The lower court determined that the late filing precluded suit.  The Appellate Division reversed stating that, as is evident from the plain language of CPLR 2001, when a court determines whether to permit the correction of a mistake with respect to the commencement of an action, or determines whether that mistake must be disregarded, the key question is whether, if the correction of the mistake is permitted, or the mistake is disregarded, a substantial right of the defendant would be prejudiced. The court held that since defendant failed to present any facts to establish prejudice, application of CPLR 2001 saved the late filing.

Disclosure in New York civil actions is guided by the principle of “full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR 3101[a]).  The Second Department acknowledges that the new standard requires something beyond the requirement of materiality and necessity (yet less than a showing of special circumstances), but states that the analysis should not be limited to a comprehensive list of circumstances or reasons which would be deemed sufficient to warrant discovery from a nonparty.  Rather, supervision of discovery should be left to the sound discretion of the trial courts. 

New York’s Appellate Division, Third Department is now the only remaining court to apply the “special circumstances” standard for disclosure against a nonparty, and it will be interesting to see whether the recent decision in Kooper will affect future outcomes in the Third Department.   

In this case, Schenectady International, Inc. hired defendant to clean certain on-site bulk chemical storage tanks.  Pursuant to Schenectady International’s safety policies, defendant could not enter or begin cleaning any tank until Schenectady International inspected the air quality in the particular tank and issued a confined space permit. 

During the course of the cleaning operation, plaintiff was employed by Schenectady International to inspect the air quality and issue a confined space permit before defendant could start working.  Plaintiff used a ladder to place a meter on the top of the tank, which fell out from underneath him, causing plaintiff to fall ten feet, sustaining serious injuries. 

Plaintiff commenced this action against defendant alleging common-law negligence and violations of Labor Law §§ 200, 240(1) and 241(6).  Defendant moved for summary judgment dismissing the complaint.  The lower court dismissed, finding that defendant had no authority to supervise or control the plaintiff’s work and, therefore, could not, as a matter of law, be liable under any theory of law submitted by plaintiff.

The Appellate Division affirmed holding that defendant was not the owner, owner’s agent or a contractor, therefore could not be liable under the Labor Law.  The Court further agreed that because defendant had no supervisory control over the plaintiff’s inspection of the tank, plaintiff’s common-law claims were also properly dismissed. 

On appeal, the court determined that the Supreme Court erred in concluding that the evidentiary doctrine of res ipsa loquitur was inapplicable.  Inasmuch as Supreme Court had previously determined that res ipsa loquitur was available to plaintiff and no appeal was taken from that legal determination, the court determined that the doctrine of law of the case should have been applied to give it preclusive effect at the time of trial.

The case of Tselebis v. Ryder Truck Rental Inc., 2010 Slip Op. 01442 (1st Dept. Feb. 18, 2010) involves an accident between a truck and a motorcycle.   The plaintiff, driver of the motorcycle, testified that he had no recollection of the accident.  The driver of the truck testified that although he entered into the intersection against a red light it was due to his truck’s brake failure.  Nevertheless, the court determined, summary judgment in favor of the plaintiff was warranted.  The court stated that defendant’s admission that he entered the intersection while the traffic light was red constituted a prima facie showing of liability on his part.  The proffer of brake failure by defendant was insufficient to raise a triable factual issue with respect to liability.

The court discussed that a defendant claiming brake failure must make a two-pronged showing that the accident was caused by an unanticipated problem with the vehicle’s brakes, and that he exercised reasonable care to keep the brake in good working order.  Here, defendant failed to meet the first prong in light of defendant’s testimony of the problems he experienced with the truck’s brakes prior to the accident. 

The court stated that plaintiff is entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question.  The court reminds that a plaintiff’s own culpable conduct no longer stands as a bar to recovery in an action for personal injury and that freedom from comparative negligence is not a required component of a plaintiff’s prima facie showing on a motion for summary judgment.

In order to submit a case to a trier of fact based on the theory of res ipsa loquitur, a plaintiff must establish that the event (1) was a kind that ordinarily does not occur in the absence of someone’s negligence; (2) was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) was not due to any voluntary actions or contributions on the part of the plaintiff.  The focus of UCP’s motion was on the second factor, arguing that the sensor mechanism controlling the automatic door was not within its exclusive control because Reliable was responsible for performing repair work on the doors.  However, the Court determined, res ipsa loquitur does not require sold physical access to the instrumentality causing the injury and can be applied in situations where more than one defendant could have exercised exclusive control.  In denying the motion, the Court found that the fact that reliable may have occasionally performed repair services on the sensor mechanism did not, as a matter of law, remove the sensor from UCP’s exclusive control.