Issues in the accuracy of the transcript is not reason for exempting disclosure, but may affect its usefulness.
Gilly Pg. 686: The substance of a report prepared by a physician employed by a defendant to examine plaintiff, and furnished to her, can be elicited b plaintiff as part of her direct case. The trial court erred in precluding his testimony
A disinterested expert cannot be forced to testify, but he can be if he is at the trial as a party to the action.
In this case, the Dr. examined the plaintiff and relayed his finding to both parties in litigation, so he should not be barred from relating the substance of the report when called as a witness like in those other scenarios.
Permitting such evidence furthers truth-seeking objectives without engendering the concerns expressed in those other cases
First, disinterested persons need not fear being drawn into litigation because of their distinctions, However this doc voluntarily involved himself in the case when he examined and reported his findings. He is not being compelled to express an opinion, but only to relate conclusions already formulated and disclosed.
Because he's a voluntary witness, it doesn' t matter that he's the defendant's doctor – talking about his report on the stand furthers truth seeking and is good for everyone.
Improper receipt of Confidences
Lipin: Sexual harassment and discrimination action. Action dismissed as sanction for plaintiff’s taking and use of privileged defense documents. This court holds ruling to dismiss as sanction
Claimed the boss’s unwelcome sexual overtures presented her advancement at red cross. Eventually lead to her termination.
At deposition steals a memorandum from the other side about her issue.
The highly improper manner in which plaintiff obtained the documents, coupled with their subsequent use (threatening) warrant dismissal.
Realized docs were private; still read them; made notes; copied
CPLR 3103 gives courts broad discretion in protection “court can issue any order”. Whether or not that doc was privileged they could do this.
NYR 4.4(b): When a lawyer gets something s/he reasonable should know s/he shouldn't have the sender must be notified promptly
FRE 502(b): covers the same issue but for the federal rules and when disclosure is not a waiver
ACCELERATED JUDGMENT
Overview:
CPLR 3211(a): motion to dismiss (pleading fails to state a cause of action)
CPLR 3211(b): motion to dismiss a defense
CPLR 3211(c): After a motion to dismiss/or motion to dismiss defense evidence can be submitted that is considered a motion for summary judgment (court has leeway to treat it as such)
CPLR 3211(d): when facts are missing, court can deny motions and allow for more fact finding
CPLR 3211(e): limits on how often you can more
Failure to state a cause of action or defense:
CPLR 3211(a)(7):
Rovello: seeking specific performance of an agreement where defendant agreed to sell plaintiff her late husband’s insurance business and related real estate. Moved to dismiss for failure to state a cause of action. The issue is whether a motion court may grant judgment under cplr 3211(a)(7) without treating the pleading motion as one for summary judgment, when the complaint is sufficient on its face, but the affidavits submitted indicate, not quite conclusively, that purchaser may have no cause of action. This court feels the action should not be dismissed
Under modern pleading theory, a complaint should not be dismissed on a pleading motion so long as, when the plaintiff is given the benefit of every possible favorable inference, a cause of action exists.
Summary judgment can be used later on if the plaintiff cannot prove a necessary inference.
You can consider the defendant’s affidavits, but if not conclusive then continue trial
Dissent: the plaintiff provides no proof that he had the down payment, other than saying that he stood ready and able to make the down payment.
A motion to dismiss for failure to state a cause of action is no longer, as it once was, limited to the face of the complaint CPLR 3211 subd (c). The question now is whether he has a cause of action, not simply whether he has stated one. Thus, the court may consider affidavits and other extrinsic proof to determine whether a fact essential to the plaintiff’s cause of action is lacking.
Summary Judgment:
CPLR 3212: Summary judgment etc...
CPLR 3213: How you serve and timing of service for summary judgment
CPLR 3214: Judge is the master of Disclosure, and if a Motion to Dismiss (3211), or motion for SJ (3212/3213) is filed Disclosure is stayed unless court rules otherwise.
Ugarriza: is plaintiff in automobile negligence action entitled to summary judgment on the issue of liability or whether there exist genuine and substantial trieable issue of fact which serve to preclude summary judgment
Although there once were significant limitations upon the type of action in which summary judgment was available this is no longer true. The trend of the law is to allow it in more cases. (now allowed in matrimonial and negligence).
Still is drastic since it allows one party res judicata effects and denies another party their day in court
Negligence cases by their very nature do not lend themselves to summary judgment since often even if all the parties are in agreement as to facts, because negligence is a jury question.
Only if it can be concluded as a matter of law that defendant was negligent may summary judgment be granted in a negligence case. This is not such a case.
There is a question in the case as to whether the defendant acted reasonably. We will not allow summary j on liability
Bottom Line: Negligence and SJ don't really work unless it's concluded as a matter of law which didn't happen here.
Brill: this appeal puts before us a recurring scenario regarding the timing of summary judgment motions that ignores statutory law, disrupts trial calendars, and undermines the goals of orderliness and efficiency in state court practice.
City filed for summary judgment without excuse after the 120 day limit specified in CPLR 3212(a) simply arguing that it did not have prior written notice. Supreme court determined that in the interests of judicial economy, and since Mrs. Brill did not manifest any prejudice from the delay, it would decide the summary judgment motion on the merits. The court granted the city’s motion (because no prejudice)
We reverse, motion should not have been considered
Summary judgment is valuable when something involves no questions of fact and only questions of law.
We conclude that “good cause” extensions in CPLR 3212a requires a showing of good cause for the delay in asking the motion – a satisfactory explanation for the untimeliness rather than simply permitting meritorious non prejudicial filings, however tardy. No excuse, or perfunctory excuse, cannot be good cause
Cannot move for SJ any later than 120 days after the filing of the note of issue except with leave of the court for good cause. The Note of Issues is what puts you in line for trial. (You can also vacate a note of issue (P will typically file the note of issue and the D will likely move to vacate)).
SETTLEMENTS
CPLR 2104: Settlements not made in open court are not binding unless in writing, put into an order and entered. Stips will be filed with the county clerk
CPLR 5003-a(a): When an action is settled the D will pay the costs (unless under b or c) within 21 days
CPLR 5003-a(b): When D is a municipality or public corp. not indemnified by the state they pay with in 90 days
CPLR 5003-a(c):When D is a state, or officer or employee of the state payments will be made within 90 days after the comptroller has signed off.
CPLR 5003-a(d): P will file with the court for approval of the stip
CPLR 5003-a(e): No payment by D can = entering judgment for the P
Hallock: a stipulation of settlement made by counsel in open court may bind his clients even where it exceeds his actual authority.
Plaintiff was ill on trial date; attorney makes agreement; he is unsatisfied.
Even if his attorney didn’t have actual authority he had apparent authority to bin the plaintiff.
Essential to the creation of apparent authority are words or conduct of the principal, communication to a third party that gives rise to the appearance and belief that the agent possess authority to enter into a transaction.
Must show that relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal – not the agent.
The principal vested the agent by letting him represent plaintiff through the lit, engage in prior settlement negotiations, and let him appear at the final pretrial conference.
If we do require detrimental reliance to use apparent authority, plaintiffs silence for more than two months after the agreement, and the lengthy litigation that has ensued is detrimental reliance.
NYR 1.2(a); 1.4; 1.8(g); 4.2; 8.4(b):
TRIAL
Candor to the Tribunal and Related ethical issues:
Nix v. Whiteside*: someone claims ineffective assistance of counsel when an attorney refuses to let someone lie on the stand. Wants to lie about seeing something metal in guys hand before shooting him. Attorney says I will report perjury
There are limits to the sixth amendment guarantees of an effective trial
Having a lawyer who will allow you to commit perjury is not effective counsel
NYR 1.16(b)(c);
Lawyers terminating clients only as per the limitations of 1.16
Matter of DES Pg. 807: We agree with the appellate division that plaintiffs have a constitutional right to a jury in the market share trial and consequently affirm.
You are entitled to a trial by jury in cases in which it was heretofore guaranteed in the NY constitution.
Well this is a modification of a current existing cause of action, this is not a whole new cause of action altogether.
Courts of law and courts of equity.
DiMenna: Is a jury trial a matter of right in this case?
Plaintiff’s cause of action is not entitled to a trial by jury as a right. We do not doubt that a defendant by timely demand may preserve his right, in the event of failure of the lien, to trial by jury of other issues.
The fact that the plaintiff has combined with a prayer for equitable relief an alternative claim for a money judgment, cannot deprive defendant of the jury trial assured to him by defendant, but it is different when the form of action if of the plaintiffs own selection
One cannot be heard to urge as a breach of one’s constitutional right the concession of a remedy which one self has demanded
Siriano: During jury selection the six-codefendants have used their peremptory challenges to excuse all nine minority venire persons (6 black and 3 Latino) who have to date been examined. Plaintiff asserts that this exclusion has been impermissibly based on race.
Judge determines there is a prima facie case of racial discrimination, and asks defendants to provide race neutral explanations for the exercise of their challenges. You can find a prima facie case based solely on the exercise of peremptory challenges.
Burden then shifts to the jury to come up with race neutral explanations
This was originally just for crim, but was extended to civil.
The exclusion of even a single juror for racial grounds is constitutionally impermissible
Motions for Judgment during and after trial:
CPLR 4401: Motion for judgment during trial, how to, etc...
CPLR 4404: Motion practice post trial (both jury and non)
CPLR 4405: Motion practice before the same judge even if after trial
CPLR 4406: You get one motion after decision regarding the verdict or discharge and this include oral motions.
Santana: Case involving a Spanish speaking plaintiff. Says something translator translates. One member of the jury tells the judge that the translator misspoke. This is an error, and could in some circumstances “prevent a trial by a fair and impartial jury”.
In this case, it raised little possibility that he had forfeited his impartiality or that the entire panel was prejudiced. The juror had not spoken to any other jurors. And eventually we brought the witness back and the juror was right. She did mean crash and not bump.
Question regards the impartiality of the panel as a whole
Cohen: Question presented on appeal is whether the appellate division was correct in concluding as a matter of law that the jury verdict awarding punitive damages to plaintiffs was based on insufficient evidence. Reverse.
Trial court grants verdict of punitive; appellate reverses saying that the ruling was based on insufficient evidence.
They could have made a decision that it goes against the weight of the evidence and examine all the evidence on both sides, but they didn’t
Instead they said that the P did not provide sufficient evidence to warrant that the pictures were knowingly taken.
This court (Court of Appeals) definitely feels that there was sufficient evidence because they continued selling after they were notified, and they contacted the photographer; so there was sufficient evidence…..might have been against the weight of the evidence though.
Nicastro: Resolution of these appeals involves the proper standard to be applied by a court in deciding a motion to set aside a jury verdict as contrary to the weight of the evidence
Trial court granted motion to set aside jurys verdict in favor of appellants in a medical malpractice action. Since the victim died the jury relied mostly on medical records.
The jury said not negligent, and the proximate cause issue was never reached. Plaintiff moved to set aside verdict pursuant to cplr 4404(a). We conclude that the trial court did not abuse its discretion in finding that the verdict was against the weight of the evidence.
Few things to consider when setting aside verdicts:
For sufficient evidence you need “no valid line of reasoning and permissible inferences which could possibly lead rational men to reach that conclusion on the basis of the evidence at trial”
BUT, the criteria for setting aside a jury verdict as against thewegh of the evidence are necessarily less stringent, because it only results in a new trial and does not deprive the parties of their right.
This doesn’t mean you set aside everything you disagree with. You need signs of substantial injustice.
The jury verdict should not be set aside unless the “jury could not have reached the verdict on any fair interpretation of the evidence”.
Fair means free from fraud, injustice, prejudice, or favoritism.
If reviewing an order set aside you review for abuse of discretion
CPLR 5513: You have a right to appeal but only within a certain amount of time
CPLR 5601: In order to appeal to CoA there has to be a dissent in the Appellate Div or Constitutional Grounds
CPLR 5602: Permission to appeal
CPLR 5701: Lists when you can take something to App Div
CPLR 5501: When you can appeal a final judgment.
RES JUDICATA
Restt. Of Jments 2d
New York
Res judicata
Res judicata?
Claim preclusion
Res judicata
Issue preclusion
Collateral estoppel
As for chart see CPLR 3018(b); 3211(a)(5) – the wording comes from the rules. Because the statutes itself refers to those doctrines, NY has kept the old wordings.
Rstt of Judgments 2d Sec 17: A valid and final persona judgment is conclusive between the parties except on appeal or other direct review to the following extend
If J for P: the claim is distinguished and merged in the judgment
If J is for D: the claim is extinguished and subsequent action on the claim is barred.
Where does NY come out on "does the judgment have to be on the merits?" to be barred –
NY has applied preclusive effects on SoL cases which it totally not on the merits. But a later case says a judgment on SoL is sufficiently close to the merits
But many of the statutes say "on the merits"
NY straddles the Rstmt position and the NY implication of 5013
Claim Preclusion:
CPLR 5013:
What does it mean to refer to the proponent's(the party subject to preclusion) evidence
Gowan: can petitioners escape the doctrine of res judicata by tendering an additional basis for finding their dismissals illegal, namely, that the dismissals were patronage dismissals made in bad faith in contravention of the supreme court’s intervening decision.
Once a cause of action has been finally adjudicated, tender of an additional legal issue not raised in the original action does not avoid the bar of res judicata merely because the supreme court of the us had not fully articulated the additional issue until after the cause of action has been adjudicated
The only question of even marginal substance involves the purposed unavailability in the Bolan proceeding of a legal issue tendered in this proceeding. Petitioners contend that since the issue in Elrod was not resolved in time to raise the unconstitutionality of patronage dismissals, they should not be barred from raising that issue now
It is settled law however that the conclusive effect of a final disposition is not to be disturbed by a subsequent change in decisional law. Just because the change is a constitutional one does not change anything.
Xiao Yang Chen: Divorce action on the ground of cruel and inhuman treatment, Chen counterclaims for the same. Also included a fraudulent inducement claim. Eventually the parties stipulate to remove everything but the fraudulent inducement and get a joint divorce, and equitable distribution order. Chen then brings a claim of personal injury in a separate action, but the court rejects it because the tort claim could have been litigated with the divorce action and chen did not expressly reserve the right to bring that claim when she withdrew her fault allegations for purposes of this stipulation.
RJ definition: once a claim is brought to a final conclusion all other claims arising out of the same transaction or series of transactions are barred even if based upon different theories or seeking different remedy.
However can’t be too harsh because “in seeking to prevent a litigant from having two days in court, we cannot deny them of one”
We can look to whether the claims are related in “time, space, origin, motivation, whether they form a convenient trial, whether their treatment as a unit conforms to the parties expectation or business understanding or usage.
This was not a convenient trial because tort action and divorce actions require very different things, types of proof, remedies, one is decided by a jury the other typically by a judge.
Issue Preclusion
Kaufman v. Eli Lilly p. 974
Action 1: Bichler case (DES product liability)
Action 2: Kaufman wants to use findings from Bichler as preclusive in her case. Pg. 977 interrogatory to the jury
Court allows it – shouldn’t have to relitigate. So the facts that were decided in Bichler that led to Eli Lilly’s liability can be applied here
NY takes an extreme view of non-mutual defensive preclusion
O’connor v. State of NY p 982:
Cyclist kills a pedestrian. And the pedestrian’s family sues the cyclist in Supreme Court, and sues the State in Court of Claims. The state tries to say that because there was already a decision in Supreme Court and Decedent’s negligence was 60% there, that decedent’ s family cannot sue the state over the same issue and the issue of decedent’s negligence (which the jury found to be only 50% in Court of Claims) cannot be relitigated.
Holding: These are two very separate issues. Decedent’s negligence can be different as to the cyclist v. as to the state. And the state shouldn’t have been party to the supreme court action, so the decedent’s family did all the right things.
RANDOM
Article 78 and the control of government activity:
CPLR 7801; 7803; 7804:
CPLR 103(c): 217(1):
New York Health Hosp Corp:
issue: what statute of limitations should be applied to declaratory judgment actions brought to challenge promulgated medicaid reimbursement rates on the grounds that they are irrational or affected with error of law
holding: the four-month statute of limitations for proceedings against a body or officer are applicable (CPLR 217).
when there is no clear situation specific statute of limitations then you can use catch all limitaitons
you cannot just change the form of your action to get one thats not time barred yet, once it has been started.
Article 78 statute of limitations.does not apply to legislative acts.
BUT IT DOES to quasi legislative acts - like rate setting by an administrative agency.
Arbitration: an alternative to litigation:
Arb agreements and their enforcement
CPLR 7501-7503:
God’s Batallion of Prayer 1055:
Two parties begin working together. One sends over a contract containing a arbitration agreement. The church never signs or sends it back, but acts as a contract has ensued. They must go to arbitration!
Although the Church did not sign the Miele agreement, it is evident that it intended to be bound by it. The Church has not successfully refuted Miele's claim that, after Miele forwarded the contract, both parties operated under its terms. Most tellingly, the Church's complaint alleges that Miele breached their agreement, thereby acknowledging and relying on the very agreement that contains the arbitration clause it seeks to disclaim. Moreover, the Church does not assert that the arbitration clause would be unenforceable even if the agreement were signed. That being so, it may not pick and choose which provisions suit its purposes, disclaiming part of a contract while alleging breach of the rest. A contract "should be read to give effect to all its provisions"...The lower courts therefore correctly ruled that the case go to arbitration
The proceeding
CPLR 7505-7507:
Siegel: does the arbitrators former position and account for one of the parties, along with their knowledge of the underlying facts, ban them from being arbitrators?
these relationships don’t warrant disqualification. if the relationship was fully known at the time of agreement, everything is kosher
you waive your right to object once you know the relationship and agree to enter into the agreement
Enforcing and attacking the award
CPLR 7510-7514:
Judicial Ethics:
NY State Board of Elections v. Lopez Torres: BB
The State of New York requires that political parties select their nominees for Supreme Court Justice at a convention of delegates chosen by party members in a primary election. SCOTUS answers whether this electoral system violates the First Amendment rights of prospective party candidates.
The constitution doesn’t require states to give people a “fair shot” at the judiciary. NY’s system meets the constitutional baseline so it’s legitimate.
Capperton v. A.T. Massey: BB
A “bought” judge refused to recuse himself
Justice Kennedy, writing for the a 5-4 majority of the Court, reversed the judge’s decision in favor of the coal company on federal due process grounds. The Opinion for the Court noted that the Due Process Clause incorporates the common law rule that requires recusal if a judge has “a direct, personal, substantial, pecuniary interest” in a case. Tumey v. Ohio, 273 U.S. 510. And in a line of cases that developed in the context of criminal contempt, due process also requires recusal where “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Winthrow v. Larkin, 421 U.S. 35. Applying these principles, Justice Kennedy concluded that the possibility of temptation for Justice Benjamin was dispositive even without proof of actual bias:
Think about the differences between the NY and the Federal Court systems. What occurs to you? Would they affect your choice of forum?
