Articles Posted in Municipal Liability

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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

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

CPLR § 302 emphasis added

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What happens if, as a result of negligence, a person dies in the State of New York but they do not have any immediate family members to administrate their estate?  Does, any potential lawsuit against a third party become lost?  The short answer is no, the opportunity for a lawsuit does not become lost, but the process in which to initiate a lawsuit becomes much more complicated.  The following is a brief overview of the process for filing a wrongful death lawsuit when a person dies without a will and without a distributee who is also a qualified person to administrate the estate under the New York EPTL.

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Unfortunately, it happens, your case gets marked off the trial calendar.  Even worse, it happened through no fault of your own.  How so? Your action was consolidated with other cases, and while you have been timely complying with adversary demands and court orders, the other plaintiffs are no so diligent.  The result – the note of issue is vacated and all the consolidated cases are marked off the calendar as a result of the other plaintiffs’ failure to comply with orders and/or reply to demands.

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Most lawyers are well aware that when a motion in decided in their clients favor they have an obligation to serve that order on opposing counsel with notice of entry.  “Where the rights of a party are or may be affected by an order, the successful moving party, in order to give validity to the order, is required to serve it on the adverse party” ( McCormick v Mars Assoc., 25 A.D.2d 433).  Moreover, “[T]he party prevailing on the motion shall file the order and the papers used on the motion with the proper clerk after receiving them. If a party fails to file any papers required to be filed under this subdivision, the order may be vacated as irregular, with costs.”  CPLR § 2220(a).  So what are the ramifications of failing to serve your adversary with the Court’s decision?  In some instances the consequences may be dire.

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In New York under CPLR 205(a) a plaintiff is given six months to re-file a complaint if there complaint is dismissed against MTA for failure to comply with the 30-day demand requirement set forth in Public Authorities Law 1276(1) and (6).  The Second Department unequivocally held in Fleming v. Long Island Railroad, 130 A.D.2d 59 (N.Y. App. Div. 2d Dep’t 1987) that a dismissal of a complaint pursuant to plaintiff’s failure to comply with the 30-day demand requirement set forth in Public Authorities Law § 1276(1) and (6) does not bar a plaintiff from re-serving a new complaint under CPLR § 304(a) which complies with the condition precedent set forth in the Public Authorities Law.   Under CPLR 205(a)  when an action that has been timely commenced and is later dismissed, a new action may be commenced within six months of the termination, so long as the dismissal was not (1) by voluntary discontinuance, (2) for neglect to prosecute the action, or (3) a final judgment upon the merits (see, CPLR 205(a)). In addition, this six-month tolling provision does not apply where there is a lack of personal jurisdiction in the prior. Continue reading →

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Under a normal conditions a pedestrian has the right of way while crossing the street if the cross in a designated crosswalk.  If there is no traffic control device a pedestrian has the right of way while crossing the street in a designated crosswalk.  But what if there is a vehicle blocking the crosswalk?

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Under most circumstances in New York State a municipal defendant (county, city, village, school district and/or municipal corporations) must be sued in the county in which they are residing.  This rule is mandated by law, under CPLR 504(1) and/or (2).  The law states that the place of trial for all actions against any municipal defendant will the county in which it is situated.  Though this may seem like black letter law, under certain circumstances the Courts will allow a plaintiff to sue a municipal defendant in a foreign county.

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Many factors go into determining the monetary value of a personal injury lawsuit.  Basically, in New York the only remedy for an injured party in a personal injury lawsuit is money damages.  This requires a value to be determined for the injured party’s loss.  Your attorney must create a dollar amount that they think your case is worth.  If your case ever goes to trial, a jury will be asked to evaluate the facts of the case and determine if the defendant is liable and if so, they will be asked to render a dollar amount to compensate the plaintiff for their damages.  In order to evaluate the value of a case an attorney must take into account many different variables.

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In the context of civil litigation, often times the need arises to enter municipal records into evidence.  For example, our firm recently represented a client in a medical malpractice action; as a result of the malpractice, the client required a home health aid for the remainder of her lifespan, a hefty amount of damages if sufficiently non-speculatively established at trial.  While there are a number of ways the cost of the health aid could be established, such as by expert testimony by an economist; however, experts are expensive and any money spent proving the case at trial ultimately gets deducted from the client’s recovery in the form on disbursements.  To preserve as much money as possible for the client, while still proving the case, a better route is needed – luckily the CPLR and the City of New York provide the better way – CPLR §4518(c) and the City’s own records.

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Yes, The district court has personal jurisdiction over a foreign municipality.  In deciding a pretrial motion to dismiss for lack of personal jurisdiction a district court has considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion. If the court chooses not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials.  Marine Midland Bank v. Miller, 664 F.2d 899, 904 (2d Cir. 1981) (internal citations omitted); see also New Moon Shipping Co. v. Man B & W Diesel AG, 121 F.3d 24, 29 (2d Cir. 1997).

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