New York Law Review

Tag: 1987

  • Bernstein v. City of New York, 69 N.Y.2d 795 (1987): Municipality’s Duty to Inspect Water Mains

    Bernstein v. City of New York, 69 N.Y.2d 795 (1987)

    A municipality is not an insurer of its water main system and has a duty to inspect a utility’s activities near water mains only if those activities are considered dangerous or if there is a warning of a possible defect.

    Summary

    This case addresses the scope of a municipality’s duty to inspect and maintain its water mains. The Court of Appeals held that the City of New York was not liable for damages caused by a water main break because the installation of nearby utility ducts by Consolidated Edison (Con Ed) in 1926 did not pose an obvious risk to the water mains, and the city had no warning of a possible defect requiring it to conduct tests for anaerobic bacterial corrosion. The court reasoned that imposing a duty to conduct widespread testing without such a warning would be an onerous burden.

    Facts

    In 1926, Consolidated Edison (Con Ed) installed ducts near the City of New York’s water mains. A water main subsequently broke, causing damage. The plaintiffs claimed the city was negligent in failing to maintain and inspect its water mains, particularly in light of Con Ed’s excavation and the potential for anaerobic bacterial corrosion.

    Procedural History

    The lower court’s decision was appealed to the Appellate Division. The Appellate Division’s order was appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the City of New York had a duty to inspect its water mains at the time Consolidated Edison installed ducts nearby in 1926.
    2. Whether the City of New York was negligent in failing to conduct tests to discover anaerobic bacterial corrosion in its water mains.

    Holding

    1. No, because the installation of pipes by trained utility employees ordinarily poses no risk to existing water mains.
    2. No, because unless there is some warning of a possible defect, the public or private supplier of water is not obligated to tear up the streets to inspect its pipes; the city had no such warning.

    Court’s Reasoning

    The court relied on the principle that while a municipality is responsible for maintaining and repairing its water mains, it is not an insurer of its system, citing Jenney v. City of Brooklyn, 120 N.Y. 164. Regarding the duty to inspect, the court referenced De Witt Props. v. City of New York, 44 N.Y.2d 417, stating that the city has a duty to inspect a utility’s activities only if those activities can be considered dangerous. Because Con Ed’s duct installation posed no obvious risk, the city had no duty to inspect at that time.

    Regarding the claim of negligence for failing to conduct tests for anaerobic bacterial corrosion, the court again cited De Witt Props. v. City of New York, stating, “unless there is some warning of a possible defect the public or private supplier of water is not obligated to tear up the streets to inspect its pipes.” While the city could have conducted tests without tearing up the streets, the procedure would have been onerous, requiring drilling test holes along thousands of miles of pipelines and analyzing soil samples. The court found that imposing such a burden without a significant warning of a possible defect was neither necessary nor desirable. Since there was no warning, the city had no duty to conduct tests.

  • Hodes v. Axelrod, 70 N.Y.2d 364 (1987): Waiver of Collateral Estoppel Defense

    Hodes v. Axelrod, 70 N.Y.2d 364 (1987)

    A defense based on collateral estoppel is waived if not raised in a responsive pleading or a pre-answer motion, and the decision to grant leave to amend an answer to include such a defense is within the trial court’s discretion.

    Summary

    This case addresses the issue of waiving the defense of collateral estoppel and the trial court’s discretion in allowing amendment of pleadings. The defendants, having failed to assert collateral estoppel in their initial pleadings or pre-answer motion, attempted to raise it during trial. The trial court denied their motion to amend the answer. The Court of Appeals affirmed, holding that the defense was waived due to the defendants’ delay in raising it. The court emphasized judicial economy and fairness to the plaintiff as key considerations in upholding the trial court’s discretionary decision.

    Facts

    The specific facts underlying the plaintiff’s claim are not detailed in this decision. The relevant facts pertain to the defendant’s procedural actions: The defendants did not raise the defense of collateral estoppel in their initial answer or in a motion prior to filing the answer. During the trial, after the plaintiff had presented most of their evidence, the defendants moved to amend their answer to include the defense of collateral estoppel.

    Procedural History

    The trial court denied the defendant’s motion to amend their answer to include the collateral estoppel defense. The Appellate Division affirmed the trial court’s decision. The New York Court of Appeals then reviewed the case.

    Issue(s)

    1. Whether the defense of collateral estoppel is waived if not raised in a responsive pleading or a motion made before the service of the responsive pleading is required, as per CPLR 3211(e)?

    2. Whether the trial court abused its discretion by denying the defendants’ motion to amend their answer to include the defense of collateral estoppel after the plaintiff had presented nearly all of their evidence?

    Holding

    1. Yes, because CPLR 3211(e) explicitly states that a defense based upon collateral estoppel is waived unless raised in a responsive pleading or a pre-answer motion.

    2. No, because the decision to grant or deny leave to amend an answer is within the trial court’s discretion, and considering the purpose of collateral estoppel (conserving resources) and the defendants’ delay, the trial court’s decision was not an abuse of discretion.

    Court’s Reasoning

    The Court of Appeals based its decision on the plain language of CPLR 3211(e), which mandates that the defense of collateral estoppel must be raised in the initial pleadings or a pre-answer motion to avoid waiver. The court emphasized that the purpose of collateral estoppel is to conserve judicial resources and protect litigants from repetitive litigation, citing Gilberg v. Barbieri, 53 N.Y.2d 285, 291. By waiting until trial to raise the issue, the defendants undermined this purpose. The court also highlighted the trial court’s broad discretion in deciding whether to allow amendments to pleadings. Given the timing of the motion (late in the trial, after the plaintiff had presented nearly all evidence), the court found no abuse of discretion in denying the amendment. The court stated, “Since one of the purposes upon which the doctrine of collateral estoppel is premised is to conserve the resources of the courts and litigants and since defendants failed to move to amend their answer until plaintiff had presented nearly all his evidence, we cannot say, as a matter of law, that the trial court, in denying the motion, abused its discretion.”

  • Addesso v. Shemtob, 70 N.Y.2d 900 (1987): Waiving Jurisdictional Defense Through Pre-Answer Motion

    Addesso v. Shemtob, 70 N.Y.2d 900 (1987)

    A defendant waives the defense of lack of personal jurisdiction by making a pre-answer motion under CPLR 3211(a) without including the jurisdictional objection, even if the motion is later deemed abandoned due to failure to submit an order.

    Summary

    This case addresses the waiver of a personal jurisdiction defense in New York civil procedure. The defendant, Shemtob, made a pre-answer motion to dismiss but failed to include a challenge to personal jurisdiction. Although he argued the motion was abandoned, the Court of Appeals held that by making any CPLR 3211 motion without raising his jurisdictional defense, the defendant waived that defense, regardless of whether the initial motion was ultimately perfected. The court emphasized preventing defendants from strategically delaying jurisdictional challenges.

    Facts

    The plaintiffs, Addesso, sued the defendant, Shemtob. Shemtob made a pre-answer motion to dismiss under CPLR 3211(a)(7) for failure to state a cause of action. However, he did not include a challenge to personal jurisdiction in this motion. Under the rules of the Supreme Court of Kings County, failure to submit an order after a motion constitutes abandonment of the motion. Shemtob asserted that his failure to submit the order meant the motion was a nullity.

    Procedural History

    The plaintiffs moved to strike the affirmative defense of lack of personal jurisdiction. Special Term’s decision regarding the waiver of personal jurisdiction was not explicitly stated. The Appellate Division ruled on the issue. The New York Court of Appeals reversed the Appellate Division’s order, granted the plaintiffs’ motion to strike the affirmative defense, and answered the certified question in the negative.

    Issue(s)

    Whether a defendant waives the affirmative defense of lack of personal jurisdiction by making a motion under CPLR 3211(a) without including the jurisdictional objection, even if the defendant claims the motion was abandoned due to failure to submit an order as per local court rules.

    Holding

    Yes, because CPLR 3211(e) is designed to prevent a defendant from strategically delaying a jurisdictional challenge. By making any motion under 3211 without raising the jurisdictional defense, the defendant waives that defense.

    Court’s Reasoning

    The Court of Appeals reasoned that CPLR 3211(e) aims to prevent defendants from wasting the court’s and the plaintiff’s time by bringing piecemeal motions. The statute requires defendants to consolidate all defenses under CPLR 3211, including jurisdictional ones, into a single motion. The court stated that “[t]he purpose of the waiver provision of CPLR 3211 (subd [e]) is to prevent the defendant from wasting both the “court’s or the plaintiff’s time on any 3211 motion on any ground at all unless on that motion he joins his jurisdictional ground”.” The court rejected the defendant’s argument that the motion was a nullity due to his failure to submit the order, stating that the defendant’s self-serving act of failing to enter the order cannot contravene the legislative purpose of CPLR 3211(e). The court emphasized that the issue, although not raised at Special Term, was properly before the Court of Appeals because it was presented on the record, raised at the Appellate Division, and was conclusive.