Friday, November 28, 2014

Tree wells, ownership, and liability.

Practice point:  Administrative Code of the City of New York § 7-210, which became effective on September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner.  However, a tree well is not part of the sidewalk for purposes of that Code section.

Student note:  Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land.

Case:  Avezbakiyev v. Champion Commons, LLC, NY Slip Op 07966 (2d Dept. 2014)

Here is the decision.

Monday's issue: The heightened pleading standard for fraud.

Thursday, November 27, 2014

Court holiday.

The courts are closed to mark Thanksgiving Day.

Tomorrow's issue:  Tree wells, ownership, and liability.

Wednesday, November 26, 2014

Medical malpractice, summary judgment, and a battle of the experts.

Practice point:  Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such conflicting expert opinions will raise credibility issues which can only be resolved by a jury.

Student note:  However, a plaintiff's expert's affidavit that is conclusory or speculative is insufficient to raise a triable issue of fact in opposition to a defendant's prima facie showing of entitlement to judgment as a matter of law in a medical malpractice action.

Case:  Barrocales v. New York Methodist Hosp., NY Slip Op 07606 (2d Dept. 2014)

Here is the decision.

Friday's issue: Tree wells, ownership, and liability.

Tuesday, November 25, 2014

A fall on the ice.

Practice point:  The Appellate Division reversed and dismissed the complaint in this action where plaintiff allegedly slipped and fell on an icy condition on defendant's property. Defendant's supervisor of grounds testified that he and his crew had shoveled snow, removed ice, and salted and sanded the parking lot after a snow fall the day before the accident, and that any icy condition was addressed. This evidence showed that defendant did not have actual or constructive notice of the icy condition.

In opposition, plaintiff presented no evidence that defendant created the condition, that it was readily apparent, or that it was present for a sufficiently long period of time so that defendant had an opportunity to remedy the alleged hazard. Nor did plaintiff describe with any specificity the alleged condition that caused him to fall, from which it might be inferred, without speculation, that it was visible and apparent, particularly in view of the testimony of the supervisor of grounds that he had cleared the area and no snow or ice remained.

Student note:  While the issue was not addressed by the motion court, the Appellate Division found no triable issue as to whether the lighting in the parking lot contributed to plaintiff's fall. The record shows that defendant's supervisor of grounds inspected the exterior lights several days prior to plaintiff's fall and found them to be functioning properly, and plaintiff did not submit any contradictory evidence.

Case:  Vidal v. City of New York, NY Slip Op 07591 (1st Dept 2014)

Here is the decision.

Tomorrow's issue:  Medical malpractice, summary judgment, and a battle of the experts.

Monday, November 24, 2014

CPLR 3103(a) and an infant plaintiff's deposition.

Practice point:  The Appellate Division determined that the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' cross motion which was for a protective order pursuant to CPLR 3103(a) preventing the infant plaintiff from being deposed. Contrary to the plaintiffs' contention, the court did not err in determining that the infant plaintiff is competent to testify without conducting a preliminary examination.

Student note:  The Appellate Division agreed with the Supreme Court's determination that, in light of the infant plaintiff's fragile condition, the parties must work with their experts to put in place guidelines so as to lessen the stress and trauma on the infant plaintiff during the deposition.

Case:  Serrano v. Lutheran Social Servs. of Metro. N.Y., Inc., NY Slip Op 07491 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A fall on the ice.

Friday, November 21, 2014

CPLR 205(a).

Practice point:  CPLR 205(a) provides that when an action is dismissed on grounds other than voluntary discontinuance, lack of personal jurisdiction, neglect to prosecute, or a final judgment on the merits, the plaintiff may bring a new action within six months of the dismissal, even though the action would otherwise be barred by the statute of limitations.

Student note:  The six-month period runs from the date of termination of the earlier action, which in this case was the entry of the order.

Case:  Ross v. Jamaica Hosp. Med. Ctr., NY Slip Op 07490 (2d Dept. 2014)

Here is the decision.

Monday's issue: CPLR 3103(a) and an infant plaintiff's deposition.

Thursday, November 20, 2014

A counterclaim to recover unpaid rent.

Practice point:  The Appellate Division determined that the Supreme Court properly denied that branch of the defendants' cross motion which was for summary judgment on their counterclaim to recover unpaid rent. Before a tenant may withhold rent, the tenant must prove actual or constructive eviction. To demonstrate constructive eviction a tenant must vacate the premises. Here, the defendants' submissions failed to demonstrate, prima facie, that the plaintiff remained in possession of the leased premises and thus, was not constructively evicted.

Student note:   A commercial tenant's obligation to pay rent is not suspended if the tenant remains in possession of the leased premises, even if the landlord fails to provide essential services.

Case:  Prakhin v. Fulton Towers Realty Corp., NY Slip Op 07487 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  CPLR 205(a)

Wednesday, November 19, 2014

Damages for a hot water burn.

Practice point:  The Appellate Division reversed, and dismissed the third-party complaint in this action for personal injuries allegedly sustained by plaintiff when she was burned by hot water while showering in the bathroom of an apartment  where third-party defendant was superintendent. Third-party defendant met its initial burden of demonstrating that it did not create or have actual or constructive notice of the alleged dangerous condition. Although third-party defendant acknowledges acting to address complaints of no heat or hot water on the upper floors of the building within two weeks of the incident which resulted in plaintiff's injuries, the undisputed evidence establishes that the domestic hot water supply system and the heating system for the building were separate, and that adjustments made by third-party defendant to the heating system would have had no effect on the domestic hot water supply system.

Student note:  Third-party plaintiff failed to present evidence that any action taken by third-party defendant caused excessively hot water. Third-party plaintiff's expert expressly stated that he did not evaluate the heating system, which was different from the domestic hot water supply system. Although he opined that leaving the domestic hot water supply system in the hands of an inexperienced person, such as third-party defendant, was dangerous and negligent, no evidence was presented that any action by third-party defendant proximately caused plaintiff's injuries or that third-party defendant was responsible for repairs to the domestic hot water supply system.

Case:  Duff v. 646 Tenth Ave., LLC, NY Slip Op 07589 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A counterclaim to recover unpaid rent.

Tuesday, November 18, 2014

Driving a vehicle without the owner's permission.

Practice point: For summary judgment on its defense that the vehicle was used without its permission, the defendant must present substantial evidence that the vehicle was used without its permission. The owner's uncontradicted testimony that the vehicle was operated without permission does not, by itself, overcome the presumption of permissive use. The question of consent is ordinarily one for the jury.


Student note:  Vehicle and Traffic Law § 388 creates a strong presumption that the driver is operating it with the owner's consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner's express or implied permission.

Case: Han v. BJ Laura & Son, Inc., NY Slip Op 07480 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Damages for a hot water burn.

Monday, November 17, 2014

An inaccurate notice of claim.

Practice point:  The plaintiff allegedly was injured when the vehicle she was driving struck a raised sewer cap. While the plaintiff's notice of claim, complaint, and bill of particulars alleged that the accident occurred on Narrows Road North at the intersection of Targee Street, an amended bill of particulars alleged that the accident occurred on Narrows Road North between Rhine Avenue and Targee Street. The Appellate Division affirmed the denial of the defendants' motion to dismiss the complaint on the ground that the notice of claim did not accurately describe the location of the accident. The defendants failed to establish that they were prejudiced by any inaccuracy in the description of the location of the accident in the notice of claim.

Student note:  Pursuant to General Municipal Law § 50-e(6), the Supreme Court had the discretion to allow the plaintiff to correct a mistake or supply an omission in the notice of claim at any time, and at any stage of the action.

Case:  Miller v. City of New York, NY Slip Op 07479 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Driving a vehicle without the owner's permission.

Friday, November 14, 2014

Striking a pleading.

Practice point:  The plaintiffs served a response to the defendant's notice for discovery and inspection, and answers to interrogatories, as they were directed to do by court order. Thereafter, they produced further documents, as set forth in a stipulation. The Appellate Division determined that, while the defendant was clearly dissatisfied with the responses to his demands, there was no showing of a pattern of willful failure to respond to discovery demands or comply with disclosure orders, so as to justify dismissing the complaint and striking the reply to counterclaims.

Student note:  The determination whether to strike a pleading lies within the sound discretion of the trial court, pursuant to CPLR 3126[3]. It is a drastic remedy that is not appropriate absent a clear showing that the failure to comply with discovery demands was willful or contumacious.

Case:  Holand v. Cascino, NY Slip Op 07474 (2d Dept. 2014)

Here is the decision.

Monday's issue:  An inaccurate notice of claim.

Thursday, November 13, 2014

Statutes of limitations for false arrest, false imprisonment, and intentional infliction of emotional distress.


Practice point: Causes of action based on false arrest and false imprisonment accrue upon release from confinement and are governed by a one-year statute of limitations, pursuant to CPLR 215[3]. The one-year statute for intentional infliction of emotional distress begins to run on the date of injury.

Student note:  Plaintiff was not entitled to a toll of the statute of limitations based on equitable estoppel as he did not allege, either in his complaint or in opposition to the defendant's motion to dismiss, any misleading conduct on the part of the defendant upon which plaintiff could have reasonably relied to delay his commencing the action.

Case:  Bellissimo v. Mitchell, NY Slip Op 07464 (2d Dept. 2014)

Here is the decision. 

Tomorrow's issue: Striking a pleading.

Wednesday, November 12, 2014

Submitting interrogatories to the jury.

Practice point: In this dental malpractice action, the plaintiff-appellant contends that the court erred in denying her request that the jury be given an interrogatory asking whether there had been a departure in the preoperative planning itself, and in the performance of the surgery, rather than just in his failure to communicate the change in plan. The Appellate Division agreed, and reversed.

While the trial court has broad discretion in deciding whether to submit interrogatories to the jury, pursuant to CPLR 4111[c], where there is sufficient evidence to support a plaintiff's cause of action pursuant to a particular theory of negligence, it is error to deny a request by the plaintiff to submit an interrogatory to the jury regarding that theory.

Student note: Where a court improperly limits a verdict sheet in this manner, a new trial is warranted, and the Appellate Division ordered one here.

Case:  Abato v. Beller, NY Slip Op 07460 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Statutes of limitations for false arrest, false imprisonment, and intentional infliction of emotional distress.

Tuesday, November 11, 2014

Court holiday.

The courts are closed to mark Veterans Day.

Tomorrow's issue:  Submitting interrogatories to a jury.

Monday, November 10, 2014

Striking a pleading for a discovery violation.

Practice point:  The Appellate Division determined that the motion court providently exercised its discretion in conditionally granting plaintiff's CPLR 3126 motion to strike the appellant's answer and third-party complaint unless she appeared for a deposition on a specified date.  The appellant repeatedly failed to comply with the discovery orders, including the failure to provide supplemental responses to certain interrogatories and to appear for a deposition. At the time that the court ordered that the parties' depositions be conducted on a specified date, two prior court-ordered deadlines had passed, and the case was almost five years old. Moreover, the appellant's excuse for failing to appear on the specified date, even though her counsel had confirmed her appearance prior to that date, was not reasonable. Furthermore, the motion court only conditionally granted that branch of the plaintiff's motion which was to strike the appellant's pleadings, and provided the appellant an additional date to appear for a deposition.

Student note:  The striking of a party's pleading is a drastic remedy only warranted where there has been a clear showing that the failure to comply with court-ordered discovery was willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time.

Case:  Gutman v. Cabrera, NY Slip Op 07328 (2d Dept. 2014)

Here is the decision.

Wednesday's issue:  Submitting interrogatories to a jury.

Friday, November 7, 2014

An injured firefighter's right of action.

Practice point:  General Municipal Law § 205-a[1] provides a right of action for firefighters who are injured "as a result of any neglect, omission, willful or culpable negligence" of the defendant "in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments."

Student note:  While the plaintiff is not required to prove such notice as would be required under a common-law theory of negligence, the statute still requires a showing that the violation was the result of the defendant's neglect, omission, willful or culpable negligence.

Case:  Desthers v. Espinal, NY Slip Op 07323 (2d Dept. 2014)

Here is the decision.

Monday's issue: Striking a pleading for a discovery violation.

Thursday, November 6, 2014

Right-of-way, negligence, and summary judgment.

 Practice point:  A driver traveling with the right-of-way may be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident. However, a driver with the right-of-way who has only seconds to react to a vehicle that has failed to yield is not comparatively negligent for failing to avoid the collision.

Student note:  Even where there is evidence that another driver involved in the accident was negligent as a matter of law due to a violation of the Vehicle and Traffic Law, the proponent of a summary judgment motion has the burden of establishing, as a matter of law, freedom from comparative negligence.

Case:  Desio v. Cerebral Palsy Transp., Inc., NY Slip Op 07322 (2d Dept. 2014)

Here is the decision.

 Tomorrow's issue: An injured firefighter's right of action.

Wednesday, November 5, 2014

Motion to vacate based on newly-discovered evidence.

Practice point:  The Appellate Division affirmed the denial of the motion to vacate on the ground of newly-discovered evidence, pursuant to CPLR 5015[a][2]. The alleged transfer of the subject mortgage, which purportedly occurred after the entry of the judgment of foreclosure and sale, is not newly-discovered evidence within the meaning of the statute.

Student note:  The court properly denied defendant's motion to renew, as he failed to offer a reasonable justification for not presenting the alleged new facts on his prior motions, pursuant to CPLR 2221[e][3].

Case:  Tribeca Lending Corp. v. Bartlett, NY Slip Op 07429 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Right-of-way, negligence, and summary judgment..

Tuesday, November 4, 2014

Court holiday.

The courts are closed for Election Day.

Tomorrow's issue:  Motion to vacate based on newly-discovered evidence.

Monday, November 3, 2014

Evidentiary materials submitted on a motion to dismiss, and dismissal on the merits.

Practice point: Where evidentiary material is submitted and considered on a 3211(a)(7) motion, and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. The motion will be denied unless it is demonstrated that what the plaintiff claims is a fact is not a fact at all, and unless there is no significant dispute regarding it.

In deciding the motion, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Student note:  A dismissal for lack of standing is not a dismissal on the merits for res judicata purposes, and neither is the striking of a complaint for noncomplance with a discovery order.

Case:  Caliguri v. JPMorgan Chase Bank, N.A., NY Slip Op 073129 (2d Dept. 2014)

Here is the decision.

Wednesday's issue: Motion to vacate based on newly-discovered evidence.