Wednesday, September 30, 2015

A school's common law duty to supervise.

Practice point:  A school owes a common-law duty to adequately supervise its students.  However, to impose liability based on inadequate supervision, a plaintiff's injuries must have been foreseeable and proximately related to the absence of adequate supervision.

Student note:  Schools are not insurers of safety because they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another.

Case:  Binani v. City of New York, NY Slip Op 06871 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to amend, pursuant to CPLR 3025(b).

Tuesday, September 29, 2015

A legal malpractice claim.

Practice point:  The Appellate Division affirmed the granting of summary judgment to the attorney-defendants in this action where the plaintiffs alleged that the attorney-defendants represented them in a real estate venture in which the plaintiff loaned the individual defendant $600,000, and that the plaintiffs sustained damages when the the individual defendant failed to repay the loan. In support of their motion for summary judgment dismissing the complaint, the attorney-defendants established, prima facie, that even if they failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, any such failure was not a proximate cause of the plaintiffs' alleged damages when the individual defendant did not repay the loan.

Student note:  In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence. To prevail on a summary judgment motion, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements.

Case:  Antonelli v. Guastamacchia, NY Slip Op 06870 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A school's common law duty to supervise.

Monday, September 28, 2015

A negligent security claim.

Practice point:  The Appellate Division modified the Supreme Court's order and denied defendant's motion for summary judgment as to plaintiffs' negligence causes of action.  The Appellate Division found that there are triable issues of fact as to whether defendants breached their duty to take minimal security precautions to protect plaintiff's decedent from the criminal acts of third-party intruders and as to whether any such failure was a proximate cause of the attack on her. Viewing the evidence in the light most favorable to plaintiffs, there are questions of fact as to whether the lock on the building's front door, through which the assailant entered, was broken. In addition, evidence of a history of prior crimes, including assaults, in and around the building raises an issue of fact as to whether defendants' alleged negligence was a proximate cause of the attack.

The Appellate Division also found that the court abused its discretion in denying the portion of plaintiffs' cross motion seeking to preclude the deposition testimony of the assailant, who improperly terminated the deposition, thereby depriving plaintiffs of a full and fair opportunity to conduct their cross-examination.

Student note:  It was not improper for the court to address the parties' motions, made before decedent's death, in the order on appeal.  Although the court recalled and vacated its previous order, pursuant to  CPLR 1015), there was no need to renew the motions that were previously made.

Case:  Gonzalez v. 231 Ocean Assoc., NY Slip Op 06868 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A legal malpractice claim.

Friday, September 25, 2015

Labor Law § 200.

Practice point:  To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to supervise or control the methods or materials of a plaintiff's work. Where a plaintiff's injuries arise not from the manner in which the work was performed but from a dangerous condition on the premises, a defendant may be liable under the statute if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition. Where a plaintiff's injures are alleged to have been caused by defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment dismissing causes of action alleging a statutory violation must address the proof applicable to both of the foregoing liability standards.  The movant will prevail only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard.

Student note:  Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to maintain a safe construction site.

Case:  Bennett v. Hucke, NY Slip Op 06771 (2d Dept. 2015)

Here is the decision.

Monday's issue:  A negligent security claim.

Thursday, September 24, 2015

Charging a jury on comparative fault.

Practice point:  In this action for injuries allegedly sustained at the construction site by plaintiff's decedent,  the Appellate Division found that the trial court erred in charging the jury on comparative fault. Although defendants argued that the extensive debris and garbage on the floor could have easily been avoided, the jury's verdict established that defendants were responsible for keeping the area clear.  Moreover, the decedent was not obligated to clear the floor of garbage and there was no clear path that he could use. The charge was not warranted because there was no evidence of culpable conduct on decedent's part.

Student note:  The charge should be given if, based on the evidence presented at trial, there is a valid line of reasoning and permissible inferences from which rational persons can draw a conclusion of the plaintiff's negligence.

Case:  Kutza v. Bovis Lend Lease LMB, Inc., NY Slip Op 06753 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Labor Law  § 200.

Wednesday, September 23, 2015

Motions to dismiss for failure to state a claim.

Practice point:  On the CPLR 3211(a)(7) motion, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference.  Where evidentiary material is submitted and considered, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, the claim will not be dismissed.

Student note:  The court may consider any factual submissions made in opposition to a motion to dismiss in order to remedy pleading defects, pursuant to CPLR 3211[c].

Case:  Barouh v. Law Offs. of Jason L. Abelove, NY Slip Op 06769 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Charging a jury on comparative fault.

Tuesday, September 22, 2015

Preclusion of testimony as cumulative.

Practice point:  In this worksite injury case, the Appellate Division found that the testimony of plaintiff's wife and his coworker should not have been precluded, as it would have added to the testimony of other witnesses.  The coworker saw plaintiff fall, and his testimony as to the impact to plaintiff's foot could have been highly probative of plaintiff's claim that the continuing pain in his foot was caused by the accident and did not pre-exist it, as defendants argued. Further, the coworker could have testified as to the particular duties carried out by plaintiff as a heavy-construction carpenter, which would have supported plaintiff's position that as a result of his injury he could no longer perform that kind of work. Plaintiff testified about his job duties, but the coworker's status as a disinterested witness would have given his testimony added value to the jury.

The proffered testimony of plaintiff's wife was not likely to be cumulative, notwithstanding her not having asserted a derivative claim. The wife had a unique perspective on her husband's condition before and after the accident, and could have assisted the jury in further understanding the extent of his disability and of his pain and suffering.

Student note:  Testimony is properly precluded as cumulative when it would neither contradict nor add to the testimony of other witnesses.

Case:  Segota v. Tishman Constr. Corp. of N.Y., NY Slip Op 06764 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Motions to dismiss for failure to state a claim.

Monday, September 21, 2015

A client's dissatisfaction with a lawyer's stratetic choice.

Practice point:  The defendant law firm was entitled to summary judgment, as a matter of law, by demonstrating that its recommendation that plaintiffs execute a consent agreement was a reasonable strategic decision.  Defendant also demonstrated that the recommendation was made after extensive discussions with the plaintiffs, who agreed to the course of action.  In opposition, the plaintiffs raised no issue of triable fact that the recommendation was an unreasonable course of action that constituted legal malpractice.

Student note:  As a matter of law, a client's present dissatisfaction with a lawyer's strategic choice, without more, is not actionable.

Case:  Tantleff v. Kestenbaum & Mark, NY Slip Op 06720 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Preclusion of testimony as cumulative.

Friday, September 18, 2015

Setting aside a prenuptial agreement.

Practice point:  The Appellate Division affirmed the motion court's refusal to set aside the agreement, but on different grounds.  The defendant established that the parties' agreement, which is fair on its face, was not the product of fraud, duress, overreaching, or unconscionability. The plaintiff was represented by counsel of her choosing during the negotiation of the agreement.  Moreover, the agreement itself recites that the plaintiff had considered all of the facts and circumstances likely to influence her judgment, and that she entered into the agreement freely, voluntarily, and with full knowledge of its consequences. She was provided with meaningful bargained-for benefits. There is no evidence that the defendant attempted to conceal or misrepresent the nature or extent of his assets.  As the plaintiff entered into the agreement with the assistance and advice of her own attorney, she may not now complain that her interests were not adequately safeguarded.

Student note:  An agreement will not be set aside merely because, in hindsight, some of its provisions are improvident or even one-sided.

Case:  Barnes-Levitan v. Levitan, NY Slip Op 06768 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A client's dissatisfaction with a lawyer's strategic choice.

Contracts and ambiguity.

Practice Point:  The Appellate Division noted that the threshold question of whether a contract is unambiguous, and the subsequent construction and interpretation of an unambiguous contract, are issues of law.  The Appellate Division further noted that, when interpreting a contract, the court should arrive at a construction which will give fair meaning to all of the parties' language in order to reach a practical interpretation of the parties' expressions so that their reasonable expectations will be realized.  Extrinsic and parol evidence of the parties' intent may not be admitted to create ambiguity in a contract that is unambiguous on its face, but such evidence may be considered where a contract is determined to be ambiguous.

Student note:   If the contract's language is susceptible of more than one reasonable interpretation, the contract will be considered ambiguous.

Case:  NRT N.Y., LLC v. Harding, NY Slip Op 06719 (2d Dept. 2015)

Here is the decision.

Monday's issue:   Setting aside a prenuptial agreement.

Thursday, September 17, 2015

Standing to bring a legal malpractice claim.

Practice point:  The Appellate Division affirmed the denial of defendant-lawyer's motion for summary  judgment. The defendant was retained to create a trust and fund it with several insurance policies. The plaintiffs allege that the defendant allowed one of the policies to lapse due to nonpayment, and they commenced this legal malpractice action to recover the policy's face value. The defendant moved to dismiss pursuant to CPLR 3211(a), asserting, among other things, that the trustee plaintiffs lack legal standing.

The Appellate Division determined that the motion court correctly found that the trustee plaintiffs stand in a position analogous to that of an estate's personal representative, and, therefore, have the requisite privity, or a relationship sufficiently approaching privity, to maintain the action.

Student note:  Plaintiffs also raised a triable issue of fact as to the applicability of the continuous representation doctrine sufficient to toll the statute of limitations, pursuant to CPLR 203[a] and 214[6].

Case:  Ianiro v. Bachman, NY Slip Op 06709 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contracts and ambiguity.

Wednesday, September 16, 2015

Dismissal of an appeal when the plaintiff is not an aggrieved party.

Practice point:  As the order appealed from granted relief to the third-party defendant, against the defendant's third-party plaintiffs, but not against the plaintiff, the plaintiff is not aggrieved by the order appealed from and her appeal must be dismissed.

Student note:  Pursuant to CPLR 5511, an aggrieved person is one who asks for relief but that relief is denied in whole or in part, or who opposes another person's request for relief which is granted in whole or in part.

Case:  Faicco v. Mr. Lucky's Pub, Inc., NY Slip Op 06707 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Standing to bring a legal malpractice claim.

Tuesday, September 15, 2015

Schools and a negligent supervision claim.

Practice point:  The Appellate Division affirmed defendant's motion for summary judgment dismissing the complaint in this action where the infant plaintiff alleges that, when he was a seven-year-old second-grade student at a New York City public school, he suffered serious physical injuries as the result of an altercation in which a classmate caused him to strike his head against a bookcase.

The Appellate Division found no evidence that the school had notice that the plaintiff's classmate had a proclivity to engage in physically aggressive conduct. The evidence that plaintiff had complained to his teacher and others that the classmate was "picking on him" and calling him names, and that his mother had called the principal's office and reported that some unidentified boys were "picking on her son," when viewed in the light most favorable to plaintiff, shows only that the school knew that the classmate had been picking on plaintiff verbally. Knowledge of such taunting, however, did not give the school sufficiently specific knowledge or notice of prior conduct similar to the unanticipated injury-causing act by the classmate.

Student note:  While schools have a duty to adequately supervise their students, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision, unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school's liability in negligence absent actual or constructive notice of prior similar conduct.

Case:  Emmanuel B. v. City of New York, NY Slip Op 06750 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Dismissal of an appeal when the plaintiff is not an aggrieved party.

Monday, September 14, 2015

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

Practice point:  The Appellate Division determined that plaintiff is entitled to partial summary judgment on his Labor Law § 240(1) claim alleging injuries after he slipped and fell down the stairs of a temporary tower scaffold.

A plaintiff is entitled to partial summary judgment on a 240(1) claim where, as here, stairs prove inadequate to shield him against harm resulting from the force of gravity, and his injuries are at least in part attributable to the defendants' failure to take mandated safety measures to protect him against an elevation-related risk.  Plaintiff's expert opined that the stairs showed obvious signs of longstanding use, wear and tear and that a decrease in anti-slip properties was to be expected.  Given that it is undisputed that the staircase, which was a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling, plaintiff is entitled to summary judgment, whatever the weather conditions might have been.

The fact that the parties offered conflicting experts'  affidavits as to the adequacy and safety of the temporary stairs does not preclude summary judgment in plaintiff's favor.

Student note:  A fall down a temporary staircase is the type of elevation-related risk to which the statute applies, and the staircase, which had been erected to allow workers access to different levels of the worksite, is a safety device within the meaning of the statute.

Case:  O'Brien v. Port Auth. of N.Y. & N.J., NY Slip Op 06749 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Schools and a negligent supervision claim.

Friday, September 11, 2015

The emergency doctrine.

Practice point:  The doctrine holds that persons faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be held negligent if their actions are reasonable and prudent in the context of the emergency.

Here, the Appellate Division affirmed dismissal, noting that, in support of their motion, the defendants submitted the transcripts the deposition testimony of the injured plaintiff and of a nonparty witness. This testimony established that the vehicle in which the plaintiff was a passenger had been traveling behind the tractor trailer driven by the defendant, in the same lane. The tractor trailer, with its full load of gravel in the 28-foot long attached dump trailer, weighed 102,000 pounds. The vehicle moved into the lane to the left of the tractor trailer, passed the tractor trailer, and attempted to move back into the lane of the tractor trailer in order to access an exit ramp on the right. The defendant testified that he first saw the vehicle as a "blur" to his left and three seconds later, despite slamming on his brakes, the tractor trailer made contact with the vehicle when the vehicle attempted to move into his lane. The nonparty witness testified that the vehicle suddenly crossed in front of the tractor trailer, creating a "risky" situation in which an accident was "imminent."  The Appellate Division found that this evidence was sufficient to establish, prima facie, that the defendant was confronted with a sudden and unexpected circumstance not of his own making and that, under the circumstances, his actions were reasonable and prudent.

Student note:  As the affidavit of the plaintiffs' accident reconstruction expert was conclusory and speculative, it was insufficient to raise a triable issue of fact.

Case:  Bonforte v. M.K.'s Landscaping of Liberty, LLC, NY Slip Op 06702 (2d Dept. 2015)

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

Thursday, September 10, 2015

CPLR 3216 and dismissal

Practice point:  Pursuant to the statute, a court may dismiss the complaint for want of prosecution only after the court has issued an order directing, or the defendant has served the plaintiff with a written notice demanding, that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the order or demand, and also stating that the failure to comply with the order or demand will serve as the basis for a motion to dismiss the action.

Student note:  Since CPLR 3216 is a legislative creation and not part of a court's inherent power, the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the complaint.

Case:  Amos v. Southampton Hosp., NY Slip Op 06700 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  The emergency doctrine.

Wednesday, September 9, 2015

Go-karts and assumption of the risk.

Practice point:  The Appellate Division reversed the motion court and granted the defendant's summary judgment motion in this action where the plaintiff alleged injuries sustained when other go-karts bumped hers.  The Appellate Division applied the doctrine of assumption of the risk, determining that it cannot be reasonably suggested that contact between go-karts during a race is anything other than a commonly appreciated risk of go-karting.

Student note:  The Appellate Division noted that the defendant could not avoid liability based on the written waiver it asks its customers to sign.

Case:  Garnett v. Strike Holdings LLC, NY Slip Op 06694 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  CPLR 3216 and dismissal.

Tuesday, September 8, 2015

An allegation of false arrest or imprisonment, and the defense of probable cause.

Practice point:  Where the arrest is made without a warrant, the existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim.  Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed.

Student note:  To prevail on a cause of action alleging false arrest or false imprisonment, a plaintiff must prove (1) intentional confinement by the defendant, (2) of which the plaintiff was aware, (3) to which the plaintiff did not consent, and (4) which was not otherwise privileged.

Case:  Nolasco v. City of New York, NY Slip Op 06663 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Go-karts and assumption of the risk.

Monday, September 7, 2015

Court Holiday


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Tomorrow's issue:  An allegation of false arrest or imprisonment, and the defense of probable cause.

Friday, September 4, 2015

The requirements of expert testimony.

Practice point:  The Appellate Division affirmed the trial court's determination that the testimony of the plaintiff's civil engineering expert did not support the causes of action. The expert testified that his conclusions were based on reports prepared and photographs taken by others, and that he had not personally observed any of the defendants' work. The expert's testimony made clear that he did not know which contractor had performed the work that was allegedly substandard and was thus being repaired at the plaintiff's expense, as he first visited the construction site approximately 16 months after the defendants withdrew from the job. In addition, the spreadsheet prepared by the plaintiff's expert itemizing the alleged costs of the repairs was rife with inaccuracies, and the expert admitted that this spreadsheet was "flawed."

Student note:  An expert's opinion testimony must be based on facts in the record or personally known to the witness. An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion.

Case:  Johnson v. Robertson, NY Slip Op 06658 (2d Dept. 2015)

Here is the decision.

Tuesday's issue:  An allegation of false arrest or imprisonment, and the defense of probable cause.

Thursday, September 3, 2015

Personal liability for corporate violations of the Labor Law.

Practice point:  The Appellate Division reversed dismissal of the complaint, finding that, at this stage of litigation, it cannot be said that the plaintiff has failed to state a cognizable cause of action against the individual defendants for alleged violations of Labor Law §§ 191 and 195. The Appellate Division explained that, while corporate shareholders and officers generally are not personally liable for corporate violations of the Labor Law, the plaintiff alleged adequate facts to state a cause of action against each of the individual defendants in his or her distinct capacity as the plaintiff's employer within the meaning of the statute.

Student note:  On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the facts alleged in the complaint are accepted as true and are given a liberal construction to afford the pleading party every possible favorable inference, and the court's inquiry is limited to whether the pleading states any cognizable cause of action.

Case:  Cohen v. Finz & Finz, P.C., NY Slip Op 06654 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  The requirements for expert testimony.

Wednesday, September 2, 2015

Dismissal of a claim based on comity.

Practice point:  The Appellate Division affirmed the Supreme Court's determination that the adjudication of defendant's claims for compensation under employment and consulting agreements with his former employer in a winding-up proceeding that was litigated in the British Overseas Territory of Bermuda precluded the instant action against the employer, among others, to recover damages for breach of contract and fraud. The plaintiff appeared in the Bermuda proceeding by submitting his claims to the Bermuda court, and made no showing of fraud or that a public policy of this State would be violated by recognizing the Bermuda court's rejection of his claims.

Student note:  New York recognizes judgments rendered in a foreign country under the doctrine of comity, which is the equivalent of full faith and credit given by courts to judgments of other states.  According to the Appellate Division, absent some showing of fraud in the procurement of the foreign country judgment or that recognition of the judgment would do violence to a strong public policy of New York State, a party who properly appeared in the action is precluded from attacking the validity of the foreign country judgment in a collateral proceeding commenced in a New York court.

Case:  Basile v. CAI Master Allocation Fund, Ltd., NY Slip Op 06650 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Personal liability for corporate violations of the Labor Law.

Tuesday, September 1, 2015

At-will employment, termination, and fraudulent inducement claims.

Practice point:  An at-will employee who has been terminated cannot state a fraudulent inducement claim on the basis of having relied upon the employer's promise not to terminate the contract, or upon any representations of future intentions as to the duration or security of his employment.  However, where the employee alleges an injury that is separate and distinct from the termination of employment, there may be a cause of action sounding in fraudulent inducement. For the claim to be viable, the employee must allege not that his employer wrongly fired him, but that that he would not have taken the job in the first place if the true facts had been revealed to him.

Student note:  In any action to recover damages for fraud, a plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.

Case:  Laduzinski v. Alvarez & Marsal Taxand LLC, NY Slip Op 06646 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Dismissal of a claim based on comity.