Plaintiff should have seen it coming.

While plaintiff was on defendant's premises to vote in a school budget election, she allegedly fell and was injured when she failed to note the single step in a hallway leading to the gymnasium, where the voting was taking place. Plaintiff acknowledged that she had been looking at a sign on the wall just before approaching the step on which she tripped. The Second Department dismissed the complaint, in Groon v. Herricks Union Free School District, which was decided on July 10, 2007. Noting that a landowner has no duty to protect or warn against conditions which are readily observable by the reasonable use of one's senses, the court found evidence in the record, including photographs taken by the plaintiff's daughter shortly after the accident, revealing that a yellow line had been painted across the top of the step to alert passersby of the height differential, and that, adjacent to the step, there was a short ramp, allowing passersby to circumvent the step altogether.

In New York the standard is Frye.

When plaintiff was admitted to the hospital after having had a stroke, it was discovered that she had bradycardia, which is a heart rate of fewer than 60 beats per minute. Her treating physicians were convinced that the bradycardia had caused the stroke, and that it could have been prevented had a pacemaker been inserted within the previous year. The First Department dismissed the subsequent medical malpractice action, in Marso v. Novak, which was decided on July 19, 2007. Noting that plaintiff's own causation-expert testified that it is not generally accepted in the scientific community that bradycardia is a risk factor for the type of stroke plaintiff suffered, the court found that New York's Frye standard was not satisfied. The court specifically rejected plaintiff's argument that, because all other possible causes had been eliminated by testing, Frye was not implicated.

CPLR 208's insanity toll does not terminate on the appointment of a guardian, according to the First Department, in Giannicos v. Bellevue Hospital Med. Ctr., which was decided on July 19, 2007. This medical malpractice action had been tolled after a Special Referee found that the incapacitated plaintiff was unable to protect his legal rights because of an overall inability to function as the result of a stroke.

Out of sight but not off the hook.

Plaintiff-tenant was injured when she was struck by her store's roll-up security gate which, over time, had become detached from the building. The First Department denied the out-of-possession landlord's motion for summary judgment, in Hakim v. 65 Eighth Avenue, which was decided on July 19, 2007. The court noted that the damage to the security gate was allegedly caused by prolonged water exposure from a leaking roof, and that, by the terms of the lease, the landlord was responsible for repairs to both the structure and the roof.

After defendant was terminated in the wake of a scandal involving his work-unit, he sued his employer for damages, alleging that his employer had made defamatory statements blaming him for the problem.

Defendant's retainer agreement with plaintiff put a one-million dollar cap on plaintiff's hourly fees, and also allowed for a 10% "Success Fee" on eligible amounts recovered between one-million and ten-million dollars, subject to the following limitation: "The Success Fee will be computed only on amounts in excess of current vested entitlements, or entitlements to be vested by January 2006."

Defendant and his employer eventually settled, and defendant received, among other things, a five-million dollar cash payment. The First Department determined that plaintiff is entitled to a success fee based on that payment, in Kaplan v. Jones, which was decided on July 19, 2007.

Characterizing the success fee-language as unambiguous, the court categorically rejected defendant's argument that the word "entitlements" refers to any compensation defendant would have received had his employment not been terminated, and that, since he would have been compensated more than five-million dollars had he not been fired, no success fee was owing.

Their number's up.

Defendant-newspaper published a string of numbers which participants in its "Scratch n' Match" daily game were to scratch off on their game cards, potentially revealing prizes up to the sum of $100,000. The game's official rules were printed on the reverse side of each game card. The following day, the newspaper published a notice saying that the numbers had been mistaken. Relying on the incorrect numbers, though, several participants claimed to have won the $100,000 prize.

Pursuant to the contest's rules, the newspaper then conducted a random drawing from among those claimants to determine the actual winner. The Second Department dismissed the losers' suit, in Sargent v. New York Daily News, which was decided on July 17, 2007.

The court noted that the rules contained a provision stating, "[i]f due to a printing, production or other error, more prizes are claimed than are intended to be awarded for any prize level per the above, the intended prizes will be awarded in a random drawing from among all verified and validated prize claims received for that prize level." The rules also provided that, "[i]n no event will more than the stated number of prizes be awarded." The rules set forth how many prizes at each prize level would be awarded each week, and specified that there was to be one $100,000 prize awarded weekly. The rules further provided that "[i]n the event of printing, production or other error, or the distribution of an irregular game card occurs," the newspaper would not be liable. Finally, the rules specified that participants agreed to be bound by the official rules.

The court cited hornbook law that contest rules constitute a contract offer and that a participant's entry into the contest constitutes an acceptance of that offer, including all of its terms and conditions.

The building owner's getting off here.

Plaintiff was injured when, just after the doors closed, an elevator suddenly fell four floors. The First Department dismissed the complaint as against the building's owner, in Hodges v. Royal Realty Corp., which was decided on July 12, 2007.

The court noted that the doctrine of res ipsa loquitur may be invoked in an action involving a malfunctioning elevator, but only if it can be established that (1) the elevator's sudden fall would not ordinarily occur absent negligence; (2) when the elevator fell, it was within the defendant's exclusive control; and (3) plaintiff did not contribute to the elevator's fall in any way.

Here, the court found that the owner did not have exclusive control of the elevator. The court pointed to a service contract which required defendant-elevator company to maintain the elevators in a proper and safe operating condition, perform periodic inspections, repair all defects and provide on site a full-time elevator mechanic whose sole responsibility was to care for and maintain the building's elevators.

The United States Bankruptcy Court authorized the debtor to bring this action, on behalf of the bankruptcy trustee, to recover damages for legal malpractice against the debtor's original attorneys. Initially, the debtor, and not the bankruptcy trustee, was named as a party-plaintiff. The Second Department held that the inadvertent designation was a mere mistake which could be corrected pursuant to CPLR 2001, in Silverman v. Flaum, which was decided on July 10, 2007.

The court found that defendants would not be prejudiced, and noted that the statute authorizes the court to correct a mistake, omission, defect, or irregularity at any stage of an action.

They should have called housekeeping.

Plaintiff allegedly slipped and fell on a green substance on the floor of defendant's store. Although there were no witnesses to the accident, an assistant store manager observed the green substance on the floor shortly after plaintiff's fall and, in her accident report, noted that it had come from a small bottle of fragrance oil which had fallen from a plastic display attached to a shelf.

In Chetuti v. Wal-Mart Stores, Inc., which was decided on July 10, 2007, the Second Department found this sufficient to raise a triable issue of fact as to whether defendant had created the alleged dangerous condition or, in the alternative, whether defendant had actual or constructive notice of its existence.

The First Department denied petitioner's request for a preliminary injunction enjoining respondents from importing and marketing a certain product, and from disclosing or using any confidential information which had been obtained in their business relationship, in OraSure v. Prestige Brands Holdings, which was decided on July 12, 2007.

The court noted that, in order to merit injunctive relief, petitioner was required to make a clear showing that (1) it would likely succeed on the merits, (2) it will suffer irreparable injury unless the relief sought is granted, and (3) the balancing of equities is in its favor. Here, petitioner's damages were calculable, and, as a matter of law, a monetary harm which can be compensated by damages does not constitute irreparable injury.

Made in New York.

Defendant is a Pennsylvania lawyer who was retained by a New York resident to represent him in a probate matter in Connecticut. Defendant collected more than $400,000 in legal fees and allegedly appropriated a $200,000 "success fee" from the proceeds of a settlement which defendant procured. After his death, the client's estate commenced this action to recover a substantial portion of the legal fees, alleging that they were excessive. The estate also seeks the return of the success fee. The First Department denied defendant's motion to dismiss for lack of personal jurisdiction, in Scheuer v. Schwartz, which was decided on July 5, 2007. Even though the retainer agreement was not executed in New York, the court found that, in performing the agreement, defendant's contacts with New York were sufficient to merit long-arm jurisdiction pursuant to CPLR 302(a)(1). The court noted that defendant made at least ten trips to New York in connection with the matter, and that, among other things, he reviewed documents in the offices of his client's former attorneys and had several meetings with both his client and his client's adversaries in the probate proceeding. Defendant billed approximately 70 hours for work performed in New York, representing approximately 8% of the approximate 824 total hours billed for the Connecticut matter.