How Courts Are Handling the Proportionality Requirements of Rule 26(g)

–by Steven Yurkonis

Sources: Fed. R. Civ. P. 26 (2015); Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 357 (D. Md. 2008).

Abstract: The changes to discovery procedures in the Federal Rules of Civil Procedure have been in effect for over a year. This article evaluates the impact of the revised Rule 26 proportionality requirement and the mandatory sanctions for failure to comply.


On December 1, 2015, the amendments to the Federal Rules of Civil Procedure went into effect that brought a number of changes to the way that discovery is handled in a federal civil case. One of the changes was to focus discovery and avoid wasteful spending.

Rule 26(b)(1) outlines the scope, or what is included, in discoverable information. The biggest change that came with the amendment was the inclusion of the proportionality requirement. The rule now states that the discovery must be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

This proportionality requirement is not new to the discovery rules, as the movement of the proportionality requirement to 26(b) reinforces the Rule 26(g) requirement that attorneys consider the above factors prior to making discovery requests and objections. This has had the effect of either not changing much of anything, or changing everything in the way the courts have handled discovery disputes. The rule now requires that sanctions must be used if discovery is done for improper purposes.

This requirement of mandatory sanctions is a form of judicial supervision over carelessness and intentional gaming in discovery. In one of the seminal cases on this rule, Mancia v. Mayflower Textile, United States District Court Judge Grimm discussed how discovery abuses led to the changes in Rule 26 and the mandatory sanctions. He discussed how “kneejerk” requests and responses for discovery that are overbroad is a common practice and must be put to an end. Simply bringing it to the forefront of litigants’ minds may be enough to stop these types of requests.

Even worse than reactional and not-thought-out requests are intentional gaming of discovery, such as the classic “document dump” in discovery intended to bury opposing litigants in work. These types of actions now require sanctions by the judge, although the judge has discretion to impose the level of sanctions he or she considers necessary.

Ultimately we haven’t seen how the amendments are going to change discovery overall because there hasn’t been enough time for it to play out in the courts, but within the next year or two we should have more of an idea of how judges and litigants are going to respond to the proportionality requirement and the mandatory sanctions.

After Hours of Debate Between Members of the House Judiciary Committee, the Lawsuit Abuse Reduction Act of 2017 (H.R. 720) Advances to the House Floor

–by Anna Pinchuk


Abstract: H.R. 720, the Lawsuit Abuse Reduction Act, amends Rule 11 of the Federal Rules of Civil Procedure. The Act requires judges to impose mandatory sanctions on attorneys who file frivolous claims and eliminates the 21-day “safe harbor” provision. After approval by the House Judiciary Committee, it advanced to Congress.


On January 30, 2017, H.R. 720, the Lawsuit Abuse Reduction Act of 2017 (LARA), sponsored by Rep. Lamar Smith (R-TX), was introduced in Congress and referred to the House Judiciary Committee. LARA amends Rule 11 of the Federal Rules of Civil Procedure. First, it requires judges to impose mandatory, instead of discretionary, sanctions on attorneys who file frivolous claims, defenses, or other legal contentions. Second, the Act strikes down the provision of Rule 11 that allows attorneys to avoid sanctions by withdrawing claims or defenses within 21 days.

Currently, Rule 11 allows judges to use their discretion in imposing sanctions. For example, a judge may impose sanctions on attorneys if they file claims for an improper purpose or their claims are not warranted by the existing law or an extension of the law. The Rule also contains a 21-day “safe harbor” provision which allows attorneys to withdraw their claims without the imposition of sanctions.

On February 2, 2017, the House Judiciary Committee approved LARA on a 17-6 vote. During the markup, Chairman of the Judiciary Committee Bob Goodlatte (R-VA) expressed support for the Act because it “would finally provide light at the end of the tunnel for the victims of frivolous lawsuits.” According to Congressman Goodlatte, current lack of mandatory sanctions leads to regular filings of baseless lawsuits and forces victims to settle cases in order to avoid litigating in court. The U.S. Chamber Institute for Legal Reform applauded the Judiciary Committee for the Act, saying, “These bills will discourage plaintiffs’ lawyers from gaming America’s justice system to their advantage.”

Representative John Conyers, Jr. (D-MI), the ranking member of the Judiciary Committee, expressed strong opposition to LARA because “it will chill the advancement of civil rights claims and increase exponentially the volume and cost of litigation in the Federal courts.” According to Representative Conyers, the version of mandatory sanctions of Rule 11 that LARA restores had already failed when it was in effect from 1983 to 1993. Representative Conyers highlighted that civil rights cases often involve novel legal arguments which may be especially susceptible to new sanctions. For example, in 1983, Rule 11 motions were higher in civil rights cases than in any other type of cases. Additionally, Representative Conyers was concerned that by eliminating the “safe harbor” provision, the modified version of the Rule will increase the amount, costs, and intensity of civil litigation, creating more ground for unnecessary delay and harassment. As a result, Representative Conyers proposed an amendment that would exclude cases brought under the Constitution or under any civil rights laws from the application of the Rule. However, the majority of the House Judiciary Committee rejected this amendment, along with other amendments from democratic representatives.

The American Bar Association (ABA) also expressed opposition to LARA. The ABA opposed LARA because Congress had already established procedures for amending the Federal Rules of Civil Procedure that are not being followed by proponents of LARA. Additionally, there is no evidence to support the contention that current Rule 11 sanctions are inadequate. The ABA is concerned that modifying Rule 11 will encourage additional litigation and increase court delays and costs.

Since 1995, bills like LARA that would toughen Rule 11 sanctions have been regularly introduced in both the House and Senate. To this day none have been successfully enacted. Last September, similar legislation passed the House on a 241-185 vote, but was not passed in the Senate. Similarly, this year, the Republican Party’s control of the House will make LARA’s passage more likely in the House. However, its passage in the Senate is not as certain.

Who Knew? Sue-and-be-sued Clauses: State or Federal Jurisdiction

–by Michael Corelli

Source: Lightfoot v. Cendant Mortgage Corp., 580 U. S. ____ (2017); Bank of United States v. Deveaux, 9 U.S. 61 (1809); Osborn v. Bank of United States, 9 Wheat. 738 (1824); American Nat. Red Cross v. S. G., 505 U.S. 247 (1992).

Abstract: Petitioners sued a federal charter, Fannie Mae, under a sue-and-be-sued clause. Fannie Mae removed the case to federal court. The issue revolved around determining how to construe this particular sue-and-be-sued clause in light of precedent.


Facts & Procedure

Petitioners Beverly Ann Hollis-Arrington and Crystal Lightfoot sued in state court alleging that Fannie Mae was deficient in the refinancing, foreclosure and sale of their home. Fannie Mae removed the case to federal court based on a sue-and-be-sued clause. Petitioners moved to remand the case back to state court, but the District Court denied the motion. The Ninth Circuit affirmed the decision. The Supreme Court granted certiorari to resolve the issue of whether Fannie Mae’s sue-and-be-sued clause grants federal courts jurisdiction over all cases involving Fannie Mae.

Supreme Court Decision

The Supreme Court reversed the Ninth Circuit’s decision. The court resolved the issue by first evaluating whether or not there was established precedent regarding sue-and-be-sued clauses. Justice Sotomayor analyzed several cases to determine the status of the sue-and-be-sued clause.

First, the court analyzed two cases that originally dealt with this clause. In Bank of United States v. Deveaux, the Supreme Court held that the bank had no right to sue in federal court based on a sue-and-be-sued clause that did not expressly mention the federal courts as having subject-matter jurisdiction. Following this rationale, the Supreme Court then decided Osborn v. Bank of United States, where it held that the sue-and-be-sued clause did confer subject-matter jurisdiction to federal courts because it mentioned the federal courts in the clause. Thus, the difference between the two cases was the explicit mention of the federal courts, which was enough to grant subject-matter jurisdiction.

The court then went on to analyze contemporary case law. The most recent case on the sue-and-be-sued clause was American Nat. Red Cross v. S. G., where the prior rationale established by the Supreme Court was reaffirmed. Congressional intent of granting federal courts jurisdiction based on the sue-and-be-sued clause is determined by looking at the language of the clause itself. The court assumes that federal courts lack subject-matter jurisdiction when there is no explicit mention of the federal courts in the sue-and-be-sued clause itself. Congressional intent is recognized when there is evidence of the intent in the form of explicit language.

With this understanding, the court observed that unlike Deveaux, the clause at issue here does mention the federal courts. However, unlike Osborn and Red Cross, the clause at issue here does not refer to federal courts having subject-matter jurisdiction without qualification. Rather, the clause in its language construction created a condition. The clause stated that Fannie Mae had the right “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” Thus, to determine whether the case was properly removed to federal court the court went on to analyze the meaning of competent jurisdiction.

Referring to Black’s Law Dictionary, Justice Sotomayor stated that “a court of competent jurisdiction is a court with the power to adjudicate the case before it.” This definition signifies that a court with competent jurisdiction is a court that has a grant of subject-matter jurisdiction conferred to it. From there, the court stated that a court of competent jurisdiction should be understood as a reference to a court that already has existing subject-matter jurisdiction, not to directly confer jurisdiction to federal courts. Thus, the sue-and-be-sued clause at issue here did not directly grant federal courts subject-matter jurisdiction, rather it gave federal courts the capacity to adjudicate the issue.

The court then looked back to Red Cross and stated that it was often misread and interpreted as meaning any mention of federal courts in a sue-and-be-sued clause automatically conferred federal courts the subject-matter jurisdiction to adjudicate cases. The court refuted this notion and held that when a sue-and-be-sued clause explicitly mentions the federal courts in its language it does not automatically confer those courts with subject-matter jurisdiction. The question remains as to whether subject-matter jurisdiction exists. Therefore, the court rejected Fannie Mae’s arguments that jurisdiction was proper, since its arguments were premised on the misread Red Cross rationale.

Federal courts do not automatically have subject-matter jurisdiction when explicitly mentioned in the sue-and-be-sued clause. It is possible that states still retain subject-matter jurisdiction over these cases depending on the Congressional intent manifested through the language of the clause itself.

California Egg Production Laws Survive Lawsuit

–by Caitlin Lomazzo

Citations: Mo. ex rel. Koster v. Harris, 2016 U.S. App. LEXIS 20613 (2016); Mo. v. Harris, 2014 U.S. Dist. LEXIS 89716 (2014); Cal Health & Saf Code § 25990; 3 CCR 1350 § 1350(a–d).

Abstract: On October 19, 2016, the Ninth Circuit Court of Appeals reviewed a lower court’s dismissal of a suit brought by five states and the Governor of Iowa. The suit alleged injuries caused by California state laws and regulations that governed egg production. The court affirmed that the states did not have parens patriae standing, but it remanded the case for dismissal without prejudice.


In 2014, five states (Missouri, Nebraska, Oklahoma, Alabama, Kentucky) and the Governor of Iowa, Terry Branstad, filed a complaint in the Eastern District of Northern California. The Plaintiffs asked the court to overturn California laws and regulations related to egg production, namely California’s Assembly Bill 1437 (“AB1437”) and California Code § 1350(d)(1). AB1437 provided that “a shelled egg shall not be sold or contracted for sale for human consumption in California” if the egg seller “knows or should have known that the egg is a product of an egg-laying hen that was confined on a farm or place” out of compliance with Proposition 2, a voter initiative that says a farmed animal must not live in conditions that prohibit “[l]ying down, standing up, and fully extending his or her limbs; and [t]urning around freely” for at least the majority of the day. The second item, a set of food safety regulations by the California Department of Food and Agriculture, included minimum cage size requirements.

The Plaintiffs argued the court should strike down the laws, known collectively as the “Shell Egg Laws,” based on their violation of the Commerce Clause or preemption by a federal statute. They also asked the court to bar the state’s enforcement of the laws. The district court determined the Plaintiffs lacked parens patriae standing to sue and dismissed the case with prejudice. It also denied leave to amend the complaint. The Plaintiffs appealed the decision.

The Ninth Circuit reviewed the Plaintiffs’ standing arguments on appeal. A plaintiff state that seeks to establish parens patriae standing must fulfill certain requirements in addition to the Article III standing requirements. It must demonstrate it has “an interest apart from the interests of particular private parties” that will impact “a sufficiently substantial segment” of the state’s population. The interest must also constitute a “quasi-sovereign interest.”

In its decision, the Ninth Circuit did not reach the second question of whether the states had quasi-sovereign interests because it determined that the Plaintiffs had failed to prove they had separate interests that would impact “a sufficiently substantial segment” of their respective populations. The court determined that harms to egg farmers alone would not support parens patriae standing and emphasized that egg farmers could obtain complete relief without state intervention if they filed their own suits. It also noted that price changes that might impact consumers could not constitute a harm to justify standing. Lastly, it determined that the Shell Egg Laws would not single out eggs based on their states of origin and thereby disadvantage certain states’ economies. Because the states could not prove discrimination, they could not establish parens patriae standing on that basis.

In addition to upholding the decision to dismiss the case, the Ninth Circuit also upheld the lower court’s decision to deny the Plaintiffs leave to amend their complaint. The states could not add descriptions of recent occurrences to the complaint they filed years ago and thereby establish parens patriae standing. Moreover, the states sought to modify the complaint to include price changes that would impact consumers of eggs or egg-containing products who did not purchase items directly from egg farmers. The court determined that price changes, which had, if anything, a tenuous relationship to the Shell Egg Laws, could not establish standing. Because the amendments would not save the complaint for lack of parens patriae standing, the Ninth Circuit affirmed the lower court’s denial of leave to amend.

The Plaintiffs had not described injuries that would establish parens patriae standing, but the Ninth Circuit determined that the Plaintiffs could theoretically establish standing if they demonstrated other, actual injuries that occurred after California implemented the laws and regulations in 2015. Therefore the Ninth Circuit remanded the case with instructions to dismiss without prejudice.

Survey: 2015 Civil Practice

Michael Anthony Bottar reviews the developments in New York Civil Practice during 2015. Bottar surveys five statutory reforms, material changes to the Office of Court Administration (OCA) rules, and various case law developments under CPLR Articles 2, 3, 5, 9, 10, 20, 21, 23, 30, 31, 32, 40, 50, and 78.

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Michael Anthony Bottar is a graduate of Colgate University and summa cum laude graduate of Syracuse University College of Law, the author is a member of Bottar Leone, P.L.L.C., an adjunct professor at Syracuse University College of Law, and a member of the Syracuse University College of Law Board of Advisors. The author thanks Samantha C. (Robbins) Riggi, Esq., for her extraordinary efforts in connection with this year’s Survey.

New York Court of Appeals Takes Strict View on Preservation

—by David Katz

In re New York City Asbestos Litigation (Konstantin v. Tishman Liquidating Corp.), 2016 N.Y. LEXIS 1765; 2016 NY Slip Op 05064 (N.Y. June 28, 2016), aff’g on other grounds 121 A.D.3d 230 (N.Y. App. Div. 2014).


The Court of Appeals recently reminded litigators that preservation doctrine favors the cautious litigator who renews his objections whenever circumstances change.  The Court held that an objection to allowing cases to be tried jointly was unpreserved for appellate review where parties settled after the order was made and the defendant failed to renew its objection at trial.


On June 28, 2016, the New York Court of Appeals delivered a decision highlighting the pitfalls of preservation doctrine in New York.  “You snooze, you lose” is the basic aphorism that summarizes preservation doctrine, but the New York Court of Appeals reminded the legal community that a hole in the preservation chain can sever appellate review.  In re New York City Asbestos Litigation presented the Court with a specific iteration of an oft-faced preservation issue: when circumstances change, will an initial objection suffice for preservation purposes.

Ten plaintiffs moved to have their cases tried jointly.  The defendants opposed the joint trial, but the trial court allowed seven cases to be joined for trial.  Between the order granting a joint trial and the trial, five cases settled; thus, two cases remained to be tried.  One defendant did not renew its opposition to the joint trial.  After trial, one defendant made a post-trial motion challenging the joint trial.  The trial court denied the motion.

The defendant then appealed, arguing that the order allowing a joint trial was improperly made.  Plaintiffs, in response, argued that the issue was not preserved for appellate review because, amongst other arguments, Defendants’ opposition was not renewed after the five cases settled.

The First Department, in a three-to-two decision, found that the issue was preserved on review.  Specifically, the majority reasoned that the issue was preserved because the appeal stemmed from a final order, which brought the interlocutory order up for review.  As a result, the majority found that there was no need to renew an objection after five cases settled.  The majority, having found the issue preserved, affirmed the trial court’s decision on the merits.  The dissent also was not willing to find the issue unpreserved.  Instead, the dissent disagreed with the majority’s conclusion that the appendix on appeal was sufficient to permit appellate review.

A unanimous Court of Appeals affirmed the result, but wrote a separate opinion addressing the preservation issue.  According to the Court of Appeals, opposing the initial joint trial motion, along with a post-trial motion, was insufficient to preserve the issue for appellate review.  Instead, according to the Court of Appeals, the defendant should have renewed the motion after five plaintiffs settled in the hopes that the trial court would rebalance CPLR § 602 considerations in its favor.  As a result, the Court of Appeals refused to review the order.

The Court of Appeals reminds litigation counsel: object early, object often.  In order to argue a case effectively on appeal, litigators must remember to renew arguments, even if the litigator does not think the rationale underpinning the decision has changed.  Raising a trial court’s ire just before trial is a gamble, but the Court of Appeals reminded us that failing to preserve an issue is a sure bet against appellate review.

To Challenge Governmental Action in Land Use Matters, No Need for Unique Injury

— by Moira Ferguson

Source: In re Sierra Club v. Village of Painted Post, No. 151 (N.Y. Nov. 19, 2015)

Abstract: To have standing to challenge governmental action in land use matters, a party must show it would suffer a “special injury.” An injury is special where it is direct and in some way different from that of the public at large. However, the possibility that more than one person may be harmed by the governmental action does not defeat standing.


The Village of Painted Post is situated at the intersection of the Cohocton, Tioga and Chemung Rivers. Below these rivers sits the Corning aquifer. In February of 2012, the Village entered into a sales agreement with a subsidiary of Shell Oil Co. The sales agreement provided for the sale of 314 million gallons of water from the Corning aquifer, to the Shell Oil Co. subsidiary. The Village also entered into a lease agreement with Wellsboro & Corning Railroad. This lease agreement allowed for the construction of a water transloading facility in the Village. Water from the aquifer would be withdrawn, loaded, and transported via train at this facility.

Following the formation of these two agreements, petitioners commenced a proceeding against the Village. Petitioners included The Sierra Club, People for a Healthy Environment, Inc., Coalition to Protect New York, and individual residents of the Village. Petitioners claimed by failing to take into consideration adverse environmental impacts of the agreements, the Village failed to comply with the State Environmental Quality Review Act (SEQRA). Due to this neglect, petitioners asked the court to preliminarily enjoin any effects of the agreements until the Village complied with SEQRA. In response, the Village moved to dismiss, insisting petitioners lacked standing to bring a claim.

In Society of Plastics Indus. v. Cty of Suffolk, the Court set forth a framework for deciding when parties have standing to challenge governmental action in land use matters generally, and under SEQRA specifically. The Court decided that for standing purposes, the plaintiff must have a “special injury.” To be special, the injury must be direct, and different from that of the injury suffered by the public at large.1

The Supreme Court applied this rationale to each of the petitioners in the present case. The court found the organizations only alleged indirect, generalized environmental injuries that the public at large would suffer. These did not equate to the special injuries needed to confer standing. However, the Supreme Court found one individual petitioner, John Marvin, did suffer direct harm, distinct from that suffered by the general public. This harm equated to the special injury required to confer standing to challenge a governmental action in land use matters.

Marvin was a longtime resident of the Village, and lived less than a block for the transloading facility. He stated that when the water trains began running, the noises were so loud that they kept him and his wife awake at night. Marvin worried the noises would degrade not only the value of his home, but the quality of his life.

The Appellate Division also applied the standing framework set out in Society of Plastics, but rendered an opposite holding. The Appellate Division focused on the fact that Marvin complained about the noise from the trains, but did not address the noise from the transloading facility. The court acknowledged that many other Village residents lived along the train tracks, were subject to the injurious noise of the trains, and therefore suffered the same injury as Marvin. For the Appellate Division, because many residents of the Village suffered the same injury as Marvin, Marvin’s injury was not direct or different from that of the public at large. Therefore, he did not establish the special injury required to confer standing.

The Court of Appeals found the Appellate Division applied an overly restrictive analysis of the requirement to show standing. The Court reiterated that to have standing to challenge a governmental action in land use matters generally, the petitioner must suffer a special injury, meaning the injury is direct and is different from that of the public at large. However, to be special, the injury need not be unique.

Here, Marvin did not assert the increased train noise would cause him an indirect, collateral harm, congruent to the burden felt by the public at large. Instead, Marvin alleged a particularized harm that may also be inflicted upon other residents of the Village who live near the train tracts. Standing is not to be denied simply because many people suffer the same injuries.

The Court found the Appellate Division’s restrictive analysis of standing has detrimental effects on the judiciary system. Specifically, to deny standing to persons who are injured, simply because others suffer the same injury, insulates the most injurious and widespread government action from judicial review.

Although other Village citizens residing along the tracks could hear the trains, for Marvin, the injurious noise was still direct and different from that of the public at large. Accordingly, the noise equated to a special injury, sufficient to confer standing to challenge the Village’s two agreements, the governmental action that lead to Marvin’s injuries.

Davis v. South Nassau Communities Hospital

— by Anna McGinty


A bus driver, Plaintiff, alleged that the Defendant South Nassau Communities Hospital treated a third party with medication that affected her ability to operate an automobile and due to that impairment she was involved in an accident with the Plaintiff bus driver. The court determined that Defendant did in fact have a legal duty of care.




A bus driver, Plaintiff, alleged that the Defendant South Nassau Communities Hospital treated a third party with medication that affected her ability to operate an automobile and due to that impairment she was involved in an accident with the Plaintiff bus driver. The Court determined that Defendant did in fact have a legal duty of care.


The third party sought treatment at the Hospital’s emergency room. According to the medical records she drove herself to the Hospital where she was administered with Ativan and Dilaudid. The common side effects of Atvian include sedation, dizziness, weakness, unsteadiness, disorientation, and is described to have a sedative/hypnotic effect. Additionally, Dilaudid has two to eight times the painkilling effect as morphine and lasts for 2-4 hours. Furthermore, the label on the Dialudid medication states that it “may impair mental and/or physical ability needed to perform potentially hazardous activities such as driving a car or operating machinery.” The third party was then discharged from the Hospital an hour and a half later and she drove herself away from the facility. Nineteen minutes after discharge from the hospital she was involved in a motor vehicle accident in which the automobile she was driving crossed a double yellow line and struck a bus driven by the Plaintiff. Plaintiff described the third party as in a “state of disorientation” and “under the influence of the aforementioned drugs.”


The Island Medical defendants moved to dismiss the complaint for failure to state a cause of action contending that they did not owe Plaintiffs’ a duty of care as they were third parties to the treatment rendered to patient. Furthermore, the Hospital asked for the same relief. The Supreme Court granted the motion seeking dismissal of the complaint. On appeal, the Appellate Division affirmed and reasoned that because it was only the third party with the physician-patient relationship that the allegations did not support a duty of care owed by the Defendant to the injured Plaintiff.


The Court of Appeals historically has only expanded the existing duty of care with reluctance. The Court previously in Eiseman v. State of New York, declined to impose a broad duty of care extending from physicians past their patients to “members of the. . . community individually.” However, the Court in Purdy v. Public Administrator of County of Westchester extended the legal duty and stated that “there exists special circumstances in which there is sufficient authority to control the conduct of third persons that [have given rise to] and a duty to do so.” The Court indicated that those circumstances exist where there is a relationship between the defendant and a third person whose actions expose the plaintiff to harm such as would require the defendant to attempt to control the third person’s conduct. Here, the Court stated that to simply take the step of administering the medication without warning the third party about the disorienting effects of the drug was to create a danger that affected all motorists in the third party’s vicinity. The Defendants are the only ones that could have given the third party the proper warning of the negative effect of the drugs. Therefore, the Defendants had a duty to warn the third party about the effects of the drug to impair her ability to safely operate an automobile.


The Court observed that the cost of the duty imposed by physicians is only a small one. For example, where a medical provider administers to a patient medication that impairs or could impair the patient’s ability to safely operate an automobile, the medical provider need to do no more than simply warn the patient. Furthermore, the hospital need not prevent the third party from leaving the hospital but just ensure that when the third party leaves the hospital they are warned about the effects of the medication administered to her.


Thus, the Court of Appeals ruled that the order of the Appellate Division should be modified, without costs, by denying the motions of the Island Medical and the Hospital to dismiss the complaint. The full opinion can be found at Davis v. South Nassau Communities Hospital, et al., 2015 WL 8789470 (N.Y. Dec. 16, 2015).

Survey: 2014 Civil Practice

Survey of New York Civil Practice for 2013–2014.

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Michael Anthony Bottar is a graduate of Colgate University and summa cum laude graduate of Syracuse University College of Law, the author is a member of Bottar Leone, PLLC, an adjunct professor at Syracuse University College of Law, a member of the Syracuse University College of Law board of advisors, and a member of the board of directors of the New York State Academy of Trial Lawyers.

Coleson v. City of New York

This appeal stems from a negligence suit against the City of New York and the New York City Police Department (NYPD) and addresses what evidence is necessary to establish that a special relationship existed between an individual and a municipality that would require the municipality to exercise a duty of reasonable care.

The plaintiff in this case, Jandy Coleson, had suffered verbal and physical abuse at the hands of her husband for years and had obtained several orders of protection against him. On June 23, 2004, plaintiff’s estranged husband attempted to force himself into her building and threatened to stab and kill her with the screwdriver he was carrying. Plaintiff called the NYPD, but when they arrived, Coleson had fled. After searching for him with plaintiff’s assistance, Coleson was apprehended the following morning. Plaintiff and her son were transported to the precinct where an Officer Reyes told her that Coleson had been arrested and “was going to be in prison for a while.” Reyes also told plaintiff she was going to be given protection. Plaintiff and her son were then taken to Safe Horizon, a non-profit domestic abuse victims’ organization. Later that evening, plaintiff received a telephone call from Officer Reyes, in which she was told that Coleson “was in front of the judge” and that “everything was okay.” Two days later, while picking her son up from school, plaintiff was approached by Coleson, who proceeded to stab her in the back with a knife. Plaintiff’s seven-year-old son was placed in a broom closet by an employee of the car wash across the street from the school, and upon coming out, witnessed his mother lying in a pool of blood.

On behalf of her and her son, plaintiff commenced a negligence suit against the City of New York and the NYPD, also asserting a claim for negligent infliction of emotional distress. The City moved for summary judgment, arguing that Reyes’ statements were not definite enough to create justifiable reliance in order to establish a special relationship in satisfaction of the duty prong of plaintiff’s negligence claim. Plaintiff argued a special duty existed based on the NYPD’s agreement to provide protection to her. The Supreme Court granted the City’s motion for summary judgment and the Appellate Division, First Department affirmed, saying the statements “were too vague to constitute promises giving rise to a duty of care.”

The Court determined that there was sufficient evidence to conclude plaintiff raised a triable issue of fact as to whether a special relationship existed. The court emphasized that the “injured party’s reliance is . . . critical,” and also that in applying the factors set out in Cuffy v. City of New York, a jury could reasonably find for plaintiff. The Court also distinguished this case from a previous case relied on by the Appellate Division, stating that conduct of the police here was more substantial, involved, and interactive than the police conduct in Valdez v. City of New York. The case was remitted to the Appellate Division, First Department to be modified in accordance with the opinion.

The dissent objected on the grounds that opening up municipalities to tort liability in domestic abuse cases is a slipper slope that will lead to police officers giving as little information as possible to victims in order to avoid civil liability.

999 N.Y.S.2d 810 (N.Y. 2014)

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