A Labor Law § 241(6) claim.

Practice point:  The Appellate Division reversed the motion court, and denied that branch of the defendants' motion which was for summary judgment dismissing so much of the complaint as alleged a violation of Labor Law § 241(6).

The plaintiff's statutory claim is predicated on an alleged violation of 12 NYCRR 23-1.5(c)(3), which provides that "[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged." Sections 23-9.2(a) and 23-1.5(c)(3) each set forth an action to be taken ("corrected by necessary repairs or replacement"; "repaired or restored . . . or removed") and set forth the trigger or time frame for taking such action ("upon discovery"; "immediately . . . if damaged"). Therefore, the Appellate Division held that 12 NYCRR 23-1.5(c)(3) is sufficiently concrete and specific to support the plaintiff's cause of action.

In addition, the defendants failed to eliminate all triable issues of fact as to whether the plaintiff was performing "construction work," as defined by 12 NYCRR 23-1.4(b)(13), and therefore they did not satisfy their prima facie burden as to this issue.

Student note:  The statute imposes on owners and contractors a nondelegable duty to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed.  As a predicate to the cause of action, a plaintiff must allege a violation of a concrete specification promulgated by the Commissioner of the Department of Labor in the Industrial Code.

Case:  Perez v. 286 Scholes St. Corp., NY Slip Op 09664 (2d Dept. 2015)

Here is the decision.

Tuesday's issue:  An escalator accident, and summary judgment denied.

Default judgment denied.

Practice point:  The Appellate Division affirmed the motion court's denial of defendants' motion for a default judgment. Plaintiff's counsel asserted that the delay was due to counsel's error, and there was no evidence of prejudice to defendants.

Student note:  There is a strong public policy of resolving controversies on the merits.

Case:  Oberon Sec. LLC v. Parmar, NY Slip Op 00044 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  A Labor Law § 241(6) claim.

A deficient notice of claim.

Practice point:  In this action arising from plaintiff's slip and fall on liquid that was allegedly present on the step of a staircase owned and maintained by defendant, the Appellate Division affirmed dismissal of the allegations made in the supplemental bill of particulars regarding defendant's failure to provide a skid or slip-resistance surface on the stair treads, and for improperly training its employees. The notice of claim states that the accident was caused "as a result of a liquid substance" on the step and that defendant was reckless and/or negligent in its ownership, operation, design, creation, management, maintenance, contracting, subcontracting, supervision, authorization, use and control. It cannot be fairly inferred from the notice that plaintiff would later assert that the step itself was in a defective condition or that the building's porter was improperly trained.

Student note:  Plaintiff may not rely on his testimony at the General Municipal Law § 50-H hearing to rectify the deficient notice of claim, as such testimony is permitted only to clarify the location of an accident or the nature of injuries.  It may not be used to amend the theory of liability set forth in the notice of claim where, as here, an amendment would change the nature of the claim.

Case:  Lewis v. New York City Hous. Auth., NY Slip Op 00400 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Default judgment denied.

Workers' Compensation Benefits.

Practice point:  The Appellate Division determined that the defendant had established its prima facie entitlement to judgment as a matter of law on the basis that the exclusivity provisions of the Workers' Compensation Law barred the plaintiff from seeking a recovery in tort against it.  In opposition, the plaintiff failed to raise a triable issue of fact, and the Appellate Division reversed the motion court and dismissed the complaint.

In support of its motion to dismiss, the defendant presented evidence that the plaintiff was its employee at the time of the accident; that the accident occurred during the course of the plaintiff's employment; and that the plaintiff applied for, was awarded, and has received Workers' Compensation benefits.

Student note:  Generally, Workers' Compensation benefits are the sole and exclusive remedy of an employee against an employer for any damages sustained from injury or death arising out of and in the course of employment.

Case:  Mateo v. 1875 Lexington, LLC, NY Slip Op 09656 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A deficient notice of claim.

Restoring a case after more than one year.

Practice point:  The Appellate Division determined that the court providently exercised its discretion in granting plaintiff's cross motion to restore the case to the calendar more than one year after it had been marked off.  Plaintiff showed a meritorious cause of action, a reasonable excuse for the delay in seeking to restore the matter to the calendar, an absence of intent to abandon prosecution, and a lack of prejudice to defendant.

Student note:  The Appellate Division noted that defendant did not contest that plaintiff showed a potentially meritorious cause of action based on evidence that he broke his ankle after tripping on a broken sidewalk curb of which the City had prior written notice.

Case:  Ford v. City of New York, NY Slip Op 00007 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Workers' Compensation benefits.

Trivial defects.

Practice point:  A property owner will 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. 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 circumstances.

Student note:  There is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable. Photographs that fairly and accurately represent the accident site may be used to establish that a defect is trivial.

Case:  Mazza v. Our Lady of Perpetual Help R.C. Church, NY Slip Op 09657 (2d Dep't 2015)

Here is the decision.

Monday's issue:  Restoring a case after more than one year.

Calculating interest.

Practice point:  The Appellate Division affirmed the denial of former counsel's motion insofar as it sought interest to run from February 28, 2012 to the date of entry of a final judgment against nonparty current counsel.

The Appellate Division held that the Supreme Court properly declined to compute interest under CPLR 5002, as that section allows for interest from the date a verdict is rendered, or a report or decision is made, to the date of entry of a final judgment. Here, there was no verdict, report or decision; rather, by the Supreme court order entered October 18, 2011, former counsel was awarded $50,000 upon its motion for a proportional distribution of the contingency fee in the underlying personal injury action. Supreme Court correctly calculated interest pursuant to CPLR 5003, which provides that "[e]very order directing the payment of money which has been docketed as a judgment shall bear interest from the date of such docketing."

Student note:  Because CPLR 2222 directs that, upon request, "the clerk shall docket as a judgment an order directing the payment of money," the Supreme Court correctly concluded that the Clerk erred by refusing to enter the October 18, 2011 order as a judgment when asked to do so on March 19, 2014, and that interest, therefore, should be calculated from the latter date, pursuant to CPLR 5003.

Case:  Han Soo Lee v. Riverhead Bay Motors, NY Slip Op 09642 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Trivial defects.

Standing in a mortgage foreclosure action.

Practice point:  Where a defendant challenges the plaintiff's standing to maintain the action, the plaintiff must prove standing as part of its prima facie showing of entitlement to judgment as a matter of law.  A plaintiff establishes standing by demonstrating that it is the holder or assignee of the underlying note at the time the action is commenced.

Student note:  A plaintiff in a mortgage foreclosure action establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the defendant's default.

Case:  LNV Corp. v. Francois, NY Slip Op 09655 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Calculating interest.

Handrails and interior stairs.

Practice point:  The Appellate Division affirmed dismissal of the complaint in this action where plaintiff alleges injuries when he fell while ascending a two-step configuration that led from a corridor to restrooms in premises owned or operated by the various defendants.  Plaintiff relied on code provisions that do not require handrails or uniform riser heights on the stairs on which plaintiff fell, as they are not part of an "interior stair," pursuant to Administrative Code of City of NY § 27-232.

In addition, plaintiffs' expert's assertion that safe industry practice required handrails and uniform riser heights on the steps is conclusory, as it was not supported by reference to specific and applicable standards or practices.

Student note:  Given the inapplicability of the code provisions cited, plaintiffs' cross motion to amend or supplement the bill of particulars was denied.

Case:  Hernandez v. Callen, NY Slip Op 09638 (1st Dep't 2015)

Here is the decision.

Tomorrow's issue:  Standing in a mortgage foreclosure action.

Evidentiary material and motions to dismiss.

Practice point:  Pursuant to CPLR 3211(a)(7), a  court may consider evidentiary material submitted by a defendant in support of a motion to dismiss.  However, the burden never shifts to the nonmovant to rebut a defense asserted by the movant.  A plaintiff will not be penalized for not having made an evidentiary showing in support of the complaint.

Student note:  When evidentiary material is considered, and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether the plaintiff has stated one.  Unless it is shown that a material fact as claimed by the plaintiff is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the motion will be denied.

Case:  E & D Group, LLC v. Vialet, NY Slip Op 09400 (2d Dep't 2015)

Here is the decision.

Tomorrow's issue:  Handrails and interior stairs.