Tuckahoe Road in Yonkers...cont

August 24, 2015,


The legal standards to be applied in evaluating a motion to dismiss are well-settled. In determining whether a complaint is sufficient to withstand a motion to dismiss pursuant to CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action. If from the four corners of the complaint factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion to dismiss will fail. The court's function is to '"accept each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiff's ability ultimately to establish the truth of these averments before the trier of the facts'". The pleading is to be liberally construed and the pleader afforded the benefit of every possible favorable inference.

Where, as here, the plaintiff submits evidentiary material, the Court is required to determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one. Affidavits may be used to preserve in artfully pleaded, but potentially meritorious claims; however, absent conversion of the motion to a motion for summary judgment, affidavits are not to be examined in order to determine whether there is evidentiary support for the pleading. Injury Affidavits may be properly considered where they conclusively establish that the plaintiff has no cause of action.

To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim. To qualify as "documentary", the evidence relied upon must be unambiguous and undeniable, such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, and contracts. Letters, affidavits, notes, and deposition transcripts are generally not documentary.

If the documentary evidence disproves an essential allegation of the complaint, dismissal is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of personal injury action.

The essence of defendant’s argument is that the liens filed by Plaintiffs were a nullity because this was not a public improvement project and the liens filed were not filed in accordance with the private improvement provisions of the Lien Law because, inter alia, they were not timely filed and were not filed with the County Clerk. In opposition, Plaintiffs concede that the liens were not filed in accordance with the Lien Law's requirements concerning private liens but because this was a public improvement project, Plaintiffs only had to comply with the provisions governing public improvement liens.

The provisions of the Lien Law governing the filing of public improvement liens are Sections 5 and 12. Lien Law § 5 ("Liens under contracts for public improvements") provides: A person performing labor for or furnishing materials to a contractor, his or her subcontractor or legal representative, for the construction or demolition of a public improvement pursuant to a contract by such contractor with the state or a public corporation shall have a lien for the principal and interest of the value or agreed price of such labor, including benefits and wage supplements due or payable for the benefit of any person performing labor, or materials upon the moneys of the state or of such corporation applicable to the construction or demolition of such improvement, to the extent of the amount due or to become due on such contract upon filing a notice of lien as prescribed in this article, except as hereinafter in this article provided.

A public corporation is defined under Lien Law § 2(6) as "a municipal corporation or a district corporation or a public benefit corporation and a public improvement is defined under Lien Law §2(7) as "an improvement of any real property belonging to the state or a public corporation

Lien Law § 12 ("Notice of lien on account of public improvements") provides: At any time before the construction or demolition of a public improvement is completed and accepted by the state or by the public corporation, and within thirty days after such completion and acceptance, a person performing work for or furnishing materials to a contractor, his subcontractor, assignee or legal representative, may file a notice of lien with the head of the department or bureau having charge of such construction or demolition and with the comptroller of the state or with the financial officer of the public corporation, or other officer or person charged with the custody and disbursements of the state or corporate funds applicable to the contract under which the claim is made. The notice shall state the name and residence of the lienor, the name of the contractor or subcontractor for whom the labor was performed or materials furnished, the amount claimed to be due or to become due, the date when due, a description of the public improvement upon which the labor was performed and materials expended, the kind of labor performed and materials furnished, and materials actually manufactured for but not delivered to such public improvement, and give a general description of the contract pursuant to which such public improvement was constructed or demolished. If the lienor is a partnership or a corporation, the notice shall state the business address of such partnership or a corporation, its principal place of business within the state. If the name of the contractor or subcontractor is not known to the lienor, it may be so stated in the notice, and a failure to state correctly the name of the contractor or subcontractor shall not affect the validity of the lien. The notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true.

In accordance with Lien Law § 5 "in order that one furnishing labor or materials upon public work shall have a valid lien therefor, the labor and materials must have been furnished pursuant to a contract 'with the state or a municipal corporation'". Here, giving Plaintiffs' Amended Complaint the liberal reading to which it is entitled in the context of a motion to dismiss, the predicate for Plaintiffs' claims is that their liens are public improvement liens. The Court has no difficulty in concluding that defendant is not the state and is not a public corporation. However, the matter does not end there.

Certainly, if accident defendant did not contract with either the state or a public corporation to perform the work in question, the liens could not have been filed in accordance with the public improvement lien provisions and no private lien may be placed on a public road. As explained by the Appellate Division, First Department, "City-owned properties are inalienable under City Charter § 383 an entity desiring to secure an interest thereupon must file a 'public improvement lien' not a 'mechanic's lien,' which EMC filed here. A public improvement lien does not attach to the City's property; instead it secures a creditor's interest 'upon the moneys of the state or of such public corporation applicable to the construction or demolition of such improvements"'.

This being said, the Court concludes that lien, even if assumed to have validly attached as a public improvement lien, is nevertheless invalid for a different reason. The governing statute permits the assertion of a lien on account of public improvements by a person "performing work or furnishing materials". This terminology refers to the performance of physical work or labor and the furnishing of physical materials. The provision of a surety bond is not directly connected to the improvement itself and a surety has ample other means at hand, before issuing a bond, to protect itself from the risk that its insured will fail to pay a premium.

Accordingly, the court held that the motion of defendant to dismiss the Amended Complaint of Plaintiffs is granted in part and denied in part; and it is further ordered that all causes of action are dismissed to the extent asserted on behalf of Plaintiff.

Tuckahoe Road in Yonkers

August 21, 2015,

A Bronx Estate Litigation Lawyer said that, this action was initiated with Plaintiffs' filing of their Summons and Complaint in this Court's e-filing system ("NYSCEF") on April 27, 2012. According to Plaintiffs, the dispute arising out of non-payment for Plaintiffs' performance of asphalt, paving and bonding services on behalf of a general contractor in connection with its contract with defendant to make improvements to certain public streets - Tuckahoe Road in Yonkers and 108th and 188th Streets in the Bronx. It is Plaintiffs' contention that defendant wrongfully paid the general contractor monies that were the subject of mechanic's liens filed by Plaintiffs concerning the injury services they provided on these projects.

A Bronx Estate Lawyer said that, defendants moved to dismiss the Complaint and the Court held a conference on June 28, 2012 to determine whether discovery would proceed pending the motion to dismiss or if it would be stayed. At the conclusion of the conference, the Court advised that discovery would be stayed pending the motion to dismiss and then set the motion schedule. On July 30, 2012, Plaintiffs filed an amended complaint and Defendants withdrew the prior motion and replaced it with the present one.

Based on the allegations of the Amended Complaint, which the Court must deem as true for purposes of this motion, Plaintiff is a general contractor specializing in asphalt paving, concrete and commercial construction that subcontracted with the general contractor on July 20, 2010 to work on certain aspects of a Con Ed project located at Tuckahoe Road, Yonkers, New York. Plaintiffs contend that the general contractor failed to pay Plaintiffs causing Plaintiffs to file mechanic's liens pursuant to New York's Lien Law ("Lien Law") § 12, which permits for the filing of a lien up to 30 days after the completion and injury acceptance of a public improvement project. It is Plaintiffs' position that the time for the filing of these liens has not run because the projects are not yet completed.

Plaintiff was a subcontractor to the general contractor providing paving services in connection with the defendant’s project. It is alleged that on October 14, 2011, plaintiff served upon defendant "a Mechanic's Lien for Public Improvement for the supply of materials and labor to the general contractor in the amount of $55,750.40". Plaintiffs allege that this lien remains unpaid. Plaintiffs contend that the "amounts owed to Plaintiffs are trust assets subject to the rights of trust beneficiaries under New York Lien Law, Art. 3-A".

Plaintiffs allege that defendant "has an internal risk management department to review the validity, financial wherewithal and sufficiency of any insurance company issuing bonds seeking to discharge a mechanic's lien on a project" yet "neglected to follow its internal procedures to ascertain the validity and sufficiency of the bonds presented to it by the general contractor. Within three weeks of procuring the fraudulent bonds and obtaining the retained funds from defendant filed for Chapter 11 Bankruptcy protection.

Plaintiffs' First Cause of Action is for breach of fiduciary duty. It alleges that defendant’s contract with the general contractor allowed it to pay subcontractors and vendors directly and defendant’s internal policy is to withhold funds when a injury claim for payment is made by a subcontractor or vendor to defendant. Plaintiffs contend that they "relied on defendant’s withholding of payments to the general contractor and negotiated with defendant for release of funds directly to them for payment". The fiduciary relationship is established, say Plaintiffs, as a result of defendant’s "actions and standard procedures" and its "failure to protect the claims of Plaintiff was a breach of said fiduciary duty and caused Plaintiffs to lose the retained funds".


To Be Cont...

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Realty is the management company of the premises...cont

August 19, 2015,


For the Supreme Court of the State of New York, the prescribed venue of an action is codified at and statutorily authorized by Article 5 of the CPLR. The statutory scheme provides that "notwithstanding the provisions of this article, the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order of the court upon motion or by consent" (CPLR §509). As such, unless the parties have by prior written agreement fixed the venue of an action, CPLR Article 5 permits the plaintiff the right to make the initial selection of an appropriate venue.

Pursuant to CPLR §503(a), venue is predicated upon the residence of one of the parties at the time the action is commenced, not where the cause of action arose. However, CPLR §510(1) provides that the "court, upon motion, may change the place of trial of an action where: the county designated for that purpose is not a proper county." And, it is settled that upon a motion by defendants to change said venue, defendants bear the burden to establish that the plaintiff’’s choice of forum is not appropriate, or that other factors and circumstances require that venue be changed. In addition, it is settled that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed".

Here, defendants fail to demonstrate that plaintiffs move to Pennsylvania shortly after commencing the instant action evidences a lack of intent to retain New York County as a permanent residence sufficient to defeat New York County as a basis for venue.

First Department case law, which is controlling over this Court, makes clear that for the purpose of deciding whether the placement of venue is proper "the controlling date is the date of commencement of the action". The First Department also makes clear that in the absence of evidence that a plaintiff's residency was "contrived for the sole purpose of obtaining an advantageous venue," it is proper to conclude that the plaintiff was a bona fide resident of the county wherein he or she resided at the time the action was commenced.

Further, the First Department points out that "a subsequent change of residence to another county does not invalidate the original designation based upon plaintiffs residence at the time of the commencement of the injury action". In reversing the trial court, the First Department held, inter alia, that "a subsequent change of residence to another county does not invalidate the original designation based upon plaintiffs' residence at the time of the commencement of the action".

The case law defendants cite is distinguishable. In the 1978 case, the defendant appealed an order denying his motion to change the venue of the action from Kings County to Westchester County. The plaintiff had maintained a home in Westchester County for 20 years, his two children attended public school in Scarsdale, he was a registered voter in Scarsdale, and he filed income tax returns as a resident of Scarsdale, He also claimed "exclusive use" of a bedroom in his sister's and brother-in-law's home in Kings County. In reversing the trial court and determining that the Kings County venue did not constitute a residence, the Second Department held that the plaintiff's "occasional use of the bedroom in his sister and brother-in-law's home does not support his contention that he has a second residence in Brooklyn". The Second Department went on to explain: Although a person may have more than one residence for venue purposes, to consider a place as such, he must stay there for some time and have the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency. Residence requires more stability than a brief sojourn for business, social or recreational activities. The mere fact that plaintiff uses the Brooklyn home of his sister and brother-in-law as a stopover for convenience and to sleep there when in the area on business, does not establish a residence.

The other cases defendants cite also are unavailing. In the 1996, the plaintiff filed an action basing venue on her "residence" in Bronx County, a mere three months after moving to Bronx County from Westchester County. However, one week after the plaintiff moved to the Bronx, she registered her car in Westchester County, and "in her affidavit, the plaintiff acknowledged that she and her family were now residing in Putnam County". After examining plaintiffs affidavit, the Second Department determined that "the move was not made with `the bona fide intent to retain the place in Bronx County as a residence for some length of time and with some degree of permanency'". In the 1989 case decision, the First Department held that the trial court "did not abuse its discretion in granting the injury motion for a change of venue given its finding that plaintiffs' occupancy of a relative's home in the Bronx while their Westchester home was being renovated indicated a lack of intent to remain in the Bronx." In the 2009, the evidence "revealed that on or about December 31, 2005, which was just over one year after the subject accident, the plaintiff moved to her son's apartment in Brooklyn from her house in Staten Island after a `diabetic episode,' that in March or April 2006, she entered into a contract to purchase a house in New Jersey, that on August 8, 2006, three days after commencing this action, she `took over' her new house in New Jersey, and moved into it in November 2006." The Second Department determined that the plaintiff was temporarily staying in a Brooklyn apartment without "the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency" when she commenced her action. Therefore, the motion to change venue from Kings County to Richmond County, where the defendants resided, should have been granted, the Court held.

Here, unlike the plaintiffs in the cases above, plaintiff had not recently moved to New York County when she filed the instant action. Instead, she had lived at the premises for two years prior. Therefore, none of these cases is on point. As it is clear from the evidence in the record that plaintiff was a resident of New York County at the time she commenced the instant action, and that her residence in New York County was not contrived to obtain an advantageous venue, defendants' motion is denied.

Based on the foregoing, the court held that the motion of defendants for an order, pursuant to CPLR §511, to change the venue of this action brought by plaintiff is denied; and it is further ordered that counsel for plaintiff and counsel for defendants appear for a Preliminary Conference before the Justice 60 Center Street, Part 35, Rm. 438 on Tuesday, March 30, 2010 at 2:15 p.m.; and it is further ordered that defendants serve a copy of this order with notice of entry upon all parties within 20 days of entry.

Realty is the management company of the premises

August 17, 2015,

In this personal injury action brought by plaintiff defendants move for an order, pursuant to CPLR §511, to change venue to Westchester County. A Bronx Estate Lawyer said that, plaintiff commenced this action through the service of a Summons and Complaint on September 30, 2009. Her Summons lists the basis of venue as her residence, 214 East 83rd Street, Apt. 5A, New York, New York 10028. In her Complaint, plaintiff alleges that defendant is the owner of 214 East 83rd Street, New York, New York (the "premises"), and Realty is the management company of the premises. Plaintiff further alleges that on or about July 2, 2009, as a result of defendants' negligence, she fell down an interior staircase of the premises, and suffered serious injuries.

A Bronx Probate Lawyer said that, defendants contend that, pursuant to CPLR §503(a), venue is based on the parties' residence at the time of commencement of the action. For corporations such as Realty, residency is determined by the county where its principal place of business is listed on its certificate of incorporation. As defendant resides at 10 Forthill Lane, Scarsdale, New York, New York, 10583, and Realty is a domestic limited liability company incorporated in Westchester County, with its principal office in Westchester County, defendants' residency is Westchester County.

Citing injury case law, defendants further contend that a defendant is entitled to a change of venue from the venue chosen by plaintiff, if, shortly after an action is commenced, the plaintiff moves from the residence that served as the basis for venue at the time of commencement. Such an act evidences a plaintiff’s lack of intent to retain the residence as a permanent residence. Citing the affidavit of defendant, defendants argue that plaintiffs lease regarding the premises was terminated in October 2009, and plaintiff moved out of said premises on October 31, 2009, and now lives in Pennsylvania. Therefore, plaintiffs address at the time the instant matter was commenced cannot be deemed plaintiffs residence, because she did not possess the requisite intent to retain the residence for some length of time and with some degree of permanency. Given that plaintiff is now a Pennsylvania domiciliary with no residency in any county within New York State, the only proper county for venue is Westchester County, defendants argue.

In opposition, plaintiff distinguishes the case law on which defendants rely, on the ground that in those cases, it was clear that the plaintiff was never a bona fide resident of the county wherein the action initially was venued. The courts rejected such attempts to manufacture or manipulate venue by temporarily relocating to the chosen venue. In contrast, plaintiff was a longstanding resident and domiciliary of New York County, where she lived, worked, received her paychecks, and filed her income tax returns. Plaintiff did not temporarily move or relocate to New York County for the specific purpose of establishing venue therein, nor did she utilize the home of a family member or office as a temporary stopover for the purpose of creating a sham venue. The mere fact that plaintiff relocated outside of New York County after commencing this action is irrelevant for venue purposes, plaintiff argues.

Plaintiff further contends that venue is preferred in the county where the cause of action arose. Plaintiff’s accident occurred in New York County, and the accident situs is within the management and/or ownership of defendants. Thus, New York County is the proper venue. In reply, defendants point out that they are not contending that plaintiffs New York County residency was a sham. Instead, they are arguing that, based on recent case law, New York County is an improper venue.

Further, defendants distinguish the case law plaintiff cites, and contests plaintiffs argument that venue is preferred in the county wherein the cause of action arose. While the importance of the situs of an accident for venue purposes is relevant in regards to the convenience of witnesses, defendants are not seeking a change of venue based upon the convenience of witnesses, but instead upon the contention that Westchester County is the only proper venue in this matter. As such, plaintiff’s argument regarding the situs of the accident is irrelevant for the purpose of defeating defendants' motion.

The issue in this case is whether the motion to change the venue should be granted.


To Be Cont...

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CPLR 4404(a... cont

August 15, 2015,

In the first instance, and contrary to the defendants' contention, the notice of claim was sufficient to enable the defendants to investigate the allegations contained therein. The notice of claim was sufficient for the defendant to locate the place, fix the time, and understand the nature of the accident. Further, there is no merit to the defendants' contention that the plaintiff changed his theory of recovery from a claim that he was hit by a bus designated as number 9167, as set forth in the notice of claim, to a generalized claim at trial that he was merely hit by a bus. The theory propounded by the plaintiff at trial, and as charged to the jury, was that the plaintiff was hit by a bus operated by JA, and that the particular bus operated by Arroyo was designated as number 9167. Accordingly, the plaintiff did not rest his action on a theory that was not asserted in the notice of claim.

Additionally, we reject the defendants' contentions that, based on the evidence adduced at trial, the jury's findings that the defendants were negligent and that the plaintiff's injuries constituted a serious injury, as well as the jury's apportionment of fault between the plaintiff and the defendants, were not rationally based on a valid line of reasoning and permissible inferences drawn from that evidence.

Moreover, it is for the jury to make determinations as to the credibility of the witnesses, and it is accorded great deference, as it had the opportunity to see and hear the witnesses. A jury verdict in favor of a plaintiff may not be set aside as contrary to the weight of the evidence unless the evidence so preponderates in favor of the defendants that the verdict could not have been reached on any fair interpretation of the evidence. Here, the jury verdicts on the issues of the defendants' negligence and the apportionment of fault were not contrary to the weight of the evidence, since they were based upon a fair interpretation of the evidence.

However, in light of an error in the court's charge to the jury, we cannot determine, on the record before us, whether the jury's finding that the injury it found to be serious were proximately caused by the accident was unsupported by legally sufficient evidence or was contrary to the weight of the evidence. Accordingly, this error requires a new trial on the issues of causation and, if necessary, damages. Specifically, aggravation of a preexisting injury or condition is an element of damages which must be affirmatively pleaded and proven before recovery can be allowed. Here, it is undisputed that the plaintiff failed to allege, either in his complaint or in his six bills of particulars, that he sustained an aggravation of any preexisting degenerative disc condition. Accordingly, it was error for the court to charge, pursuant to PJI 2:283, and over the defendants' objection, that the jury could award damages for increased susceptibility to injury, based upon an alleged preexisting condition. Under the circumstances of this case, the erroneous charge was prejudicial to the defendants, and warrants a new trial on the issues of which of the plaintiff's injuries, if any, were proximately caused by the subject accident, whether any injuries proximately caused by the accident constituted a serious injury within the meaning of Insurance Law § 5102(d), and the appropriate measure of damages for past and future pain and suffering and past and future loss of earnings that are attributable to the injuries, if any, proximately caused by the accident.

Accordingly, the judgment must be reversed, and the matter must be remitted to the Supreme Court, Kings County, for a new trial on the issues of causation and, if necessary, damages.
In light of the foregoing, it is unnecessary to reach the defendants' remaining contention that the jury's awards for pain and suffering and loss of earnings were excessive.

Accordingly, it is ordered that the judgment is reversed, on the law, with costs, those branches of the defendants' motion which were pursuant to CPLR 4404(a) to set aside the verdicts on the issues of causation and damages and for a new trial on those issues are granted, the matter is remitted to the Supreme Court, Kings County, for a new trial only on the issue of causation and, if necessary, damages, and the order is modified accordingly. The findings of fact as to the defendants' negligence and the apportionment of fault are affirmed.

CPLR 4404(a

August 12, 2015,

In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Kings County dated May 27, 2008, which, upon a jury verdict on the issue of liability finding that they were 80% at fault in the happening of the automobile accident and that the plaintiff was 20% at fault in the happening of the accident, upon a jury verdict on the issue of damages, and upon an order of the same court dated February 26, 2008, denying their motion pursuant to CPLR 4404(a), inter alia, to set aside the verdicts on the issues of liability and damages and for judgment as a matter of law or, in the alternative, for a new trial is in favor of the plaintiff and against them in the principal sum of $2,375,871.

On September 22, 2003, the plaintiff, LR, allegedly was injured when he was struck by a bus owned by the defendant New York City Transit Authority (hereinafter NYCTA) and operated by JA, sued herein as John Doe, as the plaintiff was crossing Gates Avenue at its intersection with Franklin Avenue in Brooklyn.

After serving a notice of claim upon NYCTA, and thereafter commencing this action, the plaintiff served a verified bill of particulars dated June 4, 2003, alleging that he sustained permanent, serious personal injuries including, inter alia, L5–S1 disc protrusion with impingement on the proximal right S1 nerve root and L4–5 disc bulge. On July 27, 2006, he underwent surgery consisting of right-sided hemilaminotomy, L5–S1 and right-sided partial disectomy L5–S1. The plaintiff did not claim aggravation of any preexisting condition or prior injuries. After the trial on the issue of liability, the jury found the defendants 80% at fault in the happening of the accident and the plaintiff 20% at fault.

After the trial on the issue of damages, the jury found that the plaintiff, as a result of the accident of September 22, 2003, sustained a significant limitation of use of body function or system. The jury awarded the plaintiff the sums of $200,000 for past pain and suffering, $1,210,000 for future pain and suffering for 25 years, $60,000 for past loss of earnings, and $905,871 for future loss of earnings over 17 years.

The defendants moved, pursuant to CPLR 4404(a), inter alia, to set aside the jury verdict on the issues of liability and damages, and for a judgment as a matter of law, arguing, among other things, that several of the plaintiff's injuries were not proximately caused by the subject accident, and that those injuries which may have been caused by the accident did not meet the threshold of serious injury required by Insurance Law § 5102(d). In an order dated February 26, 2008, the Supreme Court denied the defendants' motion. A judgment in favor of the plaintiff was subsequently entered. The defendants appeal. We reverse, and grant a new trial on the issues of causation and, if necessary, damages.

A postverdict motion pursuant to CPLR 4404(a) for judgment as a matter of law, made on the ground that a jury verdict is not supported by legally sufficient evidence, may be granted only if the court concludes that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial.

To Be cont....

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Plaintiff MM twas 34 years old on the date of the accident...cont

August 10, 2015,

The primary difficulty, however, with the future loss-of-earnings award is the evidence, presented by Plaintiff's own witness, that, even after the accident, Plaintiff was able to do other work. Indeed, both before and after the accident, Plaintiff developed a tax preparation business that yielded the same compensation for four-months' effort that driving a taxi yielded for eight months, even assuming he was not doing both during January through April. And, even assuming that Plaintiff's tax preparation business could not be extended beyond that four-month period, it demonstrates Plaintiff's ability to earn by doing work other than taxi driving that could provide even higher compensation.

Plaintiff testified to no efforts made after the accident to replace his income from taxi driving, although, to be fair, he was not asked by either his counsel or Defendants'. The question is, was it Plaintiff's burden to introduce evidence that he would be unable to replace the income from taxi driving, in order to show loss in fact, or was it Defendants' burden in an effort to mitigate damages that necessarily would follow?

A litigant who seeks recovery for diminution of future earnings is obligated to submit some evidence showing the difference between what he is now able to earn and what he could have earned if he had not been injured. Here, Plaintiff's evidence as to "what he is now able to earn" is limited to the four-month period during which he provides tax preparation services.

There are opinions in which an award of future loss of earnings is upheld upon injury evidence that the plaintiff cannot perform the work s/he performed before the accident. Courts have upheld awards where the plaintiff was disabled from engaging in construction work or any other physically strenuous activity and had no other employment skills; and where the plaintiff was disabled from both physical and sedentary employment as a result of the accident.

Similarly, an award for future lost earnings was upheld where the plaintiff was totally disabled from construction work and testified to the maximum earnings from work that he could perform.

The Court is aware of opinions in which the possibility of replacement employment is addressed under mitigation of damages. The Court concludes, therefore, that, particularly in light of the testimony of Dr. CK and Plaintiff's demonstrated ability to earn at a higher rate than as a taxi driver, the jury's award of $300,000 for future loss of earnings cannot stand.

The question becomes the appropriate relief. Specifically, should judgment on the claim be granted to Defendants as a matter of law because there is no valid line of reasoning and permissible inferences which could possibly lead rational people to the conclusion reached by the jury on the basis of the evidence presented at trial; or should there be a new bite trial because the verdict was contrary to the weight of the evidence and not reached on any fair interpretation of the evidence.

As previously noted, the extensive case law uses all of the formulations, which is, of course, quite appropriate because of the multi-faceted nature of a loss-of-earnings claim and, presumably, the precise nature of the deficiency in proof in the particular case. Categorization is difficult because the opinions do not always describe the deficiency in proof that leads the court to set the verdict aside, if only conditionally.

Were the Court to venture a injury guideline, it would be based upon the distinction between proof as to the fact of damage and that as to the amount of damages. It is elemental that damages cannot be recovered in excess of the actual damage sustained. Here, the deficiency in Plaintiff's proof, in light of its own expert testimony and the undisputed facts as to Plaintiff's work and earnings history, constitutes a failure to demonstrate a compensable loss of future earning capacity, and not merely a failure to properly account for, or compute, the amount of future lost earnings. The authorities relied upon, moreover, where the plaintiffs similarly failed to produce evidence that they were unable to earn as much by doing other work, dismissed the claim for future loss of earnings. Those authorities require the same result here.

Defendants' motion to set aside the jury's verdict is granted to the extent that the jury's award of $300,000 for future loss of earnings is set aside, and the claim for future loss of earnings is dismissed as a matter of law; the jury's award of $87,500 for past loss of earnings is set aside, and a new trial granted on that element of damages only, unless, within 30 days after service upon him of a copy of this decision and order, Plaintiff shall file with the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict for past loss of earnings from the principal sum of $87,500 to the principal sum of $70,000, subject to further reduction as might be required by the No-Fault Law.

Plaintiff MM twas 34 years old on the date of the accident...cont

August 7, 2015,


At the core of lost earnings assessment is the focus, in part, on the plaintiff's earning capacity both before and after the injury. When future loss of earnings is claimed, reasonable certainty must be based upon future probabilities. An expert vocational economic analyst is permitted to provide an opinion as to future lost earnings, since the process of calculating such damages is beyond the general knowledge of the average juror. Where the plaintiff is an infant, expert opinion of that type might be required.

The lost earnings claim, therefore, is comprised of several interrelated elements, on each of which the plaintiff bears at least the burden of coming forward with evidence: medical evidence of disability, depending upon the nature of the injury; proof of causation in fact, primarily the difference between the plaintiff's earning capacity before and after the accident and proof of the amount of the loss, including necessary documentation and fair calculation.

An injured plaintiff, moreover, is obligated to mitigate damages by endeavoring to seek alternate employment.

The difficulty arises, however, in that while the plaintiff is required to mitigate damages, the burden of proving a lack of diligent effort to mitigate damages is upon the defendant. The precise relationship between a plaintiff's burden to prove damage or loss in fact, and a defendant's burden to prove a failure to mitigate damages, is not entirely clear, particularly where, as here, the defendant does not request that the court charge mitigation.

Turning to the jury's awards here, there seems little doubt that the award of $87,500 for past loss of earnings cannot stand. There was no evidence upon which the jury could base a determination that Plaintiff would have earned more from driving a taxi during the three and a half year period from the accident until trial than he earned before the accident. The $70,000 amount proferred by Defendants is not disputed by Plaintiff on this motion, and appears somewhat generous to Plaintiff as a matter of arithmetic based upon a pre-accident annual income of approximately $19,000, and given Plaintiff's testimony that he returned to driving a taxi to some extent and for some period prior to trial. The appropriate remedy, based upon the Court's review of the case law, would be a new trial on this element of damages unless Plaintiff agrees to a reduction in the award.

Defendants are also correct that Plaintiff may recover for loss of earnings only to the extent that they exceed $50,000 in basic economic loss, which would include medical expenses as well as loss of earnings. The parties agreed at trial that the Court would make any necessary adjustment after the jury's verdict, and a hearing will be scheduled at the appropriate time for that purpose, if the parties cannot agree on an adjustment.

Defendants' limited objection in its post verdict motion, addressed only to the precise amount of the past lost earnings award, effectively waived any objection to the quality of the plaintiff's proof on this issue. The jury was entitled to credit the testimony of the plaintiff's treating physician regarding the plaintiff's physical condition concerning future lost earnings, and to discredit the testimony of the defendants' witnesses regarding that issue. Given the nature of Plaintiff's work, taxi driving, Dr. CK's testimony is competent and sufficient evidence that he could do it no longer, and the jury's acceptance of the testimony was not against the weight of the evidence.

The jury also apparently accepted Plaintiff's testimony that, before the accident, he intended to continue driving a taxi, apparently indefinitely, even though he had returned to school to learn computer skills and the knowledge required for tax preparation, and was earning considerably more from that business for the time spent, and even though there was no evidence of the continued viability of taxi driving during the 30-year period over which the jury provided lost-earnings compensation. Defendants do not challenge the approximately $19,000 annual earnings from taxi driving, which, in any event, is more than the approximately $10,000 annually computed from the jury's award of $300,000 over 30 years.


To Be Cont...

Plaintiff MM twas 34 years old on the date of the accident...cont

August 5, 2015,

As previously noted, the jury awarded Plaintiff $87,500 for past lost earnings, and $300,000 for future lost earnings, intended to compensate Plaintiff for 30 years. Defendants challenge both awards, but on different grounds. As for the award for past lost earnings, Defendants contend that the evidence does not support an award of $87,500 for the three and a half year period from the date of the accident until trial. Rather, according to Defendants, at the annual rate of approximately $19,000, the verdict could have been approximately $70,000.

Defendants also point out that Insurance Law § 5104 [a] precludes recovery of basic economic loss which does not exceed $50,000.00.

As for the award for future lost earnings, Defendants contend that it must be vacated in its entirety. Defendants argue that the claim of plaintiff and Dr. CK that plaintiff is unable to return to driving a taxi is not a sufficient basis to justify an award of future lost earnings; rather, plaintiff must establish that Mr. MM is precluded from engaging in any wage earning activity.

Plaintiff's position is that if the injury had not occurred then Mr. MM could have earned both the yearly income of tax return services and taxi-cab driving. Instead, Mr. MM can only earn half of what he would usually be able to earn doing both taxi cab driving and tax return services; due to the accident he is limited to performing tax returns solely which provides only half of his earning potential.

Under CPLR 4404 (a), the court may set aside a verdict and direct that judgment be entered in favor of a party entitled to a judgment as a matter of law or it may order a new trial where the verdict is against the weight of the evidence.

Specifically as to damages, an award is excessive or inadequate if it deviates materially from what would be reasonable compensation, and a new trial may be granted unless a stipulation is entered to a different award.

The interplay between the standards for judgment as a matter of law or for a new trial under CPLR 4404 (a) and the material deviation standard under CPLR 5501 (c) is not entirely clear to this judge. One commentator describes the additur and remittitur processes governed by CPLR 5501 (c) as really a kind of weight of the evidence' phenomenon, but also states that the minimum or the maximum found by the bite court to be permissible on the facts are treated in effect as a matter-of-law terminal, whether it is technically that or not.

There are, indeed, distinctions to be made. The material deviation standard of CPLR 5501 (c) seems more clearly suited to review of the amount of damages awarded, rather than to determinations that damages of some amount have in fact been sustained. The amount of damages to be awarded to a plaintiff for personal injury is a question for the jury, and its determination will not be disturbed unless the awards deviate materially from what would be reasonable compensation.

Although economic awards are quantifiable, awards for pain and suffering, or for loss of services and society, do not lend themselves as easily to computation. And there are awards that might be the result of quantifiable error and others that are intrinsically excessive. Prior awards are regarded as instructive, but not binding, by courts performing § 5501 (c) review. They are of little use where economic loss is at issue.

Specifically as to lost earnings, past and future, the courts speak variously of matter of law, weight of the evidence, and material deviation that is, when they refer to a standard at all, which is far from always. The identification and application of the appropriate standard is even further complicated by the doctrine of mitigation of damages particularly, but not exclusively, where economic damages are at issue which carries its own evidentiary burden. No overriding methodology has been articulated to address the interrelated elements of a lost earnings award, and none will be attempted here.

Claims for lost earnings must be ascertainable with a reasonable degree of certainty and may not be based on conjecture. Unless a claimed disability is observable and appreciated by laypersons, a lost earnings claim requires medical testimony connecting plaintiff's injuries to plaintiff's claimed inability to work.


To Be Cont....

Plaintiff MM was 34 years old on the date of the accident

August 2, 2015,

On December 3, 2008, at the conclusion of the liability phase of a bifurcated trial in this action, arising out of auto accident collision on June 5, 2005, the jury determined that defendants R.W. Express LLC and AW were solely at fault in causing the collision. On December 9, 2008, at the conclusion of the liability phase of the trial, the jury determined that Plaintiff MM had sustained a serious injury within the meaning of Insurance Law § 5102 (d), and awarded him damages in the total amount of $517,500; representing $30,000 for past pain and suffering; $100,000 for future pain and suffering, intended to compensate for a period of 30 years; $87,500 for past loss of earnings; and $300,000 for future loss of earnings, again intended to provide compensation for a period of 30 years.

Defendants R.W. Express LLC and AW now move for an order setting aside portions of the verdict, presumably pursuant to CPLR 4404 (a), although no statutory provision is cited in the Notice of Motion or the Affirmation in Support. Plaintiff understands the motion as seeking relief pursuant to CPLR § 4404 urging that the jury verdict deviates materially from what would be reasonable compensation, although the material deviation standard is found in CPLR 5501 (c). As will appear, both CPLR 4404 (a) and CPLR 5501 (c) figure prominently in the review of jury verdicts awarding damages for personal injury, both for economic loss and non-economic loss.

Defendants do not seek review of the awards for past and future pain and suffering. The motion is limited to the awards for loss of earnings, past and future, seeking reduction of the former and the setting aside of the latter. As to the award for future loss of earnings, Defendants do not state whether they seek judgment as a matter of law on that part of the verdict, or a new trial. The tenor of Defendants' argument, however, is that Plaintiff is not entitled to any compensation for future loss of earnings.

Plaintiff MM was 34 years old on the date of the accident, June 5, 2005, and was 37 years old at trial. Prior to 2005, and after he immigrated to the United States, Plaintiff worked only as a taxi driver, although he was also involved, without pay, with an organization that provided aid to persons in Bangladesh and immigrants from that country. Defendants maintain that the evidence at trial would support a finding of pre-accident earnings from taxi driving of approximately $ 19,000 each year, which is actually more than the amount proferred by Plaintiff.

Beginning in 2005, Plaintiff has provided income tax preparation services, for which he has earned approximately $19,000 to $ 20,000 each year. Plaintiff testified at trial that, before the accident, he intended to both continue to drive a taxi and to provide tax preparation services, the latter during the months January to April, when such services are usually required.
Plaintiff also testified that, after the injury, he tried to continue driving a taxi, but found that he could not. After the accident, Plaintiff treated for approximately eight months at Metro Medical, P.C. No one from Metro Medical testified at trial, but its records were admitted into evidence, and they were reviewed by Plaintiff's subsequent treating physician, Dr. CK, who did testify.

Dr. CK first saw Plaintiff on May 17, 2006 and last examined him on August 20, 2008. Based upon MRI studies of Plaintiff's cervical spine and lumbar spine taken, respectively, October 25 and October 28, 2007, i.e., more than two years after the accident, Dr. CK testified that Plaintiff sustained two small bulging discs in his cervical spine, and two herniated discs in his lumbar spine. Dr. CK also testified to other positive findings, including restricted range of motion in the cervical spine and the lumbar spine.

Most important for present purposes is Dr. CK's testimony concerning Plaintiff's ability to work, since he provided the only evidence, other than Plaintiff's testimony, to support the claim for past and future loss of earnings. Dr. CK recounted his understanding of Plaintiff's work history after the accident.

Upon cross-examination, Dr. CK acknowledged that on June 15, 2006 Plaintiff apparently told one of the other doctors in Dr. CK's practice that he was then working part-time as a taxi driver.

Continue reading "Plaintiff MM was 34 years old on the date of the accident" »

City and Army entered into an agreement...cont

July 31, 2015,

The Finch complaint alleged that the defendants improperly placed the infant in non-kinship foster care; failed to provide federally mandated preventive and reunification services; arbitrarily restricted visits between the infant and his grandmother; and failed to provide the infant with treatment for deafness. The policy in that case contained an endorsement with language identical to that contained in ISO Form CG 20-26 in that the City was qualified as an additional insured but only with respect to liability arising out of Talbot's operations. The policy also contained a clause that excluded from coverage any bodily injury due to the rendering of or failing to render any professional services. The insurer disclaimed coverage for the City arguing that the Finch allegations concerned actions undertaken by social workers in their professional capacities and thus fit completely within the professional services exclusion clause. The insurer further argued that the infant's injuries did not arise out of the foster care agency's operations because the City, not the agency, initiated the course of action leading to the alleged injuries by placing the child with the agency instead of in kinship foster care with his grandmother. In granting the City's motion for a declaration that the insurer was required to defend it, the court reasoned, As a frontline foster care provider, Talbot was in an excellent position perhaps the best position to avoid or reduce the risk that the infant would be harmed while out of his family's custody. The court further stated, Clearly, to the extent there is liability in this case, the City's liability stems from Talbot's operations as well as its own.

Similarly here, irrespective of whether the City had an independent duty to the plaintiffs in the underlying action, the fact remains that Army, through its contract with the City, obligated itself to provide child welfare services, including placement of children in foster homes. Furthermore, according to the allegations in the complaint and Army's own admission, the infant plaintiff was injured while in foster care with Army's foster boarding program. Thus, Army's actions as the frontline foster care provider are a central component of the infant plaintiff's alleged injuries. Accordingly, Army has failed to meet its burden demonstrating that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions.

Army argues, in the alternative, that should this court find that the Agreement provides for the City's coverage as an additional insured with respect to the Stanley complaint, the City's motion must still be denied because the City's failure to comply with the notice requirements voids any coverage under the Agreement. The personal injury insurance provision in the Agreement required the City to notify the insurer, in this case Army, of any occurrence, offense, claim or suit as soon as practicable. As soon as practicable has been construed to mean within a reasonable time after the duty to give notice arises. The duty to give notice arises when, based on the information available, an insured could glean a reasonable possibility of the policy's involvement.

The accident at issue here occurred on June 6, 2006. The City was served with a Notice of Claim in the Stanley action on or about August 2006. In December 2006, the City held a 50(h) hearing of plaintiff Joseph Stanley, father and natural guardian of the infant plaintiff, and on January 3, 2007, the City was served with a summons and complaint in the Stanley action. The City did not notify Army or Chesterfield of the incident until June 21, 2007, when it forwarded a copy of the summons and complaint and requested that defense be provided for the City. This was more than five months after it had been served with the complaint, approximately six months after it held its 50(h) hearing, and more than ten months after it was served with a Notice of Claim in the matter. Because the City has offered no excuse for why it took so long in notifying Army, its delay cannot be construed as reasonable.

It is well established, however, that even where the insured fails to provide the insurer with timely notice, the insurer has an obligation to promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated. Here, the insurer's disclaimer, given 33 days after it received notice from the City, lacked any specificity as to the reason of the disclaimer other than that it was based on a review of the contract. Army raised the issue of late notice as a basis for its disclaimer for the very first time in October 2008, in opposition to City's motion for summary judgment and in support of its own cross-motion for summary judgment.

While insurers are encouraged to conduct investigations and gather sufficient information before issuing a disclaimer, where the sole ground upon which the disclaimer is based is obvious from the face of the notice of claim and accompanying complaint, a delay of even 30 days has been held to be unreasonable.

Here, the City has established that the claims alleged in the Stanley accident lawsuit arose from Army's operations. Army's disclaimer, which denied coverage based on a review of the contract, was neither timely nor specific. As such, Army is left with no basis to object to the City's belated notice. Accordingly, the City is entitled to summary judgment on its action for a declaration that Army is obligated to defend it in the Stanley action.

The last issue raised by the City in its motion is its entitlement to reimbursement for attorneys' fees incurred in defending itself in the Stanley action. The City seeks recovery of fees incurred from June 21, 2007, the date it notified Chesterfield of the claim, to date. Where it is determined that an insurer is obligated to defend its insured in an underlying action, the insurer is also obligated to reimburse its insured for any legal costs incurred in the insured's defense of the underlying action. Accordingly, City's motion for a declaration that Army is obligated to reimburse it for attorneys' fees incurred in its defense of the Stanley action from June 21, 2007, to date is granted. The City shall make an application to the court for a determination of the amount to be awarded.

In light of the foregoing, it is ordered that the City's motion for a declaration on summary judgment is granted; and it is further ordered, adjudged and declared that Army must defend City in the underlying action; and it is further that Army is obligated to reimburse the City for attorneys' fees incurred in defense of the underlying action from June 21, 2007, to date; and it is further ordered that the City shall make an application to the court for a determination of the amount to be awarded as reimbursement for such attorneys' fees; and it is further ordered that Army's motion for summary judgment dismissing the accident complaint is denied.

City and Army entered into an agreement...cont

July 29, 2015,


The court is also unpersuaded by Army's arguments that "this is essentially a claim for indemnity with defense" and that the defense and breach of contract claims herein are identical and duplicative of those asserted in the underlying Stanley action. In the underlying Stanley action, City asserted a cross-claim against Army for contribution and/or indemnity. Here, the City moves for a declaration that, pursuant to the insurance provision in the contract between the parties, Army has a duty to defend City in the underlying Stanley injury action or alternatively, that Army has breached the contract between the parties in that it failed to obtain the insurance required under the terms of the Agreement. An insurer's duty to defend an insured is separate and apart from an obligation to pay or indemnify an insured.

Accordingly, an insurer may be contractually obligated to defend on a claim for which it is not required to pay or indemnify because it is later discovered that the claim falls within an exclusion. Thus, although the causes of action asserted by the City here and in the underlying Stanley action arise out of the same subject matter or series of alleged wrongs, the nature of the relief sought is not the same or substantially the same and therefore are not duplicative.
The motion herein is for summary judgment declaring that Army is required to defend City in the underlying Stanley action. With respect to Army's duty to defend, the Agreement provides that Army has no duty to defend the City in personal injury or property damage actions to which the subject insurance does not apply. The Agreement further provides that coverage for the City as an additional insured is only with respect to liability arising out of Army's operations. In support of its motion, the City annexes a copy of the complaint in the underlying action. The Stanley complaint alleges, in relevant part,

that Army entered into an agreement with City to provide foster care services; that Army had the same non-delegable duty of reasonable care owed to plaintiffs in the placement, care, custody and supervision of infant plaintiff while in foster care; that foster parent Anita Nurse served at the will and was an agent of City and Army; that Army recklessly, carelessly, negligently and with wanton disregard for the best interests of the infant plaintiff failed to adequately care for and/or supervise the custodial services provided to the infant by Anita Nurse, pursuant to its agreement with the City; that City and Army, knew or should have known that defendant Nurse failed to properly and/or adequately care for and/or battered and/or caused the infant plaintiff to be inadequately supervised ultimately resulting in injury; that while the infant plaintiff was in the care and custody and/or placement by City and Army, with Nurse, he was caused to be permanently injured; that the defendants City and Army acted in the placement and post-placement supervision of the infant plaintiff with Nurse; and that infant's plaintiff's incident occurred due to the negligence by City and Army of their non-delegable duty to properly care for and supervise those in foster care and that defendants negligently entrusted the care of the infant plaintiff to an unfit foster parent, conducted inappropriate investigations into the background and abilities of said foster parent, to wit: Anita Nurse.

An insurer's duty to defend is triggered whenever the facts or allegations of the complaint "potentially give rise to a covered claim" under the contract. Through its submissions, the City has established that the claims asserted against it in the Stanley action fall within the scope of the insurance coverage that Army agreed to provide under the Agreement. Thus, the City has met its prima facie burden in demonstrating its entitlement to a declaration that the Army is required to defend it in the Stanley action.

The burden now shifts to Army, as the opponent of the motion, to submit proof of a triable issue of fact. Army contends it has no duty to defend City because the claims asserted against the City do not arise out of Army's operations and are thus an exception to coverage pursuant to ISO Form CG 20-26. Assuming arguendo that the language of ISO Form CG 20-26 qualifies as an exclusion Defendant's argument that the clause is an exclusion is without merit for as an endorsement, it is an addition, rather than a limitation of coverage and the but only' qualification does not change the meaning of the latter portion of the clause, an insurer who relies upon an exclusion in order to be relieved of its duty to defend and thus defeat an insured's motion for summary judgment must demonstrate "that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other medical interpretation.

Army does not deny that the infant plaintiff was injured while in foster care with the Army's foster boarding program. Rather Army argues that the claims asserted against the City are based on independent acts of negligence on the part of the City and thus do not arise out of Army's operations. Army submits that the City had a duty, independent of any contractual responsibility on the part of Army, to supervise the placement and care of the infant plaintiff within the foster care system.

The decision in General Insurance Company of America v. City of New York, is instructive here. In that case, the City moved for partial summary judgment declaring that the insurer must defend it in a separate action commenced by an infant and his grandmother against the City of New York and Talbot-Perkins Agency, a private foster care agency, for injuries sustained by the infant while in foster care. The insurer cross-moved for a declaration that it was not obligated to defend or indemnify the City in the underlying Finch action.


To Be Cont...