New York Civil Procedure

Mining for Metadata in New York?

 In the smack down of the decade, the New York County Lawyer's Association Ethics Committee butts head with the American Bar Association Ethics Committee on the issue of mining for metadata inadvertently disclosed by opposing counsel.  It's hunky dory per the ABA, but apparently the NYCLA respectfully disagrees with that conclusion.

And how:

This Committee finds that the NYSBA rule is a better interpretation of the Code’s disciplinary rules and ethical considerations and New York precedents than the ABA's opinion on this issue. Thus, this Committee concludes that when a lawyer sends opposing counsel correspondence or other material with metadata, the receiving attorney may not ethically search the metadata in those electronic documents with the intent to find privileged material or if finding privileged material is likely to occur from the search.

Oh snap!  Wish I could have been a fly on that wall!

Hat tip:  Legal Blog Watch.

Newly Enacted NY Subpoena Rule

Checkmark CPLR 2303-a was recently enacted and became effective on January 1, 2008. 

This useful and time saving new rule simplifies the trial subpoena process by allowing a litigant to subpoena a party or a person under the party's control for appearance at trial by simply serving the subpoena upon the party's attorney of record, as set forth in CPLR 2103(b).

The new rule provides:

Where the attendance at trial of a party or person within the party's control can be compelled by a trial subpoena, that subpoena may be served by delivery in accordance with subdivision (b) of rule 2103 to the party's attorney of record.

(Added L.2
007, c. 192, § 1, eff. Jan. 1, 2008.)

McKinney's CPLR § 2303-a, NY CPLR § 2303-a

Hat tip:  NY

It Looks Like We'll Never Know if There's a Right to Privacy in Times Square.

Gavel2A case that I discussed in March of 2006, when this blog was in its infancy, has made its way to the New York Court of Appeals.  The case is Nussenzweig v diCorcia, 2007 NY Slip Op 08783 and involves an Hasidic Jew, a photographer and an art exhibition.

It seems that one of the defendants, a famous photographer, snapped a picture of the plaintiff, a Hasidic Jew, sometime between 1999-2001.  The plaintiff was unaware that his image had been captured.

In the Fall of 2001, the disputed image was included in an art exhibition.  The plaintiff learned of this fact in March of 2005 and shortly thereafter, commenced this lawsuit alleging that the defendants had violated his statutory right of privacy as set forth in Civil Rights Law §§ 50 and 51.

The Court of Appeals concluded that the lawsuit was untimely, sinnce the statute begins to run from the date of publication, rather than the date of discovery of the publication:

Pursuant to CPLR 215(3), "an action to recover damages for . . . libel, slander . . . or a violation of the right of privacy under section fifty-one of the civil rights law" must be brought within one year. In Gregoire v G.P. Putnam's Sons, this Court formulated the single publication rule, which states that a cause of action for defamation accrues on the date the offending material is first published (298 NY 119, 125-126 [1948])...

The policy underlying the adoption of that rule is likewise implicated here and we therefore hold that the single publication rule applies to claims brought pursuant to Civil Rights Law §§ 50 and 51. Because the publishing event giving rise to plaintiff's right of privacy claims first occurred no later than the fall of 2001, more than one year before he commenced suit, plaintiff's claims are time-barred.

Bummer for the plaintiff and for the rest of us.  Although we now know that standing around in Times Square is not an unlawful offense, it seems that we're still left to ponder the issue of whether New York's Civil Rights laws apply there. 

NY Court of Appeals Considers Statute of Limitations Issue

Gavel2At issue in GML, Inc. v Cinque & Cinque, P.C., 2007 NY Slip Op 07912 was whether, pursuant to CPLR 202,  the Tennessee statute of limitations applied to a legal malpractice claim commenced in New York by Tenesee plaintiffs.  The defendants were subject to jurisdiction in both jurisdictions.

CPLR 202 provides as follows:

An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.

The plaintiffs asserted that because defendants were not subject to in personam jurisdiction in Tennessee, Tennessee's tolling provision was applicable.

The New York Court of Appeals disagreed, holding that:

This action was commenced in New York and, as such, it was not necessary to toll the statute of limitations since defendants — residents of New York — were amenable to suit in New York for the entire period of Tennessee's statute of limitations. It is irrelevant whether defendants are also subject to suit in Tennessee and unnecessary to determine whether defendants were subject to personal jurisdiction in Tennessee. A conclusion to the contrary would cause the statute of limitations to be tolled indefinitely against these defendants. We do not believe that the Legislature intended this result in enacting CPLR 202.

New Rules in NY for Motion Practice and Trial Subpoenas

Gavel2MOTION RULES:  Effective 7/3/07, CPLR 2214(b) and 2215 have been revised.  As of this afternoon, I have confirmed the changes on Westlaw.

Of particular interest is the change in the time in which to serve  cross-motions.  The proposed changes can be found here.

The relevant changes are set forth below, with the proposed language in blue and the old language in [brackets]:

2214(b)...Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least [twelve] sixteen days before such time  so  demands;  whereupon  any  reply  or  responding  affidavits shall be served at least one day before such time.

2215...Relief demanded by other than moving party. At least three     days prior to the time at which the motion is noticed to  be  heard,  or     seven  days  prior  to  such time if demand is properly made pursuant to   subdivision (b) of rule 2214, a party may serve upon the moving party  a     notice  of  cross-motion  demanding  relief,  with or without supporting  papers; provided, however, that:     (a) if such notice and any supporting papers are served by mailing, as   provided in paragraph two of subdivision (b) of rule 2103, they shall be   served three days earlier than as prescribed in this rule; and...

TRIAL SUBPOENA RULES:  Effective on January 1, 2008, a new section will be added to the CPLR with the intent of reducing the need for formal service of trial subpoenas on a party or person within the party's control, thus avoiding unnecessary expense for the party serving the subpoena and unnecessary annoyance and embarrassment for the party receiving the subpoena. The new provision, CPLR 2303-a, will allow for service of a subpoena in the same manner as all other papers which are served by one attorney upon another as set forth in CPLR 2103.

The newly proposed rule can be found here and is set forth in full below:

2303-a  Service of a trial subpoena.

Where the attendance at trial of a party or person within the party's control can be  compelled  by  atrial  subpoena,  that  subpoena may be served by delivery in accordance      with subdivision (b) of rule 2103 to the party's attorney of record.

Hat tip:  New York Personal Injury Law Blog and New York Attorney Malpractice Blog.

Spitzer Proposes Major Judicial Reform

As reported in this Buffalo Business First article, on April 26th, Governor Spitzer offered a judicial reform package that would substantially change the New York judicial system as we know it. Gavel

First, Supreme Court justices would no longer be elected, an issue that has been hotly debated ever since a U.S. District Court ruled that the current judicial nominating system was unconstitutional:

(T)he governor wants to be able to appoint justices of the Supreme Court, the lowest level of New York state court, to be chosen by regional judicial nominating commissions. Supreme Court judges are elected for 14-year terms...Under Spitzer's plan local judicial commissions would vet candidates and forward a list of potential justices to the governor, who would make the final selection. The same system is used to pick judges for the four Appellate Division courts.

The proposed reform goes even further than that, however, and suggests that a number of changes be implemented, including:

  • Consolidating the state's trial courts into a two-tiered statewide system
  • Increasing the number of Supreme Court judges
  • The creation of a fifth appellate court division
  • Allowing appellate division to be redrawn every ten years instead of being fixed
  • Increasing judicial salaries
    • Supreme Court judges would receive an annual salary of $162,100, and effective April 1, 2006, Supreme Court judges would get $165,200. Salaries of all other judicial officers would be based on a percentage of the salary set for Supreme Court Justices

Major changes are on the horizon should this reform package be enacted. Some of the proposed changes, such as increasing judicial salaries and adding more Supreme Court judges, make sense to me. 

But, I was somewhat surprised by the proposed changes regarding the addition of an appellate division and allowing the redistricting of the appellate divisions every ten years.  I haven't read anything that has indicated that the current set up is problematic, so it seems strange that the Governor wants to enact such extreme changes.  But, maybe I'm missing a piece of the puzzle.

Either way, I'm having a hard time envisioning the effect of all of these changes--particularly as they relate to the appellate divisions.  Would the overall effect be good, bad, or negligible? What do you think?

Judges' Part Rules

Rules_graphicThe New York Law Journal provides free online access to the judges' part rules (registration is required). 

The rules can be accessed here and, as explained, the database consists of "a comprehensive listing of the Rules for the Judges in both State and Federal Courts. Counties included are New York, Bronx, Kings, Queens, Richmond, Suffolk, Nassau, Westchester, Dutchess, Orange, Putnam and Rockland. We also provide the rules for both Southern and Eastern District Judges as well as the Second Circuit Court of Appeals."

(Hat tip:  New York Supreme Court Criminal Term Library).

Second Circuit Certifies Question to NY Court of Appeals

In Reliance Insurance Co. v. Polyvision Corp., the Second Circuit recently certified the following question to the New York Court of Appeals:

Does CPLR 205(a) allow a corporation to refile an action within six months when a previously, timely-filed action has mistakenly been commenced in the name of a different, related corporate entity and has been dismissed for naming the wrong plaintiff?

(Hat tip:  Second Opinions).

Another 9/11 Notice of Claim Issue

Just last week I posted about a First Department case decided on October 3, 2006, Matter of Goffredo, in which the Court denied the petitioner's application for leave to serve a late notice of claim for injuries that were sustained during 9/11 clean up efforts.

That case has already been cited in another case, Matter of Auditore v. City of New York, 2006 NY Slip Op 26405, a New York County Supreme Court matter. 

In Auditore, the petitioner also sought leave to serve a late notice of claim relating to injuries sustained as a result of exposure to toxic substances during clean up efforts at Ground Zero.  Ultimately, the Court concluded that it was bound by the Goffredo decision and denied the petitioner's application, although the Court noted that but for Goffredo, its inclination would have been to grant the petition:

The investigation of environmental concerns by various levels of government, and the intense media attention and public discussion of the working conditions, air quality and the composition of World Trade Center debris and the smoke and fumes emanating from the debris, bely the City's contention that it was surprised by petitioner's notice of claim and that it did not obtain actual knowledge of the nature of petitioner's claims respecting the City's alleged acts and omissions.General Municipal Law § 50-e (5) should not operate as a device to defeat the rights of persons with legitimate claims... But for the Appellate Division's decision in Matter of Goffredo...this Court would have exercised its discretion to grant petitioner such leave.  (Internal citations and quotations omitted).

Interestingly, the Court noted the following very relevant piece of information that was not mentioned in the Goffredo decision--that a federal statute, the Air Transportation Safety and System Stabilization Act of 2001 (ATSSSA) applied to all claims of this nature: 

By enacting the Air Transportation Safety and System Stabilization Act of 2001 (ATSSSA), Congress created a federal cause of action for 9/11-related claims of toxic exposure as an exclusive remedy, and vested the federal District Court in the Southern District of New York with exclusive jurisdiction over these exposure claims."See 49 USC § 40101 note. In McNally v Port Authority of New York & New Jersey (In re: WTC Disaster Site) (414 F3d 352 [2d Cir 2005]), the United States Court of Appeals for the Second Circuit held that the ATSSSA preempted state law remedies for respiratory injuries resulting from exposure to toxic substances from Ground Zero.

The Court noted that pursuant to the ATSSSA, the applicable federal statute of limitations of 4 years might very well apply in the case at hand and that the Southern District had exclusive subject matter  jurisdiction over this case.   Nevertheless, the Court felt constrained to follow the precedent set in Goffredo and denied the petitioner's application, but noted that:

Should petitioner pursue a plenary action in federal court without a notice of claim, and should the federal District Court determine that no notice of claim is required, there would still remain a question of whether this Court's determination would have any preclusive effect in federal court. If no notice of claim were required, then no application for leave to serve a late notice of claim would be necessary, thus rendering this proceeding, and the City's objections, academic. For the reasons addressed above, that issue would be appropriately raised in the federal court.

Yet another very interesting case involving allegations of injuries sustained at Ground Zero.  Hopefully the petitioner will be able to successfully pursue a claim in federal court.

1st Department Considers 9/11 Notice of Claim Issue

I always find cases involving late Notice of Claim issues to be of particular interest given the serious ramifications presented by an untimely Notice of Claim.  And, the First Department case, Matter of Goffredo v City of New York, 2006 NY Slip Op 07196, is all the more interesting since it involves allegations of injuries sustained by the petitioner as a result of exposure to toxins while working at the World Trade Center site between September 11, 2001 and June of 2002. 

And, it's jam-packed full of interesting holdings regarding a multitude of procedural issues, not all of which will be included in this post.  So, you may very well wish to read this opinion in its entirety.

In this case, the petitioner's symptoms first appeared in December 2001 and he was eventually diagnosed with Chronic Obstructive Pulmonary Disease on February 27, 2003.  He sought to serve a late Notice of Claim on December 23, 2003 via an un-notarized affidavit, although no objection was raised at the time regarding the fact that the affidavit was not notarized.  Nevertheless, the trial court denied (without prejudice to renew) the motion for leave to serve a late Notice of Claim on the grounds that the affidavit was not notarized. 

The petitioner then made a motion to renew on or about June 15, 2003 and correctly filed the motion papers that time around.  The trial court again denied the motion, this time on the grounds that relief was being sought after the one year and ninety day statute of limitations had expired.

The First Department stated that the trial correct had improperly denied the first application, since an objection to the un-notarized affidavit had not been made, but concluded that the trial court was correct in denying the motion for leave to serve a late Notice of Claim since the applicable statute of limitations had expired:

General Municipal Law § 50-e(5) provides, in relevant part, that: "Upon application, the court, in its discretion, may extend the time to serve a notice of claim . . . . The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation [i.e., one year and ninety days]." Thus, once the statute of limitations has expired, the court is without discretion to entertain an application for leave to file a late notice of claim...

Where, as here, the claimed injury results from exposure to a harmful substance, the action accrues upon discovery of the manifestations or symptoms of the latent disease that the harmful substance produced... The diagnosis of petitioner's illness occurred on February 27, 2003. However, petitioner's medical records demonstrate that the symptoms manifested themselves on or about December 19, 2001. Since petitioner commenced the initial proceeding on or about December 23, 2003, approximately two years after his claim accrued, his initial petition was untimely and subject to dismissal.  (Internal citations and quotations omitted.)

The Court then went on to consider another interesting procedural question:  whether a motion to renew relates back to the date when the original motion was filed.  The dissent contended that the petitioner's original application was timely and thus, the renewed application was timely as well.  The majority dismissed that argument, refusing to adopt the contrary holding a Second Department case directly on point (Matter of Mazzilli v City of New York (115 AD2d 604 [2d Dept 1985])), and stated that:

Even assuming that petitioner's initial application to file a late notice of claim was timely, the renewed application was not. Once Supreme Court denied the initial application, petitioner's remedy was to appeal from that order. That course of action would have preserved the timely application... Petitioner's decision to renew the application rather than appeal cannot easily be criticized in light of Supreme Court's denial without prejudice to renew. The more prudent course, however, would have been both to appeal and renew the application. In any event, our sympathy for the position petitioner was placed in by Supreme Court does not provide a basis for concluding that the renewed application should have been granted.

An untimely renewal motion does not relate back to the date when the originally timely motion was made... As we have noted, acceptance of the "relation-back" doctrine in this regard is inappropriate because the statute of limitations would have no practical effect for it would impose no time constraint on seeking renewal.  (Internal citations and quotations omitted.)

A number of other interesting procedural arguments were raised in this decision and I highly recommend that you read it in its entirety.  I find the dissent's argument to be quite compelling in many respects.  Anyone care to convince me that the majority got it right?