Monday, February 26, 2007

Not a bite, but two dogs and an injury nonetheless

While plaintiff was unloading his truck parked on property owned by defendant, an out-of-possession landlord, he was set upon by two dogs which were kept by the property's tenant. To escape, plaintiff scurried up the truck's ramp, fell to the ground, and was injured. Is the owner strictly liable? No, according to the Second Department, in Ali v. Weigand, decided on February 20, 2007. "To recover against a landlord for injuries caused by a tenant's dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises, (2) knew or should have known that the dog had vicious propensities, and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog." The court was satisfied with the landlord's evidence that she was unaware of the dogs' vicious propsensities.

Friday, February 23, 2007

Who got dumped?

A driver, lacking both experience behind the wheel and a license to get behind the wheel in the first place, made a left-turn at 35-40 miles per hour, and, in his words, "made the turn too wide." I guess he did! He skidded on the wet roadway and struck a dumpster which, after it was hit, ended up somewhere in the middle of the street; no telling exactly where it had been parked. The First Department granted summary judgment to the dumpster's owner, in Smalls v. AJI Industries, decided on February 22, 2007. The court found that the driver had offered nothing to show that the dumpster was parked in an unsafe location, and gave short shrift to the driver's unsupported assertion that the dumpster should have had reflecting lights.

There was a dissent, however, finding triable issues as to whether the dumpster's owner contributed to the accident "by placing a dumpster, lacking any reflectors, in a dimly lit area and in a location that a jury could find to be a traffic lane."

What do you think? Does it come down to superseding cause, pure and simple, or is there something more going on? Who got it right?

(My answer: the majority, but there is that dissent for me to think about.)

Wednesday, February 21, 2007

A summary judgment motion by any other name...

Defendant's motion for leave to renew and reargue was denied when the Second Department held that the motion was, in fact, defendant's second summary judgment motion. In Soto v. New York, decided on February 13, 2007, the court said that "defendant violated the rule against filing successive motions for summary judgment as the evidence, which derived from the deposition testimony of its own witness, and grounds submitted in the second motion, could have been submitted on the original motion."

Tuesday, February 20, 2007

What is the proper standard for determining whether an employee has effectively waived the right to a judicial forum in an employment dispute?

The proper standard is "clear and unmistakable," according to the First Department in Sum v. Tishman Speyer, decided on February 15, 2007. In granting defendant's motion to compel arbitration in a gender discrimination action brought under the New York City Human Rights Law, the court noted that "[t]he collective bargaining agreement governing plaintiff's employment contains an arbitration agreement that specifically includes within its scope gender discrimination claims under the New York City Human Rights Law. This union-negotiated waiver of plaintiff's right to a judicial forum to pursue the statutory claims here at issue is 'clear and unmistakable,' and enforceable."

Thursday, February 15, 2007

Q. Does defendant get summary judgment on these facts?

The infant plaintiff allegedly slipped and fell on a puddle of apple juice on the gymnasium floor of the defendant's premises and injured her ankle. The infant plaintiff testified at a deposition as to the size of the puddle, which was characterized by her attorney as being about the size of two legal pads. There was an apple juice box one or two feet away from the puddle, and the liquid on the floor was identical in color to the liquid on the box. She saw the box about two hours before the accident, but she only saw the liquid seconds before the accident.

The infant plaintiff was a member of the defendant's summer camp program, which provided breakfast, lunch, and snack. The infant plaintiff alleged that campers ate breakfast and snack in the gymnasium, and that the defendant was not in the habit of cleaning the gym after each meal.

On the day of the accident, the campers ate snacks on the floor, as was their custom. They played a game of tag. The accident occurred about two hours into the game of tag. Before she fell and injured herself, the infant plaintiff fell a couple of times, without sustaining an injury, over liquid on another part of the gymnasium floor. The infant plaintiff stated that defendant did not clean the gymnasium until the end of the day, and that there was "a big mess" in the gymnasium.

One of the camp supervisors stated that assistant counselors, who were teenagers, made sure that the gymnasium was clean after each meal. The janitors cleaned the gymnasium at the end of the day. The supervisor also stated that children were not allowed to play tag while they waited for their parents to arrive, and that if children were playing tag, they would have been stopped.

A. No, according to the Second Department in Rivera v. YMCA of Greater New York, decided on February 13, 2007. "A triable issue of fact exists as to when the defendant last cleaned and inspected the premises and whether it had constructive notice of the alleged hazardous condition."

Wednesday, February 14, 2007

Plaintiff may ask subway bigs: "What did you know, and when did you know it?"

In a suit stemming from a fatal train accident, in which defendant's liability is premised on allegations that defendant knew of overcrowding on the subway platform and made the condition worse by undertaking a construction project, the First Department gave plaintiff leave to take additonal depositons, in Alexopoulos v. MTA, decided on February 13, 2007. Through discovery, plaintiff had memoranda written by subway safety chiefs, and the court said plaintiff has the right to depose them. The court noted that plaintiff had "made a 'detailed showing' of the necessity for taking additional depositions, in that she demonstrated that the employees already deposed had insufficient information and there was a substantial likelihood that those sought to be deposed possess information necessary and material to the prosecution of the case."

Tuesday, February 13, 2007


On defendant's testimony that, as soon as she saw the infant plaintiff, who could not remember the accident, she hit the brakes, sounded the horn, and stopped the car, the First Department granted defendant summary judgment, in Jellal v. Brown, decided on Febuary 8, 2007. The court also cited unrefuted testimony that plaintiff had left the safety of the sidewalk, was outside the crosswalk, and moved into the car's path. However, the First Department found triable issues of fact in McFadden v. Bruno, decided on the same day. Plaintiff had been injured when she rode her bicycle into a parked car's door after defendant had opened it in the cyclist's path. In denying summary judgment, the court noted plaintiff's "contradictory statements regarding the speed at which she was traveling, as well as the conflicting testimony regarding how far the door was open when she rode into it."

Friday, February 9, 2007

Different Agency...Same Standard for Judicial Review

After being fired when she refused to teach her nutrition classes in English, plaintiff filed a claim asserting that the real reason was discrimination based on her national origin. The First Department, in Matter of Pascual v. New York State Div. of Human Rights, decided on February 8, 2007, upheld the agency's finding that plaintiff had not met her burden of proving that the stated reason for the termination was pretextual. The Court found that that the determination had "a rational basis in the record" and that it "was not abitrary or capricious." The Court noted that the agency "has broad discretion in determining the method to be employed in investigating a claim, and its determination will not be overturned unless the record demonstrates that its investigation was abbreviated or one-sided."

Tuesday, February 6, 2007

What is the standard for judicial review of an administrative decision regarding whether an apartment is rent stabilized?

A minimal showing is sufficient, according to the First Department in Matter of M & E Christopher v. NYS Division of Housing and Community Renewal, decided on February 5, 2007. "The determination that the apartments remain subject to rent stabilization had a rational basis in the record." The Court noted that the petitioner had not substantiated its claim that respondent "was an employee who was permitted to live in the apartments rent-free or that the apartments were deregulated due to the occupancy of a deregulated tenant."

Thursday, February 1, 2007

"Housekeeping to Frozen Food. Stat, more or less."

Plaintiff alleged that he had fallen over an empty merchandise cart in the frozen food aisle. Used by store employess to ferry items from the storage area to the shelves, the cart was six feet long, five feet high, and one foot wide, and it had orange bars on its sides. In Bernth v. King Kullen, decided on January 30, 2007, the Second Department dismissed the complaint because the cart was (1) open and obvious and (2) not inherently dangerous.