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

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

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

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

For this plaintiff, school's out.

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

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

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

You, with the umbrella, off the bus!

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

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

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

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

All hands (out, palms up) on deck.

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

Hearsay, no exception.

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

Attention, plaintiff, the store is closing.

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

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

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

Liability for a fall on the Yellow Brick Road?

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

Plaintiff's sticky wicket.

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

In a dental malpractice action, what is the proper standard for the court-ordered release of records containing HIV-related information?

The proper standard is "compelling need," according to the First Department in Deriesthal v. Judy, decided on March 8, 2007. The controlling statute is Public Health Law § 2785, which, in pertinent part, says: "A court may grant an order for disclosure of confidential HIV related information upon an application showing: (a) a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding . . . ." The Court noted that this is clearly distinct from the "material and necessary" standard of CPLR 3101(a).

Court gives Transit the big chill.

The Second Department refused to take down a mid-six-figure jury verdict in Anthony v. New York City Transit Authority, decided on March 6, 2007. A police officer, plaintiff was injured when, while responding to a 911 call, he fell on ice which had formed on the bottom step of a stairway. He was down for about thirty minutes, during which time he saw water dripping non-stop from an overhead canopy, and observed that the bottom step was caked with about an inch of ice. The court found that"the jury rationally could have concluded that the subway station cleaner, who was on site on a regular scheduled tour approximately four hours before the accident, would have noticed the ice on the step on which the plaintiff fell in the course of performing his duties. Furthermore, a reasonable inference could be drawn, based on the plaintiff's testimony, that the icy condition existed for a sufficient time to allow the cleaner to discover and remedy it."

A Products Liability Primer

If you have not done much products liability work, the First Department offers an instructive opinion in Donovan v. All-Weld Products Corp., decided on March 6, 2007. Plaintiff's decedent, wearing an air respirator helmet, had been asphyxiated while sandblasting. The court began by noting that, for an action to sound in strict products liability, "a plaintiff may assert that the product is defective because of a mistake in the manufacturing process or because of an improper design or because the manufacturer failed to provide adequate warnings regarding the use of the product." Here, plaintiff had alleged defective design, which, as the court continued, means that when the product left the seller's hands it was "in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use." Defendant offered uncontroverted documentary evidence in the form of various safety agency verifications that the respirator in question (1) was reasonably safe for its intended use and (2) had been functioning properly on the day of the accident. The burden shifted to the plaintiff who offered expert testimony as to the availability of additional features which plaintiff claimed would have made the respirator safer. The court found, though, that plaintiff did not make the necessary connection between those additional features and the accident, and granted summary judgment to defendant.

See you in court.

Seeking damages for injuries suffered when she was struck by a car, plaintiff offered deposition testimony of herself and the driver, but the First Department did not find a prima facie case as regards either negligence or proximate cause. In Binetti v. Infante, decided on March 1, 2007, the court noted that it was unclear as to whether plaintiff had been crossing the street at the intersection. In addition, defendant's testimony that she had "looked in the two mirrors and my rearview, and I turned around and there was no one next to the car," raised a credibility issue which could not be decided on summary judgment.

Plaintiff gets decked.

After plaintiff slipped and fell on a hanger which was on the floor of a clothing store, defendant's summary judgment drill was boilerplate: (1) it didn't know about the hanger, and (2) it didn't put it there. Period. Plaintiff argued that there was a fact question on constructive notice since several store employees were working nearby when plaintiff was injured. Anything there? No, according to the Second Department in Borenkoff v. Old Navy, decided on February 27, 2007. "The plaintiffs submitted no evidence that the defendant's employees created the condition by leaving hangers on the floor, and no evidence that the subject hanger had been on the floor for a sufficient length of time to provide constructive notice."

If you can't argue the facts...

even pounding the table won't save you from summary judgment, or so said the First Department in Browder v. New York City Health and Hospitals Corp., decided on February 27, 2007. Defendant-movant had offered (1) hospital records, (2) deposition testimony, and (3) the affirmation of an experienced and expert pediatric urologist. The plaintiff? Well, on that side of the ledger there was a purported expert's affidavit which did not specify even the affiant's medical specialty, much less evidence of "the requisite background and knowledge to furnish a reliable opinion." But it gets worse. "The affidavit was also insufficient since it failed to address the detailed affirmation of defendant's expert, addressed the alleged departures from the standard of care and proximate cause only in conclusory terms, was contradicted by the record, was based on a hospital record notation whose source was unknown and thus inadmissible, and was otherwise lacking in evidentiary foundation."