This piece summarizes several significant civil procedure decisions handed down by the New York Court of Appeals during its 2017-2018 term. Given the space limitations, we have addressed only a portion of the holdings in this arena in a somewhat abbreviated manner. There is something here for both the personal injury lawyer and the commercial litigator, and even some important caselaw for transactional lawyers. Our selections emphasize those decisions that are most relevant to everyday practice in the Empire State. Readers searching for a further discussion of these decisions and other recent developments in New York civil practice, including decisions from various other courts, will want to review the biannual supplement to David D. Siegel & Patrick M. Connors, New York Practice (Thomson, 6th ed. 2018), which was released in July.
Disclosure of Materials on Social Media
In personal injury litigation, social networking sites often contain a treasure trove of relevant information and dozens of reported decisions have addressed disclosure disputes involving the production of such material, with most focused on disclosure of Facebook postings. See Siegel & Connors, New York Practice §344. The Court of Appeals had its first opportunity to address the disclosure of materials posted on a plaintiff’s Facebook page in Forman v. Henkin, 30 N.Y.3d 656 (2018).
In Forman, plaintiff fell from defendant’s horse and claimed numerous injuries including “spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation.” During a deposition, plaintiff admitted that she previously had a Facebook account where she posted “a lot” of photographs of her active lifestyle before the accident, but stated she could not remember if she posted any photos thereafter. She also stated that she deactivated the account six months after the accident.
Defendant then sought an unlimited authorization to obtain plaintiff’s entire “private” Facebook account, arguing that the photographs and writings posted there satisfied the relevance standard under CPLR 3101(a). When plaintiff failed to provide the authorization, defendant moved under CPLR 3124 to compel plaintiff to comply with the request. Defendant contended that plaintiff’s Facebook postings were relevant to her claims that she could no longer cook, travel, engage in sports such as horseback riding, attend the movies or the theater, or go boating, and that the fall also diminished her “ability to read, write, word-find, reason and use a computer.”
Although social media is a 21st century phenomenon, the court addressed the problem by applying New York’s “well-established” disclosure rules under CPLR Article 31, which is now in the sixth decade of its reign. While CPLR 3101(a) requires disclosure of “all matter material and necessary to the prosecution or defense of an action,” in 1968 the court liberally interpreted “material and necessary” to include anything that is “relevant.” See Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 407 (1968).
As the Forman court noted, CPLR 3101 grants certain categories of relevant information an immunity from disclosure. CPLR 3101(b) grants absolute immunity to any information that is protected by any of the recognized evidentiary privileges, while CPLR 3101(c) grants a similar immunity to the “work product of an attorney,” which has been accorded a very narrow scope by the courts. See Siegel & Connors, New York Practice §§346-47. CPLR 3101(d)(2) grants a conditional immunity to “materials…prepared in anticipation of litigation,” commonly known as work product. See id. §348. These limitations are, however, narrowly construed to promote New York’s policy of affording liberal discovery. See, e.g., Ambac Assurance v. Countrywide Home Loans, 27 N.Y.3d 616, 624 (2016). Moreover, materials posted on a social media account are not covered by any of these three categories of immunity.
An unfortunate precedent developed in this area where a party posted information on what is called a “private” social media site, which can only be accessed by those who have been granted “friend” status by the holder of the social media account. See McKinney’s CPLR 3101 Practice Commentaries C3101:50A (“Disclosure of Materials on Social Media Sites”) (tracking the extensive case law in this area during the last decade). Many courts faced with motions to compel the production of materials posted by a plaintiff on a private social media site required the seeking party to demonstrate that information on the site contradicted the plaintiff’s claims. See, e.g., Kregg v. Maldonado, 98 A.D.3d 1289, 1290 (4th Dept. 2012).
This hurdle could be satisfied if there was material on a “public” portion of the plaintiff’s site, which could be accessed by most anyone, that conflicted with the alleged injuries. If so, the courts deemed it likely that the private portion of the site contained similarly relevant information. See Romano v. Steelcase, 30 Misc. 3d 426, 430 (Sup. Ct., Suffolk County 2010). If, however, the defendant simply claimed that information on plaintiff’s private social media site “may” contradict the alleged injuries, the disclosure request was often deemed a mere “fishing expedition” and the motion was denied. See, e.g., Tapp v. New York State Urban Dev., 102 A.D.3d 620, 621 (1st Dept. 2013).
The plaintiff sought to invoke the above precedent in Forman, but the Court of Appeals rejected the argument, noting that it would permit a party to “unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account.” Moreover, the court noted that “New York discovery rules do not condition a party’s receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information.” In sum, the standard for obtaining disclosure remains one of relevance, regardless of whether the material is in a traditional print form, such as a diary, or posted in an electronic format on a “private” Facebook page.
The Forman court recognized that a social media account holder, like any party to litigation, can seek to prevent the disclosure of sensitive or embarrassing material of minimal relevance through a motion under CPLR 3103(a). In Forman, for example, the supreme court exempted from disclosure any photographs of plaintiff on the Facebook site depicting nudity or romantic encounters. (Just how “private” was this site?)
With the Forman decision on the books, disclosure of materials on social media websites should be easier to obtain. CPLR 3101(i), which expressly allows disclosure of any picture, film or audiotape of a party, is another tool that can be used to secure materials posted on a social media site. See Siegel & Connors, New York Practice §344. The court declined to address this subdivision in Forman because neither party cited it to the supreme court and, therefore, it was unpreserved.
Moving forward, lawyers might consider requesting that their clients deactivate a social media site, as the plaintiff did in Forman, or remove certain postings from the site. Is such conduct ethical? That issue, among others, is explored in New York County Lawyers Association Ethics Opinion 745 (2013), which opines that a lawyer is permitted to advise a client to remove postings from a social media site, but cannot advise the client to destroy such information. See Siegel & Connors, New York Practice §344 (July 2018 Supplement) (discussing Opinion 745 and duty of preservation of relevant materials).
Plaintiff Is Entitled to Partial Summary Judgment on Liability without Demonstrating Freedom from Comparative Fault
In recent years, an important procedural issue has generated conflicting decisions in the appellate division, i.e., whether a plaintiff is entitled to partial summary judgment on liability even though plaintiff may be charged with some comparative fault. See Siegel & Connors, New York Practice §280. The issue also generated substantial conflict in the Court of Appeals with a 4-3 decision in Rodriguez v. City of New York, 31 N.Y.3d 312 (2018). The majority held that a plaintiff is entitled to partial summary judgment on the issue of a defendant’s liability even where the defendant has raised an issue of fact regarding plaintiff’s comparative fault. “Placing the burden on the plaintiff to show an absence of comparative fault,” the court concluded, “is inconsistent with the plain language of CPLR 1412.” That section designates comparative fault as an “affirmative defense to be pleaded and proved by the party asserting the defense.” See Siegel & Connors, New York Practice §§168E, 223. Therefore, requiring the plaintiff to prove an absence of comparative fault to establish entitlement to partial summary judgment on liability is contrary to the statutory scheme.
Examining the problem from a different perspective, it is important to note that even if a plaintiff is entirely free from any comparative fault, that does not mean she will be entitled to partial summary judgment on liability. The defendant in Rodriguez argued that, irrespective of plaintiff’s comparative fault, there were questions of fact regarding its own negligence which required the denial of the motion for partial summary judgment.
As noted by the dissent, the supreme court denied plaintiff’s motion after finding that there were triable issues of fact as to defendant’s negligence, “specifically with respect to causation and foreseeability, as well as plaintiff’s comparative fault.” Rodriguez, 31 N.Y.3d at 325 (Garcia, J. dissenting). The First Department affirmed the supreme court’s order and noted that under the facts presented, “the trier of fact could determine that defendant was free from negligence and that plaintiff was 100% at fault in causing his injuries.”
Curiously, the majority in Rodriguez expressly noted that it did not address defendant’s argument that there were questions of fact as to its negligence that warranted the denial of plaintiff’s motion for partial summary judgment. Rodriguez, 31 N.Y.3d at 328 n 2. The court remitted the case to the First Department “for consideration of issues raised but not determined on the appeal.” Rodriguez, 31 N.Y.3d at 325. That court seemingly departed from its earlier conclusions in ruling that plaintiff sufficiently demonstrated defendant’s negligence and awarded plaintiff partial summary judgment on liability. Rodriguez v. City of New York, 161 A.D.3d 575 (1st Dept. 2018).
The decision in Rodriguez constitutes a major victory for the plaintiff’s bar. The 9 percent interest offered under CPLR 5002 will begin to run in a personal injury action from the order awarding plaintiff partial summary judgment on liability. See Siegel & Connors, New York Practice § 411 (addressing the issue under heading “Category II Interest,” and noting that interest from the accrual of the claim is not available in personal injury actions). After Rodriguez, one of the major barriers to plaintiffs being awarded partial summary judgment on liability in a personal injury action has been removed.
Statute of Limitations Rulings
In 2138747 Ontario, Inc. v. Samsung C & T Corp., 31 N.Y.3d 372 (2018), the parties entered into a contract with a broadly drawn contractual choice of law provision providing for the agreement to be “governed by, construed and enforced” in accordance with New York law. One might assume that would include New York’s six-year statute of limitations for breach of contract housed in CPLR 213(2). The court held, however, that the choice of law clause at issue did not preclude the application of CPLR 202, New York’s “borrowing statute.” The “borrowing” of another jurisdiction’s statute of limitations under CPLR 202 takes place when the foreign claim accrues to a nonresident, such as the foreign corporation plaintiff in 2138747, and the statute of limitations in the venue where the claim accrued is shorter than New York’s. See Siegel & Connors, New York Practice §57. The parties agreed that the plaintiff’s claims accrued in Ontario, Canada, which would be subject to a two-year statute of limitations in that province.
Given the language in the choice of law provision in the contract and the parties’ intent to apply both the substantive and procedural law of New York to any dispute arising thereunder, the court concluded that CPLR 202 governed and required the application of Ontario’s two year-statute of limitations. That rendered the action time-barred.
In B.F. v. Reproductive Medicine Associates of New York, 30 N.Y.3d 608 (2017), the court noted that in Becker v. Schwartz, 46 N.Y.2d 401, 410 (1978), it had “recognized a new cause of action permitting parents to recover the extraordinary expenses incurred to care for a disabled infant who, but for a physician’s negligent failure to detect or advise on the risks of impairment, would not have been born.” In B.F., the issue was “whether the statute of limitations for such an extraordinary expenses claim runs from the date of the alleged negligence or the date of birth.” The Court held that “[d]ue to its unique features,…the cause of action accrues upon, and hence the limitations period runs from, the birth of the child.”
Patrick M. Connors is the Albert and Angela Farone Distinguished Professor in New York Civil Practice at Albany Law School. He is the author of Siegel & Connors, New York Practice (6th ed. 2018), which is supplemented biannually in January and July.