Venue, again.

If you're looking to change venue, don't bother pleading convenience of the parties, since it is irrelevant, according the Second Department, in Frankel v. Stavsky, which was decided on May 22, 2007. Instead, the movant must plead (1) the convenience of the nonparty witness who is willing to testify, and (2) the nature and materiality of that witness's anticipated testimony. Failing that, said the court, we're staying put.

While playing basketball at a schoolyard, the ninth-grade plaintiff was hurt when he says he fell on a hole in the court's surface. Plaintiff testified that he had played basketball there before and that he had been playing for about forty minutes when the accident occurred. It is black-letter law that a player consents to those risks which are inherent to the sport and which flow from playing it. That consent runs to the construction of the playing surface and any open and obvious condition on it, according to the Second Department, which dismissed the suit, in Casey v. Garden City Park-New Hyde Park School Dist., which was decided on May 22, 2007.

In a suit seeking damages arising out of an unproductive raid of her premises, plaintiff demanded disclosure which included, among other things, the deposition of virtually everyone involved in obtaining the no-knock warrant or who participated in any way in its execution. She will not get it, according to the First Department, in Espady v. City of New York, which was decided on May 24, 2007. The court noted that, while New York strongly favors disclosure, it is not without limits. Here, plaintiff will get copies of affidavits used in securing the warrant, an inventory of the items to be searched and seized, and a transcript of the court proceedings which led to the granting of the warrant. However, she will not get to depose the confidential informant who testified under oath in those proceedings, or to know his identity. She will not get to depose any prosecutors involved in the underlying investigation, and she will not get personnel or disciplinary records, reprimands, complaints and investigations of the police officers and prosecutors who may have been involved.

Both sides agree on the following facts: at seven p.m. one Friday, plaintiff, needing to change his vehicle's tire, put down two reflectors to close an entire lane of traffic on Seventh Avenue between 39th and 40th Streets in Manhattan. While he was working on it, a taxi pulled up between the reflectors to drop off a passenger and pick up new passengers. As the taxi pulled away, it ran over one of the reflectors. The taxi driver stopped, and plaintiff approached the vehicle. There are two very different versions of what happened next. Plaintiff says he put his arms on the frame of the taxi's open window, and politely asked the driver to pay for the broken reflector. The taxi driver, though, says that plaintiff, armed with a pipe, approached the taxi, yelling, "You are going to pay for this." With that, and at the insistence of his passengers, who urged, repeatedly, "Move, move, move. Go, go. He's crazy. He's going to kill us," the taxi driver says he drove away from the scene, unaware of his having run over plaintiff's foot. That was enough to merit a comparative negligence charge, according to the First Department, in Hazel v. Nika, which was decided on May 22, 2007. The court noted that, even though the taxi driver testified that plaintiff never got closer to the taxi than six or seven meters, plaintiff's own testimony put him at the taxi's window, "close enough for the taxicab to make physical contact with his foot and right knee, thereby allegedly causing his injuries." The court further noted that, "Juries are empowered to dissect the testimony of witnesses to accept what is credible and reject what is not."

Plaintiff had retained defendant to commence a medical malpractice action, and, shortly before trial in that case, there was a settlement offer of a million dollars. It was not accepted, the case went to trial, and plaintiff won a jury verdict of $330,000. Plaintiff then commenced this action for legal malpractice, claiming, among other things, that defendant had never communicated the settlement offer, a charge which defendant denies. The Second Department dismissed the complaint, in Bauza v. Livington, which was decided on May 15, 2007, saying that plaintiff had not made the necessary showing of proximate cause, namely, that, but for the alleged negligence, the settlement offer would have been accepted. The court noted that plaintiff had testified only that she was "pretty sure" that she would have accepted the offer, and that plaintiff had consented to a court-approved order which paid counsel fees, thus establishing that the fee was appropriate and that there had been no malpractice.

The parol evidence rule precludes extrinsic evidence to contradict or change the terms of a written contract which embodies the agreement between the parties. It is admissible only to clarify ambiguities or to show that it was not the parties' intention to enter into an enforceable contract, or so said the First Department, in Cole v. Macklowe, which was decided on May 17, 2007. The court noted that parol evidence may be admitted to show that the entire writing is a nullity, but not that select provisions of the writing were not to be enforced.

As specified in DR 5-102(c) and 22 NYCRR 1200.21(c), the advocate-witness disqualification rule is intended to provide guidance, and is not binding authority, at least according to the Second Department, in Ahrens v. Chisena, which was decided on May 15, 2007. The court said it was permissible for plaintiff's counsel to testify that he had personally delivered the summons and complaint. The court explained that where it was not a necessity that the party's counsel be called as a witness, there was no violation of the rule.

For plaintiff, this train's still in the station.

To succeed in getting an action restored to the trial calendar, movant must make a showing that (1) the cause of action is meritorious, (2) there was a reasonable excuse for the delay in restoring, (3) there was no intent to abandon, and (4) there is no prejudice to the other side, or so said the Second Department, in Pryor v. Long Island Rail Road, which was decided on May 8, 2007. In granting plaintiff's motion to restore, the court noted that the action was originally marked off the calendar voluntarily to permit further discovery, that the parties had stipulated to extend plaintiff's time to restore, and that the parties continued to conduct discovery beyond the time agreed to.

Bridge Over Troubled Waters

Claimant was sandblasting on a bridge when he slipped and, in breaking his fall, was injured when he was sprayed with sand from his sandblasting hose. Claimant said that he had been given a safety harness but that there were no safety cables to which he could anchor it. In Bonilla v. State of New York, which was decided on May 8, 2007, the First Department found that claimant could seek damages under Labor Law 240(1), which imposes absolute liability on owners and contractors who fail to provide or erect safety devices necessary to properly protect workers from elevation-related hazards. Notwithstanding the nature of claimant's injury, recovery under the statute was not foreclosed since he was working on a bridge more than 100 feet above the ground.

For this plaintiff there'll be no dancin' in the dark.

Plaintiff alleged injuries after she tripped and fell on a walkway inside a parking garage at a state university's medical center, and she sued the garage, which had a contract with the university. The Second Department dismissed the complaint, in Huttie v. Central Parking Corp., which was decided on May 8, 2007, because the contract, without more, did not subject defendant to tort liability to a third party. The court said that "[t]here are three circumstances under which a party who enters into a contract to render services may be said to have assumed a duty of care, and thus be potentially liable in tort to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies upon the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely." The court found none of those circumstances here, specifically saying that plaintiff could not have relied on the garage's contractual duties since plaintiff had admittedly entered the garage knowing that it was pitch-dark because of a regional blackout.

Wedding-bell blues.

The parties entered into a prenuptial agreement which stipulated, among other things, that they would execute their respective wills leaving to the other at least 1/3 of their gross estates, and waiving their elective shares. Four years after they were married, they divorced, and plaintiff sued to compel defendant's compliance with the agreement as to their wills. The Second Department found for defendant, in Genovese v. Axel, which was decided on May 8, 2007. The court noted that the provision in question was headed "Release of Rights" and that it made specific reference to "surviving spouse" and "deceased spouse," clearly indicating the parties' intention that, if they were no longer married, the provision would be of no effect.

Discover this.

The First Department denied plaintiff's motion for discovery sanctions, in Bennett v. Riverbay Corp., which was decided on May 10, 2007. The court noted that, absent special circumstances, defendant has deposition priority, and said that, since plaintiff's deposition had gone until 4 p.m. on the day in question, there was nothing sanctionable in defendant's not producing witnesses that same day.

Plaintiff, take your lumps.

Plaintiff was boarding a city bus just as the driver ordered the passenger ahead of her to get off. As that passenger turned around, he knocked the plaintiff over and she fell into the street. The city moved for summary judgment, arguing that plaintiff's injuries were wholly attributable to the actions of the other passenger, and not the result of the driver's negligence. The Second Department agreed, in Culmone v. New York City Transit, which was decided on May 8, 2007. The court said that even if the driver had been negligent, his conduct only furnished an occasion for the injury-producing event, and that the other passenger's behavior was the sole proximate cause of plaintiff's injuries.

A year and a half after commencing the action, and with some discovery done, plaintiff filed a note of issue which defendant moved to vacate pending the completion of discovery. The court adjourned that motion so that discovery could be completed by a specified date. Two pretrial conferences were scheduled and then adjourned because one or the other of the attorneys was absent. Another pretrial conference was scheduled and, while both attorneys were there, it was noted that plaintiff still had not taken defendant's deposition. Still another pretrial conference was scheduled and, this time, plaintiff was represented by a per diem attorney who knew nothing of the case and had no authority to act. Since defendant's deposition had still not been taken, and since plaintiff's counsel had disregarded the court's instruction to make a settlement demand, the court dismissed the action for abandonment, pursuant to CPLR 3404. The First Department remanded for a sanction less drastic than dismissal, in Alveranga-Duran v. New Whitehall Apts., which was decided on May 8, 2007.The court noted that plaintiff's counsel had not been specifically warned that his noncompliance would result in dismissal, and, even more telling, the court found that plaintiff had not been responsible in any way for counsel's dereliction. The court said that, while counsel should be sanctioned, plaintiff should not be denied a day in court.

What are the proper standards for (1) a trial court's ruling on a motion to transfer venue, and (2) an appellate court's review of that ruling?

The court must be satisfied that the movant has produced "admisible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained," according to the Second Department, in Behrins & Behrins v. Chan, which was decided on May 1, 2007. The court noted that ruling on the motion is left to the sound discretion of the trial court, pursuant to CPLR 510(2), and that its determination "will not be disturbed absent an improvident exercise of discretion."

"Out, damned spot! Out, I say."

Defendant-landlord knew of the brown spot and the wetness on the apartment wall, and of a small leak in the steam pipe behind the wall, but that did not constitute notice of the toxic mold which allegedly caused plaintiff's injuries, or so said the First Department, in Litwack v. Plaza Realty, which was decided on May 3, 2007. Plaintiff had offered expert witness testimony that, by negligently removing the sheetrock to repair the pipe, defendant had created the condition by causing a dangerous growth of mold. The court rejected this testimony as conclusory, however, since the witness did not testify as to how the sheetrock should have been removed.

Due diligence and personal service

CPLR 308(1) and (2) requires personal service unless it cannot be accomplished with due diligence, in which case "nail and mail" service is sufficient, pursuant to CPLR 308(4). The question for the solo practitioner, of course, is what exactly constitutes due diligence in the matter of personal service? In Akler v. Chisena, decided on May 1, 2007, the Second Department found the requisite due diligence -- and allowed nail and mail -- when plaintiff's process server had tried three times to serve defendant at his residence, but to no avail.

Spa Day

After having signed a release, plaintiff was injured during a complimentary one-hour training session at defendant-spa. The First Department held that the release was void as against public policy, in Debell v. Wellbridge Club Management, which was decided on May 3, 2007. The statute is General Obligation Law § 5-326, which declares unenforceable a release entered into with a place of amusement or recreation, as opposed to one which offers services which are instructional in nature and design. The court said that it did not matter that the actual injury was suffered during a training session, arguably instructional, since defendant-spa did not hold itself out as a training center.

For Con Ed, it's light's out.

Plaintiff was injured in a collision between his van and a Con Ed truck. He testified at trial that he was driving down Ninth Avenue, stopped at a red light and, when the light turned green, began moving into the intersection when he was broadsided by defendant's truck. Defendant testified that, no, he had the green light, and that he couldn't remember having seen plaintiff's vehicle before impact. Plaintiff conceded that he had not looked to see whether there was traffic in the intersection as he moved forward. Jury found for plaintiff but the trial court granted defendant's motion to set aside the verdict and directed a new trial on both liability and damages. The First Department reversed, in Lopez v. Con Ed, which was decided on May 1, 2007. The court said that there had been eyewitness pedestrian testimony which was equivocal and which presented a pure question of fact, solely and properly within the jury's province. The court noted that "the finding of the jury may be disturbed only if it may be said that the preponderance of the evidence in this case was so great that the jury could not have reached the verdict it did on any fair interpretation of such evidence," and that wasn't this case. The court also determined that the jury's award of nearly one-half million dollars amounted to reasonable compensation for plaintiff's injuries.

With defendant's motion for leave to oppose still pending, the lower court granted plaintiff's motion for discovery sanctions, even though a Pennsylvania court had issued a stay of proceedings against all insureds of defendant's insurance carriers. Plaintiff and Queens County Clerk had been properly served with the stay. The Second Department reversed, in Dambrot v. REJ Long Beach, which was decided on April 24, 2007. The court said that the Pennsylvania courts' stay was entitled to full faith and credit and effectively suspended all proceedings against defendant as of it issuance date. Since the deadline for REJ's filing of opposition papers had not expired before the filing and service of the stay, it was premature for the lower court to rule on plaintiff's prior motion.

Plaintiff was seeking damages after she was injured while stepping into an elevator in her apartment building. Plaintiff claimed that when she entered the lobby after returning from grocery shopping, neither elevator was there. She and another woman waited, and, when an elevator arrived, plaintiff tripped and fell because the elevator was not level with the floor. However, defendant produced eyewitnesses who testified that plaintiff, who was carrying several bags, had been running to catch an open elevator which was waiting.

The jury found that defendant had negligently failed to maintain, repair or prevent the so-called misleveling of the elevator, and that defendant knew or should have known of this condition on the day of plaintiff's accident. The jury apportioned 25% fault to plaintiff and 75% to defendant. However, the judgment of nearly one-half-million dollars does not reflect the plaintiff's apportionment.

Defense counsel objected that the verdict was inherently inconsistent, and the First Department agreed, in Dubec v. NYC Housing Authority, which was decided on April 26, 2007. Saying that the trial court should have (1) directed the jury to reconsider the verdict, or (2) ordered a new trial, pursuant to CPLR 4111(c), the court took down the jury verdict and remanded for a new trial.

The court also gave directions as to a necessary jury charge regarding plaintiff's photographs of the misleveled elevator, and as to the appropriate timing for certain witness testimony.

While it was academic as regards this particular judgment, the court said that the trial court was within its bounds in ordering an interest rate of less than 9%.