Negligence claims.

Allegations of negligence, even if provable, are insufficient to establish liability in the absence of proof that the negligence was a proximate cause of the plaintiff's injury.

Lebron v. New York City Hous. Auth., NY Slip Op 01116 (1st Dep't February 15, 2018)

Here is the decision.

Court holiday.

Claims against corporate directors.

There is no claim against the individual directors in the absence of allegations that they committed independent tortious acts.

Avramides v. Moussa, NY Slip Op 01035 (1st Dep't February 13, 2018)

Here is the decision.

Labor Law § 240(1).

 A fall through an unguarded opening in the floor of a construction site constitutes a statutory violation only where a safety device adequate to prevent such a fall was not provided.  A safety line and harness may be an adequate safety device for a person working over an open area or near an elevated edge.

Guaman v. City of New York, NY Slip Op 01025 (1st Dep't February 13, 2018)

Here is the decision.

Reply papers.

Practice point:  The function of reply papers is to address arguments made in opposition to the movant's position.  

The motion court properly considered a renewed power of attorney submitted by the plaintiff in reply to the appellants' opposition to the motion. The renewed power of attorney was offered in response to the appellants' argument that the plaintiff's affidavit of merit was invalid because it was signed after expiration of the originally submitted power of attorney. The renewed power of attorney merely clarified that, at the time the affidavit was signed, the affiant continued to have the authority to act on the plaintiff's behalf.

Bank of N.Y. Mellon v. Hoshmand, NY Slip Op 00818 (2d Dep't February 7, 2018)

Here is the decision.

Admissibility of documentary evidence.

To be considered on a motion for summary judgment, documentary evdience must be in admissible form. Records that are not certified are inadmissible hearsay, as are unsworn letters from attorneys.

Atlantic Fin., LLC v. Xinlei Lin, NY Slip Op 00817 (2d Dep't February 7 2018)

Here is the decision.

Court holiday.

Slips and falls.

Practice point:  The mere placement of a wet floor warning sign does not automatically absolve a defendant of negligence.

Case:  Hamilton v 3339 Park Dev. LLC, NY Slip Op 00799 (1st Dep't February 6, 2018)

Here is the decision.

Venue.

Pursuant to CPLR 503(a), "the place of trial shall be in the county in which one of the parties resided when [the action] was commenced." For venue purposes, a residence is where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency. Residence means living in a particular place, while domicile means living in that locality with the intent to make it a fixed and permanent home. For the purpose of determining venue, a party may have more than one residence .

To prevail on a motion to change venue, pursuant to CPLR 510(1), the defendant must show that the plaintiff's choice of venue is improper, and that the defendant's choice of venue is proper.

Pursuant to CPLR 510(3), the court, on notice of motion, may change the venue of an action where "the convenience of material witnesses and the ends of justice will be promoted by the change."  The movant must provide information about the prospective witnesses, including, but not limited to, their names and addresses, disclose the facts about which the proposed witnesses will testify at the trial, represent that the prospective witnesses are willing to testify, and state that, absent a change, the witnesses would be inconvenienced.

Case:  Bikel v. Bakertown Realty Group, Inc., NY Slip Op 00540 (2d Dep't January 31, 2018)

Here is the decision.

A late notice of claim in a medical malpractice action.

Under General Municipal Law § 50-e(1)(a), the notice must be served on the public corporation within 90 days after the claim arises, but a court may, in its discretion, permit a plaintiff to serve a late notice of claim. In making this determination, the court may consider, among other things, whether the defendant had actual knowledge of the essential facts constituting the claim within the statutory period, or a reasonable time thereafter. It is not necessary that the defendant had knowledge of a specific legal theory. A plaintiff will not be penalized for waiting for medical records to file a complete and accurate notice of claim.

Case:  Matter of Townson v. New York City Health & Hosps. Corp., NY Slip Op 00607 (1st Dep't February 1 2018)

Here is the decision. 

An out-of-possession landlord's liability.

An out-of-possession landlord that has assumed the obligation to make repairs to its property cannot be held liable for injuries caused by a defective condition at the property unless it either created the condition or had actual or constructive notice of it.

Case:  Amster v. Kromer, NY Slip Op 00538 (2d Dep't January 31, 2018)

Here is the decision.