Moving for summary judgment in a libel action.

Practice point:  The defendant's burden in support of summary judgment is not to prove as a matter of law that it did not publish with actual malice, but to point to deficiencies in the record that will prevent plaintiff from proving that fact by clear and convincing evidence. Here, defendants were granted summary judgment because they cited deficiencies in the record that prevent plaintiff from proving actual malice, that is, that defendants entertained serious doubts as to the truth of its publication or acted with a high degree of awareness of probable falsity at the time of publication.

Student note:  Plaintiff is a public figure, having put itself front and center in the public controversy over animal cruelty and seeking to influence public opinion and action on the issue. As a public figure, plaintiff must show by clear and convincing evidence that defendants published the ad at issue with actual malice in order to prevail on any claim of libel.

Case:  Humane League of Philadelphia, Inc. v. Berman & Co., NY Slip Op 04989 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Equitable distribution of marital assets.

The continuous treatment doctrine in a dental malpractice action.

Practice point:  The plaintiff failed to raise a triable issue as to whether the statute of limitations was tolled under the continuous treatment doctrine. The record establishes that the plaintiff and the defendant did not mutually agree upon or contemplate future consultation or treatment after August 2007, and that the defendant did not render treatment or examine the plaintiff after August 2007, approximately three years prior to the commencement of this action. The plaintiff's telephone conversation with the defendant, during which he allegedly told her that she did not need a post and core, did not raise a triable issue of fact as to whether she was undergoing an actual course of treatment.  The defendant's disagreement with the treatment recommendation of a different dentist, and his failure to render the treatment suggested by the other dentist despite the plaintiff's numerous attempts to obtain that treatment, did not raise a triable issue as to whether she was undergoing a continuing course of treatment with the defendant.

Student note:  The continuous treatment doctrine tolls the statute of limitations for a dental malpractice action when, among other things, the plaintiff demonstrates that, during the relevant period, he or she continued to seek, and in fact obtained from the defendant an actual course of treatment, denoted by affirmative and ongoing conduct by the dentist, such as surgery, therapy, or the prescription of medications.

Case:  Fraumeni v. Oakwood Dental Arts, LLC, NY Slip Op 05042 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Moving for summary judgment in a libel action.

Res ipsa, and credibility issues on a motion for summary judgment.

Practice point:  The Appellate Division affirmed the motion's court determination that res ipsa loquitur applies in this action involving an accident that occurred, according to plaintiff's testimony, when a garage door suddenly fell and struck him on the head, since this is the type of event that does not normally occur in the absence of negligence. Notwithstanding defendants' contentions that others could have had access to the garage door, plaintiff demonstrated sufficient exclusivity of control. Res ipsa loquitur does not require sole physical access to the instrumentality causing the injury and can be applied in situations where more than one defendant could have exercised exclusive control.

Student note:  A defendant's contradictory testimony concerning whether he was present and whether he activated the garage door was insufficient to warrant summary judgment dismissing the action as against him inasmuch as issues of credibility are not to be resolved on summary judgment.

Case:  Hutchings v. Yuter, NY Slip Op 04988 (1st Dept. 2013).

 Here is the decision.

Tomorrow's issue: The continuous treatment doctrine in a dental malpractice action.

Labor Law § 240.

Practice point:  To invoke the protections afforded by the statute, a plaintiff must demonstrate that he or she was both permitted or suffered to work on a building or structure and that he or she was hired by an owner, contractor or their agent, to work at the site. In addition, at the time of the accident the plaintiff must have engaged in an covered under the statute.

Student note:  Section 240 is intended to place the ultimate responsibility for building practices on the owner and general contractor in order to protect the workers who are required to be there but who are not in a position to protect themselves from accidents. It will be liberally construed to achieve this purpose.

Case:  Gallagher v. Resnick, NY Slip Op 04774 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Res ipsa, and credibility issues on a motion for summary judgment.

Speed bumps, and failure to disclose experts.

Practice point:  While a landowner has a duty to maintain its premises in a reasonably safe manner, there is no duty on the part of a landowner to warn against an open and obvious condition, such as a speed bump, that is readily observable by those employing the reasonable use of their senses and is not inherently dangerous.

Student note:  A party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment. Here, however, the court declined to consider the affidavit of the plaintiffs' expert which was submitted after the filing of the note of issue and certificate of readiness.

Case:  Brande v. City of White Plains, NY Slip Op 04766 (2d Dept. 2013).

Here is the decision.

Monday's issue: Labor Law § 240.

Court holiday.

The courts are closed to mark Independence Day.

Tomorrow's issue: Speed bumps, and failure to disclose experts.

Summary judgment in a Labor Law action, attorneys' fees, and amending a bill of particulars.

Practice point:  The court granted summary judgment dismissing plaintiff's § 241(6) claim, as amended. Plaintiff's testimony showed that the rebar that allegedly caused him to fall was in the process of being installed and thus integral to the ongoing work, defeating his claim of a violation of 12 NYCRR 23-1.7(e)(2). Moreover, given plaintiff's vague and inconsistent testimony concerning the condition of the stacked rebar, his claim that the accident was caused by the rebar being stored in an unstable manner in violation of 12 NYCRR 23-2.1(a)(1) was based on mere speculation.

Defendants are entitled to the costs and attorneys' fees incurred by them in defense of this action. The contract clauses at issue provide for indemnification, including costs and fees arising from "any act or omission," and do not require proof of negligence to be enforced.  In any event, the record does not contain any evidence that defendants were negligent.

Student note:  The court permitted plaintiff to amend the bill of particulars, since no prejudice accrued from plaintiff's late invocation of violations of 12 NYCRR 23-1.7(e)(2) and 23-2.1(a)(1), and the claims entailed no new factual allegations or theories of liability.

Case: Flynn v. 835 6th Ave. Master L.P., NY Slip Op 04889 (1st Dept. 2013).

Here is the decision.

Friday's issue: Speed bumps, and failure to disclose experts.

Summary judgment in lieu of complaint, and collateral estoppel.

Practice point:  Pursuant to CPLR 3213, the plaintiff commenced this action to recover on a promissory note by filing a summons with notice of motion for summary judgment in lieu of complaint. The motion was denied. The plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating the existence of the promissory note executed by the defendant, the unconditional terms of repayment, and the defendant's default thereunder. However, in opposition, the defendant raised a  fact question as to whether the note was procured through coercion and duress.

Student note:  The plaintiff failed to demonstrate that the defendant should be collaterally estopped from raising this issue, as the plaintiff failed to demonstrate that the issue was necessarily decided against the defendant in a prior action commenced by the plaintiff to set aside a fraudulent conveyance pursuant to Debtor and Creditor Law §§ 273 and 276.

Case:  Baldeo v. Rambaran, NY Slip Op 04763 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Summary judgment in a Labor Law action, attorneys' fees, and amending a bill of particulars.

Exculpatory clauses.

Practice point:  A clause which exculpates a contractee from liability to a contractor for damages resulting from delays in the performance of the latter's work is valid and enforceable and is not contrary to public policy if the clause and the contract of which it is a part satisfy the requirements for the validity of contracts generally.

Student note:  However, even with such a clause, damages may be recovered for: (1) delays caused by the contractee's bad faith or its willful, malicious, or grossly negligent conduct: (2) uncontemplated delays; (3) delays so unreasonable that they constitute an intentional abandonment of the contract by the contractee; and (4) delays resulting from the contractee's breach of a fundamental obligation of the contract.

Case:  Aurora Contrs., Inc. v. West Babylon Pub. Lib., NY Slip Op 04762 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Summary judgment in lieu of complaint, and collateral estoppel.

Board of Education's liability for an injury at school.

Practice point:  The infant plaintiff was injured when, while playing basketball in the school gymnasium, he was shoved by a classmate into an electrical outlet. Defendants moved for summary judgment, asserting that the Board lacked actual or constructive notice of the defective electrical outlet in the gym, and, in any event, was not the proximate cause of the infant plaintiff's injury. The motion court granted the motion, finding that the evidence showed that the conduct of the Board was not the proximate cause of plaintiff's injuries.
The Appellate Division affirmed, finding that, whatever the merit to the assertion that the outlet was improperly maintained and dangerously protruding from the wall, the spontaneous act of another student pushing plaintiff into the electrical outlet constituted a supervening act relieving the Board of liability.

Student note: Plaintiffs' claim of negligent supervision was never asserted in the notice of claim, and therefore cannot be raised on appeal.

Case:  Ramos v. New York City Bd. of Educ., NY Slip Op 04730 (1st Dept. 2013).

Here is the decision.

Monday's issue: Exculpatory clauses.

An erroneous jury charge in a falling object case.

Practice point:  Here, the plaintiff was injured while removing a mirror from the ceiling of a shower stall within a bathroom in a residential cooperative building owned by the defendant. The trial court erred in failing to charge the jury in connection with Labor Law § 240(1) as it applies to falling objects, such as the mirror.

Student note:  Liability may be imposed where an object was a load that required securing for the purposes of the undertaking at the time it fell. Whether the statute applies in a falling object case does not depend upon whether the object has hit the worker but whether the harm flows directly from the application of the force of gravity to the object. The jury should have been charged that the mirror required securing.

Case: Saber v. 69th Tenants Corp., NY Slip Op 04591 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Board of Education's liability for an injury at school.