under the Federal Indian Gaming Regulatory Act. The court held that the

compact was invalid because the governor violated the separation of powers doctrine in

signing the compact without legislative authority. Rejecting the defense’s assertion of

laches, the court found that the suit did not warrant dismissal due to prejudice to the Tribe.

The court defined laches “as an equitable bar, based on a lengthy neglect or omission to

assert a right and the resulting prejudice to an adverse party,” 798 N.E.2d at 1055, 100

N.Y.2d at 816, 766 N.Y.S.2d at 662, which applies even where, as here, the statute of

limitations period is met. In this case, there was no evidence about potential economic

losses to the tribe, so the court refused to apply the doctrine of laches. Even if there had

been evidence of economic losses, the court stated that “the prejudice caused by a loss of

expected profits based on a predictably vulnerable compact is not the sort of prejudice

that supports the defense of laches. Were it otherwise, very few suits would proceed past

laches analysis, and certainly no suits seeking to invalidate illegal contracts could ever

proceed.” 798 N.E.2d at 1057, 100 N.Y.2d at 818, 766 N.Y.S.2d at 664.




                                             13
§ 7.06 Interposing the Claim: CPLR 203

         [A] Claims in Amended Pleadings: CPLR 203(f)

p. 330

[Add following to note 3, re counterclaims]

         By the terms of CPLR 203(d), “It is axiomatic that claims and defenses that arise

out of the same transaction as a claim asserted in the complaint are not barred by the

Statute of Limitations, even though an independent action by defendant might have been

time-barred at the time the action was commenced.” Bloomfield v. Bloomfield, 97

N.Y.2d 188, 193, 738 N.Y.S.2d 650, 652, 764 N.E.2d 950, 952 (2001). Accordingly, in a

divorce action defendant wife was not barred from challenging the validity of a 30-year-

old prenuptial agreement since the agreement directly related to the plaintiff husband’s

claim that the agreement precluded equitable distribution.



§ 7.07 Tolls and Extensions

         [B] The New Action Toll: CPLR 205

p. 345

[Add to note(1)]

         The six month period of CPLR 205(a) does not apply when the first action was

dismissed as a “nullity” because the plaintiff failed to pay the required filing fee.

Meiselman v. McDonalds Restaurants, 305 A.D.2d 382, 759 N.Y.S.2d 506 (2d Dep’t

2003) (plaintiff’s check for the filing fee was returned for insufficient funds and

purported action was therefore a nullity).




                                              14
§ 7.09 Conditions Precedent

p. 364

[Add new note 5]

         New regulations recently promulgated by the Superintendent of Insurance

shortened the time periods for filing forms and notices in no-fault cases. The regulations

reduced the time limit for a filing a notice of claim from 90 days to 30 days, the limit to

submit proof of loss due to medical treatment from 180 days to 45 days, and the limit for

proof of work loss from as soon as reasonably practicable to 90 days. These regulations

also relax the standard for accepting late filings from showing that compliance was

“impossible” to showing there was a “‘clear and reasonable justification’ for the delay.”

Medical Society of State v. Serio, 768 N.Y.S.2d 423, 428, 800 N.E.2d 728, 733, 100

N.Y.2d 854, 863 (2003). In addition, the regulations specify that claims may never be

denied due to delays caused by the failure of a third party to provide necessary

information. Shortly before the regulations were to take effect, medical societies brought

a claim trying to annul the regulations, challenging their constitutionality, including that

the legislature, not the Superintendent of Insurance, needed to make the regulations. The

medical societies claimed that the Superintendent exceeded the scope of his authority,

that the reduced time limits unlawfully created a new class of exclusion from no-fault

coverage, and that the regulations conflicted with the State Administrative Procedure Act

and the Insurance Law. Rejecting these contentions, the Court of Appeals upheld the

regulations as fulfilling the legislative intent of providing prompt payment of benefits as

the loss is incurred, while reducing rampant abuse. The court recognized that legislature

had long yielded to the Superintendent of Insurance for the creation of these time limits;




                                             15
in fact, it held that “the Superintendent’s ‘interpretation, if not irrational or unreasonable,

will be upheld in deference to his special competence and expertise with respect to the

insurance industry, unless it runs counter to the clear wording of a statutory provision.’”

Medical Society of State v. Serio, 768 N.Y.S.2d 423, 428, 800 N.E.2d 728, 733, 100

N.Y.2d 854, 864 (2003).



                                Chapter 8: Joinder of Parties

§ 8.03 Permissive Joinder: CLPR 1002

p. 376

[Add new note (after note 3)]

         New Uniform Rule for the New York State Trial Courts 202.69 creates a formal

procedure for coordinating different actions pending in different judicial districts. This

rule allows for the joinder of two or more actions having a common question of law or

fact solely for pre-trial purposes. The rule sets up a Litigation Coordinating Panel of four

Supreme Court Justices to determine the appropriateness of coordination in any given

case. There are three ways coordination can be raised: the justice or administrative judge

presiding over at least one of the actions can apply to the Panel, the Panel can sua sponte

require parties to show why coordination should not be directed, or a party in at least one

of the actions can file a motion for coordination. The Panel considers a number of factors

in determining appropriateness of coordination, including “the complexity of the actions:

whether common questions of fact or law exist, and the importance of such questions to

the determination of the issues; the risk that coordination may unreasonably delay the

progress, increase the expense, or complicate the processing of any action or otherwise




                                              16
prejudice a party; the risk of duplicative or inconsistent rulings, orders or judgments; the

convenience of the parties, witnesses and counsel; whether coordinated discovery would

be advantageous; efficient utilization of judicial resources and the facilities and personnel

of the court; the manageability of a coordinated litigation; whether issues of insurance,

limits on assets and potential bankruptcy can be best addressed in coordinated

proceedings; and the pendency of related matters in the federal courts and in the courts of

other states.” 22 N.Y.C.R.R. § 202.69. See also David Fleischer and Jodi Kleinick,

Litigation: Coordinating Multidistrict Cases in State Courts, New York Law Journal,

December 1, 2003, at S6. The new rule is similar to the federal multidistrict litigation

statute, 28 U.S.C. §1407, but it sets forth more factors and allows the coordinating justice

to try cases if the parties consent. See Mark Herrmann and Geoffrey J. Ritts, “New York

Adopts Procedures for Statewide Coordination of Complex Litigation,” New York State

Bar Journal, October 2003.



§ 8.03 Compulsory Joinder: CLPR 1001

p. 391

[Add new note]

         The court in Saratoga County Chamber of Commerce v. Pataki, 798 N.E.2d 1047,

100 NY2d 801, 766 N.Y.S.2d 654 (2003) (see note 3 under section 7.05 supra) addresses

the issue of indispensable parties. A coalition of citizens, including legislators and

individuals opposed to casino gambling, brought this action challenging an agreement

between the state and a Native American tribe allowing gaming on the Akwesasne

Reservation. Although the tribe had sovereign immunity and chose not to participate in




                                             17
the suit, the defense, hoping for a dismissal, argued that the tribe was an indispensable

party because their interests would be affected by the outcome of the case. The tribe

could have intervened in the case or waived its right to immunity, but chose not to. It is

unclear why the tribe did not join the litigation, but the court felt that the existence of the

opportunity for them to join was enough vindication for their rights. The court balanced

the five factors listed in CLPR 1001(b) for deciding whether the case should be dismissed

because the tribe could not be forced to appear in court and found that the suit could go

forward without the tribe. The plaintiffs’ argument that they would have no effective

remedy if the case were dismissed was found to be more persuasive than the State’s

argument that prejudice might accrue from the nonjoinder to them or the tribe. The tribe

could have mitigated the prejudice to them “by participating in the suit,” but “the alleged

constitutional violation [would] be without remedy if the action [were] dismissed for the

Tribe’s nonjoinder.” 798 N.E.2d at 1059, 100 N.Y.2d at 821, 766 N.Y.S.2d at 666. The

court gave two principal purposes of requiring dismissal due to the absence of an

indispensable party: “First, mandatory joinder prevents multiple, inconsistent judgments

relating to the same controversy. Second, joinder protects the otherwise absent parties

who would be ‘embarrassed by judgments purporting to bind their rights or interests

where they have had no chance to be heard.’” 798 N.E.2d at 1058, 100 N.Y.2d at 820,

766 N.Y.S.2d at 665 (internal citation omitted). Explaining that dismissal under the

CLPR is a “last resort,” 798 N.E.2d at 1059, 100 N.Y.2d at 821, 766 N.Y.S.2d at 666, the

court concluded that neither purpose applied in this case as the tribe had an opportunity to

appear as a party.




                                              18
§ 8.04 Class Actions: CLPR Article 9

         [B] The Requirements for Certification

p. 401

[Add new note 3]

         Another way, besides class action suits, of receiving the benefits of economies of

scale is the new Uniform Rule for the New York State Trial Courts 202.69 (see new note

4 under section 8.03 supra), which allows for the coordination of multiple actions

pending in different district courts for the pre-trial process. The coordinating justice is

then able to try the case if the parties consent. This rule was originally created for the

efficient handling of mass tort cases, but it important applications in a wide range of

commercial litigation. Similar to class actions, coordination allows parties to effectively

manage their cases, minimizes discovery costs, distributes responsibility for particular

tasks, and reduces the risk of inconsistent rulings. See David Fleischer and Jodi Kleinick,

Litigation: Coordinating Multidistrict Cases in State Courts, New York Law Journal,

December 1, 2003, at S1.



                Chapter 9: Claims for Contribution and Indemnification

§ 9.02 The Rules of Contribution

p. 452

[Add new note (5) and renumber present note (5) note (6).]

         (5) A spate of cases arose in which apartment house landlords were sued for

negligence in maintaining the building so as to allow intruders to enter and assault and

rob residents of the building. The main issue in these cases was whether, if the landlord’s




                                             19
apportioned share was less than 51%, article 16 acted to limit its share to the percentage

found, or whether section 1602(5) was an applicable exception. (Refer to the interplay

between articles 14 and 16 at casebook pp. 439, 440.) That section provides that where

actions require proof of intent article 16’s apportionment limitation would not apply, thus

enabling plaintiffs to obtain 100% from the landlords forcing upon them the impossible

task of extracting from the judgment-proof intruder his apportioned share. The Appellate

Divisions split on the issue and the Court of Appeals, in an opinion citing all these cases,

ruled that the section 1602(5) exception did not apply thus leaving the landlord in this

case responsible for only its apportioned share and the plaintiff bereft of any practical

recourse for the remainder of the judgment. Chianese v. Meier, 98 N.Y.2d 270, 746

N.Y.S.2d 657, 774 N.E.2d 722 (2002). The argument for application of the exception

was that the intruder’s act was an intentional tort, thus requiring plaintiff as part of her

proof to prove intent. The Court of Appeals ruled, however, that this action against the

landlord was based on the claim of negligence which does not require proof of intent. It

was stated that the fact a nonparty tortfeasor acted intentionally would not make a

negligence action turn into an intentional tort action. It is only where proof of intention

against the party defendant is required that the section 1602(5) exception would apply.




                                              20
§ 9.03 The Effects of Settlements

p. 473

[Add new note]

         In Chase Manhattan Bank v. Akin, Gump, Strauss, Heuer & Feld L.L.P., 309

A.D.2d 173, 763 N.Y.S.2d 588; 2003 N.Y. App. Div. LEXIS 8999 (N.Y. App. Div. 1st

Dep’t 2003), a nonsettling tortfeasor sued a settling tortfeasor, after entry of judgment

against the nonsettling tortfeasor, but prior to the adjudication of the liability of the

settling tortfeasor. A state statute, Gen. Oblig. Law § 15-108(b), aimed at balancing the

encouragement of settlements and the equitable sharing of liability among tortfeasors,

extinguishes contribution claims by nonsettling tortfeasors against settling tortfeasors. If

applied, GOL § 15-108(b) would have extinguished Chase Manhattan Bank’s claim

against Jefferies, but the court found that the statute did not apply “where the settlement

was made after entry of judgment against the nonsettling tortfeasor, but prior to judgment

against the settling tortfeasor.” The facts of the case were undisputed. The defendant

acted as placement agent for 50-Off Stores, placing 1.5 million shares of stock in Chase

Manhattan Bank. The bank released the stock prematurely to the purchasers, who

thereby avoided paying for it. 50-Off recovered over $12 million from Chase Manhattan

Bank, who claims that the defendants, who later settled for $4.3 million, did not pay their

share of the liability for 50-Off’s damages. The court found that Chase Manhattan Bank

is able to sue defendants for contribution.




                                              21
                                        Chapter 12

                                  Provisional Remedies

§ 12.07 Notice of Pendency: CPLR Article 65

p. 562

[After the long quote from the 5303 Realty Corp. case, add the following paragraph]

         The Court of Appeals again reviewed CPLR 6513 in Matter of Sakow, 97 N.Y.2d

436, 741 N.Y.S.2d 175, 767 N.E.2d 666 (2002) and ruled that in order for a notice of

pendency to be extended beyond its normal three-year life, the extension must be

requested prior to the expiration of that period. If this requirement is not met, and the

notice of pendency has lapsed, it cannot be revived on the same cause of action or claim.



                                            Chapter 13

                                               Pleadings

§ 13.02 The Complaint

p. 568

[Add to the note at the bottom of this page]

         The complaint you have just read claims damages in the amount of $850,000 for

Peter Ruggles and $150,000 for Mary M. Ruggles. Note that the action was commenced

prior to the 2004 amendment to CPLR 3017(c). Under the amendment a complaint in a

personal injury or wrongful death action “shall not state the amount of damages to which

the pleader deems himself entitled.” If the action is brought in the Supreme Court,

however, the pleading must state “whether or not the amount of damages sought exceeds

the jurisdictional limits of all lower courts which would otherwise have jurisdiction.”




                                               22
p. 577

         (4) The Court of Appeals wrote an instructive opinion regarding Court of Claims

pleading where facts must be pleaded with more particularity than in Supreme Court

under CPLR 3017. Under § 11(b) of the Court of Claims Act the claim must state

“(1) ‘the nature of [the claim]’; (2) ‘the time when’ it arose; (3) the ‘place where’ it arose;

(4) ‘the items of damage or injuries claimed to have been sustained’; and (5) ‘the total

sum claimed.’” Claimants’ argument that facts could be ascertained by the State from its

personnel records, in an action seeking overtime compensation, was rejected by the court

as not being the State’s burden to prove. Also, the verification requirement in § 11(b)

necessitates strict adherence to § 3022 of the CPLR (see § 13.06, infra). Lepkowski v.

State, 1 N.Y.3d 201, 207, 770 N.Y.S.2d 696, 700, 802 N.E.2d 1094, 1098 (2003).



                                             Chapter 15

                                             Disclosure

§ 15.02 The Scope of Disclosure: CPLR 3101

p. 644

[Delete existing note 3 and replace with the following]

         (3) Paragraph (i) was added to CPLR 3101 in 1993. It makes discoverable “any

films, photographs, videotapes or audio tapes, including transcripts or memoranda

thereof” of any party or agent of a party otherwise subject to disclosure. The Court of

Appeals had previously held that surveillance tapes of a plaintiff in a personal injury

action were protected by a conditional privilege and discoverable only on a showing of

substantial need and hardship and also that plaintiff would not be entitled to the tapes




                                              23
until after he had been deposed. DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184, 590

N.Y.S.2d 1, 604 N.E.2d 63 (1992). Neither condition was included in paragraph (i), and

the Court of Appeals ultimately ruled that this 1993 amendment governed, thus

superseding the DiMichel holding. Tran v. New Rochelle Hosp. Med. Ctr., 99 N.Y.2d

383, 756 N.Y.S.2d 509, 786 N.E.2d 444 (2003).



§ 15.04 Devices Used for Disclosure

         [D] Discovery and Inspection: CPLR 3120

p. 683

[Add note 5]

         (5) Effective September 1, 2003, new CPLR 3122-a is added which, together with

conforming amendments to CPLR 2305(b), 3120 and 3122, will enable a requesting party

to simply serve a subpoena for production of records from nonparties. Formerly a court

order had to be obtained when information from nonparties was sought. Compliance

requires respondent to sign a sworn certificate attesting that the documents are correct

copies of documents prepared in accord with the business records requirements of CPLR

4518. Rather than moving to quash the subpoena, a reluctant respondent need only serve

written objections.




                                            24
                                            Chapter 16

                                      Accelerated Judgment

§ 16.04 The Motion for Summary Judgment: CPLR 3212

         [A] When Granted

p. 726

[Add the following as note 4, and renumber present notes 4 and 5]

         When no-fault issues arise (Insurance Law § 5102(d)), defendants often move for

summary judgment. The Court of Appeals in three cases decided together addressed the

strength of plaintiff’s showing needed to maintain a prima facie case and overcome

defendant’s motion. Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 746

N.Y.S.2d 865, 774 N.E.2d 1197 (2002). In one of the cases the showing was held

insufficient because plaintiff’s chiropractor had no objective support for his opinion as to

plaintiff’s condition. In the other two cases the showing was found adequate. The

physicians based their opinions on MRI and CT procedures showing the extent of

plaintiffs’ disabilities. It appears from these cases that plaintiff must support her claim of

serious injury by more than an objectively unsupported expert’s opinion.



p. 733

[Add note 6]

         (6) In Access Capital, Inc. v. DeCicco, 302 A.D.2d 48, 752 N.Y.S.2d 658 (1st

Dep’t 2002) a divided court ruled that plaintiff was entitled to summary judgment when

defendant, because of a pending criminal proceeding against him, refused to answer any

of plaintiff’s allegations on Fifth Amendment grounds. The majority found defendant




                                             25
thus to be in default. The dissenter observed, inter alia, that while assertion of the Fifth

Amendment can lead to adverse inferences, it should not relieve plaintiff of the obligation

to prove a case.



p. 742

[Add note 4]

         (4) In an action to recover the balance on retail installment contracts allegedly

cosigned by defendant, defendant’s asserted defense failed to block CPLR 3213 summary

judgment. While defendant claimed forgery, her prelitigation conduct was not consistent

with that defense, and the report from her handwriting expert was inadequate to raise a

question of fact since, inter alia, there was no assertion that, with reasonable professional

certainty, defendant’s signature was not authentic. Banco Popular N. Am. v. Victory Tax

Mgmt., 1 N.Y.3d 381, 774 N.Y.S.2d 480, 806 N.E.2d 488 (2004).



                                         Chapter 17

                               Settlements and Stipulations

§ 17.07 Introductory Note

p. 751

[Add to note 2]

         In 2003 a second sentence was added to CPLR 2104 which states: “With respect

to stipulations of settlement and notwithstanding the form of the stipulation of settlement,

the terms of such stipulation shall be filed by the defendant with the county clerk.”




                                              26
         A $35 fee is required for this filing under CPLR 8020. Several questions have

been raised by this amendment, not the least of which is whether it covers stipulations of

settlement in courts below the Supreme and County Court levels. (See Alexander’s 2003

McKinney’s Supplementary Practice Commentaries.)



                                       Chapter 18

                                Pre-Trial and Calendar Practice

§ 18.03 Dismissal for Failure to Prosecute

p. 771

         (8) While CPLR 3216 provides the 90-day notice protection to plaintiffs who

simply do nothing in pursuance of the claim, Uniform Rule 202.27 allows for dismissal

of the suit without any such warning notice when plaintiff misses a calendar call or fails

to appear at a pretrial conference. Campos v. N.Y. City Health & Hosp. Corp., 307

A.D.2d 785, 763 N.Y.S.2d 292 (1st Dep’t 2003). If plaintiff seeks to vacate a Rule

202.27 dismissal, he must provide a reasonable excuse for the default and an affidavit of

merit, although it is not necessary to show a lack of intent to abandon the case and lack of

prejudice to defendant as he would if dismissal had been pursuant to CPLR 3404.

Uddaraju v. City of New York, 1 A.D.3d 140, 766 N.Y.S.2d 207 (1st Dep’t 2003).




                                            27
                                        Chapter 20

                            Judgments and Relief From Judgments

§ 20.02 The Structured Judgment

p. 853

[Add paragraph to the note]

         In Desiderio v. Ochs, 100 N.Y.2d 159,173, 761 N.Y.S.2d 576, 583, 791 N.E.2d

941, 948 (2003) the Court of Appeals struggled with the application of the structuring

formula in Article 50-A and concluded by urging the Legislature “as we have done

before,” to revisit the statute and amend away its impenetrable provisions. Indeed, by L.

2003, c. 86, the Legislature revamped § 5031 prompting the observation that “if the old

version was Novocain for the mind, the new is general anesthesia.” (Gleason,

McKinney’s 2003 Practice Commentaries, p. 285 pocket part.) Similar amendments

were not made to Article 50-B.



§ 20.03 Relief from Judgments

p. 857

         (6) In Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 760 N.Y.S.2d 727,

790 N.E.2d 1156 (2003) the Court of Appeals ruled that plaintiff’s papers submitted in

support of her motion for default judgment were adequate. The courts below had found

inconsistencies between plaintiff’s assertions in affidavits submitted in her suit against

two defendants, one of whom failed to appear, for injuries to her four-year-old son.

Plaintiff was an eyewitness to the accident caused by the collision of the two defendants’

vehicles, and, despite some inconsistencies in the papers, it was clear her claim against




                                             28
the defaulting defendant was based on personal knowledge. In support of the default

judgment motion plaintiff submitted her verified complaint, attorney affirmation and

defendants’ answers. CPLR 3215(f), noted the court, provides that the pleadings can be

submitted rather than, as contended by defendant, an affidavit reciting essentially the

same facts.



                                        Chapter 21

                                             Appeals

§ 21.02 Appellate Division

p. 886

[Add new n. 3]

         (3) Where a trial judge ordered a mistrial because an attorney was found

“disrespectful” during trial, that order could not be appealed to the Appellate Division

because it was not an order based on a motion on notice under CPLR 5701(a)(2). The

proper procedure would have been to move to vacate the order and if the motion was

denied then an appeal as of right could have been made to the Appellate Division. Sholes

v. Meagher, 100 N.Y.2d 333, 763 N.Y.S.2d 522, 794 N.E.2d 664 (2003).




                                            29
                                        Chapter 22

                                   Enforcement of Judgments

§ 22.06 Foreign Judgments

p. 925

[Add paragraph to § 22.06(A)]

         Where plaintiff successfully prosecuted a divorce action in Vermont, she was

barred from bringing a second action in New York for equitable distribution. The

Vermont court could have distributed the marital property in the divorce proceeding.

Vermont law prohibits a separate action for property distribution. Hence, under

principles of res judicata and Full Faith and Credit, the distribution issue was concluded.

O’Connell v. Corcoran, 1 N.Y.3d 179, 770 N.Y.S.2d 673, 802 N.E.2d 1071 (2003).



p. 925

[Add paragraph to § 22.06(B)]

         Under CPLR 5304(a)(1), a foreign country judgment need not be recognized if it

originated in a country which “does not provide impartial tribunals or procedures

compatible with the requirements of due process of law.” The English system clearly

measures up so that an ex parte order freezing defendant’s assets and directing discovery

will be honored here. The English court had jurisdiction over defendant which appeared

in the proceedings and hence the money judgment will be recognized in New York.

CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V., 100 N.Y.2d 215, 762 N.Y.S.2d 5, 792

N.E.2d 155 (2003).




                                            30
                                           Chapter 23

                                           Res Judicata

§ 23.03 Issue Preclusion

p. 962

[Insert as the third paragraph under “Note on Administrative Proceedings”]

         Even where the party against whom the administrative determination is sought to

be used is the same, collateral estoppel may not apply. Where defendant physician was

administratively found to have engaged in sexual misconduct with a patient, that finding

was held not conclusive in the patient’s civil action. The administrative panel was split in

their decision, and in a criminal proceeding the physician’s conviction was reversed on

appeal, and he was acquitted after retrial. There was just too much inconclusiveness to

allow the administrative determination to be conclusive. Jeffreys v. Griffin, 1 N.Y.3d 34,

769 N.Y.S.2d 184, 801 N.E.2d 404 (2003).



§ 23.04 The Privity Problem

p. 969

[Add new note 1, and renumber remaining notes]

         (1) The principle case was affirmed in a 6-1 decision. Buechel v. Bain, 97

N.Y.2d 295, 740 N.Y.S.2d 252, 766 N.E.2d 914 (2001). The dissenter saw the theory

used by the majority as the adoption of the “virtual representation” doctrine, theretofore

not used in New York. That doctrine would permit preclusion “merely because an issue

‘had once been adequately tried by a person sharing a substantial identify of interests

with a nonparty.’” 97 N.Y.2d at 320, 740 N.Y.S.2d at 269, 766 N.E.2d at 931. The




                                            31
dissenter wished to restrict the use of privity to the three traditional New York

concepts: where the party’s rights are derivative of the rights of the party to the previous

litigation; where the nonparty controlled or substantially participated in control of the

prior litigation; or where the nonparty had its interests represented by the losing party in

the prior litigation. 97 N.Y.2d at 317, 740 N.Y.S.2d at 261, 766 N.E.2d at 923 (2001).



p. 970

[Add note 5]

         (5) Where plaintiff sued the City for injuries to her daughter allegedly caused by

a City vehicle driven by a City employee, and obtained a default judgment against the

employee in a separate action, that judgment could not be used against the City.

Collateral estoppel does not operate where the City was not a party to the action against

the employee, and the City and employee are not in the sort of privity that would invoke

that doctrine. Chambers v. City of New York, 309 A.D.2d 81, 764 N.Y.S.2d 708 (2d

Dep’t 2003).



                                            Chapter 24

                           Confronting Unlawful Government Activity

§ 24.02 Choosing the Proper Form of Suit

p. 990

[Add the following, n. (2)]

         In Karedes v. Colella, 292 A.D.2d 138, 740 N.Y.S.2d 526 (3d Dep’t 2002) it was

held that while an article 78 mandamus proceeding to compel a village mayor to sign a




                                             32
contract approved by the village board was barred under CPLR 217, another cause of

action seeking declaratory judgment to determine the validity of the contract was timely

under CPLR 213(2).



§ 24.04 CPLR 217, Time Limitation

p. 1015

[Add new paragraphs to note (2)]

       Where lawyers who had represented defendants in capital cases sought

certification of their expense vouchers by the Governor and the Director of the State

Division of the Budget, their proceeding would be timely under the four-month period

since defendants had not made any final determination on the question but had merely

made a general policy pronouncement found to be ambiguous and uncertain. Mahoney v.

Pataki, 98 N.Y.2d 45, 745 N.Y.S.2d 760, 772 N.E.2d 1118 (2002). Illustrative of the

often difficult job of deciding when declaratory judgment or Article 78 provides the

correct remedy, the court stated that despite the “procedural necessity” for declaratory

judgment (because there was no final agency determination) the substance of the claims

nevertheless sought to compel certification of the vouchers. Hence, the Court’s noting

that the action (proceeding) would also be timely under Article 78.

       Where petitioners brought an Article 78 proceeding seeking to set aside the New

York City Department of Environmental Protection’s order approving the application for

permits to install a power generator on a floating barge, the statute of limitations began to

run when the Aconditioned negative declaration@ (CND) became final, and not 10 months

later when the New York State Department of Environmental Conservation issued an air




                                             33
permit for the project. The CND allowed the project to proceed and at that point resulted

in injury to petitioners. Stop-The-Barge v. Cahill, 1 N.Y.3d 218, 771 N.Y.S.2d 40, 803

N.E.2d 361 (2003).



                                          Chapter 25

                          Arbitration: An Alternative to Litigation

§ 25.02 The Arbitration Agreement

p. 1023

[Add new n. 4]

       (4) Where a former wife brought a proceeding under CPLR 7503 to stay a

securities arbitration brought by the former husband seeking damages against the wife, a

securities broker, and her employer, the stay was properly granted. The joint brokerage

account at the heart of the husband’s claim was dealt with in the couple’s judgment of

divorce. Thus, when a court’s judgment is at issue, the effect of that judgment should be

left to the court. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Benjamin, 1 A.D.3d 39,

766 N.Y.S.2d 1 (1st Dep’t 2003).



p. 1028

[Add new n. 3]

       (3) Where an arbitration agreement between an attorney and the New York law

firm for which he worked broadly covered any disputes, the firm was entitled to have

enjoined the attorney’s suit brought in Mexico where the firm had a branch office and

where statutes facilitated the claims. The lawyer, although a Mexican native, resided in




                                           34
New York where he is a member of the bar. The firm’s New York office was the only

office where he worked. The matters in dispute arose in New York and thus there was no

reason to circumvent the strong policy favoring agreements to arbitrate. Curtis, Mallet-

Prevost, Colt & Mostle, LLP v. Garza-Morales, 308 A.D.2d 261, 762 N.Y.S.2d 607 (1st

Dep’t 2003).



§ 25.04 The Award and Attacks on It

p. 1038

[Add paragraphs to n. 2]

          In City of Johnstown v. Johnstown Police Benevolent Ass’n, 99 N.Y.2d 273, 755

N.Y.S.2d 49, 784 N.E.2d 1158 (2002) the Court of Appeals found that public policy

would not be breached were the retirement benefits part of a public employees’ collective

bargaining contract submitted to arbitration.

          Where a Board of Education participated in the arbitration of a teacher’s

grievance, it could not seek vacatur of an adverse award on the ground the issue was not

within the agreement to arbitrate. The arbitrator did not exceed the scope of her authority

when she overruled the Board’s decision not to select the teacher for a certain position.

Even though the arbitrator’s decision was “debatable,” the court cannot substitute its

judgment. United Fed’n of Teachers v. Bd. of Educ., 769 N.Y.S.2d 451, 801 N.E.2d 827

(2003).




                                              35

								
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