The Coughlin Affd. cont...

November 23, 2014,


Plaintiff goes on to explain that she relocated to the Philadelphia area after September 30th because I obtained a job more suited to my financial and professional needs in the Philadelphia area.

The injury case law defendants cite is distinguishable. In Katz v Siroty, 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.

Here, however, plaintiffs stay in New York County was neither brief nor occasional, and cannot be considered a mere stopover.

The other cases defendants cite also are unavailing. In Jones-Ledbetter v Biltmore Auto Sales, Inc. 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 injury plaintiff acknowledged that she and her family were now residing in Putnam County. After examining plaintiff’s 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 Sibrizzi v Mount Tom Day School, the First Department held that the trial court did not abuse its discretion in granting the 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 Morreale v 105 Page Homeowners Ass’n, Inc., the evidence revealed that on or about December 31, 2005, which was just over one year after the subject bicycle 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.

Further, Ellis v Wirshba, another case defendants cite, does not support defendants' contention that venue should be changed to Westchester County. In Ellis, the defendants demonstrated that all of the parties resided in Westchester County. However, the Second Department held that the plaintiff’s affidavits and the annexed copies of the sublease and contract for the sale of a cooperative apartment, utility bill, stock certificate, and liability insurance sufficiently established the plaintiff’s bona fide intent to retain New York County as their residence with some degree of permanency at the time of the commencement of the action.

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. Medical Malpractice was not charged.

Based on the foregoing, it is hereby ordered that the motion of defendants Mr. HS and 214 E. 83 Street Realty, LLC for an order, pursuant to CPLR §511, to change the venue of this action brought by plaintiff JC is denied; and it is further ordered that counsel for plaintiff and counsel for defendants appear for a Preliminary Conference before Justice Carol Edmead, 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.

The Coughlin Affd. cont...

November 22, 2014,

Plaintiff goes on to explain that she relocated to the Philadelphia area after September 30th because I obtained a job more suited to my financial and professional needs in the Philadelphia area.

The injury case law defendants cite is distinguishable. In Katz v Siroty, 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.

Here, however, plaintiffs stay in New York County was neither brief nor occasional, and cannot be considered a mere stopover.

The other cases defendants cite also are unavailing. In Jones-Ledbetter v Biltmore Auto Sales, Inc. 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 injury plaintiff acknowledged that she and her family were now residing in Putnam County. After examining plaintiff’s 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 Sibrizzi v Mount Tom Day School, the First Department held that the trial court did not abuse its discretion in granting the 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 Morreale v 105 Page Homeowners Ass’n, Inc., the evidence revealed that on or about December 31, 2005, which was just over one year after the subject bicycle 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.

Further, Ellis v Wirshba, another case defendants cite, does not support defendants' contention that venue should be changed to Westchester County. In Ellis, the defendants demonstrated that all of the parties resided in Westchester County. However, the Second Department held that the plaintiff’s affidavits and the annexed copies of the sublease and contract for the sale of a cooperative apartment, utility bill, stock certificate, and liability insurance sufficiently established the plaintiff’s bona fide intent to retain New York County as their residence with some degree of permanency at the time of the commencement of the action.

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. Medical Malpractice was not charged.

Based on the foregoing, it is hereby ordered that the motion of defendants Mr. HS and 214 E. 83 Street Realty, LLC for an order, pursuant to CPLR §511, to change the venue of this action brought by plaintiff JC is denied; and it is further ordered that counsel for plaintiff and counsel for defendants appear for a Preliminary Conference before Justice Carol Edmead, 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.

The Coughlin Affd. cont...

November 22, 2014,

The facts in Blake v Massachusetts Mut. Life Ins. Co., are similar to those herein. In Blake, the plaintiffs took title to a house in Westchester County on July 20, 1999, while still residing in Bronx County. Then, on August 11, 1999, the plaintiffs commenced an action, basing venue on Bronx County, where they had lived for years. In affirming the Supreme Court's denial to change venue to Westchester County, the First Department stated: There is no dispute that plaintiffs continued to live only in the Bronx apartment while their new house was being painted, repaired and furnished, and did not move until the end of August. The First Department went on to reject defendants' argument that because plaintiffs did not intend to remain in the Bronx apartment for some length of time or with some degree of permanency at the time of the commencement of the action, Bronx County is not a proper venue. The Court held: Absent evidence that plaintiffs continued to live in the Bronx apartment until after the commencement of the action for the sole purpose of obtaining an advantageous venue, no basis exists to disturb the motion court's finding, made after a hearing, that plaintiffs were bona fide Bronx County residents at the commencement of the injury action.

Further, the First Department points out that a subsequent change of residence to another county does not invalidate the original designation based upon plaintiff’s residence at the time of the commencement of the action. In Iassinski, the plaintiffs commenced a personal injury action on or about November 9, 1992, electing New York County as the venue based on their alleged residence there. Plaintiffs had moved by the time they served their Bill of Particulars on March 22, 1993, four months later. After the defendants' moved to change venue to Queens County, the plaintiffs confirmed that their residence had since changed to Queens, but averred that at the time of the commencement of the action they resided in New York County. 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.

In Cardona, the plaintiffs commenced a personal injury action on May 2, 1988, designating Bronx County as the place of venue based upon their residence. In its motion to change venue, the defendant argued that because plaintiffs no longer live in Bronx County and, since that county therefore no longer has any nexus with the action, venue should be in New York County. The First Department rejected such reasoning, holding that a plaintiff who has designated a county of appropriate venue is under no obligation to make any showing that the county designated is in any way preferable to the one to which the change is sought unless and until the party seeking the change has made an adequate showing as to the convenience of material witnesses and the furtherance of justice.

Here, plaintiff resided in New York Kings County for two years before she commenced the medical instant action, and defendants make no showing that a change of venue is warranted for the convenience of material witnesses or for the furtherance of justice. Further, while it is undisputed that plaintiff moved to Pennsylvania soon after she commenced the instant action, defendants provide no evidence that plaintiffs New York Kings County residency was contrived for the sole purpose of obtaining an advantageous venue. To the contrary, plaintiff attests:
I began my full-time residence in the State of New York, County of New York on September 5, 2007, when I moved into my apartment located at the premises. I was employed by the law firm of Landman, Corsi, Ballaine & Ford in Manhattan at the time. For over two (2) years, I lived exclusively at the premises. My checks from the Landman, Corsi law firm were issued to the 214 East 83rd Street address. My income tax returns were filed with this same address. My bank statements and bills were issued to the 214 East 83rd Street address. In short, during this time period I had no dwelling, residence, domicile, office or other ties to the Commonwealth of Pennsylvania, other than having family who lived there in their own homes. From September 5, 2007 until the time I left my Manhattan apartment, I never resided in Pennsylvania,

To Be Cont...

The Coughlin Affd. cont...

November 21, 2014,


Plaintiff further contends that venue is preferred in the county where the cause of action arose. Plaintiffs 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. The Coughlin Affd. makes clear that the instant matter was commenced on September 30, 2009 at 12:49 p.m., and that plaintiff vacated her New York County residence on September 30, 2009 at approximately 8:00 p.m., mere hours after the Summons and Complaint were filed. Therefore, it cannot be said that plaintiff intended to retain her New York County construction residence with any permanency whatsoever at the time this matter was commenced. Instead, plaintiff had every intention of abandoning her New York County residence and had already made arrangements for an alternative residence.

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.

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. 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 injury 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 Injury 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.


To Be Cont...

The Coughlin Affd.

November 20, 2014,

In this personal injury action brought by plaintiff JC, defendants Mr. HS and LLC Realty move for an order, pursuant to CPLR §511, to change venue to Westchester County.

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 Mr. HS 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 injury .

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 Mr. Mr. HS 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 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 Mr. Mr. HS, defendants argue that plaintiffs lease regarding the construction 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.


To Be Cont...

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Matter of Stackpole...cont

November 19, 2014,


Subdivision (g) of 202.67 provides "No authorization will be granted to withdraw such funds, except for unusual circumstances, where the parents are financially able to support the infant and to provide for the infant's necessaries, treatment and education." Two separate standards for approval of withdrawal of funds are imposed under 202.67(g). Withdrawals for "unusual circumstances" those necessitated by the child's disability-need not be predicated upon the parents' inability to pay for them while those for "necessaries, treatment and education" must be supported by clear proof that the parents are too poor to provide them. An application for either expenditure must comply with 202.67(f) in that sufficient facts must be submitted to enable the court to determine, without conjecturing, that support of the child is not within the financial means of the parents. This is a departure from the DeMarco v. Seaman rule, which held that the child's personal injury recovery was so inviolable that only extraordinary expenses justified withdrawals and that social agencies were to provide for a child's support where parents financially could not.

Article 81 of Mental Hygiene Law sets forth the criteria and procedure for the appointment of guardian to manage the property and personal needs of a person who needs help with those medical activities.

Petitioner avers in her affidavit that VG turned 18 years old on December 21, 2008, that they reside in Waycross, Georgia, and that she recently commenced a proceeding in Georgia's court system to become VG’s guardian. She contends that she and her son often depend on her brother's 2001 Honda Odyssey for transport and that it will cost approximately $7,432.00 to fix its transmission and related mechanical problems brought about by car accident. The petition did not include a copy of the infant compromise order in the instant matter.

This presents an immediate problem because the infant compromise order must be examined to determine if the instant petition conflicts or complies with its directions. However, the court has examined the Kings County Clerk's file and located the relevant orders applying its authority to take judicial notice of its own records. The final amended infant's compromise order, dated August 23, 1999, is signed by Justice William Gary and contains the following pertinent direction: "Ordered that upon the infant plaintiff attaining the age of 18 years, or the statutory age of majority at that time provided, he shall appear before the Court at Special Term Part 76, for determination as to his ability to handle his affairs."

Unless there has been an appointment of a guardian ad litem, as provided by CPLR § 1202, a person under the age of 18 may only appear by one of the other representatives enumerated in CPLR § 1201. These would include a guardian of the property, or if there be none, a parent having legal custody, or if no such parent, by another having legal custody, or if the infant is married, by an adult co-resident spouse.

Under current New York State law an infant is a person who has not attained the age of eighteen years (CPLR § 105[j]). Therefore, VG reached the age of majority on December 21, 2008. As a general rule an adult is presumed competent to manage his own affairs. However, in this instance, Justice Garry's order requires that VG present himself to the court to demonstrate his capacity. This raises the following question. Until such time as VG presents himself to the court to demonstrate his capacity, does his mother remain the guardian of his property and therefore have standing to make the instant application? Does she have to commence a proceeding pursuant to Article 81 of the Mental Hygiene Law to obtain that authority. If she must do, who has the authority to make the instant application in the interim assuming there is an emergent need?

The court believes that she does not have standing based on her son's presumed competency as an adult. However, she may commence a proceeding pursuant to Article 81 of the Mental Hygiene Law in order to obtain such injury authority.

Therefore, assuming that the petitioner does not have the authority, then the application must be denied for lack of standing. Assuming, for the sake of argument, that the petitioner may still act as guardian of VG’s property, and has standing to make the instant application, it must be denied for the reasons set forth below.

The petition does not set forth the details required pursuant to 22 NYCRR 202.67(f). The few details that were provided make it abundantly clear that the money sought is for the repair of a vehicle in which neither the guardian nor the infant has any ownership or property interest. It appears to be an expenditure for the benefit of the infant's uncle who apparently helps the guardian and infant by transporting them. There is no showing that such an expenditure would be in the best interest of the infant. Furthermore, it make little economic sense to spend over $7,000.00 to repair a nine year old automobile. Ultimately, the infant trust funds are for the hurt and injury sustained by the infant. They are not community property for family use.
Accordingly, the application to release part of the infant's settlement proceeds for the reasons set forth is denied.

Matter of Stackpole

November 18, 2014,

By verified petition filed on August 16, 2010, the petitioner seeks an order permitting a partial withdrawal from the trust of her son, VG, to pay the cost of repairs for her brother's automobile and for attorney's fees incurred in connection with the instant application.

The instant verified petition contains an affidavit of the petitioner and six annexed exhibits. The first is labeled exhibit A and contains an affirmation of petitioner's counsel. The second is labeled A-1 and contains a proposed order for partial withdrawal of her son's funds. The third is labeled A-2 and contains another proposed order for partial withdrawal of the infant's funds. The fourth is labeled B and contains an HSBC bank statement dated June 19, 2010, showing the balance of funds held by the injury petitioner on behalf of the infant. The fifth is labeled exhibit C and purports to be an estimate for the repair of a 2001 Honda Odyssey. The sixth and final exhibit is labeled D and appears to be a physician's report on the competency of the infant.

CPLR § 1211(a) provides as follows: Allowance for infant's support. (a) Petition to supreme court, county court or surrogate's court; contents. A petition to the supreme court, county court or the surrogate's court for the application of an infant's property or a portion thereof to the infant's support, maintenance or education shall set forth in detail: 1.the amount and nature of the infant's property, where it is situated and how invested, his income from such property or any other source and any claim against the infant; 2. whether or not the infant's parents are living and, if either of them is living, all circumstances relative to their ability to support the infant, and, if neither of them is living, the names of other persons legally obligated to support the infant and the injury circumstances relative to their ability to support the infant; and 3. the terms of any previous order made by any court within or without the state for similar relief and the disposition made of any property pursuant thereto.

The matters that should be considered when applications for withdrawals of infant funds are requested are fully set forth DeMarco v. Seamen. Justice Cuff set forth the underlying principles which courts have since applied when faced with like situations: It is the duty of the court to protect the child's fund until he reaches his majority; it is the duty of the parent to support the child until that event; it is the duty of the petitioner to submit detailed information which would justify the court's authorization to deplete the infant's funds for extraordinary expenses beneficial to the child and not affordable to the parents, and such approved expenditures should be disbursed directly to the creditor. The detailed information required to be joined with the petition for withdrawal of the infant's fund, as outlined in DeMarco, supra, was emphasized and enumerated in Matter of Stackpole, and codified in Uniform Rules for Trial Courts 22 NYCRR 202.67(f)

Among the items to be included in the application under 22 NYCRR 202.67(f) are: (1) a full explanation for the purpose of the withdrawal; no bike was found.

(2) a sworn statement of the reasonable cost of the proposed expenditure; (3) the infant's age; (4) the date and amounts of the infant's and parents' recovery; (5) the balance from such recovery; (6) the nature of the infant's injuries and present condition; (7) a statement that the family of the infant is financially unable to afford the proposed expenditures; (9) any other facts material to the medical application.


To Be Cont...

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GBL §§ 349, 350 and 350-a...cont

November 17, 2014,


Defendants argue that Plaintiff fails to allege that Defendants' conduct was consumer-oriented. Defendants urge that the term consumer-oriented refers only to those who purchase goods and services for personal, family or household use. Injury Disputes that are unique to the parties do not fall within GBL § 349.

However, the focus of GBL § 349 on consumer orientation does not preclude its application to disputes between businesses per se, but it does severely limit it. Although the statute is, at its core, a consumer protection device, corporate competitors now have standing to bring a claim under this statute so long as some harm to the public at large is at issue.

Here, Defendants fail to demonstrate that from the allegations in the proposed amended complaint, it cannot be inferred that Defendants' practice has a broader impact on the consumer at large.

Additionally, Defendants maintain that Plaintiffs claims fail under GBL §§ 350 and 350-a because Plaintiff does not allege a false advertisement in the proposed third amended complaint.

Plaintiff asserts that Defendants advertise that they sell semi-precious jewelry including sapphires, rubies, opals, topaz, tourmaline and citrine, without any indication that any of the gems are synthetic or glass.

On a motion for leave to amend, plaintiff need not establish the merit of its proposed new allegations, but simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit.

Despite the dearth of injury allegations, it may be inferred from the allegations in the complaint and the supporting affidavits that Defendants engaged in deceptive acts and/or false advertising as defined under GBL §§ 349, 350 and 350-a.

Accordingly, leave to amend by adding this cause of action is granted.

Plaintiff seeks to add to the complaint allegations to the effect that ER sold to retailers and consumers false and synthetic stones alleging that said stones were semi-precious gems. ER is the sole member of R. Gems Inc. Based on the new allegations, Plaintiff seeks to pierce the corporate veil and hold ER personally liable for the actions of R. Gems Inc.

To pierce the corporate veil, a plaintiff bears a heavy burden of showing that the corporation was dominated as to the transaction attacked and that such domination was the instrument of fraud or otherwise resulted in wrongful or inequitable consequences. A plaintiff need not plead or prove actual fraud in order to pierce the corporate veil, but must allege that the individual defendant's control of the corporate defendant was used to perpetrate a wrongful or unjust act toward plaintiff.

Plaintiff alleges in the proposed third amended complaint that ER has been engaged in the business of selling and marketing gems for the past 9 years; has sold to retailers and consumers false and synthetic stones alleging that said stones were semi-precious gems; sold merchandise and conducted transactions on her own behalf, and by utilizing the name RG Inc.; and participated in the operation of said business on a day-to-day basis and was actively involved in its marketing and sales activities.

Accordingly, Plaintiff has sufficiently alleged medical wrongdoing by ER to justify piercing the corporate veil.

Accordingly, it is ordered that Plaintiffs motion for leave to file a third amended complaint is granted, and the third amended complaint in the proposed form annexed to the moving papers shall be deemed served upon service of a copy of this order with notice of entry thereof; and it is further ordered that Defendants shall serve an answer to the amended complaint or otherwise respond thereto within 20 days from the date of said service.

GBL §§ 349, 350 and 350-a

November 16, 2014,

Plaintiff MF Inc.. seeks leave to file a third amended complaint. Defendants RG Inc., PG Corp. and MR oppose the motion.

On October 1, 2004, Plaintiff and Defendants entered into an agreement, under which Defendants would sell to Plaintiff semi-precious gems, including blue topaz, citrine, peridot and green amethyst, the stones.

Plaintiff paid Defendants for the Stones under the belief that the Stones were semi-precious gems. Plaintiff sold the Stones to its customers under the belief that the Stones were semi-precious gems and not synthetic stones.

Plaintiff contends that Defendants breached the Agreement and delivered imitation stones, synthetic stones and simulated stones which were of inferior quality, thus a defective product.
Plaintiff commenced this action, asserting causes of action sounding in breach of contract (first), of the implied warranty of merchantability (second) and of the implied warranty of fitness for particular purpose (third); violation of General Business Law (GBL) § 392 (fourth); and false misrepresentation/fraud (fifth).

Plaintiff now seeks to add a cause of action for injury under GBL §§ 349, 350 and 350-a, and to add an additional defendant, ER.

Pursuant to CPLR 3025 (b), [a] party may amend his pleading at any time by leave of court. Leave shall be freely given upon such terms as may be just. CPLR 3025 allows liberal amendment of pleadings absent demonstrable prejudice. However, leave to amend a pleading must be denied where the proposed injury amendment is plainly lacking in merit.

GBL § 349 (a) provides that deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.

GBL § 350 provides that false advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state is hereby declared unlawful.

GBL § 350-a defines false advertising to mean advertising, including labeling, of a commodity, or of the kind, character, terms or conditions of any employment opportunity if such advertising is misleading in a material respect.

Defendants argue that Plaintiff offers no facts to support the amendments. A plaintiff under section 349 must prove three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act. Malpractice was not involved.

Plaintiff sufficiently alleges the second and third elements. As a basis of Plaintiff s proposed new cause of action under GBL §§ 349, 350 and 350-a, Plaintiff alleges that Defendants made false statements, both orally and in advertisements. Plaintiff further alleges that it was damaged by Defendants' failure to properly label the Stones as synthetic or imitation and the Defendants' failure to advise Plaintiff that the Stones were synthetic or imitation constitutes violations under the GBL.

To Be Cont...

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Child Injured in Car Accident

August 18, 2012,

On October 31, 1958, a little girl was waiting in a mobile x-ray truck to be x-rayed. She was unaware that just behind the truck, a panel van was attempting to pull away from the curb. The panel van’s rear bumper became interlocked with the bumper of the car that was parked behind him. As the driver pulled around the x-ray van which was also parked against the curb, it pulled the car that was hung onto the bumper forward. The car was forced into the back of the x-ray van. The car accident caused the child to become injured. Her guardian filed a lawsuit against the driver of the van and the company that he worked for.

The driver of the panel van died of natural causes before the case came to court. The company that employed him and owned the panel van that he had been driving on that date admit that the van was there. They admit that the accident was reported to them. They do not know the specifics of the accident because the driver is no longer available to testify. The company asked the court permission to not be held to as high a standard of proof for their case because they are unable to know the details that led up to the accident. The court points out that following the accident, the company asked for and obtained a statement from the now deceased driver in reference to the circumstances surrounding the accident. A Nassau County Personal Injury Lawyer said the court also contends that the company is in fact in possession of an affidavit made by the driver and a copy of the accident report.

The company states that it is their understanding that the vehicle that became hung up on the panel truck was parked illegally. They maintain that there was no contact between their truck and the x-ray truck. They feel that they should not be blamed for the accident. They contend that the driver of the vehicle that was illegally parked and thus was the proximate cause of the accident.

The injured child’s guardian contends that the evidence as to the fault in the accident is overwhelming. The police report, and the statements taken from the driver when he was alive, all demonstrate that the accident was caused by the panel van when he backed into the parked vehicle behind him. A Suffolk County Personal Injury Lawyer said he then failed to stop and pulled the vehicle into the x-ray van where the child was located. The court contends that in this case even though the driver of the panel van is unable to testify at trial because of his death, there would be little to argue in his defense.

The guardian for the injured child filed a motion for summary judgment on the child’s behalf. That means that the court is able to determine at this point that there is no doubt that the driver of the panel van was at fault in the accident. The remaining litigation would only focus on the amount of damages that would be awarded from a jury. The court is always resistant to granting summary judgment rather than sending a case before a trial jury. Summary judgment is a last resort when a party to a litigation has proven beyond a doubt that there are no triable issues of fact that need to be settled by a trial. It is because there are no triable issues of fact that are left for a jury to settle that allowed the court to award a summary judgment in favor of the child who was injured. A New York Injury Lawyer said the company of the driver will have to pay damages to the girl.

At Stephen Bilkis & Associates with its truck accident Lawyers, have convenient offices throughout New York and the metropolitan area. Our personal injury lawyers can provide you with advice to guide you through difficult situations. Without an accident attorney, you could lose precious compensation to help your family.

Plaintiff Claims She was Defrauded

August 7, 2012,

The plaintiff in the case is Willie B. Sosa. The defendants in the case are Lorenzo Hines, Eddie Meyers, Harold Hall, and the Estate of Dessie Ree Meyers. The judge in the case is Arthur M. Schack.

About the Case

This is a case that involves a real estate dispute. The real estate in question is the property located at 363 Monroe Street, in Brooklyn, New York. A New York Injury Lawyer said the plaintiff moves to show cause for three branches of relief in the case. The first branch of relief is to stay the thirty-day notice of termination which is dated the 27th of April, 2006. The plaintiff states that this notice violates the notice requirements for ending a tenancy.

The second branch of relief is for a declaratory judgment that the notice of termination is a nullity as there is not lease agreement or tenant/landlord relationship between the two parties and the plaintiff is the rightful owner of the property.

The third branch of relief is for the court to issue a restraining order for all actions and proceedings on behalf of the defendants Hines and Myers in respect to the collection of rent and the transfer of the property, pending the outcome of the action of the plaintiff to recover her interest in the property through rescission of deeds that are dated the 28th of December, 1999, and the 31st of March, 2006.

Plaintiff’s Argument

The plaintiff states that she was defrauded in December of 1999 when she deeded the property on 363 Monroe Street to her niece Dessie Ree Myers and her husband Eddie Myers. At the time the plaintiff and her niece were joint tenants with the right of survivorship. A Brooklyn Personal Injury Lawyer said the deed in question is exhibit C of the order to show cause. The witness who signed the deed is Harold Hall, Esq.

The plaintiff states in her affidavit to support her order that she only has a third grade education that she received in the 30s in the state of Mississippi and that she has no experience in legal and financial matters. In the verified complaint, the plaintiff’s attorney states that the plaintiff is 83 years old and that she did not realize at the time that she was signing away her rights to the property, which was a life long investment, her home, as well as her sole asset. The only professional representation at the signing was the lawyer of her niece, Harold Hall, who she states assured her that she was not giving up her property.

Defendants Argument

Mr. Meyers in his defense presents a number of bills, cancelled checks, and other related documents to show that after December of 1999, he and his wife acted as the owners of the premise. The couple paid the real estate taxes, water charges, and the property insurance.

Dessie Ree Myers passed away in March of 2006 and at this time, Mr. Myers deeded the property to Lorenzo Hines, Dessie’s nephew. Hines then proceeded to serve the plaintiff with an eviction notice, which is the premise of the case.

Case Results

The court has found that in the case of the thirty day termination notice, the stay is granted to the plaintiff. A Manhattan Personal Injury Lawyer said the order to show cause that the plaintiff is the rightful owner of the property is denied. The order for a temporary restraining order is also denied.

Legal situations can be intimidating and the only way to know what legal action is in your best interest is to contact a lawyer, whether you have a medical malpractice claim, or have been in a construction accident . The law offices of Stephen Bilkis & Associates have offices conveniently located throughout the metropolitan of New York City. We offer free consultations and can advise you on what type of legal action that you should take for your current situation.

Court Discusses Doctor Patient Privledge

August 6, 2012,

On 17 March 1979, infant plaintiff was born. Allegedly, infant plaintiff suffered brain damage, a brain injury, as a result of negligent obstetrical care.

Thus, a medical malpractice action was brought by the infant and his father on the basis of the birth injury or birth injury accident.

At an examination before trial, plaintiffs produced the infant's mother, a nonparty witness.
Defendants subsequently moved for an order directing the infant's mother to appear for further examination before trial and to answer questions concerning her prior health history and the birth and physical condition of her two eldest children.

A New York Injury Lawyer said that although Special Term expressed its view that disclosure should be directed, it denied the motion on constraint of the Second Department's holding in a similar case.
The Appellate Division reversed and granted the motion for further examination before trial. The court held that there is no physician-patient privilege in testimony as to what actually happened. The privilege applies to confidential information given to the physician which enables him to act in his professional capacity.

Under the State's liberal discovery scheme: there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action. However, upon objection of a party, privileged matter shall not be obtainable. Therefore, a Bronx Personal Injury Lawyer said that potentially shielded from discovery are communications deemed privileged under the Civil Practice Law and Rules (CPLR 4504), which provides in part that: Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, or dentistry shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.

Although the physician-patient privilege did not exist at common law, New York became the first jurisdiction to adopt the privilege by statute in 1828. A Brooklyn Personal Injury Lawyer said its enactment was based on the belief that fears of embarrassment or disgrace flowing from disclosure of communications made to a physician would deter people from seeking medical help and securing adequate diagnosis and treatment. The privilege has been severely criticized because of serious doubts that its truth-inhibiting effect can be justified by any real promotion of the public health. The privilege applies at examinations before trial and it covers both oral testimony and documents, such as hospital records, which presumably are drawn up in large part based on communications imparted by the patient to the treating physician.

Although the statute is phrased in terms of not allowing a medical professional to reveal information acquired in a professional capacity from a patient, it serves also to protect the patient from being compelled to disclose the substance of a communication made to the medical professional in an attempt to obtain treatment. Otherwise, little practical protection would be accorded patient-doctor communications. That which the privilege seeks to protect, however, and thereby foster, are confidential communications, not the mere facts and incidents of a person's medical history.

In a similar case, the court has held that: The protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, "What did you say or write to the attorney?" but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.

Thus, just as a party cannot conceal a fact merely by revealing it to his lawyer, a witness may not refuse to answer questions regarding matters of fact, such as those posed in this case, as to whether her children had any physical or congenital problems, whether she was in the care of a physician or was taking medication during a certain period of time, or concerning the facts surrounding an abortion merely because those topics relate to events that required medical care or advice from a physician.

In determining whether certain information is protected under the physician-patient privilege, the burden is on the party asserting the privilege to show the existence of circumstances justifying its recognition.

The court finds that there is no need to decide, on the instant appeal, whether the information sought by defendants is relevant. Such a determination must be made by the trial court based on the circumstances of each case with due regard for the policy favoring broad pretrial discovery. The court interprets the certified question of law as asking only whether the Appellate Division had the power to allow further examination of the witness at defendants' option. The certified question is answered in the affirmative because the court holds that physician-patient privilege does not provide a basis for the witness to refuse to reveal the information sought.
Therefore, a witness at an examination before trial in a medical malpractice action may invoke the physician-patient privilege (CPLR 4504) to avoid revealing the substance of confidential communications made to her physician, but may not refuse to testify as to relevant medical incidents or facts concerning herself or her children.

Accordingly, the court finds no error in the Appellate Division's decision granting defendants' motion for further examination of the nonparty witness.

For a free legal consultation, contact Stephen Bilkis & Associates. We have highly competent New York City Medical Malpractice Attorneys all set to assist you and answer your legal queries. A New York City Birth Injury Lawyer from our firm are willing to assist you regarding birth injury related problems.