The First Department set aside a plaintiff's verdict of $2,000,000 compensatory and $500,000 punitive damages, plus attorneys' fees of $257,428.71, in Jordan v. Bates Advertising, which was decided on December 27, 2007. In addition, the court upheld a $5,000 sanction against plaintiff, and dismissed the complaint which had sounded in disability discrimination.

Plaintiff was hired as a senior vice president at the advertising agency, after having worked there for two months as a consultant. She was fired a year later. After her federal claims were dismissed, plaintiff brought a state action claiming, among other things, that she was fired because she was perceived to be disabled.

The First Department agreed with defendant that, at trial, plaintiff did not prove that defendant's proffered legitimate reasons for the firing were pretextual.
The court said that, in establishing her claim under Executive Law § 296, plaintiff had the initial burden of establishing a prima facie case of discriminatory termination. The burden then shifted to defendant to rebut the prima facie case by offering a nondiscriminatory reason for the termination, and then again shifted to plaintiff to show that defendant's reasons were pretextual. The burden of persuasion on the ultimate issue of discrimination always was plaintiff's.

At trial, plaintiff established that she was diagnosed with multiple sclerosis (MS) in 1992 and, because of it, used a cane. When she was asked about the cane after having been hired, she said she used it because of a skiing injury, a lie which she repeated when she was asked about it again. Plaintiff testifed that, since she was often asked about the cane, she felt that they believed she had a disability, and that if she revealed the truth she would be fired. However, she did not complain to anyone at the agency about the inquiries as to her use of the cane. Plaintiff further testified that, at a rehearsal for a client presentation, an executive knocked over her cane which was leaning on her chair, and laughed with another executive, while commenting sarcastically, "We've got a cripple." Plaintiff did not mention this comment to anyone at the company.

Agency executives testified that plaintiff's termination was financially motivated, and that a merger and the loss of major clients had precipitated layoffs of a large portion of the workforce, including executives more highly placed than plaintiff. There was testimony that, as a result of the merger alone, half of the staff was terminated.

The court said that defendant's overwhelming and consistent evidence of financial reasons for layoffs in the light of the merger and the loss of major client accounts was undisputed, and that, therefore, the finding that defendant failed to demonstrate a legitimate reason for terminating plaintiff was against the weight of the evidence.

The court said that the sanction of $5,000 on plaintiff was a proper exercise of the trial court's discretion. Plaintiff's conduct after the court directed a hearing to determine the amount of attorneys' fees was egregious and repeated. The record shows that plaintiff pro se relentlessly bombarded the court with letters and faxes accusing the court of ex parte communications, declaring her intention to depose the court, and claiming that her now-former trial attorney had committed serious errors costing her millions in damages. Although the court recognized that plaintiff was proceeding pro se after trial, it properly observed that she still was obliged to comply with court orders and not make baseless accusations regarding the court's integrity.

The First Department affirmed the denial of defendant's summary judgment motion, in Moore v. 793-797 Garden St. Housing Development Corp., which was decided on December 20, 2007.

Plaintiff alleges that, while she was walking down a marble staircase, one of the stairs moved from its base and she fell. Defendant failed to satisfy its initial burden of establishing a lack of notice as a matter of law since its witness had no personal knowledge of the condition of the allegedly defective step. In addition, defendant offered no evidence from its employees who were regularly at the property and dealt with tenant complaints, and who could have testified regarding the lack of complaints about the staircase or when it was last inspected or repaired. Furthermore, the record included plaintiff's testimony that (1) she had complained to the superintendent that the steps were uneven and had broken chips, and (2) steps in the vicinity of the accident had been patched and grouted and were the subject of violations issued by the Department of Housing Preservation and Development. All of this raised a triable issue as to whether defendant had notice of the allegedly hazardous condition.

NEW TELEPHONE IN THE NEW YEAR...

The office telephone number will be changed in the new year and, in the meantime, the number is 917-834-8012. The mailing address is still 225 Broadway-41st Floor, New York NY 10007.

Plaintiff alleges he was injured when he was struck by sheetrock boards while doing renovation work. Plaintiff's expert, a professional engineer whose opinion is unrefuted, said that the boards, which had been leaning against the wall, were inherently unstable and unsafely stored, in violation of Industrial Code (12 NYCRR) § 23-2.1(a)(1). Based on that, the First Department said that the Santos motion for dismissal of the Labor Law § 241(6) claim against him was properly denied, in Castillo v. 3440 LLC, which was decided on December 20, 2007.

The court also said that the claim as against 3440 LLC was properly dismissed since Santos did not obtain prior written consent for this work, in violation of the lease terms, and since 3440 LLC did not learn of the renovation until after plaintiff's accident.

There was a dissent in which one judge pointed to the statutory language which governs the proper and safe storage of building materials in a "passageway, walkway, stairway or other thoroughfare." The dissenting justice said that, here, plaintiff's accident occurred in an open work space, and so the statute does not apply.

The Second Department denied defendant's summary judgment motion in an action to recover damages for injuries allegedly sustained as a result of a fall caused by a puddle of soapy water in an aisle of defendant's store, in Granera v. 32nd Street 99¢ Corp., which was decided on December 18, 2007.

The court noted that defendant met its initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. However, in opposition, plaintiff offered her deposition testimony that it was neither snowing nor raining on the day of the accident, and that,immediately after she fell, she saw an employee with a mop and a bucket standing a couple of aisles away. There also was deposition testimony from the store manager that, after the accident, he too saw "two clean-up individuals" with buckets and mops "by the cashier." The court found this evidence sufficient to raise an issue of fact as to whether defendant may have created the condition which proximately caused plaintiff's injury.

Defendants wrote and published an article in the local paper, asserting that plaintiff, the former head of a high school English department, had "misappropriated" funds "that came directly from the pockets of students." Specifically, the article stated that plaintiff told students that they had to pay $5 for workbooks. However, according to the article, the workbooks had already been paid for by district taxpayers, and plaintiff turned the money into a "slush fund" for the English department. The article asserted that plaintiff "got away" with the misappropriation because he maintained the financial records of the department, and that his actions had been "discovered" by school district officials when some students attempted to pay their book fees directly to the school's principal. The article named only two specific purchases made by plaintiff with the money he collected: an air conditioner for a teachers' room and lunches for faculty meetings.

On the same day it ran the article, the newspaper published a related piece, labeled as an editorial, which set forth the statutory definition of the crime of scheme to defraud in the second degree and then posed the following question: "When a teacher tells his students they must give him cash to pay for workbooks and spends the cash on lunches and appliances, does that fit the description above?" The editorial called for the district attorney to investigate the matter. Plaintiff commenced a libel action based on the article and editorial, and the Second Department denied defendant's motion to dismiss, in Matovcik v. Times Beacon Record Newspapers, which was decided on December 11, 2007.

The court noted that the tort of libel is based on the publication of a statement that is both false and defamatory, and that a defamatory statement is libelous per se if it imputes fraud, dishonesty, misconduct, or unfitness in conducting one's profession.

Here, the article and editorial asserted that plaintiff engaged in misconduct in the course of his employment as a teacher, and plaintiff alleged that the defamatory facts set forth in the article and editorial were false. The court concluded that, accepting plaintiff's allegations as true, as it must in considering a 3211 motion, plaintiff stated a legally cognizable cause of action to recover damages for libel.

The court said that defendant's documentary evidence failed to establish, as a matter of law, the truth of certain facts set forth in the article and the editorial. That's a fatal flaw since, on a 3211 motion, the documentary evidence must resolve all factual issues and must conclusively dispose of plaintiff's claim.

Here, defendant's submissions provided some evidence that the practice of collecting and spending workbook funds predated plaintiff's tenure as department head and had been condoned, accepted, and encouraged by school district administrators. A reader would be likely to view plaintiff's actions in a different light if the school district had known of and had approved the collection practice. Additionally, by citing only the lunches and the air conditioner as examples of plaintiff's purchases, the article left the reader with the impression that plaintiff had used the money to purchase items which benefitted only the faculty. However, defendant's documentary evidence suggested that plaintiff spent the money largely on books and other classroom supplies used by or for the students.

The First Department affirmed the denial of an administrative determination denying accidental disability retirement benefits to a former police officer, in Picciurro v. Police Pension Fund, which was decided on December 18, 2007.

Petitioner, now retired, took a one-day voluntary assignment at the World Trade Center-site on September 12, 2001. She alleges that the experience was so overwhelming that she was unable to return the next day, despite being ordered to do so. When she refused to return to the site, she allegedly was humiliated and handcuffed by her superior officer in front of her peers, who thereafter subjected her to taunting, causing her to suffer post-traumatic stress disorder and depression. This allegedly rendered her incapable of performing her duties and resulted in her application for accidental disability retirement (ADR).

Petitioner's application was considered on three separate occasions and, each time, was denied. The Appellate Division said that the trial court properly declined to annul that determination, citing Court of Appeals' decisions to the effect that a reviewing court may only disturb such finding if it determines that, as a matter of law,causation is established, that is, that the disability was the natural and proximate result of a line-of-duty accident. If the record contains any credible evidence of a lack of causation, said the court, the adverse determination must stand.

The court noted that, although petitioner asserts both her service on September 12, 2001, and her subsequent humiliation, harassment and taunting by co-workers were the line-of-duty accidents that caused her disability, the record contains statements by her indicating that she felt the latter to be more significant than the former. For example, before the Medical Board she stated, "It was at the scene of the World Trade Center when I was badly humiliated in front of the other officers by being handcuffed and from then on I was harassed . . . I was told that I shouldn't be an officer and that's my flashback. This is the one that bothers me the most. The officer who put the handcuffs on me ruined my life, that's why I cannot be a full-time police officer."

The court concluded that this theory of causation does not meet the definition of "accident" adopted by the Court of Appeals, namely, a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact, and, therefore, it is insufficient to support her claim.

The Second Department found that defendant's submissions in his motion to dismiss were sufficient to establish the existence of an accord and satisfaction by way of a substituted agreement, in Gibbs v. Moore, which was decided on December 11, 2007. They clearly manifest the parties' intent that the obligation incurred by a promissory note would be satisfied by defendant's execution of a Separation Agreement settling a Maryland divorce action pending between him and plaintiff's daughter. The Separation Agreement was signed on the same date that the parties signed a discrete agreement as to the promissory note. That note agreement referenced the Separation Agreement and expressly provided that the promissory note was "hereby paid and satisfied" and that it "shall be so marked." That this was the parties' intent is further confirmed by the handwritten phrase, "Satisfied in full," in what appears to be plaintiff's own hand, on the original promissory note, and plaintiff's inscription of his signature immediately under that term.

The First Department found that the motion court did not improvidently exercise its discretion in granting a continuance so that intervenor-insurance company could present the videotaped deposition testimony of an out-of-state nonparty witness, in Shia v. McFarlane, which was decided on December 13, 2007. The court found that (1) both sides were at fault for the delay in discovery since they failed to settle orders pursuant to the direction of the court with respect to the tangential issue of deposition costs; (2) plaintiffs did not claim, much less demonstrate, prejudice; and (3) the anticipated deposition testimony was crucial to the principal issues in the case.

Lead paint and causation.

In a matter alleging damages caused by lead paint, the First Department denied plaintiffs motion for summary judgment on liability, in Lagoa v. Joremi Enterprises, which was decided on December 13, 2007. The court noted that, to establish cause, plaintiffs must directly link the injured child's condition to lead in the apartment. Here, plaintiffs' expert opined that lead poisoning was the substantive cause of the child's condition. While defendant's expert did not dispute the exposure to lead, he opined that the amount of exposure in the apartment and the levels of lead in the child's blood were not enough to cause the medical condition. The court concluded that this sufficiently raised a triable issue of fact on liability.

The First Department reinstated the complaint labeled as negligence and dismissed the complaint labeled as negligence/res ipsa loquitor, in Ianotta v. Tishman Speyer, which was decided on December 11, 2007. The court noted that plaintiff failed to raise an issue of fact as to whether defendant had notice of the alleged defective condition of the elevator in which she was injured, since the incidents noted in the elevator service report log were not similar to the accident giving rise to this lawsuit. However, the court found that facts did warrant application of the doctrine of res ipsa loquitur, since plaintiff testified that the elevator doors were open for a second or two before she entered the elevator right behind her co-worker and that another co-worker had to pry the doors open to free her, and the safety edge on the elevator was not a rubber bumper that plaintiff could have touched or put pressure on to cause the doors to retract but a device that used infrared beams to detect the presence of passengers. Since the public did not have access to the mechanism which would cause the doors to retract, the greater probability of responsibility for the alleged malfunction is on the defendant.
The court reinstated the negligence cause of action and dismissed the negligence/res ipsa cause of action in order to clarify that without a cause of action for negligence there is no viable cause of action to which to apply the doctrine of res ipsa. It is not a separate theory of liability but merely a common-sense application of the probative value of circumstantial evidence.
There was a lengthy dissent which argued that the doctrine of res ipsa cannot save the deficiencies in plaintiff's proof of negligence. The dissenting judge said that plaintiff was resorting to the mere happening of the accident as proof of negligence, and said that cannot be supported by New York law.

The First Department took down defendant's directed verdict, reinstated the complaint, and ordered a new trial, in Hendricks v. Baksh, which was decided on December 6, 2007. The court said that the directed verdict was improperly granted on the ground that expert testimony was necessary for plaintiff to make a prima facie case of negligence. The court noted that defendant admitted that two years before the accident he repaired the area of the sidewalk in front of his home where plaintiff tripped and fell, and concluded that the question of whether this repair was performed negligently, thereby creating a defect causing plaintiff to trip and fall, should have been given to a jury. The details of the repair work -- whether defendant used the right concrete, or poured enough of it in the right places, or should have removed the cobblestones, or failed to properly take into account the effects of weather, foot traffic and tree roots on the installation -- are not matters beyond the ken of the typical juror, nor are they issues of such scientific or technical complexity as to require the explanation of an expert in order for the jury to comprehend and resolve them.

Plaintiff is the mother of decedent, a five-year-old kindergarten student who was asthmatic, a fact known by his teacher and reflected in records maintained by the school nurse. At the beginning of the school year, plaintiff gave to the nurse decedent's asthma medication, an inhaler, and an authorization and directive for its use, as well as a separate authorization for an allergy medication.

On the day in question, decedent's teacher and the teacher's aide in his class noticed that he was coughing and they decided he should see the nurse. According to the nurse's records, decedent was breathing, alert, and in no distress. The nurse gave decedent his inhaler medication and notified plaintiff, who drove to the school. According to plaintiff, when she arrived, decedent was standing with the nurse and the principal. He was breathing and able to walk and talk. Plaintiff told the nurse that she was taking decedent to his pediatrician, which the nurse had suggested, and plaintiff put decedent in her car and drove away.

Plaintiff alleges that in the car decedent appeared to be hot and ill, and that she stopped twice to attend to him. Plaintiff decided to drive directly home, which she says was closer than the doctor's office, to call for help. Plaintiff asserts that, on reaching her home, she left decedent in the car, called 911, and then moved him into the house where emergency medical personnel treated him before taking him to the hospital by ambulance. Decedent was pronounced dead at the emergency room.

The Second Department granted defendant's motion to dismiss, in Williams v. Hempstead School District, which was decided on December 6, 2007. The court noted that decedent had been released to plaintiff who assumed complete custody and control of him. Having removed decedent from the geographic boundaries of the school district, as well as from defendant's actual control, and having decided to take him home where plaintiff administered medication, plaintiff cannot establish, as matter of law, that a duty existed which could give rise to any liability by defendant.

The Second Department affirmed the dismissal of the complaint as against defendant Cushman & Wakefield, in Vignapiano v. Herbert Construction, which was decided on December 6, 2007. The court began by noting that a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party. Here, Cushman demonstrated that its management contract with the predecessor of plaintiff's employer did not give rise to a duty of care to plaintiff. In opposition, plaintiff failed to raise a triable issue as to whether she detrimentally relied on Cushman's continued performance of its duties. As an example, at deposition, plaintiff testified that, two months before the accident, she called building management to express concern that the shelves in her office were slanted downward on the ends, and in response, someone came to inspect the shelves. However, plaintiff only speculates that this inspector was a Cushman employee, as opposed to an employee of her employer's in-house property management department. Further, said the court, even if the inspector were a Cushman employee, plaintiff did not raise a triable issue as to whether Cushman's alleged nonfeasance in failing to discover the alleged defect in the shelves launched a force or instrument of harm, such that Cushman might be liable. Finally, the court said that plaintiff did not raise a triable issue as to whether Cushman entirely displaced the duty of plaintiff's employer to maintain the premises safely. Why? Her employer maintained an in-house property management department, and the management contract provided that plaintiff's employer retained substantial control over the management and operation of the premises.

Saved!.

The First Department affirmed that two residences owned and operated by defendant were exempt from the Rent Stabilization Law since the primary use of the residences was charitable, in Candida v Salvation Army, which was decided on December 6, 2007. Because the tenants' initial occupancies commenced after defendant acquired the residences, they were exempt from the operation of the Rent Stabilization Law and defendant was entitled to refuse to renew the tenants' leases, pursuant to New York City Administrative Code § 26-511[c][9][c][i]. Furthermore, said the court, the leasing of some of the rooms in the residences to university students was incidental to the primarily charitable purpose of the residences, and did not deny defendant the benefit of exemption from the Rent Stabilization Law.

Respondeat superior.

The Second Department reinstated a complaint against the hospital, alleging vicarious liability for its employee's malpractice, even though the action against the physician had been dismissed for improper service, in Trivedi v. Golub, which was decided on December 4, 2007.

The court noted that, in an action against an employer based on respondeat superior, the employee who allegedly committed the tortious conduct is not a necessary party. Therefore, the fact that personal jurisdiction was not acquired over the physician did not warrant dismissal of the action as against the hospital.The court acknowledged that, in the absence of an employee's wrongful or actionable conduct, vicarious liability cannot be imposed on the employer. Here, though, the action against the physician was dismissed for a jurisdictional defect and did not go to the merits. Accordingly, said the court, there has been no determination with respect to whether the physician's conduct was either wrongful or actionable.

Expert witness is disqualified.

The First Department affirmed Supreme Court's disqualification of plaintiff's proposed expert witness, in de Hermandez v. Lutheran Medical Center, which was decided on December 4, 2007.The Court noted that it is within the Supreme Court's sound discretion to determine whether a particular witness is qualified to testify as an expert, and that its determination will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion. The court said, further, that an expert is qualified to proffer an opinion if he or she possesses the requisite skill, training, education, knowledge or experience to render a reliable opinion.

Here, plaintiff offered as an expert on causation a physicist who studied the growth patterns of breast cancer in general. The court found, though, that he was unqualified to render expert testimony regarding the rate of growth of the decedent's tumor, a retroperitoneal sarcoma. The purported expert, who was not a physician, showed no specialized knowledge, experience, training or education from which it could be inferred that his opinion regarding the growth of the decedent's sarcoma would be reliable.

Without any relevant expert testimony, plaintiff was unable to present a prima facie case of medical malpractice, and there was a directed verdict for defendant.

The First Department granted defendant's motion to dismiss, in Schulman v. Old Navy, which was decided on November 27, 2007. Plaintiff had alleged injuries from striking a metal bracket on a clothing rack, but the court found no negligence on the store's part. The court noted that, ordinarily, the issue of whether a condition is hazardous or open and obvious is a question of fact. On these facts, though, it could be said, as a matter of law, that the bracket was open and obvious and not inherently dangerous. Plaintiff admitted to knowing that the bracket was there, and so plaintiff's argument that the bracket was covered with clothing was unavailing.

The First Department denied defendant's motion to dismiss plaintiff's cause of action for promissory estoppel, in Global Icons v. Sillerman, which was decided on November 27, 2007.

Plaintiff alleged that it agreed to forgo its own attempt to acquire a business opportunity and facilitated defendant's purchase of the opportunity, in reliance on defendant's oral promise that plaintiff would have exclusive rights to manage and market the opportunity's products. The court found that this allegation was sufficient to show that plaintiff had irremediably changed its position in reliance on the alleged oral promise by undertaking acts which werer unequivocally referable to the promise, and that it would be unconscionable to deny enforcing that promise. Whether plaintiff's reliance on the alleged promise was reasonable is an issue of fact which cannot be decided on a motion to dismiss.

Legal malpractice, again.

The Second Department granted defendant's motion to dismiss the complaint alleging legal malpractice, in Asher v. Shlimbaum, which was decided on November 27, 2007. The underlying action was commenced to enforce an alleged oral contract regarding the conveyance of certain real property. The court said that plaintiff's actions in connection with the acquisition and maintenance of the property were not unequivocally referable to the alleged contract, pursuant to General Obligations Law § 5-703[4]), and so the alleged contract was barred by the statute of frauds and was unenforceable, pursuant to General Obligations Law § 5-703[3]). The court said that this was sufficient to show that plaintiff could not establish that he would have succeeded in the underlying action but for the defendant's failure to plead other legal theories in connection with the underlying action.

The standard for legal malpractice.

The First Department denied summary judgment to defendant-law firm in this legal malpractice action, in Duffy-Duncan v. Berns & Castro, which was decided on November 29, 2007.

Defendant's failure to timely serve a Notice of Claim on the Transit Authority had precluded plaintiff from prosecuting his personal injury action arising out of his alleged slip and fall on a patch of ice located on a subway platform. The court said that defendant failed to make a prima facie showing that, despite its failure to timely file, plaintiff could not have prevailed in the underlying action. The court found record evidence demonstrating that, because no discovery was conducted, it cannot be determined, as a matter of law, whether Transit had actual notice of the defective condition.

The court also said that defendant failed to establish that Transit lacked constructive notice of the condition on the platform. Transit submitted climatological reports, without an accompanying expert opinion, but they were insufficient since they were taken in neighboring counties, and are not dispositive as to the conditions at the site of plaintiff's fall in the Bronx.

The Labor Law, again.

Plaintiff was hired to rewire defendants' telephone system, and, while he was running wires in an attic crawl space, plaintiff fell through a sheet rock ceiling in the office below. He commenced this action to recover damages for personal injuries allegedly arising from violations of Labor Law §§ 200, 240, and 241, and common-law negligence.

The Second Department found that plaintiff's work involved an elevation-related risk within the purview of Labor Law § 240(1), and reinstated the complaint, in Becker v. ADN Design, which was decided on November 20, 2007. The court gave short shrift to defendant's arugment that plaintiff was engaged in mere routine maintenance, saying that, in fact, the work clearly was "altering," within the meaning of the statute.

The court declined plaintiff's invitation to search the record and grant him summary judgment, however, finding issues of fact as to, among other things, whether plaintiff's own conduct was the sole proximate cause of his injuries.

Falling concrete blocks.

The Second Department reinstated plaintiff's cause of action alleging a violation of Labor Law § 241(6), in Amerson v. Melito Construction, which was decided on November 20, 2007.

Plaintiff was employed by a masonry subcontractor in the construction of a concrete block wall for a new supermarket. The wall was being built by masons who worked while standing on scaffolding set up on the exterior side of the wall. Plaintiff testified that his regular duties included walking around to the interior side of the wall and scraping and removing the mortar which fell to the loading dock floor of the new supermarket as a result of the construction of the concrete block wall, 12 to 20 feet above him.

Plaintiff wore a hard hat and had a chipping hammer, a scraper, a shovel, and a wheelbarrow in order to perform this work. On the day of the accident, plaintiff allegedly was looking down and scraping the loading dock floor when he was struck in the head by a concrete block, or a portion of one, which fell from the top of the wall where the masons were working.

The Appellate Division said that, on these facts, Supreme Court improperly granted defendants' motion for summary judgment, dismissing the alleged Labor Law violation.

The court said that plaintiff's work area was one which was normally exposed to falling material or objects, and so comes within the purview of 12 NYCRR 23-1.7[a][1], a provision of the Industrial Code which requires the use of appropriate safety devices to protect workers from overhead hazards. The court said that it is for a jury to decide whether the falling of a concrete block was foreseeable and whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.

This defendant's in hot water.

The First Department denied a motion to dismiss in an action seeking damages for injuries allegedly suffered when a glass shower door fell on plaintiff at defendant's hotel, in Higgins-Barber v. Raffles, which was decided on November 20, 2007.

The court rejected defendants' argument that they cannot be held liable unless they had notice of the alleged defect in the shower door in plaintiff's particular room. The court said that, even if defendants never received any complaints about this particular shower door, or if they regularly inspected it and found no problems, there still would be issues of fact bearing on notice, including the adequacy of defendants' inspection and maintenance procedures. The court pointed to defendants' acknowledgment that there had been at least 22 similar incidents involving identical shower doors in other rooms going back 10 years, and to defendants' failure to adduce evidence in their initial moving papers as to the proper inspection and maintenance procedures for shower doors.

The court further said that defendants' argument that the prior incidents are statistically insignificant given that the hotel has over 500 rooms was effectively countered by plaintiff's expert's affidavit which specified defects in the assembly of an identical shower door, and by defendants' own witness's testimony that, beginning 10 months before plaintiff's accident, the hotel had begun replacing all the shower doors with shower curtains.

The clock ran out.

The First Department granted defendant's motion to dismiss, in Doddy v. City of New York, which was decided on November 20, 2007. Plaintiff had moved to file a late notice of claim just eight days before the one-year-and-90-day statute of limitations expired. The motion was filed as timely served 265 days later, during which time the statute was tolled. Once the motion was filed, though, the toll was lifted and so plaintiff had only eight days to serve the summons and complaint. Plaintiff failed to timely serve. The court pointed to General Municipal Law § 50-i(3) which says that the one-year-and-90-day limit may not be extended.

A computer glitch is law office failure.

The First Department vacated the default of defendant-law office, in Lancer Insurance v. Rivera, which was decided on November 20, even though the court said the excuse for failing to appear at the framed-issue hearing was "weak." Defendant said that its office computer incorrectly listed the hearing as set down for Nassau County, but did not say whether anybody from the firm appeared at Nassau. Still, said the court, it's tantamount to law office failure, which is a recognized excuse for vacating a default. The court noted the strong public policy of deciding cases on the merits, and said that the case must have had some merit given that a framed-issue hearing was even scheduled.

Lack of interest.

Plaintiff settled his claim for three-hundred-thousand dollars, but will not get interest, pursuant to CPLR 5003-a(e), because he did not timely provide defendant with the hold harmless stipulation and his W-9 form, according to the First Department, in Cely v. O'Brien & Krietzberg, which was decided on November 15, 2007.

The court noted that neither the CPLR nor the open court settlement agreement required the documents as a condition of paying the settlement amount, but said that the defendant had a right to ask for the documents, citing the Internal Revenue Code, 3406(a)(1)(A), and New York case law.

CPLR 214-a.

The First Department dismissed a dental malpractice claim because it was commenced beyond the two and one-half year statute of limitations, pursuant to CPLR 214-a, in Cresson v. New York University College of Dentistry, which was decided on November 13, 2007.

Defendant established through documentary evidence that, following plaintiff's last scheduled appointment, it put plaintiff on notice of its decision to discontinue treating her and that she would have to pursue outside consultation for her orthodontic complaints. The court found no basis upon which to find that defendant anticipated providing further orthodontic services to plaintiff.

Procedure matters.

The First Department dismissed an Article 78 petition seeking to overturn the termination of petitioner's employment, in Fluellen v. Hanley, which was decided on November 13, 2007.

The court pointed to the collective bargaining agreement which required petitioner to avail herself of a four-step grievance procedure in connection with the disciplinary proceeding. Petitioner did not go through the fourth step in the procedure and so was precluded from even bringing the Article 78 proceeding. Furthermore, said the court, she participated in the second and third steps of the grievance procedure without objection, notwithstanding her union's objection to the procedure during the first step, and so she effectively acquiesced to it.

The court acknowledged the legitimacy of petitioner's argument that her employer had improperly converted a proceeding to determine her medical fitness into a disciplinary proceeding, but it went for naught because she still was required to exhaust the grievance procedure. Indeed, petitioner could have raised her conversion claim in the disciplinary proceeding, and she did so.

Out of work and out of court.

The First Department found that defendant had offered legitimate, nondiscriminatory reasons for plaintiff's termination, in Elizarov v. Martha Stewart Living, which was decided on November 8, 2007. The court said that plaintiff offered no evidence to controvert defendant's proof that economic conditions made cost-cutting necessary, resulting in significant job layoffs, or that defendant's downsizing was somehow contrived for the purpose of terminating him. In addition, noted the court, plaintiff conceded that defendant granted his vacation request and let him attend religious services during his lunch hour. In light of that, his alleged "failure to accommodate" claim was dismissed.

Up to code.

While playing basketball in defendant's gym, a student was injured when his hand struck a pane of glass in a door and the pane shattered. The student's parent filed suit alleging, among other things, that defendant was negligent in failing to install safety glass in the door. According to plaintiffs' engineering expert, safety glass prevents injury because of its ability to withstand pressure and its tendency, if broken, not to form large sharp edges.

Defendant moved to dismiss, maintaining that the glass did not constitute a defective condition, and the Second Department granted the motion, in Dwyer v. Diocese of Rockville Center, which was decided on November 7, 2007. The court said that, as a matter of law, defendant was not negligent since it submitted evidence showing that the door fully complied with all applicable building codes which were in effect at the time the school was built.

The default stands.

In an action to recover damages for personal injuries, the Second Department refused to vacate a default judgment, in Anderson v. GHI Auto Services, decided on November 7, 2007, noting that defendant failed to demonstrate a reasonable excuse for the default and a meritorious defense, pursuant to CPLR 5015 [a][1].

The court also rejected defendant's argument of improper service, noting that the mere denial of having received the summons and complaint cannot rebut the presumption of proper service created by the affidavit of service, pursuant to 5015(a)(4).

In any event, said the court, defendant cannot be relieved from its default because of CPLR 317, which says that a defaulting person who had been served other than by personal delivery, may be allowed to defend the action within one year after learning of entry of the judgment, but no more than five years after the entry. Here, the judgment was entered in 1997 and defendant did not move for relief until 2006.

The elevator's here and it's safe to get on.

The First Department dismissed a complaint seeking damages allegedly suffered when plaintiff tripped and fell while exiting an elevator at work, in Cortes v. Central Elevator, Inc., which was decided on November 8, 2007. The court found that defendant offered submissions sufficient to establish that the elevator was working properly and that there was no misleveling problem on the day of the accident. Among other things, the court pointed to plaintiff's deposition testimony that he did not see the elevator in a misleveled state after his fall, and an affidavit from an elevator consultant who inspected the elevator and concluded that its doors would not have opened if the elevator was more than one-half inch below the hallway floor.

The court noted that plaintiff's expert's affidavit was conclusory and unsupported by the anything in the record. The court gave short shrift to plaintiff's res ipsa argument, noting that the accident could have occurred in the absence of negligence and could have been caused by a misstep on plaintiff's part.

In light of its determination, plaintiff's cross-motion to compel production of post-accident maintenance records was academic, but, the court opined that it was improper because neither control nor defective manufacture were at issue.

No on discrimation and harassment, but yes on retaliation.

The First Department dismissed plaintiff's sex discrimination and sexual harassment claims, in Clayton v. Best Buy, which was decided on November 8, 2007, noting that, under the New York Human Rights Law, an employer is not liable for an employee's act of discrimination unless the employer became a party to it by encouraging, condoning, or approving it.

The court found that when plaintiff reported the incident, defendant immediately took action, reprimanding the offending employee on the same day the incident occurred and warning him that another similar incident would result in his dismissal. Furthermore, the court said there was no evidence that plaintiff's workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive so as to alter the conditions of plaintiff's employment and create an abusive working environment.

The court also found that plaintiff's allegations of sexual and inappropriate remarks made by various employees of defendant were insufficient to support a claim of intentional infliction of emotional distress.

However, the court did find an issue of fact on the retaliation cause of action, in which plaintiff claimed that defendant had reduced her hours, saying that business had slowed, even though she was considered a good employee and no other cashiers' hours were reduced.

The courts are closed for Veterans Day but the law office is open and so we are posting.

Of course, best wishes to my fellow Vietnam veterans and to the women and men whose service has kept us free.

Staying put.

In this action for personal injuries and wrongful death, the First Department denied third-party defendant's motion to change venue from Bronx to Westchester, in Bakiriddin v. Idi Construction, which was decided on November 8, 2007.

Plaintiff's decedent, who was third-party defendant's employee, was injured at a construction site in New York County and was taken to a hospital in New York
County, where he remained for two months. He then was moved to a nursing home in Bronx County, where he died eight months later after being in a comatose state for most, if not all, of his stay there.

Plaintiff was appointed administrator in Bronx County, and venue was placed there pursuant to CPLR 503[b]. The pleading filed in Bronx Surrogate's Court gave plaintiff's address in Westchester, but it also indicated, as reflected in the death certificate, decedent's residence and place of death as Bronx County. The court said that, absent evidence that plaintiff's application for testamentary letters fraudulently misrepresented or withheld facts pertaining to decedent's domicile, a collateral attack on the Bronx County Surrogate's appointment of plaintiff is foreclosed, pursuant to SCPA 204 and 205[1].

The court also noted that third-party defendant did not follow the procedures of CPLR 511, namely, a timely motion following a demand for change of venue, and so a change of venue, based on the location of its principal place of business in Westchester County, is not owing as of right. Finally, the court said it could not grant a discretionary change of venue since third-party defendant did not identify any nonparty material witnesses whose convenience would be served by the change, as required by CPLR 510[3].

Untimely service of a summary judgment motion.

Plaintiff commenced this action to recover damages for alleged discrimination on the basis of his sexual orientation. Plaintiff filed a note of issue on May 15, 2006, and motions for summary judgment, if any, were to be made within 60 days thereafter, pursuant to a preliminary conference order.

Defendants' motion for summary judgment was untimely served but Supreme Court accepted counsel's excuse that she had mistakenly thought she had 120 days, not 60, and granted the motion on the merits.

The First Department reversed, in Crawford v. Liz Claiborne, which was decided on November 1, 2007. The court noted that a court will get to the merits of an untimely summary judgment motion only if movant demonstrates a satisfactory explanation for the untimeliness. Here, the court found defendants' explanation nothing more than a perfunctory claim of law office failure, which is insufficient to constitute good cause under CPLR 3212(a).

The court gave short shrift to the argument that the motion was untimely by just five days, saying that it does not defeat the requirement of a good cause for the delay.

There was a lengthy dissent in which two judges cited what they thought was ambiguity created by the motion court's referring to a local rule in its preliminary conference order. The dissenters also took sharp exception to the court's remitting the matter for reassignment to another judge, finding this a wholly unnecessary impugning of the motion court.

Failure to prosecute (or to explain).

In this medical malpractice action, the First Department granted defendants' motion to dismiss for failure to prosecute, in Patterson v. St. Luke's-Roosevelt Hospital, which was decided on November 1, 2007.

Plaintiff did not respond to defendants' disclosure demands served at about the same time as their answer, and had otherwise been utterly inactive when, two years later, defendants served a CPLR 3216 notice. Service of the notice required that plaintiff do one of three things: (1) file a note of issue within 90 days; (2) move to vacate the notice or extend the 90-day period; or (3) oppose the motion to dismiss, demonstrating the action's merit and proferring an excuse for the delay sufficient to convince the court to forgive the failure to prosecute as a matter of its inherent discretion.

Plaintiff chose the third alternative, submitting materials responsive to plaintiff's discovery demands, but offering no excuse whatsoever for the inactivity and, with respect to the merits, merely promising to produce an expert's affidavit within 60 days of the motion's return day. The court found it was way too little and way too late.

Malicious prosecution.

Plaintiff was employed by defendant-apartments and, in that capacity, did some maintenance work in individual defendant's unit. Afterward, individual defendant noticed that two watches and a pair of sun glasses were missing, and he reported the loss to the apartment's security director, who notified police. Plaintiff was later arrested and charged with petit larceny, and given an appearance ticket.

Plaintiff then left a threatening message on individual defendant's telephone answering machine, and plaintiff was arrested again, charged with aggravated harassment.

Both charges were dismissed on speedy trial grounds, pursuant to CPL 30.30, and plaintiff commenced this civil action, alleging, among other things, malicious prosecution and abuse of process. Supreme Court granted apartment-defendant's motion to dismiss, but did not dismiss the malicious prosecution cause of action as against individual defendant and the City. The Second Department reversed, in Baker v. City of New York,which was decided on October 30, 2007.

The court noted that, in order to recover for malicious prosecution, a plaintiff must establish all four necessary elements, namely, (1) that a criminal proceeding was commenced; (2) that it was terminated in favor of the accused; (3) that it lacked probable cause; and (4) that the proceeding was brought out of actual malice.

The court then found that individual defendant was entitled to summary judgment on the element of actual malice, saying, that, generally, a civilian who merely furnishes information to law enforcement authorities who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed will not be held liable for malicious prosecution. Here, plaintiff failed to raise a triable issue of fact as to whether individual defendant had played an active role in the prosecution of the charges by advising the police or by encouraging them to make the arrests. Plaintiff did not even allege that individual defendant knowingly gave false information to the police, and he did not allege anything which would raise a question of actual malice.

The court also found individual defendant entitled to summary judgment on the element of probable cause, which here required only information sufficient to support a reasonable belief that plaintiff had committed an offense.

The court also found the City entitled to summary judgment on the same elements, noting that information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest.

The courts are closed on this election day, but the law office is open and so we're posting a case.

Housing matters.

The First Department upheld the City agency's granting of a certificate of eviction on the ground that the apartment at issue was not petitioner-tenant's primary residence, in Kaufman v. New York City Housing Preservation and Development, which was decided on November 1, 2007. The court found in the record the requisite substantial evidence, including petitioner's failure to file income statements, hearing testimony, albeit largely hearsay, and petitioner's failure to testify on her own behalf. The court also noted that the issue of succession rights was not raised at the administrative level and so was not properly before the court as a matter for judicial review.

Assumption of the risk not in play.

Plaintiff was an experienced lifeguard who enrolled in a recertification CPR course which included lectures and demonstrations of CPR and rescue breathing techniques. Plaintiff alleges that, during the class, he was used to demonstrate the "head-tilt, chin-lift" technique, which is a method of clearing an unconscious person's airway. Plaintiff claims that demonstration was done in a negligent and reckless manner, thereby causing injury to his neck.

Defendants moved to dismiss, arguing, among other things, that plaintiff assumed the risk of injury by participating in the class. The Second Department denied defendant's motion and reinstated the complaint, in Schoenlank v. Yonkers YMCA, which was decided on October 23, 2007.

The court noted that the doctrine of primary assumption of risk precludes a voluntary participant in a sport or recreational activity from recovering for those injuries that may foreseeably result from the realization of a risk inherent in the activity itself. The doctrine can also apply in the context of nonsporting activities which pose inherent risks to the participants, as long as participation was voluntary and the injured participant had been fully apprised of the risks involved.

The court said that, here, defendants failed to establish, prima facie, that the "head-tilt, chin-lift" technique, when properly done, involved any inherent risk of injury to the person on whom it is performed, and that, therefore, they failed to establish that the doctrine of primary assumption of risk was even implicated.

The court that, in any event, even if plaintiff had assumed some degree of risk by allowing the technique to be performed on him, the law is clear that a participant does not assume the risk of another participant's negligent act which enhances the risk of injury. On these facts, the court found unresolved issues of fact as to whether the alleged application of forceful and excessive pressure and torque to the plaintiff's head and neck for a period of approximately 20 seconds was negligent and enhanced the risk of injury to plaintiff.

Municipal immunity.

The First Department dismissed the complaint as against the City, on the grounds of municipal immunity, in Shands v. Escalona, which was decided on October 23, 2007. Plaintiff had alleged that her intended roadside exit was closed because of flooding, and that a City police officer was negligent when he guided her back onto the highway, only to have her vehicle struck by a tractor-trailer owned and operated by co-defendants.

The court said that, even accepting plaintiff's allegations as true, any negligence on the part of the officer was committed in the course of a discretionary act for which the City is immune from suit, absent a special relationship. On these facts, the court did not find evidence of the requisite relationship.

A motion to preclude denied.

The Second Department affirmed the trial court's denial of plaintiff's motion to preclude one of defendants' medical experts from testifying on the ground that his testimony varied from the expert witness statement served before trial, pursuant to CPLR 3101[d][1][i], in Popkave v. Ramapo Radiology, which was decided on October 23, 2007.

On review of the trial record, the court found that the expert's testimony was fully consistent with his pretrial disclosure statement. The court said that any additional testimony the witness gave regarding the plaintiff's social history and the causes of breast cancer either was of collateral significance or constituted general background information, which did not render the pretrial disclosure statement inadequate or misleading, and did not result in prejudice or surprise to plaintiff.

It was in the mail.

The Second Department reversed Supreme Court's denial of defendants' motion to dismiss on the ground that it was untimely served, in Ortega v. Trefz, which was decided on October 23, 2007. The court noted that service on a party's attorney by mail is complete upon mailing, pursuant to CPLR 2103[b][2]. The court went on to explain that "mailing" means the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person's last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state, pursuant to CPLR 2103[f][1].

Furthermore, said the court, a properly executed affidavit of service raises a presumption that there was a proper mailing.

Here, defendants submitted a notarized affidavit of service from an employee of defendants' counsel attesting that she mailed the motion papers on May 9, 2006, in strict adherence to the statutory requirement. The postmark date of May 10, on the envelope in which the plaintiffs received the motion, did not establish that service was not completed on May 9.

A disability claim denied.

The First Department affirmed the denial of petitioner-police officer's claim to disability retirement benefits, in Igneri v. Kelly, which was decided on October 25, 2007.

The court said that, on this record, it could not be determined, as a matter of law, that petitioner's disabling arthritic condition was the natural and proximate result of the 1983 gunshot wound to his right thigh.

While petitioner offered various theories of causation, they were all refuted by credible evidence of lack of causation. As an example, petitioner proffered that the damage to his right thigh caused him to alter his gait and kept him from exercising, resulting in the weight gain that the Medical Board believes contributed to the arthritis. But the Medical Board countered that its examination of petitioner revealed full functional recovery of the thigh with the exception of some decreased sensation. No atrophy or motor problems were noted, and there was no indication of a change in gait or other cause for increased weight gain due to an inability to exercise.

While petitioner was claiming arthritis in his right-knee, the Medical Board cited evidence that the bullet fired at petitioner missed the knee and that no bullet or bone fragments were found in the knee. The Medical Board also cited evidence that petitioner was now displaying symptoms of arthritis in his left knee.

Finally, the court said that the fact that the Police Department had paid for petitioner's medical treatment for the knee is not evidence that the condition of the knee is service-related.

Class dismissed.

The First Department upheld petitioner-employee's termination, finding her complaint time-barred, in DiRuzzo v. Department of Education, which was decided on October 25, 2007. The court said that, once the claim accrued, the employee's filing of a grievance did not toll the statutory limitation period.

It's settled.

The Second Department upheld a stipulation of settlement, saying that, since plaintiff's attorney engaged in settlement negotiations and appeared at pretrial conferences, he had, as a matter of law, apparent authority to bind his client to the settlement terms, even if it exceeds his actual authority, in Davidson v. Metropolitan Transportation Authority, which was decided on October 16, 2007.

The court added that a party will be relieved from the consequences of a stipulation made during litigation only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident.

The court noted that, subsequent to the stipulation of settlement, plaintiff's attorney, acting on behalf of the party to be bound, confirmed the essential terms of the oral settlement agreement reached at the pretrial conference in a subscribed writing sufficient to satisfy the requirements of CPLR 2104.

Finally, said the court, plaintiff failed to make a showing of any procedural unconscionability in reaching the agreement which would warrant a vacatur of the agreement or a hearing on that issue.

The school of hard knocks.

At the § 50-h hearing, the infant plaintiff testified that three days before the incident which triggered the complaint, another student at his junior high school entered plaintiff's classroom, challenged him to a fight, and threw plaintiff's hat, which was on his desk, to the floor. The teacher ejected the other student from the classroom, but the next day he was back and, once again, he challenged plaintiff to a fight. This time the teacher merely instructed the students not to pay any attention to the intruding student.

On the day of the incident at issue, while plaintiff was in the basement lunchroom during lunch period, the same other student started staring aggressively at plaintiff. Fearing that the other student was going to hit him, plaintiff told the teachers in the lunchroom what was happening, but they were busy and told him they could not do anything.

Shortly thereafter, the other student approached plaintiff and pushed him. One of the counselors who was present in the lunchroom saw the contact, separated the boys, and directed them to leave the basement by different stairways. When plaintiff returned to the area of the second floor outside of his classroom, he was approached again by the other student, who this time had three friends with him. Plaintiff swung at the other student but missed, and the other student punched plaintiff in the mouth, breaking a tooth.

The Second Department denied defendant's motion for summary judgment, in Ambroise v. City of New York, which was decided on October 16, 2007. The court noted that liability for injuries resulting from a fight between two students cannot be predicated on negligent supervision if the plaintiff was a voluntary participant in the fight, and found that, on these alleged facts, there was a triable issue as to whether plaintiff was participating voluntarily in the fight, or was acting in self-defense.

She's gotta go home again.

Pursuant to a written lease, defendant is the tenant of an apartment in plaintiff's building. Plaintiff served a notice of nonrenewal, citing nonprimary residence, and commenced an action for ejectment. Defendant moved to dismiss, asserting that plaintiff had served her with a notice of renewal before it served notice of nonrenewal, and that she executed the lease and submitted it to plaintiff approximately one month later. Plaintiff cross-moved for summary judgment, arguing that the tenant is a British citizen who entered the United States on a B-2 tourist visa, and is thus statutorily barred from maintaining a permanent residence in the United States.

The First Department granted plaintiff's summary judgment motion, in Katz Park Avenue Corp. v. Jagger, which was decided on October 18, 2007. The court noted that a landlord may recover a rent-controlled apartment which is not occupied as the tenant's primary residence, and said that primary residence is an ongoing, substantial, physical nexus with the controlled premises for actual living purposes, which can be demonstrated by objective, empirical evidence.

Here, said the court, tenant concedes that she is a citizen of the United Kingdom, and therefore, to the extent she resides in the United States, she does so as a nonimmigrant on a B-2 tourist visa, which requires her to maintain a permanent residence outside the United States that she has no intention of abandoning.

The court said that, even if it were to conclude that the holder of a B-2 tourist visa is not necessarily precluded from maintaining a primary residence in a rent stabilized apartment, this record is devoid of any evidence supporting this tenant's primary residence claim or showing that she is in the United States as anything other than a temporary visitor.

Two judges dissented, finding a fact question as to primary residence. They argued that plaintiff's immigration status -- albeit not permanent -- may be extended and therefore could well result in a protracted stay. If the lease is for only one year, the immigration status is not enough to summarily deny that this is a primary residence for leasehold purposes.

Labor Law § 240(1)

The Second Department denied defendant's motion to dismiss a Labor Law § 240(1) cause of action, in Mentesana v Bernard Janowitz Constr. Corp., which was decided on October 9, 2007.

Plaintiff allegedly was injured while on a flatbed truck as he was looking for certain pieces of steel which were to be installed at a construction site. As he bent over, a steel I-beam which was being hoisted by crane came loose and fell, hitting another beam, which slid onto and crushed the plaintiff's finger. Plaintiff testified at his deposition that someone else attached the I-beams to the crane, that he had never received instructions on the proper way to attach the I-beams to the crane, and that he had never before performed that particular task. He also testified that the I-beams were elevated approximately three feet above his head when they came loose and fell.

The crane operator testified at deposition that plaintiff attached the I-beams to the crane improperly, and knew that they were attached improperly, but told the crane operator to hoist them anyway. He further testified that plaintiff had performed this task many times before, and knew that the foreman had instructed plaintiff with respect to the proper method of attaching the I-beams to the crane. The crane operator also stated that, after plaintiff told him to hoist the I-beams without properly securing them, he complied, knowing that the beams were improperly secured. Further, he stated that the I-beams were only one to two feet above the bed of the truck when they fell.

The court noted that Labor Law § 240(1) imposes liability upon owners and contractors who fail, in accordance with the statute, to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards. In order for the statute to apply, the plaintiff must show more than simply that an object fell causing injury to a worker. Instead, a plaintiff must show that the object fell while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute. What is more, liability is contingent on the existence of a hazard contemplated in the statute, and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein.

Here, the court found triable issues, to include the relative height of the I-beams when they fell; whether safety devices were available to the plaintiff; and whether he had received instructions on how to attach the I-beams to the crane.

Losing causes.

The First Department affirmed defendant's motion to dismiss, pursuant to CPLR 3211(a)(1), (5) and (7), in Langer v. Dadabhoy, which was decided on October 11, 2007.

The court said that the breach of contract claim was properly dismissed, since plaintiff's bare allegation that he had "set aside" funds for the real estate purchase at issue does not constitute adequate consideration for an alleged agreement.

As regards the claim for breach of a joint venture, the court found that plaintiff failed to sufficiently set forth facts to establish necessary elements such as his contribution of property and skills, control over the venture, and the sharing of possible financial losses. Moreover, absent a proper pleading of a joint venture, plaintiff's alleged oral agreement to invest $150,000 toward the purchase of real property was unenforceable under the Statute of Frauds.

The court also noted that documentary evidence in the form of e-mails conclusively established that the parties intended to finalize their agreement in a writing, which never materialized, since the parties' negotiations were eventually discontinued. As such, there was no meeting of the minds as to the proposed joint venture.

In light of these determinations, the court gave short shrift to the alleged causes of action for breach of fiduciary duty and for the imposition of a constructive trust.

No day at the races.

The First Department affirmed the state agency's determination that a noted thoroughbred-horse trainer had violated the so-called "trainer responsibility rule," codified at 9 NYCRR 4043.4, and that his license should be suspended for 120 days, in Sciacca v. Hoblock, which was decided on October 11, 2007.

Citing CPLR 7803[4], the court found the requisite substantial evidence that the trainer's employees had tried to administer a so-called "milk shake" -- a mixture of bicarbonate of soda and sugar -- to a horse he trained, with the intent of affecting the horse's race-day performance.

The court said that the trainer responsibility rule should be read to mean that trainers are liable for failing to guard their horses from such attempts prior to races.

Rings and Things.

Q. In today's DAILY NEWS there is a story headlined, "City man sues ex-girlfriend over platinum engagement ring." What is the likely outcome?

A. "The clear purpose of [Civil Rights Law] section 80-b is to return the parties to the position they were in prior to their becoming engaged, without rewarding or punishing either party for the fact that the marriage failed to materialize. The crucial fact is that the engagement is dead and that the statute evidences a policy to allow the return of all gifts given in contemplation of the marriage." Gaden v. Gaden, 29 N.Y.2d 80, 88 (1971).

Discovery matters.

Plaintiff suffered facial burns while using a heating pad and sued, among others, third-party defendant, claiming defective design and manufacture. During the course of discovery, third-party defendant refused to comply with plaintiff's notice to produce documents and information relating to its heating pads, claiming that the demanded information constituted trade secrets. Third-party defendant cross-moved for a protective order, but only in response to plaintiff's motion to strike its answer.

The Second Department denied the motion, in Hunt v. Odd Job Trading, which was decided on October 9, 2007, and converted the motion to strike, pursuant to CPLR 3126, to a motion to compel, pursuant to CPLR 3124. In granting that motion, the court noted that the failure to timely challenge the notice to produce forecloses inquiry into the propriety of the information sought except with regard to material which is privileged pursuant to CPLR 3101, or to a request which is palpably improper. The court said that, here, there was not even a minimal showing that the demanded information contained trade secrets.

The house fell in on this plaintiff.

Plaintiff failed to apply for a mortgage commitment, failed to obtain a mortgage commitment within 45 days of her receipt of the contract, and failed to provide reasonably timely notice of her purported inability to secure a commitment. The Second Department said that was more than enough to support the trial court's determination that plaintiff breached the clear and unequivocal provisions of the contract, and the implied covenant of good faith and fair dealing. In DiBlanda v. ADC Pinebrook, which was decided on October 11, 2007, the court concluded that, under these circumstances, plaintiff had no authority to cancel the contract, and defendants were entitled to keep the down payment.

A pox on both their motions.

Leading up to this legal malpractice action, defendant-attorney had let a year pass without moving for a default judgment in the underlying action, alleging an injury on premises leased to plaintiff's employer by out-of-possession owners, and, as a result the underlying action was dismissed as abandoned pursuant to CPLR 3215(c).

Defendant concedes that his failure to move for a default judgment was negligent, but argues that there was no resulting harm to plaintiff because the underlying action was not viable. The First Department rejected this argument, in Rodriguez v. Killerlane, which was decided on October 11, 2007. In denying summary judgment to defendant, the court said defendant incorrectly assumes, solely on the owners' out-of-possession status, that the owners had no duty to remedy the alleged hazard, namely, old and rusty pipes that froze and cracked due to a lack of heat.

However, the court also denied plaintiff's cross motion for summary judgment. Plaintiff had argued that defendant's liability was established, as a matter of law, by his negligence in failing to timely move for a default judgment and the resulting dismissal of the underlying action. The court said that this argument ignored the possibility that the owners might have successfully opposed a motion for a default judgment, had one been made, or successfully vacated a default judgment, had one been entered. The court said that, accordingly, plaintiff did not meet the required 'but for' standard of proof in a legal malpractice matter: but for the attorney's negligence, plaintiff would have been successful. The only proof of the owners' liability presented by plaintiff was defendant's initial optimistic assessment of the merits and value of plaintiff's case, and that this was insufficient to establish the merits of the underlying action.

Home is where the petitioner is.

The First Department upheld the Human Resources Administration's firing of petitioner for failing to maintain a City residency, as required by Administrative Code § 12-120, in Prendergast v. City of New York, which was decided on October 11, 2007.

The court began by citing the proper review standard, namely, that the agency's determination was not arbitrary or capricious, nor was it irrational or an abuse of discretion. Petitioner's documentary evidence did not show that he resided in Queens, but merely that, after learning of the investigation into his residency, he received much of his mail at a post office box in the borough. The court found his explanation for receiving mail at the post office box address demonstrably false. Petitioner's wife, to whom he remained married despite asserting that they had been separated for some 10 years, owned a home with petitioner, having purchased it together at the time they allegedly had separated.

Petitioner was seen spending most nights at the non-City home, but was never seen residing at the Queens address. Petitioner also refused to allow the investigators to come to his Queens home to prove that he had access to that residence, which, in fact, was occupied by someone else.

Everybody out of the car.

Defendant's vehicle, leased from plaintiff, was impounded after defendant was arrested for driving while intoxicated. After pleading guilty to driving while ability-impaired, defendant attempted by telephone and in writing to recover the vehicle, but to no avail. Plaintiff eventually got the vehicle by executing a release and hold harmless agreement, wherein it agreed not to return the vehicle to defendant or any member of his family.

Plaintiff commenced this action to recover the unpaid balance due under the lease on grounds that defendant breached paragraph 11 of the lease when the vehicle was seized by the government and not promptly and unconditionally returned, but the First Department dismissed the complaint, in Ford Motor Credit Co. v. Louie, which was decided on October 2, 2007.

The court said that defendant's papers established prima facie that he made immediate and diligent efforts to recover the vehicle; that the District Attorney's office authorized the release of the vehicle to him; that, notwithstanding such authorization, the police did not return the vehicle to him or commence forfeiture proceedings; and that plaintiff, upon taking possession of the vehicle, declined to return it to him.

The court noted that plaintiff took the matter out of defendant's hands when plaintiff executed a release and hold harmless agreement with the property clerk, and upon taking possession of the vehicle, refused to return it to defendant, thereby thwarting his good-faith efforts to cure any default on the lease. The court cited plaintiff's bad faith in purportedly giving defendant an opportunity to cure, when, in fact,plaintiff had previously entered into a contract with the City specifically agreeing not to return the vehicle to defendant.

Petition for Reinstatement

Petitioner was appointed as a probationary police officer, but was later terminated when it was determined that he committed fraud on his application. On appeal, the New York City Civil Service Commission directed that he be reinstated.

Petitioner appeared for a mandatory medical examination but was found not qualified for reinstatement, and he commenced a proceeding to enforce the Commission's directive that he be reinstated, and seeking retroactive salary and benefits. During the pendency of the proceeding, petitioner's medical records were reevaluated and it was determined that he was qualified for reinstatement and was so notified, but petitioner refused the offer.

The First Department denied the petition and dismissed the proceeding, in Matter of Allocca v. Kelly, which was decided on October 2, 2007, saying that petitioner had refused the only relief to which he was entitled. The court noted that, although the Commission had directed petitioner's reinstatement, it did not award him retroactive salary and benefits, and was without authority to issue such an award. Citing CPLR 7806, the court said that the retroactive salary and benefits being sought were not incidental to petitioner's reinstatement as a police officer.

The court also denied petitioner's request for disclosure of his medical records to assist him in settlement negotiations. The request was made for the first time in petitioner's response to the City's motion to dismiss, and so it was not properly before the court. In addition, said the court, petitioner made no showing that the records were material and necessary to the prosecution of this proceeding.

Late Notice of Claim

Since plaintiff did not serve the notice of claim within 90 days of the alleged injury, as required by General Municipal Law § 50-e[1][a], the First Department dismissed the complaint, in McCrae v. City of New York, which was decided on October 2, 2007. The court noted that plaintiff did not move for leave to file a late notice of claim within one year and 90 days, pursuant to General Municipal Law § 50-e[5]; § 50-i[1].

"The Transit Authority's alleged waiver of its jurisdictional defenses does not warrant a different finding inasmuch as a timely notice of claim is a condition of maintaining the action which may not be waived in the manner of an affirmative defense. Similarly, the Transit Authority was not estopped from seeking dismissal of the cause of action."

Employment Law

The First Department upheld defendant-law firm's firing of plaintiff, a black paralegal, in Stewart v. Schulte Roth & Zabel, which was decided on October 4, 2007. The court said that plaintiff had not offered any evidence to refute defendant's showing that the termination was based on a number of well-documented performance reviews by many of the attorneys for whom plaintiff had worked. Instead of addressing these negative performance reviews, plaintiff's evidence focuses on the transfer of some of her cases to her only similarly situated co-worker, who is white, thereby reducing her billable hours and denying her credit for work she says she performed.

Although informed of the firm's anti-discrimination policies, including a requirement that discrimination complaints be reported to specific persons, plaintiff never complained that the alleged shifting of work was discriminatory, and did not offer any evidence permitting an inference that it was.

The court noted that the firm's reason for terminating plaintiff was not insufficient billable hours or an unwillingness to work, but the poor quality of her work and an inability to accept suggestions for improvement. Finally, the court noted that there is no evidence tending to show that the performance reviews were inaccurate, much less the product of collusion among the reviewing attorneys to supply a pretext for race discrimination.

All bets are off.

The First Department upheld the state's denial of a petition for a race-track management license, in Scott v. New York State Racing and Wagering Board, which was decided on October 4, 2007. The court said the board's determination was supported by substantial evidence, including several misstatements in petitioner's financial disclosure. The court reasoned that the state was justified in requiring prospective track managers to demonstrate accurate record-keeping, since in the sport of horse racing, on which betting is legal, there is the potential for illegality.

Additionally, the court gave deference to the hearing officer's findings that petitioner had deliberately misrepresented certain of his financial holdings. Finally, the court found no nothing in the record to support petitioner's arguments that he was the victim of selective enforcement, and that the board had demonstrated an inherent bias toward him.

Res Ipsa.

Plaintiff allegedly was injured when the elevator in which she was riding fell rapidly and came to an abrupt stop, out of alignment with the floor. The Second Department refused to dismiss the complaint against the company retained to service and maintain the elevator, in Fyall v. Centennial Elevator Industries, which was decided on September 25, 2007.

According to the court, there could be liability under the doctrine of res ipsa loquitur if plaintiff can offer proof that (1) the elevator's rapid descent and abrupt, misaligned stop would not ordinarily occur in the absence of negligence, (2) the maintenance and service of the elevator was within the exclusive control of defendant, and (3) no act or negligence on plaintiff's part contributed to the accident.

Bad Form.

Plaintiff is a former sanitation worker who brought this action in 1999, alleging defendants had failed to comply with a prior judgment which ordered reinstatement to his former position or appointment to an alternative position with comparable rank, pay and benefits.

Nothing has yet been done, and the First Department said that plaintiff's complaint for enforcement should be converted into a contempt proceeding, in Nunez v. City of New York, which was decided on September 27, 2007.

Without passing on the merits of the contempt proceeding, the court cited CPLR 103(c), which gives discretion to convert an improperly brought action into its proper form.

Bus Stop.

Plaintiff was riding on a bus when, according to the bus driver, a car came out of nowhere, causing the driver to slam on the brakes. Plaintiff, who had been standing in the aisle holding a handle, lost her balance, struck her head on the fare box, lost consciousness, and has no recollection of the incident. A Transit Authority internal investigation concluded that the bus driver had failed to recognize the hazard.

In spite of the Transit Authority's own finding, the First Department dismissed the complaint, saying that, as a matter of law, the bus driver had acted reasonably in an emergency not of his own making, in Rahimi v. Manhattan & Bronx Surface Transit Operating Authority, which was decided on September 27, 2007. The court explained that the Transit Authority's s rules requiring that its drivers anticipate that other drivers will violate the rules of the road impose a standard of care higher than the common law, and cannot be the basis for imposing liability on the Transit Authority. The court gave short shrift to plaintiff's expert witness who merely offered a conclusory reiteration of the Transit Authority's determination.

Failure to prosecute

Strict conformity to the notice requirements of CPLR 3216 is a condition precedent to dismissal for failure to prosecute, according to the Second Department, in Harrison v. Good Samaritan Hospital Medical Center, which was decided on September 18, 2007. The court explained that, since 3216 is a legislative creation, it cannot be part of a court's inherent power.

Specifically, defendant must serve a written notice demanding that plaintiff resume prosecution of the action and file a note of issue within 90 days after receipt of the demand, and must stating that failure to comply with the demand will serve as the basis for a motion to dismiss the action.

An Inconvenient Forum.

The First Department denied defendant's motion to dismiss based on forum non conveniens, in Jones v. Eon Labs, Inc., which was decided on September 18, 2007.

The court said that the motion was untimely since it was made two years after the commencement of the action, and after there had been significant progress in discovery.

Moreover, said the court, defendant failed to carry its burden of demonstrating that its inconvenience strongly favors removal of the action to Virginia. "While many witnesses do appear to reside in Virginia, the very discovery statute cited by defendant (Va Code Ann § 8.01-411), through which it would assertedly be forced to operate to obtain depositions and other discovery, provides a simplified procedure."

Where's the causality?

Plaintiff allegedly was injured when she tripped on a concrete wheel-stop in a parking lot. The Second Department dismissed the complaint, in Albano v. Milano's Discount Wines & Liquors, which was decided on September 18, 2007.

Plaintiff offered expert evidence that the parking space's design violated various provisions of the New York City Building Code, but, in spite of that, the court said plaintiff failed to raise a triable issue of fact as to whether the allegedly defective design was a proximate cause of her accident.

Statutory Liens.

After a medical malpractice action settled, plaintiff's current counsel moved to preclude one of plaintiff's former counsels from an entitlement to an award of attorney's fees, arguing, among other things, that the original retainer agreement did not specify the retained attorney's name.

The Second Department said the former counsel is entitled to fees, in Fuentes v. Brookhaven Memorial Hospital, which was decided on September 18, 2007. The court said that the former counsel has a statutory lien, pursuant to Judiciary Law § 475, against the settlement proceeds since he was an attorney of record, he had filed the summons and complaint, and he had prosecuted the action to the point of trial.

The court gave short shrift to the fact that certain sections of the retainer agreement had been left blank, since they were not the subject of the dispute. In addition, the former counsel had filed his own retainer agreement, albeit late, and this was sufficient under the circumstances to preserve his right to recover a share of the fee.

School's Out.

The First Department denied petitioner's challenge to her termination as a probationary assistant principal, in Matter of James v. Klein, which was decided on September 25, 2007.

The court noted that the matter had been improperly transferred to it, citing CPLR 7804(g), and that the proper standard of review in this matter is "arbitrary and capricious," as specified in CPLR 7803(3), not the "substantial evidence" of 7803(4).

In any event, the court did not have to apply the review standard. Since petitioner failed to commence this Article 78 proceeding within four months of the effective termination of her probationary employment, the challenge to the discontinuation of her probationary status was time-barred.

Contractor Liability

The First Department denied defendant-contractor's cross-motion for summary judgment, in Grant v. Caprice Mgt. Co., decided on September 18, 2007, in which plaintiff seeks damages for injuries she allegedly sustained when a window installed by defendant fell out of its tracks and struck her in the head as she tried to close it.

While a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third person, there is an exception when a contractor, having undertaken to perform services pursuant to a contract, negligently creates or exacerbates a dangerous condition so as to effectively launch a force or instrument of harm. The court held that the allegations here fit that exception, and so plaintiff will have her day in court.

The Second Department denied defendant's motion to preclude plaintiff from recovering damages under the Dram Shop Act, as codified at General Obligations Law § 11-101, because he caused or procured the intoxication of the driver of the vehicle involved in the accident which resulted in his alleged injuries, in Baker v, D.J. Stapleton, Inc., which was decided on September 11, 2007.

The court said that defendant failed to make the requisite showing that plaintiff played a much more affirmative role than that of drinking companion to the driver. In addition, the court noted that defendant had submitted deposition testimony which presented issues of credibility, and from which conflicting inferences could be drawn with respect to plaintiff's involvement in the driver's intoxication, and that this made summary judgment inappropriate.

Sam Shaw was a photographer who took thousands of celebrity snapshots, including the one of Marilyn Monroe standing on the subway grate. Before he died, Shaw and his son were involved in contentious litigation over ownership of more than 200,000 photos.

When Shaw died, his two daughters were appointed temporary administrators to prosecute the ongoing action against their brother, and they appointed a receiver of another 500,000 photographs which had been in Shaw's possession. The receiver stored the photographs in a warehouse, where they were damaged. The receiver filed a $2 million claim with the insurer, which then filed for bankruptcy protection; the claim was turned over to the New York State Liquidation Bureau and assigned to an adjuster, but remains unresolved.

The original litigation was finally settled, but, subsequently, there were fee disputes between the parties and their attorneys, on both sides, which the First Department addressed, in Tunick v. Shaw, which was decided on September 13, 2007.

Here, plaintiff had represented Shaw's son in the original action, and under a written retainer agreement, he would bill at $200 an hour. The sisters' counsel billed at $300 an hour, and, pursuant to the written retainer agreement, double that rate if he obtained for the sisters the photos in question or certain monies flowing from the photos.

Plaintiff commenced this special proceeding to fix his charging lien, pursuant to Judiciary Law § 475, of more than one-half million dollars, and to attach the lien to the 700,000 photographs and any insurance proceeds settling the storage claim. The sisters' counsel cross-petitioned to fix his charging lien at more than a million dollars, representing the double fee rate as recited in his retainer agreement.

The court said that, although the disputed photographs were in existence before the attorneys got involved, their efforts resulted in the settlement, sorting out the ownership questions and creating a single collection, thus constituting proceeds from litigation upon which a charging lien can affix.

The court also said that charging liens attached to any insurance proceeds for damage to the photographs while in storage. The court explained that the enforcement of a charging lien is founded on the equitable notion that settlement proceeds are ultimately under the control of the court, and the parties within its jurisdiction, and the court must see that no injustice is done to its own officers. A charging lien follows the course of the litigation, wherever that goes, and follows the proceeds, whatever their source.

The court said that, in effect, proceeds of the insurance claim for the damaged photographs are the photographs in a different form, and therefore the charging liens attach to those insurance proceeds, even though the receiver, and not the attorneys themselves, had been prosecuting the insurance claim.

The court noted that Shaw's son had never denied receiving his attorney's bills, and he never protested their amounts, and so the attorney has a charging lien in that amount, plus contractual interest.

Finally, the court said the sisters' attorney could collect on the double-rate fee arrangement since it was clearly specified in the retainer agreement.

The First Department refused to dismiss the complaint as against defendant-owner of the staircases on which plaintiff's alleged injuries were sustained, in Tavis v. 885 Third Ave. Corp., which was decided on September 13, 2007. Noting that defendant owed a duty of reasonable care to keep the staircases safe, the court found evidence in the record that defendant had hired someone to clean and maintain the staircases, but only during the week and on Sunday evenings. Plaintiff's accident happened on a Saturday, and, on the date of the accident, both sets of stairs were littered with debris and trash and were wet in certain spots.

The court said this raised a fact-question as to the reasonableness of defendant's practice of leaving the staircases, located in a heavily traveled area, uninspected and unattended on weekends, and whether, the debris, trash and wetness were visible and apparent for a period time sufficient to constitute constructive notice.

Plaintiff was injured when he was hit by a bicyclist who was making deliveries for defendant, a franchisee of Papa John's. The First Department dismissed the complaint as against Papa John's, in Martinez v. Higher Powered Pizza, Inc., which was decided on September 13, 2007.

"The mere existence of a franchise agreement is insufficient to impose vicarious liability on the franchisor for the acts of its franchisee; there must be a showing that the franchisor exercised control over the day-to-day operations of its franchisee." The court noted that, here, the franchise agreement expressly states that the franchisee will have full responsibility for the terms of employment and conduct of its employees and for the day-to-day operation of its business, and that the only control the agreement reserves to Papa John's involves the enforcement of corporate standards regarding food quality and preparation, hours of operation, menu items, employee uniform guidelines, and packaging requirements.

Finally, the court said, Papa John's did not reserve control over the product-delivery process; the bicyclist was not employed by Papa John's; and Papa John's does not own or operate a restaurant in New York County.

Petitioner was a candidate to become a police officer and, in order to qualify, he had to take a polygraph examination. Based on that test, the department determined that petitioner was deceptive in answering questions about his involvement with illegal drugs and narcotics, and disqualified him from further consideration.

Petitioner commenced an administrative appeal and it was ordered that the polygraph results be sent to an independent police unit for verification, in this case, the Vermont State Police. That independent review confirmed petitioner's deceptiveness, and he was again notified that he was disqualified from employment.

The Second Department upheld the department's determination, in Mullen v. County of Suffolk, which was decided on September 11, 2007. The court noted that an appointing authority has wide discretion in determining the fitness of candidates, especially in the hiring of law enforcement officers, to whom high standards may properly be applied. The court said that a court will not interfere with the agency's decision unless it is irrational or arbitrary. Here, it was neither irrational nor arbitrary for the department to rely on its own reading of the polygraph results, as confirmed by an outside entity.

The Second Department dismissed an administrative complaint which had been filed, pursuant to Executive Law § 297(1), charging a public school district with an unlawful discriminatory practice, in violation of Executive Law § 296(a)(1), for an alleged refusal to hire because of petitioner's mental disability, in Matter of Isaksson-Wilder v. New York State Division of Human Rights, which was decided on September 11, 2007.

The court noted that, in an article 78 proceeding to review an agency determination which was made after a hearing at which evidence was taken, the agency's decision must be upheld if it is supported by substantial evidence. The court found substantial evidence in this record to support the agency's determination that the individuals responsible for hiring teachers were unaware that petitioner was disabled, and that they did not perceive her to be disabled.

Petitioner had challenged the agency's determination based on conflicting witness testimony at the hearing, but the court said that it is the function of the agency, and not the court, to weigh evidence and assess witness credibility.

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Thank you for your interest and support.

The First Department dismissed the complaint alleging injuries due to multiple chemical sensitivity (MCS) caused by a two-week exposure to mattresses and box springs purchased from defendant, in Spierer v. Bloomingdale's, which was decided on September 6, 2007.

The court noted that both state and federal courts have consistently determined that the cause or causes of MCS cannot be reliably established by scientific proof, and pointed to the fatal shortcomings of plaintiffs' evidence. "Aside from being inconsistent in determining the chemical compounds to which plaintiffs might have been exposed, if any, and failing to address other potential causes of plaintiffs' symptoms, the evidence lacks scientific support for a causal link between those chemicals found and MCS, a critical element of any toxic tort."