Wednesday, December 31, 2014

A fall on the stairs, and summary judgment denied.

Practice point:  Defendant failed to eliminate triable issues of fact as to whether it had constructive notice of the allegedly dangerous condition for a sufficient length of time before the accident to have permitted it to discover and remedy it.  In support of its motion, defendant submitted a transcript of plaintiff's deposition testimony, in which she stated, in response to a question asking her to identify the cause of the fall, that the subject stairs were shaky and the carpet was loose. So, contrary to defendant's contention, plaintiff sufficiently identified the cause of the fall. In addition, plaintiff testified that the stairs had been shaky for years and that she complained about the stairs to her supervisor two or three years before the accident.

Student note:  Although defendant also submitted transcripts of the superintendent's and porter's deposition testimony indicating that they never noticed any dangerous condition, this simply raised a question of credibility which may not be resolved on a motion for summary judgment.

Case:  Beharovic v. 18 E. 41st St. Partners, Inc., NY Slip Op 08946 (2d Dept. 2014)

Here is the decision.

 Friday's issue: Defendant's summary judgment motion in a legal malpractice action.

Tuesday, December 30, 2014

A slip-and-fall on water in the lobby.

Practice point:  In affirming the dismissal of the complaint, the Appellate Division noted that the defendants were not required to cover all of the floor with mats or continuously mop up all moisture resulting from the tracked-in rain.

Student note:  A general awareness that water might be tracked into a building when it rains is insufficient to impute to the defendants constructive notice of the particular dangerous condition.

Case:  Aguila v. Fox Hills Partners, LLC, NY Slip Op 08945 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A fall on the stairs, and summary judgment denied.

Monday, December 29, 2014

Dismissal of Labor Law claims.

Practice Point:  The Appellate Division reversed, and dismissed the complaint in its entirety, in this action where plaintiff was injured when he stepped into a hole on the flatbed trailer on which he was working.

Defendants demonstrated their prima facie entitlement to summary judgment dismissing the § 200 claims, as the uncontroverted evidence shows that defendants neither supervised or controlled plaintiffs' work, and that they had no actual or constructive notice of the hole in the flatbed trailer.

As for the § 240(1) claim, as plaintiff was working on a flatbed trailer, he was not exposed to any gravity-related risk arising from his work.  In fact, there is nothing in the record as to the manner of safety device that should have been provided to plaintiff.

While plaintiffs submitted in their pleadings and bills of particulars at least a dozen specific Industrial Code violations in support of their § 241(6) claim, only two were contested on appeal, and so the remainder are deemed abandoned and dismissed.

Plaintiffs allege a violation of Industrial Code § 23-1.7(b)(1)(i), which pertains to hazardous openings. However, that regulation has been construed to apply to openings that persons can fall through in their entirety. The hole at issue here does not meet this definition.

Industrial Code § 23-9.2(a) pertains to power-operated equipment. However, the flatbed trailer at issue here is not a piece of power operated equipment, and its attachment to a truck does not transform it into such.

Student note: As a result of the dismissal of the complaint in the entirety, plaintiff's spouse has no derivative claims.

Case:  Brown v. New York-Presbyterian HealthCare Sys., Inc., NY Slip Op 08912 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A slip-and-fall on water in the lobby.

Friday, December 26, 2014

Snow, ice, and a homeowner's liability.

Practice point:  Owners of owner-occupied single-family homes are exempt from liability imposed pursuant to section 7-210(b) of the Administrative Code of the City of New York for negligent failure to remove snow and ice from the abutting public sidewalk. However, they can be held liable where they, or someone on their behalf, undertook snow and ice removal efforts which made the natural conditions more hazardous.

Student note:  A property owner that elects to engage in snow removal must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm.

Case:  Arashkovitch v. City of New York, NY Slip Op 08793 (2d Dept. 2014)

 Here is the decision.

Monday's issue: Dismissal of Labor Law claims.

Thursday, December 25, 2014

Court holiday.

The courts are closed to mark Christmas Day.











Tomorrow's issue: Snow, ice, and a homeowner's liability.

Wednesday, December 24, 2014

Summary judgment in a personal injury action.

Practice point:  To prevail on the motion on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but also that he or she was free from comparative fault.

Student note:  The movant bears the initial burden of establishing prima facie entitlement to such relief, tendering sufficient evidence to eliminate any material issues of fact from the case.

Case:  Anjum v. Bailey, NY Slip Op 08792 (2d Dept. 2014)

Here is the decision.

Friday's issue:  Snow, ice, and a homeowner's liability.

Tuesday, December 23, 2014

A time-barred claim and equitable estoppel.

Practice point:  The Appellate Division determined that plaintiffs' claims for conversion and tortious interference with contract against the individual defendant, relating to unpaid producer royalties allegedly due to plaintiffs since 1992, were properly dismissed as time-barred. Plaintiffs cannot argue that defendant should be equitably estopped from raising the statute of limitations defense since the issue was not raised before the motion court. In any event, the argument is unavailing because plaintiffs rely on the same acts that form the basis of their underlying claims.

Student note:  For equitable estoppel to apply, plaintiffs must establish that defendants' subsequent and specific actions somehow kept them from timely bringing suit.

Case:  Stroud Prods. & Enters., Inc v. BMG Music, NY Slip Op 08778 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Summary judgment in a personal injury action.

Monday, December 22, 2014

New York's application of res judicata.

Practice point:  New York has adopted the transactional analysis approach in deciding the application of the doctrine of res judicata. Under this analysis, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.

Student note:  It is not always clear whether particular claims are part of the same transaction for res judicata purposes. New York uses a pragmatic' test to make this determination, analyzing whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage. One linchpin of res judicata is an identity of parties actually litigating successive actions against each other, and the doctrine applies only when a claim between the parties has been previously brought to a final conclusion.

Case:  Specialized Realty Servs., LLC v. Maikisch, NY Slip Op 08627 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A time-barred claim and equitable estoppel.

Friday, December 19, 2014

A claim for common-law negligence.

Practice point:  Even when negligence and injury are both properly found, the negligent party may be held liable only where the alleged negligence is a proximate cause of the injury.  Generally it is for the jury to determine the issue of causation. However, on a motion for summary judgment, the court will decide, as a matter of law, whether a prima facie case of negligence has been established.

Student note: The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty constituted a proximate cause of the injury.

Case:  Roberson v. Wyckoff Hgts. Med. Ctr., NY S.lip Op 08622 (2d Dept. 2014)

Here is the decision.

Monday's issue: New York's application of res judicata.

Thursday, December 18, 2014

A physician's motion to dismiss a medical malpractice claim.

Practice point:  The physician-defendant's bare allegations which do not refute the specific factual allegations in the bill of particulars are insufficient to establish entitlement to judgment as a matter of law.

Student note:  A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no deviation or departure or that any alleged deviation or departure was not a proximate cause of the plaintiff's injuries.

Case: Reiss v. Sayegh, NY Slip Op 08619 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A claim for common-law negligence.

Wednesday, December 17, 2014

A collision with an unmarked police car.

Practice point:  The Appellate Division affirmed the granting of the municipal defendant's motion for summary judgment in this action involving a collision between an unmarked police vehicle and a taxi.

The police vehicle was an authorized emergency vehicle performing an emergency operation, namely, pursuing a traffic violator, and its operator was authorized to proceed through the red light, once it slowed down, pursuant to Vehicle and Traffic Law §§ 101, 114-b), and 1104 [a],[b][2]. In order to hold the municipal defendants liable, a plaintiff must demonstrate that the officer driving the police vehicle acted with reckless disregard for the safety of others, which requires a showing that he has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome.

Here, the officer's uncontroverted testimony was that he came to a complete stop prior to entering the intersection. The fact that he looked in the direction of, but did not see, the approaching taxi did not render his conduct reckless.

Student note:  Issues of fact as to whether the police lights were on or whether the siren was activated do not require a different result. A police vehicle performing an emergency operation is not required to activate either of these devices, in order to be entitled to the statutory privilege of passing through a red light, pursuant to Vehicle and Traffic Law § 1104[c].

Case:  Flynn v. Sambuca Taxi, LLC, NY Slip Op 08723 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A physician's motion to dismiss a medical malpractice claim.

Tuesday, December 16, 2014

A rear-end collision and a negligence claim.

Practice point:  One of several nonnegligent explanations for a rear-end collision may be a sudden stop of the lead vehicle.  However, vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the following driver, who is under a duty to maintain a safe distance between the following car and the car ahead.

Student note:  A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rear vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision.

Case:  Le Grand v. Silberstein, NY Slip Op 08608 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A collision with an unmarked police car.

Monday, December 15, 2014

A school bus company's liability for a fight on the bus.

 Practice point:  The bus defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they had no notice of any violent propensities or disciplinary problems on the part of the assailant.  The assailant's act of punching the infant plaintiff was sudden and unforeseeable, and any lack of supervision was not a proximate cause of the infant's alleged injuries.

Student note:  Like a school, a school bus company has a duty to adequately supervise children in its care, and to exercise the same degree of care toward them as would a reasonably prudent parent under similar circumstances. However, schools and school bus companies are not insurers of their students' safety. For liability to attach, they must have notice of the specific dangerous conduct so as to render the injury foreseeable, as well as a reasonable opportunity to prevent it.

Case:  Braun v. Longwood Jr. High School, NY Slip Op 08595 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A rear-end collision and a negligence claim.

Friday, December 12, 2014

Dismissal of a complaint alleging discrimination under the State and City Human Rights Laws.

Practice point:  Plaintiff failed to establish a prima facie case of discrimination under either the State or City Human Rights Laws because he failed to allege that defendants, who rejected plaintiff's screenplay submissions, were actually aware of his race. Instead, the complaint merely alleges that plaintiff sent defendants a link to a social networking site that contained his photograph, and that his photo was also available on the internet. In fact, the complaint itself suggests that defendants did not reject his screenplay submissions because of his race, but because defendants reviewed such submissions only when they were referred by a movie industry insider, and plaintiff did not know such an insider. The complaint also fails to allege discrimination under a disparate impact theory because it fails to allege any facts showing that defendants' insider-referral policy falls more harshly on black screenwriter applicants than other groups.

Student note:  Plaintiff does not adequately allege that he sought employment with defendants, as is required to support a State or City claim for unlawful discriminatory practices in employment by employers, and discrimination in an employment agency's referrals to an employer, pursuant to Executive Law §§ 296[1][a], [b] and Administrative Code §§ 8-107[1][a], [b].

Case:  Samuels v. William Morris Agency, NY Slip Op 08562 (1st Dept. 2014)

Here is the decision.

Monday's issue:  A school bus company's liability for a fight on the bus.

Thursday, December 11, 2014

A motion to strike the testimony of defendant's expert.

Practice point:  The Appellate Division affirmed the denial of plaintiff's cross motion to strike the testimony of defendant's expert concerning the cause of the decedent's death. Upon receipt of defendant's 3101(d) statement expert disclosure statement, plaintiff's only objection was that the expert's qualifications failed to include the dates of his residency, which deficiency defendant then cured. Plaintiff neither rejected the document nor made any objection to the lack of specificity regarding the cause of death.

The Appellate Division determined that, having failed to timely object to the lack of specificity in defendant's expert disclosure statement regarding the cause of the decedent's death, plaintiff was not justified in assuming that the defense expert's testimony would comport with the conclusion reached by the autopsy report. The Appellate Division further determined that  plaintiff cannot now be heard to complain that defendant's expert improperly espoused some other theory of causation for which there was support in the evidence.

There was, however, a dissent.

Student note:  CPLR 3101(d)(1) requires reasonably detailed expert disclosure of the substance of the facts and opinions on which each expert is expected to testify in order to provide the plaintiff with the defendant's theories of the case in advance of trial.

Case:  Rivera v. Montefiore Med. Ctr., NY Slip Op 08469 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal of a complaint alleging discrimination under the State and City Human Rights Laws.

Wednesday, December 10, 2014

The denial of defendant's summary judgment motion in a Labor Law § 200 action.

Practice point:  Where, as here, a plaintiff contends that an accident occurred because of a dangerous condition at the work-site, an owner moving to dismiss Labor Law § 200 and common-law negligence claims has the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of it. Defendant failed to meet that burden and the Appellate Division affirmed the motion's denial

Student note:  The failure to make a prima showing requires the motion's denial, regardless of the sufficiency of the opposition papers.

Case:  Costa v. Sterling Equip., Inc., NY Slip Op 08391 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A motion to strike the testimony of defendant's expert.

Tuesday, December 9, 2014

Reviewing a Court of Claims determination in a slip-and-fall action.

Practice point:  The Appellate Division affirmed the Court's determination that claimant failed to establish that the State created, or had actual or constructive notice of, the icy condition on a walkway at the state facility where claimant fell. The State had no more than a general awareness that icy conditions had developed on the hospital grounds, which was insufficient to constitute notice of the specific condition that caused the fall.

Student note:  In reviewing a determination made after a nonjury trial, the power of the Appellate Division is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts. In a close case, the Appellate Division will bear in mind that the trial judge had the advantage of seeing the witnesses.

Case:  Atkins v. State of New York, NY Slip Op 08387 (2d Dept. 2014)

 Here is the decision.

Tomorrow's issue:  The denial of defendant's summary judgment motion in a Labor Law § 200 action.

Monday, December 8, 2014

A Labor Law § 240(1) claim.

Practice point:  Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1).

Student note:  Labor Law § 240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks.

Case:  Garcia v. Market Assoc., NY Slip Op 08400 (2d Dept. 2014)

Here is the decision.

Monday's issue: Dismissal of a complaint alleging discrimination under the State and City Human Rights Laws.

Setting aside a jury verdict.

Practice point:  The Appellate Division affirmed plaintiff's motion, pursuant to CPLR 4404, to set aside the verdict as contrary to the weight of the evidence, and for a new trial. The Appellate Division determined that a fair interpretation of the evidence does not support the jury's finding that the defendant was not negligent. The defendant testified that, when she was stopped at the intersection, her view to her left, the direction from which the injured plaintiff was coming, was obstructed, and yet she proceeded. The fact that the defendant proceeded into the intersection without having a clear view of the traffic and without yielding the right-of-way after a stop sign demonstrated that she violated Vehicle and Traffic Law §§ 1142(a) and 1172(a). The jury could not properly disregard these violations, as they constitute negligence as a matter of law.

Student note: A jury verdict will not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence. It is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses.

Case:  Zhubrak v. Petro, NY Slip Op 08332 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Reviewing a Court of Claims determination in a slip-and-fall action.

Friday, December 5, 2014

A training injury where plaintiff had signed a release.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss this action where plaintiff allegedly sustained injuries while engaged in a personal training program, under a trainer's supervision and instruction, at a one-on-one training facility owned and operated by defendant. Plaintiff alleges that the personal trainer negligently instructed and supervised him in the lifting of an excessive amount of weight.

Plaintiff had executed a release wherein he acknowledged that there were "inherent risks in participating in a program of strenuous exercise" and released defendant from "all claims . . . which [plaintiff]...may have against [defendant] . . . for all injuries . . . which may occur in connection with my participation in the program."

However, the Appellate Division found that the language of the release does not reflect a clear and unequivocal intent to limit liability for negligence. While the release warned of the risks inherent in undergoing a strenuous exercise program, it does not exempt defendant from liability for injury which may result from its failure to use due care in its training methods.

Student note:  General Obligations Law § 5-326 does not bar enforcement of this release, as defendant's facility is an instructional, and not a recreational, one.

Case:  Kim v. Harry Hanson, Inc., NY Slip Op 08229 (1st Dept. 2014)

Here is the decision.

Monday's issue: Setting aside a jury verdict.

Thursday, December 4, 2014

A CPLR 4404(a) motion.

Practice point:  The motion here raises issues of errors in the trial court's charge and verdict sheet. In its instructions, the trial court must state the law relevant to the particular facts in issue. A set of instructions that confuses or incompletely conveys the appropriate legal principles to be applied in a case requires a new trial.

Student note: In considering such a motion, the court will decide whether substantial justice has been done, and must look to common sense, experience, and sense of fairness in deciding the motion.

Case:  Ali v. City of New York, NY Slip Op 08310 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A training injury where plaintiff had signed a release.

Wednesday, December 3, 2014

Notice in a slip and fall action

Practice point:  In support of its motion to dismiss, defendant submitted a transcript of the injured plaintiff's deposition testimony and argued that she was unable to identify the cause of her fall. However, at deposition, the injured plaintiff, with the aid of accident scene photographs, identified the uneven portion of the sidewalk abutting the liquor storefront that caused her to trip and fall. So, the Appellate Division determined that defendant failed to make a prima facie showing that the sidewalk was not in a hazardous condition and that the injured plaintiff's fall was not proximately caused by its negligence in failing to remedy the defect.

As defendant did not establish its entitlement to judgment as a matter of law, there was no need to review the sufficiency of the plaintiffs' opposition papers.

Student note:  A plaintiff's inability to identify the cause of his or her fall is fatal to the cause of action.

Case: Alayev v. Juster Assoc., LLC, NY Slip Op 08309 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A CPLR 4404(a) motion.

Tuesday, December 2, 2014

Reassignment to another Part and summary judgment.

Practice point:  The controlling preliminary conference order directed that summary judgment motions were to be submitted within 120 days of the filing of the note of issue. The matter then was reassigned to another Part, whose rules provide for a 60-day time limit. However, that did not eliminate the provision of the preliminary conference order, in the absence of a further order or directive explicitly providing for a reduced time limit, or some other direction that the time limits of the new Part's rules would supersede the preliminary conference order.

Student note:  CPLR 3212(a) provides that unless the court sets another date, a motion for summary judgment must be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.

Case:  Freire-Crespo v. 345 Park Ave. L.P., NY Slip Op 08106(1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Notice in a slip and fall action.

Monday, December 1, 2014

The heightened pleading standard for fraud.

Practice point:  The Appellate Division affirmed dismissal of the fraud claim, as plaintiff did not satisfy the heightened pleading standard under CPLR § 3016(b). Plaintiff failed to identify any allegedly false representations that defendant made with the intent to induce plaintiff's investment.

Student note:  The Appellate Division found that the fraudulent inducement claim duplicates the breach of contract claim because plaintiff has not alleged any representation that is collateral to the contract. A fraud-based claim is duplicative of breach of a contract claim when the only fraud alleged is that the defendant was not sincere when it promised to perform under the contract.

Case:  MMCT, LLC v. JTR Coll. Point, LLC, NY Slip Op 08103 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Reassignment to another Part and summary judgment.