A fall on the stairs, and summary judgment denied.

Practice point:  Defendant failed to eliminate triable issues of fact as to whether it had constructive notice of the allegedly dangerous condition for a sufficient length of time before the accident to have permitted it to discover and remedy it.  In support of its motion, defendant submitted a transcript of plaintiff's deposition testimony, in which she stated, in response to a question asking her to identify the cause of the fall, that the subject stairs were shaky and the carpet was loose. So, contrary to defendant's contention, plaintiff sufficiently identified the cause of the fall. In addition, plaintiff testified that the stairs had been shaky for years and that she complained about the stairs to her supervisor two or three years before the accident.

Student note:  Although defendant also submitted transcripts of the superintendent's and porter's deposition testimony indicating that they never noticed any dangerous condition, this simply raised a question of credibility which may not be resolved on a motion for summary judgment.

Case:  Beharovic v. 18 E. 41st St. Partners, Inc., NY Slip Op 08946 (2d Dept. 2014)

Here is the decision.

 Friday's issue: Defendant's summary judgment motion in a legal malpractice action.

A slip-and-fall on water in the lobby.

Practice point:  In affirming the dismissal of the complaint, the Appellate Division noted that the defendants were not required to cover all of the floor with mats or continuously mop up all moisture resulting from the tracked-in rain.

Student note:  A general awareness that water might be tracked into a building when it rains is insufficient to impute to the defendants constructive notice of the particular dangerous condition.

Case:  Aguila v. Fox Hills Partners, LLC, NY Slip Op 08945 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A fall on the stairs, and summary judgment denied.

Dismissal of Labor Law claims.

Practice Point:  The Appellate Division reversed, and dismissed the complaint in its entirety, in this action where plaintiff was injured when he stepped into a hole on the flatbed trailer on which he was working.

Defendants demonstrated their prima facie entitlement to summary judgment dismissing the § 200 claims, as the uncontroverted evidence shows that defendants neither supervised or controlled plaintiffs' work, and that they had no actual or constructive notice of the hole in the flatbed trailer.

As for the § 240(1) claim, as plaintiff was working on a flatbed trailer, he was not exposed to any gravity-related risk arising from his work.  In fact, there is nothing in the record as to the manner of safety device that should have been provided to plaintiff.

While plaintiffs submitted in their pleadings and bills of particulars at least a dozen specific Industrial Code violations in support of their § 241(6) claim, only two were contested on appeal, and so the remainder are deemed abandoned and dismissed.

Plaintiffs allege a violation of Industrial Code § 23-1.7(b)(1)(i), which pertains to hazardous openings. However, that regulation has been construed to apply to openings that persons can fall through in their entirety. The hole at issue here does not meet this definition.

Industrial Code § 23-9.2(a) pertains to power-operated equipment. However, the flatbed trailer at issue here is not a piece of power operated equipment, and its attachment to a truck does not transform it into such.

Student note: As a result of the dismissal of the complaint in the entirety, plaintiff's spouse has no derivative claims.

Case:  Brown v. New York-Presbyterian HealthCare Sys., Inc., NY Slip Op 08912 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A slip-and-fall on water in the lobby.

Snow, ice, and a homeowner's liability.

Practice point:  Owners of owner-occupied single-family homes are exempt from liability imposed pursuant to section 7-210(b) of the Administrative Code of the City of New York for negligent failure to remove snow and ice from the abutting public sidewalk. However, they can be held liable where they, or someone on their behalf, undertook snow and ice removal efforts which made the natural conditions more hazardous.

Student note:  A property owner that elects to engage in snow removal must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm.

Case:  Arashkovitch v. City of New York, NY Slip Op 08793 (2d Dept. 2014)

 Here is the decision.

Monday's issue: Dismissal of Labor Law claims.

Court holiday.

The courts are closed to mark Christmas Day.

Tomorrow's issue: Snow, ice, and a homeowner's liability.

Summary judgment in a personal injury action.

Practice point:  To prevail on the motion on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but also that he or she was free from comparative fault.

Student note:  The movant bears the initial burden of establishing prima facie entitlement to such relief, tendering sufficient evidence to eliminate any material issues of fact from the case.

Case:  Anjum v. Bailey, NY Slip Op 08792 (2d Dept. 2014)

Here is the decision.

Friday's issue:  Snow, ice, and a homeowner's liability.

A time-barred claim and equitable estoppel.

Practice point:  The Appellate Division determined that plaintiffs' claims for conversion and tortious interference with contract against the individual defendant, relating to unpaid producer royalties allegedly due to plaintiffs since 1992, were properly dismissed as time-barred. Plaintiffs cannot argue that defendant should be equitably estopped from raising the statute of limitations defense since the issue was not raised before the motion court. In any event, the argument is unavailing because plaintiffs rely on the same acts that form the basis of their underlying claims.

Student note:  For equitable estoppel to apply, plaintiffs must establish that defendants' subsequent and specific actions somehow kept them from timely bringing suit.

Case:  Stroud Prods. & Enters., Inc v. BMG Music, NY Slip Op 08778 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Summary judgment in a personal injury action.

New York's application of res judicata.

Practice point:  New York has adopted the transactional analysis approach in deciding the application of the doctrine of res judicata. Under this analysis, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.

Student note:  It is not always clear whether particular claims are part of the same transaction for res judicata purposes. New York uses a pragmatic' test to make this determination, analyzing whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage. One linchpin of res judicata is an identity of parties actually litigating successive actions against each other, and the doctrine applies only when a claim between the parties has been previously brought to a final conclusion.

Case:  Specialized Realty Servs., LLC v. Maikisch, NY Slip Op 08627 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A time-barred claim and equitable estoppel.

A claim for common-law negligence.

Practice point:  Even when negligence and injury are both properly found, the negligent party may be held liable only where the alleged negligence is a proximate cause of the injury.  Generally it is for the jury to determine the issue of causation. However, on a motion for summary judgment, the court will decide, as a matter of law, whether a prima facie case of negligence has been established.

Student note: The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty constituted a proximate cause of the injury.

Case:  Roberson v. Wyckoff Hgts. Med. Ctr., NY S.lip Op 08622 (2d Dept. 2014)

Here is the decision.

Monday's issue: New York's application of res judicata.

A physician's motion to dismiss a medical malpractice claim.

Practice point:  The physician-defendant's bare allegations which do not refute the specific factual allegations in the bill of particulars are insufficient to establish entitlement to judgment as a matter of law.

Student note:  A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no deviation or departure or that any alleged deviation or departure was not a proximate cause of the plaintiff's injuries.

Case: Reiss v. Sayegh, NY Slip Op 08619 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A claim for common-law negligence.

A collision with an unmarked police car.

Practice point:  The Appellate Division affirmed the granting of the municipal defendant's motion for summary judgment in this action involving a collision between an unmarked police vehicle and a taxi.

The police vehicle was an authorized emergency vehicle performing an emergency operation, namely, pursuing a traffic violator, and its operator was authorized to proceed through the red light, once it slowed down, pursuant to Vehicle and Traffic Law §§ 101, 114-b), and 1104 [a],[b][2]. In order to hold the municipal defendants liable, a plaintiff must demonstrate that the officer driving the police vehicle acted with reckless disregard for the safety of others, which requires a showing that he has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome.

Here, the officer's uncontroverted testimony was that he came to a complete stop prior to entering the intersection. The fact that he looked in the direction of, but did not see, the approaching taxi did not render his conduct reckless.

Student note:  Issues of fact as to whether the police lights were on or whether the siren was activated do not require a different result. A police vehicle performing an emergency operation is not required to activate either of these devices, in order to be entitled to the statutory privilege of passing through a red light, pursuant to Vehicle and Traffic Law § 1104[c].

Case:  Flynn v. Sambuca Taxi, LLC, NY Slip Op 08723 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A physician's motion to dismiss a medical malpractice claim.