Monday, March 31, 2008

CPLR 3404

Practice point: The issuance of a stay of the action is not the equivalent of marking the case off the calendar, within the meaning of the statute.

Case: Barbu v. Savescu, NY Slip Op 02546 (2d Dept. 2008)

Friday, March 28, 2008

Medical Disqualification.

Practice point: In finding a candidate medically disqualified, a city agency may rely on its own medical director's conclusions, even when the candidate's private physician offers a conflicting opinion.

Case: Rivers v. Department of Sanitation, NY Slip Op 02645 (1st Dept. 2008)

Thursday, March 27, 2008

Trivial defects.

Practice point: A property owner may not be held liable for trivial defects, not constituting a trap or a nuisance, over which a person might merely stumble or trip.

Case: Ayala v. Gutin, NY Slip Op 02545 (2d Dept. 2008)

Wednesday, March 26, 2008

Administrative Code of City of NY § 7-201[c][2]

Practice point: The City cannot be held liable for a defect in a sidewalk unless it received written notice of the defect, or made a written acknowledgment of the condition, and failed to remedy the condition within 15 days after the notification or acknowledgment.

Case: Alvino v. City of New York, NY Slip Op 02544 (2d Dept. 2008)

Tuesday, March 25, 2008

Domestic Relations Law § 236[B][3]

Practice point: Absent a proper written acknowledgment, a postnuptial agreement is unenforceable, even if the agreement was ratified either through word or conduct.

Case: Angel v. O'Neill, NY Slip Op 02640 (1st Dept. 2008)

Facts: The notary testified that the signature on the agreement was not hers, and the court found an obvious difference between the purported signature and the notary's admittedly genuine signature.

Monday, March 24, 2008

A snow removal contractor's tort liability.

Practice point: A snow removal contractor does not assume tort liability in favor of an injured third party unless: (1) the snow removal contractor launched a force or instrument of harm in failing to exercise reasonable care in the performance of its duties; (2) the injured person detrimentally relied on the continued performance of the snow removal contractor's duties; or (3) the snow removal contract entirely displaced the landowner's duty to safely maintain the premises.

Case: Bickelman v. Herrill Bowling, NY Slip Op 02091 (2d Dept. 2008)

Friday, March 21, 2008

Administrative Code of the City of New York § 8-102[16][c]) and
9 NYCRR 466.11[h][1]

Practice point: A person who is currently using illegal drugs is not disabled, within the meaning of the Administrative Code, and is not entitled to protection under the Human Rights Law.

Case: Iannone v. ING Financial Services, NY Slip Op 02468 (1st Dept. 2008)

Facts: A stock trader was tape-recorded apparently discussing the purchase and use of illegal drugs on his employer's premises. When confronted, the trader said that his conversation was taken "out of context," and his employer suspended him and gave him an opportunity to place the conversation "in context." The next day, the trader sent an e-mail stating that he realized he was addicted to illegal drugs and needed to seek immediate medical and psychiatric treatment to help him stop. He requested an accommodation to pursue a drug rehabilitation program, which might require him to seek personal time off. Instead, the employer immediately terminated his employment by telephone. An accommodation was not required since the trader was abusing drugs at the time of his termination.

Thursday, March 20, 2008

CPLR 3211(a)(7)

Practice point: New York does not recognize an independent cause of action for punitive damages.

Case: Aronis v. TLC Vision Ctrs., Inc., NY Slip Op 02090 (2d Dept. 2008)

Facts: The cause of action sounding in punitive damages was dismissed because New York does not recognize it. Moreover, the cause of action sounding in negligence did not implicate the level of moral culpability necessary to support a claim for the imposition of punitive damages. Punitive damages are available for the purpose of vindicating a public right only where the alleged tortfeasor's actions constitute gross recklessness or intentional, wanton or malicious conduct aimed at the pubic generally or are activated by evil or reprehensible motives.

Wednesday, March 19, 2008

Mental Hygiene Law § 81.08[a][4],[5]

Practice point: In an Article 81 matter, petitioner must pay the entire court evaluator's fee in the event that a petition is rejected as patently insufficient.

Case: Matter of Schneider v. Engelmayer, NY Slip Op 02202 (1st Dept. 2008)

Facts: Petitioner was directed to pay the court evaluator's fee, in its entirety, where the petition, which was dismissed after a hearing for lack of medical evidence substantiating petitioner's claim of incapacity, lacked the required specific factual allegations of personal actions or financial transactions demonstrating incapacity.

Tuesday, March 18, 2008

CPLR 4518

Practice point: The mere fact that a report is a business record, within the meaning of the statute, does not overcome any other exclusionary rule which might properly be invoked.

Case: Afridi v. Glen Oaks Village Owners, Inc., NY Slip Op 02085 (2d Dept. 2008)

Facts: Infant plaintiff had been seriously burned by hot water from a faucet in the bathroom of her family's apartment, and plaintiffs brought an action against the cooperative corporation which owned the apartment, alleging negligence in supplying excessively hot water. The trial court properly excluded from evidence a section of a police report indicating that, 12 days after the accident, the hot water from the faucet registered a temperature of 160 degrees Fahrenheit. Plaintiffs failed to establish a proper foundation for the report's admission, in that, among other things, the report did not specify any details about how the temperature measurement was made.

Monday, March 17, 2008

CPLR 3212[a]

Practice point: The statutory deadline for filing summary judgment motions must be strictly followed, and, regardless of merit, courts may not excuse a late motion based on a perfunctory claim of law office failure.

Case: Azcona v. Salem, NY Slip Op 02195 (1st Dept. 2008)

Facts: Defendants claimed that they were unaware of the filing of the note of issue until they learned of an imminent pretrial conference, just before the end of the 120-day period for moving for summary judgment, and that they filed as soon as they could thereafter. The bald assertion that defendants' counsel did not receive a copy of the note of issue was insufficient to rebut the presumption that service was complete upon mailing of the document, as indicated by an affidavit of service.

Friday, March 14, 2008

Vehicle and Traffic Law § 1104(b)(2)

The Second Department determined that defendant-City of New York failed to meet its initial burden of establishing, prima facie, that defendant-police officer did not act in reckless disregard for the safety of others in entering the intersection where the accident in question occurred, in Burrell v. City of New York, which was decided on March 4, 2008. The court noted that Vehicle and Traffic Law § 1104(b)(2) permits an emergency vehicle to proceed past a steady red signal only after slowing down as may be necessary for safe operation. The court said that the City's submissions left questions of fact as to whether the police vehicle had its emergency siren and flashers on and whether the officer operating the vehicle accelerated, rather than slowed down, as she approached the intersection. Moreover, there are fact questions as to whether the defendant-police officer's view of the intersection was obstructed by a parked vehicle or hindered by the inclement weather.

New York practice point: An officer's operation of a police vehicle in responding to an emergency call may not be the basis of civil liability to an injured third-party unless the officer acted in reckless disregard for the safety of others. The "reckless disregard" standard requires proof that the officer intentionally committed an unreasonable act in disregard of a known or obvious risk so great as to make it highly probable that harm would result.

Thursday, March 13, 2008

CPLR 3101(a)

The First Department granted defendants' motion to compel discovery, in Rega v. Avon Products, Inc., which was decided on March 11, 2008, determining that the evidence sought about plaintiff's prior and subsequent injuries was material to defense of the action. The court noted that plaintiff had put his physical condition at issue by averring in his bill of particulars that his condition had been made worse by the injuries he alleged in his compaint, and defendants had a right to information about that condition.

New York practice point: CPLR 3101(a) requires full disclosure of all information which is material and necessary in the prosecution or defense of an action, regardless of the burden of proof. The information must be sought in good faith for possible use as evidence-in-chief, rebuttal or for cross-examination. The physician-patient privilege is waived if plaintiff's physical condition is interjected through testimony or written submission.

Wednesday, March 12, 2008

Legal Malpractice

The First Department found no prima facie case for legal malpractice and dismissed the complaint, in Orchard Motorcycle Distributors, Inc. v. Morrison Cohen Singer & Weinstein, which was decided on March 6, 2008. Plaintiffs did not submit an expert affidavit establishing the appropriate standard of professional care and skill defendant was required to exercise in the underlying action which involved foreclosure matters, complex loan arrangements and bankruptcy proceedings that ordinary jurors could not evaluate based on their own knowledge and experience. The affidavit of plaintiffs' principal was unavailing, since it failed to establish that, but for defendant's alleged malpractice, corporate plaintiffs would have successfully reorganized in Chapter 11. In addition, the court found record evidence that corporate plaintiffs' dire financial situation was brought on by factors independent of defendant's professional representation, rendering speculative the claim that defendant proximately caused plaintiffs' business failure.

New York practice point: Regarding plaintiff's "failure to advise" claim, an attorney does not commit malpractice by choosing one of several reasonable courses of action.

Tuesday, March 11, 2008

CPLR 3216

The Second Department denied defendant's motion to dismiss for want of prosecution, in Anonymous v. Duane Reade, decided on March 4, 2008, even though plaintiff admittedly failed to serve a note of issue by the court-ordered deadline. The court noted that the parties had barely begun discovery proceedings, and that a motion and cross motion to compel discovery were pending at the deadline for the service and filing of the note of issue.

New York practice point: CPLR 3216 is extremely forgiving in that it never requires, but merely permits, the dismissal of an action based on the plaintiff's unreasonable neglect to proceed.

Monday, March 10, 2008

Labor Law 241(6)

The First Department denied defendant-contractors' motion to dismiss the Labor Law § 241(6) cause of action, in Gheradi v. City of New York, which was decided on March 4, 2008. Plaintiff was injured while working on an extensive project for the installation of wiring on four floors of a public high school. The court determined that this project effected a significant physical change to the building and was therefore an alteration sufficient to bring it within the statute's coverage.

New York practice point: The statute extends its protection to an entrance ramp used for worker access and for bringing in materials, and is not limited to where plaintiff's work was actually being done. It is not necessary that the accident-causing instrumentality be set up specifically for plaintiff's use.

Friday, March 7, 2008

CPLR 3211(a)(7)

Plaintiff underwent a surgical procedure during which there were implants of bone, bone paste and other tissue which had been distributed by defendants. Plaintiff alleged that, seven months later, he was advised that those materials were "potentially" contaminated with HIV, but he did not allege that he was infected. The Second Department dismissed the complaint, in its entirety, in Aberbach v. Biomedical Tissue Services, which was decided on February 26, 2008.

The court found no valid claim for battery because there was no allegation that defendants intentionally touched plaintiff's body, either personally or with an instrumentality. There was no cause of action sounding in negligent infliction of emotional distress because plaintiff did not allege that he was actually, or even probably, exposed to HIV. The alleged breach of express and implied warranties, along with the claim of strict products liability, could not stand because there was no allegation of a sale, which is required to support these causes of action. Finally, the complaint failed to allege a cognizable injury resulting from negligence.

New York practice point: In considering a motion to dismiss, pursuant to CPLR 3211(a)(7), the court must accept as true the facts as alleged in the complaint, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit any cognizable legal theory. The court may not consider whether plaintiff can ultimately establish the allegations.

Thursday, March 6, 2008

General Obligations Law § 5-326

The First Department reinstated the complaint, in Connolly v. Peninsula Group, decided on February 28, 2008, even though plaintiff had signed a release with a covenant against bringing suit for personal injuries incurred during training sessions at defendant's spa. Plaintiff alleges that the trainer, who was aware of plaintiff's limited mobility in his shoulder, insisted that plaintiff engage in a modified lateral pulldown. Plaintiff felt a snap in his shoulder and later learned that a piece of steel, still in his shoulder from a previous surgery, had dislodged.

New York practice point: Although clear and unambiguous, the release is void as against public policy, pursuant to General Obligations Law § 5-326, inasmuch as the training sessions were merely ancillary to the recreational activities offered by the spa.

Wednesday, March 5, 2008

CPLR 306-b

The First Department dismissed the complaint for failure to make service within 120 days after filing the summons and complaint, pursuant to CPLR 306-b, in Okoh v. Bunis, which was decided on February 28, 2008. The court noted that, in addition to plaintiff's lack of diligence in serving, there was no showing of merit so as to justify an extension of time.

New York practice point: Fatal to the motion to extend was the fact that it addressed only the failure to serve within the 120-day statutory period. There was no explanation whatsoever why plaintiff's attorney waited more than 14 months to ask for an extension, and, even then, only in response to defendants' motion to dismiss.

Tuesday, March 4, 2008

22 NYCRR Part 130.

The First Department dismissed a purported class action seeking an injunction and a judgment declaring that defendant-food distributor trespassed on plaintiff's property by slipping an advertising flier under the door to plaintiff's apartment without plaintiff's permission, in Leyse v. Domino's Pizza, which was decided on February 28, 2008. The court said that dismissal was proper in the absence of plaintiff's having given prior notice to defendant that he objected to delivery of the flier. Such notice was required by defendant's constitutional right of free speech. In addition, the court noted the possibility of numerous other apartment dwellers suing distributors of those ubiquitous restaurant fliers.

New York practice point: Costs and sanctions, pursuant to 22 NYCRR Part 130, were not warranted even though plaintiff continued the action after being advised that the offending flier came not from defendant but a franchisee of defendant. Why? To this point there had been no disclosure, and plaintiff's counsel was not required to accept defendant's assertion at face value.

Monday, March 3, 2008

CPLR 1015(a) and 1021

The First Department denied defendant's motion to dismiss the complaint for failure to timely substitute a representative for deceased plaintiff, in Peters v. City of New York Health & Hosp. Corp., which was decided on February 26, 2008. By submitting its expert's affidavit of merit and a reasonable explanation for the delay in seeking substitution, decedent's estate showed adequate cause why this medical malpractice action should not have been dismissed for failure to timely move for substitution, pursuant to CPLR 1015[a] and 1021.

New York practice point: Even after a lengthy delay, a motion to substitute a party will be granted absent a defendant's showing of prejudice. There is no prejudice when, as here, the action will likely rely on medical records and other documentary evidence and not on the testimony of eyewitnesses.