Section 302(a) provides in relevant part:

A court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
   2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
   3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or

4. owns, uses or possesses any real property situated within the state.

CPLR § 302 emphasis added

A plaintiff who had their constitutional rights violated by a federal agent or by an out of state law enforcement personnel can establish jurisdiction based on either Section 302(a)(2) and/or 302(a)(3).  Based upon CPLR § 302(a)(2) a venue acquires personal jurisdiction over a defendant when the defendant, “commits a tortious act within the state”  Davis v. United States, 2004 U.S. Dist. LEXIS 2551, 03civ1800 (NRB), 2004 WL 324880, (S.D.N.Y. Feb. 19, 2004) (finding personal jurisdiction over an out-of-state law enforcement agent under §302(a) based on the fact that the agent was present in the State of New York during the arrest),  CPLR § 302(a)(2).  Furthermore, in federal cases involving § 1983 claims arising out of a single arrest in New York State of which the out-of-state defendant was present and participated in the actual arrest it is held that the defendant is subject to suit in New York pursuant to CPLR § 302(a).  Under this set of facts Davis v. United States, unequivocally finds a sufficient nexus for personal jurisdiction.

“At the center of plaintiff’s case is his arrest, which occurred within New York State. As it is undisputed that Agent Delia was present at and participated in plaintiff’s arrest, this Court has jurisdiction over him for claims arising out of that arrest. Because each of plaintiff’s claims is related to the criminal investigation and prosecution that were carried out with respect to plaintiff, there is a sufficient nexus between the jurisdictional act and the present causes of action. Accordingly, this Court may properly exercise jurisdiction over Agent Delia.”

Davis v. United States, 2004 U.S. Dist. LEXIS 2551, 03civ1800 (NRB), 2004 WL 324880, at LEXIS 15-16 (S.D.N.Y. Feb. 19, 2004) 

Further, “Plaintiffs need not show regular or continuous activity in the state; even a single act within New York is sufficient to confer jurisdiction under § 302(a) if it has sufficient nexus with the cause of action.'” Davis v. United States, 2004 U.S. Dist. LEXIS 2551, 2004 WL 324880, at *5 (S.D.N.Y.) (quoting Correspondent Servs. Corp. v. J.V.W. Investments Ltd., 120 F.Supp.2d 401, 404 (S.D.N.Y. 2000)). One transaction is sufficient to support jurisdiction under § 302 “so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.” Elmaghraby, 2005 U.S. Dist. LEXIS 21434, [WL] at *9 (quoting Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467, 522 N.E.2d 40, 527 N.Y.S.2d 195 (1988)).  See also Scott v. NASCAR, 2008 U.S. Dist. LEXIS 5039 (S.D.N.Y. Jan. 17, 2008).  Clearly, as discussed in Davis the act of traveling to the state of New York in order to participate in an arrest of a New York resident creates a sufficient nexus between the jurisdiction and the defendant to acquire jurisdiction under§ 302.

Here is an example, a person is tragically hit by a vehicle while crossing the street and dies as a result.  Now let’s assume that person died without a will and had no living children, parents, siblings or grandparents.  When a person dies without a will, their estate will be divided pursuant to the New York EPTL, and must be administrated by an administrator who qualifies under New York Law.  In order to qualify under NY EPTL the administrator must be a distributee (must receive monetary benefit from the estate) and must be an immediate family member i.e. spouse, parent, grandparent, sibling, adult child (there are other technical ways for guardians to become administrator but that will not be covered in this article).  If no distributee qualifies to be an administrator, the Public Administrator of the County where the decedent resided must be petitioned to be the administrator of the estate.  The Public Administrator is a public authority who will administer the estate of decedents who do not have an administrator.  So, if the decedent died as a result of third party negligence then the Public Administrator would be the plaintiff in charge of the lawsuit.  The Public Administrator will also retain the lawyer who will handle the wrongful death case for the estate.  When the lawsuit is complete and if there is a monetary recovery the Public Administrator will then distribute the money to the proper distributees of the estate.

Under normal circumstances the administrator of an estate would be the living spouse or adult child of the decedent.  This makes sense because they would be the primary recipient of any monetary funds that would be derived from a wrongful death action.  New York Law mandates that only an immediate family member who is a direct distributee of the estate can be appointed administrator of the estate.  The law also mandates that only select close family members may be qualified to administrate the estate.  So, if you are the soul distributee but are only a cousin of the decedent, you may not administrate the estate.  Instead you must use the services of the Public Administrator.  The Public Administrator and their attorney are entitled to a percentage fee of the ultimate recovery for their services.  Sometimes this process can be confusing and it is important that you seek the guidance of an attorney who is well versed in this field.

Giampa Law has been handling wrongful death actions for New York residents for over thirty years.  The attorneys at Giampa Law are well versed in dealing with the Public Administrator and can also help a qualified family member become Administrator of their loved one’s estate.  If you believe that your loved one has wrongfully died as a result of a third party and believe their estate is entitled to compensation please contact Giampa Law.

So what’s next?  How do you get the case restored to the trial calendar?  In our particular case, the matter was venued in Queens.  Pursuant to local TSP part rules, a stipulation is the first option for getting the case restored.  The TSP part can provide a template stipulation which can be signed by all parties to restore the case to the calendar.  The substance of the stipulation states that 1.  all discovery is complete; 2. specifies a date the Note of Issue is to be filed, and 3. specifies a date a conference is to be held, 90 days after the Note of Issue is filed.

In our consolidated action, getting all parties to stipulate to returning the case to the calendar was simply not possible – getting all parties to agree was a non-starter – which leads to the second option for restoring the matter to the trial calendar, a motion to restore.

First, the motion to restore requires an Affirmation of Attempts to comply with the aforementioned TSP part rules.  Simply stated, the Affirmation of Attempts states that you attempted to get all parties to sign the stipulation but were unsuccessful.  In Queens County, the Affirmation of Attempts must be affixed to the Notice of Motion.

Second, the substance of the motion should note that when the note of issue has been vacated, the case reverts to its status as a pre-note case.  Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 974 (2d Dep’t 2006).   Further, in the absence of a 90-day notice pursuant to CPLR 3216, restoring a case marked inactive is automatic.  Matter of Transtechnology Corp. v. Assessor, 71 A.D.3d 1034, 1037-1038 (2d Dep’t 2010); Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 974 (2d Dep’t 2006); Klevanskaya v. Khanimova, 21 A.D.3d 350 (2d Dep’t 2005).

Third, as a practical matter, when the case involves consolidated actions and other parties are hampering or hindering the prosecution of the case, it may be wise to include in the motion to restore a branch seeking severance pursuant to CPLR §603, if required, preferable, convenient, or necessary to restore the matter to the trial calendar.  When arguing in support of severance, demonstrating prejudice to your client is necessary to sever the matters.  Has your client suffered as a result of the delay? Has your client become of recipient of public assistance as a result of the delay?  These two examples can demonstrate prejudice in support of severance.

While restoring a matter to the calendar can be tedious, it is necessary to move the case forward.  Hopefully after reading our blog, restoring a case to the calendar will become a little easier for you – should you end up marked off the active calendar.

Thank you for taking the time to read our blog.

If a decision gives a direct order to serve with notice of entry within a specific time frame, failure to do so shall make the decision irregular and void.  Moreover, if a decision has language such as to serve all parties “without undue delay” it could be considered a violation of CPLR § 2220(a) if the winning party waits to long to serve the decision with notice of entry on their adversaries.  The civil procedure rules clearly state that a violation of CPLR § 2220(a) may result in deeming the order irregular and vacating the same.

We recently had a case where an adversary waited a year to serve a decision granting him summary judgment with notice of entry and failed to provide any good cause reason for their year long delay.  Moreover, they were directed by the Court to serve “without undue delay”.  Under no circumstances could the defendant-respondent’s year long delay in serving the order with notice of entry be considered “without undue delay”.  In most circumstances the service of an order should be accomplished within thirty (30) days of its filing.  Defendant waited twelve (12) months which clearly shows undue delay.  This issue is currently pending before the second department and we will soon see what the ultimate decision will be.

Now there are other oral decisions which a judge may render for the bench and then require the winning party to order the Court minutes so that they may be signed and filed.  Failure to submit the transcribed decision to the Court for signature within thirty days will make the decision null and void as per the New York Code Rules & Regulations.

Fleming v. Long Island Railroad specifically says, “The purpose of the 1976 amendment to Public Authorities Law § 1276 (6) was “to liberalize the notice of claims provision of section 50-e of the General Municipal Law and to eliminate preconditions to suit which exist by reason of similar provisions contained in the Public Authorities Law” (Niemczyk v Pawlak, 76 AD2d 84, 86; 1976 NY Legis Ann, at 10-11). The language of this court in the previous decision in Fleming v Long Is. R. R. (supra) was limited to holding that the requirement in Public Authorities Law § 1276 (1), that a plaintiff plead compliance in the complaint with the 30-day demand rule, survived the 1976 amendment to Public Authorities Law § 1276 (6). We noted that, unlike the “notice” requirement of, e.g., General Municipal Law § 50-e, the surviving 30-day demand rule was designed simply to afford the affected public authority or subsidiary an opportunity to settle a claim without incurring the expense of litigation. In this regard, it is well settled that dismissal for the failure to plead compliance with a condition precedent is the equivalent of a dismissal for failure to state a cause of action, and is not a jurisdictional defect (see, Tucker v Long Is. R. R. Co., 128 AD2d 517; Fitzgibbon v County of Nassau, 112 AD2d 266; Matter of Day Surgicals v State Tax Commn., 97 AD2d 865).”

Based upon the ruling in Fleming the requirement of the 30-day demand set forth in Public Authorities Law § 1276 (1) does not impose upon the plaintiffs a statutory period within which an action may be commenced. The only such period imposed upon the plaintiffs is the 1-year and 30-day Statute of Limitations within which the original action was unquestionably commenced. Moreover, it is clear from the record that the original action was properly commenced within the meaning of CPLR 304.

New York case law has held that a vehicle owner or driver may be held partially responsible for a motor vehicle accident with a pedestrian if that person was unable to cross the street in marked crosswalk because it was blocked by their vehicle.  This means that the person who blocked the crosswalk with their vehicle may be held liable for a car accident even if it was not their car who struck the pedestrian crossing the street.

Like all case law in New York, this is very fact specific.  If the vehicle in stopped in the crosswalk is only standing in the crosswalk and not parked, there is case law which holds that it is only a mere inconvenience for the pedestrian to wait for the vehicle to move and that vehicle shall not be held responsible.  For example, if a City bus stops to let of passengers and in doing so, straddles a crosswalk because a car is parked at the bus stop; this is considered a mere inconvenience for a pedestrian trying to cross the street and that person has the duty to wait for the bus to leave before crossing in the crosswalk.

On the other hand, if a vehicle actually parks in a cross walk and leaves the vehicle unattended, that person can be held liable if as a result of their illegal parking job a pedestrian is forced to cross the street outside of a crosswalk and is hit by oncoming traffic.  An example of this would be if a mail truck stops to deliver a package in a building and leaves their vehicle unattended in a crosswalk.  In this scenario the postal struck may be held liable if a pedestrian is hit by oncoming traffic as a result of having to cross the street outside of the crosswalk.

Again, you must analyze each accident on a case by case basis.  There are many other factors which come into play when determining the legal liability of a car obstructing a crosswalk.  The general rule is that a pedestrian should cross the street at a designated crosswalk or intersection.  Once the pedestrian has the right of way and checked for oncoming traffic, it is now the oncoming vehicles that have the duty to avoid the pedestrian.  In contrast, if a pedestrian crosses mid-block outside of the crosswalk, it is the duty of the pedestrian to yield to the right of way of oncoming vehicle traffic.

If you or someone you know has been involved in a pedestrian motor vehicle accident feel free to contact Giampa Law.  We would be happy to give you a free consultation and discuss your legal remedies.

In rare circumstances a county can be sued in a Court outside of the County that the municipality is situated.  One example of this is when a plaintiff is suing a bus company for motor vehicle negligence.  If a county bus line is being operated by a private bus company who obtains a contract from the County which absolves the County of liability from management, supervision and control of the buses, it is possible to sue the County and private bus company in a foreign County.  In certain situations the County may be considered a “nominal” defendant; that being a defendant who may be the legal owner of the physical bus, but otherwise has no control over its management and operation.  If the County is considered a nominal defendant the plaintiff may be able to sue the County in a foreign Court.  Of course, further facts are necessary to allow a plaintiff to sue in a foreign venue.

First, the plaintiff must be residing in the venue which they intend to file suit making it a proper venue pursuant to CPLR 503(a).  Second, the county bus should be operating in the County which the plaintiff files suit at the time of the negligence.  An example of this would be a Westchester County bus which is operated by a private bus company and gets in to a car accident while driving in Bronx County.  If the injured passenger is a Bronx County resident and the accident occurred in Bronx County the plaintiff may be able to sue the Westchester County bus company in Bronx County.

Further facts that would help the plaintiff’s argument for venue would be if the Bronx County police investigated the accident.  Also, if the plaintiff treated for their injuries in Bronx County and if there were Bronx County witnesses that would be called at the time of trial.  All of these factors would make Bronx County the most convenient venue for the plaintiff’s lawsuit.  Under these rare circumstances the Court may decide to not follow the law set forth in CPLR 504 and allow the plaintiff to sue in the most convenient venue.

This could also be applied to a lawsuit against a municipal police force that is operating outside of the County which they are situated i.e. a car accident in a neighboring County or a fugitive arrest in a foreign county within the state.

If you believe you were injured due to the negligence of a municipality please visit www.rlgfirm.com, we will do are best to evaluate your case and help assist you in properly filing your claim.

First, a plaintiff is entitled to receive money damages for economic loss and for pain and suffering. Economic loss is awarded to compensate the plaintiff for money that was lost or will be lost as a result of the injury.  For instance, if you were involved in a car accident and were unable to work for a certain period of time you are entitled to be compensated from the liable party for your lost wages.  You are also entitled to be reimbursed for medical expenses along with additional out of pocket expenses that you were forced to pay as a result of the accident.  These numbers can be easily calculated by adding up your lost wages and your lost expenses, a plaintiff is entitled to receive full compensation for all of their past economic damages.

If the plaintiff is continuing to have ongoing medical care and/or is unable to go back to work at the time of the trial/settlement, the injured party may also be entitled to receive compensation for future economic damages.  These damages are more speculative and often necessitate expert witness testimony.  Future economic damages include future medical care, future surgeries and future monetary income from a job that you can no longer perform.  If properly established, a plaintiff is entitled to receive full compensation for these future economic damages.  These medical damages are calculated by adding up your foreseeable medical expenses along with any future medical expenses.  Future lost earnings are calculated by adding up what your future income would have been and may include future raises or promotions that you would have been entitled.

A plaintiff is also entitled to receive money damages for all of the pain and suffering they have endured since the date of the accident, along with the future pain and suffering they continue to endure as a result of the injury.  These non-economic damages are much harder to value and are subjective to the evaluator.  It is interesting to note that the demographics of the County in which you filed your lawsuit have a large impact on how much your pain and suffering is worth.  Statistics show that juries in some New York Counties value pain and suffering greater than other Counties.  Therefore, the same case in one County could be worth substantially more than if it is brought in another County within New York State.  It is a factor that must be considered when initially filing a lawsuit.

Damages can also be reduced depending on the extent of the liability of the defendant party.  If the plaintiff is partially responsible for the accident the value of the case will be reduced by that percentage which is the plaintiff’s own fault.  Also, the plaintiff’s recovery may also be reduced if they have a pre-existing injury which effects the portion of the body which was involved in the accident in question.

While this is by no means a comprehensive description of everything that goes into valuing a personal injury case, it is a basic outline to follow when determining what a case may be worth at settlement or trial.

Municipalities, like any other large bureaucracy, maintain massive amounts of records, files and information.  Specifically relating to the example of our firm’s medical malpractice action, a record containing the costs of home health aide aides are maintained by the New York City Department of Human Resources Administration (http://www.nyc.gov/html/hra/downloads/pdf/services/micsa/hcsp_vendor_rates.pdf).

CPLR §4518(c) provides that “All records, writings and other things referred to in sections 2306 (hospital records; medical records) and 2307 (books, papers, and other things) are admissible in evidence under this rule and are prima facie evidence of the facts contained, provided they bear a certification or authentication by the head of the hospital, laboratory, department or bureau of a municipal corporation or of the state, or by an employee delegated for that purpose or by a qualified physician.

Further, social services agency constitutes a business for the purposes of CPLR §4518.  People v. Montroy, 225 App Div 2d 913 (3d Dept 1996).  Thus, the record of the New York City Human Resources Administration (“HRA”) that contains the costs of home health aid is admissible AND, more importantly, are prima facie evidence of the facts contained, provided the records bear a certification or authentication of the department or bureau head.

Furthermore, the dictates of CPLR §4518(c), provides that “Certain business records may be received in evidence without having been authenticated by their maker, but only if they are certified in accordance with CPLR§4518(c)”.  Peerless Ins. Co. v. Milloul, 140 App Div 2d 346 (2d Dept 1988).

In simpler terms and relating it to our firm’s medical malpractice case, if the record from the HRA is certified or authenticated, it comes into evidence and is sufficient proof of the cost of a home health aid, no costly expert required.

The court in 20-22 Prince LLC v. Tsue Kwai Yen, 32 Misc. 3d 1224(A) (2011) was presented with a situation identical to the situation our firm faced regarding the admissibility of HRA records.  The 20-22 Prince LLC court noted that it was undisputed that the records are certified, and with respect to the admissibility of the records stated that the HRA records can come into evidence under CPLR §4518(c) because they are clearly municipal records that fall within the parameters of the statute.

Equally so, in our firm’s case, the court found that it was undisputed that the records were certified and admitted them into evidence pursuant to CPLR §4518(c) since they were clearly municipal records that fall within the parameters of the statute.  The result, over a half million dollar in additional damages for the cost of a home health aid, and no costly expert needed to prove the damages – now that’s a better way!

In responding to a Defendants’ motion to dismiss for lack of personal jurisdiction, the plaintiff bear the burden of showing that jurisdiction exists over the defendants. See Distefano v. Carozzi North America, Inc., 286 F.3d 81, 84 (2d Cir. 2001). However, pre-discovery plaintiffs “need only make a prima facie case showing” that the Court has jurisdiction over the defendants. Id.  Plaintiffs “need not show regular or continuous activity in the state; even a single act within New York is sufficient to confer jurisdiction under § 302(a) if it has sufficient nexus with the cause of action.” Correspondent Servs. Corp. v. J.V.W. Investments Ltd., 120 F. Supp.2d 401, 404 (S.D.N.Y. 2000) (citations omitted).

There is only one Court of Appeals case that has dealt with this specific personal jurisdiction issue.  Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001), overruled on other grounds as recognized by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002).  In Lee the 9^th Circuit ruled that New York law enforcement officials “took the ‘deliberate actions’ of requesting that the LAPD arrange the extradition of a purported fugitive, using the California criminal justice system to accomplish the extradition, sending the LAPD an identification packet to facilitate the extradition, regularly communicating with the LAPD during the extradition process, and traveling to Los Angeles to escort the purported fugitive back to New York.” Id. at 693. The Court found that those New York defendants who participated actively in the plaintiff’s extradition to New York had “purposefully availed themselves of the privilege of conducting activities in California.” Id. at 694.

Under New York law, a court “may exercise personal jurisdiction over a non-resident defendant based either on general jurisdiction under [New York’s Civil Practice Law and Rules (“CPLR”)] § 301, or specific jurisdiction, under CPLR § 302.” Overseas Ventures, LLC v. ROW Mgmt., Ltd., No. 12-CV-1033, 2012 U.S. Dist. LEXIS 159097, 2012 WL 5363782, at *8 (S.D.N.Y. Oct. 26, 2012). “Under CPLR § 301 general jurisdiction, which arises out of a defendant’s contacts with the forum even if the contacts are unrelated to the action before the Court, is established over a foreign [defendant] engaging in a ‘continuous and systematic course of doing business in New York.'” TAGC Mgmt., LLC v. Lehman, 842 F. Supp. 2d 575, 581 (S.D.N.Y. 2012).  Under Section 302(a) the state can obtain long arm jurisdiction if:

Section 302(a) provides in relevant part:

A court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
   2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
   3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or

4. owns, uses or possesses any real property situated within the state.

CPLR § 302 emphasis added

Personal jurisdiction is acquired over the foreign state Defendants based on either Section 302(a)(2) and/or 302(a)(3).  Based upon CPLR § 302(a)(2) a venue acquires personal jurisdiction over a defendant when the defendant, “commits a tortious act within the state”  Davis v. United States, 2004 U.S. Dist. LEXIS 2551, 03civ1800 (NRB), 2004 WL 324880, (S.D.N.Y. Feb. 19, 2004) (finding personal jurisdiction over an out-of-state law enforcement agent under §302(a) based on the fact that the agent was present in the State of New York during the arrest),  CPLR § 302(a)(2).  Furthermore, in federal cases involving § 1983 claims arising out of a single arrest in New York State of which the out-of-state defendant was present and participated in the actual arrest it is held that the defendant is subject to suit in New York pursuant to CPLR § 302(a).  Under this set of facts Davis v. United States, unequivocally finds a sufficient nexus for personal jurisdiction.

“At the center of plaintiff’s case is his arrest, which occurred within New York State. As it is undisputed that Agent Delia was present at and participated in plaintiff’s arrest, this Court has jurisdiction over him for claims arising out of that arrest. Because each of plaintiff’s claims is related to the criminal investigation and prosecution that were carried out with respect to plaintiff, there is a sufficient nexus between the jurisdictional act and the present causes of action. Accordingly, this Court may properly exercise jurisdiction over Agent Delia.”

Further, “Plaintiffs need not show regular or continuous activity in the state; even a single act within New York is sufficient to confer jurisdiction under § 302(a) if it has sufficient nexus with the cause of action.'” Davis v. United States, 2004 U.S. Dist. LEXIS 2551, 2004 WL 324880, at *5 (S.D.N.Y.) (quoting Correspondent Servs. Corp. v. J.V.W. Investments Ltd., 120 F.Supp.2d 401, 404 (S.D.N.Y. 2000)). One transaction is sufficient to support jurisdiction under § 302 “so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.” Elmaghraby, 2005 U.S. Dist. LEXIS 21434, [WL] at *9 (quoting Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467, 522 N.E.2d 40, 527 N.Y.S.2d 195 (1988)).  See also Scott v. NASCAR, 2008 U.S. Dist. LEXIS 5039 (S.D.N.Y. Jan. 17, 2008).  Clearly, as discussed in Davis the act of traveling to the state of New York in order to participate in an arrest of a New York resident creates a sufficient nexus between the jurisdiction and the defendant to acquire jurisdiction under§ 302.