Friday, January 20, 2017

Force majeure clauses

Practice point:  Force majeure clauses are interpreted in accord with their purpose, which is to limit damages in a case where the reasonable expectation of the parties and the performance of the contract have been frustrated by circumstances beyond the parties' control.  When the parties themselves have defined the contours of force majeure in their agreement, those contours dictate the application, effect, and scope of force majeure.

Case:  Constellation Energy Servs. of N.Y., Inc. v. New Water St. Corp., NY Slip Op 00260 (1st Dep't January 17, 2017)

Here is the decision.

Monday's issue:  CPLR 3211 motions to dismiss.

Thursday, January 19, 2017

A traffic violation and negligence per se.

Practice point:  Vehicle and Traffic Law § 1141 provides, in pertinent part, that "[t]he driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard."  A violation of this statute constitutes negligence per se.

Case:  Al-Mamar v. Terrones, NY Slip Op 00140 (2d Dep't January 11, 2017)

Here is the decision.

Tomorrow's issue:  Force majeure clauses.

Wednesday, January 18, 2017

Summary judgment on a Labor Law 240(1) claim.

The Appellate Division reversed the order denying plaintiff's motion for partial summary judgment on liability, and granted the motion in this action to recover for personal injuries allegedly sustained when plaintiff fell from a ladder at defendant-church while performing electrical work.

Plaintiff testified that as he descended from the attic on a wooden ladder, which was permanently affixed to the wall, the ladder shifted. Specifically, plaintiff testified that as he attempted to descend the ladder, he reached for it and placed his right hand and foot on it, but it moved away from him, causing him to fall headfirst 12 to 17 feet to the choir loft below. He further testified that he did not have anything in his hands as he was coming down the ladder. According to plaintiff, the ladder was attached to the wall in a jerry-rigged fashion, connected at the top to a joist beam with grey metal wires. The ladder went up the wall of the choir loft/mezzanine to an access point for the attic of the church. The church's pastor testified that he guessed the ladder had been there since the church had been built 150 years ago.

By testifying that as he descended the ladder it shifted, causing his fall, plaintiff established a prima facie violation of the statute.  Defendant's affidavit averring that plaintiff had told his nonparty-employer that he fell when attempting to descend the ladder using one hand as he carried tools or equipment in the other and missed a rung with his free hand, failed to refute plaintiff's testimony that the ladder shifted and failed to create triable issues of fact that plaintiff's actions were the sole proximate cause of the accident. Plaintiff also denies making the statement.

The Appellate Division rejected defendant's contention that there are issues of fact as to whether plaintiff may be the sole proximate cause of the accident for failing to use the ladder, safety harness and rope provided by his employer. While the vice-president of plaintiff's employer stated in an affidavit that safety harnesses and other safety devices were available to plaintiff, the affidavit was vague as to what other safety devices were available, to what plaintiff should have attached the harness, or whether there were any available anchorage points.  In addition, defendant does not explain how a rope that was used to hoist materials to the attic where plaintiff was working could be used as a safety device.  Plaintiff's decision to use the ladder already in place cannot be the sole proximate cause of his accident where he was never instructed not to use it.

Case:  Garcia v. Church of St. Joseph of the Holy Family of the City of N.Y., NY Slip Op 00239 (1st Dep't January 12, 2017)

Here is the decision.

Tomorrow's issue:  A traffic violation and negligence per se.

Tuesday, January 17, 2017

Absolute liability under the Labor Law.

Practice point:  Once it is determined that the owner or contractor failed to provide the necessary safety devices required to give a worker proper protection, absolute liability is inescapable under § 240(1). In opposition to the motion for summary judgment, defendants must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact.

Case:  Erkan v. McDonald's Corp., NY Slip Op 00099 (1st Dep't January 10, 2017)

Here is the decision.

Tomorrow's issue:  Summary judgment on a Labor Law 240(1) claim.

Monday, January 16, 2017

Court holiday.

Tomorrow's issue:  Absolute liability under the Labor Law.

Friday, January 13, 2017

The presumption of proper service.

Practice point:  A defendant's conclusory and undocumented affidavit asserting that he had moved, when the defendant had not notified the post office of a change of address, is insufficient to rebut the presumption of proper service created by the process server's affidavit, even if that service was by nail and mail.

Case:  Wells Fargo Bank, N.A. v. Kissi, NY Slip Op 00006 (1st Dep't January 3, 2017)

Here is the decision.

Tuesday's issue:  Absolute liability under the Labor Law.

Thursday, January 12, 2017

A runaway bus.

The Appellate Division affirmed the order granting plaintiff's motion for summary judgment on  liability and dismissing the affirmative defenses alleging plaintiff's culpable conduct. The evidence showed that the owner-defendants' unoccupied bus, which the driver-defendant had parked on a sloping street, began to roll down the street after its brakes made an alleged "hissing" sound, and struck the rear of plaintiff's taxi, which was waiting at a red light about 100 feet from where the bus had been parked.  The injured plaintiff testified at his deposition that he was stopped at a red light at the intersection for 10 to 15 seconds, and that he did not hear or see the bus until it struck the back of his taxi. The bus pushed plaintiff's taxi into the crosswalk where it hit a pedestrian.

A prima facie inference of defendants' negligence is inescapable, and there is no evidence of culpable conduct on plaintiff's part.. Defendants' evidence, including the bus driver's testimony about his usual custom and practice, does not raise a triable issue of fact as to defendants' alleged lack of negligence or plaintiff's alleged culpable conduct.

Case:  Fofana v. New Jersey Tr. Corp., NY Slip Op 00073 (1st Dep't January 5, 2016)

Here is the decision.

Tomorrow's issue:  The presumption of proper service.