A marching band, a fall, and the doctrine of assumption of the risk.

Practice point:  The injured plaintiff is a music teacher who was directing a school marching band during a parade that took place on a public street.  While directing the band, plaintiff, who was required to walk backwards, allegedly fell due to a defect in the roadway and was injured. Defendant municipality moved to dismiss, invoking the doctrine of primary assumption of the risk, and the Appellate Division affirmed the motion court's denial of the motion.

The Appellate Division found that the doctrine is inapplicable in this case, as it cannot be said that by leading a marching band in a parade on a public street, the injured plaintiff consented to the alleged negligent maintenance of the street by the County.  Extending the doctrine to cases involving persons injured while traversing streets and sidewalks would create an unwarranted diminution of the general duty of both public and private landowners to maintain their premises in a reasonably safe condition.

Student note:  As defendant failed to make out a prima facie case for entitlement to summary judgment, the sufficiency of opposing papers need not be considered.

Case:  Behr v. County of Nassau, NY Slip Op 00485 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A defendant's summary judgment motion in a slip-and-fall action.

Application of the storm in progress rule.

Practice point:  Plaintiff alleges that he was injured after slipping and falling on an icy condition on the landing of an exterior stairway of the apartment building in which he resided. He commenced this action against the owners and an individual who maintains the property. The Appellate Division reversed the motion court's denial of defendant's summary judgment motion, and dismissed the complaint..

In their moving papers, defendants submitted a transcript of plaintiff's deposition testimony, the individual defendant's affidavit, and certified meteorological records, which demonstrated, prima facie, that it was sleeting at the time of the occurrence. Accordingly, the Appellate Division determined that the storm in progress rule applied.

Student note:  Under the rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.

Case:  Fisher v. Kasten, NY Slip Op 00491 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A marching band, a fall, and the doctrine of assumption of the risk.

Summary judgment in a personal injury action, and feigned issues of fact.

Practice point:  Defendant established its entitlement to judgment as a matter of law dismissing the complaint through the submission of plaintiff's deposition testimony, which established that he was unable to identify the cause of his fall. While plaintiff testified that the staircase handrail ended before the last step, a determination that this, or any of the other alleged staircase defects, was the proximate cause of the plaintiff's accident, rather than a misstep or loss of balance, would be speculative. In addition, as plaintiff was carrying a pot weighing at least 35 to 40 pounds with both hands as he went down the staircase, any alleged defect in the handrail was not a proximate cause of the fall.

Student note:  Plaintiff's opposing papers were unavailing. Plaintiff's affidavit presented what clearly appeared to be feigned issues of fact designed to avoid the consequences of his earlier deposition testimony, and, therefore, was insufficient to defeat the motion.

Case:  Bardales v. VAM Realty Corp., NY Slip Op 00484 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Application of the storm in progress rule.

An application to stay arbitration.

Practice point:  An application to stay arbitration is made, pursuant to CPLR 7503[c], when the petition is filed, not when it is served. The petition must be served within 20 days from the date that the petitioner received the demand for arbitration.

Student note:  The question as to when the application is made, within the meaning of the statute, is a purely legal, and so it could be considered by the Appellate Division for the first time on appeal.

Case:   Matter of Travelers Prop. Cas. Co. of Am. v. Archibald, NY Slip Op 00465 (1st Dept. 2015)

Here is the decision.

Monday's issue: Summary judgment in a personal injury action, and feigned issues of fact.

Trivial defects.

Practice point:  Property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub a toe, or trip. There is no minimal dimension test or per se rule that the condition must be of a certain height or depth in order to be actionable. In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect, in addition to the time, place and circumstances of the injury. Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable.

Student note:  Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case, and is a question of fact for the jury to decide.

Case:  Adler v. QPI-VIII, LLC, NY Slip Op 00320 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: An application to stay arbitration.

A plaintiff's motion for summary judgment in a negligence action.

Practice point: As there can be more than one proximate cause of an accident, a plaintiff must establish, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault. Typically, the issue of comparative fault is a question for the jury.

Student note:  In determining the motion, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in its favor.

Case:  Adams v. Bruno, NY Slip 00319 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Trivial defects.

Premises liability when a guest falls.

Practice point:  Plaintiff allegedly was injured when he stepped off a retaining wall on the outdoor premises of defendant's residence. Plaintiff alleges that he could not see the retaining wall at the time of the accident due to a lack of illumination. Plaintiff's bill of particulars alleges that defendant was negligent in "caus[ing] a dangerous condition to arise by switching off the lights on the soffit of the porch fronting the lawn and on the side of the house and on the post lamp situated on the lawn." After depositions, defendant moved for summary judgment on the grounds that she did not create the allegedly dangerous condition by turning off the lights, and that she did not have actual or constructive notice that the lights had allegedly been turned off.

In support of the motion for summary judgment, defendant submitted a transcript of her deposition testimony. She testified that the lights were turned on at the time of the accident, and that she was the only person who had access to the light switches. In addition, defendant submitted plaintiff's deposition testimony that the lights were on when he arrived at the residence, but that they had been turned off when he fell off the retaining wall as he tried to walk back to his car.

The Appellate Division found a triable issue as to whether defendant turned off the lights, based on plaintiff's testimony that the lights were off at the time of the accident, combined with defendant's testimony that she was the only person with access to the light switches. Defendant failed to sustain her burden of establishing, prima facie, that she did not create the allegedly dangerous condition by turning off the lights.

Student note:  A defendant who moves for summary judgment in a premises liability case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Case:   Guilfoyle v. Parkash, NY Slip Op 09104 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: A plaintiff's motion for summary judgment in a negligence action.

Court holiday.

The courts are closed.

Tomorrow's issue:  Premises liability when a guest falls.

Disqualification of counsel.

Practice point:  A movant seeking disqualification of opposing counsel bears a heavy burden  As a party has a right to be represented by counsel of its choice, any restrictions on that right will be carefully scrutinized.  This right will be balanced against a potential client's right to have confidential disclosures made to a prospective attorney subject to the protections afforded by an attorney's fiduciary obligation to keep confidential information secret, pursuant to New York Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.18.

The court will consider whether a motion to disqualify, made during ongoing litigation, is made for tactical purposes, such as to delay litigation and deprive an opponent of quality representation. The decision of whether to grant a motion to disqualify is discretionary with the motion court.

Student note:  Rule 1.6(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) defines "[c]onfidential information" as "information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential."

Case:  Mayers v. Stone Castle Partners, LLC, NY Slip Op 00295 (1st Dept. 2015)

Here is the decision.

Tuesday's issue: Premises liability when a guest falls.

Application of the storm-in-progress rule.

Practice point:  The Appellate Division reversed the motion court and found that there were issues of fact as to the applicability of the storm in progress rule. In support of its summary judgment motion, defendant submitted an affidavit by a certified meteorologist who stated that on the day of plaintiff's accident, from midnight until approximately 2 p.m., there was a winter storm. Plaintiff's accident happened at approximately 11:30 a.m. However, the weather data from one of the three location sources on which the meteorologist based his analysis also shows that the last snowfall was light and ceased at 6:25 a.m. and that freezing rain fell until 8:27 a.m. and did not start falling again until 11:35 a.m. A surveillance video shows that there was no precipitation at the time of plaintiff's fall.

The Appellate Division found triable issues of fact as to whether plaintiff's accident occurred while the storm was still in progress or whether there was a significant lull in the storm, and whether the three hours that elapsed between the last freezing rain and plaintiff's accident afforded defendant a reasonable opportunity to clear the steps on which plaintiff fell.

In addition, the record presents triable issues of fact as to whether the icy condition that caused plaintiff's fall existed prior to the storm, and whether defendants lacked notice of the preexisting condition. The affidavit of defendant's expert states that at the start of the day "approximately 17 inches of snow and ice cover was present on untreated, undisturbed and exposed outdoor surfaces in the vicinity of the subject area." While the expert states that frozen precipitation fell intermittently during the day of the accident, he did not state that the alleged icy condition on the steps resulted from that precipitation and not from remnants of ice that may have remained on the steps from the prior snowfalls.

Finally, plaintiff and her son testified that the steps had been icy for some days before the accident. Defendant submitted no evidence as to when the steps had last been inspected or cleaned of snow and ice or as to the condition of the steps on the day of the accident or the days immediately preceding it. Its superintendent's testimony about its general cleaning procedures alone is insufficient to establish that defendant lacked notice of the alleged condition before the accident. 

Student note:  A temporary lull or break in the storm at the time of the accident does not necessarily establish a reasonable opportunity to clear away the hazard. However, if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and storm-in-progress rule will not be applied.

Case:  Ndiaye v. NEP W. 119th St. LP, NY Slip Op 00279 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Disqualification of counsel.

Unambiguous language in a stipulation controls.

Practice point:  The Appellate Division reversed the motion court and determined that defendants-appellants were entitled to a declaration that the parties' December 1, 2010 stipulation had expired and was unenforceable. In the stipulation, the parties agreed that the closing date of the sale of the property should take place no later than May 31, 2011. The motion court found that the parties' intent was not to close by the date set forth in the stipulation, but, rather, the intent was to move the sale forward to a closing within a reasonable time. The Appellate Division held that the parties' intent should have been determined from the unambiguous language of the stipulation, as it is a well recognized precept of contract construction that the best evidence of what parties to a written agreement intend is what they say in their writing,

Student note:  Where, the term in a stipulation is not ambiguous, it is reversible error for the court to consider extrinsic evidence such as the conduct of the parties.

Case:  Bank of Am. N.A. v. Chau T. Lam, NY Slip Op 00282 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Application of the storm-in-progress rule.