Friday, January 31, 2014

A fall at the market.

Practice point: In a slip and fall action, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the fall. Here, the store-defendants failed to make the requisite showing as the plaintiff testified at deposition that she fell on "muddy" water.

In addition, the store-defendants failed to establish that they were entitled to judgment as a matter of law on the ground that they did not create or have constructive notice of any hazardous condition.  They presented no evidence to establish when the area was last cleaned or inspected prior to the plaintiff's fall.

Student note:  A defendant has constructive notice of a defect when it is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected. To meet its initial burden, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the plaintiff's fall.

Case:  Altinel v. John's Farms, NY Slip Op 00314 (2d Dept. 2014).

Here is the decision.

Monday's issue: A defendant-corporation's pro se answer.

Thursday, January 30, 2014

A workplace fall on masonite.

Practice point:  The Appellate Division determined that dismissal of plaintiff's Labor Law § 241(6) claim was warranted as there was no evidence that plaintiff's accident was the result of a failure to remove or cover a foreign substance, and masonite is not a slipping hazard contemplated by 12 NYCRR 23-1.7(d). In addition, 12 NYCRR 23-1.7(e), which requires work areas to be kept free of tripping hazards, is inapplicable because plaintiff does not allege that he tripped on an accumulation of dirt or debris. Instead, he testified that he slipped on an unsecured piece of masonite, which was not a tripping hazard.

Student note:  The court declined to consider plaintiff's fact-based argument that the accident resulted from a slippery condition caused by construction dust, as this argument was raised for the first time on appeal.

Case:  Stier v. One Bryant Park LLC, NY Slip Op 00458 (1st Dept. 2014).

 Here is the decision.

Tomorrow's issue: Another fall, this time at the market.

Wednesday, January 29, 2014

Effect of a default judgment as to liability.

Practice point:  In this action for plaintiff's injuries allegedly sustained while he was working for third-party defendant at a restaurant located on premises owned and/or managed by defendants, the Appellate Division, on a prior appeal, had reinstated a default judgment entered against defendants. By virtue of this default, defendants are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them.  Therefore, as between plaintiff and defendants, the issue of liability has been determined as a matter of law, and defendants may not now introduce evidence tending to defeat the plaintiff's cause of action.

Student note:  The default does not preclude defendants' pursuit of claims against third-parties for the apportionment of fault.

Case:  Paez v. 1610 St. Nicholas Ave., L.P., NY Slip Op 00421 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A workplace fall on masonite.

Tuesday, January 28, 2014

Plaintiff's wrongdoing as it affects a legal malpractice claim.

Practice point:  The physician-plaintiff alleged that defendant-law firm failed to represent him properly in connection with investigations by Medicare and the Office of Professional Conduct into the licensure of his employee and his billing practices, and that these failures resulted in his arrest for grand larceny and insurance fraud.

In the CPLR 3211 motion to dismiss, defendants offered documentary evidence refuting plaintiff's allegations by showing that any purported negligence in connection with the administrative proceedings or any advice with respect to plaintiff's method of billing Medicare did not proximately cause plaintiff's arrest. The indictment for grand larceny charged that plaintiff billed for services that were not rendered, and the record of his criminal conviction contradicts the allegations in the complaint. As plaintiff's own actions resulted in his arrest, he failed to show that any alleged malpractice on defendants' part proximately caused his damages, namely, his arrest. This failure required dismissal of the legal malpractice action regardless of whether defendants were negligent.

Student note: In pleading his Judiciary Law § 487 claim, plaintiff failed to allege that defendants acted with intent to deceive the court or any party, or a chronic and extreme pattern of legal delinquency.

Case:   Herschman v Kern, Augustine, Conroy & Schoppman, NY Slip Op 00416 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Effect of a default judgment as to liability.

Monday, January 27, 2014

Perfecting an appeal based on an appendix.

Practice point:  Using the appendix method, the appellants sought review of an order denying their joint motion pursuant to CPLR 4404(a) to set aside a jury verdict. However, as the appendix did not include the full trial transcript, the Appellate Division could not render an informed decision on the merits and the appeal was dismissed.

Student note:  An appellant who perfects an appeal using the appendix method must file an appendix that contains all those portions of the record necessary for the court to fully consider the issues which will be raised by the appellant and the respondent, pursuant to 22 NYCRR 670.10-b[c][1] and CPLR 5528[a][5].

Case:  Aguilar-Consolo v. City of New York, NY Slip Op 00312 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Plaintiff's wrongdoing as it affects a legal malpractice claim.

Friday, January 24, 2014

Comparative negligence and the Labor Law.

Practice point:  Comparative negligence is not a defense to an action predicated on Section 240(1). A plaintiff in an action involving the collapse of a permanent structure must establish that the collapse was foreseeable, not in a strict negligence sense, but in the sense of foreseeability of exposure to an elevation-related risk.

Student note:  Section 240(1) will be construed liberally in order to accomplish its purpose, namely, to put ultimate responsibility for safety practices at building construction jobs on the owner and the general contractor.

Case:  Garcia v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., NY Slip Op 00298 (1st Dept. 2014).

Here is the decision. 

Monday's issue: Perfecting an appeal using an appendix.

Thursday, January 23, 2014

Unsigned contracts.

Practice point:  Where the parties contemplate that a signed writing is required, there is no contract until one is delivered. However, an unsigned contract may be enforceable if there is objective evidence establishing that the parties intended to be bound. In determining whether the parties entered into a contractual agreement and what were its terms, the court must look to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds.

Student note: Where a question of intention is determinable by written agreements, the question is one of law. However, where the intent must be determined by disputed evidence or inferences outside the written words of the instrument, there is a fact-question.

Case:  Gallagher v. Long Is. Plastic Surgical Group, P.C., NY Slip Op 00204 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Comparative negligence and the Labor Law.

Wednesday, January 22, 2014

Discovery disputes.

Practice point:  The Appellate Division found that, given the appellants' persistent failure to cooperate with the plaintiffs' repeated requests to schedule the examinations of the plaintiffs, the Supreme Court providently exercised its discretion in granting the appellants' motion to strike the note of issue only to the extent of directing that the depositions of the plaintiffs be conducted expeditiously. However, the Appellate Division also found that, under the circumstances of this case, the court also should have directed the prompt independent medical examinations of the plaintiffs, and remitted the matter for the expeditious scheduling of those examinations. Finally, the Appellate Division did not disturb the court's .determination that the appellants, by their conduct, are deemed to have waived all other outstanding discovery.

Student note:  While the Supreme Court has broad discretion in supervising disclosure and in resolving discovery disputes, the Appellate Division may substitute its own discretion for that of the trial court in such matters, even in the absence of an abuse of discretion.

Case:  Clarke v. Clarke, NY Slip Op00200 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Unsigned contracts.

Tuesday, January 21, 2014

A slip-and-fall on water...near the pool, where else?

Practice point:  Defendants established entitlement to judgment as a matter of law in this action where plaintiff slipped and fell on water located on the tile floor around the indoor pool of defendants' health club. Defendants established that the presence of such water was necessarily incidental to the pool's use.

Student note: The mere fact that the water was there did not raise a fact-issue, and plaintiff did not assert a violation of a code, rule, regulation or industry standard. In addition, there was no evidence as to how long the water was on the floor, nor was the amount of water above and beyond what one might ordinarily expect find in the vicinity of a pool.

Case:  Dove v. Manhattan Plaza Health Club, NY Slip Op 00195 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Discovery disputes.

Monday, January 20, 2014

Court holiday.

The courts are closed to mark the holiday.

Tomorrow's issue:  A slip-and-fall on water...near the pool, where else?

Friday, January 17, 2014

A motion to compel arbitration.

Practice point:  Although doubts as to the arbitrability of a claim are to be resolved in favor of arbitrability, arbitration is a matter of consent, not coercion, and a party cannot be required to submit to arbitration any dispute which it has not agreed so to submit.

Student note:  The determination as to whether the parties have entered into an agreement to arbitrate is made by applying ordinary state law principles governing the formation of contracts.

Case:  Highland HC, LLC v. Scott, NY Slip Op 00089 (2d Dept. 2014).

Here is the decision.

Tuesday's issue: A slip-and-fall on water...near the pool, where else?

Thursday, January 16, 2014

A taxi driver's liability for a passenger's injury.

Practice point: Plaintiff established her entitlement to summary judgment on the issue of liability as against defendant-driver based on his violation of Vehicle and Traffic Law (VTL) § 1180(a), which provides that "[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing." Plaintiff's affidavit stated that after the accident, defendant-driver apologized to her for partly causing the accident by going 50 mph in a 30 mph zone. The statement is admissible as a party admission, and is sufficient to establish a violation of VTL § 1180(a).

Student note: A violation of traffic law, absent an excuse, constitutes negligence, and therefore plaintiff established a prima facie case of negligence.

Case:  Delgado v. Martinez Family Auto, NY Slip Op 00172 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: A motion to compel arbitration.

Wednesday, January 15, 2014

Libel per se and slander per se.

Practice point:   For purposes of defending against a cause of action alleging libel per se, statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, as long as they are material and pertinent to the issue to be resolved in the proceeding.

Student note:  The statute of limitations for an action to recover damages for slander is one year, pursuant to CPLR 215[3], measured from the date of the publication or utterance of the allegedly slanderous statement.

Case:  Cullin v. Lynch, NY Slip Op 00086 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A taxi driver's liability for a passenger's injury.

Tuesday, January 14, 2014

Liabillity of a commercial lessee.

Practice point:  The lessee of a condominium's commercial unit has no duty to maintain stairs that are part of the common elements but not part of its leased premises.

Student note:  Where, as here, the tenant-defendant had no duty to maintain the sidewalk on which the plaintiff allegedly fell, there was no need to address the issue of whether it had constructive notice of a dangerous condition.

Case:  Vivas v. VNO Bruckner Plaza LLC, NY Slip Op 00064 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Libel per se and slander per se.

Monday, January 13, 2014

Ambiguous contracts.

Practice point:  A contract is to be construed in accordance with the parties' intent, which typically is discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. A contract is ambiguous, however, if the terms are reasonably susceptible of more than one interpretation. Where a contract is ambiguous, extrinsic evidence may be considered to determine the parties' intent.

 Student note:  Whether a contract is ambiguous is a question of law to be resolved by the court.

Case:  Obstfeld v. Thermo Niton Analyzers, LLC, NY Slip 08601 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Liability of a commercial lessee.

Friday, January 10, 2014

A general contractor's liability.

Practice point:  Where a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition.

Student note:  Labor Law § 200 is a codification of an owner's or general contractor's common-law duty to provide workers with a safe place to work.

Case:  Hartshorne v. Pengat Tech. Inspections, Inc., NY Slip Op 08596 (2d Dept. 2013).

Here is the decision.

Monday's issue:  Ambiguous contracts.

Thursday, January 9, 2014

Power-washing is within the ambit of the Labor Law.

Practice point:  The defendants did not establish their prima facie entitlement to judgment as a matter of law, as they did not demonstrate that the plaintiff, who was injured while power washing buildings in preparation for painting them, was not engaged in a specifically enumerated activity under 12 NYCRR 23-1.4(b)(13). Painting is an activity enumerated under that provision, and the power washing performed here was in preparation for, and a contractual part of, the painting work. Accordingly, the power washing was not "routine maintenance" which is excluded from the ambit of Labor Law § 241(6), but, rather, was surface preparation, which was an integral part of the painting process contemplated by the parties.

Student note:  Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors 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. Section 23-1.4(b)(13) of the Industrial Code defines construction work as including all work "performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures."

Case:  Dixson v. Waterways at Bay Pointe Homeowners Assn., Inc., NY Slip Op 08591 (2d Dept. 2013).

Here is the decision.

Tomorrow''s issue: A general contractor's liability.

Wednesday, January 8, 2014

A motion for leave to enter a default judgment.

Practice point:  On a motion for leave to enter a default judgment under CPLR 3215[f], a plaintiff must submit proof of service of the summons and the complaint, the facts constituting the claim, and the defendant's default. To defeat the motion, the defendant must establish a reasonable excuse for the default and a potentially meritorious defense to the action.

Student note:  Where, as here, the defendant fails to establish a reasonable excuse for the default, it is unnecessary to determine whether she demonstrated the existence of potentially meritorious defenses to the complaint.

Case:  Diederich v. Wetzel, NY Slip Op 08590 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Power-washing is within the ambit of the Labor Law.

Tuesday, January 7, 2014

A judgment issued by a foreign country's court.

Practice point:  A money judgment issued by the court of a foreign country is recognized and enforceable in New York State if it is "final, conclusive and enforceable where rendered," pursuant to CPLR 5301. However, the judgment is not conclusive, and thus may not be recognized, if (1) it was "rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law" or (2) "the foreign court did not have personal jurisdiction over the defendant," pursuant to CPLR 5304[a][1], [2].

Student note:  A plaintiff seeking enforcement of the judgment bears the burden of making a prima facie showing that the mandatory grounds for nonrecognition do not exist.

Case:  Daguerre, S.A.R.L. v Rabizadeh, NY Slip Op 08587 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  A motion for leave to enter a default judgment.

Monday, January 6, 2014

Statute of frauds.

Practice point: The cause of action alleging breach of contract was found to be barred by the statute of frauds. It is undisputed that no there was no written agreement to convey half of the interest in the condominium to plaintiff, pursuant to General Obligations Law § 5-703. Similarly, while plaintiff acknowledged that he and defendant never entered into a common-law marriage or otherwise were married, he asserts that they were involved in a 10-year romantic and business relationship and that they entered into an oral agreement to share equally in the assets and resources they gained. Plaintiff testified that he expected this arrangement to last for his lifetime. Thus, the agreement was required to be in writing, pursuant to General Obligations Law § 5-701[a][1].

Student note:  Plaintiff correctly stated that the statute of frauds does not apply to partnerships or joint ventures created at willHowever, here there was no evidence of a joint venture or partnership in which the parties shared control, profits, and losses of their enterprise. Instead, plaintiff described an amorphous kind of partnership and admitted that defendant alone controlled the financial management of their company, including his salary and expenses, thereby establishing that he had no control over the company. Nor did he file tax forms that would demonstrate that theirs was a partnership or joint venture.

Case:  Massey v. Byrne, NY Slip Op 08534 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: A judgment issued by a foreign country's court.

Friday, January 3, 2014

Liability for a dog bite off the premises.

Practice point:  Plaintiff sought damages for injuries he allegedly sustained in an attack by a dog being kept by the night watchman at a construction site. Defendant, a general contractor, was constructing buildings on two adjacent properties, and had hired the night watchman and given him permission to keep the dog at the premises. The dog apparently escaped from the premises, and it and another dog attacked plaintiff on a public sidewalk near the site.

Defendant established prima facie that it was unaware of the dog's vicious propensities, through its owner's testimony that he had never received any complaints about the dog and was not aware of any previous incidents involving the dog, and that the dog appeared friendly and well trained when he observed it. However, plaintiff raised an issue of fact through the testimony of a nonparty witness that he had seen the dog bite an electrician working at the construction site approximately one month before the subject incident occurred and was present when defendant's foreman called the owner and told him what had happened.

Student note:  The owner or a party in control of premises may be held liable for injuries resulting from a dog bite that occurred off the premises if it had knowledge of the vicious propensities of the dog and had control of the premises and the capability to remove or confine the animal.

Case:  Hall v. United Founders, Ltd., NY Slip Op08530 (1st Dept. 2013).

Here is the decision.

Monday's issue: Statute of frauds.

Thursday, January 2, 2014

Liability for an independent contractor's negligence.

Practice point:  As a general rule, a party who engages an independent contractor is not liable for that contractor's negligent acts. There are exceptions, however, one of which implicates the nondelegable duty to keep the premises safe.

Student note:  Whenever the general public is invited into stores, office buildings, and other places of public assembly, the premises' owner is charged with the duty to provide members of the general public with a reasonably safe premises, including a safe means of entry and exit.

Case:  Blatt v. L'Pogee, Inc., NY Slip Op 08582 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Liability for a dog bite off the premises.

Wednesday, January 1, 2014

Happy New Year.

The courts are closed to mark New Year's Day.


Tomorrow's issue: Liability for an independent contractor's negligence.