Collateral Estoppel? September 28, 2020

Rojas v Romanoff, 2020 NY Slip Op 04237 (1st Dept. 2020)

Collateral estoppel in the First Department to non-suit

(1) “In the declaratory judgment action, Nationwide claimed, among other things, that the injuries sustained by plaintiff did not come from the use or operation of a Nationwide insured vehicle and that plaintiff’s injuries were caused while he was operating a motorcycle, which is not covered by no-fault law [FN2]. Those issues were never litigated, because the declaratory judgment was granted on default.”

(2) “We hold that neither claim preclusion nor issue preclusion applies to bar this personal injury action. First, the default nature of the judgment rendered in the prior declaratory judgment action prevents application of issue preclusion. Second, claim preclusion also does not apply because both actions did not involve the same parties or their parties in privity. As fully explained below, “same parties” means the same adversarial parties, and plaintiff and defendants were not adversaries in the prior litigation. As to claim preclusion, the only adversaries in the prior action were plaintiff (as a defendant) and defendants’ (driver’s/owner’s) insurer, Nationwide (as the plaintiff) with whom defendants (driver/owner) were not in privity in the no-fault benefits dispute.”

(3) “Additionally, under the particular circumstances here, giving preclusive effect to a prior default determination on no-fault benefits, in a subsequent personal injury action would contravene the concept of fairness underlying the doctrine of res judicata. The primary purposes of res judicata are grounded in public policy and are to ensure finality, prevent vexatious litigation and promote judicial economy (see Matter of Hodes v Axelrod, 70 NY2d 364, 372 [1987]; Reilly v Reid, 45 NY2d at 28). However, unfairness may result if the doctrine is applied too harshly; thus “[i]n properly seeking to deny a litigant two days in court’, courts must be careful not to deprive [the litigant] of one” (Reilly v Reilly, 45 NY2d 24, 28 [1978]). Important here is that the preclusive effect of the declaratory judgment in favor of Nationwide should be evaluated in the context that the causation issue —- whether an automobile accident caused plaintiff’s injuries — was never decided because the prior action was determined on default, to which issue preclusion does not apply. Applying “issue” preclusion in this manner encourages litigants not to over-litigate seemingly minor issues — if a party defaults on what appears to be a minor issue that turns out to be important in a later suit, she has the opportunity to litigate that issue in the later suit. Yet, by applying claim preclusion to this case, we would in effect be saying that plaintiff is precluded from raising an issue that should have been litigated in the prior no-fault benefits action decided on default.”

(4) “Finally, we recognize that the Second Department has ruled otherwise (see Albanez v [*7]Charles (134 AD3d 657 [2d Dept 2015]). We are not bound by the decision of the Second Department (see Mountain View Coach Lines v Storms, 102 AD2d 663, 665 [2d Dept 1984]). Of course, because stare decisis serves the important interests of stability in the law and predictability of decisions, we ordinarily follow the decisions of other departments unless we have good reason to disagree (see McKinney’s Cons Laws of NY, Book 1, Statutes § 72[b]; see e.g. Church of St. Paul and St. Andrew v Barwick, 67 NY2d 510, 519 [1986]). In this case, departure from Albanez v Charles is indeed justified, because that court failed to apply “the same parties” requirement of claim preclusion articulated in Welsbach Electric Corp. (9 NY3d at 127) and Parker v Blauvelt Volunteer Fire Co., (93 NY2d at 347)”


3101(d) never applies to September 25, 2020

Duman v Scharf, 2020 NY Slip Op 04537 (2d Dept. 2020)

“At the damages phase of the trial, the defendants called as a witness one of the plaintiff’s treating physicians, who had examined the plaintiff following the accident and concluded in his medical report that “[t]he symptoms that [the plaintiff] is experiencing in the right-sided extremity are likely related to [his] previous stroke.” However, the Supreme Court ruled that the treating physician would be precluded from testifying on the issue of causation based on the defendants’ failure to provide the plaintiff with notice of such testimony in advance of trial pursuant to CPLR 3101(d). Counsel for the defendants provided the Supreme Court with precedent from this Court indicating that CPLR 3101(d) applied only to experts retained to give testimony at trial, and not to treating physicians. Nevertheless, despite noting a 1999 decision from this Court supporting the defendants’ position, the Supreme Court adhered to its determination to preclude the proposed testimony.”

LOL. reversed.

Inquests September 25, 2020

Castaldini v Walsh, 2020 NY Slip Op 04822 (2d Dept. 2020)

“A defaulting defendant “admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages” (Rokina Opt. Co., Inc. v Camera King, Inc., 63 NY2d 728, 730; see Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880). “The sole issue to be determined at an inquest is the extent of damages sustained by the plaintiff,” and the inquest court should not consider the question of whether the defendant caused the damages sustained by the plaintiff (Gonzalez v Wu, 131 AD3d 1205, 1206; see Rokina Opt. Co., Inc. v Camera King, Inc., 63 NY2d at 730; Arluck v Brezinska, 180 AD3d 634; Jihun Kim v S & M Caterers, Inc., 136 AD3d 755, 756). Thus, there is no merit to [*2]Walsh’s contention that the Supreme Court should have granted his motion to dismiss the complaint at the close of the plaintiffs’ evidence for failure to establish causation.

Nonetheless, we disagree with the Supreme Court’s determination to admit into evidence the written sworn statement of Castaldini’s treating physician without making the physician available for cross-examination. At an inquest to ascertain damages upon a defendant’s default, the plaintiff may submit proof by written sworn statements of the witnesses (see CPLR 3215[b]; 22 NYCRR 202.46[b]). However, where, as here, the defaulting defendant gives notice that he or she will appear at the inquest, the plaintiff must make the witnesses available for cross-examination (see CPLR 3215[b]; Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572). Since Walsh did not make the physician available for cross-examination, the court should not have admitted into evidence the physician’s written sworn statement over Walsh’s objection. Further, since the court relied on the physician’s statement in making its findings of fact on damages, we remit the matter to the Supreme Court, Suffolk County, for a new inquest on the issue of damages (see Dejesus v H.E. Broadway, Inc., 175 AD3d 1485, 1486; Tamburello v Bensonhurst Car & Limo Serv., 305 AD2d 664, 665; Beresford v Waheed, 302 AD2d 342, 343).”

This one is interesting.

Deposition rulings September 25, 2020

Gargano v Langman, 2020 NY Slip Op 04923 (2d Dept. 2020)

“An order denying a motion to compel a witness to answer questions propounded at an examination before trial is akin to a ruling made in the course of the examination itself and is not appealable as of right, even where it was made upon a full record and on the plaintiff’s motion to compel responses”

EBT rulings – even if made in the context of a subsequent motion – may only be appealed as of right.

Improvident to examine papers September 25, 2020

Elusma v Jackson, 2020 NY Slip Op 04920 (2d Dept. 2020)

“The Supreme Court improvidently exercised its discretion in considering the plaintiffs’ opposition papers, which were submitted after the return date of the motion. The plaintiffs’ vague and unsubstantiated proffered excuse of law office failure did not constitute a reasonable excuse for the late service of their opposition papers (see CPLR 2214[b], [c]; Nakollofski v Kingsway Props., LLC, 157 AD3d 960, 961; Taylor Appraisals v Prokop, 99 AD3d 985, 985). Nevertheless, the court’s consideration of the opposition papers is of no moment since the defendants failed to establish their prima facie entitlement to summary judgment on the issue of liability.”