The inapplicability of res ipsa loquitur.

In affirming the granting of defendants' summary judgment motion in this action involving defendant-store's escalator, the Appellate Division found that the doctrine of res ipsa loquitur, which would permit a fact finder to infer negligence based upon the sheer happening of the event, is inapplicable. Plaintiff claims that the escalator skidded and shook causing her to fall forward. The evidence in this record establishes that the elevator never operated in this manner either before or after the alleged accident. Plaintiff was able, after the fall, to ride the escalator up to the next level without any further escalator malfunction. Without more, this proof is insufficient to establish that the event is of a kind that ordinarily does not happen in the absence of negligence.  Res ipsa loquitur is also unavailable because there is evidence that plaintiff fell after misstepping on the escalator, creating the possibility that plaintiff could have contributed to her own injury. In any event, the doctrine may not be applied against defendant-store, which ceded all responsibility for the daily operation, repair, and maintenance of the escalator to defedant-elevator company via a full-service contract.

Case:  Torres-Martinez v. Macy's Inc., NY Slip Op 00429 (1st Dep't January 24, 2017)

Here is the decision.

Monday's issue:  The doctrine of collateral estoppel.

A challenge to the decedent's paternity of a child in a wrongful death action.

The Appellate Division affirmed the order denying the defendants' motion, which sought a determination that they had standing to challenge the decedent's paternity of a child in a wrongful death action.

The Appellate Division found that the Supreme Court acted within its authority when, sua sponte, it reconsidered its own nonfinal order that related to genetic marker testing of the child.  The court properly determined that the defendants, who were non-signatories to the acknowledgment of paternity, lacked standing to have it vacated, as they do not fall within any of the classes of parties authorized to commence a paternity proceeding, pursuant to Family Court Act § 522.

Case:  Butler. v. County of Suffolk, NY Slip Op 00285 (2d Dep't January 18, 2017)

Here is the decision.

Tomorrow's issue:  The inapplicability of res ipsa loquitur.

Standing in a mortgage foreclosure action.

Practice point:  The plaintiff has standing where it is the holder or assignee of the underlying note at the time the action is commenced. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.  No special form or language is necessary to effect the assignment as long as the language shows the intention of the owner of a right to transfer it. However, the assignment of the mortgage without an effective assignment of the underlying note is a nullity. No interest is acquired by it because a mortgage is merely security for a debt or other obligation and does exist independently of the debt or obligation.

If a note and mortgage are validly assigned to a third party subsequent to the commencement of an action, the assignee can continue the action in the name of the original mortgagee without a formal substitution.

Csse:  Arch Bay Holdings, LLC v. Albanese, NY Slip Op 00284 (2d Dep't January 18, 2017)

Here is the decision.

Tomorrow's issue:  A challenge to the decedent's paternity of a child in a wrongful death action.

A premature summary judgment motion.

Practice point:  Where essential facts to justify opposition to a motion for summary judgment might exist, but cannot be stated because they are in the moving party's exclusive knowledge or control, summary judgment must be denied (CPLR 3212[f]).

Here, the Appellate Division reversed, and denied the motion as premature in this action in which a background actress seeks damages in connection with injuries allegedly sustained when she was struck by a camera truck during the filming of a movie.  Plaintiff is entitled to complete discovery in her effort to establish the precise relationships among the various defendant-entities, and this information is solely within the control of defendants. Defendants not been produced for court-ordered depositions, and they have also failed to produce many of the relevant written agreements.

Case:  Curry v. Hundreds of Hats, Inc., NY Slip Op 00385 (1st Dep't January 19, 2017)

Here is the decision

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

CPLR 3211 motions to dismiss.

Practice point:  On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.  While the court is may consider evidentiary material submitted by a defendant in support of the motion to dismiss, unless the motion is converted to one for summary judgment, the standard is whether the plaintiff has a cause of action, not whether he has stated one. Unless it is shown that a material fact as claimed by the plaintiff is not a fact at all, and unless there is no significant dispute exists regarding it, the motion will be denied.  A motion to dismiss pursuant to CPLR 3211(a)(1) may properly be granted only where there is documentary evidence that utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Case:  Anzora v. 81 Saxon Ave. Corp., NY Slip Op 00281 (2d Dep't January 18, 2017)

Here is the decision.

Tomorrow's issue:  A premature summary judgment motion.

Force majeure clauses

Practice point:  Force majeure clauses are interpreted in accord with their purpose, which is to limit damages in a case where the reasonable expectation of the parties and the performance of the contract have been frustrated by circumstances beyond the parties' control.  When the parties themselves have defined the contours of force majeure in their agreement, those contours dictate the application, effect, and scope of force majeure.

Case:  Constellation Energy Servs. of N.Y., Inc. v. New Water St. Corp., NY Slip Op 00260 (1st Dep't January 17, 2017)

Here is the decision.

Monday's issue:  CPLR 3211 motions to dismiss.

A traffic violation and negligence per se.

Practice point:  Vehicle and Traffic Law § 1141 provides, in pertinent part, that "[t]he driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard."  A violation of this statute constitutes negligence per se.

Case:  Al-Mamar v. Terrones, NY Slip Op 00140 (2d Dep't January 11, 2017)

Here is the decision.

Tomorrow's issue:  Force majeure clauses.

Summary judgment on a Labor Law 240(1) claim.

The Appellate Division reversed the order denying plaintiff's motion for partial summary judgment on liability, and granted the motion in this action to recover for personal injuries allegedly sustained when plaintiff fell from a ladder at defendant-church while performing electrical work.

Plaintiff testified that as he descended from the attic on a wooden ladder, which was permanently affixed to the wall, the ladder shifted. Specifically, plaintiff testified that as he attempted to descend the ladder, he reached for it and placed his right hand and foot on it, but it moved away from him, causing him to fall headfirst 12 to 17 feet to the choir loft below. He further testified that he did not have anything in his hands as he was coming down the ladder. According to plaintiff, the ladder was attached to the wall in a jerry-rigged fashion, connected at the top to a joist beam with grey metal wires. The ladder went up the wall of the choir loft/mezzanine to an access point for the attic of the church. The church's pastor testified that he guessed the ladder had been there since the church had been built 150 years ago.

By testifying that as he descended the ladder it shifted, causing his fall, plaintiff established a prima facie violation of the statute.  Defendant's affidavit averring that plaintiff had told his nonparty-employer that he fell when attempting to descend the ladder using one hand as he carried tools or equipment in the other and missed a rung with his free hand, failed to refute plaintiff's testimony that the ladder shifted and failed to create triable issues of fact that plaintiff's actions were the sole proximate cause of the accident. Plaintiff also denies making the statement.

The Appellate Division rejected defendant's contention that there are issues of fact as to whether plaintiff may be the sole proximate cause of the accident for failing to use the ladder, safety harness and rope provided by his employer. While the vice-president of plaintiff's employer stated in an affidavit that safety harnesses and other safety devices were available to plaintiff, the affidavit was vague as to what other safety devices were available, to what plaintiff should have attached the harness, or whether there were any available anchorage points.  In addition, defendant does not explain how a rope that was used to hoist materials to the attic where plaintiff was working could be used as a safety device.  Plaintiff's decision to use the ladder already in place cannot be the sole proximate cause of his accident where he was never instructed not to use it.

Case:  Garcia v. Church of St. Joseph of the Holy Family of the City of N.Y., NY Slip Op 00239 (1st Dep't January 12, 2017)

Here is the decision.

Tomorrow's issue:  A traffic violation and negligence per se.

Absolute liability under the Labor Law.

Practice point:  Once it is determined that the owner or contractor failed to provide the necessary safety devices required to give a worker proper protection, absolute liability is inescapable under § 240(1). In opposition to the motion for summary judgment, defendants must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact.

Case:  Erkan v. McDonald's Corp., NY Slip Op 00099 (1st Dep't January 10, 2017)

Here is the decision.

Tomorrow's issue:  Summary judgment on a Labor Law 240(1) claim.

Court holiday.

Tomorrow's issue:  Absolute liability under the Labor Law.

The presumption of proper service.

Practice point:  A defendant's conclusory and undocumented affidavit asserting that he had moved, when the defendant had not notified the post office of a change of address, is insufficient to rebut the presumption of proper service created by the process server's affidavit, even if that service was by nail and mail.

Case:  Wells Fargo Bank, N.A. v. Kissi, NY Slip Op 00006 (1st Dep't January 3, 2017)

Here is the decision.

Tuesday's issue:  Absolute liability under the Labor Law.