Elevation-related hazards at the work-site, and safety devices.

Practice point: An owner or its agent is liable under Labor Law § 240(1) if the plaintiff was injured while engaged in an activity covered by the statute and was exposed to an elevation-related hazard for which no safety device was provided or the device provided was inadequate. The statute requires owners and their agents to provide workers with adequate safety devices when they engage in activities such as repairing or altering a building.

Student note: The purpose of the statute is to protect workers by placing the ultimate responsibility for work-site safety on the owner, and Labor Law § 240(1) imposes strict liability on the owner for a breach of the statutory duty which has proximately caused injury.

Case: Vasquez v. Cohen Bros. Realty Corp., NY Slip Op 02682 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Jury misconduct and a mistrial.

Relief from an order or judgment.

Practice point: CPLR 5015(a)(3) permits a court to relieve a party from an order or judgment on the ground of fraud, misrepresentation, or other misconduct of an adverse party.

Student note: While there is no specific time limit within which to move under this provision, the motion must be made within a reasonable time.

Case: Empire State Conglomerates v. Mahbur, NY Slip Op 02537 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Elevation-related hazards at the work-site, and safety devices.

Meeting of the minds.

Practice point: Plaintiff failed to meet its burden of showing that there was a meeting of the minds as to the terms of a joint venture, or even that a joint venture was contemplated. Indeed, the record is filled with lengthy, handwritten, sometimes illegible documents by someone who had no authority to bind plaintiff to any contract. Moreover, the documents were written from his prison cell and thus had to be based only on his recall, as he was not allowed to give or receive documents from visitors. The record contains multiple versions of what plaintiff asserts to be the alleged joint venture agreement (also handwritten), yet not one of these documents is signed by both parties. The various versions of the agreements are oddly numbered, sometimes missing pages, and missing clauses plaintiff asserts were both material and agreed upon. Further, the testimony of plaintiff's witnesses, who were all self-interested and sometimes gave patently unbelievable testimony, did not tend to cure the deficiencies in the documentary evidence.

Student note: The same failures that prevent plaintiff from showing an express contract prevent it from showing an implied contract.

Case:  Gold Coast Advantage, Ltd. v. Trivedi, NY Slip Op 02651 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Relief from an order or judgment.

Workers' Compensation and special employers.

Practice point: The protection against lawsuits brought by injured workers which is afforded to employers by Workers' Compensation Law §§ 11 and 29(6) extends to special employers.Thus, an injured person who elects to receive Workers' Compensation benefits from the general employer is barred from maintaining a personal injury action against the special employer. The exclusivity provisions of the Workers' Compensation Law also extend to entities which are alter egos of the injured worker's employer.

Student note: A special employee is one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer.

Case: Abreu v. Wel-Made Enters., Inc., NY Slip Op 02524 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Meeting of the minds.

Motion to dismiss a legal malpractice claim.

Practice point: Defendants' motion to dismiss was not untimely since the parties had stipulated, both orally and in writing, to extend defendants' time to respond to the complaint, and defendants had served and
filed their motion to dismiss by the stipulated date.

Student note: On the merits, defendants were entitled to dismissal on res judicata grounds. The Workers' Compensation Board's award of legal fees to defendants, imposed as a lien against the ultimate award of compensation to plaintiff, pursuant to Workers' Compensation Law § 24, precludes plaintiff's claim that defendants represented him negligently, a claim that could have been raised in opposition to defendants' fee application.

Case: Bob v. Cohen, NY Slip Op 02499 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Workers' Compensation and special employers.

Accord and satisfaction.

Practice point: Here, there were a number of factual disputes as to which accounts would form the basis of decedent's commissions, the amount due on those accounts and whether the final yearly tally contained amounts constituting gifts. The motion court properly found that there was no evidence of an accord and satisfaction for commissions payable during the year 2002 based upon the conflicting claims for that year. Although the checks issued by defendant to decedent for commissions bore the notation "settlement," the doctrine requires a clear manifestation of intent by the parties that the payment was made, and accepted, in full satisfaction of the claim.

Student note: Accord and satisfaction requires the existence of an actual dispute, manifested by a specific demand by the alleged creditor and an express, good-faith disagreement with that demand by the debtor.

Case: Rosenthal v. Quadriga Art, Inc., NY Slip Op 02475 (1st Dept. 2013).

Here is the decision.

Monday's issue: Motion to dismiss a legal malpractice claim.

Medical malpractice, negligence, and nursing homes.

Practice point: In this medical malpractice and negligence action, defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting, among other things, their expert affirmation and medical records. The medical records supported defendants' expert's opinion that decedent's chronic skin ulcers, gangrene and above-the-knee amputations, were the unavoidable result of his preexisting, chronic conditions, as well as other risk factors.

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff submitted the conclusory and speculative affirmation of an unnamed expert who failed to identify specific departures made by the nursing home, when other actions should have been taken by the nursing home and by whom, and how the results would have been different had those actions been taken.  The court found these failures especially troublesome, given plaintiff's expert's concession that decedent's preexisting conditions placed him at an increased risk for the conditions at issue.

Student note: In addition, the expert failed to address the evidence supporting vascular involvement and failed to establish that the nursing home's negligence, and not the natural progress of decedent's diseases and conditions, was a substantial factor in producing the injury.

Case: Negron v. St. Barnabas Nursing Home, NY Slip Op 02468 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Accord and satisfaction.

Legal malpractice.

Practice point: A client is not barred from a legal malpractice action where there is a signed settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel.

Student note: For a claim for legal malpractice to be successful, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney's negligence.

Case: Angeles v. Aronsky, NY Slip Op 02454 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:Medical malpractice, negligence, and nursing homes.

Statute of frauds.

Practice point: A party's admission of the existence and essential terms of an oral agreement is sufficient to take the agreement out of the statute of frauds.

Student note: However, if the parties dispute the very terms and conditions of the alleged oral agreement, the statute of frauds applies.

Case: Camhi v. Tedesco Realty, LLC, NY Slip Op 02368 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Legal malpractice.

Motions for renewal and reargument.

Practice point: The motion for renewal and reargument presented neither new facts nor a change in the law and was therefore a motion for reargument only, pursuant to CPLR 2221[e][2].

Student note:. An order that denies a motion for reargument is not appealable.

Case: D&A Constr., Inc. v. New York City Hous. Auth., NY Slip Op 02341 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Statute of frauds.

Discovery and striking a pleading.

Practice point: Defense counsel asserted that he could not produce the individual defendant for deposition because he could not secure his cooperation or locate him. The defendants failed to substantiate a reasonable excuse for the individual defendant's failure to appear for a court-ordered deposition. In addition, the defendants failed to demonstrate a reasonable excuse for the corporate defendant's failure to appear at a court-ordered deposition. Accordingly, the Supreme Court providently exercised its discretion in issuing a conditional order requiring the defendants to appear for depositions within a specified time or face the sanction of striking their answer.

When the defendants failed to appear for their court-ordered depositions within the specified time, the conditional order became absolute.To be relieved of the order's striking their answer, the defendants were required to demonstrate a reasonable excuse for their failure to appear for depositions and a potentially meritorious defense.The defendants failed to demonstrate either, and their answer was properly stricken. As a result of having their answer stricken, the defendants were deemed to admit all traversable allegations in the complaint, including the basic allegation of liability. Accordingly, the Supreme Court properly granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability.

Student note: A court may issue an order striking out pleadings or rendering a judgment by default as a sanction against a party who refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed, pursuant to CPLR 3126[3]. While actions should be resolved on the merits when possible, a court may strike an answer upon a clear showing that the failure to comply with a disclosure order was the result of willful and contumacious conduct.

Case: Almonte v. Pichardo, NY Slip Op 02209 (2d Dept. 2013).

Here is the decision.

Monday's issue: Motions for renewal and reargument.