Friday, February 29, 2008

General Municipal Law § 50-e(5)

The First Department remanded for reconsideration of plaintiff's application for leave to serve a late notice of claim, in Berete v. New York Health & Hospitals Corp., which was decided on February 26, 2008. Supreme Court erroneously concluded that it was without discretion to deny leave to serve a late notice of claim to a plaintiff who allegedly suffered a neonatal injury at defendant's facility, where there was a medical record memorializing the details of the delivery.

New York practice point: General Municipal Law § 50-e (5) requires courts to exercise discretion in determining whether to grant or deny leave to file a late notice of claim. The statute contains a nonexhaustive list of factors that the court should weigh, and requires consideration of all relevant facts and circumstances.

Thursday, February 28, 2008

CPLR 3216

The Second Department dismissed the action, for failure to comply with an order to file a note of issue within 90 days, in Anjum v. Karagoz, which was decided on February 19, 2008. In a compliance conference Order, Supreme Court specified that, if plaintiff did not file a note of issue within 90 days, the action would be deemed dismissed. Plaintiff's counsel signed the Order. Plaintiff did not comply, and did not move to extend the period for filing, and the action was dismissed.

To vacate the dismissal, plaintiff was required to demonstrate a justifiable excuse for not responding to the Order and a meritorious cause of action. The excuse that plaintiff had disappeared and did not maintain contact with his attorney was insufficient to justify plaintiff's delay of two years and nine months in responding to the Order.

New York practice point: The compliance conference Order had the same effect as a 90-day notice, pursuant to CPLR 3216.

Wednesday, February 27, 2008

Labor Law § 200, 240 and 241

Plaintiff was injured when he was unloading sheetrock from a hoist that had been used to deliver the material to the 37th floor of the building under construction. The hoist suddenly dropped down the shaft and fell 13 stories, pulling plaintiff down with it. Evidence established that the shaft's safety bar was not engaged when the hoist went down. Had the gate and safety bar been in place, plaintiff would not have fallen.

On these facts, the First Department granted plaintiff summary judgment on his Labor Law § 240(1) claim, in Campbell v. Columbus Ctr., which was decided on February 21, 2008. The court noted that summary judgment was also appropriate under Labor Law § 241(6), since there was a failure to comply with the sufficiently specific Industrial Code (12 NYCRR) § 23-6.3(d)(4), requiring that the gates at a hoistway entrance be kept closed when the car is not at the entrance. Finally, the court said that plaintiff was entitled to summary judgment on his Labor Law § 200 claim against the construction manager, which employed and had supervisory control over the hoist's operator and the signalmen who worked with him.

New York practice point: On these facts, there was no viable claim under Labor Law § 241(5), since it relates only to the construction of a material hoist, and not to its operation.

Tuesday, February 26, 2008

Social Services Law § 419

The First Department reversed the motion court and dismissed the complaint, in Chapdelaine v. Administration for Children's Services, which was decided on February 21, 2008. Plaintiffs had alleged that the city had improperly taken the child from her parents and that the child had been sexually abused by the foster parents with whom she had been placed. The court noted that the case had originated with a hospital's call to ACS, and that the case was given high priority because there had been at least four other complaints about the family's treatment of the child.

During the investigation, it was established that the mother had pushed the child, and the mother herself related certain incidents to the ACS child protective specialist concerning her boyfriend and the child. The child protective specialist confirmed that the boyfriend had a prior arrest for domestic violence. The court concluded that ACS justifiably believed that, in the absence of any changed circumstances, the mother was placing the child at risk by continuing to allow her boyfriend to have access to the child.

Plaintiffs' claims that ACS failed to adequately supervise the foster parents so as to prevent the alleged sexual abuse were not barred by statutory immunity, but plaintiffs failed to raise an issue of fact whether defendants had sufficiently specific knowledge or notice of the dangerous conduct which caused the alleged injury.

New York practice points: (1) A showing of willful misconduct or gross negligence is required to defeat the statutory presumption that ACS acted in good facility in investigating the hospital's complaint, and in filing the petition to temporarily remove the child from her home, pursuant to Social Services Law § 419. (2) Plaintiffs' claim of intentional infliction of emotional distress is not available against a governmental entity.

Monday, February 25, 2008

CPLR 510 and 511

The First Department denied defendant's motion to change venue, in Kurfis v. Shore Towers Condominium, which was decided on February 19, 2008. The action was improperly venued in Bronx County since plaintiff and defendants reside in Queens County and the action arose in Queens. However, for a change in venue based on plaintiff's designating an improper county, pursuant to CPLR 510[1], the demand must be served with or prior to the answer, pursuant to CPLR 511[a]. Here, the demand was served more than a year after joinder of issue. The court rejected defendants' argument that their untimely service of the demand resulted from plaintiff's misleading statements regarding residence or from active efforts to conceal her residence. The complaint did not misstate plaintiff's residence, but was silent as to her residence.

New York practice points: (1) Since the demand was ineffective, plaintiff was not required to respond. (2) Even though venue is improper, there is no jurisdictional impediment to conducting the trial in Bronx County.

Friday, February 22, 2008

CPLR 4404

Plaintiff allegedly was injured when she fell from her seat while riding on defendant's bus, and she claimed that her fall was caused by the bus operator's negligence. The jury found that the bus operator was not negligent, and the Second Department affirmed the denial of plaintiff's motion to set aside the verdict, in Martin v. New York City Transit, which was decided on February 13, 2008. The court noted that, to recover damages against a common carrier for injuries sustained as a result of the vehicle's movement, plaintiff is required to establish that there was a jerk or a lurch which was unusual and violent. Here, the court found that, since the alleged movement did not cause any other passenger to fall, the jury reasonably could have concluded that plaintiff's fall was not caused by any negligence on the part of the bus operator.

Practice point: Pursuant to CPLR 4404, the standard for determining whether a jury verdict is against the weight of the evidence is whether the evidence so preponderated in favor of movant that the verdict could not have been reached upon any fair interpretation of the evidence.

Thursday, February 21, 2008

CPLR 4401

The Second Department affirmed the granting of defendant's motion for judgment as a matter of law, in Borbeck v. Hercules Construction Corp., which was decided on February 13, 2008. The court found that defendant-construction manager was not the owner's statutory agent, pursuant to Labor Law § 240(1). There was no evidence that defendant had the authority to enforce the provisions of the contracts entered into by the owner with the project's prime contractors. Nor did defendant have the authority to stop the work in the event that an unsafe condition or work practice came to light.

Practice point: Pursuant to CPLR 4401, a party may move for judgment as a matter of law after the other party has completed its presentation of evidence, or at any time based on admissions. The standard is whether there is any rational basis on which a fact-trier could find for the opposing party.

Wednesday, February 20, 2008

Conflict of law.

The First Department affirmed that New York law controls where plaintiff allegedly sustained serious injuries when the automobile in which he was a passenger was involved in an accident in New Jersey with a vehicle owned and driven by a Pennsylvania resident, in Wosner v. Elrac, Inc., which was decided on February 14, 2008. Plaintiff was riding in a car which was registered and insured in New Jersey under a long-term rental agreement with its defendant-owner, a Delaware corporation with its headquarters in New Jersey. The vehicle's defendant-driver primarily used, garaged and drove the vehicle in New York, and at the time of the accident, he and plaintiff were traveling between two New York locations, and just happened to pass briefly into New Jersey due to a fortuitous circumstance.

Practice point: Where, as here, the driver-host and the passenger-guest are New York domiciliaries, New York law generally controls.

Tuesday, February 19, 2008

Future lost earnings.

The First Department affirmed the dismissal of the complaint and plaintiff's claim for future lost earnings, in Velasco v. Green-Wood Cemetery, which was decided on February 14, 2008. Plaintiff, who had been granted summary judgment on liability under Labor Law § 240(1), failed to offer evidence responsive to defendants' showing, based on plaintiff's deposition, that plaintiff returned to the same type of work he was doing at the time of the accident only four months after the accident. While the Workers' Compensation Board found that he has a permanent partial disability, and awarded him benefits, the benefits ran for only the four-month period immediately following the accident, and there was no finding that plaintiff was unable to return to work.

Practice point: The expected testimony of a vocational rehabilitation expert and orthopedic surgeon, set forth in expert disclosure notices prepared by plaintiff's attorney, is not evidentiary proof in admissible form, as is required to defeat a meritorious motion for summary judgment.

Monday, February 18, 2008

CPLR 3126

The Second Department granted defendant's motion to strike a pleading, pursuant to CPLR 3126(3), in McArthur v. New York City Housing Authority, which was decided on February 5, 2008. The court began by noting that the striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful and contumacious. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failures to respond to demands and/or to comply with discovery orders.

Practice point: Here, the court found willful and contumacious character in plaintiff's repeated failures to comply with the court's discovery orders to appear for a deposition and an independent medical examination, and to provide certain disclosure, including authorizations to obtain information and medical and employment records, without an adequate excuse.

Friday, February 15, 2008

The First Department held that dismissal of the complaint against the Housing Authority was appropriate in Martinez v. City of New York, decided on February 7, 2008. The City was timely served with notices of claim on behalf of all plaintiffs, but plaintiffs never served a notice of claim on the Housing Authority and never moved for leave to serve a late notice of claim even after becoming aware of this omission when served with the Housing Authority's answer within the limitations period of one year and 90 days. Plaintiffs' cross motion to amend the notice of claim served on the City, to add the Housing Authority as a defendant, was untimely since it was made one year and seven months after the accident.

Practice point: Plaintiffs' attorney's letter to the Housing Authority alerting it to the accident could not substitute for a notice of claim since it did not contain the requisite information, and, in any event, the Housing Authority denied ever having received it.

Thursday, February 14, 2008

The Second Department denied leave to amend to add a cause of action in breach of contract, in D'Angelo v. State Insurance Fund, which was decided on February 5, 2008.

The court began by noting that leave to amend a pleading should be freely granted unless the proposed amendment is palpably improper or insufficient as a matter of law, or unless prejudice and surprise directly result from delay in seeking the amendment.

Here, the court said that the proposed amendment was palpably improper because Supreme Court lacks subject matter jurisdiction over a cause of action to recover damages for breach of contract against this defendant. A claim for money damages against the State must be litigated in the Court of Claims, pursuant to Court of Claims Act § 9[2].

Practice point: Defendant did not raise this issue in Supreme Court, but a court's lack of subject matter jurisdiction may not be waived, and may be raised at any time.

Wednesday, February 13, 2008

Liability for an independent contractor's allegedly negligent acts.

The corporate defendant was a newspaper distributor which entered into a contract with The New York Times to distribute its papers. The individual defendant was the corporate defendant's independent contractor who had sole responsibility and control over the manner and means of delivering the papers. The First Department dismissed the complaint as against the corporate defendant, in Duhe v. Midence, which was decided on February 7, 2008. The court said that the distributorship did not exercise sufficient control over the actual delivery process to raise a triable issue of fact as to whether it was vicariously liable for the individual defendant's acts.

Practice point: General supervisory control is insufficient to impose liability on a corporate defendant for the acts and omissions of an independent contractor.

Tuesday, February 12, 2008

CPLR 3211(a)(8)

The affidavit of service showed that plaintiff attempted to serve a corporate defendant by delivering a copy of the summons and complaint to an employee, a customer service representative who stated that he had never been authorized to accept process on defendant's behalf. The process server alleged no independent recollection of the service, but stated that she would not have left the summons with a person who denied having authority to accept it. The Second Department dismissed for lack of jurisdiction, pursuant to CPLR 3211(a)(8), in Covillion v. TriState Service, which was decided on February 5, 2008. The court concluded that the employee was clearly not a director or an officer, and that he had not been designated to act as an agent for service of process.

Practice point: Beyond an affidavit of service, the record must support a reasonable belief that a corporate defendant's employee was authorized, either by appointment or law, to accept process.

Monday, February 11, 2008

Infant plaintiff was injured when she lost her balance walking in a classroom in defendant's day-care center and fell, striking her right eyebrow on the edge of a shelving unit in which toys were kept. Plaintiff claims defendant created a dangerous condition by placing a "toy shelf" with sharp edges in a children's classroom, in violation of New York City Health Code 24 RCNY § 47.35(g), which mandates that "[p]lay equipment" be "free from hazards such as sharp edges."

The First Department dismissed the complaint, in Hamdan v. Mosholu Montefiore Community Ctr., which was decided on February 7, 2008. The court found no evidence indicating the cause of plaintiff's fall, and no evidence that the shelves' edges were hidden or defective. Plaintiff's citation to the Health Code raised no triable issue, because the shelving unit constitutes furniture, not play equipment. Plaintiff's expert's affidavit is unavailing since the expert never examined the unit.

Friday, February 8, 2008

Plaintiff sought damages after defendant admittedly took every copy of plaintiff's catalog from its distribution box located on a street corner in defendant's neighborhood and threw them in the garbage because, in his view, they contributed to litter. The First Department dismissed the complaint, in Learning Annex v. Gittleman, which was decided on February 5, 2008.

The court found that plaintiff's cause of action for tortious interference with prospective business relations was not viable since plaintiff did not identify any specific customers it would have obtained but for defendant's actions. The conversion cause of action failed because plaintiff admits that the catalogs are free for the taking and anyone can take as many as they want and so plaintiff cannot demonstrate a superior possessory right to them. The prima facie tort cause of action was dismissed because the evidence demonstrated that no reasonable jury could conclude that defendant was motivated solely by "disinterested malevolence," and because plaintiff failed to sufficiently establish that it had sustained special damages.

Thursday, February 7, 2008

Motion for leave to renew.

Defendant's summary judgment motion, unopposed by plaintiff, was granted, and plaintiff moved to vacate, claiming that his failure to oppose was due to law office failure. The motion was denied, since plaintiff failed to submit an affidavit of merit. Plaintiff renewed, but defendant opposed, arguing that plaintiff's affidavit of merit was not executed before a duly authorized person, pursuant to CPLR 2309. In reply, plaintiff submitted a properly notarized affidavit, but the renewed motion was denied because the corrected affidavit was submitted in reply. Plaintiff moved again for leave to renew and to reargue his motion to vacate, this time with the affidavit of merit in admissible form.

The Second Department granted the motion to vacate, in Simpson v. Tommy Hilfiger USA, Inc., which was decided on February 1, 2008. CPLR 2221(e) authorizes a motion for leave to renew based on new facts not offered on the prior motion that would change the prior determination, provided there is reasonable justification for the failure to present those facts previously.

The court said that CPLR 2221(e) should not be construed to disqualify new facts in a document originally rejected for its inadmissible form. The key to qualifying such corrected evidence for treatment on a renewal motion is reasonable justification not having presented it in the prior motion, pursuant to CPLR 2221[e][3]. Here, the court found that the explanation of plaintiff's limitations in language and education and a misunderstanding of the instructions for notarization in Jamaica, West Indies, where plaintiff resides, qualified as a reasonable justification for failing to present the affidavit in admissible form in the first renewal motion.

The court also vacated the prior order granting defendant's unopposed motion for summary judgment. Plaintiff demonstrated a reasonable excuse for his default, pursuant to CPLR 5015[a][1], by showing that the default resulted from the law office failure of his attorney who did not calendar the return date of the summary judgment motion and serve and file opposition papers. Defendant did not show that these failures eere either intentional or part of a pattern of willful default or neglect.

Wednesday, February 6, 2008

New law on leave to amend to add a cause of action in wrongful death.

The Second Department has held that a motion seeking leave to amend a complaint to add a cause of action alleging wrongful death must be decided as would any motion to amend, pursuant to CPLR 3025(b), and should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit, in Lucido v. Mancuso, which was decided on February 1, 2008.

The court expressly overruled a line of authority requiring a plaintiff to make an evidentiary showing by competent medical proof that defendant's conduct caused decedent's death. In effect, the holding means that, in the absence of prejudice or surprise, the motion for leave to amend will be denied only if the new cause of action would not withstand a motion to dismiss for legal insufficiency under CPLR 3211(a)(7).

Tuesday, February 5, 2008

Plaintiff's infant daughter slipped and fell at a roller-rink while participating in an after-school program sponsored by defendant-Goodwill Industries of Greater New York & Northern New Jersey, when she says she was "pushed from the side." The complaint alleged that the accident was proximately caused by defendant's negligent supervision and by overcrowding at the facility.

The Second Department dismissed the complaint, in Gaspard v. Board of Education of the City of New York, which was decided on January 22, 2008. Based on record evidence, including the injured daughter's deposition testimony, the court rejected the negligent supervision claim. Why? Since the accident occurred as the result of a sudden and abrupt action by an unknown skater or skaters, it could not have been prevented by even the most intense supervision, and so liability based on negligent supervision cannot be imposed. In addition, the facility general manager's deposition testimony established, prima facie, that the facility was not overcrowded at the time of the accident.

Monday, February 4, 2008

Late Notice of Claim.

The First Department determined that the motion court properly exercised its discretion in letting petitioner file a late notice of claim more than seven months after expiration of the 90-day filing requirement, pursuant to General Municipal Law § 50-e[1][a]; [5]), in Caridi v. New York Convention Operating Corp., which was decided on January 24, 2008.

The court said there is no prejudice to defendant since the State Police were on the scene at the time of the accident and immediately conducted an investigation that included interviewing witnesses and taking photographs of the location as it was at the time of the accident, which culminated in an accident report which is readily available to defendant.

In addition, the allegedly defective condition that caused petitioner to fall and injure his knee was highly transitory and defendant would have been unable to investigate even if the notice of claim had been served within the prescribed statutory period.

Friday, February 1, 2008

Plaintiff allegedly slipped and fell on a ramp at Shea Stadium. After plaintiff fell, he saw a reddish streak on the ramp and a ketchup-like substance on his shoes. Plaintiff's wife alleged that, about an hour before the accident, she saw a messy white condition consisting of a portion of a crushed hotdog bun, ketchup, and mustard on the ramp, as well as a hotdog, a hotdog bun, and two napkins. Plaintiff's wife did not witness the accident, but she alleged that plaintiff must have slipped on the remnants of the mess that she had seen.

Seeking damages for his alleged injuries, plaintiff commenced this action against, among others, the City of New York, the New York City Department of Parks and Recreation, the New York Mets National League Baseball Club, Sterling Enterprises, which leased the premises from the City, and Harvard Maintenance, which had a cleaning management contract at the stadium.

The Second Department dismissed the complaint, in Frazier v. City of New York, which was decided on January 22, 2008. Defendants met their initial burden by submitting evidence to establish, prima facie, that they neither created nor had actual or constructive notice of the alleged defect for a sufficient length of time to discover and remedy it. In opposition, plaintiff failed to submit evidence sufficient to raise a triable issue of fact. The court rejected plaintiff's contention that the defect which had caused him to fall was the remnant of the mess that his wife had seen an hour before his accident as purely speculative.