Plaintiff was injured when he was hit by a bicyclist who was making deliveries for defendant, a franchisee of Papa John's. The First Department dismissed the complaint as against Papa John's, in Martinez v. Higher Powered Pizza, Inc., which was decided on September 13, 2007.

"The mere existence of a franchise agreement is insufficient to impose vicarious liability on the franchisor for the acts of its franchisee; there must be a showing that the franchisor exercised control over the day-to-day operations of its franchisee." The court noted that, here, the franchise agreement expressly states that the franchisee will have full responsibility for the terms of employment and conduct of its employees and for the day-to-day operation of its business, and that the only control the agreement reserves to Papa John's involves the enforcement of corporate standards regarding food quality and preparation, hours of operation, menu items, employee uniform guidelines, and packaging requirements.

Finally, the court said, Papa John's did not reserve control over the product-delivery process; the bicyclist was not employed by Papa John's; and Papa John's does not own or operate a restaurant in New York County.

Petitioner was a candidate to become a police officer and, in order to qualify, he had to take a polygraph examination. Based on that test, the department determined that petitioner was deceptive in answering questions about his involvement with illegal drugs and narcotics, and disqualified him from further consideration.

Petitioner commenced an administrative appeal and it was ordered that the polygraph results be sent to an independent police unit for verification, in this case, the Vermont State Police. That independent review confirmed petitioner's deceptiveness, and he was again notified that he was disqualified from employment.

The Second Department upheld the department's determination, in Mullen v. County of Suffolk, which was decided on September 11, 2007. The court noted that an appointing authority has wide discretion in determining the fitness of candidates, especially in the hiring of law enforcement officers, to whom high standards may properly be applied. The court said that a court will not interfere with the agency's decision unless it is irrational or arbitrary. Here, it was neither irrational nor arbitrary for the department to rely on its own reading of the polygraph results, as confirmed by an outside entity.

The Second Department dismissed an administrative complaint which had been filed, pursuant to Executive Law § 297(1), charging a public school district with an unlawful discriminatory practice, in violation of Executive Law § 296(a)(1), for an alleged refusal to hire because of petitioner's mental disability, in Matter of Isaksson-Wilder v. New York State Division of Human Rights, which was decided on September 11, 2007.

The court noted that, in an article 78 proceeding to review an agency determination which was made after a hearing at which evidence was taken, the agency's decision must be upheld if it is supported by substantial evidence. The court found substantial evidence in this record to support the agency's determination that the individuals responsible for hiring teachers were unaware that petitioner was disabled, and that they did not perceive her to be disabled.

Petitioner had challenged the agency's determination based on conflicting witness testimony at the hearing, but the court said that it is the function of the agency, and not the court, to weigh evidence and assess witness credibility.

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The First Department dismissed the complaint alleging injuries due to multiple chemical sensitivity (MCS) caused by a two-week exposure to mattresses and box springs purchased from defendant, in Spierer v. Bloomingdale's, which was decided on September 6, 2007.

The court noted that both state and federal courts have consistently determined that the cause or causes of MCS cannot be reliably established by scientific proof, and pointed to the fatal shortcomings of plaintiffs' evidence. "Aside from being inconsistent in determining the chemical compounds to which plaintiffs might have been exposed, if any, and failing to address other potential causes of plaintiffs' symptoms, the evidence lacks scientific support for a causal link between those chemicals found and MCS, a critical element of any toxic tort."

Plaintiff allegedly was injured when she tripped and fell on defendant's driveway. At her deposition, plaintiff testified that the accident occurred on the "edge" of the street, and that the cause of her accident was that "the earth was not good" and the "place is wrong." She later indicated that there was "[l]ike a hole." Plaintiff then circled on a photograph the location where she allegedly fell.

The Second Department dismissed the complaint, in Shohet v. Shaaya, which was decided on September 4, 2007. Upon scrutiny of the photograph as circled by the plaintiff and the other evidence in the record, the court concluded that the alleged defect did not constitute a trap or nuisance and was merely a trivial defect which, as a matter of law, was not actionable.

On the Sidewalks of New York

Tree wells are not a part of sidewalks, at least not for purposes of Administrative Code of the City of New York § 7-210, which requires owners of real property to maintain abutting sidewalks in reasonably safe condition, or so said the First Department, in Vucetovic v. Epsom Downs, Inc., which was decided on September 6, 2007.

The court noted that, pursuant to Administrative Code § 19-101[d], a "sidewalk" is "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians." The court concluded that tree wells are not intended for pedestrian use, "and therefore they are not part of the sidewalk."

Two judges filed a lengthy dissent, pointing to § 7-210(b) which reads, in pertinent part, that "[f]ailure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk." The dissenters concluded that the Code expressly acknowledges that an owner's duty extends beyond merely repairing sidewalk flags or removing ice and snow, and that it runs to tree wells.

Plaintiffs' decedent, a supervising engineer at Brooklyn's Woodhull Hospital, was investigating a missing fan belt in the heating and cooling system, when he fell 30 feet from a narrow beam between two catwalks.

Plaintiffs commenced an action against decedent's employer, New York City Health and Hospitals Corporation, and the City of New York, alleging, among other things, violations of Labor Law §§ 240(1) and 241(6).

The Second Department found that decedent was injured doing routine maintenance involving the replacement of a missing component, and not while involved in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure," so as to fall within the protective ambit of § 240(1), in English v. City of New York, which was decided on September 4, 2007.

In addition, the court found § 241(6) inapplicable, since decedent was not working in a construction area, and the accident did not occur in connection with construction, demolition, or excavation work.

In 1989, defendant executed a promissory note in favor of plaintiff's predecessor-in-interest, Chemical Bank. On his loan application, defendant gave a Brooklyn address as his residence and stated that he had been living there for 20 years. Defendant defaulted and, in 1994, Chemical Bank commenced an action to collect on the note. A summons and complaint was allegedly served on defendant by personal delivery to defendant's aunt, at the address listed on the note. Plaintiff contends that the summons and complaint was also mailed to that address.

In 1992 defendant was arrested on an unrelated matter, and, though plaintiff was unaware of it, he was incarcerated until 2005.

When defendant failed to respond to service of the summons and complaint in this action, Chemical Bank moved for a deficiency judgment on default, which was granted in 1994, in the amount of $47,543.64. In 1997, this unsatisfied judgment was assigned to plaintiff. It was filed with the Clerk of Kings County in 1999, and became a lien upon any real property owned by defendant in Kings County. A renewal of the judgment was entered in 2005.

In 2006, plaintiff moved for an order authorizing the Kings County Sheriff to mail all required papers in aid of execution of the 1994 judgment to defendant's last known address in Brooklyn, and to his counsel. Plaintiff also sought to amend the caption in this action to substitute its name for Chemical Bank.

The First Department denied defendant's cross-motion, in which he claimed a lack of personal jurisdiction and sought to dismiss the action and to vacate the 1994 judgment, in The Cadle Company v. Nunez, which was decided on September 6, 2007. The court found the record clear that service of a copy of the summons and complaint had been made to a person of suitable age and discretion, in conformity with statutory requirements, and that after such service plaintiff mailed the summons and complaint to defendant at his last known address, in satisfaction of the jurisdictional requirements of CPLR 308(2).

The court noted that plaintiff produced the process server as its only witness at the traverse hearing, and credited his testimony. The court further noted that defendant "produced four witnesses, all of whom were interested parties. Further, their testimony was rife with contradictions and inconsistencies. For example, defendant's aunt, the relative named on the affidavit of service testified that she could not have been the brown haired woman described in the affidavit of service because her hair color is blonde. However, upon production of her passport, she admitted that her hair is and was brown."

Defendant produced three other witnesses -- two relatives and his business partner -- but the court said that their testimony was tailored to show that defendant did not have notice of the action, and the court found their testimony incredible as a matter of law.

In a dispute involving home improvements which plaintiff was hired to perform for defendants, defendants did not answer and plaintiff was given a default judgment. Defendants moved to vacate, pursuant to CPLR 5015(a)(5), on the sole ground that they never received process or other notice of the suit until after the judgment was issued and their bank account was frozen.

In opposing the motion, plaintiff alleged that service of process was effected upon defendants' doorman as a person of suitable age and discretion, followed by the requisite mailing and the filing of an affidavit of service, as permitted by CPLR 308(2). Plaintiff also offered into evidence, by affidavit, a follow-up notice advising defendants of the suit, pursuant to CPLR 3215(g).

The Second Department said that the motion to vacate was premature, and ordered a hearing to determine whether service of process had been effected, thereby resolving the jurisdictional issue, in CLE Assoc., Inc. v. Greene, which was decided on August 7, 2007. The court said that, in the absence of that hearing, it was impossible to say whether defendants had a meritorious defense and a reasonable excuse for failing to appear, both of which would be necessary for their motion to be granted.

The Second Department granted plaintiffs' motion to restore the action to active status and to extend their time to serve and file a note of issue, even though, six months earlier, a certification order provided for dismissal if plaintiffs failed to file a note of issue within 30 days, in Ratway v. Donnenfeld, which was decided on August 21, 2007.

The court said that the certification order did not constitute a 90-day demand pursuant to CPLR 3216 since it gave the plaintiffs only 30 days within which to file the note of issue, and so, with that failure of a condition precedent, the action could not have been dismissed. The court noted that, since plaintiffs were not moving to reinstate the note of issue, they were not required to demonstrate a meritorious action pursuant to 22 NYCRR 202.21[f]).