Plaintiff had retained defendant to commence a medical malpractice action, and, shortly before trial in that case, there was a settlement offer of a million dollars. It was not accepted, the case went to trial, and plaintiff won a jury verdict of $330,000. Plaintiff then commenced this action for legal malpractice, claiming, among other things, that defendant had never communicated the settlement offer, a charge which defendant denies. The Second Department dismissed the complaint, in Bauza v. Livington, which was decided on May 15, 2007, saying that plaintiff had not made the necessary showing of proximate cause, namely, that, but for the alleged negligence, the settlement offer would have been accepted. The court noted that plaintiff had testified only that she was "pretty sure" that she would have accepted the offer, and that plaintiff had consented to a court-approved order which paid counsel fees, thus establishing that the fee was appropriate and that there had been no malpractice.

The parol evidence rule precludes extrinsic evidence to contradict or change the terms of a written contract which embodies the agreement between the parties. It is admissible only to clarify ambiguities or to show that it was not the parties' intention to enter into an enforceable contract, or so said the First Department, in Cole v. Macklowe, which was decided on May 17, 2007. The court noted that parol evidence may be admitted to show that the entire writing is a nullity, but not that select provisions of the writing were not to be enforced.

As specified in DR 5-102(c) and 22 NYCRR 1200.21(c), the advocate-witness disqualification rule is intended to provide guidance, and is not binding authority, at least according to the Second Department, in Ahrens v. Chisena, which was decided on May 15, 2007. The court said it was permissible for plaintiff's counsel to testify that he had personally delivered the summons and complaint. The court explained that where it was not a necessity that the party's counsel be called as a witness, there was no violation of the rule.

For plaintiff, this train's still in the station.

To succeed in getting an action restored to the trial calendar, movant must make a showing that (1) the cause of action is meritorious, (2) there was a reasonable excuse for the delay in restoring, (3) there was no intent to abandon, and (4) there is no prejudice to the other side, or so said the Second Department, in Pryor v. Long Island Rail Road, which was decided on May 8, 2007. In granting plaintiff's motion to restore, the court noted that the action was originally marked off the calendar voluntarily to permit further discovery, that the parties had stipulated to extend plaintiff's time to restore, and that the parties continued to conduct discovery beyond the time agreed to.

Bridge Over Troubled Waters

Claimant was sandblasting on a bridge when he slipped and, in breaking his fall, was injured when he was sprayed with sand from his sandblasting hose. Claimant said that he had been given a safety harness but that there were no safety cables to which he could anchor it. In Bonilla v. State of New York, which was decided on May 8, 2007, the First Department found that claimant could seek damages under Labor Law 240(1), which imposes absolute liability on owners and contractors who fail to provide or erect safety devices necessary to properly protect workers from elevation-related hazards. Notwithstanding the nature of claimant's injury, recovery under the statute was not foreclosed since he was working on a bridge more than 100 feet above the ground.

For this plaintiff there'll be no dancin' in the dark.

Plaintiff alleged injuries after she tripped and fell on a walkway inside a parking garage at a state university's medical center, and she sued the garage, which had a contract with the university. The Second Department dismissed the complaint, in Huttie v. Central Parking Corp., which was decided on May 8, 2007, because the contract, without more, did not subject defendant to tort liability to a third party. The court said that "[t]here are three circumstances under which a party who enters into a contract to render services may be said to have assumed a duty of care, and thus be potentially liable in tort to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies upon the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely." The court found none of those circumstances here, specifically saying that plaintiff could not have relied on the garage's contractual duties since plaintiff had admittedly entered the garage knowing that it was pitch-dark because of a regional blackout.

Wedding-bell blues.

The parties entered into a prenuptial agreement which stipulated, among other things, that they would execute their respective wills leaving to the other at least 1/3 of their gross estates, and waiving their elective shares. Four years after they were married, they divorced, and plaintiff sued to compel defendant's compliance with the agreement as to their wills. The Second Department found for defendant, in Genovese v. Axel, which was decided on May 8, 2007. The court noted that the provision in question was headed "Release of Rights" and that it made specific reference to "surviving spouse" and "deceased spouse," clearly indicating the parties' intention that, if they were no longer married, the provision would be of no effect.

Discover this.

The First Department denied plaintiff's motion for discovery sanctions, in Bennett v. Riverbay Corp., which was decided on May 10, 2007. The court noted that, absent special circumstances, defendant has deposition priority, and said that, since plaintiff's deposition had gone until 4 p.m. on the day in question, there was nothing sanctionable in defendant's not producing witnesses that same day.

Plaintiff, take your lumps.

Plaintiff was boarding a city bus just as the driver ordered the passenger ahead of her to get off. As that passenger turned around, he knocked the plaintiff over and she fell into the street. The city moved for summary judgment, arguing that plaintiff's injuries were wholly attributable to the actions of the other passenger, and not the result of the driver's negligence. The Second Department agreed, in Culmone v. New York City Transit, which was decided on May 8, 2007. The court said that even if the driver had been negligent, his conduct only furnished an occasion for the injury-producing event, and that the other passenger's behavior was the sole proximate cause of plaintiff's injuries.

A year and a half after commencing the action, and with some discovery done, plaintiff filed a note of issue which defendant moved to vacate pending the completion of discovery. The court adjourned that motion so that discovery could be completed by a specified date. Two pretrial conferences were scheduled and then adjourned because one or the other of the attorneys was absent. Another pretrial conference was scheduled and, while both attorneys were there, it was noted that plaintiff still had not taken defendant's deposition. Still another pretrial conference was scheduled and, this time, plaintiff was represented by a per diem attorney who knew nothing of the case and had no authority to act. Since defendant's deposition had still not been taken, and since plaintiff's counsel had disregarded the court's instruction to make a settlement demand, the court dismissed the action for abandonment, pursuant to CPLR 3404. The First Department remanded for a sanction less drastic than dismissal, in Alveranga-Duran v. New Whitehall Apts., which was decided on May 8, 2007.The court noted that plaintiff's counsel had not been specifically warned that his noncompliance would result in dismissal, and, even more telling, the court found that plaintiff had not been responsible in any way for counsel's dereliction. The court said that, while counsel should be sanctioned, plaintiff should not be denied a day in court.

What are the proper standards for (1) a trial court's ruling on a motion to transfer venue, and (2) an appellate court's review of that ruling?

The court must be satisfied that the movant has produced "admisible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained," according to the Second Department, in Behrins & Behrins v. Chan, which was decided on May 1, 2007. The court noted that ruling on the motion is left to the sound discretion of the trial court, pursuant to CPLR 510(2), and that its determination "will not be disturbed absent an improvident exercise of discretion."