Comparative negligence and the Labor Law.

Practice point:  Comparative negligence is not a defense to an action predicated on Section 240(1). A plaintiff in an action involving the collapse of a permanent structure must establish that the collapse was foreseeable, not in a strict negligence sense, but in the sense of foreseeability of exposure to an elevation-related risk.

Student note:  Section 240(1) will be construed liberally in order to accomplish its purpose, namely, to put ultimate responsibility for safety practices at building construction jobs on the owner and the general contractor.

Case:  Garcia v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., NY Slip Op 00298 (1st Dept. 2014).

Here is the decision. 

Monday's issue: Perfecting an appeal using an appendix.

Unsigned contracts.

Practice point:  Where the parties contemplate that a signed writing is required, there is no contract until one is delivered. However, an unsigned contract may be enforceable if there is objective evidence establishing that the parties intended to be bound. In determining whether the parties entered into a contractual agreement and what were its terms, the court must look to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds.

Student note: Where a question of intention is determinable by written agreements, the question is one of law. However, where the intent must be determined by disputed evidence or inferences outside the written words of the instrument, there is a fact-question.

Case:  Gallagher v. Long Is. Plastic Surgical Group, P.C., NY Slip Op 00204 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Comparative negligence and the Labor Law.

Discovery disputes.

Practice point:  The Appellate Division found that, given the appellants' persistent failure to cooperate with the plaintiffs' repeated requests to schedule the examinations of the plaintiffs, the Supreme Court providently exercised its discretion in granting the appellants' motion to strike the note of issue only to the extent of directing that the depositions of the plaintiffs be conducted expeditiously. However, the Appellate Division also found that, under the circumstances of this case, the court also should have directed the prompt independent medical examinations of the plaintiffs, and remitted the matter for the expeditious scheduling of those examinations. Finally, the Appellate Division did not disturb the court's .determination that the appellants, by their conduct, are deemed to have waived all other outstanding discovery.

Student note:  While the Supreme Court has broad discretion in supervising disclosure and in resolving discovery disputes, the Appellate Division may substitute its own discretion for that of the trial court in such matters, even in the absence of an abuse of discretion.

Case:  Clarke v. Clarke, NY Slip Op00200 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Unsigned contracts.

A slip-and-fall on water...near the pool, where else?

Practice point:  Defendants established entitlement to judgment as a matter of law in this action where plaintiff slipped and fell on water located on the tile floor around the indoor pool of defendants' health club. Defendants established that the presence of such water was necessarily incidental to the pool's use.

Student note: The mere fact that the water was there did not raise a fact-issue, and plaintiff did not assert a violation of a code, rule, regulation or industry standard. In addition, there was no evidence as to how long the water was on the floor, nor was the amount of water above and beyond what one might ordinarily expect find in the vicinity of a pool.

Case:  Dove v. Manhattan Plaza Health Club, NY Slip Op 00195 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Discovery disputes.

Court holiday.

The courts are closed to mark the holiday.

Tomorrow's issue:  A slip-and-fall on water...near the pool, where else?

A motion to compel arbitration.

Practice point:  Although doubts as to the arbitrability of a claim are to be resolved in favor of arbitrability, arbitration is a matter of consent, not coercion, and a party cannot be required to submit to arbitration any dispute which it has not agreed so to submit.

Student note:  The determination as to whether the parties have entered into an agreement to arbitrate is made by applying ordinary state law principles governing the formation of contracts.

Case:  Highland HC, LLC v. Scott, NY Slip Op 00089 (2d Dept. 2014).

Here is the decision.

Tuesday's issue: A slip-and-fall on water...near the pool, where else?

A taxi driver's liability for a passenger's injury.

Practice point: Plaintiff established her entitlement to summary judgment on the issue of liability as against defendant-driver based on his violation of Vehicle and Traffic Law (VTL) § 1180(a), which provides that "[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing." Plaintiff's affidavit stated that after the accident, defendant-driver apologized to her for partly causing the accident by going 50 mph in a 30 mph zone. The statement is admissible as a party admission, and is sufficient to establish a violation of VTL § 1180(a).

Student note: A violation of traffic law, absent an excuse, constitutes negligence, and therefore plaintiff established a prima facie case of negligence.

Case:  Delgado v. Martinez Family Auto, NY Slip Op 00172 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: A motion to compel arbitration.

Libel per se and slander per se.

Practice point:   For purposes of defending against a cause of action alleging libel per se, statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, as long as they are material and pertinent to the issue to be resolved in the proceeding.

Student note:  The statute of limitations for an action to recover damages for slander is one year, pursuant to CPLR 215[3], measured from the date of the publication or utterance of the allegedly slanderous statement.

Case:  Cullin v. Lynch, NY Slip Op 00086 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A taxi driver's liability for a passenger's injury.

Liabillity of a commercial lessee.

Practice point:  The lessee of a condominium's commercial unit has no duty to maintain stairs that are part of the common elements but not part of its leased premises.

Student note:  Where, as here, the tenant-defendant had no duty to maintain the sidewalk on which the plaintiff allegedly fell, there was no need to address the issue of whether it had constructive notice of a dangerous condition.

Case:  Vivas v. VNO Bruckner Plaza LLC, NY Slip Op 00064 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Libel per se and slander per se.

Ambiguous contracts.

Practice point:  A contract is to be construed in accordance with the parties' intent, which typically is discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. A contract is ambiguous, however, if the terms are reasonably susceptible of more than one interpretation. Where a contract is ambiguous, extrinsic evidence may be considered to determine the parties' intent.

 Student note:  Whether a contract is ambiguous is a question of law to be resolved by the court.

Case:  Obstfeld v. Thermo Niton Analyzers, LLC, NY Slip 08601 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Liability of a commercial lessee.

A general contractor's liability.

Practice point:  Where a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition.

Student note:  Labor Law § 200 is a codification of an owner's or general contractor's common-law duty to provide workers with a safe place to work.

Case:  Hartshorne v. Pengat Tech. Inspections, Inc., NY Slip Op 08596 (2d Dept. 2013).

Here is the decision.

Monday's issue:  Ambiguous contracts.