Fourth Department

Justice Scudder Designated as 4th Department Presiding Justice By Gov. Pataki

As reported here, Governor Pataki has designated Justice Henry Scudder as the Presiding Justice of the Appellate Division, Fourth Department.  (Hat tip:  New York Civil Law). 

As I'd indicated in this prior post, it had been predicted that he was the leading contender to replace  Justice Pigott as the Presiding Justice.


Fourth Department--Assumption of Risk Not Established

In Curtis v Town of Inlet, 2006 NYSlipOp 07005, the plaintiff alleged that he drove his snowmobile over an embankment and into a ravine as a result of the defendant's failure to appropriately mark the trail  so as to warn of an upcoming "Y' intersection.  The trial court granted the defendant's motion for summary judgment and dismissed the claim on the grounds that the plaintiff assumed the risk of his injuries.

The Fourth Department disagreed with the trial court and concluded that the defendant failed to meet its burden of proving the risks inherent in the sport of snowmobiling and likewise failed to establish that the trail at issue was free from defects not inherent in the sport, such as inadequate trail signage. 

The Court held that:

In order to establish its entitlement to judgment as a matter of law based on a plaintiff's assumption of risk, the defendant must establish that the plaintiff was aware of the allegedly defective or dangerous condition and the accompanying risk, although...Whether the plaintiff was aware of the risk assumed depends upon the background of the skill and experience of the particular plaintiff...We conclude in any event that plaintiff raised issues of fact with respect to his training and experience as a snowmobiler and whether, under the circumstances, the signage of the trails was sufficient to satisfy defendant's duty to "make the conditions as safe as they appear to be...  (Internal citations and quotations omitted).

Personally, I'll never understand why people insist on riding on itsy-bitsy unprotected vehicles at speeds of upwards of 100 mph in the freezing cold.  And, when I read comments like these, I'm inclined to believe that assumption of the risk should always apply to preclude suits by those who partake in this particular sport. 

But, then again, I prefer to sit in the ski lodges and sip hot cocoa by the fire while my companions hurtle themselves down steep hills with little sticks strapped to their feet, so my opinion on this issue should be taken with a grain--no, make that a shaker--of salt.


Pataki Designates Justice Centra to Fourth Department

Today, Judge Pataki designated Justice John V. Centra to the Appellate Division, Fourth Department.  From the Governor's press release:

Justice Centra was elected in November 1999 as a Supreme Court Justice in the Fifth Judicial District. In April 1999, Justice Centra had been appointed by the Governor as an interim Justice of the Supreme Court to fill a vacancy created by the resignation of Norman A. Mordue. Prior to that, he served as DeWitt Town Justice and engaged in the private practice of law in Onondaga County, where he specialized in commercial litigation. From 1996 to 1999, he also taught at the Vera House Coalition on domestic violence. From 1982 until 1989, Justice Centra served in the Onondaga County District Attorney's Office.

And, the New York Law Journal is reporting that Justice Scudder is the leading contender to replace Justice Pigott as Presiding Justice:

Fourth Department Justice Henry J. Scudder is the leading contender to become the court's presiding justice, John F. O'Mara, a long-time advisor to Governor George E. Pataki, said in an interview yesterday. Mr. O'Mara, who has known Justice Scudder for 35 years since the two were prosecutors in adjoining counties, said that Justice Scudder is the leading candidate because of "his excellent reputation on the bench." In addition, he said, Justice Scudder, 61, will likely be the senior most member of the court to apply for the post. The next presiding justice will succeed Eugene F. Pigott Jr., who was confirmed Sept. 15 for Court of Appeals.

Hat tip:  Indignant Indigent.


Fourth Department Addresses Conflict of Law Issue

Conflict of law issues can sometimes be confusing, so it's always helpful to review the applicable law.  In a recent  Fourth Department decision, the Court considered the issue of whether New York law or the laws of Ontario applied in Marillo v Benjamin Moore & Co., 2006 NY Slip Op 07007.  In this case, the plaintiff, who lived in New York, was injured while unloading a truck at a manufacturing facility owned by one of the defendants in Ontario, Canada.  Both corporate defendants, one of whom was the parent company of the other, were domiciled in New Jersey.

The conflicting laws related to the cap on the amount of noneconomic damages recoverable by the plaintiff, and thus the parties agreed that the the conflicting laws were loss-allocating rather than substantive.

Thus, as the Fourth Department stated:

(O)ne of the three Neumeier rules applies (Neumeier v Kuehner, 31 NY2d 121, 128; see Cooney v Osgood Mach., 81 NY2d 66, 72; Dorsey v Yantambwe, 276 AD2d 108, 110, lv denied 96 NY2d 712). The determination of which rule applies depends, in the first instance, on the domiciles of the parties (see Cooney, 81 NY2d at 73-74).

The Court determined that pursuant to the third rule set forth in  Neumeier, New York law applied in this case:

Ontario has no interest in the application of its limitation on the recovery of noneconomic damages in an action between nondomiciliaries (see King v Car Rentals, Inc., 29 AD3d 205, 214), but New York has "an important interest in protecting its own residents injured in a foreign [jurisdiction]" by ensuring that they may receive full compensation for their injuries...


4th Dept.--Two Cases of Interest

The Fourth Department recently handed down a number of decisions.  I'll be highlighting a few of the cases over the next few days.  For today, two decisions of interest, one addressing an evidentiary issue and the other a venue issue:

  • Foley v West-herr Ford, Inc., 2006 NY Slip Op 06723--The Fourth Department held that the lower court properly concluded that information collected by the defendants' experts was not discoverable:
    • Supreme Court did not abuse its discretion in denying plaintiffs' motion to compel disclosure of, inter alia, the factual findings, calculations, measurements and diagrams collected by defendants' experts from the accident scene (see generally Nyhlen v Millard Fillmore Hosps., 275 AD2d 943). The information sought is immune from disclosure because it constitutes material prepared in anticipation of litigation, and plaintiffs failed to demonstrate a substantial need for such information and that they were unable to obtain its substantial equivalent without undue hardship (see CPLR 3101 [d] [2]).
  • Eber-ndc, LLC v Star Indus., Inc., 2006 NY Slip Op 06940--The Fourth Department held that the trial court erred when it consolidated actions pending in two counties and changed the venue to its county:
    • Pursuant to CPLR 511 (c) and 2201, once Star moved in the Nassau Court to change venue in the Monroe action, that court had the authority to stay the proceedings in the Monroe action. Despite the Nassau Court's order staying all proceedings in that action, which was then pending in Monroe County, the Monroe Court nevertheless granted Eber's motion to consolidate and, "incidently," changed the venue of the Nassau County action to Monroe County. We conclude that the Monroe Court erred in failing to give effect to the stay ordered by the Nassau Court. Even if the stay were improperly granted, the proper procedure would have been for Eber to move to vacate the stay. (Internal citations omitted.)

"Platonic" Roommates Out of Luck

In an interesting case handed down last week,  Matter of Erie Ins. Co. v. Williams, 2006 NY Slip Op 06716, the Fourth Department considered the issue of whether the cancellation of an automobile insurance policy as to one insured, Tiffany Luterak,operated to effectively cancel the insurance as to the other insured, Bill Williams. 

Apparently Bill and Tiffany shared the costs of maintaining and insuring their cars.  Erie Insurance  canceled Tiffany's automobile insurance policy and thereafter Bill was involved in an accident with that vehicle.  He then commenced a supplementary uninsured motorist claim against Erie and Erie then sought to stay the arbitration on the grounds that no insurance was in effect at the time of the accident since Bill was "a member of (Tiffany's) household" at the time of the cancellation.

The Fourth Department concluded that Bill and Tiffany did in fact reside together, but as "platonic roommates":

We conclude, instead, that respondent on the date of cancellation "actually resided in the insured['s] household with some degree of permanence and with the intention to remain for an indefinite period of time" (Matter of Biundo v New York Cent. Mut., 14 AD3d 559, 560). The record establishes that, although respondent and Luterek were platonic roommates, they were living as members of a single household and indeed were sharing the costs of maintaining their vehicles and the insurance thereon. We thus conclude that the policy was not in effect at the time of the accident. Under the circumstances, petitioner had no obligation to disclaim liability or to deny coverage (see generally Insurance Law § 3420 [d]; Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188-190; Zappone v Home Ins. Co., 55 NY2d 131, 137-138).

The holding makes perfect sense to me.  It's the alleged facts that I have a problem with.  I smell a rat. 

I'm thinking Bill and Tiffany pulled the wool over the Court's eyes.  It sounds as if Bill and Tiffany, "platonic" roommates, each owned a car, so why didn't they each pay for and insure their own car?  Why bother combining costs, unless one person was paying more than their fair share?  And why would a "platonic" friend do that?  I've had a number of good friends in my life, but none of them ever paid for my car insurance.   Must be I've got the wrong kind of friends.

But, I digress.  Platonic relationship or not, it wouldn't have changed the holding.  Nevertheless, Bill and Tiffany--you're not fooling me.


Fourth Department Finds Insurance Policy Ambiguous...

In Topor v Erie Ins. Co., 2006 NYSlipOp 03324, the Fourth Department concluded that an insurance policy provision was ambiguous, but nevertheless found in favor of the defendant.  In Topor, the plaintiffs sought to recover for a loss that occurred when the parapet of a building collapsed.  The defendant alleged that the policy excluding damage caused by rotting, and that the parapet collapsed due to rotted mortar joints in the brick wall.  The plaintiff countered that the "rotting" provision only applied only to wood.

The Court set forth the relevant law in regard to interpreting insurance contracts:

(I)t is well established that [a]n exclusion from policy coverage must be specific and clear in order to be enforced; the exclusion must be set forth in clear and unmistakable language'. . . . The burden is on the insurer to demonstrate that the exclusion applies in the particular case and that the policy language relied upon by the insurer in support of the exclusion is subject to no other reasonable interpretation. The construction and effect of a contract of insurance is a question of law to be determined by the court where[, as here,] there is no occasion to resort to extrinsic proof... Any ambiguity in the insurance policy must be resolved against the insurer, its drafter. (Internal citations and quotations omitted.)

The Court applied these principles and determined that the policy was ambiguous in regard to the application of the "rotting" provision, but nevertheless concluded that the plaintiffs failed to establish that the loss fell within the policy terms:

The evidence submitted by plaintiffs in support of their motion established that the collapse was caused by both the deterioration and loosening of the mortar joints in the brick wall based on water infiltration and the freezing and thawing of that water, and by the rotting of the wooden portion of the supporting structure of the parapet. On the record before us, plaintiffs conceded in opposing defendant's cross motion that the policy excludes damage caused by the rotting of wood, and plaintiffs submitted evidence in support of their motion establishing that the loss may have been caused at least in part by the rotting of wood. We thus conclude on the record before us that plaintiffs failed to meet their burden of establishing that the loss was covered under the policy as a matter of law.  (Emphasis added).

Oops.  I suppose that the lesson to be learned is to never concede anything.  Or maybe the lesson is to make sure that your concessions don't undermine your position.  Or perhaps to think before you speak. 

I'm not entirely sure.  But there's a lesson in there somewhere.  And, it's an important one.


Fourth Department Addresses Statute of Limitations Issue

The Court of Appeals handed down another set of decisions yesterday, and I plan to address a number of the decisions in the coming weeks.  I still have a few leftover cases from the last round of decisions that I haven't gotten to yet, as well.  However, there is always a dry spell in the summer, so I'll have plenty of time to cover the Court of Appeal's decisions, as well as decisions from all four Appellate Divisions in the upcoming months.

In the meantime, the Fourth Department recently considered an interesting issue in Schoemann v Adams, 2006 NY Slip Op 03345.  In this case, the plaintiff commenced an action seeking to recover for personal injuries by filing a summons with notice.  An affidavit of service upon the defendant was never filed and the defendants never appeared in the action, so it was deemed dismissed after 120 days had passed. 

Pursuant to CPLR s. 306-b(b), the plaintiff had 120 days after the dismissal to commence a new action, even though the statute of limitations had expired between the time that the action was initially commenced and then dismissed. 

During the second 120 day period, the plaintiff filed a complaint and second summons with the County Clerk's office, and was re-issued the same index number that had been issued in the first action.

The defense made a motion to dismiss the second action on the grounds that it had not been commenced within the three year statute of limitations since the plaintiff had failed to "to purchase a new index number and file new initiatory papers under a new index number prior to the expiration of the statute of limitations ... or within 120 days after the [first action was deemed dismissed]."

The Court concluded that the re-issuance of the same index number by the County Clerk's office did not invalidate the commencement of the action.  The Court stated that:

Plaintiff established that he paid the requisite filing fee and secured "an index number" for the new action. Defendants failed to preserve for our review their present contention that the receipt submitted by plaintiff to prove that he paid the second filing fee constitutes inadmissible hearsay. We thus conclude that, although the index number given to plaintiff by the County Clerk's office was not a "new" index number, plaintiff complied with the "absolute necessity of purchasing an index number to commence [the] action".  (Internal citations omitted)

This is a prime example of why, in my opinion, an action should never be commenced by the filing of a summons with notice--especially when the statute of limitations is about to run.  Too many things can go wrong and some things are entirely out of your control, such as the situation that occurred in this case.  And if that happens, then you're quite possibly out of luck and so is your client.

Professor David Siegal hammered that point home in my New York Practice class in law school, and I've never forgotten it.  As he always used to stress--play it safe in your cases and let the appellate courts decide the law in SEC (someone else's case).

The plaintiff got lucky in this case.  Why risk it?  File a summons and complaint and forego the summons with notice and all the potential pitfalls inherent in that method of commencing a case.


Was Illegally Parked Bus a Proximate Cause of the Accident?

Gerrity v. Muthana, 2006 NY Slip Op 03180, is an interesting Fourth Department case in which the Court considered the issue of whether the summary judgment motion of one of the defendants, the owner of an illegally parked bus, was properly granted by the trial court.

In this case, the plaintiff was injured when a car driven by one of the defendants ran a red light and struck the bus that the plaintiff was driving, thus causing the bus to collide with yet another bus that had been illegally parked in a "No Standing" area.  It was undisputed the plaintiff's injuries were cause by the collision with the second bus, rather than the initial collision with the car that ran the red light.

The Fourth Department upheld the trial court's ruling and held that the lower court had properly granted summary judgment in favor of the owner of the illegally parked bus: 

Defendant met its burden on the motion by establishing as a matter of law that the sole proximate cause of the accident was Muthana's failure to stop at the red light, and plaintiffs failed to raise an issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). The location of defendant's bus " merely furnished the condition or occasion for the occurrence of the event' and was not one of its causes" (Mendrykowski v New York Tel. Co., 2 AD3d 1410, 1410).

I'm not entirely convinced by the majority's logic and find the dissent's argument to be more compelling.  The dissent concluded that the incident was a "chain reaction" accident that consisted of two separate collisions and stated that:

"It has been held in a variety of factual circumstances that owners of improperly parked cars may be held liable to plaintiffs injured by negligent drivers of other vehicles, depending on the determinations by the trier of fact of the issues of foreseeability and proximate cause unique to the particular case" (O'Connor v Pecoraro, 141 AD2d 443, 445, citing, inter alia, Ferrer, 55 NY2d 285). Where, as here, the connection between the parking violations and the happening of the accident is logical and immediate enough to present an issue of fact, the issue is one for the trier of fact and is not properly resolved on a motion for summary judgment (see id.; cf. Dormena v Wallace, 282 AD2d 425, 427).

Given that there is a viable argument that the plaintiff's injuries would not have occurred but for the illegally parked bus, I think that there is an issue of fact.  A reasonable fact-finder could determine that the plaintiff's injuries were foreseeable and proximately caused by the illegally parked bus. 

Had the bus been parked legally, it would have been a different story.  But, that's not the case here.  It's hard for me to stomach the fact that the plaintiff appears to now have no recourse for his injuries.


Were Injuries Resulting From a Replacement Wheelchair Foreseeable?

Campbell v. Central N. Y. Regional Transp. Auth., 2006 NY Slip Op 03193, is a very interesting case in which the Fourth Department considered whether the injuries of a wheelchair-bound plaintiff that was hit by a bus were foreseeable.

The plaintiff suffered from "profound deformities" and as a result, used a highly customized wheelchair which was destroyed when hit by the bus owned by the defendant.  The plaintiff was forced to use a wheelchair on loan from a local medical facility that was not customized.  As a result, he developed "skin necrosis and abscess formation which required multiple surgical procedures to repair ...." and subsequently sued seeking recovery for those injuries and the replacement cost of his wheelchair.

The Court first noted that liability for negligence turns upon the foreseeability of any harm, not a particular harm and that once a prima facie case has been established, it is the province of the finder of fact to determine the legal cause of the injuries.

The Court further elaborated:

In order to establish a prima facie case, a plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury. Although there are times when [a]n interruption of the nexus between a defendant's negligence and the plaintiff's injury by the act of a third party may affect defendant's liability, the intervening act must be extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct.  When, however, the intervening act is a natural and foreseeable consequence of a circumstance created by defendant, liability will subsist...Invariably, summary judgment is appropriate where only one conclusion may be drawn from the established facts.  (Internal citations and quotations omitted.)

Accordingly, the Fourth Department held that the trial court improperly dismissed the Complaint.

The dissent disagreed and stated that:

The record establishes, however, that plaintiff sustained only minor soft tissue injuries that do not qualify as a serious injury within the meaning of Insurance Law § 5102 (d) and § 5104 (a). The record further establishes that the skin necrosis and abscess, which did not appear until approximately two months after the accident, were not related to any injury plaintiff sustained in the accident, but rather were caused by an ill-fitting replacement wheelchair. We must therefore conclude that, although the issue of proximate cause is ordinarily "for the fact finder to resolve," here the ill-fitting replacement wheelchair constituted an "independent intervening [occurrence] which operate[d] upon but [did] not flow from the original negligence".

I think that the majority is correct in regard to the foreseeability issue in this case.  But for the accident, the plaintiff's customized wheelchair would not have been destroyed, and he would not have ended up with abcesses, etc. due to the replacement wheelchair.  And, the injuries resulting from the inadequate replacement were not so outside the realm of possibility as to be unforeseeable.

However, the dissent touches upon an interesting issue regarding  whether the plaintiff's injuries (either directly resulting from the accident or from the non-customized wheelchair) constitute a serious injury.  I'm not sure of the answer, but my inclination would be that they don't.  Anyone else have an opinion either way?