New York Legal Update

Heating Pad - Medical Malpractice Or Negligence?

You go to the doctor, or maybe a physical therapist, and they apply a heating pad for treatment. If you are burned by the heating pad was there medical malpractice or simple negligence? That was the issue last week in Morales v Carcione, 2008 NY Slip Op 01513 before the Second Department.

The plaintiff claimed that she sustained burns from heating pads applied to her legs by technicians at the defendant Central Westchester Neuromuscular Care, P.C. where she was receiving treatment for neuropathy and other neuromuscular ailments. The defendant moved to dismiss the action because it was not commenced within the two years and six months medical malpractice statute of limitations of CPLR 214-a.  The Supreme Court found that the plaintiff's action was timely because it was commenced with the the three-year statute of limitations period applicable to actions to recover damages for personal injuries CPLR 214(5).

However, the Second Department reversed finding that the action sounded in medical malpractice, and thus, should have been dismissed as untimely. The Court explained:

Conduct may be deemed malpractice, rather than negligence, when it constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician. When the duty arises from the physician-patient relationship or is substantially related to medical treatment, the breach gives rise to an action sounding in medical malpractice, not simple negligence (citations and quotes omitted).

Here, the incident which resulted in the alleged injuries to the plaintiff arose out of the physician-patient relationship and was substantially related to the rendering of medical treatment to combat her neuropathy and other neuromuscular ailments. Accordingly * * *  as it sounds in medical malpractice, [the action] * * * is therefore subject to the limitations period of two years and six months.

Court May Not Order Additional Evidence After Jury Verdict

Courts are unusual institutions. Sometimes they believe they have the power to do anything, or create their own procedures. Take the example of Pavel Yutsis Physician, P.C. v Staten Is. Univ. Hosp., 2008 NY Slip Op 00469 decided by the Second Department on Tuesday.

In April 1999, the plaintiffs had entered into a contract with the defendants to provide administrative and professional services. However, based upon what they believed were improper billing and business practices, the defendants issued a letter dated February 20, 2002, to the plaintiffs which terminated the agreement.

The plaintiffs commenced an action and their complaint alleged that the defendants breached their contract with the plaintiffs by failing to pay the sum of $290,000 relating to services the plaintiffs performed in January 2002, and by failing to pay the sum of $250,000 relating to services the plaintiffs performed between February 1, 2002, and February 20, 2002. In pre-trial proceedings, the Supreme Court dismissed the plaintiffs' equitable claims and directed a jury trial. The jury ultimately returned a verdict in favor of the defendants finding that it was the plaintiffs that had breached the agreement, not the defendants.

The plaintiffs then, however, made a post-verdict motion in which they requested "a hearing to determine the amount due to plaintiffs from defendants under [the parties' contract] for the period January 1, 2002 through February 20, 2002." For reasons which were not clear from the record, this portion of the breach of contract cause of action was not submitted to the jury. In response to this post-verdict motion, the trial court ordered the defendants to produce certain evidence that had not been adduced at trial. The defendants, over objection, complied and produced voluminous records. Based on these post-verdict submissions, the trial court issued an order finding that the plaintiffs were entitled to judgment in their favor in the principal sum of $441,697.

The Second Department reversed finding that the trial court simply had no authority, after the jury trial had concluded with a verdict in favor of the defendants, to compel the defendants to produce additional evidence and then, based on such evidence, issue a judgment in favor of the plaintiffs. It stated that the CPLR does not authorize this procedural course of action.

Indeed it would appear that the only action the trial court could have taken would be under a post-trial motion under CPLR 4404(a) to either (1) set aside the verdict and direct that judgment be entered in favor of the plaintiff as a matter of law, or (2) order a new trial if the verdict was contrary to the weight of the evidence. There is nothing in CPLR 4404, or elsewhere, which would allow the court to take additional evidence on motion and then render a judgment on that evidence. 

Court Confirms Marble Hill Is Part Of Manhattan

One of the most interesting factoids about New York City geography is that the Marble Hill section of the Bronx is actually legally in the borough of Manhattan or New York County. The First Department confirmed this Tuesday in the case of Montesano v New York City Hous. Auth., 2007 NY Slip Op 09955.

This little geographic curiosity is set forth in the New York City Administrative Code § 2-202, entitled "Division into boroughs and boundaries thereof," which specifically provides that the borough of Manhattan "shall consist of the territory known as New York county" and includes "that portion of land commonly known as Marble Hill . . . for all purposes." The history of Marble Hill is that it was once part of the island of Manhattan, and bounded by the Harlem River and Spuyten Duyvil Creek and connected to the mainland.  After June 1895 it was severed from Manhattan when the Harlem River Ship Canal was dug, and it became an island surrounded by the canal and Spuyten Duyvil Creek. Prior to World War I, however, the creek was filled in, leaving Marble Hill part of the mainland. For many years residents were listed in the telephone directories of both Manhattan and the Bronx."

The case before the First Department was a personal injury action. The plaintiff fell while descending a allegedly defective interior staircase in her Marble Hill apartment building. The plaintiff commenced the action in Bronx County on the basis of her residence. However, the defendant moved to change venue pursuant to CPLR 511(b) and 510(1) to New York County alleging that the designation of Bronx County as the venue for the action was improper. Citing the Administrative Code section above, the history, and cases in other contexts, the First Department held that venue should be changed to New York County.

So, if you live in Marble Hill and want to use your residence as the basis for venue you must commence the action in New York County.

Court Does Not Take Judicial Notice Of Affidavit In Court File

In motion practice it is very important to submit the proper papers to obtain the relief requested. This is vividly illustrated by the First Department's decision in Walker v City of New York, 2007 NY Slip Op 09671 on Thursday.

The action was a medical malpractice action involving an infant who was injured at birth. The case was dismissed under CPLR 3216 for the plaintiff's failure to complete all outstanding discovery. The plaintiff then moved to vacate the dismissal. To vacate a dismissal of an action dismissed pursuant to CPLR 3216, a plaintiff must demonstrate both a reasonable excuse for the failure to comply with the 90-day demand and a meritorious cause of action. In making the motion, the plaintiff failed to submit the affidavit of a medical expert to demonstrate the merits of the action. While the motion was granted by Supreme Court, the First Department reversed for failure to submit such an affidavit. On the appeal, the plaintiff asked the Court to take judicial notion of a physician's affirmation submitted by the plaintiff in a separate prior motion.

The Court refused to do so stating (1) that appellate review was limited to the record made on the motion at issue, (2) the mere presence of a document in a court file does not mean that judicial notice can be taken of any factual material asserted in the document, and (3) that if it did so it would be encouraging sloppy motion practice.

Practitioner's are thus warned not to rely on material that may already exist in the court file when making motions.

Nail And Mail Service Upon Attorney Rejected

CPLR 308 requires that service be attempted by personal delivery of the summons "to the person to be served" (CPLR 308[1]), or by delivery "to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode" (CPLR 308[2]).

An alternative methods of service pursuant to CPLR 308(4), commonly known as "nail and mail" service, may be used only where service under CPLR 308(1) or 308(2) cannot be made with "due diligence."  Nail and mail service is effected "by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person . . . at his or her actual place of business" (CPLR 308[4]).

Just what constitutes "due diligence" so as to permit nail and mail service under CPLR 308(4)? A case from the Second Department last week demonstrates that a single attempted personal service may not be sufficient - Estate of Edward S. Waterman v Jones, 2007 NY Slip Op 07815.

The action was one for legal malpractice. The process server attempted to serve the defendant attorney with a copy of the summons and complaint at his actual place of business on August 23, 2004, at 10:00 A.M. The process server observed the defendant's name on an outside shingle, but the office was closed, locked, and without a doorbell. The process server used his cellular phone to call the number listed on the outside shingle and received neither a personal reply nor an answering service reply. Nonetheless, that same day the process server mailed the summons and complaint to the very same premises in order to ostensibly effectuate "nail and mail" service. On the following day, August 24, 2004, the process server returned to the same location at 9:00 A.M. and, upon seeing that the conditions were the same as the day before, affixed the summons and complaint to the door. The affidavit of service did not refer to any efforts to ascertain the defendant's residential address and to serve process at that location.

The Second Department found that the purported nail and mail service was ineffective since the plaintiff's one purported personal service attempt at the defendant's place of business failed to comply with the "due diligence" requirement of CPLR 308(4). The Court found it significant that the affidavit of service did not describe any efforts to ascertain the defendant's whereabouts, dwelling place, or place of abode. Also, there was no indication that the process server made any inquiries to the commercial neighbors, checked telephone listings, or conducted any search with the Department of Motor Vehicles to determine the defendant's residential address. Moreover, although the process server observed that the place of business was closed, locked, without a doorbell, and without an answering service, he nonetheless mailed the papers to that address notwithstanding the fact that CPLR 308(4) also authorized him to mail the papers to the defendant's last known residence.

Thus, the Court granted the defendant attorney's motion to dismiss for lack of personal jurisdiction. 

Court of Appeals Rejects Third-Party Negligent Spoliation Of Evidence Action

CPLR 3126 provides for sanctions against litigants who loose or destroy evidence during litigation. But what should happen if the evidence is lost or destroyed by a third-party - someone not involved in the litigation? A few jurisdictions have recognized an independent tort of third-party negligent spoliation of evidence to address the wrong.

However, yesterday the Court of Appeals in Ortega v City of New York, 2007 NY Slip Op 07741 held that New York will not recognize such a third-party negligent spoliation of evidence cause of action. The facts were as follows.

The plaintiff Castalia Ortega purchased a minivan from a private owner. She then brought the vehicle to a service station for an inspection and tune-up. The day after the vehicle was serviced, while Ortega and plaintiff Manuel Peralta were driving in the vehicle, the minivan burst into flames, causing Ortega and Peralta to suffer severe burns. New York City police officers investigating the accident had Ridge Transport Systems, a towing contractor, remove the vehicle from the roadway. Ridge towed the van to its facility where it remained until November 7, 2003 when it was transported to the New York City Police Department's Auto Pound. Peralta's attorney attempted to inspect the vehicle while it was in Ridge's possession but was refused access because Peralta did not own the vehicle and could not produce a title document or bill of sale. Ridge explained that the van would be destroyed if not claimed by its rightful owner.

On October 31, 2003, Peralta commenced a special proceeding against Ridge and the New York City Police Department to preclude destruction of the vehicle until it could be inspected. Neither Ridge nor the Police Department opposed the application. Supreme Court issued an order on November 18, 2003 granting Peralta a period of 60 days to inspect the vehicle and precluding its alteration or destruction. The Legal Bureau of the Police Department promptly forwarded a written request, along with a copy of the court order, to the property clerk at its Auto Pound directing preservation of the vehicle pending Peralta's inspection.

For unknown reasons, the memo and order were either not received by the property clerk or were not properly acted upon. Instead of preserving the minivan as directed by Supreme Court, the Pound followed its ordinary procedures for the disposition of unclaimed vehicles and tried to contact the owner of the vehicle and warn that if it was not contacted within 15 days, the vehicle would be deemed abandoned under Vehicle & Traffic Law § 1224 and would be destroyed. Because Ortega did not contact the Pound within the designated time period, the vehicle was destroyed  on December 30, 2003. The Legal Bureau of the Police Department — which had attempted to assist Peralta's attorney in his efforts to enforce the preservation order — did not learn of the vehicle's destruction until February 2004, at which point it notified Peralta and the court of the Pound's disposition of the vehicle.

Ortega and Peralta did not pursue a personal injury action against the manufacturer of the vehicle, the previous owner or the service station that had inspected the van. Instead, the plaintiffs sued the City of New York seeking compensation for the personal injuries they sustained as a result of the automotive fire. Plaintiffs asserted that the City should be held liable for all damages stemming from the fire because, by destroying the vehicle, the City had breached its duty to preserve evidence, thereby committing the tort of negligent spoliation of evidence.

In rejecting the notion that such a cause of action existed, the Court of Appeals first noted that there was no indication that the City acted with malice or an intent to prevent the plaintiffs from obtaining recovery for their burn injuries, nor was the City's destruction of the car a proximate cause of those injuries. It then noted that the City's violation of the preservation order did interfere with the plaintiffs' interest. However, it concluded that to allow the cause of action to proceed against the City would just be too speculative to meet "traditional proximate cause and actual damages standards at the foundation of our common-law tort jurisprudence."

The Court stated that even if the vehicle had not been destroyed and was inspected it could be possible that (1) the fire caused so much damage to the van that an inspection would fail to disclose a conclusive cause, (2) an inspection could result in conflicting expert opinions with differing views on causation, rendering plaintiffs' success in a lawsuit dependent on which party's expert the jury found most credible, or (3) an inspection of the vehicle might not have disclosed any maintenance issues, manufacturing deficiencies or design defects, thereby failing to supply a basis to hold anyone liable. With these possibilities, there would be no meaningful way for the jury to reliably resolve whether the destruction of the vehicle was the cause of the plaintiffs' failure to obtain damages for their bun injuries from the original tortfeasors.

Similarly, there would also be too much speculation with respect to how to assess damages against the City. Assuming that the plaintiffs would be able to obtain a judgment from the underlying tortfeasors there would be no reasonable means for the jury to determine how liability might have been apportioned among the tortfeasors in the original litigation.

The Court also noted that the plaintiffs were not without any remedy against the City as it could have pursued civil contempt proceedings against the City for violating the Court order of preservation [the plaintiffs did bring such proceedings but did not pursue the claim before the Court of Appeals].

Personal Commentary: I find it very refreshing when courts refuse to expand notions of liability. For too long the courts have seemed to want to hold anyone responsible for any injuries regardless of the circumstances. But as the Court wisely recognized in its opinion: "While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Not every deplorable act is redressable in damages" (citations omitted). If only the courts could keep this idea in mind more frequently.

Saving Provision of CPLR 205(a) Does Not Apply To A Different Related Corporate Entity

CPLR 205(a) is a savings provision which adds a six month grace period to the statute of limitations in certain situations. It provides:

If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

Last Thursday (October 11th) in Reliance Ins. Co. v Polyvision Corp., 2007 NY Slip Op 07500, the Court of Appeals was asked in a certified question from Second Circuit the following:

Does New York CPLR § 205(a) allow a corporation to refile an action within six months when a previous, 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? (474 F3d 54, 60 [2007]).

The Court of Appeals concluded that it did not. The Court stated that it has never read the words "the plaintiff" in the statute to include an individual or entity other than the original plaintiff. And it reasoned that to allow a separate but related corporate entity to benefit from the grace period of CPLR 205(a) would only breathe life into stale claims, and prevent corporations from exercising the minimal care necessary to determine, before bringing suit, which of its family members had been wronged.

Notice Of Pendency May Not Be Filed In Action For Specific Performance Of Warranty Provisions Of Condominium Offering Plan

CPLR 6501 provides that a Notice of Pendency may be filed in any action "in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property." Last Tuesday, in Board of Mgrs. of Woodpoint Plaza Condominium v Woodpoint Plaza, LLC, 2007 NY Slip Op 06818, the Second Department held that an action for specific performance of warranty provisions of a condominium offering plan is not such an action, and thus, a Notice of Pendency may not be filed in such an action. The Court simply noted that the courts have traditionally applied a narrow interpretation of CPLR 6501.

Insanity Toll Of CPLR 208 Applies To Stroke Victim

CPLR 208 provides in pertinent part:

If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and * * * if the time otherwise [limited for commencing the action] is less than three years, the time shall be extended by the period of disability.

But "insanity" does not necessarily mean insanity. An example is given by the Second Department's decision last week in Ferreira v Maimonides Med. Ctr., 2007 NY Slip Op 06627 in which the insanity toll of CPLR 208 was applied to stroke victims.

In that case, Jose Arias was admitted to the defendant hospital on January 25, 2001 because of weakness on his right side and inability to speak. By January 29, 2001, he had suffered two strokes that resulted in significant physical and mental deficits, leaving him unresponsive and in need of breathing and feeding support. A doctor who visited Arias in July 2003 described him as aphasic, having no spontaneous movement on his right side, and only limited, weak movement on his left side. Further, Arias was being fed intravenously, needed to be bathed and clothed by hospital staff, and did not move from his bed unless carried. Arias was also breathing through a breathing tube. Indeed, Arias still required breathing and feeding support when transferred to a skilled nursing facility in September 2003.

In October 2004 Arias' guardian commenced an to recover damages for medical malpractice. The defendant moved to dismiss the complaint as time barred, arguing that Arias' cause of action accrued no later than January 29, 2001. The plaintiff argued that the two and a half year statute of limitations of CPLR 214-a was tolled, inter alia, by the insanity toll of CPLR 208. The Supreme Court granted the defendant's motion to dismiss the complaint as time barred, finding that the insanity toll did not apply.

However, the Second Department reversed and reinstated the complaint. The Court stated that the insanity toll of CPLR 208 was available to those individuals who are unable to protect their legal rights because of an over-all inability to function in society. And it found that the plaintiff had made a prima facie showing that this was the case for Arias.

Substituted Service On Incarcerated Defendant Upheld

CPLR 308(2) allows for the service of process upon a defendant to a person of suitable age and discretion at the actual place of business, dwelling place or usual  place of abode of the defendant (followed by a mailing). What if, unbeknownst to a plaintiff at the time of service, the defendant is incarcerated. Yesterday, the First Department in Cadle Co. v Nunez, 2007 NY Slip Op 06571 upheld such substituted service at the defendant's last known address while the defendant was incarcerated for a substantial period of time. The facts were as follows.   

In 1989, the defendant executed a promissory note. On his loan application, defendant listed a certain address in Brooklyn. The defendant defaulted on the note in 1994. At the time he defaulted, the defendant was incarcerated; he was incarcerated from 1992 to 2005.

When the plaintiff holder of the note commenced an action to recover on the note, they served the summons and complaint at the Brooklyn address listed on the loan application. The plaintiff had not been notified that the defendant had been incarcerated. When the defendant failed to respond to the summons and complaint, the plaintiff was granted a default judgment and subsequently a lien on property owned by the defendant. Eventually, the defendant moved to dismiss the default judgment and lien claiming lack of personal jurisdiction as he was never properly served.

The First Department upheld the service.  While the primary issue was whether a person of suitable age and discretion was served, the Court noted that the CPLR 308(2) service was proper since the defendant was never notified that the defendant had been incarcerated and that the subsequent mailing of the summons and complaint was made to the defendant's last known address.