Discovery sanctions.

Practice point:  As a sanction against a party who refuses to obey an order for disclosure or wilfully fails to disclose information which should have been disclosed, a court may issue an order, among other things, prohibiting the disobedient party from producing in evidence designated things or items of testimony or striking out pleadings, pursuant to CPLR 3126[2], [3].

Student note:  However, a court may invoke the drastic remedy of striking a pleading only upon a clear showing that the failure to comply with court-ordered discovery was willful and contumacious.

Case:  Holloway v. Station Bar Corp., NY Slip Op 08408 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Struck in the crosswalk, and a motion to renew.

A common-law tort action against a municipality.

Practice point: The court granted the defendants' motion to dismiss based on his failure to allege in the notice of claim the date or time when his claim against the defendants arose. The plaintiff's failure to so allege with sufficient particularity frustrated the defendants' ability to conduct a meaningful investigation into his claim and to assess its merits.

Student note:  Compliance with the notice of claim requirements set forth in General Municipal Law § 50-e(2) is a condition precedent to the commencement of a common-law tort action against a municipality.

Case:  Forster v. City of New York, NY Slip Op 08406 (2d Dept. 2013).

Here is the decision.

Monday's issue: Discovery sanctions.

Workers' Comp.

Practice point:  Workers' Compensation Law §§ 11 and 29(6), which protects employers against lawsuits brought by injured workers, extends to entities which are alter egos of the entity which employs the plaintiff.  A defendant moving for summary judgment under this theory may establish itself, prima facie, as the employer's alter ego by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity.

Student note:  A parent corporation may be deemed to be an employer of an employee of a subsidiary corporation for Workers' Compensation purposes if the subsidiary functions as the alter ego of the parent. However, a mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other.

Case:  Batts v. IBEX Constr., LLC, NY Slip Op 08394 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A common-law tort action against a municipality.

Merry Christmas.

The courts are closed to mark Christmas Day.

 

 Tomorrow's issue:  Workers' Comp.

An application for a continuance.

Practice point:  It is an improvident exercise of discretion to deny a continuance where the application is properly made, is not made for the purpose of delay, the evidence is material, and the need for a continuance did not result from the failure to exercise due diligence.

Student note:  An application for a continuance or adjournment is addressed to the sound discretion of the trial court, and the grant or denial thereof will be upheld on appellate review if the trial court providently exercised its discretion.

Case:  Black v. St. Luke's Cornwall Hosp., NY Slip Op 08223 (2d Dept. 2013).

Here is the decision.

Thursday's issue: Workers' Comp.

Apportioning responsibility for marital debt.

Practice point:  Generally, expenses incurred prior to the commencement of an action for a divorce are marital debt to be equally shared by the parties upon an offer of proof that they represent marital expenses.

Student note:  Equitable distribution does not necessarily mean equal distribution, and the court may consider the entirety of the marital estate in apportioning responsibility for marital debt.

Case:  Augustin v. Bullen, NY Slip Op 08221 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: An application for a continuance.

Lights out.

Practice point:   Absent a hazardous condition or other circumstance giving rise to an obligation to provide exterior lighting for a particular area, landowners are generally not required to illuminate their property during all hours of darkness.

Student note:  A landowner has a duty to maintain his or her premises in a reasonably safe condition to prevent foreseeable injuries. The scope of such duty is determined in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.

Case:  Assefa v. Bam, NY Slip Op 08220 (2d Dept. 2013).

Here is the decision.

Monday's issue: Apportioning responsibility for marital debt.

Turn it down.

Practice point:  The Appellate Division found substantial evidence in the record to support the determination that the petitioner violated the New York City Noise Control Code (Administrative Code § 24-231[a][2]) by allowing music from his store to reach an audible level inside the upstairs apartment of 50-51 decibels (dB), exceeding the 45 dB permissible limit in a frequency of 100 hertz (Hz).

The court found that it was irrelevant that the inspector used the one-third octave noise meter for the first time at this inspection site as he testified that he had previously received two days of training in its use and knew how it worked, and that it worked similarly to other noise meters. That the investigator was directed to contact his supervisor after taking the readings, rather than issue a violation immediately, does not render the measurements inherently suspect.

The court found no merit to the argument that the inspector deviated from standard procedure by testing the noise level at 100 Hz, a frequency not on the preprinted form as the form notably leaves room for an additional reading at another frequency. Petitioner's contention that the inspector should have taken lengthier readings of the ambient sound level when the music was off because the meter might have recorded a higher decibel level over time, was considered and properly rejected by the Administrative Law Judge. The inspector stated that a longer reading could have shown a higher level, but that his three readings taken within one minute were consistent at 43 dB. In any event, a reading of 43 dB is a full two decibels lower than the maximum ambient level allowed of 45 dB.

Student note:  Because there is in the whole record substantial evidence for the Administrative Law Judge's determination that petitioner violated the Noise Code, judicial review is at an end.

Case:  Matter of Zabari v. New York City Dept. of Envtl. Protection, NY Slip Op 08201 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Lights out.

A claim of false arrest and malicious prosecution.

Practice point:  Probable cause to believe that a person committed a crime is a complete defense to claims of false arrest and malicious prosecution.

Student note: The existence or absence of probable cause becomes a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn surrounding the arrest.

Case:  McDonald v. Town of Greenburgh, NY Slip Op 08054 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Turn it down.

A claim of disability-based employment discrimination.

Practice point:  Plaintiff's claims of disability-based employment discrimination were dismissed for failure to point to evidence raising an inference of discriminatory animus.  Remarks by hospital to the effect that she had "brought her situation upon herself" and that she should "take her assets elsewhere" were not of themselves derogatory or indicative of discriminatory animus. Neither does plaintiff's testimony that unidentified persons laughed at her behind her back raise an issue of fact as to such animus.

Student note:  Stray remarks in the worplace, even if made by a decision maker, do not, in and of themselves, constitute evidence of discrimination.

Case:  Serdans v. New York & Presbyt. Hosp., NY Slip Op 08133 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: A claim of false arrest and malicious prosecution.

A school's liability for a gym-class injury.

Practice point:   The infant plaintiff's affidavit was sufficient to raise a triable issue of fact in opposition to the school's motion for summary judgment. At her deposition and in her affidavit, the infant plaintiff stated that on the day of the accident, she was experiencing "pain and instability" in her ankle, and that she made complaints concerning this condition to the teacher who was supervising the gym class. The infant plaintiff further averred that, despite her complaints, the teacher insisted that she continue to participate in the gym exercises and that, as a result, she thereafter fell and sustained injuries.

Student note:   Schools have a duty to adequately supervise children in their charge, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. Although it is not an insurer of children's safety, a school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent.

Case:  Anastasiya M. v.  New York City Bd. of Educ., NY Slip Op 08053 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A claim of disability-based employment discrimination.