Friday, April 17, 2015

A Labor Law § 240(1) claim.

Practice point:  Plaintiff established his entitlement to judgment as a matter of law on his Labor Law § 240(1) claim based on his testimony that he was injured when he fell from a height of six stories when two workers standing on the ground holding ropes that were supposed to keep the scaffold he was standing on level, simultaneously loosened the ropes, causing the scaffold to shift from a horizontal to a vertical position. Plaintiff also established that his accident was caused by the lack of a guardrail on the side of the scaffold. Plaintiff was not required to show a specific defect in the safety devices since the evidence plainly established that they did not provide adequate protection from the risk of falling.

In opposition, defendants failed to raise a triable issue of fact. Although they argue that plaintiff was the sole proximate cause of his injuries, they failed to submit any admissible evidence to support their allegation that plaintiff failed to attach his safety harness to the lifeline in the proper manner.

Student note:  Even if there were admissible evidence to that effect, the scaffold fell as a result of the ropes supporting it being loosened, rendering plaintiff's alleged conduct contributory negligence which is not a defense to a Labor Law § 240(1) claim.

Case:  Guaman v 1963 Ryer Realty Corp., NY Slip Op 03039 (1st Dept.)

Here is the decision.

Monday's issue:   A question of service.

Thursday, April 16, 2015

Calculating quantum meruit compensation.

Practice point:  The award of quantum meruit compensation under 22 NYCRR 691.10(b) is not limited to a calculation based on the number of hours worked multiplied by a reasonable hourly rate, but can also be calculated as a portion of a contingent fee. In either case, the court must weigh the relevant factors, which include evidence of the time and skill required in that case; the matter's complexity; the attorney's experience, ability, and reputation; the client's benefit from the attorney's services; and the fee usually charged by other attorneys for similar services.

Student note:  An award in quantum meruit should reflect the court's assessment of the qualitative value of the services rendered, made after weighing all relevant factors considered in valuing legal services. While not binding or determinative, the court also should consider any compensation agreement between outgoing and incoming counsel.

Case:  Biagioni v. Narrows MRI & Diagnostic Radiology, P.C., NY Slip Op 02924 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:   A Labor Law § 240(1) claim.

Wednesday, April 15, 2015

Freezing rainstorm in progress.

Practice point:  The Appellate Division affirmed the dismissal of the complaint, finding that the undisputed fact that plaintiff's slip and fall occurred during a freezing-rainstorm in progress established prima facie that defendants were not negligent in failing to remove the ice on the sidewalk in front of their building on which plaintiff testified that she slipped .

The record also shows that, on the day of the accident, defendants' maintenance staff followed its regular protocol for clearing newly fallen snow and ice from the sidewalk and the building's entrance area at 6 a.m. and again at 7 a.m., before the start of the school day.  While plaintiff contends that in clearing the sidewalk defendants created a hazardous condition or exacerbated a natural hazard created by the storm, she submitted no evidence to support her contention.

Student note:  Plaintiff did not raise a material fact issue by pointing to the inconsistent testimony of a maintenance worker as to whether salt was used on the sidewalk before plaintiff's fall, as plaintiff failed to explain how using or not using salt could have created or exacerbated the naturally occurring ice condition.

Case:  Sevilla v. Calhoun School, Inc., NY Slip Op 03030 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Calculating quantum meruit compensation.

Tuesday, April 14, 2015

Enforcing a stipulation.

Practice point:  The Appellate Division affirmed the granting of plaintiff's motion to enforce the stipulation, which did not contain any provision requiring plaintiff to make payments on the mortgage or water bill. A court may not imply a term where the circumstances of the contract's formation indicate that, when the contract was made, the parties must have foreseen the contingency at issue and the agreement can be enforced according to its terms. Here, the underlying controversy between the parties involved defendant's claim that plaintiff failed to make mortgage and other payments. When the parties entered into the stipulation, they must have foreseen that contingency..

Plaintiff's motion papers established that defendant failed to respond to an offer to purchase the property and, therefore, established that defendant breached the stipulation.  Defendant failed to show that plaintiff breached the stipulation, and did not proffer sufficient cause to invalidate the agreement, such as fraud, collusion, mistake, or accident.

Student note:  A stipulation of settlement is a contract, enforceable according to its terms. When a court enforces a stipulation of settlement, it must effectuate the parties' intent. As with any contract, where the terms of a stipulation of settlement are unambiguous, the Supreme Court must give effect to the parties' intent based upon the plain meaning of the words used by the parties.

Case:  Bethea v. Thousand, NY Slip Op 02923 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Freezing rainstorm in progress.

Monday, April 13, 2015

Constructive notice of a hazardous lead-paint condition.

Practice point:  Constructive notice of a hazardous lead-based paint condition may be established by proof that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs; (2) knew that the apartment was constructed at a time before lead-based interior paint was banned; (3) was aware that paint was peeling on the premises; (4) knew of the hazards of lead-based paint to young children; and (5) knew that a young child lived in the apartment.

Student note:  Under New York common law, a landowner has a duty to maintain the premises in a reasonably safe condition.   For a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected.

Case:  Greene v. Mullen, NY Slip Op 02729 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Enforcing a stipulation.

Friday, April 10, 2015

Leave to amend the complaint to assert malicious prosecution.

Practice point:  The Appellate Division affirmed the denial of plaintiff's motion to amend the complaint to assert a cause of action alleging malicious prosecution.  As the proposed cause of action failed to plead the required element of interference with person or property, it was palpably insufficient.

Student note:  In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit.

Case:  Galanova v. Safir, NY Slip Op 02723 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Constructive notice of a hazardous lead-paint condition.

Thursday, April 9, 2015

The arbitrability of a fee dispute.

Practice point:  The Appellate Division affirmed the Supreme Court's conclusion that the plaintiff could not seek de novo review on the merits of an attorney-client fee dispute that was previously submitted for arbitration. Under the terms of the parties' retainer agreement and the Rules of the Chief Administrator of the Courts, the plaintiff's election to resolve the fee dispute by arbitration is binding upon both attorney and client, and reviewable pursuant to CPLR article 75.  The Appellate Division found nothing in the record to supports the plaintiff's contention that the parties modified the retainer agreement, or elected to proceed to arbitration in a manner that was inconsistent with the retainer agreement or 22 NYCRR Part 136.

Student note:  A challenge to the confirmation of an arbitration award requires a showing that the arbitrators exceeded their power or so imperfectly executed the arbitration that a final and definite award upon the submitted matter was not made, pursuant to CPLR 7511[b][iii].

Case:  Dermigny v. Harper, NY Slip Op 02721 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Lave to amend the complaint to assert malicious prosecution.