Faced with a summary judgment motion, the nonmoving party is entitled to discovery if potentially useful facts are exclusively within the knowledge and control of the moving party, or so said the Second Department, in Banks v. Department of Education, decided on April 24, 2007. CPLR 3212(f) gives the nonmoving party a reasonable opportunity to develop the record through discovery. Until that's done, the motion to dismiss is premature.

Trial court to counselor: enough already.

Appellate Division to trial court: not so fast.

The trial judge's wide latitude does not extend to blanket prohibitions against counsel's voicing any objections during the other side's summation, or so said the First Department, in Binder v. Miller, which was decided on April 24, 2007. "[I]t is axiomatic that where counsel, in summing up, exceeds the bounds of legal propriety, it is the duty of opposing counsel, inter alia, to object specifically, to point out the language deemed objectionable, and to request the court to rule on the objection, admonish counsel to desist from such improper remarks, and direct the jury at the appropriate time to disregard such improper statements."

OUR AUDIO BLOG IS NOW ON THE AIR!!

We are pleased to announce that we have an audio blog for the solo practitioner. You can find us at www.podbean.com. To listen, just type legalease in the search box. We hope you will tune in. Of course, this blog will continue publishing a new case every court-day.

What is the standard for holding a homeowner liable for injuries suffered by a construction contractor?

Plaintiff, a self-employed construction contractor who was hired to renovate a single-family home, was injured when a beam on which he was leaning gave way and he fell from the second floor to the ground. The Second Department dismissed plaintiff's suit against the homeowners, in Arama v. Fruchter, decided on April 17, 2007. Why? "[S]ingle-family homeowners who contract for construction services are exempt from liability unless they direct or control the work." In strictly construing "direct or control," the court gave short shrift to the fact that the homeowners had given instructions to plaintiff, and they had periodically inspected the work in progress.

The trial court's granting of an adjournment is discretionary, and it may be properly be denied when there are clear indicators of a failure to prosecute, according to the First Department, in Archibald v. Asia Five Eight, which was decided on April 19, 2007. The court found that "neither plaintiff's counsel of record nor plaintiff's newly retained trial counsel provided the court or the defense with advance notice of plaintiff's purported inability to proceed to trial on the appointed date, and instead, submitted, on the day of the scheduled trial, an affidavit of engagement that admittedly contained misstatements of fact. Not only did plaintiff's counsel of record act contrary to the mandate of 22 NYCRR § 202.31 by retaining outside trial counsel fewer than 10 days before the trial was to begin, but the attorney retained was clearly not prepared to try the matter on the scheduled date." On these facts, an adjournment was denied and the action was dismissed.

When it comes to your notice of claim, what is written is written.

In this matter, plaintiff's notice of claim, in pertinent part, had read:

"[I]nfant claimant while lawfully walking in the vicinity of said dumpster was accosted, beaten, assaulted and robbed by unknown assailants who had hidden about said dumpster. That the aforesaid occurred as a result of the negligence of [defendant], its agents and/or employees in the ownership, maintenance and control of said housing project and parking lot and areas thereof; in failing to provide adequate, sufficient and operable lighting at said location with prior knowledge of similar criminal conduct and activity in the immediate vicinity and location where the plaintiff was harmed."

Plaintiff's complaint, though, alleged that defendant failed to maintain its premises in a reasonably safe condition in that it did not provide adequate lighting and security in the vicinity of the assault and robbery. The First Department dismissed the inadequate security claim, in Monmasterio v. New York City Housing Authority, decided on April 19, 2007. The court said that "nothing in the notice of claim would have alerted defendant to the need to investigate the number and adequacy of the security personnel it employed, and plaintiffs were not free subsequently to interject a new, distinct theory of liability without leave of court."

If you smell somebody, tell somebody.

The First Department found a nuisance which warranted tenant's eviction in Zipper v Haroldon Ct. Condominium, decided on April 17, 2007. The court found credible testimony that the odors coming from tenant's apartment were not of the unavoidable variety but of a kind caused by rotting food. Tenant had offered witness testimony denying any such odors but the court credited the testimony of firefighters who had visited the apartment - unannounced - a month prior to trial. In addition to the odor, one firefighter referred to "Collier-like conditions" in the apartment, which was cluttered with furnishing, boxes and debris. The court was singularly unimpressed by the fact that that the odor was slightly less noxious when the apartment's door was closed. Let's get moving.

What is the standard to recover damages from a property owner for injuries caused by a criminal's acts?

The owner must have known, or should have known, of the probability of a third party's conduct which was likely to endanger the safety of persons lawfully on the premises, according to the Second Department, in Rodriguez v. 1705 & 1715 Caton Associates, decided on April 10, 2007. The court noted that plaintiff's conclusory allegations as to prior robberies were insufficient to raise a triable issue of fact.

Arts and draughts

While plaintiff was delivering premium waters to the performance center's theater, the dolly tipped and he was injured by the falling bottles. The suit against the property owner was dismissed by the First Department, in Ragusa v. Lincoln Center for the Performing Arts, Inc., decided on April 12, 2007. "Defendants submitted evidence showing that they obtained all of the requisite permits for the installation of the sidewalk, that the slope of the sidewalk was constructed in compliance with the New York City Building Code, and that the necessary certificate of occupancy was obtained upon completion of construction. This met their burden on summary judgment." The court said that plaintiff failed to refute defendant's claims, and, when it ran the numbers, found that plantiff's expert's affidavit actually supported defendant's position.

The curtain falls.

What is the proper standard for undoing a jury verdict in a medical malpractice action?

"It must be concluded that the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence," according to the Second Department, in Scudera v. Mahbubur, decided on April 10, 2007. Here, the court found that defendant's medical experts were plainly outdueled on the issue of nerve damage resulting from plaintiff's herniated disc, and, the defense verdict notwithstanding, ordered a new trial.

This plaintiff's chilled.

An SRO's tenant had installed a window air-conditioner, apparently against the house rules, and, when the weather turned cold, wanted to take it out. When the hotel's staff said they were too busy to help, the tenant tried to remove the unit herself, but she dropped it out the window and it injured plaintiff. On these facts, is the hotel liable for plaintiff's injuries? No, according to the First Department, in Grimaldi v. Manhattan Arms Hotel, Inc., decided on April 12, 2007. Assuming, without deciding, (1) that the hotel had a duty to help the tenant, (2) that its duty ran to the pedestrian plaintiff, and (3) that it was foreseeable that the tenant, acting on her own, would drop the unit, the court found that the hotel could not have foreseen that the tenant would try to remove the air-conditioner on her own.

What is the standard for leave to serve a late Notice of Claim on the City?

The standard includes (1) reasonable excuse, (2) the city's having actual knowledge of the underlying facts of the claim, and (3) prejudice to the defendant, according to the Second Department, in Acosta v. City of New York, decided on April 10, 2007. In denying leave, the court took special note of the fact that the police accident report was insufficient to constitute actual notice in that it did not link the accident to the city's negligence as an alleged proximate cause.

What is the proper standard on a motion to strike for spoliation of evidence?

The proper standard is whether the moving party has lost the chance to establish his or her position, according the Second Department, in Molinari v. Smith, decided on April 10, 2007.

Seeking damages after a fall from a trampoline, and arguing that the trampoline had been deliberately disposed of so it could not be inspected, plaintiff moved to strike defendant's answer, citing CPLR 3216.

The court denied the motion, since "the loss of the opportunity to inspect the trampoline will not deprive the plaintiffs of the means of proving their claims of negligent supervision and attractive nuisance."

The court did allow lesser sanctions, however, requiring defendants to stipulate to the admission of the manufacturer's assembly and safety instructions, and allowing a negative inference charge at trial.

After this flock got fleeced, is the high-profile pastor's employer liable?

No, according to the First Department, in Naegele v. Archdiocese of N.Y., decided on April 10, 2007. Advancing claims sounding in negligent supervision and respondeat superior, plaintiff had argued that since defendant's clergy-employees are modestly paid and in the habit of accepting monies and gifts from parishioners, defendant should reasonably have foreseen that this particular pastor would exercise undue influence over an elderly parishioner and raid her assets. The court found plaintiff's allegations to be conclusory and insufficient to establish the pastor's propensity to commit the specific tortious acts alleged. Therefore, the negligent supervision claim cannot stand. As for respondeat superior, the alleged tortious acts were clearly not in furtherance of defendant's business and, just as clearly, were outside the scope of the pastor's employment.

Two feet high and rising.

In settling a previous action, the parties had entered into a stipulation in which, among other things, defendant agreed undertake "a study of the entire water drainage area" and to "take whatever steps it deems appropriate in accordance with such a study." Defendant did nothing, though, and three years later a severe storm resulted in flooding which caused substantial damage to plaintiff's property. In Eichler v. Town of Cortlandt, decided on April 3, 2007, the Second Department found that the alleged breach of the stipulation was actionable under general contract principles.

Trading places.

The First Department granted defendant's motion to change venue from Bronx County to Queens, in Espinoza v. Concordia Intrl. Forwarding Corp., decided on April 5, 2007. Plaintiff lives in Queens; she was injured and treated there; and defendant-employer conducts its business there. What about Bronx County? Defendant's employee, named individually in the action, lives there, but, even if he were found liable, his employer would indemnify him.

Second-best evidence rules.

The Second Department has upheld a counterclaim to recover on a promissory note even though defendant could not produce the original. In Comerica Bank v. Benedict, decided on April 3, 2007, the court found that defendant had "satisfactorily accounted for her inability to produce the original, thus establishing a foundation for admission of the copy." In addition, the court noted, plaintiff did not dispute the contents of the original promissory note and acknowledged the signature on the copy.

Forum matters.

Plaintiff's personal injury action, commenced in Kings County Civil Court, was on the "ready for trial" calendar on May 31, 2001, but it was marked off after plaintiff failed to appear. Plaintiff never moved to restore and, in 2004, defendants to dismiss pursuant to CPLR 3404 for failure to prosecute. Defendants' motion was denied since, according to the Second Department in Chavez v. 407 Seventh Avenue Corp., decided on April 3, 2007, CPLR 3404 does not apply to actions in Civil Court. The Civil Court rule controlling actions stricken from the calendar is 22 NYCRR 208.14[c], which does not provide for dismissing an action for a failure to prosecute.

A lesson on winning the schoolyard battle but losing the courtroom war...

After having been injured in a schoolyard fight, a student sued the city and its board of education, alleging, among other things, negligent supervision. The student lost, in the courtroom at least, according to the Second Department in Legette v. City of New York, decided on March 27, 2007. Why? The student had been a willing participant in the fight and so, as a matter of law, the allegedly negligent supervision could not have been a proximate cause of his injuries. Put up your dukes to that!

What showing is required in order to prevail on a legal malpractice claim resulting from a personal injury action?

"A plaintiff must demonstrate that he or she would have succeeded on the merits of the underlying action but for the attorney's negligence," according to the First Department in Aquino v. Kuczinski, Vila & Associates, P.C., decided on April 3, 2007. The court noted that it is a difficult showing since, in effect, it requires the proving of a case within a case, both of which require that proximate causation be established.

Home may be where the heart is, but you'll need documentation.

After plaintiff venued this personal injury action in Kings County, defendant moved, pursuant to CPLR 510 and 511, to transfer venue to Nassau County, arguing that plaintiff did not live in Kings when the action was commenced. In opposition, plaintiff offered, among other things, a vehicle registration; a phone bill; a bank statement; and a tax return, all pointing to Kings County. In Johnson v. Gioia, decided on March 29, 2007, the Second Department found a fact question and remanded for a hearing to determine if plaintiff did indeed live in Kings when the action was commenced.

Bus Stop

After school, the bus driver let plaintiff and three other students off at their appointed stop. The driver knew that plaintiff had to cross the street in order to get home but, in direct contravention of Vehicle and Traffic Law § 1174(b), did not tell plaintiff to cross in front of the bus. Plaintiff was fooling around with his friends and, as the bus pulled away, lost his balance, fell backwards into the bus and was injured. The Second Department found for the bus company, in Isola v. Independent Coach Corp., decided on March 27, 2007. The court determined that the statute in question was designed to protect children crossing the street after having been let off the bus, and, on these facts, the statute's violation could not have been a proximate cause of plaintiff's injury.