A Labor Law § 241(6) claim.

Practice point:  The motion court properly exercised its discretion in granting plaintiffs' motion for leave to amend their bill of particulars, to allege violations of Industrial Code §§ 23-1.7(b)(1) and 23-4.2(h) in support of the Labor Law § 241(6) claim, since an amendment to allege a specific section of the Industrial Code is appropriately permitted, in the absence of unfair surprise or prejudice, even after a note of issue has been filed.

Labor Law § 241(6) imposes on owners a nondelegable duty to comply with specific safety regulations. Industrial Code § 23-1.7(b)(1) requires that "hazardous opening[s] into which a person may step or fall" must "be guarded by a substantial cover . . . or by a safety railing." Industrial Code § 23-4.2(h) requires that "[a]ny open excavation adjacent to a . . . street, . . . or other area lawfully frequented by any person shall be effectively guarded."

Case in point:  Gjeka v. Iron Horse Transp., Inc., NY Slip Op 04536 (1st Dep't June 8, 2017)

Here is the decision.

Monday's issue:  Applicability of the Workers' Compensation Law.

An insufficient claim for an accounting.

Practice point:  In the absence of an allegation that plaintiffs demanded an accounting, the claim fails to state a cause of action.

Case in point:  New York Studios, Inc. v. Steiner Digital Studios, NY Slip Op 04397 (1st Dep't June 6, 2017)

Here is the decision. 

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

Leave to amend a pleading.

Practice point:  Leave to amend a pleading will be freely given in the absence of prejudice or surprise to the opposing party, pursuant to CPLR 3025[b].  The motion for leave will be be denied, however, where the proposed amendment is palpably insufficient or patently devoid of merit.Whether to grant such leave is within the motion court's discretion, the exercise of which will not be lightly disturbed by the Appellate Division.

Case in point:  APF Mgt. Co., LLC v. Munn, NY Slip Op 04411 (2d Dep't June 7, 2017)

Here is the decision.

Tomorrow's issue:   An insufficient claim for an accounting.

CPLR 3101(a).

Practice point:   The statute is liberally construed in order to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.  To compel a deposition, a defendant must show that the disclosure sought is material and necessary.  If a defendant is seeking disclosure from a nonparty witness, the defendant must provide notice of the circumstances or reasons why the disclosure is sought or required.

Case in point:  Alumil Fabrication, Inc. v. F.A. Alpine Window Mfg. Corp., NY Slip Op 04410 (2d Dep't June 7, 2017)

Here is the decision.

Tomorrow's issue:  Leave to amend a pleading.

Setting aside a jury verdict.

Practice point:  The verdict may not be set aside for legal insufficiency unless, based on the evidence, there is no valid line of reasoning and permissible inferences which could possibly lead rational jurors to the conclusion the jury reached.

Case in point:  Foley v. City of New York, NY Slip Op 04389 (1st Dep't June 6, 2017)

Here is the decision.

Tomorrow's issue:  CPLR 3101(a).

A common-law indemnification claim.

Practice point:  The claim may continue by parties who have been held vicariously liable for the party that actually caused the negligence that injured the plaintiff.

Case in point:  Chatham Towers, Inc. v. Castle Restoration & Constr., Inc., NY Slip Op 04368 (1st Dep't June 1, 2017)

Here is the decision.

Monday's issue:  Setting aside a jury verdict.

A dismissed claim of fraud.

Practice point:  A plaintiff's general allegations that the defendant did not intend to perform on the contract are insufficient to support a cause of action sounding in fraud.

Case in point:  Mephisto Mgt., LLC v. Moon 170 Mercer, Inc., NY Slip Op 04365 (1st Dep't June 1, 2017)

Here is the decision.

Tomorrow's issue:  A common-law indemnification claim.

An allegation of default.

Practice point:  By their service of a motion to dismiss within the time extension granted by the court, defendants did not default.

Case in point:  Oparaji v. Yablon, NY Slip Op 04363 (1st Dep't June 1, 2017)

Here is the decision. 

Tomorrow's issue: A dismissed claim of fraud.

Pleading prior written notice of a sidewalk defect.

Practice point:  The Appellate Division affirmed dismissal where plaintiff alleged that, as she was exiting a bus, she tripped and fell over a pole sign's stump protruding from the sidewalk near the bus stop.  Plaintiff did not plead that the City received prior written notice of the sidewalk defect as required by Administrative Code of City of NY § 7-201(c)(2).

The City received a citizen complaint through 311 less than 15 days before plaintiff's accident, and repaired the condition a few days after the accident. Even if the complaint had been in writing, it could not constitute prior written notice for purposes of the statute, since it was received within the 15-day grace period provided by the statute for the City to make repairs after receiving notice.

Case in point:  Brown v. City of New York, NY Slip Op 04221 (1st Dep't May 30, 2017)

Here is the decision.

Tomorrow's issue:  An allegation of default.
     
 June 6, 1944

Misrepresentations, rescission, and fraudulent inducement.

Practice point:  While mere promissory statements as to what will be done in the future are not actionable, a promise actually was made with a preconceived and undisclosed intention of not performing it constitutes a misrepresentation of a material existing fact upon which an action for rescission may be based.  Such a misrepresentation is collateral to the agreement, and can be the basis of a fraudulent inducement claim.

Case in point:  White v. Davidson, NY Slip Op 04219 (1st Dep.t May 30, 2017)

Here is the decision.

Tomorrow's issue:  Pleading prior written notice of a sidewalk defect.

A valid defense of duress.

Practice point:  The defense is established upon the showing of a wrongful threat precluding the exercise of free will.  The threat of criminal prosecution is enough, as is the threat of deportation.

Case in point:  Yoon Jung Kim v. An, NY Slip Op 04201 (1st Dep't May 25, 2017)

Here is the decision.

Monday's issue:  Misrepresentations, rescission, and fraudulent inducement.