Elevator company liability.

Practice point: An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge, or failure to use reasonable care to discover and correct a condition which it should have found.

Student note: Additionally, a plaintiff may raise a triable issue of fact as to liability under the doctrine of res ipsa loquitur by submitting proof that the rapid descent, shaking, and abrupt, misaligned stop of the elevator was an occurrence that would not ordinarily occur in the absence of negligence; that the maintenance and service of the elevator was in the exclusive control of the elevator company; and that no act or negligence on the part of the plaintiff contributed to the happening of the accident.

Case: DeVito v. Centennial El. Indus., Inc., NY Slip Op 08897 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Reckless disregard.

Service on Health and Hospitals Corporation.

Practice point: The City of New York and HHC are separate entities for purposes of a notice of claim.

Student note:Therefore, service upon the Comptroller of the City of New York is insufficient to constitute service upon HHC, the proper party to be served.

Case: Barnaman v. NYC Health & Hosps. Corp., NY Slip Op 08891 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Elevator company liability.

Escrow agency.

Practice point: An escrow agent not only has a contractual duty to follow the escrow agreement, but additionally becomes a trustee of anyone with a beneficial interest in the trust.

Student note: Therefore, an escrow agent can be held liable for both breach of the escrow agreement and breach of fiduciary duty as escrowee.

Case: Baquerizo v. Monasterio, NY Slip Op 08890 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Service on Health and Hospitals Corporation.

Summations.

Practice point: Trial counsel is afforded wide latitude in presenting arguments to a jury in summation.

Student note: Where defense counsel remains within the broad bounds of rhetorical comment in pointing out the insufficiency and contradictory nature of a plaintiff's proof, such remarks do not deprive the plaintiff of a fair trial.

Case: Chapotin v. City of New York, NY Slip Op 08793 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue Escrow agency.

Medical records.

Practice point: A party seeking to inspect a plaintiff's medical records must first demonstrate that the plaintiff's physical or mental condition is in controversy, within the meaning of CPLR 3121(a).

Student note: Even where this preliminary burden has been satisfied, discovery may still be precluded where the information requested is privileged and, thus, exempted from disclosure, pursuant to CPLR 3101(b).

Case: Paliouras v. Donohue, NY Slip Op 08736 (2d Dept. 2011).

Here is the decision. 

Monday’s issue: Summations.

The emergency doctrine.

Practice point: The doctrine holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency.

Student note: The existence of an emergency and the reasonableness of the response to it generally present issues of fact.

Case: Mitchell v. City of New York, NY Slip Op 08734 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue: Medical records.

Depositions.

Practice point: A defendant-corporation has the right to designate, in the first instance, which of its employees will appear for a deposition.

Student note: The plaintiff has the burden of demonstrating that the defendant's employee who was already deposed had insufficient knowledge or was otherwise inadequate, and that there is a substantial likelihood that the additional employees sought for depositions possess information that is material and necessary to the prosecution of the action.

Case: Gelda v. Costco Wholesale Corp., NY Slip Op 08722 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue: The emergency doctrine.

Affirmative defenses.

Practice point: CPLR 3211(b) authorizes a plaintiff to move, at any time, to dismiss a defendant's affirmative defense on the ground that it has no merit.

Student note:  In moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that it is without merit as a matter of law.

Case: Coyle v. Lefkowitz, NY Slip Op 08721 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue: Depositions.

Striking an answer.

Practice point: Pursuant to CPLR 3126, a court may strike an answer as a sanction if a defendant refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed.

Student note: However, the drastic remedy of striking an answer is inappropriate absent a clear showing that the defendant's failure to comply with discovery demands was willful or contumacious.

Case: Hoi Wah Lai v. Mack, NY Slip Op 08563 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue: Affirmative defenses.

Day care liability.

Practice point: A provider of day care services owes the same duty of care and supervision as a reasonably prudent parent under the circumstances.

Student note: As a general matter, schools have a duty to adequately supervise the students in their charge, and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.

Case: Gonzales v. Munchkinland Child Care, LLC, NY Slip Op 08561 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Striking an answer.

Landowner liability.

Practice point: The common law provides that liability for injuries sustained as a result of negligent maintenance of, or the existence of dangerous and defective conditions to, public sidewalks is placed on the municipality and not the abutting landowner.

Student note: However, an abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk when the owner either created the condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner, and expressly makes the owner liable for injuries caused by a breach of that duty.

Case: Alleyne v. City of New York, NY Slip Op 08548 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Day care liability.