August 16, 2016 | Vol. 15

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MUST READS
(3 summaries)

Discovery   Work Product   Spoliation   Negative Inference   ESI  

Second Deptartment

The plaintiff, a police officer, was struck by a tractor-trailer during a traffic stop of another vehicle. The defendants moved for additional expert disclosure and plaintiff moved, in a cross motion and separate motion, to strike the defendant’s answer for spoliation of electronically stored information (ESI) and for failing to comply with discovery demands. The conduct of discovery, and sanctions, lies within the discretion of the motion court, but can be replaced by the appellate division’s own opinion. As a rule, the lower court’s discretion will only be disturbed if it was exercised improvidently. The court found the lower court’s order requiring the plaintiff to provide responses it had received from various FOIL requests to be a provident exercise of discretion. In order for discovery to be afforded privilege as attorney work product, it must be uniquely the product of the attorney’s work, including legal research, opinions, analysis, or strategy. The party asserting the privilege has the burden of proof. Documents received in response to FOIL request cannot be attorney work product because they are not uniquely the product of the attorney’s work.

The lower court providently exercised its discretion in imposing a negative inference charge sanction for the defendant’s destruction of electronically stored information after it became a party to the litigation. Defendant should have known that the information would be necessary for the case. Since the destruction of the information hurt both sides equally, and the plaintiff was still able to prosecute the action, the lesser sanction of a negative inference was appropriate. Plaintiff failed to show that any failure to comply with discovery was willful and contumacious. Denial of the motion to strike the answer, therefore, was appropriate. Cioffi v S.M. Foods, Inc.


§ 7-210   Abutting Landowner   Tenant   Slip/Trip  

Second Deptartment

Plaintiff was injured when he slipped on the sidewalk abutting the defendants’ property. Plaintiff sued both tenant and owner of the abutting property, settled with the tenant and proceeded to verdict against the owner. The lower court submitted the question of both the owner’s and the tenant’s negligence to the jury. The jury found the tenant negligent and and the owner not negligent. A tenant can be sued under §7-210 if the lease “entirely displaces the landowner’s duty to maintain the sidewalk.” The owner introduced a rider to the lease showing that the tenant, and not the owner had the sole responsibility for maintaining the sidewalk. Paperman v 2281 86th St. Corp.


Ins. L. § 3420(a)(2)   Motion to Dismiss   Vacate Default  

Second Deptartment

Defendant carrier denied coverage in underlying personal injury suit. Plaintiff entered $20 million default judgment against defendant in underlying personal injury suit and sought to enforce the unsatisfied judgment directly against the carrier pursuant to insurance Law §3420(a)(2). The carrier moved to dismiss and plaintiff failed to oppose. The case was dismissed but plaintiff moved to vacate the default based on a detailed recitation of law office failure and a meritorious claim. The court upheld the lower court’s grant of the motion to vacate and denial of the carrier’s motion to dismiss. The papers relied upon by the carrier did not constitute “documentary evidence” under CPLR 3211) A) (1) and the court was required to deem the facts as alleged to be true for purposes of a motion to dismiss. Persaud v Everest Natl. Ins. Co.

NOTEWORTHY
(3 summaries)

MVA   Rear End   Pileup  

Second Deptartment

Middle car in three car collision was entitled to summary judgment upon showing that it was stopped behind the first vehicle when the third vehicle struck it and sent it into the first vehicle. Only the third car opposed the motion and the court found that it failed to raise a question of fact. Chuk Hwa Shin v Correal


Premises Liab   De Minimus   Stairs   Slip/Trip  

Second Deptartment

Defendant was entitled to summary judgment where proof showed that defect on stairs was ¼” wide and 1/10” inch deep, that the staircase was well lit, unobstructed, and had been used by the plaintiff on numerous occasions without noticing the defect. Plaintiff failed to raise a triable issue of fact. The plaintiff’s expert’s opinion regarding other defects was properly ignored as they were clearly not the defects which caused the plaintiff to fall. Jackson v Michel


Sidewalk   Prior Written Notice   Create Condition  

Second Deptartment

Defendant village was entitled to summary judgment upon its showing that it had no prior written notice, which was required, and that it did not create the condition as alleged by the plaintiff. The only two recognized exceptions to the prior written notice requirement, where applicable, is that the municipality created the condition or received a benefit from its special use. Plaintiff, failed to raise a triable issue of fact in opposition. Lower court’s denial of motion was reversed. Abreu-Lopez v Incorporated Vil. of Freeport

IF YOU MUST READ
(1 summaries)

Serious Injury  

Second Deptartment

Defendants made out their prima facie entitlement to summary judgment on serious injury to the cervical and lumbar spine and shoulder. Plaintiff, however, raised a triable issue of fact in opposition. The court does not give the details of the proofs submitted. Young Chan Kim v Hook

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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