Employer's liability for an alleged assault by a security guard.

Practice point: Plaintiff seeks recovery for personal injuries allegedly sustained when, after being caught shoplifting, he was assaulted by a security guard. Plaintiff claimed that defendant's employees were directly negligent in failing to protect him from the security guard, who was armed with a baseball bat, and that defendant is vicariously liable for its employees' negligence.

The Appellate affirmed the motion court's dismissal of the complaint, as there is no indication that the alleged assault by the security guard, who had no history of violence, was foreseeable. Therefore, the employer's duty to protect was not triggered.

Student note:  Absent a duty and an opportunity to protect, there can be no liability for negligence.

Case:  Randolph v. Rite Aid of N.Y., Inc., NY Slip Op 07307 (1st Dept. 2014)

Monday's issue:  Evidentiary materials submitted on a motion to dismiss, and dismissal on the merits.

Vacating a default in a matrimonial action.

Practice point:  The Appellate Division determined that the motion court improvidently exercised its discretion in denying defendant's motion to vacate his default in appearing at an inquest and, in effect, to restore the action to the trial calendar, pursuant to CPLR 5015(a)(1). Although a party seeking to vacate a default must establish a reasonable excuse for the default and a potentially meritorious cause of action or defense, New York courts have adopted a liberal policy toward vacating defaults in matrimonial actions.

Student note:  In matrimonial actions, New York's interest in the marital res and allied issues, such as child support and custody, favors dispositions on the merits.

Case:  Anekwe v. Okoroafor, NY Slip Op 07114 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Employer's liability for an alleged assault by a security guard.

Submissions outside the pleadings on a 3211(a)(7) motion.

Practice point:  The Appellate Division determined that the motion court improperly considered affidavits and deposition testimony submitted by defendant in deciding its CPLR 3211(a)(7) motion to dismiss the complaint.  The Appellate Division noted that defendant's submissions regarding "special employment" did not negate the elements of plaintiff's complaint, which asserts common law negligence. In fact, in their opposition, plaintiffs argued that since they had not yet had discovery, a motion for summary judgment was premature, and they asked the motion court decline to treat defendant's motion as a motion for summary judgment.

Student note:  CPLR 3211(a)(7) limits the court to an examination of the pleadings to determine whether they state a cause of action.

Case:  Lee v. Dow Jones & Co., Inc., NY Slip Op 07247 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Vacating a default in a matrimonial action.

Denial of summary judgment in an action resulting from a motor vehicle accident.

Practice point:  The Appellate Division reversed the motion court and denied the motion for summary judgment as to defendant's liability in the underlying motor vehicle accident. As plaintiff, in support of the motion, submitted and relied on the certified police accident report containing the eyewitness's statement, he cannot now complain that defendants' reliance on favorable aspects of the statement to defeat summary judgment is improper.

Student note:  Any inconsistencies between the statements made to the police after the accident and the affidavits submitted in support of plaintiff's motion raise issues of fact as to whether defendant driver violated Vehicle and Traffic Law § 1141, and whether plaintiff's excessive speed or other negligence contributed to the accident, thereby precluding an award of summary judgment.

Case:  Espinal v. Volunteers of America-Greater N.Y., Inc., NY Slip Op 07260 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Submissions outside the pleadings on a 3211(a)(7) motion.

Dismissal of a Labor Law 241(6) claim.

Practice point:  The Appellate Division determined that the motion court should have granted those branches of defendants' cross motion which were for summary judgment dismissing, insofar as asserted against them, the cause of action pursuant to Labor Law § 241(6) to the extent that it was predicated on alleged violations of 12 NYCRR 23-2.1(a)(1) and (b). As the accident did not involve the obstruction of a "passageway, walkway, stairway or other thoroughfare" by a material pile, 12 NYCRR 23-2.1(a)(1) was not applicable.

Student note:  The general duty imposed by 12 NYCRR 23-2.1(b) does not set forth a directive sufficiently specific to support a 241(6) cause of action.

Case:  Ginter v. Flushing Terrace, LLC, NY Slip Op 06941 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Denial of summary judgment in an action resulting from a motor vehicle accident.

Denial of a motio to dismiss for inconvenient forum.

Practice point:  The Appellate Division determined that the motion court properly exercised its discretion in finding that New York was a proper forum and that defendant failed to meet his burden to dismiss the action on inconvenient forum grounds.  The Appellate Division found that the motion court considered the appropriate factors, namely, that the dispute concerns real property in New York and the actions and transactions that gave rise to the claim occurred in New York; the mortgage payments on the properties and rent collected from the properties go to a New York bank; there is no alternative forum in which to litigate this claim because South Korea does not recognize constructive trusts; and defendant has demonstrated his availability to this forum by prior business activities here.

Student note:  As this is not a matrimonial action, it is not barred by the parties' matrimonial action in South Korea.

Case: Kang v. Kim, NY Slip Op 07074 (1st Dept. 2014)

Here is the decision.

Monday's issue:  Dismissal of a Labor Law 241(6) claim.

Summary judgment for medical residents acting under the direction of the attending physicians.

Practice point:  In their motion for summary judgment, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting deposition testimony, hospital records, and the affirmation of their medical expert establishing that at all times they acted under the direction and supervision of the attending physicians, and that they lacked the authority to independently order tests and medication. Their physically examining plaintiff and participating in her diagnosis and discharge from care did not demonstrate the exercise of independent medical judgment. In addition, the defendants demonstrated that the diagnosis and treatment plan implemented and continued under the supervision of the attending physicians did not include orders so clearly contraindicated by normal practice that ordinary prudence required inquiry into the correctness of those orders.

Student note:  The Appellate Division determined that the motion court properly rejected the redacted and unsigned affirmation of the plaintiff's medical expert where the plaintiff offered no explanation for the failure to identify the expert by name or the failure to offer an unredacted affirmation for in camera review. Therefore, that affidavit was insufficient to raise a triable issue of fact as to the defendants' alleged malpractice.

Case:  France v. Packy, NY Slip Op 06939 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Denial of a motion to dismiss for inconvenient forum.

A premature summary judgment motion.

Practice point:  The plaintiff sued for injuries allegedly sustained when she tripped and fell as a result of an alleged defect on a curb near a catch basin/sewer in the defendant-Town. The Town moved for summary judgment dismissing the complaint on the ground that it did not own the roadway and, therefore, had no duty to maintain the curb. In opposition, the plaintiff contended that Highway Law § 12(5) imposes a duty upon a town to maintain curbs on state-owned highways that have been widened by the town, and to the Town's motion was premature inasmuch as the Town failed to provide disclosure as to whether it had widened the subject roadway.

The Appellate Division determined that, in opposing the motion, the plaintiff demonstrated that the Town failed to disclose whether it widened the subject roadway at the location of the occurrence, a fact exclusively within the knowledge and control of the Town. Therefore, the Supreme Court should have denied as premature the Town's motion, with leave to renew upon the completion of discovery.

Student note:  A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant, pursuant to CPLR 3212[f].

Case:  Buto v. Town of Smithtown, NY Slip Op 06934 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Summary judgment for medical residents acting under the direction of the attending physicians.

Dismissal of a conversion claim.

Practice point:  The Appellate Division affirmed dismissal on the alternative ground that the allegations in the complaint were inadequate to state a cause of action to recover damages for conversion, pursuant to CPLR 3211[a][7].  In pleading conversion, the plaintiff must allege legal ownership or an immediate right of possession to specifically identifiable funds and that the defendant exercised an unauthorized dominion over such funds to the exclusion of the plaintiff's rights.The mere right to payment cannot be the basis for the claim since the essence of a conversion cause of action is the unauthorized dominion over the thing in question.

Student note:  To make a claim for conversion, tangible personal property or specific money must be involved.

Case:  Barker v. Amorini, NY Slip Op 06931 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A premature summary judgment motion.

Summary judgment in a snow or ice case.

Practice point:  In this action for injuries allegedly sustained in plaintiff's sidewalk fall, the Appellate Division reversed the motion court's granting summary judgment to the City, and reinstated the complaint. Plaintiff testified at deposition that the area where she fell was "dirty" with "snow layers on top of layers," which she later clarified to mean "slushy ice" that was "clean, like slippery, flat" and had a little snow on top of it. In opposition to the City's motion, plaintiff submitted an affidavit in which she explained that she fell on a patch of snow and ice that was about two feet wide by three feet long, and that the patch of snow and ice was "one (1) inch thick, flat, hard, and dirty, as if it had existed for several days."

The Appellate Division determined that this deposition testimony and affidavit, taken together, cannot reasonably be construed as being inconsistent or feigned. Inconsistencies, if any, as to how plaintiff described the patch of snow and ice on which she slipped simply create a triable issue of fact. In addition, the Appellate Division cited precedent for the proposition that, contrary to the City's argument, snow and ice left on a sidewalk after a storm can constitute an "unusual and dangerous condition."

Student note: Once there is a period of inactivity after the storm ceases, it is a question of fact as to whether any delay in commencing the cleanup was reasonable. Here, it is for the jury to decide whether the ice on which plaintiff slipped was formed four days before the accident, as plaintiff contends, and whether that four-day gap was a sufficient period of time for the City to remedy the condition.

Case:  Rodriguez v. Woods, NY Slip Op 06887 (1st Dept. 2014) 

Here is the decision. 

Tomorrow's issue:  Dismissal of a conversion claim.

Summary judgment in a medical malpractice action.

Practice point:  To establish the physician's liability for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries. Accordingly, a physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure, or that any departure was not a proximate cause of the plaintiff's injuries. If the defendant-physician makes the requisite showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but only as to the elements on which the defendant met the prima facie burden.

Student note: Summary judgment is not appropriate where the parties adduce conflicting medical expert opinions, as they necessarily raise credibility issues which can only be resolved by a jury.

Case : Berthen v. Bania, NY Slip Op 06789 (2d Dept. 2014)

Here is the decision.

Monday's issue:  Summary judgment in a snow or ice case.