The First Department denied defendant's motion to dismiss plaintiff's cause of action for promissory estoppel, in Global Icons v. Sillerman, which was decided on November 27, 2007.

Plaintiff alleged that it agreed to forgo its own attempt to acquire a business opportunity and facilitated defendant's purchase of the opportunity, in reliance on defendant's oral promise that plaintiff would have exclusive rights to manage and market the opportunity's products. The court found that this allegation was sufficient to show that plaintiff had irremediably changed its position in reliance on the alleged oral promise by undertaking acts which werer unequivocally referable to the promise, and that it would be unconscionable to deny enforcing that promise. Whether plaintiff's reliance on the alleged promise was reasonable is an issue of fact which cannot be decided on a motion to dismiss.

Legal malpractice, again.

The Second Department granted defendant's motion to dismiss the complaint alleging legal malpractice, in Asher v. Shlimbaum, which was decided on November 27, 2007. The underlying action was commenced to enforce an alleged oral contract regarding the conveyance of certain real property. The court said that plaintiff's actions in connection with the acquisition and maintenance of the property were not unequivocally referable to the alleged contract, pursuant to General Obligations Law § 5-703[4]), and so the alleged contract was barred by the statute of frauds and was unenforceable, pursuant to General Obligations Law § 5-703[3]). The court said that this was sufficient to show that plaintiff could not establish that he would have succeeded in the underlying action but for the defendant's failure to plead other legal theories in connection with the underlying action.

The standard for legal malpractice.

The First Department denied summary judgment to defendant-law firm in this legal malpractice action, in Duffy-Duncan v. Berns & Castro, which was decided on November 29, 2007.

Defendant's failure to timely serve a Notice of Claim on the Transit Authority had precluded plaintiff from prosecuting his personal injury action arising out of his alleged slip and fall on a patch of ice located on a subway platform. The court said that defendant failed to make a prima facie showing that, despite its failure to timely file, plaintiff could not have prevailed in the underlying action. The court found record evidence demonstrating that, because no discovery was conducted, it cannot be determined, as a matter of law, whether Transit had actual notice of the defective condition.

The court also said that defendant failed to establish that Transit lacked constructive notice of the condition on the platform. Transit submitted climatological reports, without an accompanying expert opinion, but they were insufficient since they were taken in neighboring counties, and are not dispositive as to the conditions at the site of plaintiff's fall in the Bronx.

The Labor Law, again.

Plaintiff was hired to rewire defendants' telephone system, and, while he was running wires in an attic crawl space, plaintiff fell through a sheet rock ceiling in the office below. He commenced this action to recover damages for personal injuries allegedly arising from violations of Labor Law §§ 200, 240, and 241, and common-law negligence.

The Second Department found that plaintiff's work involved an elevation-related risk within the purview of Labor Law § 240(1), and reinstated the complaint, in Becker v. ADN Design, which was decided on November 20, 2007. The court gave short shrift to defendant's arugment that plaintiff was engaged in mere routine maintenance, saying that, in fact, the work clearly was "altering," within the meaning of the statute.

The court declined plaintiff's invitation to search the record and grant him summary judgment, however, finding issues of fact as to, among other things, whether plaintiff's own conduct was the sole proximate cause of his injuries.

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.