Petition for Reinstatement

Petitioner was appointed as a probationary police officer, but was later terminated when it was determined that he committed fraud on his application. On appeal, the New York City Civil Service Commission directed that he be reinstated.

Petitioner appeared for a mandatory medical examination but was found not qualified for reinstatement, and he commenced a proceeding to enforce the Commission's directive that he be reinstated, and seeking retroactive salary and benefits. During the pendency of the proceeding, petitioner's medical records were reevaluated and it was determined that he was qualified for reinstatement and was so notified, but petitioner refused the offer.

The First Department denied the petition and dismissed the proceeding, in Matter of Allocca v. Kelly, which was decided on October 2, 2007, saying that petitioner had refused the only relief to which he was entitled. The court noted that, although the Commission had directed petitioner's reinstatement, it did not award him retroactive salary and benefits, and was without authority to issue such an award. Citing CPLR 7806, the court said that the retroactive salary and benefits being sought were not incidental to petitioner's reinstatement as a police officer.

The court also denied petitioner's request for disclosure of his medical records to assist him in settlement negotiations. The request was made for the first time in petitioner's response to the City's motion to dismiss, and so it was not properly before the court. In addition, said the court, petitioner made no showing that the records were material and necessary to the prosecution of this proceeding.

Late Notice of Claim

Since plaintiff did not serve the notice of claim within 90 days of the alleged injury, as required by General Municipal Law § 50-e[1][a], the First Department dismissed the complaint, in McCrae v. City of New York, which was decided on October 2, 2007. The court noted that plaintiff did not move for leave to file a late notice of claim within one year and 90 days, pursuant to General Municipal Law § 50-e[5]; § 50-i[1].

"The Transit Authority's alleged waiver of its jurisdictional defenses does not warrant a different finding inasmuch as a timely notice of claim is a condition of maintaining the action which may not be waived in the manner of an affirmative defense. Similarly, the Transit Authority was not estopped from seeking dismissal of the cause of action."

Employment Law

The First Department upheld defendant-law firm's firing of plaintiff, a black paralegal, in Stewart v. Schulte Roth & Zabel, which was decided on October 4, 2007. The court said that plaintiff had not offered any evidence to refute defendant's showing that the termination was based on a number of well-documented performance reviews by many of the attorneys for whom plaintiff had worked. Instead of addressing these negative performance reviews, plaintiff's evidence focuses on the transfer of some of her cases to her only similarly situated co-worker, who is white, thereby reducing her billable hours and denying her credit for work she says she performed.

Although informed of the firm's anti-discrimination policies, including a requirement that discrimination complaints be reported to specific persons, plaintiff never complained that the alleged shifting of work was discriminatory, and did not offer any evidence permitting an inference that it was.

The court noted that the firm's reason for terminating plaintiff was not insufficient billable hours or an unwillingness to work, but the poor quality of her work and an inability to accept suggestions for improvement. Finally, the court noted that there is no evidence tending to show that the performance reviews were inaccurate, much less the product of collusion among the reviewing attorneys to supply a pretext for race discrimination.

All bets are off.

The First Department upheld the state's denial of a petition for a race-track management license, in Scott v. New York State Racing and Wagering Board, which was decided on October 4, 2007. The court said the board's determination was supported by substantial evidence, including several misstatements in petitioner's financial disclosure. The court reasoned that the state was justified in requiring prospective track managers to demonstrate accurate record-keeping, since in the sport of horse racing, on which betting is legal, there is the potential for illegality.

Additionally, the court gave deference to the hearing officer's findings that petitioner had deliberately misrepresented certain of his financial holdings. Finally, the court found no nothing in the record to support petitioner's arguments that he was the victim of selective enforcement, and that the board had demonstrated an inherent bias toward him.

Res Ipsa.

Plaintiff allegedly was injured when the elevator in which she was riding fell rapidly and came to an abrupt stop, out of alignment with the floor. The Second Department refused to dismiss the complaint against the company retained to service and maintain the elevator, in Fyall v. Centennial Elevator Industries, which was decided on September 25, 2007.

According to the court, there could be liability under the doctrine of res ipsa loquitur if plaintiff can offer proof that (1) the elevator's rapid descent and abrupt, misaligned stop would not ordinarily occur in the absence of negligence, (2) the maintenance and service of the elevator was within the exclusive control of defendant, and (3) no act or negligence on plaintiff's part contributed to the accident.

Bad Form.

Plaintiff is a former sanitation worker who brought this action in 1999, alleging defendants had failed to comply with a prior judgment which ordered reinstatement to his former position or appointment to an alternative position with comparable rank, pay and benefits.

Nothing has yet been done, and the First Department said that plaintiff's complaint for enforcement should be converted into a contempt proceeding, in Nunez v. City of New York, which was decided on September 27, 2007.

Without passing on the merits of the contempt proceeding, the court cited CPLR 103(c), which gives discretion to convert an improperly brought action into its proper form.

Bus Stop.

Plaintiff was riding on a bus when, according to the bus driver, a car came out of nowhere, causing the driver to slam on the brakes. Plaintiff, who had been standing in the aisle holding a handle, lost her balance, struck her head on the fare box, lost consciousness, and has no recollection of the incident. A Transit Authority internal investigation concluded that the bus driver had failed to recognize the hazard.

In spite of the Transit Authority's own finding, the First Department dismissed the complaint, saying that, as a matter of law, the bus driver had acted reasonably in an emergency not of his own making, in Rahimi v. Manhattan & Bronx Surface Transit Operating Authority, which was decided on September 27, 2007. The court explained that the Transit Authority's s rules requiring that its drivers anticipate that other drivers will violate the rules of the road impose a standard of care higher than the common law, and cannot be the basis for imposing liability on the Transit Authority. The court gave short shrift to plaintiff's expert witness who merely offered a conclusory reiteration of the Transit Authority's determination.

Failure to prosecute

Strict conformity to the notice requirements of CPLR 3216 is a condition precedent to dismissal for failure to prosecute, according to the Second Department, in Harrison v. Good Samaritan Hospital Medical Center, which was decided on September 18, 2007. The court explained that, since 3216 is a legislative creation, it cannot be part of a court's inherent power.

Specifically, defendant must serve a written notice demanding that plaintiff resume prosecution of the action and file a note of issue within 90 days after receipt of the demand, and must stating that failure to comply with the demand will serve as the basis for a motion to dismiss the action.

An Inconvenient Forum.

The First Department denied defendant's motion to dismiss based on forum non conveniens, in Jones v. Eon Labs, Inc., which was decided on September 18, 2007.

The court said that the motion was untimely since it was made two years after the commencement of the action, and after there had been significant progress in discovery.

Moreover, said the court, defendant failed to carry its burden of demonstrating that its inconvenience strongly favors removal of the action to Virginia. "While many witnesses do appear to reside in Virginia, the very discovery statute cited by defendant (Va Code Ann § 8.01-411), through which it would assertedly be forced to operate to obtain depositions and other discovery, provides a simplified procedure."

Where's the causality?

Plaintiff allegedly was injured when she tripped on a concrete wheel-stop in a parking lot. The Second Department dismissed the complaint, in Albano v. Milano's Discount Wines & Liquors, which was decided on September 18, 2007.

Plaintiff offered expert evidence that the parking space's design violated various provisions of the New York City Building Code, but, in spite of that, the court said plaintiff failed to raise a triable issue of fact as to whether the allegedly defective design was a proximate cause of her accident.

Statutory Liens.

After a medical malpractice action settled, plaintiff's current counsel moved to preclude one of plaintiff's former counsels from an entitlement to an award of attorney's fees, arguing, among other things, that the original retainer agreement did not specify the retained attorney's name.

The Second Department said the former counsel is entitled to fees, in Fuentes v. Brookhaven Memorial Hospital, which was decided on September 18, 2007. The court said that the former counsel has a statutory lien, pursuant to Judiciary Law § 475, against the settlement proceeds since he was an attorney of record, he had filed the summons and complaint, and he had prosecuted the action to the point of trial.

The court gave short shrift to the fact that certain sections of the retainer agreement had been left blank, since they were not the subject of the dispute. In addition, the former counsel had filed his own retainer agreement, albeit late, and this was sufficient under the circumstances to preserve his right to recover a share of the fee.