Archive for the ‘New York City’ Category

City of New York Once Again Rebuked by Appellate Court; City Answers Stricken

The City of New York has once again been shot down by an appellate court for failing to provide discovery in personal injury actions where it is a defendant. In two separate actions last week the Appellate Division First Department reversed lower court rulings that had failed to strike the Answers of the City for non-compliance.  The appellate court granted automatic wins for the plaintiffs after years of being frustrated by City failure to provide discovery.

Last year I  wrote about one of those cases,  Elias v. City, a trip and fall case where the city had repeatedly ignored discovery orders.The Appellate Division First Department slammed the City with a $7,500 sanction. The Appellate Division, now further disgusted by the City’s lack of compliance, wrote:

Although we previously directed defendant to comply fully with the outstanding discovery requests and ordered it to pay plaintiff $7,500 as a penalty for the delay in complying (71 AD3d 506 [2010]), defendant has still failed to comply fully. Over a three-year period, the City has repeatedly failed to provide discovery, despite nine court orders and sanctions imposed by this Court. These circumstances “create[ ] an inference of willful and contumacious conduct” (Brewster v FTM Servo, Corp., 44 AD3d 351, 352 [2007]) and warrant the ultimate sanction of striking defendant’s answer.

In sum, although over three years had passed since plaintiff had first sought this discovery which is central to the prosecution of his action, and despite the nine court orders directing defendant to comply with outstanding discovery, the motion court acceded to defendant’s request to be given one more opportunity to provide the discovery. Defendant has offered no excuse for its failure to produce the documents. Apparently, the imposition by this Court of a significant sanction was not sufficient to deter defendant from continuing its cavalier noncompliance with court-ordered discovery. In our view, the history of defendant’s untimely, unresponsive and lax approach to complying with the court’s previous orders warrants the striking of defendant’s answer (see Byam v City of New York, 68 AD3d 798 [2009]).

See that citation to Byam at the end? That is a Second Department case that the First Department is citing to.

The newfound determination to hold the City accountable for discovery failures, the same as other litigants, has a deep history to it, and reflects a reversal two years ago in the patience that the courts have had with City cases. The City’s Corporation Counsel published a top 10 list of recommendations on how the courts could be made more efficient and asked that “Judges must be made more accountable.” He had a variety of “performance measures” in mind.

The appellate judges were not amused, and 18 out of 20 of the First Department judges castigated the City in an unprecedented letter to the New York Law Journal. That letter contained this passage, which should have been seared into the minds and conduct of the City’s laweyrs:

In fact, it is ironic that the Corporation Counsel blames the courts for a failure to deal appropriately with litigation delays, since it is the office of Corporation Counsel of the City of New York that plays a significant role in causing those undue delays. For one thing, there is always a backlog of ready city cases in the dedicated city parts, and, with each part being assigned only two city attorneys, neither plaintiffs’ attorneys nor the trial judges have the means to ensure that ready cases can proceed immediately to trial; the city alone wields that authority.

A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence (see e.g., Lewis v. City of New York, 17 Misc. 3d 559 [2007]).

The City was being  hoisted up on its own petard, claiming that the Courts were infeffcient while itself causing delays. While the First Department judges had oft times given the City a break when it came to its past failures – “[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions — that time has now clearly come to an end.

The second case the Court decided last week on the subject was Henderson-Jones v. City of New York, in which 10 police officers entered her home without a warrant, found marijuana, arrested her, subjected her to strip searches, and detained her for 30 hours before she was released without charges. The plaintiff was able to identify two of the officers by remembering their badge numbers. One repeatedly refused to show up for deposition and  the City claimed it could not identify the others.

Both the First and Second Departments have clearly weighed in on the City’s repeated failures and delays, and it seems, a new era of accountability is being forced upon it.

(hat tip —  New York Law Journal)

 

Bloomberg: City’s Tort Victims Should Bear Own Costs

In an interview with me yesterday just after a speech before the New York State Bar Association on the issue of “tort reform,” Mayor Mike Bloomberg said that victims of New York City’s negligence should bear their own costs. “It’s just too much for us to compensate these people, we think the better policy is for those who were injured by our negligence to take care of it themselves.”

The mayor, in wide-ranging comments made in front of the lawyers group that he continued with me afterward, said, “Look, let’s be blunt here. Who is in a better position to pay the costs of an injury if a city bus injures people? Our strapped city budget, or the victims? Yes, we know that some of them can’t work, can’t take care of their kids, or even go shopping for food due to their injuries, but we have to be realistic. This is tort reform, and we need more of it here.”

In his remarks, the mayor noted the political realities of the situation: “This city has a lot of businesses in it, and if they don’t make decent profits, it won’t be a good situation. And I know all about profits, having built a pretty handsome business before the voters asked me to take this job.” “Let’s face it,” Bloomberg continued in my interview with him, “personal responsibility is so yesterday.”

OK, maybe my quotes aren’t quite exact, and I didn’t meet with him in the traditional sense so much as I channelled  his inner thoughts. But they are not far off from reality. Bloomberg actually did stand before the lawyer’s group yesterday. And he really did argue for various forms of immunity for the city for its negligence.

One topic was medical malpractice and the claim that doctors are moving away from upstate due to a fear of litigation. Well, they are moving away from upstate it is true, but upstate is economically distressed. It’s fairly well known that doctors and other professionals tend to move to nicer areas if they can.

No real surprise there. Good food, theatre, a vibrant city life, and many other benefits for which people have been moving to cities. Factories close and workers move. Those workers are also called patients.

But Bloomberg tries to claim that this migration is actually due to medical malpractice issues. Really. He does. His exact words (Bloomberg-TortReformSpeech):

This fear of litigation drives up the cost of health care, and it can lead to a shortage of doctors in certain specialty fields – as we see Upstate. In Western New York, a recent survey found that 91 percent of emergency departments had to transfer patients to another hospital in 2009 because of lack of coverage in a necessary specialty.

Anyone here think I’m going to let him get away with that?

Let’s turn to an actual study, that was captured in this 2007 article in the New York Times (Few Young Doctors Step in as Upstate Population Ages) a different reason is presented, and it has everything to do with (surprise!) doctors moving to wealthy areas because they want to make more money and have a nice lifestyle:

In New York, the study found 6 percent growth in the number of doctors practicing medicine in the state from 2001 to 2005, for a total of about 77,000 doctors. But the way they are spread throughout the state is wildly uneven.

While newly licensed doctors flock to New York City, Long Island and Westchester County, where there is already a glut, far fewer choose to practice in the vast upstate region. For instance, during the years the study was conducted, Essex County in the Adirondacks lost 22 percent of its doctors, while there was a 19 percent increase in Nassau County, on Long Island.

And as doctors upstate retire — one-third of the physicians in Binghamton are 55 or older — recruiting replacements is becoming more difficult. “I worry that new physicians may not see certain areas in the state as viable or attractive,” Ms. Moore said.

There is little question why, since statistics show a steady exodus of jobs and a decline in prosperity in upstate New York. In the last three decades, the population drain has contributed to New York’s loss of Congressional seats, to 29 today from 39, and state figures show that the number of 20- to 34-year-olds in the region decreased by 22 percent in the 1990s.

Nice try Mr. Mayor. Perhaps you even found some folks who believed the nonsense you spouted.

He also tried out the concept of neutral medical malpractice panels to pre-screen cases. Thanks, mayor, but we already tried that in the ’80s and it was a miserable failure that led to years-long delays in cases getting resolved. (See: Why Medical Malpractice Panels Fail)

Doctors, it seems, didn’t want to take time out of their day to sit. And there were no witnesses, just records. It was therefore impossible to resolve the “patient said” / “doctor said” disputes as to facts.

He tried out the old “unfair verdicts” routine:

How can we make our tort outcomes more predictable, more equitable, and fairer? Litigation was designed to promote fairness, but today, civil litigation is more like the lottery: a few people get a windfall of cash, but most lose out.

Well, that is why we have judges that can toss out arbitrary and unfair verdicts. I’m way ahead of you on that “windfall” nonsense. See How New York Caps Personal Injury Damages.

And he trotted out the old “run it like a no-fault system” routine:

Certain classes of claims, such as those arising from cerebral palsy or birth defects, are such painful cases. And they often lead to arbitrary and unfair verdicts. Why not instead experiment with alternatives like a no-fault system where payments depend on injury, not fault? This would compensate families evenly and fairly without the expense and delays of litigation, and would remove the powerful disincentive for new doctors to become OB/GYNs.

Who said the no fault system was fair? He’s clearly never heard of sham no-fault exams by allegedly “independent” doctors that last only a few minutes and are designed with one thing only in mind from the insurance company that is paying the benefits; Find a way to cut those benefits off.

He tried out this one also: “The size of judgments, and the fact that they can be recovered even when the plaintiff is at fault, has helped drive a huge increase in tort payments.” He forgot to mention, of course, that if a plaintiff is negligent then the verdict is reduced by the same percentage amount in accordance with CPLR 1411.

But I think this was the real crux of his argument…that because the city pays a lot of money it must therefore be unfair:

Of course, the City should pay in cases where it is primarily at fault, but judgments in those cases would not amount to anywhere near the half billion dollars a year we currently pay.

This isn’t the first time I’ve heard this.  In July 2009 I systematically pulled apart a piece in Forbes that came from a fellow at the Manhattan Institute that hit this point.  If the city doesn’t compensate the victims of its negligence, of course, then that means someone else is bearing the costs. And I refer not only to the medical costs, or the economic costs from lost wages if the person works, but to the costs of the suffering involved.

By the way, Bloomberg touts Texas as a great example of tort reform, where victims get double-screwed (Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work”?)). But  when did it become  good public policy to take those that have been injured by the negligence of others and tell them they must fend for themselves?  Is that anyone’s idea of personal responsibility?  (It’s worth noting that  doctor disciplinary proceedings in Texas have more than tripled in the last ten years, a subject I’ve written about before. Is that because bad doctors see Texas as a safe haven?)

C’mon mayor, this is like shooting fish in a barrel. Don’t you have any real arguments to make?

(The WSJ also has an article on the speech, in which I am quoted from an older blog posting: Mayor: Tort Reform Would Cut Costs)

The Long Blue Line (26.2 Miles of It)

Tick tock. Tickety tock.

The moment is drawing near. New York is buzzing with thousands of runners pouring in as they prepare to run this Sunday in one of the greatest pieces of urban theatre on the planet: The New York City Marathon.

They started painting the line — a 26.2 mile long blue line stretching from Staten Island to Brooklyn to Queens to Manhattan to the Bronx and back to Manhattan — on Wednesday.

About 43,000 runners — an army on foot — will make the journey (map). If past performance is any indicator of the future, about 97% will cross the finish line in Central Park.

Want to know what’s it’s like inside the race? My Blawg Review #134 was themed on this race and can give you a sense of what it’s like to be inside of this 26.2 mile long block party.

But I confess that it’s difficult to communicate the excitement of racing through the melting pot of Brooklyn, with people jammed cheek to jowl on 4th Avenue screaming in a hundred languages at us middle-of-the-pack runners; childrens’ arms stretched to the street to slap the hands of those passing.

Or the thrill of coming down off the 59th Street Bridge into Manhattan, with its dramatic sweeping turn into the canyon of First Avenue, electric with noise. The best in the world have been known to get so juiced at the sight that they push too hard and consume the energy stores needed for later.

Or the tight, twisting confines of the closing miles in Central Park, with people exhorting you on when your brain tells you to stop.

Yeah, it’s pretty awesome. A crowd estimated at 2.5 million people. Bands galore. Even the cops and firemen cheer. It’s that kind of day.

It’s now 40 hours till they fire the canon. Tick tock. Tickety tock.

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Related:

City of NY Gets Whacked Again With Sanctions By Appellate Court

The City of New York is on a roll. But not the kind they like. After years of favorable treatment by the courts in the face of repeated discovery delays, it seems as though the appellate courts have had enough of they city’s dilatory tactics and refusal to obey court orders.

In Elias v. City of New York, the Appellate Division (First Department) hit the city yesterday for $7,500 in sanctions. According to plaintiff’s counsel, Charles Gershbaum, the city blew through five different discovery orders in this personal injury matter. Rather than simply accept the lower court’s new order (a sixth order, to comply with five old ones), an exasperated Gershbaum took the matter up to the appellate court, on the legal theory that enough is enough.

And the First Department responded by modifying the lower court order to smack down the city again.

It was just three months ago that 18 of the 20 appellate judges of this same appellate court took the City’s Corporation Counsel, Michael Cardozo, to the woodshed. They called Cardozo “imperious” and “insulting” for having published a top 10 list of recommendations on how the courts could be made more efficient and asked that “Judges must be made more accountable.” He had a variety of “performance measures” in mind.

Well, it seems that the appellate courts have performance measures in mind too, notably the lax performance of the City’s lawyers. The irony of Cardozo’s complaint was not lost on anyone.

It was only one day after Cardozo tried to spank the judiciary last December that the Second Department hit back, with its decision in Byam v. City of New York where the city’s answer was struck due to “willful and contumacious conduct” that the court inferred “from their repeated failures, over an extended period of time, to comply with the discovery orders, together with the inadequate, inconsistent, and unsupported excuses for those failures to disclose,” for a case going back to 1997.

While the decision yesterday in Elias was brief, it brought back echoes of the First Department’s letter of response to Cardozo, where the justices wrote that:

A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence.

That letter had noted that, “[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions.”

The lower court judges that handle the city parts, who hate to get reversed, are no doubt taking notice of the substantial change in tone from our appellate courts.

NY Appellate Bench Rips Cardozo in Law Journal Letter


In a stunning rebuke to NYC’s top lawyer, Michael Cardozo, 18 of the 20 justices that sit in the Appellate Division, First Department have taken him to the woodshed with a letter in the New York Law Journal coming out tomorrow (12/17/09). The response comes due to Cardozo’s attack on the state’s judiciary last week. Cardozo is now starting his third term as the city’s Corporation Counsel.

The appellate court judges are responding to Cardozo’s December 7th column on improving efficiency in the courts, a subject I wrote about a few days ago when both bench and bar came down on him hard in NYC’s Top Lawyer Gets Reamed For Inefficiency (By Both Bench and Bar).

But now it is not simply one panel of judges ripping the city for its own inefficiency, or lawyers writing letters to the paper. Now the vast majority of the appellate bench that hears NYC cases has called Carozo’s “imperious outpouring of advice” “insulting.” They went on to write, led by Presiding Justice Luis Gonzalez (pictured), that:

“We feel compelled to respond to his misguided assertions, his misplaced blame and his attacks on the state trial judges…”

The First Department hears cases from the Manhattan and Bronx courts. And the Second Department, which sanctioned the city just last week in Byam v. City of New York for a decade of delay in providing discovery, handles Queens, Brooklyn and Staten Island (as well as other downstate counties).

You could almost see the smoke pouring off the keyboards of the judges as they wrote of Cardozo regarding changes in the use of 60-day reports that judges make to track cases:

In large measure, his facile proposals amount to an echo of reforms that are under way or have already been adopted by our former and current chief judges… Every one of these items has already been implemented by the Office of Court Administration, which on a constant basis compiles and circulates large amounts of information regarding judges’ job performance.

The idea that current reports are being inaccurate implied, to the court, that some dishonesty was going on. The letter stated:

The idea that complaints must be filed with the Judicial Conduct Commission in order to ensure accuracy in 60-day reporting requirements baselessly implies that there is actually a problem with inaccuracy, an implication for which Mr. Cardozo provides no support.

After defending the trial judges against Cardozo’s charges, the appellate judges lowered the hammer on him, placing the blame for much delay and inefficiency squarely at his feet (just as this letter Helene Blank and Marc Dittenhoefer did the other day):

In fact, it is ironic that the Corporation Counsel blames the courts for a failure to deal appropriately with litigation delays, since it is the office of Corporation Counsel of the City of New York that plays a significant role in causing those undue delays. For one thing, there is always a backlog of ready city cases in the dedicated city parts, and, with each part being assigned only two city attorneys, neither plaintiffs’ attorneys nor the trial judges have the means to ensure that ready cases can proceed immediately to trial; the city alone wields that authority.

A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence (see e.g., Lewis v. City of New York, 17 Misc. 3d 559 [2007]).

What followed then was a litany of First Department cases in which the sanction of attorneys fees was imposed on the city as a result of its “inexcusably lax” responses to discovery orders.

And then a concession about city cases that all the personal injury attorneys in this town already knew, but had always been simply implied by the courts:

[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions.

Cardozo isn’t having a very good holiday season. In fact, having so many judges angry at him, I’m thinking this will be his last holiday season in his office.

It’s worth noting, however, that in an interview with the Law Journal that accompanied the letter (can’t find link), Justice Gonzalez said the First Department’s “track record of evenhandedness in our treatment of Mr. Cardozo’s client, New York City,” would continue despite the judges’ criticism. He went on to say, “The bottom line is our judges are always mindful of our ethical responsibilities and our members have always dealt with Mr. Cardozo’s client in a fair and even-handed manner and we will continue to do so.”

The Corporation Counsel has 650 attorneys working for it, and handles a wide range of legal issues on behalf of the city. Background here on Cardozo as he prepared to start his third term.

NYC’s Top Lawyer Gets Reamed For Inefficiency (By Both Bench and Bar)

You just don’t often see a city’s top lawyer get shot down so hard and so fast as we did here in New York this week. Shortly after writing a column for the New York Law Journal on inefficiencies in the court system, an appellate court struck the city’s answer in a case they were defending. The court’s extraordinary action was taken due to a decade of delay by the city’s law department in furnishing documents to the plaintiff. This was followed by a blistering letter in the paper from two of this town’s top personal injury attorneys regarding more inefficiencies by the city.

It started Monday, December 7th, when city Corporation Counsel Michael Cardozo published his version of a “Top 10″ list related to court reform. The column focused its attention on our underpaid judiciary, lambasting them with a screed focusing on a lack of efficiency from the bench with respect to motions and trials. He suggested performance goals for the judges, focused on delayed decision making, more status reports from the judges, more evaluations of judges and moving judges to understaffed parts.

Response was swift, perhaps swifter than he ever imagined, and is an instant classic with respect to throwing stones from a glass house.

Just one day later, the Appellate Division Second Department decided Byam v. City of New York, lambasting  Cardozo’s office in a false arrest and malicious prosecution case for failing to produce records that were first requested in 1997. The court, in reviewing the numerous attempts to get the documents, finally struck the answer of the city as all other sanctions would have been insufficient, saying that their “willful and contumacious conduct can be inferred from their repeated failures, over an extended period of time, to comply with the discovery orders, together with the inadequate, inconsistent, and unsupported excuses for those failures to disclose.”

And Cardozo was trying to call the judiciary inefficient?

That  was followed yesterday, December 10th,  with a letter in the New York Law Journal that eviscerated Cardozo and his office. The letter, by Marc Dittenhoefer and Helene Blank (both well-known and well-respected among bench and bar) is reprinted here with their permission, in its entirety.

While one may believe that Dittenhofer and Blank have taken great risks by having this letter published, given the substantial amount of work they do where the city is the defendant and the risk of pay-back from that office, I agree with them that such inefficiencies must be disclosed. The idea of the city’s top lawyer throwing stones at the judiciary while he can’t clean up his own house is one that can not be ignored.
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As attorneys practicing in the courts for over 30 years, we were eager to read what Michael Cardozo, our three-term Corporation Counsel had to say about the courts because, after all, one of the biggest problems we encounter on a regular basis is dealing with the Corporation Counsel’s office on almost every case in which the city is involved. We are not alone in our experiences. The court system and all litigants — plaintiffs or defendants, petitioners or respondents — have to regularly deal with the inefficient office. That is not to say that many of the women and men who toil there are not doing an excellent job, but the bureaucracy of the office
is designed to hamper, delay, sidetrack and stop the smooth and efficient progress of any lawsuit in which the city is involved. Instead, what we read was no less than a thinly veiled assault on our hard working judges and another plea for “merit selection” over election.

Mr. Cardozo would prefer that his boss have the ability to appoint all the members of the bench who will then preside over the cases that he litigates. Fortunately, that is unlikely to happen. The U.S. Supreme Court has spoken and no matter how imperfect our system is, it is in our minds preferable to one person selecting the man or woman who will ultimately decide a client’s fate.

We have seen both the good and bad in both systems and no one who practices daily in our courts believes that merit selection is only done on the merits. We were disappointed that Mr. Cardozo didn’t take the time to inform the bench and the bar of what changes he is going to make in his third term to improve his own house. Because no matter how he views Office of Court Administration, at the beginning and end of the day the elected judges are accountable to the people who elected them, but his office is accountable directly to him. We speak from experience as plaintiff’s attorneys, defendant’s attorneys and court appointed fiduciaries. Ask any judge how easy it is to get the city to comply with a court order.

While without question there have been great strides at the city’s law department to operate more efficiently, it is still impossible to obtain even the most prosaic information from the city’s counsel in the course of legitimate litigation including the names of city contractors who are responsible to both the plaintiff and the city, due to the deliberate, arcane and byzantine methods it uses to catalogue same, apparently designed to frustrate identification and retrieval.

The inordinate delay caused by the city’s presence in a case prompts plaintiff’s counsel to do anything to avoid having to sue the city, which might very well have been the plan in the first instance. Yet, however satisfying such a misdirection might be to the winning hand, such is hardly the proper way for a city to treat its citizenry. And this is not yet to mention the eve of trial witness revelations that happen constantly.

Perhaps Mr. Cardozo, who in his article talks about removing matters from the courts, can explain why the city will not participate as a litigant in mediation let alone arbitration. Is there a 60-day reporting system for his attorneys? Are they being held accountable for failing to comply with court orders and for the repercussions that follow? Are his attorneys being evaluated on their performances? Or does he just accept as we are told to accept that the volume of cases, lack of sufficient staffing and budgetary constraints make it impossible to be better than they are?

We were offended by Mr. Cardozo’s article, offended for the judges who confront unmanageable caseloads, insufficient staffing, unreal expectations from OCA and Mr. Cardozo, and who suffer from low morale because they haven’t had a pay increase in more than a decade.

We were also offended because the article was written by the three-term Corporation Counsel whose own house needs serious re-ordering. Since Mr. Cardozo has the ability to impact the way his office operates, we sincerely hope his third term is spent getting his own office better prepared. Perhaps if that’s done, just once, when a litigant asks for the information to which s/he is entitled, they can get it so they might avoid litigation and not have to sue the city to keep the statute of limitations from running out. That would be a great thing to accomplish indeed.

Helene E. Blank
Marc M. Dittenhoefer
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Full disclosure: I know both Blank and Dittenhoefer and frequently litigate against the city’s Corporation Counsel.