Damages for a hot water burn.

Practice point:  The Appellate Division reversed, and dismissed the third-party complaint in this action for personal injuries allegedly sustained by plaintiff when she was burned by hot water while showering in the bathroom of an apartment  where third-party defendant was superintendent. Third-party defendant met its initial burden of demonstrating that it did not create or have actual or constructive notice of the alleged dangerous condition. Although third-party defendant acknowledges acting to address complaints of no heat or hot water on the upper floors of the building within two weeks of the incident which resulted in plaintiff's injuries, the undisputed evidence establishes that the domestic hot water supply system and the heating system for the building were separate, and that adjustments made by third-party defendant to the heating system would have had no effect on the domestic hot water supply system.

Student note:  Third-party plaintiff failed to present evidence that any action taken by third-party defendant caused excessively hot water. Third-party plaintiff's expert expressly stated that he did not evaluate the heating system, which was different from the domestic hot water supply system. Although he opined that leaving the domestic hot water supply system in the hands of an inexperienced person, such as third-party defendant, was dangerous and negligent, no evidence was presented that any action by third-party defendant proximately caused plaintiff's injuries or that third-party defendant was responsible for repairs to the domestic hot water supply system.

Case:  Duff v. 646 Tenth Ave., LLC, NY Slip Op 07589 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A counterclaim to recover unpaid rent.

Driving a vehicle without the owner's permission.

Practice point: For summary judgment on its defense that the vehicle was used without its permission, the defendant must present substantial evidence that the vehicle was used without its permission. The owner's uncontradicted testimony that the vehicle was operated without permission does not, by itself, overcome the presumption of permissive use. The question of consent is ordinarily one for the jury.


Student note:  Vehicle and Traffic Law § 388 creates a strong presumption that the driver is operating it with the owner's consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner's express or implied permission.

Case: Han v. BJ Laura & Son, Inc., NY Slip Op 07480 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Damages for a hot water burn.

An inaccurate notice of claim.

Practice point:  The plaintiff allegedly was injured when the vehicle she was driving struck a raised sewer cap. While the plaintiff's notice of claim, complaint, and bill of particulars alleged that the accident occurred on Narrows Road North at the intersection of Targee Street, an amended bill of particulars alleged that the accident occurred on Narrows Road North between Rhine Avenue and Targee Street. The Appellate Division affirmed the denial of the defendants' motion to dismiss the complaint on the ground that the notice of claim did not accurately describe the location of the accident. The defendants failed to establish that they were prejudiced by any inaccuracy in the description of the location of the accident in the notice of claim.

Student note:  Pursuant to General Municipal Law § 50-e(6), the Supreme Court had the discretion to allow the plaintiff to correct a mistake or supply an omission in the notice of claim at any time, and at any stage of the action.

Case:  Miller v. City of New York, NY Slip Op 07479 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Driving a vehicle without the owner's permission.

Striking a pleading.

Practice point:  The plaintiffs served a response to the defendant's notice for discovery and inspection, and answers to interrogatories, as they were directed to do by court order. Thereafter, they produced further documents, as set forth in a stipulation. The Appellate Division determined that, while the defendant was clearly dissatisfied with the responses to his demands, there was no showing of a pattern of willful failure to respond to discovery demands or comply with disclosure orders, so as to justify dismissing the complaint and striking the reply to counterclaims.

Student note:  The determination whether to strike a pleading lies within the sound discretion of the trial court, pursuant to CPLR 3126[3]. It is a drastic remedy that is not appropriate absent a clear showing that the failure to comply with discovery demands was willful or contumacious.

Case:  Holand v. Cascino, NY Slip Op 07474 (2d Dept. 2014)

Here is the decision.

Monday's issue:  An inaccurate notice of claim.

Statutes of limitations for false arrest, false imprisonment, and intentional infliction of emotional distress.

Practice point: Causes of action based on false arrest and false imprisonment accrue upon release from confinement and are governed by a one-year statute of limitations, pursuant to CPLR 215[3]. The one-year statute for intentional infliction of emotional distress begins to run on the date of injury.

Student note:  Plaintiff was not entitled to a toll of the statute of limitations based on equitable estoppel as he did not allege, either in his complaint or in opposition to the defendant's motion to dismiss, any misleading conduct on the part of the defendant upon which plaintiff could have reasonably relied to delay his commencing the action.

Case:  Bellissimo v. Mitchell, NY Slip Op 07464 (2d Dept. 2014)

Here is the decision. 

Tomorrow's issue: Striking a pleading.

Submitting interrogatories to the jury.

Practice point: In this dental malpractice action, the plaintiff-appellant contends that the court erred in denying her request that the jury be given an interrogatory asking whether there had been a departure in the preoperative planning itself, and in the performance of the surgery, rather than just in his failure to communicate the change in plan. The Appellate Division agreed, and reversed.

While the trial court has broad discretion in deciding whether to submit interrogatories to the jury, pursuant to CPLR 4111[c], where there is sufficient evidence to support a plaintiff's cause of action pursuant to a particular theory of negligence, it is error to deny a request by the plaintiff to submit an interrogatory to the jury regarding that theory.

Student note: Where a court improperly limits a verdict sheet in this manner, a new trial is warranted, and the Appellate Division ordered one here.

Case:  Abato v. Beller, NY Slip Op 07460 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Statutes of limitations for false arrest, false imprisonment, and intentional infliction of emotional distress.

Court holiday.

The courts are closed to mark Veterans Day.

Tomorrow's issue:  Submitting interrogatories to a jury.

Striking a pleading for a discovery violation.

Practice point:  The Appellate Division determined that the motion court providently exercised its discretion in conditionally granting plaintiff's CPLR 3126 motion to strike the appellant's answer and third-party complaint unless she appeared for a deposition on a specified date.  The appellant repeatedly failed to comply with the discovery orders, including the failure to provide supplemental responses to certain interrogatories and to appear for a deposition. At the time that the court ordered that the parties' depositions be conducted on a specified date, two prior court-ordered deadlines had passed, and the case was almost five years old. Moreover, the appellant's excuse for failing to appear on the specified date, even though her counsel had confirmed her appearance prior to that date, was not reasonable. Furthermore, the motion court only conditionally granted that branch of the plaintiff's motion which was to strike the appellant's pleadings, and provided the appellant an additional date to appear for a deposition.

Student note:  The striking of a party's pleading is a drastic remedy only warranted where there has been a clear showing that the failure to comply with court-ordered discovery was willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time.

Case:  Gutman v. Cabrera, NY Slip Op 07328 (2d Dept. 2014)

Here is the decision.

Wednesday's issue:  Submitting interrogatories to a jury.

An injured firefighter's right of action.

Practice point:  General Municipal Law § 205-a[1] provides a right of action for firefighters who are injured "as a result of any neglect, omission, willful or culpable negligence" of the defendant "in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments."

Student note:  While the plaintiff is not required to prove such notice as would be required under a common-law theory of negligence, the statute still requires a showing that the violation was the result of the defendant's neglect, omission, willful or culpable negligence.

Case:  Desthers v. Espinal, NY Slip Op 07323 (2d Dept. 2014)

Here is the decision.

Monday's issue: Striking a pleading for a discovery violation.

Right-of-way, negligence, and summary judgment.

 Practice point:  A driver traveling with the right-of-way may be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident. However, a driver with the right-of-way who has only seconds to react to a vehicle that has failed to yield is not comparatively negligent for failing to avoid the collision.

Student note:  Even where there is evidence that another driver involved in the accident was negligent as a matter of law due to a violation of the Vehicle and Traffic Law, the proponent of a summary judgment motion has the burden of establishing, as a matter of law, freedom from comparative negligence.

Case:  Desio v. Cerebral Palsy Transp., Inc., NY Slip Op 07322 (2d Dept. 2014)

Here is the decision.

 Tomorrow's issue: An injured firefighter's right of action.

Motion to vacate based on newly-discovered evidence.

Practice point:  The Appellate Division affirmed the denial of the motion to vacate on the ground of newly-discovered evidence, pursuant to CPLR 5015[a][2]. The alleged transfer of the subject mortgage, which purportedly occurred after the entry of the judgment of foreclosure and sale, is not newly-discovered evidence within the meaning of the statute.

Student note:  The court properly denied defendant's motion to renew, as he failed to offer a reasonable justification for not presenting the alleged new facts on his prior motions, pursuant to CPLR 2221[e][3].

Case:  Tribeca Lending Corp. v. Bartlett, NY Slip Op 07429 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Right-of-way, negligence, and summary judgment..