New York Civil Procedure

Is An Expert Affidavit Required in Toxic Tort Claim?

In an interesting decision, Kordasiewicz v Bcc Prods., Inc., the Fourth Department considered the issue of whether the lower court should have dismissed the plaintiffs' toxic tort claim.  The plaintiffs initiated the action by serving a Summons with Notice and failed to serve a timely Complaint, following the defendants' demand for same.  The defendants cross-moved for order dismissing the action as a result of the plaintiffs' failure to serve a timely Complaint  pursuant to CPLR s. 3012(b).

The Fourth Department noted that in order to avoid dismissal of the action after a demand for the Complaint has been made, the plaintiff must demonstrate a reasonable excuse for the delay in serving the Complaint and must establish a meritorious cause of action.

The Court held that the plaintiffs failed to establish a meritorious cause of action, since the belatedly served verified Complaint did not specify the toxins to which the plaintiff had been exposed or that had caused his cancer.  The Court also concluded that:

(T)he averments of a lay plaintiff cannot serve as the essential showing of the merit ... where, as here, the averments include matters not within the ordinary experience and knowledge of laypersons. Contrary to plaintiffs' contention, the rule requiring an expert's affidavit to establish merit applies to any case in which plaintiffs' claims are not based on matters within the ordinary experience and knowledge of laymen, and thus that requirement is not limited to medical malpractice cases.  (Internal citations and quotations omitted).

This appears to be yet another situation in which it would have been advisable to simply serve an unverified Complaint from the get go. There are far too many unforeseen pitfalls encountered when lawyers seek to delay drafting a Complaint by serving a Summons with Notice, as can be seen by the extreme result in this case.

As I understand this holding, the verified expert affidavit, which is required by statute for medical, dental and podiatric malpractice cases pursuant to CPLR 3012-a, is only required at this stage in this case because the plaintiffs served a Summons with Notice  and failed to serve a timely Complaint in response to the defendants' demand for the same.  In other words, the verified affidavit regarding merit was necessary only because the plaintiffs were required to establish a meritorious cause of action in defense of the defendants' CPLR 3012(b) motion.

To the best of my knowledge, no such affidavit is required at this stage of a toxic tort claim in New York under any other circumstances.  However, it's possible that I'm incorrect.  If you think I'm wrong in that regard, or if you disagree with my interpretation of this case, feel free to let me know. 


NY Court of Appeals Holds Clergy Abuse Victims' Claims Not Tolled

Yet another significant case was handed down by the Court of Appeals yesterday in Zumpano v. Quinn, 2006 N.Y. Slip Op. 01245.  At issue was whether equitable estoppel applied to toll the statute of limitations for claims made by clergy abuse victims from Brooklyn. 

The Court considered the plaintiffs' claim that the defendants should not be allowed to benefit from their wrongdoing in covering up the alleged abuse and concluded that equitable estoppel was inapplicable and thus the claims were time barred.  The Court stated that:

A wrongdoer is not legally obliged to make a public confession, or to alert people who may have claims against it, to get the benefit of a statute of limitations. Plaintiffs do not allege any specific misrepresentation to them by defendants, or any deceptive conduct sufficient to constitute a basis for equitable estoppel. Nor is there any indication that further discovery would yield such information. No new separate and subsequent acts of wrongdoing beyond the sexually abusive acts themselves are alleged, and equitable estoppel is therefore inapplicable to these cases.

The Court also considered another argument for equitable estoppel: that in covering up the alleged abuse, the defendants breached a fiduciary duty owed to the plaintiffs.  The Court rejected this argument and stated that:

Even if the Court were to assume that a fiduciary relationship existed between the parties during plaintiffs' infancy and that the diocesan defendants had a legal duty to disclose any knowledge of prior incidents of sexual abuse and breached that duty, plaintiffs still failed to demonstrate how that breach prevented them from bringing a timely action.

The Court also rejected one plaintiff's claim that the defendants should be equitably estopped from asserting the statute of limitations as a defense since their misconduct caused him to suffer from a mental disability, thus rendering him incapable of protecting his legal rights. The Court stated that "this argument also lacks merit as he fails to establish a continuing disability."

The Court concluded that:

(H)owever reprehensible the conduct alleged, these actions are subject to the time limits created by the Legislature. Any exception to be made to allow these types of claims to proceed outside of the applicable statutes of limitations would be for the Legislature, as other States have done.


Fourth Department Considers Notice of Claim Issue

In Wall v. Erie County Med. Ctr., 2006 N.Y. Slip Op. 00736, the Fourth Department upheld the dismissal of a Complaint due to the failure to timely serve a Notice of Claim as required by General Municipal Law s. 50-e.

The decision was written in such a way that I had a hard time discerning the factual time line of this case, but I believe that the following factual recitation is correct. 

The plaintiff served a Notice of Claim more than 90 days after slipping and falling on ice.  The plaintiff then served a Summons and Complaint within 1 year and 90 days, as required by GML s. 50-i.  The plaintiff then moved for permission to serve a late notice of claim, which was granted by the lower court, but never actually served another notice of claim upon the defendant.

Upon the expiration of the statute of limitations for this action, 1 year and 90 days, the defendant moved to dismiss the plaintiff's Complaint for failure to serve a notice of claim within that time period.

The Court stated that: 

(P)laintiff's earlier service of a notice of claim is a nullity inasmuch as the notice of claim was served more than 90 days after the accident but before leave to serve a late notice of claim was granted...Contrary to plaintiff's further contention, defendants are not precluded from seeking dismissal of the complaint based upon their participation in discovery...or their request for an extension of time to answer the complaint.

Accordingly, the Court concluded that the lower court proper denied the plaintiff's "re-petition" seeking leave to serve a late notice of claim after dismissal of the Complaint.

This is a case where the failure to follow the proper procedure resulted in a very unfortunate--and very permanent--outcome.


Minor Mix Up With Major Consequences

In Matter of Montague v. NYS Dept. of Environmental Conservation, 2006 Slip Op. 00204, the Third Department held that a CPLR Article 78 procedure was time barred due to the petitioner's failure to properly file the notice of petition and petition.

In this case, an assistant to the petitioner's counsel inadvertently filed the notice of petition and the petition with the Albany Supreme Court Clerk's Office, rather than the Albany County Clerk's Office.  That Court concluded that:

Where, as here, the notice of petition and petition commencing a special proceeding are filed with the Court Clerk instead of the County Clerk, whether inadvertently or not, the filing is ineffective and constitutes a nonwaivable jurisdictional defect rendering the proceeding a nullity.

A holding such as this, while not particularly novel, is worthy of mention, since reiteration of such a simple, and yet important concept can only do good:  the notice of petition and petition in an Article 78 proceeding must be filed with the County Clerk's Office, and nowhere else, within 4 month statute of limitations period or the case will be deemed time barred.


NY Court of Appeals Information

Should you be interested, a summary of cases scheduled to be argued before the NY Court of Appeals during its January 2006 calendar can be found here at the Court of Appeals web site  (hat tip: Indignant Indigent).

Also available at the Court of Appeals web site is a very helpful and thorough Civil Practice Outline that sets forth all that you ever need to know about perfecting an appeal to the Court of Appeals.


UPDATE: New NY 60 Day Motion Rule

Thanks to Andrew Lavoot Bluestone of New York Attorney Malpractice Blog for providing me with additional information regarding the new 60-day motion rule that I'd posted about previously.  As set forth in the New York Law Journal, the new rule will be effective as of January 17, 2006 and is an amendment to s. 202.8 of the Uniform Civil Rules.  Subdivision (h) will be added and will read as follows:

(h) 60-Day Rule.  If 60 days have elapsed after a motion has been finally submitted or oral argument held, whichever was later, and no decision has been issued by the court, counsel for the movant shall send a letter to the court alerting it to this fact with copies to all parties to the motion.

Also, Matt Lerner over at the New York Civil Law blog noted that the Uniform Rules for the Commercial Division will also be amended and will include a similar provision, as set forth in this press release.


New 60 Day Motion Rule in NY

Please see the UPDATE regarding this rule in this post.

The New York Attorney Malpractice Blog notes that the Chief Administrative Judge of New York Courts has established the following new rule:

If 60 days have elapsed after a motion has been finally submitted or oral argument held, whichever is later, an no decision has been issued by the court, counsel for the movant shall send the court a letter alerting it to this fact with copies to all parties to the motion.

I've heard of this new rule from other sources as well, but unfortunately was unable to locate the text of the new rule online. 

Prior to the adoption of this rule, attorneys were required to walk a fine line in order to avoid badgering the judge regarding the status of an overdue decision.   This rule will certainly make that unpleasant task an easier one.

However, I think  that Andrew Lavoot Bluestone at the New York Attorney Malpractice Blog raises a good point when he wonders whether the failure to alert the court in a timely manner could constitute legal malpractice.  Only time will tell.


No Excuse Required.

In Lindstrom v. Board of Educ. of Jamestown City School Dist., the Fourth Department held that the claimant's failure to file a timely notice of claim was not fatal to her claim.  The claimant alleged that she had been sexually harassed and abused by an employee of the school district for a three year period, beginning in November 2000, when she was 15, and ending in the spring of 2003.  She turned 18 on May 13, 2003 and failed to serve a notice of claim within 90 days of that date.  The claimant sought leave to serve a late notice of claim in July 2004, which was granted by the lower court, and the respondent school district appealed that decision.

The Fourth Department noted that the failure to offer a reasonable excuse, or for that matter, any excuse, for the delay in serving the notice of claim is not necessarily fatal to the application for leave to serve a late notice of claim.  The Court concluded that the lower court properly considered other relevant factors including the fact that the "respondent or its agents had acquired actual knowledge of the essential facts constituting the claim within weeks of its accrual, i.e., no later than May 2003" and was therefore not substantially prejudiced by the delay.

While this is by no means a novel decision, it may be a helpful decision should you have a case in which you're considering filing for leave to serve a late notice of claim.