Friday, January 29, 2016

Disclosure regarding an expert's anticipated testimony.

Practice point:  The Appellate Division affirmed the denial of that branch of plaintiff's motion to compel defendants to provide further disclosure regarding the anticipated testimonies of their expert witnesses.  Defendants' expert disclosure statements sufficiently disclosed in reasonable detail the subject matter and the substance of the facts and opinions on which the experts were expected to testify, and a summary of the grounds for their opinions.

Student note:  There is no requirement that the expert set forth the specific facts and opinions upon which he or she is expected to testify, but, instead, only the substance of those facts and opinions.

Case:  Conway v. Elite Towing & Flatbedding Corp., NY Slip Op 00470 (2d Dept. 2016)

Here is the decision.

Monday's issue:  Unjust enrichment claims and the statute of frauds.

Thursday, January 28, 2016

Appellants who are not aggrieved by the order being appealed.

Practice point:  Where the order does not affect the rights of an appealing party, that party is not aggrieved by the order and the appeal must be dismissed.

Student note:  A party is aggrieved by an order when it directly affects that party's individual rights. A party is not aggrieved by an order which does not grant relief the party did not request.

Case:  Barrett v. Dennis Lounsbury Bldrs., Inc., NY Slip Op 00319 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Disclosure regarding an expert's anticipated testimony.

Wednesday, January 27, 2016

Comity, and foreign divorce decrees.

Practice point: Although not required to do so, New York courts generally will recognize the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of other States.  Comity extends to upholding the validity of a foreign divorce decree, absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York.

Student note:   New York courts will generally recognize all the provisions of the decree, including any agreement which may have been incorporated therein.

Case:  Badawi v. Alesawy, NY Slip Op 00317 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Appellants who are not aggrieved by the order being appealed.

Tuesday, January 26, 2016

Sanctions, and frauds on the court.

Practice point:  The Appellate Division affirmed the denial of plaintiff's motion, made only one day after the court, at oral argument, denied a motion made by plaintiff seeking nearly identical relief. The evidence does not support a finding of civil contempt against defendant, as there is no showing that defendant violated an order of the court, pursuant to Judiciary Law § 753[A].

Neither was  defendant's cross motion seeking sanctions frivolous, pursuant to 22 NYCRR 130-1.1. Although the motion court denied defendant's cross motion, it correctly admonished plaintiff for her multiple after-hours telephone calls, and for her communications threatening to report defense counsel to the disciplinary committee unless his firm withdrew as counsel.

Defendant did not commit fraud upon the court by providing it with a copy of a redacted email from plaintiff. The redactions were obvious and involved settlement negotiations.  In addition, defendant obtained an unredacted copy of the email for the court's review and read almost all of the email into the record at oral argument, except for the proffered settlement amounts.

Student note:  The Appellate Division found that discovery sanctions, such as striking defendant's answer, are unwarranted, pursuant to CPLR 3126. Although defendant failed to appear at a nonparty deposition, it contacted plaintiff in advance and advised her that the witness could not appear on the date she had selected.

Case:  Pezhman v. Chanel, Inc., NY Slip Op 00427 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Comity, and foreign divorce decrees.

Monday, January 25, 2016

The measure of damages in a fraud claim.

Practice point:  When a claim sounds in fraud, the measure of damages is governed by the "out-of-pocket" rule, which states that the measure of damages is indemnity for the actual pecuniary loss sustained as the direct result of the wrong.  In other words, damages are calculated to compensate plaintiffs for what they lost because of the fraud, not for what they might have gained in the absence of fraud.

Student note:  A claim of actual injury or damage is an essential element in any claim of fraud.

Case:  Connaughton v. Chipotle Mexican Grill, Inc., NY Slip Op 00273 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Sanctions, and frauds on the court.

Friday, January 22, 2016

"Employee," within the meaning of the Labor Law.

Practice point:  The Labor Law defines "employee" as "a mechanic, workingman or laborer working for another for hire," § 2[5], and "employed" as "permitted or suffered to work," § 2[7].  To come within the ambit of § 240, imposing absolute liability on contractors, owners, and their agents to furnish safe equipment for employees, a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by an owner, contractor or their agent.

The Appellate Division determined that plaintiff, as movant for summary judgment, met his prima facie burden of showing that he was an employee for hire, "permitted or suffered" to work at the site on the day of his accident, and defendants violated the requirements § 240, which was a proximate cause of the accident.  However, in opposition, defendants raised a triable issue of fact as to whether plaintiff had permission to perform work at the site on the day of the accident.

Student note:  Labor Law § 240(1) imposes "upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work" for failure to provide proper protection from elevation-related hazards. 

Case:  Aslam v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., NY Slip Op 00316 (2d Dept. 2016)

Here is the decision.

Monday's issue:  The measure of damages in a fraud claim.

Thursday, January 21, 2016

Bus stops.

Practice point:  The Appellate Division affirmed dismissal of the complaint based on the deposition testimony of plaintiff and her daughter, a fellow passenger, which demonstrated that the bus did not stop in a way that was unusual, violent, or of a different class from the jerks and jolts typically experienced in city bus travel.

Student note:  To establish a prima facie case of negligence against a common carrier for injuries sustained when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was unusual and violent. Proof that the stop was unusual or violent must consist of more than a mere characterization of the stop in those terms by the plaintiff.  Instead, there must be objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the defendant's negligence.

Case: Andreca v. Cash World Tours, Inc., NY Slip Op 00138 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue: "Employee," within the meaning of the Labor Law.

Wednesday, January 20, 2016

A defendant's prima facie burden on causation.

Practice point:  Defendant failed to make a prima facie showing that plaintiff's injuries were not caused or exacerbated by the alleged breach of defendants duty of care, and, thus, the burden never shifted to plaintiff on this issue.

On the motion, defendant improperly attempted to shift the initial burden to plaintiff, by challenging the existence of evidence as to causation, rather than affirmatively establishing a lack of causation, such as via an expert affidavit. Defendant argued that "[p]laintiff has failed to produce any evidence . . . suggesting that [defendant's] conduct caused her injury to worsen," and proceeded to try to poke holes in plaintiff's theory of causation.  While plaintiff's ability to establish a causal connection may be difficult, that does not establish the absence of a causal connection.

Student note:  A defendant cannot meet its burden merely by pointing out gaps in plaintiff's case.

Case:  Katz v. United Synagogue of Conservative Judaism, NY Slip Op 00094 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Bus stops.

Tuesday, January 19, 2016

An escalator accident, and summary judgment denied.

Practice point:  The Appellate Division affirmed the denial of defendant's motion for summary judgment in this action to recover damages for injuries allegedly sustained while plaintiff was riding an escalator in defendant's store.

As a property lessee and the store operator, defendant had a duty to maintain and repair the escalators. Therefore, to demonstrate its prima facie entitlement to judgment as a matter of law, defendant had to establish that it did not create the defective condition that caused the escalator to suddenly accelerate and then jerk, or have actual or constructive notice of that condition.  Defendant failed to do so. The deposition testimony of defendant's loss prevention agent failed to establish that the escalator was regularly inspected and maintained, or that defendant did not receive any prior complaints about the escalator.

Student note;  Since defendant failed to satisfy its prima facie burden, the motion is denied without consideration of the sufficiency of plaintiff's opposition papers.

Case:  Roberts v. Old Navy, NY Slip Op 09666 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A defendant's prima facie burden on causation.

Monday, January 18, 2016

Courts closed.

Tomorrow's issue:  An escalator accident, and summary judgment denied.

Friday, January 15, 2016

A Labor Law § 241(6) claim.

Practice point:  The Appellate Division reversed the motion court, and denied that branch of the defendants' motion which was for summary judgment dismissing so much of the complaint as alleged a violation of Labor Law § 241(6).

The plaintiff's statutory claim is predicated on an alleged violation of 12 NYCRR 23-1.5(c)(3), which provides that "[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged." Sections 23-9.2(a) and 23-1.5(c)(3) each set forth an action to be taken ("corrected by necessary repairs or replacement"; "repaired or restored . . . or removed") and set forth the trigger or time frame for taking such action ("upon discovery"; "immediately . . . if damaged"). Therefore, the Appellate Division held that 12 NYCRR 23-1.5(c)(3) is sufficiently concrete and specific to support the plaintiff's cause of action.

In addition, the defendants failed to eliminate all triable issues of fact as to whether the plaintiff was performing "construction work," as defined by 12 NYCRR 23-1.4(b)(13), and therefore they did not satisfy their prima facie burden as to this issue.

Student note:  The statute imposes on owners and contractors a nondelegable duty to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed.  As a predicate to the cause of action, a plaintiff must allege a violation of a concrete specification promulgated by the Commissioner of the Department of Labor in the Industrial Code.

Case:  Perez v. 286 Scholes St. Corp., NY Slip Op 09664 (2d Dept. 2015)

Here is the decision.

Tuesday's issue:  An escalator accident, and summary judgment denied.

Thursday, January 14, 2016

Default judgment denied.

Practice point:  The Appellate Division affirmed the motion court's denial of defendants' motion for a default judgment. Plaintiff's counsel asserted that the delay was due to counsel's error, and there was no evidence of prejudice to defendants.

Student note:  There is a strong public policy of resolving controversies on the merits.

Case:  Oberon Sec. LLC v. Parmar, NY Slip Op 00044 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  A Labor Law § 241(6) claim.

Wednesday, January 13, 2016

A deficient notice of claim.

Practice point:  In this action arising from plaintiff's slip and fall on liquid that was allegedly present on the step of a staircase owned and maintained by defendant, the Appellate Division affirmed dismissal of the allegations made in the supplemental bill of particulars regarding defendant's failure to provide a skid or slip-resistance surface on the stair treads, and for improperly training its employees. The notice of claim states that the accident was caused "as a result of a liquid substance" on the step and that defendant was reckless and/or negligent in its ownership, operation, design, creation, management, maintenance, contracting, subcontracting, supervision, authorization, use and control. It cannot be fairly inferred from the notice that plaintiff would later assert that the step itself was in a defective condition or that the building's porter was improperly trained.

Student note:  Plaintiff may not rely on his testimony at the General Municipal Law § 50-H hearing to rectify the deficient notice of claim, as such testimony is permitted only to clarify the location of an accident or the nature of injuries.  It may not be used to amend the theory of liability set forth in the notice of claim where, as here, an amendment would change the nature of the claim.

Case:  Lewis v. New York City Hous. Auth., NY Slip Op 00400 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Default judgment denied.

Tuesday, January 12, 2016

Workers' Compensation Benefits.

Practice point:  The Appellate Division determined that the defendant had established its prima facie entitlement to judgment as a matter of law on the basis that the exclusivity provisions of the Workers' Compensation Law barred the plaintiff from seeking a recovery in tort against it.  In opposition, the plaintiff failed to raise a triable issue of fact, and the Appellate Division reversed the motion court and dismissed the complaint.

In support of its motion to dismiss, the defendant presented evidence that the plaintiff was its employee at the time of the accident; that the accident occurred during the course of the plaintiff's employment; and that the plaintiff applied for, was awarded, and has received Workers' Compensation benefits.

Student note:  Generally, Workers' Compensation benefits are the sole and exclusive remedy of an employee against an employer for any damages sustained from injury or death arising out of and in the course of employment.

Case:  Mateo v. 1875 Lexington, LLC, NY Slip Op 09656 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A deficient notice of claim.

Monday, January 11, 2016

Restoring a case after more than one year.

Practice point:  The Appellate Division determined that the court providently exercised its discretion in granting plaintiff's cross motion to restore the case to the calendar more than one year after it had been marked off.  Plaintiff showed a meritorious cause of action, a reasonable excuse for the delay in seeking to restore the matter to the calendar, an absence of intent to abandon prosecution, and a lack of prejudice to defendant.

Student note:  The Appellate Division noted that defendant did not contest that plaintiff showed a potentially meritorious cause of action based on evidence that he broke his ankle after tripping on a broken sidewalk curb of which the City had prior written notice.

Case:  Ford v. City of New York, NY Slip Op 00007 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Workers' Compensation benefits.

Friday, January 8, 2016

Trivial defects.

Practice point:  A property owner will not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub a toe, or trip. In determining whether a defect is trivial, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect, along with the time, place, and circumstances.

Student note:  There is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable. Photographs that fairly and accurately represent the accident site may be used to establish that a defect is trivial.

Case:  Mazza v. Our Lady of Perpetual Help R.C. Church, NY Slip Op 09657 (2d Dep't 2015)

Here is the decision.

Monday's issue:  Restoring a case after more than one year.

Thursday, January 7, 2016

Calculating interest.

Practice point:  The Appellate Division affirmed the denial of former counsel's motion insofar as it sought interest to run from February 28, 2012 to the date of entry of a final judgment against nonparty current counsel.

The Appellate Division held that the Supreme Court properly declined to compute interest under CPLR 5002, as that section allows for interest from the date a verdict is rendered, or a report or decision is made, to the date of entry of a final judgment. Here, there was no verdict, report or decision; rather, by the Supreme court order entered October 18, 2011, former counsel was awarded $50,000 upon its motion for a proportional distribution of the contingency fee in the underlying personal injury action. Supreme Court correctly calculated interest pursuant to CPLR 5003, which provides that "[e]very order directing the payment of money which has been docketed as a judgment shall bear interest from the date of such docketing."

Student note:  Because CPLR 2222 directs that, upon request, "the clerk shall docket as a judgment an order directing the payment of money," the Supreme Court correctly concluded that the Clerk erred by refusing to enter the October 18, 2011 order as a judgment when asked to do so on March 19, 2014, and that interest, therefore, should be calculated from the latter date, pursuant to CPLR 5003.

Case:  Han Soo Lee v. Riverhead Bay Motors, NY Slip Op 09642 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Trivial defects.

Wednesday, January 6, 2016

Standing in a mortgage foreclosure action.

Practice point:  Where a defendant challenges the plaintiff's standing to maintain the action, the plaintiff must prove standing as part of its prima facie showing of entitlement to judgment as a matter of law.  A plaintiff establishes standing by demonstrating that it is the holder or assignee of the underlying note at the time the action is commenced.

Student note:  A plaintiff in a mortgage foreclosure action establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the defendant's default.

Case:  LNV Corp. v. Francois, NY Slip Op 09655 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Calculating interest.

Tuesday, January 5, 2016

Handrails and interior stairs.

Practice point:  The Appellate Division affirmed dismissal of the complaint in this action where plaintiff alleges injuries when he fell while ascending a two-step configuration that led from a corridor to restrooms in premises owned or operated by the various defendants.  Plaintiff relied on code provisions that do not require handrails or uniform riser heights on the stairs on which plaintiff fell, as they are not part of an "interior stair," pursuant to Administrative Code of City of NY § 27-232.

In addition, plaintiffs' expert's assertion that safe industry practice required handrails and uniform riser heights on the steps is conclusory, as it was not supported by reference to specific and applicable standards or practices.

Student note:  Given the inapplicability of the code provisions cited, plaintiffs' cross motion to amend or supplement the bill of particulars was denied.

Case:  Hernandez v. Callen, NY Slip Op 09638 (1st Dep't 2015)

Here is the decision.

Tomorrow's issue:  Standing in a mortgage foreclosure action.

Monday, January 4, 2016

Evidentiary material and motions to dismiss.

Practice point:  Pursuant to CPLR 3211(a)(7), a  court may consider evidentiary material submitted by a defendant in support of a motion to dismiss.  However, the burden never shifts to the nonmovant to rebut a defense asserted by the movant.  A plaintiff will not be penalized for not having made an evidentiary showing in support of the complaint.

Student note:  When evidentiary material is considered, and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether the plaintiff has stated one.  Unless it is shown that a material fact as claimed by the plaintiff is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the motion will be denied.

Case:  E & D Group, LLC v. Vialet, NY Slip Op 09400 (2d Dep't 2015)

Here is the decision.

Tomorrow's issue:  Handrails and interior stairs.