Falling concrete blocks.

The Second Department reinstated plaintiff's cause of action alleging a violation of Labor Law § 241(6), in Amerson v. Melito Construction, which was decided on November 20, 2007.

Plaintiff was employed by a masonry subcontractor in the construction of a concrete block wall for a new supermarket. The wall was being built by masons who worked while standing on scaffolding set up on the exterior side of the wall. Plaintiff testified that his regular duties included walking around to the interior side of the wall and scraping and removing the mortar which fell to the loading dock floor of the new supermarket as a result of the construction of the concrete block wall, 12 to 20 feet above him.

Plaintiff wore a hard hat and had a chipping hammer, a scraper, a shovel, and a wheelbarrow in order to perform this work. On the day of the accident, plaintiff allegedly was looking down and scraping the loading dock floor when he was struck in the head by a concrete block, or a portion of one, which fell from the top of the wall where the masons were working.

The Appellate Division said that, on these facts, Supreme Court improperly granted defendants' motion for summary judgment, dismissing the alleged Labor Law violation.

The court said that plaintiff's work area was one which was normally exposed to falling material or objects, and so comes within the purview of 12 NYCRR 23-1.7[a][1], a provision of the Industrial Code which requires the use of appropriate safety devices to protect workers from overhead hazards. The court said that it is for a jury to decide whether the falling of a concrete block was foreseeable and whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.

This defendant's in hot water.

The First Department denied a motion to dismiss in an action seeking damages for injuries allegedly suffered when a glass shower door fell on plaintiff at defendant's hotel, in Higgins-Barber v. Raffles, which was decided on November 20, 2007.

The court rejected defendants' argument that they cannot be held liable unless they had notice of the alleged defect in the shower door in plaintiff's particular room. The court said that, even if defendants never received any complaints about this particular shower door, or if they regularly inspected it and found no problems, there still would be issues of fact bearing on notice, including the adequacy of defendants' inspection and maintenance procedures. The court pointed to defendants' acknowledgment that there had been at least 22 similar incidents involving identical shower doors in other rooms going back 10 years, and to defendants' failure to adduce evidence in their initial moving papers as to the proper inspection and maintenance procedures for shower doors.

The court further said that defendants' argument that the prior incidents are statistically insignificant given that the hotel has over 500 rooms was effectively countered by plaintiff's expert's affidavit which specified defects in the assembly of an identical shower door, and by defendants' own witness's testimony that, beginning 10 months before plaintiff's accident, the hotel had begun replacing all the shower doors with shower curtains.

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.