Friday, February 27, 2015

A dismissed counterclaim for tortious interference with prospective economic relations.

Practice point:  The Appellate Division affirmed the dismissal of the counterclaim for tortious interference with prospective economic relations. The claim requires a showing that the interference was accomplished with malicious intent or by wrongful means. 'Wrongful means' includes physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure.

Student note:  Where the interfering conduct is a civil suit, it must be shown that the suit was frivolous.

Case:  Arnon Ltd (IOM) v. Beierwaltes, NY Slip Op 01156 (1st Dept. 2015)

Here is the decision.

Monday's issue:  A common tenancy in unequal shares.

Thursday, February 26, 2015

Attorney work product.

Practice point:  The Appellate Division found that, contrary to the plaintiff's contention, she did not meet her burden of establishing that the audio recording of an interview she conducted with the defendant prior to the commencement of the instant action constituted attorney work product. Among other things, the plaintiff failed to show that the recording contained elements of opinion, analysis, theory, or strategy.

The Appellate Division rejected the plaintiff's alternative argument that the recording constitutes trial preparation material, which is subject to a conditional privilege under CPLR 3101(d)(2).  The conclusory assertions set forth in the supporting affidavit are insufficient to meet the burden of establishing, with specificity, that the recording was prepared exclusively in anticipation of litigation.

Student note:  Pursuant to CPLR 3102(c), attorney work product, which is absolutely privileged, is generally limited to materials prepared by an attorney, while acting as an attorney, which contain the attorney's legal analysis, conclusions, theory, or strategy. The mere fact that a narrative witness statement is transcribed by an attorney does not make the statement work product.

Case:  Geffner v Mercy Med. Ctr., NY Slip Op 01411 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A dismissed counterclaim for tortious interference with prospective economic relations.

Wednesday, February 25, 2015

Summary judgment on an attorney's account stated claim.

Practice point:  The Appellate Division reversed, and granted plaintiff-attorney's motion. Plaintiff made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it entered into a retainer agreement with defendant and that defendant did not object to the invoices that were sent pursuant to that agreement.

Although defendant claims he signed the retainer agreement only in his capacity as agent and principal for nonparty LLCs, the agreement is addressed to defendant individually, and he signed it individually, not on behalf of the LLCs. Therefore, he is liable for the legal fees.

In addition, defendant did not timely object to the invoices. The parties' agreement provided that "[f]ailure to object to any bill within thirty days from the mailing shall be deemed an acknowledgment of the amount owed ...." Plaintiff sent defendant regular invoices, and defendant did not make any objections until plaintiff's commencement of a prior action. Such belated protest is insufficient to defeat summary judgment. The Appellate Division noted that the only evidence of a protest is defendant's affidavit, asserting, without any details, that he advised plaintiff that its invoices were incorrect. This is insufficient to raise a triable issue of fact.

Student note: A plaintiff does not have to establish the reasonableness of its legal services in an action for an account stated, as plaintiff's failure to object to the invoices is construed as acquiescence as to their correctness.

Case:  Mintz & Gold LLP v. Daibes, NY Slip Op 01388 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Attorney work product.

Tuesday, February 24, 2015

A plaintiff's inability to identify the cause of the fall.

Practice point:  The Appellate Division affirmed the dismissal of this slip and fall action. The defendant established its prima facie entitlement to judgment as a matter of law through the plaintiff's deposition testimony, which demonstrated that the plaintiff could not identify the cause of his fall without resorting to speculation.  In opposition, the plaintiff failed to raise a triable issue of fact.

Student note:  A plaintiff's inability to identify the cause of the fall is fatal to a claim of negligence in a slip-and-fall case because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Case:  Calciano v Tarragon Corp., NY Slip Op 01234 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment on an attorney's account stated claim.

Monday, February 23, 2015

Liability for a fall on a public sidewalk.

Practice point:  Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality, and not the abutting landowner. However, an abutting landowner will be liable to a pedestrian injured by a defect in a sidewalk where the landowner created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk.

Student note:  Administrative Code of the City of New York § 7-210, which became effective 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, this liability shifting provision does not apply to "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes."

Case:  Bisono v. Quinn, NY Slip Op 01230 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A plaintiff's inability to identify the cause of the fall.

Friday, February 20, 2015

Perfecting an appeal by appendix.

Practice point:  The appeal was dismissed because the appendix did not contain critical exhibits and material excerpts from transcripts of testimony. These omissions made it impossible for the Appellate Division  to render an informed decision on the merits.

Student note:  The appendix must contain those portions of the record necessary for the court to fully consider the issues which will be raised by the appellant and the respondent, including material excerpts from transcripts of testimony or from papers in connection with a motion.

Case:  Beizer v. Swedish, NY Slip Op 01229 (2d Dept. 2015)

Here is the decision.

Monday's issue: Liability for a fall on a public sidewalk.

Thursday, February 19, 2015

An appeal from a judgment entered upon a default.

Practice point:  No appeal lies from a judgment entered upon a default of the appealing party, pursuant to CPLR 5511.

Student note: The appeal from the intermediate order was dismissed because the right to appeal therefrom terminated with the entry of judgment.

Case:  Anonymous v Nowicki, NY Slip Op 01228 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Perfecting an appeal by appendix.

Tuesday, February 17, 2015

CPLR 3121 and a demand for a further independent medical examinations.

Practice point:  The Appellate Division reversed the granting of defendants' motion to direct plaintiff to appear for a further independent medical examination (IME) by a physician designated by defendants.

While CPLR 3121 does not limit the number of examinations to which a plaintiff may be subjected, a defendant seeking a further examination must demonstrate the necessity for it.  In addition, after a note of issue has been filed, as here, a defendant must demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify an additional examination.

Student note:  The fact that defendants' examining physician was placed on a three-year suspension subsequent to his examination of plaintiff and the filing of the note of issue does not justify an additional examination by another physician. Defendants made no showing of unusual and unanticipated circumstances, as the bill of particulars was served before the IME, and there were no allegations of new or additional injuries.

Case:  Rebollo v. Nicholas Cab Corp., NY Slip Op 00978 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: An appeal from a judgment entered upon a default.

Monday, February 16, 2015

Court holiday.

Tomorrow's issue:  CPLR 3121 and a demand for a further independent medical examination.

Friday, February 13, 2015

A motion to change venue denied.

Practice point:  The Appellate Division reversed, and denied the motion, as defendant failed to establish entitlement to a change of venue pursuant to CPLR 510(3). Defendant failed to contact purported material witnesses to determine if they were willing to testify, the substance of their testimony, or the manner in which they will be inconvenienced if they must testify in New York County.  Instead, the motion is based solely on counsel's conclusory affirmation.

Student note:  Defendant's assertion that his insufficient showing resulted from plaintiff's failure to provide defendant with HIPAA and school authorizations permitting him to contact these witnesses is unsupported by any documentation, and defendant did not explain why he did not seek to compel such discovery prior to making the motion.

Case:  Vilches v. Guadagno, NY Slip Op 00977 (1st Dept. 2015)

Here is the decision.

Tuesday's issue: CPLR 3121 and a demand for a further independent medical examination.

Thursday, February 12, 2015

Wednesday, February 11, 2015

Evidence of inspection and cleaning as it relates to constructive notice.

Practice point:  The Appellate Division reversed, and reinstated this premises liability claim. Although defendant presented evidence that it neither created nor had actual notice of the alleged condition, it failed to demonstrate that it did not have constructive notice of the condition, as defendant failed to tender any evidence establishing when the accident area was inspected and cleaned prior to the accident.

Student note:  In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of the condition.

Case:  Beri v. Chung Fat Supermarket, Inc., NY Slip Op 00837 (2d Dept. 2015)

Here is the decision.

Friday's issue:  A motion to change venue denied.

Tuesday, February 10, 2015

Supplemental bills of particulars and discovery rights.

Practice point:  After plaintiff exercised the right to serve a second supplemental bill of particulars concerning continuing disabilities in the cervical spine, defendant was entitled to newly exercise all discovery rights as to such newly alleged continuing disabilities, pursuant to CPLR 3043[b].

Student note:  Defendant's discovery rights include the right to take a further deposition, pursuant to CPLR 3106, and to notice a physical examination by a designated physician, pursuant to CPLR 3121[a]. In the absence of a showing of bias or prejudice, the further physical examination need not be conducted by the physician who conducted the initial examination.

Case:  Brown v. Brink El. Corp., NY Slip Op 00815 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Evidence of inspection and cleaning as it relates to constructive notice.

Monday, February 9, 2015

Struck while crossing in the crosswalk.

Practice point:  Plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that defendant negligently failed to yield the right-of-way, and that the injured plaintiff was free from comparative fault.  In support of their motion, plaintiffs submitted the the injured plaintiff's deposition, during which she testified that she stopped at the intersection, observed traffic and the pedestrian "WALK" signal in her favor before entering the street, and crossed within the crosswalk while the pedestrian crossing signal remained in her favor. She also testified that she was more than halfway across the street, closer to the other side and still within the crosswalk, when she was struck on the right side by the defendant's vehicle as it turned left into the intersection, causing her to fall to the ground. This testimony demonstrated that the injured plaintiff entered the intersection after exercising due care. Plaintiffs submitted the defendant's deposition testimony in which he testified that he did not remember looking for pedestrians when he was stopped on before making the left turn, he did not see the injured plaintiff until he saw her on top of his vehicle's hood even though he had an unobstructed view of the roadway, and, after the impact, the injured plaintiff slid off the front of his vehicle to the ground. Although the defendant later testified that the injured plaintiff was not within the crosswalk at the time of impact, this claim was speculative in view of his admission that he did not see the injured plaintiff until the impact had already occurred.

Student note:  To prevail on summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault, since there can be more than one proximate cause of an accident. Once the movant establishes entitlement to judgment as a matter of law, the burden shifts to the opposing party to submit sufficient evidence to raise a triable issue of fact as to the movant's comparative fault.

Case:  France Herly Bien-Aime v. Clare, NY Slip Op 00713 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Supplemental bills of particulars and discovery rights.

Friday, February 6, 2015

Contriutory negligence and summary judgment on a Labor Law claiim.

Practice point:  The Appellate Division affirmed the denial of that branch of plaintiff's motion which was for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action. While a worker's contributory negligence is not a defense to a § 240(1) claim, liability does not attach if a plaintiff's actions were the sole proximate cause of the injuries.

Here, while plaintiff made out a prima facie statutory violation, defendants produced evidence that a safety harness and line were available to plaintiff; that he knew that he was required to anchor the line on the floor; and that the anchors, harness, and line would have prevented him from falling. Defendants also produced evidence that plaintiff consciously decided not to anchor the line as instructed. Defendant's submissions were sufficient to raise a triable issue of fact as to whether plaintiff's actions were the sole proximate cause of the accident.

Student note:  The statute imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites. To prevail on the cause of action, a plaintiff must establish that there was a statutory violation which was a proximate cause of the injuries.

Case:  Bascombe v. West 44th St. Hotel, LLC, NY Slip Op 00712 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Struck while crossing in the crosswalk.

Thursday, February 5, 2015

Piercing the corporate veil.

Practice point:  A plaintiff seeking to pierce the corporate veil must demonstrate that a court in equity should intervene because, in the transaction at issue, the owners exercised complete domination over the corporation, and thereby abused the privilege of doing business in the corporate form, with a resulting injury to the plaintiff.

Student note:  The doctrine is an exception to the general rule that a corporation exists independently of its owners, who are not personally liable for its obligations, and that individuals may incorporate for the express purpose of limiting their liability.  The doctrine provides for the imposition of individual liability on owners for the obligations of their corporation in order to prevent fraud or to achieve equity.

Case:  AZTE, Inc. v. Auto Collection, Inc., NY Slip Op 00711 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Contributory negligence and summary judgment on a Labor Law claim.

Wednesday, February 4, 2015

An abutting landowner's liability for a fall on a public sidewalk.

Practice point:  The Appellate Division affirmed the granting of defendant landowner's summary judgment motion.  While the local ordinance requires an  abutting landowner to keep the sidewalk in good and safe repair, it does not specifically impose tort liability for a breach of that duty.

Student note:   Unless a statute or ordinance clearly imposes liability upon an abutting landowner, only a municipality may be held liable for the negligent failure to maintain a public sidewalk.

Case:  Ahdout v. Great Neck Park Dist., NY Slip Op 00710 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Piercing the corporate veil.

Tuesday, February 3, 2015

Summary judgment on Labor Law claims, denied in part and granted in part.

Practice point:  The Appellate Division affirmed the denial of that portion of defendants' motion seeking dismissal of plaintiff's Labor Law § 200 and common law negligence claims. There are questions of fact concerning whether the defendant property owner had actual or constructive notice of the icy condition that allegedly caused plaintiff, a core driller employed by a nonparty, to slip and fall. 

The Appellate Division affirmed the dismissal of plaintiff's Labor Law § 241(6) claim insofar as it was predicated on a violation of Industrial Code 23-1.7(d). This regulation has no application here, as plaintiff fell in a parking lot, not "floor, passageway, walkway, scaffold, platform or other elevated working surface," within the purview of 12 NYCRR 23-1.7(d).

Student note:  On the § 200 and common law negligence claims.the Appellate Division found questions of fact as to whether a geotechnical engineering firm hired to assure compliance with construction plans and specifications, had control over plaintiff's work and the work site, in which case summary judgment is precluded.

Case:  Borner v. Fordham Univ., NY Slip Op 00696 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  An abutting landowner's liability for a fall on a public sidewalk.

Monday, February 2, 2015

A successful motion for leave to file a late notice of claim.

Practice point:  The Appellate Division affirmed the granting of the motion in this action for personal injuries allegedly suffered by petitioner when he was involved in a multi-vehicle accident. Although petitioner failed to proffer a reasonable excuse for his delay in timely serving a notice, he demonstrated that respondent had actual notice of the essential facts constituting his claim. The police department's accident reports and records, which include a witness statement from a Sanitation supervisor, sufficiently connected the accident to the City's negligence in maintaining the road. As the reports and records show that the incident was caused by an icy condition on the roadway, the City was sufficiently apprised of petitioner's claim.

 Student note:  Any alleged prejudice is undermined by the police department's contemporaneous investigation, which included interviewing witnesses and taking photographs of the location as it existed at the time of the accidentEven if the City might be prejudiced by a delay in seeking witnesses who are knowledgeable about the road maintenance procedures at the time of the accident, Sanitation's road inspection and maintenance records are available.

Case:  Sosa v. City of New York, NY Slip Op 00615 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Summary judgment on Labor Law claims, denied in part and granted in part.