Failure to establish negligent misrepresentation, and a claim of ineffective assistance of counsel.

Practice point:  The Appellate Division affirmed the granting of defendant's CPLR 4401 motion for judgment as a matter of law made at the close of plaintiff's case, as, upon the evidence presented, there was no rational process by which the trier of fact could make a finding in favor of plaintiff. A cause of action alleging negligent misrepresentation requires a plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information.  Here, plaintiff failed to establish the second two elements of her cause of action.

Student note:  The Appellate Division rejected plaintiff's contention that she was deprived of the effective assistance of counsel at trial.  In the context of civil litigation, a claim of ineffective assistance of counsel will not be entertained absent extraordinary circumstances, and, here,  plaintiff failed to establish the existence of any extraordinary circumstances to warrant entertaining such a claim.

Case:  Nugent v. Diocese of Rockville Ctr., NY Slip Op 01473 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Civil liability resulting from the operation of an emergency vehicle.

A third-party contractor's negligence and summary judgment.

Practice point:  The Appellate Division reversed, and granted plaintiff's cross motion for partial summary judgment on the issue of liability in this action where he was injured when a television monitor and its bracket fell on him from the wall to which they had been mounted. Plaintiff submitted evidence, including the deposition testimony of defendant's employees, the affidavit of a construction expert, and the instruction manual for installation of the monitor bracket, showing that defendant negligently installed the bracket. In opposition, defendant failed to raise a triable issue of fact.  Specifically, it did not proffer an expert who contradicted plaintiff's expert, and, instead, offered only unsupported speculation that was insufficient to rebut plaintiff's showing.

Student note:  Defendant's status as a third-party contractor does not protect it where, as here, it launched a force or instrument of harm.

Case:  Jean-Francois v. Port Auth. of N.Y. & N.J., NY Slip Op 01558 (1st Dep't 2016)

Here is the decision.

Monday's issue:  Failure to establish negligent misrepresentation, and a claim of ineffective assistance of counsel.

Thrown from a horse, and a loss on summary judgment.

Practice point:  The Appellate Division reversed, and granted defendants' motion for summary judgment in this action where plaintiff was injured when she was thrown from a horse during a recreational ride at the stable operated by defendant equestrian center. The risk of a horse acting in an unintended manner resulting in the rider being thrown is a risk inherent in the sport of horseback riding, and there is no evidence that defendant stable was reckless. Neither is there evidence of concealed or unreasonably increased risks.

The Appellate Division found that defendant New York City, which owned and operated the park in which plaintiff rode, is also entitled to dismissal, as the bridle path had no defects contributing to the accident.

Student note:   Plaintiff's expert's opinion was conclusory, since it did not rely on any rules, regulations, laws or industry standards, and therefore, it fails to raise a triable issue of fact. Plaintiff's theory that defendant New York City owed her a duty based upon the licensing agreement it issued to the stable is unavailing since the City had no involvement with the operation of the stable, and the agreement contained no provision that would make plaintiff a third-party beneficiary of it.

Case:  Blumenthal v. Bronx Equestrian Ctr., Inc., NY Slip Op 01545 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A third-party contractor's negligence and summary judgment.

Motions to renew and to dismiss for failure to timely serve a complaint.

Practice point:  The Appellate Division affirmed the granting of that branch of plaintiff's motion which was for leave to renew his opposition to the motion to dismiss for failure to timely serve the complaint, finding that plaintiff's excuse of law office failure was reasonable under the circumstances.

The Appellate Division also found that, upon renewal, and considering all the circumstances of this case, the CPLR 3012(b) motion was properly denied..Plaintiff proffered a reasonable excuse for his delay in serving the complaint after being served with a notice of appearance and demand for a complaint, and established that he had a potentially meritorious cause of action.

Student note:  While a motion for leave to renew generally must be based on newly-discovered facts, the requirement is a flexible one, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion. What is considered a reasonable justification is within the Supreme Court's discretion, and  law office failure can be accepted as a reasonable excuse..

Case:  Castor v. Cuevas, NY Slip Op 01456 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Thrown from a horse, and a loss on summary judgment.

An insured's delay in giving notice.

Practice point:  Where an insurance policy requires that notice of an occurrence be given "as soon as practicable," notice must be given within a reasonable time in view of all of the circumstances. However, circumstances may exist that will excuse or explain the insured's delay in giving notice, such as a reasonable belief in nonliability.  It is the insured's burden to demonstrate the reasonableness of the excuse.

Student note:  In general, whether there existed a good faith belief that the injured party would not seek to hold the insured liable, and whether that belief was reasonable, are questions of fact for the fact-finder. Summary judgment may be granted in favor of the insurer only if the evidence, construing all inferences in favor of the insured, establishes as a matter of law that the insured's belief in nonliability was unreasonable or in bad faith.

Case:  Aspen Ins. UK Ltd. v. Nieto, NY Slip Op 01449 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Motions to renew and to dismiss for failure to timely serve a complaint.

The sufficiency of a notice of claim.

Practice point:  The Appellate Division affirmed the denial of defendants' motion to dismiss and the granting of plaintiff's cross motion for leave to amend the notice of claim. The Appellate Division found that the motion court properly determined that the original notice of claim, together with the photographs provided by plaintiff showing broken cement barriers strewn over the sidewalk and roadway at the accident location, sufficiently set forth the location and manner of his accident to satisfy the requirements of General Municipal Law § 50-e(2), since they provided information sufficient to enable the city to investigate the claim.

Student note:  The amended notice of claim, clarifying the location and manner of the alleged accident, was properly permitted pursuant to General Municipal Law § 50-e(6), since the City did not show any prejudice, or assert that plaintiff acted in bad faith.

Case:  Weiss v. City of New York, NY Slip Op 01267 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  An insured's delay in giving notice.

Liability under Labor Law § 200 for injuries arising from the manner in which work is performed,

Practice point:  To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have the authority to exercise supervision and control over the work.  For statutory purposes, a defendant has the authority to supervise or control the work when the defendant bears the responsibility for the manner in which the work is performed.  Mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under the statute.

Student note:  If the challenged means and methods of the work are those of a subcontractor, and the owner or contractor exercises no supervisory control over the work, no liability attaches under Labor Law § 200 or the common law.

Case:  Hernandez v. Pappco Holding Co., Ltd., NY Slip Op 01295 (2d Dep't 2016)

Here is the decision.

Monday's issue:  The sufficiency of a notice of claim.

Out-of-possession landlords.

Practice point:  The Appellate Division affirmed denial of defendants' motion to dismiss the complaint as to them in this action for personal injuries allegedly sustained by plaintiff when she was caused to fall in the bathroom of her apartment due to tiles falling off the wall.  The Appellate Division found that defendants failed to make a prima facie showing that they were out-of-possession landlords who ceded possession and control to the co-defendant, as they leased individual apartments to the co-defendant pursuant to individual leases; the lease to plaintiff's unit limited the repair obligations that were the co-defendant's responsibility and prohibited it from making any alterations; and defendants employed a live-in superintendent in the building.

Student note:  In any event, defendants' contention that they are out-of-possession landlords with no duty to repair the allegedly dangerous condition is unpreserved since it is raised for the first time on appeal.

Case:  Rios v. 1146 Ogden LLC, NY Slip Op 01420 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Labor Law § 200 and liability for injuries arising from the manner in which the work is performed.

Schools, negligent supervision, and punitive damages.

Practice point:  The Appellate Division reversed, and dismissed the claims of negligent supervision and punitive damages in this action for damages allegedly sustained when plaintiff was assaulted in a school hallway by a fellow student's family members.

The school district established its prima facie entitlement to judgment as a matter of law by demonstrating that it had no actual or constructive knowledge or notice of any dangerous conduct on the part of the fellow student's family, and that the attack on plaintiff was thus not reasonably foreseeable. Plaintiff failed to raise a triable issue of fact.

Student note:  New York does not recognize a separate cause of action for punitive damages, and, in any event, punitive damages are not available against the school district because it is a public corporation.

Case:  Dixon v. William Floyd Union Free Sch. Dist., NY Slip Op 01289 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Out-of-possession landlords.

Motions for leave to renew.

Practice point:  The motion must be based upon new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221[e][2], and it must contain reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][3]. The motion is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

Student note:  The Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion.

Case:  Central Mtge. Co. v. Resheff, NY Slip Op 01283 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Schools, negligent supervision, and punitive damages.

Ordinary negligence and recklessness standards of care.

Practice point: The Appellate Division reversed and reinstated the complaint in this action where plaintiff, a livery cab driver, was parked on the shoulder near a parkway's exit ramp when his vehicle was struck by a snow plow driven by defendant, an employee of defendant New York City Department of Transportation.  On appeal, plaintiff asserted that the Supreme Court should have assessed defendant's liability based on an ordinary negligence standard of care because, at the time of the accident, the City regulation governing snow plows did not expressly set forth a standard of care. The Appellate Division held that a recklessness standard of care applies, as the Court of Appeals recently held that, even though the statute did not specifically identify the applicable standard of care, in light of the language of the statute as a whole, its legislative history, and related case law, the standard is recklessness.

Student note: Under the applicable standard, defendants will be liable only if driver-defendant acted in conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.

Case:  Dejean v. Lawton, NY Slip Op 01149 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Motions for leave to renew.