July 26, 2016 | Vol. 12

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MUST READS
(3 summaries)

Notice of Claim   Civil Service Law §75-b   Labor Law §740   Whistleblower   GML §50-e  

First

The lower court dismissed this retaliatory termination whistleblower action finding the Notice of Claim defective because it alleged Labor Law § 740, which does not apply to government employees, instead of Civil Service Law §75-b. The Appellate Division reversed finding that a Notice of Claim does not have to specify the precise law and that no Notice of Claim is required for employment retaliation under the whistleblower statute because it is a not an action for personal injury, wrongful death or damage to real or personal property under GML §50-e. Castro v City of New York

Comment: The Court made it clear that the same claim under County Law §52(1) instead of GML §50-e would require a Notice of Claim as the actions covered under the County Law are broader than those under § 50-e.

Venue   Accident Situs   NYC   Consolidation  

Second Deptartment

Lower court’s consolidation of venue in Staten Island based on fact that the accident happened in Staten Island and the City was involved as a defendant reversed. The City waived continuation of venue in Richmond by failing to oppose plaintiff’s motion. Defendant in Kings County action did not have standing to claim venue based on New York City situs rule. Venue was proper in Kings County where it was first brought against non-city defendant. Arduino v Molina-Ovando

Comment: This case has lessons for both Plaintiffs and Defendants. While it might not be warranted in every case, in significant cases it presents a strategy for favorable venue by commencing separate suits in separate counties, the first being brought in the county of choice. To work, however, the City defendant would have to fail to oppose the motion to consolidate in the favorable county. Since City attorneys are often overburdened, for defendants in this situation, it would be important to make it as easy as possible for the City defendant to file a “me too” opposition and to reach out to them to make sure they do so.

Venue   Convenience of Witnesses   CPLR §510(3)  

Second Deptartment

Action for wrongful death of two-year-old infant, which occurred in Rockland County, was commenced in Kings County based on administrator’s residence. After administrator moved to Rockland County, defendant sought change of venue to Rockland based on convenience of material witnesses. Lower court denied change of venue and appellate court reversed. Defendants showed that all identified nonparty witnesses resided in or near Rockland, two nonparty eyewitnesses resided in Rockland, seven police officers who responded residec in either Rockland or Orange, the officers’ testimony would be material at trial, and it would be a burden for them to travel to Kings County during normal business hours for deposition and trial. It was an improvident exercise discretion to deny change of venue. Schwartz v Walter

NOTEWORTHY
(4 summaries)

Med Mal   Ostensible Agency   Renew  

Second Deptartment

Hospital met its prima facie burden for summary judgment by showing that its employees were not negligent. Plaintiff, however, raised an issue of fact on ostensible agency for the medical malpractice of two neonatologists who were not employees of the hospital. Additional evidence submitted on motion to renew did not conclusively establish defense. Diller v Munzer


Med Mal   Preclusion   Nurses  

Second Deptartment

In a related decision to the above case, the Appellate Division denied the plaintiff’s appeal from an order precluding plaintiff from presenting expert testimony at trial regarding care by nurses employed by the hospital as such a ruling ‘in advance of trial on motion papers constitutes at best an advisory opinion which is neither appealable as of right nor by permission.’ Diller v Munzer


Premature Motion   Discovery   Slip/Trip  

Second Deptartment

Lower court’s denial of defendant’s motion for summary judgment reversed. Defendant, which provides cleaning services, showed that it had no connection with the Duane Reade store where the plaintiff claimed that she slipped and fell. Mere hope or speculation that discovery could produce evidence to defeat summary judgment is not sufficient to make out plaintiff’s burden that further discovery might lead to relevant evidence. Pabarroo v TS 405 Lexington Owner, LLC


MVA   Rear End   Parked Vehicle   Nonnegligent Explanation  

Second Deptartment

Defendant made out prima facie entitlement to summary judgment on her testimony that she was sideswiped by another vehicle and forced into the rear of plaintiff’s parked car. Plaintiff, however, raised triable issue by evidence contradicting the defendant’s story. Lower court’s grant of summary judgment reversed. Pyo v Tribino

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About Matt McMahon

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