Is an employer liable for the sexual assaults of its employees?

No, according to the First Department, in DaSilva v. Trinity Church, decided on March 29, 2007.

Citing the definitive N.X. v. Cabrini Medical Center, the court said that a sexual assault is categorically outside the scope of employment and so there can be no liability under a theory of respondeat superior.

A plaintiff might have a cause of action under a theory of negligent hiring, supervision or retention but, here, the court found that (1) at the time of the hiring, the employer was unaware of any facts which might trigger a duty to inquire further, and (2) during the employee's tenure the employer did not receive any complaints which might have put it on actual or constructive notice as to the employee's propensity to a sexual assault.

For this plaintiff, school's out.

Schools have a cognizable duty to provide supervision to ensure their students' safety, and they will be held liable if (1) a student's injury was foreseeable, and (2) the lack of adequate supervision was a proximate cause of the injury, according to the Second Department, in Link v. Quogue Union Free School District, decided on March 20, 2007. Here, though, the accident happened in such a short span of time that, even if the school's supervision had been inadequate, it could not have proximately caused the injury. Summary judgment was granted, and the complaint was dismissed.

What showing must plaintiff make in order to amend the bill of particulars once the trial has begun?

The touchstones are excuse, lack of prejudice, and merit, according to the Second Department, in Cohen v. Ho, decided on March 20, 2007. Plaintiff's motion was denied because (1) plaintiff gave no excuse for the delay in seeking the amendment, and (2) defendant would be prejudiced since plaintiff was proposing a different theory of medical malpractice and, therefore, a theory of recovery which bore no resemblance to that recited in the complaint and the original bill of particulars. The court also noted that, in deciding such a motion, consideration should be given to the merit of the underlying amendment so as not to waste everybody's time.

You, with the umbrella, off the bus!

Q. What is the proper standard for judicial review of an administrative agency's decision when neither the constitution nor a statute is implicated?

A. "Arbitrary and capricious," as applied by the First Department in Duncan v. Klein, decided on March 22, 2007. After determining that a school bus escort had hit a student with her umbrella, the City's Office of Pupil Transportation had recommended revocation of the escort's certification. In a disciplinary hearing, it was recommended that the penalty be reduced to a suspension for time already served with no back-pay. The Chancellor opted for revocation, and the escort petitioned for judicial review. The court said, "Since the disciplinary conference was not conducted pursuant to the constitution or any statute, it was properly reviewed under the arbitrary and capricious rather than substantial evidence standard. Applying that standard, the record provides a rational basis for disbelieving petitioner's version of the facts, and finding instead that she actively hit the student and was not merely defending herself. The penalty of revocation does not shock our conscience."

What showing must you make in order to win your motion to strike a pleading?

The statute is CPLR 3126 and the magic words are "willful and contumacious," as applied to the other side's failure to comply with your discovery demands. In Bjorke v. Rubenstein, decided by the Second Department on March 13, 2007, there was a second procedural matter in play, namely, a motion to dismiss the complaint based on the alleged spoilation of evidence. This motion may be granted in the absence of willful and contumacious conduct, if, but only if, you show that the evidence was necessary to your being able to mount a defense.

All hands (out, palms up) on deck.

If its patrons think that mandatory service charges and automatic gratuities are going to the waitstaff, may the restaurant keep those monies for itself? Yes, according to the First Department, in Samiento v. World Yacht, Inc., decided on March 15, 2007. The court found that the floating restaurant had an oral agreement with its servers as to their compesnation, and that agreement controlled.

Hearsay, no exception.

After having been injured in a boating accident, plaintiff sued for damages. At trial, her treating physician testified that the doctors who had performed an MRI were reliable; that he had used their MRI reports in formulating a treatment plan; and that such reports are generally accepted and used by physicians. Over the defense's objection, the MRI reports were admitted into evidence, not for their truth, but because the treating physician had relied on them. Were the reports properly admitted? No, said the Second Department, in Clevenger v. Mitnick, decided on March 13, 2007. The court cited Wagman V. Bradshaw, 292 A.D.2d 84, as standing for the proposition that the MRI reports are inadmissible hearsay, even though defendant could have called his own expert to refute them.

Attention, plaintiff, the store is closing.

After having been detained on suspicion of theft of merchandise, plaintiff sued for, among other things, false imprisonment and malicious prosecution. The First Department granted defendant's summary judgment motion, in Conteh v. Sears, Roebuck, decided on March 15, 2007. For the one thing, plaintiff failed to raise a triable issue as to the unreasonability of the manner and duration of his detention, and, for the other, the fact that defendant called the police, brought the criminal complaint and cooperated with the District Attorney's office did not, as a matter of law, constitute malicious prosecution.

(I've Got) Diamonds on the Soles of My International Shoes

Solo practitioners should take careful note of the First Department's opinion in Fischbarg v. Doucet, decided on March 13, 2007. Plaintiff is a New York solo and defendant is a California resident and president of a California corporation. In 2001 defendant telephoned plaintiff who agreed to "research and pursue potential claims" sounding in copyright infringement. Defendant was later sued in Orgeon where plaintiff was admitted pro hac vice. Plaintiff never appeared in Oregon and worked the entire matter out of his New York office. Depositions and court conferences were handled by telephone, as were summary judgment motions. After a fee dispute, defendant fired plaintiff in 2002 and plaintiff is suing for legal fees based on quantum meruit. The fight, of course, is over jurisdiction and the reach of New York's long-arm statute on these facts. The opinion is instructive as regards "articulable nexus" and "purposeful availment," as well as on the impact of evolving technologies on traditional jurisdictional principles. The majority stands, though, on familiar ground: the defendant asked plaintiff to do "substantial work" in New York, and, therefore, is subject to New York jurisdiction. I think the majority got it right, but there is a lengthy dissent. See what you think.

Liability for a fall on the Yellow Brick Road?

Plaintiff allegedly tripped and fell on a public sidewalk outside a store leased by defendant, The Wiz, which was denied summary judgment in Bah v. City of New York, et al, decided on March 9, 2007. Noting that, as a lessee, "The Wiz would be liable to a pedestrian injured by a defect in a public sidewalk abutting its property if it created the defect, caused it to occur through some special use, or breached a specific ordinance or statute obligating it to maintain the sidewalk," the Second Department found defendant's showing insufficient to merit judgment as a matter of law. Practitioners should note that this determination is made regardless of the sufficiency of opposing papers.

Plaintiff's sticky wicket.

After choosing a number of fruits and vegetables displayed on the sidewalk just outside defendant's store, plaintiff went inside to pay for the goods. Plaintiff alleged that, as she was leaving, she slipped and fell because of a piece of gum on the floor. The Second Department granted defendant's summary judgment motion, in Calo v. Bel-Mar Spa, Inc., decided on March 6, 2007. The court applied elemental slip-and-fall principles: there was no showing that defendant either created the condition or knew about it. Next.