Compulsory arbitration and the CPLR 78 standard.

Practice point:  Where the parties are subjected to compulsory arbitration, the arbitration award must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78.

Student note:  A hearing officer's determinations of credibility are generally not reviewable because the hearing officer was in a position to observe the witnesses and was able to perceive the inflections, the pauses, the glances and gestures that combine to form an impression of either candor or deception.

Case:  Matter of Brito v. Walcott, NY Slip Op 01813 (1st Dept.2014).

Here is the decision.

Tomorrow's issue: Res judicata, and the preclusive effect of summary judgment.

Labor Law 200 and 241(6) claims.

Practice point:  As the essence of plaintiff's claim is that the safety equipment provided to him was inadequate, and the defendant-general contractor did not dispute that it provided the safety equipment plaintiff used, plaintiff may hold the defendant-general contractor liable under Labor Law § 200 for any negligence in its providing safety equipment shown to have contributed to his injury.

Student note:  Plaintiff's Labor Law § 241(6) claim was dismissed. The complaint alleges violations of 12 NYCRR 23-1.7(h) and 12 NYCRR 23-1.8(c), which require adequate protective equipment and apparel for workers using or handling "corrosive substances and chemicals." In support of their motion for summary judgment, defendants provided expert evidence that these Industrial Code sections are inapplicable here, as the particular substance that injured plaintiff is not considered a corrosive substance or chemical, and plaintiff's opposition to the motion failed to adequately rebut this evidence.

Case:  Flores v. Infrastructure Repair Serv., LLC, NY Slip Op 01811 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Compulsory arbitration and the CPLR 78 standard.

Liability for trivial defects.

Practice point:  A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a person might merely stumble, stub his or her toes, or trip. In determining whether a defect is trivial, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury,.

Student note:  Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable.

Case:  Abalo v. Santorelli, NY Slip Op 01701 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Labor Law 200 ad 241(6) claims.

Motions for leave to renew and reargue.

Practice point:  The Appellate Division held that plaintiff's motion for leave to renew was properly denied in the absence of new facts, citing CPLR 2221[e][2].

Student note:  No appeal lies from the denial of a motion to reargue.

Case:  Kaplan v. U.S. Coal Corp., NY Slip Op 01681 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Liability for trivial defects.

Duties relating to an easement.

Practice point:  While an easement generally imposes no affirmative duty on the owner of the servient estate to maintain and repair structures, such an owner may be required to perform maintenance functions where it makes use of the easement for its own purposes and that use does not interfere with the legitimate activities of the holder of the dominant estate.

Student note:  To the extent that the servient estate's owner may incur a duty, it is that of a landowner, namely, to maintain the portion of its premises that is subject to the easement in a reasonably safe condition, provided that such maintenance subjects the owner of the servient estate to no unusual hazards and requires no special expertise.

Case:  Kleyner v. City of New York, NY Slip Op 01584 (2d Dept. 2014).

Here is the decision.

Monday's issue: Motions for leave to renew and reargue.

Vacating a default judgment.

Practice proint:  The defendant was not entitled to vacatur of its default pursuant to CPLR 317. The defendant failed to rebut the plaintiff's evidence that, for a period of more than five years, the defendant failed to file with the Secretary of State the required biennial form that would have apprised the Secretary of its current address, pursuant to Limited Liability Company Law § 301[e]). TheAppellate Division found that the defendants' failure to personally receive copies of the summons and complaint was a result of a deliberate attempt to avoid notice of actions commenced against it.

Student note:  To successfully oppose a motion for leave to enter a default judgment based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its default and the existence of a potentially meritorious defense, pursuant to CPLR 5015[a][1].  Here, the defendant contended that it maintained an old address on file with the Secretary of State, and denied receipt of copies of the summons and complaint. However, the Appellate Division held that the defendant's unexplained failure to keep the Secretary of State apprised of its current address over a significant period of time did not constitute a reasonable excuse.

Case:  Cruz v. Keter Residence, LLC, NY Slip Op 01575 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Duties relating to an easement.

Dismissal of a complaint as abandoned.

Practice point:  To avoid dismissal of the complaint as abandoned pursuant to CPLR 3215(c), a plaintiff must offer a reasonable excuse for the delay and must demonstrate that the complaint is meritorious.  Here, plaintiff's excuse of law office failure was vague, conclusory, and unsubstantiated, and so it was insufficient to explain the extended delay in moving to enter a default judgment. The court will not consider additional allegations regarding the law office failure if they are submitted for the first time in the
plaintiff's reply affirmation.

Student note:  CPLR 3215(c), entitled "Default not entered within one year," provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."

Case: GMAC v. Minewiser, NY Slip Op 01581 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Vacating a default judgment.

The denial of a request for a Frye hearing.

Practice point:  The Appellate Division found that the court did not improvidently exercise its discretion in denying plaintiffs' request for a Frye hearing to determine the admissibility of the anticipated testimony of a biomechanical engineer. His lack of medical training did not render him unqualified to render an expert opinion that the force of the motor vehicle accident could not have caused the alleged injuries. In light of his education, background, experience, and areas of specialty, he was able him to testify as to the mechanics of injury.

Student note:  Plaintiffs' challenge to the expert's qualifications and the fact that his opinion conflicted with that of defendant's orthopedic expert go to the weight of the testimony and not its admissibility.

Case:  Vargas v. Sabri, NY Slip Op 01666 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Dismissal of a complaint as abandoned.

Denial of summary judgment on a promissory note.

Practice point:  Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by submitting the note signed by the defendant, along with an affidavit from its account officer, annexed to which was a copy of a business record reflecting the principal amount due, the calculation of interest, and late fees. The account officer stated that the defendant defaulted on the note by failing to pay the principal and interest due as it accrued.

However, in its opposition, the defendant raised a triable issue of fact as to whether the purported signature on the endorsement to the plaintiff was a forgery.

Student note:  Cadlerock Joint Venture, L.P. v Evans-Tracey, NY Slip Op 01568 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: The denial of a request for a Frye hearing.

A trip and fall.

Practice point:  In this action based on plaintiff's trip and fall in the freight elevator hallway of defendants' building, defendants established as a matter of law their entitlement to judgment. They showed that the defect in which plaintiff's boot-heel allegedly became stuck was trivial, and did not constitute a dangerous or defective condition. Their expert inspected the floor area, and described it as "a patched region of concrete" with a height differential of less than one-eighth of an inch that was "free of chipped or damaged areas" and that formed a slight bowl-shaped depression.

In opposition, plaintiff did not come forward with any evidence to show that this shallow, gradual depression, which is generally regarded as trivial, could have been a trap or snare by reason of its location, adverse weather or lighting conditions or other circumstances.

Student note:  Plaintiff's argument that coffee or other liquids from the garbage stored near the accident site may have spilled in the area and caused her to slip is unavailing in view of her own testimony that she sas no debris or liquid in the elevator hallway when she entered the building or at the time of her fall.

Case:  Thomas v. Dever Props., LLC, NY Slip Op 01533 (2d Dept. 2014).

Monday's issue: Denial of summary judgment on a promissory note.

Expert witness information.

 Practice point:  The Appellate Division held that the Supreme Court improvidently exercised its discretion in granting the defendants' motion to preclude the plaintiff's expert from testifying at the retrial.  There was nothing in the record to support a conclusion that the plaintiff's delay in retaining his expert or in serving his expert information was intentional or willful. In addition, any potential prejudice to the defendants was ameliorated by the parties' agreement to a two-month adjournment of the retrial.

Student note:  CPLR 3101(d)(1)(i) does not require a response to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party.

Case:  Burbige v. Siben & Ferber, NY Slip Op 01426 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A trip and fall.