A fall down the stairs.

Practice point: Plaintiff was injured when he fell down a flight of stairs that led to the restroom area in defendants' restaurant. Plaintiff testified that his left heel hit the top step whereupon he lost consciousness and fell. He further testified that when he regained consciousness, he found himself lying at the bottom of the staircase. On the basis of that testimony, the Appellate Division found that none of the stairway's alleged structural or design defects could have been a proximate cause of the accident.

Student note: Plaintiff alleged that the staircase was "inadequately lighted and/or not otherwise properly demarcated/warned about." In denying the motion, the Supreme Court found an issue of fact as to whether the staircase was totally camouflaged, creating a defective condition. The Appellate Division found that this was error, inasmuch as the deposition of the restaurant's general manager is unrefuted insofar as it establishes adequate warning as a matter of law. Specifically, the general manager testified that at the top of the staircase there was a yellow sign with an image of a finger pointing downward which read "bathroom this way" and "watch your step." The general manager also testified about a red non-slip mat on the landing, a spotlight at the top of the staircase as well as another light fixture above the middle of the staircase. Accordingly, defendants established, prima facie, that the staircase was neither inherently dangerous nor constituted a hidden trap

The affidavit of plaintiffs' safety expert does not reference the signs or otherwise state why they were inadequate. Accordingly, plaintiff's mere assertion that he did not see the signs is insufficient to raise an issue of fact as to their adequacy.

Case: Sato v. Ippudo, NY Slip Op 01460 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Marital property and maintenance awards.

Default judgments.

Practice point:  CPLR 3215(c) requires that a plaintiff commence proceedings for the entry of a default judgment within one year after the default or demonstrate sufficient cause why the complaint should not be dismissed.

Student note:  Where the plaintiff has made an application to the court for the entry of a default judgment within one year of the defendant's default, the court may not later dismiss the complaint as abandoned.

Case:  Jones v. Fuentes, NY Slip Op 01239 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:A fall down the stairs.

Suing after termination.

Practice point:  The Appellate Division found that defendants' policy that the payment of bonuses was entirely discretionary was clearly expressed in the offer letter to plaintiff, in the company handbook, and in a memorandum confirming plaintiff's 2010 bonus, and plaintiff acknowledged in writing that she understood the policy. As a result, none of plaintiff's bonus-based claims — the causes of action for breach of an oral contract, quantum meruit/unjust enrichment, promissory estoppel, violation of Labor Law § 193, and fraud — were viable.

 Student note: Plaintiff's severance-related breach of contract claims were premised upon defendants' alleged promise to pay plaintiff a severance package "consistent with the severance packages paid to" other "senior executives who were terminated." The Appellate Division found that this alleged promise is too indefinite to be given effect.

Case: DeMadariaga v. Union Bancaire Privee, NY Slip Op 01326 (1st Dept. 2013).

Here is the decision.

Monday's issue: Default judgments.

Pleading fraud with particularity.

Practice point: All of the elements of a fraud claim must be supported by factual allegations containing the details constituting the wrong in order to satisfy the pleading requirements of CPLR 3016(b). The purpose of this pleading requirement is to inform a defendant of the complained-of incidents.

Student note: It may be virtually impossible to state in detail the circumstances constituting a fraud where those circumstances are peculiarly within the knowledge of an adverse party. Under such circumstances, the heightened pleading requirements of CPLR 3016(b) may be met when the material facts alleged in the complaint are sufficient to permit a reasonable inference of the alleged conduct, including the adverse party's knowledge of, or participation in, the fraudulent scheme.

Case: House of Spices (India), Inc. v. SMJ Servs., Inc., NY Slip Op 01236(2d Dept. 2013).

 Here is the decision.

Tomorrow's issue: Suing after termination.

A fall on the ice.

Practice point: Summary judgment was denied in where plaintiff was injured when, while stepping off defendant's train, she slipped and fell on an icy condition on the platform. The expert's report, submitted in support of defendant's motion, was unsworn, and thus, not in admissible form. This was an error that could not be cured by submitting a sworn affidavit by this expert in reply papers.

Student note: In addition, the court found triable issues as to whether, since the cessation of the storm, defendant had a reasonable amount of time to remedy the icy-wet conditions at the station where plaintiff fell.

Case: Accardo v. Metro-North R.R., NY Slip Op 01324 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Pleading fraud with particularity.

Motions for leave to renew.

Practice point: Under CPLR 2221(e), a motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination, and must contain reasonable justification for the failure to present such facts on the prior motion.

Student note: CPLR 2221 (e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form.

Case: Hackney v. Monge, NY Slip Op 01233 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A fall on the ice.

Labor Law § 240(1).

Practice point:  To establish a cause of action, a plaintiff must show that the statute was violated and that the violation proximately caused his injury. Liability is contingent upon the existence of a hazard contemplated in § 240(1) and a failure to provide, or the inadequacy of, a safety device of the kind enumerated in the statute.

Student note: The injured worker's contributory negligence is not a defense. However, if adequate safety devices are provided and the worker either chooses for no good reason not to use them, or misuses them, the plaintiff will be deemed the sole proximate cause of his injuries, and liability will not attach.

Case: Fernandez v. BBD Developers, LLC, NY Slip Op 01189 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Motions for leave to renew.

Experts' opinions, and motions to dismiss a medical malpractice claim.

Practice point:  In opposing the motion to dismiss, plaintiff's expert simply asserted that defendant's physician, instead of putting the ankle in a splint, should have performed a surgical open reduction and internal fixation of the fracture. Plaintiff's expert, however, neither set forth an explanation of the reasoning supporting his conclusion nor identified any facts in the record indicating his preferred course of treatment. Nor did plaintiff's expert opine whether plaintiff's outcome would have been materially better had he been treated with surgery.

Student note: Because the opinion was offered in a conclusory fashion without specific analysis, the motion court correctly determined that plaintiff failed to raise a triable issue of fact in the face of the well-supported opinion of defendant's expert that the record facts showed that defendant's physician treated plaintiff appropriately under the governing standard of care.

Case: Buckner v. St. Lukes' Roosevelt Hosp. Ctr., NY Slip Op 01167 (1st Dept. 2013).

 Here is the decision.

Monday's issue: Labor Law § 240(1).
 

Striking an anwer.

Practice point:  Appellate Division found that Supreme Court erred, as a matter of law, in denying plaintiffs' cross motion to enforce the conditional order striking defendant's answer since defendant did not produce the specified materials within the identified time period, and did not establish both a reasonable excuse for its failure to timely produce the specified materials and the existence of a meritorious claim or defense. Where a conditional order had previously been entered based on the court's findings that a party had caused delay and failed to comply with the court's discovery orders, the court was not required to find that defendant's conduct in failing to comply with the conditional order was willful.

Student note: Alternatively, defendant's failure to timely comply with three court orders directing it to produce certain materials - one of which was a conditional order striking its answer if defendant did not comply within 45 days - warrants an inference of willful noncompliance.

Case: Keller v. Merchant Capital Portfolios, LLC, NY Slip Op 01163 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Experts' opinions, and motions to dismiss a medical malpractice claim.

A fall down the stairs.

Practice point: Plaintiff fell on a backstage staircase to which she had been sent to clean off accumulated debris. Although plaintiff testified that there was "poor lighting" on the staircase where she fell, she testified that she fell because the step was uneven or pitched forward. Thus, plaintiff failed to submit sufficient evidence to raise an issue of fact as to whether the alleged poor lighting was a proximate cause of her fall.

Student note:  Plaintiff's expert's opinion that the stairs violated Administrative Code of the City of New York former §§ 27-127 and 27-128 was unavailing. Those sections merely require that the owner of a building maintain and be responsible for its safe condition, and liability will not be imposed in the absence of a breach of some specific safety provision.

Case: Ortiz v. Rose Nederlander Assoc., Inc., NY Slip Op 01156 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Striking an answer.

Replevin, and orders of seizure.

Practice point: The action of replevin is essentially possessory in its nature. It is a provisional remedy which may be used as an incident to an action to recover a chattel. Pursuant to CPLR 7102(c) and (d), on a motion for an order of seizure, "a plaintiff must demonstrate a likelihood of success on its cause of action for replevin and the absence of a valid defense to its claim.

Student note: An order of seizure is not a final disposition of a matter but is a pendente lite order made in the context of a pending action where the movant has established, prima facie, a superior right in the chattel.

Case: Americredit Fin. Servs., Inc. v. Decoteau, NY Slip Op 01053 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: A fall down the stairs.