Friday, June 29, 2007

Plaintiff-tenant slipped and fell on debris in her building's stairwell. She testified that accumulated litter was an everyday problem in this particular stairwell because tenants used it to take their garbage bags downstairs for disposal. She said that nothing had been done to remedy this condition, even after she complained about it to the building superintendent, Rego.

Plaintiff's daughter, who also lived in the building, attested to the condition in a nonparty deposition. Another nonparty witness in the building also testified that he saw garbage on the stairways, and that the building was rarely cleaned.

Arguing that it had neither actual nor constructive notice of the condition, the landlord offered deposition testimony of one of the building's owners, indicating that he inspected the interior stairwells once a week, and denied knowledge of anyone named Rego.

The First Department denied the landlord's motion to dismiss, in Bido v. 876-882 Realty, which was decided on June 26, 2007. The court found that plaintiff's and nonparty deposition testimony had raised issues of fact as to whether the accumulation of refuse in this stairwell was a dangerous and recurring condition which caused plaintiff's injury. Importantly, the court noted that plaintiff did not have to prove that the landlord knew or should have known of the exact item of debris which caused her fall.

Thursday, June 28, 2007

Plaintiff alleged that she slipped and fell on a "shiny, slippery" floor in the south wing of the Port Authority Bus Terminal. She did not recall seeing any water or debris at the time of the fall, and the accident report stated that the area was clean and dry. In a report based on an inspection of the area almost a year after the accident, plaintiff's expert said that that the floor had been slippery because it was made of ceramic tile and was covered with a polyurethane coating. The First Department granted defendant's motion to dismiss, in Kudrov v. Laro Servs. Sys., Inc., which was decided on June 26, 2007. "Absent proof of the negligent application of wax or polish, the fact that a floor is slippery by reason of its smoothness or having been polished does not give rise to an inference of negligence." The court found evidence sufficient to demonstrate that the floor had been waxed and was dry before the area was opened to the public.

Wednesday, June 27, 2007

Claimant was injured when he fell on snow-and-ice covered steps outside the entrance to a state psychiatric facility. The Second Department rejected the state's claim of governmental immunity, in McGowan v. State of New York, which was decided on June 19, 2007. The court determined that, on these facts, the state had not been acting within its governmental function when the accident occurred. The court said that the state's snow removal operations constitute a maintenance activity, which traditionally is regarded as a proprietary function and not a governmental function.

Tuesday, June 26, 2007

Plaintiff was three months pregnant when she allegedly slipped and fell on coffee beans on the floor of defendant's supermarket. She had a miscarriage the next day and sued for the emotional distress she suffered as a result. The Second Department denied defendant's motion to dismiss, in Falah v. Stop & Shop Cos., Inc., which was decided on June 19, 2007. The court gave effect to an Ohio physician's notarized affidavit which said that, based on his review of the hospital records, the miscarriage was causally related to the fall. The court said that the fact that there was no certification as to the notary's authenticity was not a fatal defect since, as a general rule, a party cannot establish its entitlement to summary judgment merely by pointing to gaps in the opponent's proof.

Monday, June 25, 2007

The Second Department offers an instructive opinion in Berger v. Temple Beth-el of Great Neck, which was decided on June 19, 2007. Plaintiff alleged that defendants had defamed him by issuing statements disclosing and explaining the termination of his membership from the synagogue. The court granted defendants' summary judgment motion on the basis of a qualified privilege, since the challenged statements had been made in the discharge of a private duty and in furtherance of a religious organization's common interest. The court noted that plaintiff could not defeat the qualified privilege by arguing that the challenged statements were excessively published, since the recipients all shared a common interest.

Friday, June 22, 2007

They should have kept a light burning.

Petitioner-landlord will be getting his rent-stablilized apartment back since he proved, by a preponderance of the evidence, that it was not the tenant's primary residence, in Carmine Limited v. Gordon, which was decided by the First Department on June 14, 2007. The apartment in question -- a 450-square foot, one bedroom walk-up in Greenwich Village -- was first rented in 1978. In 1991, though, tenants also leased a rent-stabilized two-bedroom apartment in Stuyvesant Town, and have been paying rent on both apartments ever since. The court gave short shrift to tenants' argument that,because their marriage was rocky, the husband had moved into the Stuyvesant apartment, while the wife continued to live in the Village apartment. The court noted that, through all these years, there has never been even a separation agreement, much less divorce proceedings, and that the tenants remain very much married. They share a single joint bank account into which the wife's paychecks are deposited directly, and the husband pays all the bills, to include rent on both apartments. The court said that what it found most persuasive was the evidence that there had been negligible use -- and for extended periods no use -- of electricity in the Village apartment for more than a year prior to the commencement of this holdover proceeding.

Thursday, June 21, 2007

A motion to dismiss pursuant to CPLR 3211(a)(7) will fail if the complaint states in some recognizable form any cause of action known to New York law, according to the Second Department, in New York Merchants Protective Co., Inc. v. Rodriguez, which was decided on June 12, 2007. Here, the court found that the complaint had sufficiently made out a cause of action sounding in tortious interference with contract, the elements of which are (1) the existence of a valid contract with a third party, (2) defendant's knowledge of that contract, (3) defendant's intentional and improper procuring of a breach, and (4) damages.

Wednesday, June 20, 2007

The doctor's employment contract included a provision which said that, if he were fired without cause, he would receive severance pay, provided that he did not thereafter provide medical services on his own behalf or for another entity.

The First Department refused to give that provision effect, in Scott v. Beth Israel Med. Ctr., which was decided on June 19, 2007. "[T]he employee choice doctrine contemplates that where the employer terminates the employment relationship without cause, his action necessarily destroys the mutuality of obligation on which the covenant rests as well as the employer's ability to impose a forfeiture."

Tuesday, June 19, 2007

The tort of libel arises from the publication of a statement which is both false and defamatory, and there is no cause of action if the words are not reasonably susceptible of a defamatory meaning, according to the Second Department, in Klepetko v. Reisman, which was decided on June 12, 2007.

Plaintiff brought the action to recover damages for allegedly defamatory statements made in a daily newspaper column which stated, among other things, that plaintiff was "cowardly," an "idiotic menace," and that he lived with another middle-aged man, which the plaintiff alleges is an insinuation that he is a homosexual.

The court said that the opinions expressed in the column are not actionable because they are "pure opinions" supported by a recitation of facts on which they were based. At worst, said the court, they are no more than name-calling or a general insult, a type of epithet not to be taken literally and not injurious to plaintiff's reputation.

The court also said that a false imputation of homosexuality may be reasonably susceptible of a defamatory connotation but, here, "the statement that the plaintiff lived together with another middle-aged man does not readily connote a sexual relationship, particularly when viewed in the context of a column concerning irresponsible dog owners."

Monday, June 18, 2007

Dog bites.

It is well settled that, to recover in strict liability for a dog bite, plaintiff must show that the dog had vicious propensities and that the owner knew or should have known of them. The Second Department specified the requisite showing, in Galgano v. Town of N. Hempstead, which was decided on June 12, 2007. "Evidence tending to demonstrate a dog's vicious propensities includes that of a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm." In finding that plaintiff had not made the proper showing, the court noted that "[t]he fact that the subject dog was brought to the animal shelter because another dog in the owner's household did not get along with it is not indicative that it had vicious propensities."

Friday, June 15, 2007

Read it, Sam.

Plaintiff could have (and should have) stopped reading on page one, or so said the First Department, in Webster v. New York Life Ins. & Annuity Corp., which was decided on June 12, 2007. "The first page of the annuity policy states that the accumulation value is not guaranteed with respect to the Separate Account. The Policy Data Page recites only that the guaranteed interest rate will be 3%. It does not state that an interest rate is guaranteed for each of the three investment options, the Separate Account, the Cash Management Fixed Account and the Dollar Cost Averaging Program. Interest is not provided in the Separate Account. The Separate Account consists of various stock market mutual funds, an investment vehicle not typically associated with the payment of interest. Rather, the policy only provides a rate of return, based on interest, in the sections dealing with the latter two investment options. With respect to each of these two options, the policy expressly states that the interest rate will never be less than the minimum guaranteed rate set forth on the Policy Data page. Consistent with the first page of the policy, no such language appears in the section dealing with the Separate Account. The average purchaser thus could not expect the policy, read as a whole, to guarantee a rate of return for investment in the Separate Account."

Thursday, June 14, 2007

Plaintiffs secured a mortgage loan from defendant and paid a number of settlement charges, to include a $100 document preparation fee. They then filed a putative class action suit claiming that the document preparation was tantamount to the unauthorized practice of law, and, therefore, in violation of Judiciary Law § 478, § 484, and § 495(3). The First Department disagreed, in Fuchs v. Wachovia Mtge. Corp., which was decided on June 5, 2007. The court noted that the document in question required only that defendant fill in the name and address of the borrower, the date of the loan, the principal amount loaned, the interest rate, and the monthly payment. Plaintiffs had their own attorney at the closing and never claimed that they had received any legal advice from defendant.

Wednesday, June 13, 2007

Home is where your taxes are paid.

Tenant prevailed in a holdover proceeding in which the issue was whether her primary residence was her city apartment or her upstate house. In 310 E. 23rd LLC v. Colvin, which was decided on June 7, 2007, the First Department found that tenant had a "substantial physical nexus" to the apartment, and determined that her house upstate is a second residence which she uses on weekends, holidays and vacations. The court noted, among other things, that tenant's state tax returns specify that tenant is a full-year resident of New York City, and show that she paid city tax on all her income, even though those same returns list the upstate residence as her home address.

Tuesday, June 12, 2007

Plaintiff sued defendant-hospital, claiming that her surgery should have been postponed since she had lost one-quarter of her body weight prior to her admission. The First Department dismissed the complaint, in Garson v. Beth Israel Medical Center, which was decided on June 7, 2007.

The court noted that, as a matter of law, a hospital is not liable for the acts of a private attending physician who is retained by a patient, and is not liable when its employees follow that physician's orders, unless the orders are clearly contraindicated by normal practice.

Here, the court found plaintiff's expert's affidavit lacking, in that it did not evaluate plaintiff's weight loss against her referring doctors' opinion that her overall deteriorating condition, including her weight loss, compelled the surgery. In addition, the court rejected as speculative the expert's conclusion that, with time, plaintiff would have regained the weight and would have better tolerated the surgery.

Friday, June 8, 2007

A walk in the park. Not.

While walking over a flower bed in defendant's park, plaintiff tripped and fell on an elevation differential adjacent to a stone wall which separated the flower bed and the surrounding grassy area. Plaintiff sued, but the Second Department granted defendant's summary judgment motion, in Errett v. Great Neck Park Dist., which was decided on May 29, 2007. The court noted that a property owner is under no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous.

Here, the court found that "the terraced nature of the park, including its flower beds and stone walls, did not create an inherently dangerous condition. Any elevation difference existing between the two sides of the stone wall was readily observable to those employing the reasonable use of their senses, and did not present an undue risk of harm."

The court also rejected plaintiff's affidavit in which she said that the accident was caused by inadequate illumination, since she previously had admitted that she had no difficulty in seeing the flower bed or the garden prior to the accident.

Thursday, June 7, 2007

These are taxing times.

A solo practitioner deducted the following from his New York City unincorporated business gross income: (1) one-half of his federal self-employment tax; (2) the cost of his self-employed health insurance premiums; and (3) his contributions to a defined benefit pension plan. The First Department rejected the deductions, in Matter of Horowitz v. New York City Tax Appeals Trib., which was decided on June 5, 2007.

The court said that a tax deduction is not a matter of right but a function of what it called "legislative grace," and so the burden is on the taxpayer to establish entitlement to the proposed deduction. Here, the court said that the attorney did not meet his burden. "The subject payments, although deductible for federal income tax purposes, can be reasonably construed as remuneration for services for petitioner's benefit, and, as such, are not deductible under Administrative Code of City of NY § 11-507(3)."

There was a lengthy and vigorous dissent which argued that "[a]s a matter of law, the deductions are not payments that are income to petitioner and are not in the nature of compensation for services he performed." The dissent concluded that, under the majority's rationale, "every payment by a sole proprietorship to a third party would be disallowed under § 11-507(3)," and that is unreasonable.

Wednesday, June 6, 2007

No strikes.

The striking of an answer, pursuant to CPLR 3126, is a drastic remedy which requires a clear showing that the failure to comply with a discovery demand was willful and contumacious, according to the Second Department, in Denoyelles v. Gallagher, which was decided on May 29, 2007. The court said that, similarly, under the common-law doctrine of spoliation, a pleading may be struck only when, because of the negligent or intentional destruction of key evidence, the non-responsible party is unable to prove its claim or defense. Here, the court found no evidence that the so-called modification of the defendant's computer records was done in bad faith, or that, because of the modification, the plaintiff was left with no appropriate means of proving its claim.

Tuesday, June 5, 2007

Plaintiff and defendant executed an employment agreement which said, among other things, that plaintiff could be terminated only upon his "absolute failure to perform the contract's specification." Four months into the work, plaintiff was terminated. The First Department said that the firing was improper, in Mitchell v. Fidelity Borrowing, which was decided on May 31, 2007. The court noted that, while plaintiff was employed, defendant spent more than $116,000 for marketing and advertising, as plaintiff had directed. Defendant also paid plaintiff $33,000 in salary and bonuses. The court concluded, "There is no reasonable view of the evidence that would establish that plaintiff absolutely failed to perform under the employment contract." The court ordered defendant to pay plaintiff's salary for the entire two years of the consulting agreement.

Monday, June 4, 2007

Show me the paper, or go home.

A home improvement contractor who does not have and plead a valid license as required by relevant local regulations is out of luck when it comes to recovering damages for an alleged breach of a construction contract, or so said the Second Department, in Al-Sullami v. Broskie, which was decided on May 29, 2007. In addition, said the court, the contractor may not recover on the basis of quantum meruit either.

Friday, June 1, 2007

In a personal injury matter, defendant submitted a nonparty witness' affidavit which raised a triable issue of fact regarding plaintiff's comparative negligence. Plaintiff timely objected to the affidavit saying that it did not comply with the statute and challenging the notary's authority. The First Department said that such defects can be corrected nunc pro tunc, in Moccia v. Carrier Car Rental, Inc., which was decided on May 29, 2007. The court noted that defedant's attorney had submitted the original affidavit, bearing a notary seal, and along with proper certification.