The clock ran out.

The First Department granted defendant's motion to dismiss, in Doddy v. City of New York, which was decided on November 20, 2007. Plaintiff had moved to file a late notice of claim just eight days before the one-year-and-90-day statute of limitations expired. The motion was filed as timely served 265 days later, during which time the statute was tolled. Once the motion was filed, though, the toll was lifted and so plaintiff had only eight days to serve the summons and complaint. Plaintiff failed to timely serve. The court pointed to General Municipal Law § 50-i(3) which says that the one-year-and-90-day limit may not be extended.

A computer glitch is law office failure.

The First Department vacated the default of defendant-law office, in Lancer Insurance v. Rivera, which was decided on November 20, even though the court said the excuse for failing to appear at the framed-issue hearing was "weak." Defendant said that its office computer incorrectly listed the hearing as set down for Nassau County, but did not say whether anybody from the firm appeared at Nassau. Still, said the court, it's tantamount to law office failure, which is a recognized excuse for vacating a default. The court noted the strong public policy of deciding cases on the merits, and said that the case must have had some merit given that a framed-issue hearing was even scheduled.

Lack of interest.

Plaintiff settled his claim for three-hundred-thousand dollars, but will not get interest, pursuant to CPLR 5003-a(e), because he did not timely provide defendant with the hold harmless stipulation and his W-9 form, according to the First Department, in Cely v. O'Brien & Krietzberg, which was decided on November 15, 2007.

The court noted that neither the CPLR nor the open court settlement agreement required the documents as a condition of paying the settlement amount, but said that the defendant had a right to ask for the documents, citing the Internal Revenue Code, 3406(a)(1)(A), and New York case law.

CPLR 214-a.

The First Department dismissed a dental malpractice claim because it was commenced beyond the two and one-half year statute of limitations, pursuant to CPLR 214-a, in Cresson v. New York University College of Dentistry, which was decided on November 13, 2007.

Defendant established through documentary evidence that, following plaintiff's last scheduled appointment, it put plaintiff on notice of its decision to discontinue treating her and that she would have to pursue outside consultation for her orthodontic complaints. The court found no basis upon which to find that defendant anticipated providing further orthodontic services to plaintiff.

Procedure matters.

The First Department dismissed an Article 78 petition seeking to overturn the termination of petitioner's employment, in Fluellen v. Hanley, which was decided on November 13, 2007.

The court pointed to the collective bargaining agreement which required petitioner to avail herself of a four-step grievance procedure in connection with the disciplinary proceeding. Petitioner did not go through the fourth step in the procedure and so was precluded from even bringing the Article 78 proceeding. Furthermore, said the court, she participated in the second and third steps of the grievance procedure without objection, notwithstanding her union's objection to the procedure during the first step, and so she effectively acquiesced to it.

The court acknowledged the legitimacy of petitioner's argument that her employer had improperly converted a proceeding to determine her medical fitness into a disciplinary proceeding, but it went for naught because she still was required to exhaust the grievance procedure. Indeed, petitioner could have raised her conversion claim in the disciplinary proceeding, and she did so.

Out of work and out of court.

The First Department found that defendant had offered legitimate, nondiscriminatory reasons for plaintiff's termination, in Elizarov v. Martha Stewart Living, which was decided on November 8, 2007. The court said that plaintiff offered no evidence to controvert defendant's proof that economic conditions made cost-cutting necessary, resulting in significant job layoffs, or that defendant's downsizing was somehow contrived for the purpose of terminating him. In addition, noted the court, plaintiff conceded that defendant granted his vacation request and let him attend religious services during his lunch hour. In light of that, his alleged "failure to accommodate" claim was dismissed.

Up to code.

While playing basketball in defendant's gym, a student was injured when his hand struck a pane of glass in a door and the pane shattered. The student's parent filed suit alleging, among other things, that defendant was negligent in failing to install safety glass in the door. According to plaintiffs' engineering expert, safety glass prevents injury because of its ability to withstand pressure and its tendency, if broken, not to form large sharp edges.

Defendant moved to dismiss, maintaining that the glass did not constitute a defective condition, and the Second Department granted the motion, in Dwyer v. Diocese of Rockville Center, which was decided on November 7, 2007. The court said that, as a matter of law, defendant was not negligent since it submitted evidence showing that the door fully complied with all applicable building codes which were in effect at the time the school was built.

The default stands.

In an action to recover damages for personal injuries, the Second Department refused to vacate a default judgment, in Anderson v. GHI Auto Services, decided on November 7, 2007, noting that defendant failed to demonstrate a reasonable excuse for the default and a meritorious defense, pursuant to CPLR 5015 [a][1].

The court also rejected defendant's argument of improper service, noting that the mere denial of having received the summons and complaint cannot rebut the presumption of proper service created by the affidavit of service, pursuant to 5015(a)(4).

In any event, said the court, defendant cannot be relieved from its default because of CPLR 317, which says that a defaulting person who had been served other than by personal delivery, may be allowed to defend the action within one year after learning of entry of the judgment, but no more than five years after the entry. Here, the judgment was entered in 1997 and defendant did not move for relief until 2006.

The elevator's here and it's safe to get on.

The First Department dismissed a complaint seeking damages allegedly suffered when plaintiff tripped and fell while exiting an elevator at work, in Cortes v. Central Elevator, Inc., which was decided on November 8, 2007. The court found that defendant offered submissions sufficient to establish that the elevator was working properly and that there was no misleveling problem on the day of the accident. Among other things, the court pointed to plaintiff's deposition testimony that he did not see the elevator in a misleveled state after his fall, and an affidavit from an elevator consultant who inspected the elevator and concluded that its doors would not have opened if the elevator was more than one-half inch below the hallway floor.

The court noted that plaintiff's expert's affidavit was conclusory and unsupported by the anything in the record. The court gave short shrift to plaintiff's res ipsa argument, noting that the accident could have occurred in the absence of negligence and could have been caused by a misstep on plaintiff's part.

In light of its determination, plaintiff's cross-motion to compel production of post-accident maintenance records was academic, but, the court opined that it was improper because neither control nor defective manufacture were at issue.

No on discrimation and harassment, but yes on retaliation.

The First Department dismissed plaintiff's sex discrimination and sexual harassment claims, in Clayton v. Best Buy, which was decided on November 8, 2007, noting that, under the New York Human Rights Law, an employer is not liable for an employee's act of discrimination unless the employer became a party to it by encouraging, condoning, or approving it.

The court found that when plaintiff reported the incident, defendant immediately took action, reprimanding the offending employee on the same day the incident occurred and warning him that another similar incident would result in his dismissal. Furthermore, the court said there was no evidence that plaintiff's workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive so as to alter the conditions of plaintiff's employment and create an abusive working environment.

The court also found that plaintiff's allegations of sexual and inappropriate remarks made by various employees of defendant were insufficient to support a claim of intentional infliction of emotional distress.

However, the court did find an issue of fact on the retaliation cause of action, in which plaintiff claimed that defendant had reduced her hours, saying that business had slowed, even though she was considered a good employee and no other cashiers' hours were reduced.

The courts are closed for Veterans Day but the law office is open and so we are posting.

Of course, best wishes to my fellow Vietnam veterans and to the women and men whose service has kept us free.

Staying put.

In this action for personal injuries and wrongful death, the First Department denied third-party defendant's motion to change venue from Bronx to Westchester, in Bakiriddin v. Idi Construction, which was decided on November 8, 2007.

Plaintiff's decedent, who was third-party defendant's employee, was injured at a construction site in New York County and was taken to a hospital in New York
County, where he remained for two months. He then was moved to a nursing home in Bronx County, where he died eight months later after being in a comatose state for most, if not all, of his stay there.

Plaintiff was appointed administrator in Bronx County, and venue was placed there pursuant to CPLR 503[b]. The pleading filed in Bronx Surrogate's Court gave plaintiff's address in Westchester, but it also indicated, as reflected in the death certificate, decedent's residence and place of death as Bronx County. The court said that, absent evidence that plaintiff's application for testamentary letters fraudulently misrepresented or withheld facts pertaining to decedent's domicile, a collateral attack on the Bronx County Surrogate's appointment of plaintiff is foreclosed, pursuant to SCPA 204 and 205[1].

The court also noted that third-party defendant did not follow the procedures of CPLR 511, namely, a timely motion following a demand for change of venue, and so a change of venue, based on the location of its principal place of business in Westchester County, is not owing as of right. Finally, the court said it could not grant a discretionary change of venue since third-party defendant did not identify any nonparty material witnesses whose convenience would be served by the change, as required by CPLR 510[3].