A late notice of claim.

Practice point:  In affirming the denial of the petition for leave to file a late notice of claim, the Appellate Division found that petitioners failed to explain their delay in filing the notice, pursuant to General Municipal Law § 50-e[1][a]; [5]. While they claim that the injured petitioner's incapacity prevented him from obtaining counsel from the date of the incident, in June, until his surgery in September, they do not explain the two-month delay in filing the notice after they obtained counsel in October, or the delay until the next February in seeking leave to file an untimely notice.

In addition, petitioners failed to show that respondents acquired actual knowledge of the essential facts constituting their claim, pursuant to General Municipal Law § 50-e[5]. While, respondents' internal reports and records contained the exact details of the incident, there are no factual allegations in the contemporaneous written statements of the injured petitioner's coworkers or even in petitioner's own written statement that would constitute a claim of negligence on respondents' part.  So,petitioners cannot rely on  respondents records to rebut the inference of prejudice resulting from petitioners' eight-month delay in serving the notice.

Student note: The Appellate Division also found that petitioners' cause of action is without merit. They failed to allege facts that would establish that respondents had a special duty to the injured petitioner to protect him from an assault.

Case:  McGinness v. City of New York, NY Slip Op 00572 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Deceptive business acts and practices.

The statutory pleading requirement for fraud.

Practice point:  CPLR 3016(b) requires that where a cause of action is based upon misrepresentation, fraud, mistake, willful deceit, breach of trust, or undue influence, the circumstances constituting the wrong shall be stated in detail. This pleading requirement does not rise to the level of unassailable proof, and may be met when the facts are sufficient to permit a reasonable inference of the conduct alleged.

Student note: The elements of a claim sounding in fraud are a false representation of fact, made with knowledge of the falsity and in order to induce reliance, and on which there was justifiable reliance resulting in injury.

Case: Crescentini v. Slate Hill Biomass Energy, LLC, NY Slip Op 00475 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A late notice of claim.

A defendant-corporation's pro se answer.

Practice point:  The Appellate Division found that the Supreme Court erred in accepting an untimely, pro se answer from the defendant corporation, and in thereby denying that branch of the plaintiff's motion which was for leave to enter a default judgment on the complaint. The proffered answer was a nullity as a corporation must be represented by an attorney and cannot proceed pro se, pursuant to CPLR 321[a].

Student note:  The Appellate Division also found that, as the plaintiff's submissions on the motion established each of the claims prima facie, that branch of the motion which was for leave to enter a default judgment should have been granted.

Case:  Boente v. Peter C. Kurth Off. of Architecture & Planning, P.C., NY Slip Op 00473 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  The statutory pleading requirement for fraud.

A fall at the market.

Practice point: In a slip and fall action, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the fall. Here, the store-defendants failed to make the requisite showing as the plaintiff testified at deposition that she fell on "muddy" water.

In addition, the store-defendants failed to establish that they were entitled to judgment as a matter of law on the ground that they did not create or have constructive notice of any hazardous condition.  They presented no evidence to establish when the area was last cleaned or inspected prior to the plaintiff's fall.

Student note:  A defendant has constructive notice of a defect when it is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected. To meet its initial burden, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the plaintiff's fall.

Case:  Altinel v. John's Farms, NY Slip Op 00314 (2d Dept. 2014).

Here is the decision.

Monday's issue: A defendant-corporation's pro se answer.

A workplace fall on masonite.

Practice point:  The Appellate Division determined that dismissal of plaintiff's Labor Law § 241(6) claim was warranted as there was no evidence that plaintiff's accident was the result of a failure to remove or cover a foreign substance, and masonite is not a slipping hazard contemplated by 12 NYCRR 23-1.7(d). In addition, 12 NYCRR 23-1.7(e), which requires work areas to be kept free of tripping hazards, is inapplicable because plaintiff does not allege that he tripped on an accumulation of dirt or debris. Instead, he testified that he slipped on an unsecured piece of masonite, which was not a tripping hazard.

Student note:  The court declined to consider plaintiff's fact-based argument that the accident resulted from a slippery condition caused by construction dust, as this argument was raised for the first time on appeal.

Case:  Stier v. One Bryant Park LLC, NY Slip Op 00458 (1st Dept. 2014).

 Here is the decision.

Tomorrow's issue: Another fall, this time at the market.

Effect of a default judgment as to liability.

Practice point:  In this action for plaintiff's injuries allegedly sustained while he was working for third-party defendant at a restaurant located on premises owned and/or managed by defendants, the Appellate Division, on a prior appeal, had reinstated a default judgment entered against defendants. By virtue of this default, defendants are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them.  Therefore, as between plaintiff and defendants, the issue of liability has been determined as a matter of law, and defendants may not now introduce evidence tending to defeat the plaintiff's cause of action.

Student note:  The default does not preclude defendants' pursuit of claims against third-parties for the apportionment of fault.

Case:  Paez v. 1610 St. Nicholas Ave., L.P., NY Slip Op 00421 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A workplace fall on masonite.

Plaintiff's wrongdoing as it affects a legal malpractice claim.

Practice point:  The physician-plaintiff alleged that defendant-law firm failed to represent him properly in connection with investigations by Medicare and the Office of Professional Conduct into the licensure of his employee and his billing practices, and that these failures resulted in his arrest for grand larceny and insurance fraud.

In the CPLR 3211 motion to dismiss, defendants offered documentary evidence refuting plaintiff's allegations by showing that any purported negligence in connection with the administrative proceedings or any advice with respect to plaintiff's method of billing Medicare did not proximately cause plaintiff's arrest. The indictment for grand larceny charged that plaintiff billed for services that were not rendered, and the record of his criminal conviction contradicts the allegations in the complaint. As plaintiff's own actions resulted in his arrest, he failed to show that any alleged malpractice on defendants' part proximately caused his damages, namely, his arrest. This failure required dismissal of the legal malpractice action regardless of whether defendants were negligent.

Student note: In pleading his Judiciary Law § 487 claim, plaintiff failed to allege that defendants acted with intent to deceive the court or any party, or a chronic and extreme pattern of legal delinquency.

Case:   Herschman v Kern, Augustine, Conroy & Schoppman, NY Slip Op 00416 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Effect of a default judgment as to liability.

Perfecting an appeal based on an appendix.

Practice point:  Using the appendix method, the appellants sought review of an order denying their joint motion pursuant to CPLR 4404(a) to set aside a jury verdict. However, as the appendix did not include the full trial transcript, the Appellate Division could not render an informed decision on the merits and the appeal was dismissed.

Student note:  An appellant who perfects an appeal using the appendix method must file an appendix that contains all those portions of the record necessary for the court to fully consider the issues which will be raised by the appellant and the respondent, pursuant to 22 NYCRR 670.10-b[c][1] and CPLR 5528[a][5].

Case:  Aguilar-Consolo v. City of New York, NY Slip Op 00312 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Plaintiff's wrongdoing as it affects a legal malpractice claim.

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.