Derivative actions and pre-suit demands.

Practice point:  The motion to dismiss was granted after plaintiff failed to allege that a pre-suit demand would have been futile. A shareholder may not institute a derivative action unless the complaint sets forth with particularity the shareholder's efforts to secure the initiation of that action by the board of directors, or sets forth sufficient and particular reasons for not making such efforts, pursuant to Business Corporation Law § 626[c]. A pre-suit demand is similarly required in a derivative action involving a limited liability company.

Student note:  A plaintiff is unable to bring a derivative action when the interests at issue are personal to it, not corporate.

Case:  Najjar Group, LLC v. West 56th Hotel LLC, NY Slip Op 07123 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:  Pleading fraud.

Court holiday.

The courts are closed to mark Veterans Day.

Thank you, Veterans of all ages, of whatever service or stripe, whenever or wherever you served, and in whatever capacity.

Tomorrow's issue: Derivative actions and pre-suit demands.

A Labor Law § 240[1] claim.

Practice point:  The statute imposes a non-delegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks, and liability will attach where a violation of that duty proximately caused injuries. Conversely, where a plaintiff's own actions are the sole proximate cause of the accident or injury, there is no liability under the statute. Where there is an adequate safety device readily available, and for no good reason plaintiff chooses not to use it, the statute does not apply.

Student note:  The site safety consultant cannot be liable for the accident under plaintiff's theories because it was a subcontractor with no supervisory authority over plaintiff or his work.

Case:  Barreto v. Metropolitan Transp. Auth., NY Slip Op 07118 (1st Dept. 2013).

Here is the decision.

Tuesday's issue: Derivative actions and pre-suit demands.

Statute of limitations.

Practice point:  The Appellate Division determined that, contrary to the defendants' contentions, the complaint, in substance, alleged a negligence cause of action; it did not allege the intentional tort of assault and battery. As such, the complaint was not time-barred, as it was governed by the three-year statute of limitations applicable to negligence, pursuant to CPLR 214[5], not the one-year statute of limitations applicable to assault and battery, pursuant to CPLR 215[3]. 

Student note: In classifying a cause of action for statute of limitations purposes, the controlling consideration is not the form in which the cause of action is stated, but its substance.

Case:  Faiella v. Tysens Park Apts., LLC, NY Slip Op 07008 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A Labor Law § 240[1] claim.

A fall from a catwalk.

Practice point:  The defendants established their prima facie entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, who had no recollection of the accident and could only state that just prior thereto, he heard a "sound . . . like the wood giving out from underneath me." Based on this testimony, a jury would have to speculate as to the cause of the accident. In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, his employer's deposition testimony was insufficient to raise a triable issue of fact on causation. The testimony regarding a conversation he had with the plaintiff at the hospital following the accident about what caused him to fall was vague and, in any event, hearsay.  The deposition testimony regarding a conversation he had with a maintenance person employed by the church about what the plaintiff told him caused the accident also constituted hearsay. Finally, although, in opposition to the defendants' motion, the plaintiff's expert offered his opinion regarding dangerous conditions that caused the plaintiff's accident, such as the lack of handrails, there was no evidence to connect these alleged dangerous conditions to the plaintiff's fall.

Student note:   A defendant can establish its prima facie entitlement to judgment as a matter of law by showing that the plaintiff cannot identify the cause of the accident.  A plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the injuries would be based on speculation.

Case:  Antelope v. Saint Aidan's Church, Inc., NY Slip Op 07003 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Statute of limitations.

Court holiday.

The courts are closed for election day.

Tomorrow's issue: A fall from a catwalk.

Discovery sanctions.

Practice point:  To invoke the drastic remedy of preclusion, the court must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious. The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse.

Student note: Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed. The nature and degree of the penalty is a matter generally left to the court's discretion

Case:  Aha Sales, Inc. v. Creative Bath Prods., Inc., NY Slip Op 07001 (2d Dept. 2013).

Here is the decision.

Wednesday's issue: A fall from a catwalk.

Labor Law § 241[6].

Practice point:  The statute imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed.  To state a cause of action, a plaintiff must allege that the property owners violated a regulation that sets forth a specific standard of conduct, and not simply a recitation of common-law safety principles.

Student note:  Since this section imposes a nondelegable duty on owners, a plaintiff need not show that a defendant exercised supervision or control over the worksite in order to establish a right of recovery.

Case:  Gonzalez v. Perkan Concrete Corp., NY Slip Op 06835 (2d Dept. 2013).

Here is the decision.

Monday's issue: Discovery sanctions.

Property owners, notice, and summary judgment.

Practice point:  A defendant property owner who moves for summary judgment in a premises liability case has the initial burden of making a prima facie showing that he or she neither created the hazardous condition nor had actual or constructive notice of its existence.

Student note:  A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a length of time sufficient to afford the defendant a reasonable opportunity to discover and remedy it.

Case:  Gebert v. Catalano, NY Slip Op 06833 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Labor Law § 241[6].

Objections to an invoice as a defense to an account stated claim.

Practice point:  The court found that defendants raised an issue of fact whether they objected to the March 5, 2008 invoice that is the sole basis of the account stated cause of action.  In correspondence throughout early March 2008, including a letter dated March 6, defendants refer to "the amount allegedly owed," and, from plaintiff's responding correspondence, it appears that plaintiff understood that language as a challenge to the validity of the invoice.

Student note:  In light of the strong policy of resolving disputes on the merits, and in the absence of a claim of prejudice by plaintiff, the court considered defendants' opposition to plaintiff's motion,  despite the fact that it was served five or six hours after the time to which the parties stipulated.

Case:  Hoffinger Stern & Ross, LLP v. Neuman, NY Slip Op 06936 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Property owners, notice, and summary judgment.

Forum non conveniens.

Practice point:  The doctrine permits a court to stay or dismiss an action when, although it may have jurisdiction over a claim, the court determines that, in the interest of substantial justice, the action should be heard in another forum, pursuant to CPLR 327[a].  On a motion to dismiss based on forum non conveniens, the defendant bears the burden to demonstrate relevant private or public interest factors which militate against accepting the litigation.

Student note:  On such a motion, the court will weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system.  No single factor is dispositive.

Case:  Boyle v. Starwood Hotels, NY Slip Op 06830 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Objections to an invoice as a defense to an account stated claim.