The First Department rejected plaintiff's claim for treble damages, and, what is more, reduced the jury's damages award from $400,000 to $15,000, in Glatzer v. Michael F. Hanley Moving & Stor., Inc., which was decided on August 23, 2007.

In saying that the damages awarded deviated materially from what would be reasonable compensation under the circumstances, the court noted that plaintiff's testimony was, in key respects, contradicted by an affidavit he himself had submitted, and that his testimony was riddled with inconsistencies which made it "unworthy of belief."

Plaintiff, a 40-year-old woman in her first year at the county's community college, enrolled in a backpacking course to satisfy the school's physical education requirement. Plaintiff testified that she thought it would be the least strenuous of the several courses available. In the session at issue, students were divided into two teams, and the gym instructor directed them to perform a number of activities, one of which plaintiff had never heard of, much less participated in. As part of the activity, a rope was tied to the back of two folding chairs and the instructor told the students that each team member had to go over the rope without touching it. If any team member touched the rope, the team had to start over. Team members were also instructed that each of them had to remain in physical contact with another team member while clearing the rope.

After plaintiff made several unsuccessful attempts to clear the rope on her own, she told her teammates that she could not do it and that they should continue without her. The gym instructor, who had been watching from the back of the room, approached the members of plaintiff's team, and, pointing to the other team, said, "Let me give you a hint." One member of the other team was positioned so that his left knee was on the floor and his right knee was extended and parallel to the floor. His teammates were using the upper part of his right leg as a prop to step over the rope. Plaintiff's team tried it, but, in executing the step, plaintiff lost her balance, and her foot slammed to the floor, resulting in leg and ankle fractures.

The Second Department denied defendant's summary judgment motion, in Calouri v. County of Suffolk, which was decided on August 21, 2007. The court noted that, under the doctrine of assumption of the risk, a voluntary participant is deemed to have consented to any apparent or reasonably foreseeable consequences of engaging in a sport. However, "[u]nder these circumstances, where the plaintiff was a neophyte with regard to the activity she was directed to perform, the doctrine of assumption of risk should not be applied with the same force as in the case of an experienced athlete. The relationship between the gym instructor, on the one hand, and the plaintiff, a complete novice, on the other, was such that, for all intents and purposes, the gym instructor was the plaintiff's superior whose directions she was obliged to follow. Accordingly, a triable issue of fact exists as to whether the plaintiff acted voluntarily in attempting the strategy suggested by the gym instructor and whether the doctrine of assumption of risk applies to this case."

The First Department found defendant's summary judgment motion timely, in view of a prior court order, which had been issued by another justice of coordinate jurisdiction, extending the time to make the motion, in Fernandez v. Laret, which was decided on August 23, 2007.

On the merits, the court dismissed the negligence claim based on defendant's unrebutted testimony that his car was stopped when it was struck. In addition, the court said that plaintiff's deposition, replete with internal contradictions, was clearly coached and tailored, creating only a feigned issue of fact as to whether defendant's car was moving at the time of the accident.

In New York, there is no cause of action for seduction, pursuant to Civil Rights Law § 80-a, and, if that is what it comes down to, it cannot be couched as a claim for breach of fiduciary duty or intentional infliction of emotional distress, at least according to the First Department, in Marmelstein v. Kehillat New Hempstead: Rav Aron Jofen Community Synagogue, which was decided on August 23, 2007.

Plaintiff alleged that defendant, who she said represented himself as "an advisor, a father figure and a god," induced her to engage in a sexual relationship "as part of a course of sexual therapy which he represented would lead to her achieving her goals of marriage and children."

The court, though, noted that, while plaintiff claims that defendant held a position as fiduciary, there is no claim that he held himself out to be a professional counselor, that the parties had a professional relationship, that he was trained to be a therapist in any particular specialty or even that he was counseling her in a specific area. All she did claim was that he had had counseled her on her personal, legal and financial problems. "That plaintiff may have succumbed to defendant's persuasive power and may have been exploited by him for his own sexual gratification is insufficient to impose a legal duty on him, entitling plaintiff to the recovery of damages. She must allege more than her subjective belief in defendant's rectitude and honesty. A fiduciary duty cannot be imposed unilaterally."

The court further noted that an informal fiduciary relationship has been found to exist between friends or family members in cases where there has been a pecuniary injury. Here, however, the alleged harm was sexual exploitation, and, by statute, that is not actionable in New York.

Since the cause of action for intentional infliction of emotional distress is founded on the sexual relationship, it too is barred by § 80-a and was dismissed.

Unless a defendant has willfully and contumaciously failed to appear for an examination before trial, a court should not conditionally strike his answer unless he appears for a deposition on or before a date set by plaintiff, or so said the Second Department, in Patel v. DeLeon, which was decided on August 14, 2007. Instead, said the court, defendant should be precluded from offering any testimony at trial unless he appears for a deposition at a time and place mutually agreed to by the parties, but in no event less than 30 days before trial.

Plaintiff was a mechanic's helper who was injured while he and a co-worker were installing an elevator, which was designed so that, when the car descended, a counterweight frame with partially enclosed weights on top of it would ascend, and vice versa.

Both the injured plaintiff and his co-worker testified that, at the time of the accident, they were bringing the elevator platform down the shaft from the eighth floor to the basement, using a hand-held control box. Plaintiff was standing in the elevator shaft's doorway at the basement level, and his co-worker was at the lobby level. As the counterweight frame was ascending, it hit a spike protruding from the elevator shaft's wall, causing five of the counterweights to fall out of their housing. At least one of the counterweights struck plaintiff on his right side.

On these facts, the First Department found that the scaffold law, as codified in Labor Law § 240(1), did not apply, in Buckley v. Columbia Grammar & Preparatory, which was decided on August 16, 2007. The court noted that the statute extends only to a narrow class of special hazards, and does not encompass any and all perils which may be connected in some tangential way with the effects of gravity. Specifically, for the statute to apply, there must be a significant, inherent, and foreseeable risk which is attributable to an elevation differential.

The court concluded that, here, it was not foreseeable that the counterweights which struck plainff posed an elevation-related hazard inherent in testing the functioning of the elevator platform. All that was involved was the moving of the platform up and down using a hand-held control unit. At the time of the accident, the counterweights were in their housing in accordance with both the elevator's design and the installation manual. The elevator shaft was constructed according to specification, and, before the counterweight rails were installed, the walls were inspected for any protrusions which might impinge on the space where the counterweights would move up and down.

"Thus, it could not reasonably be expected at the time of the testing that the counterweight frame would tilt or move in a way that would cause the counterweights to fall."

A tenant is entitled to recover attorney's fees only after successfully defending against a landlord's action arising out of the lease, according to the First Department, in Jerulee Co. v. Sanchez, which was decided on August 16, 2007. Importantly for practitioners, the court clarified exactly what "arising out of the lease" means.

"[T]he action was not one to enforce a covenant or obligation of the lease or due to a violation of the lease; rather, it was to rescind the lease due to fraud and mutual mistake. Although the ultimate relief sought was a warrant of eviction, it is not the ultimate relief that determines whether or not a dispute arises out of the lease within the meaning of § 234, as the tenant contends. Rather, it is determined by whether the litigation is based upon a breach of the terms of the lease."

Plaintiff alleged that two of defendant's employees had misappropriated trade secrets, and that the ill-gotten information was given to plaintiff's competitor, a Massachusetts company, in which the two employees were investors. In a prior action, a Massachusetts court had rejected plaintiff's respondeat superior argument, finding that the allegedly tortious acts of defendant's employees were outside the scope of their employment.

The First Department said that plaintiff may not relitigate the question, in Cartesian Broadcasting Network, Inc. v. Robeco USA, which was decided on August 16, 2007. Noting that, here, plaintiff's burden of persuasion is the same as in the prior action, the court found that plaintiff is precluded from advancing its present claims, "all of which seek to hold defendant liable by reason of the conduct of its employees."

The Second Department denied defendants' motion for a change of venue as untimely, in Obas v. Grappel, which was decided on August 14, 2007. The court noted that, pursuant to CPLR 511[a], a demand to change venue based on the designation of an improper county must be served with, or before, the answer. Furthermore, pursuant to CPLR 511[b], defendants are required to make a motion for that relief within 15 days after the service of their demand.

Failing that, the issue of venue is discretionary with the court, and, here, the court found (1) that defendants failed to move promptly for a change of venue even after ascertaining plaintiff's alleged true residence, and (2) that there was nothing in the record to establish that plaintiff had misled defendants or had sought to manipulate the venue rules to his advantage.

Plaintiff's house was damaged when its concrete slab foundation settled, sank, and cracked. Defendant disclaimed coverage for the damage, relying on terms of the insurance policy which, in pertinent part, excluded losses due to "earth movement, sinking, rising or shifting" and due to the "settling, shrinking, bulging or expansion, including resultant cracking, of pavements, patios, foundations, walls, floors, roofs or ceilings."

The Second Department found for the insurer, in Cali v. Merrimack Mut. Fire Ins. Co., which was decided on August 14, 2007. Pointing to the plain meaning of the policy's language, the court said it had no choice but to conclude that there was no coverage for damages resulting from earth movement, even when the cause of the earth movement is a covered peril.

In a proceeding to compel an estate accounting, the Second Department determined that, pursuant to a Merger, Dissolution and Distribution Agreement, petitioner was obligated to contribute to a partnership debt, based on his pro rata ownership interest as a limited partner, in Matter of Page, which was decided on August 7, 2007.

The court noted that paragraph 9 of the Agreement specifically provided that, among other things, "[a]ny shortfall in the cash needs for the closing of the transaction set forth herein shall be paid by the undersigned individuals pro-rata according to their interests in the legal entities."

The court concluded that, while the subject of that paragraph included legal and accounting fees, the plain meaning of the writing in no way limited its application to such fees, as petitioner had urged.

After plaintiff commenced a medical malpractice action, neither the hospital-defendant nor the individual-defendant appeared. However, plaintiff failed to move for leave to enter a default judgment within one year of the default, pursuant to CPLR 3215(c), and the Second Department dismissed the complaint as abandoned, in Durr v. New York Community Hosp., which was decided on August 7, 2007. The court found that plaintiff had failed to make the requisite showing of (1) a reasonable excuse for its delay in seeking a default judgment and (2) a meritorious cause of action.

The Second Department granted leave to serve a late notice of claim based on (1) evidence that plaintiffs' decedent had a reasonable excuse for his failure to serve the notice timely, (2) medical records indicating that the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) evidence of an absence of prejudice resulting from the delay, in Difuentes v. New York City Health & Hosps. Corp., which was decided on August 7, 2007.

The court noted that plaintiffs' decedent's delay was attributable to the fact that he did not learn that his cancer had recurred until five months after defendants' treatment of him had ended. Thereafter, he suffered a recurring debilitating illness, and, what is more, had difficulty in retaining counsel. Importantly, the court also said that there is actual knowledge of the facts constituting the claim when, as here, medical records suggest an injury attributable to malpractice.

The First Department upheld the termination of a probationary police officer, in Matter of Duncan v. Kelly, which was decided on August 9, 2007. The court rejected the argument that the firing was improperly based on pre-hiring conduct, over which the Department of Citywide Administrative Services would have exclusive authority. Instead, the court said that petitioner's post-hiring conduct provided ample basis for his termination, inasmuch as he had made false and misleading statements to Internal Affairs concerning a crime in which he was allegedly involved prior to his employment.

The court noted that the investigation absolved the ex-officer of two other crimes, and that substantial deference must be given to the investigatory findings, which were reviewed at a number of levels, up to and including the Police Commissioner.

There was a lengthy and virogous dissent which argued that the department had fabricated a post-hiring reason for termination which was based on pre-hiring conduct by "summarily deeming" the ex-officer's statements to Internal Affairs to be lies.

In February 2002, plaintiff's decedent underwent a kidney transplant procedure, with a replacement cadaveric kidney supplied by defendant. Four and a half weeks later, a kidney biopsy revealed lesions in the new kidney. After several treatments to the implanted kidney, it was determined that it had been rejected and needed to be removed. The pathology report of the donor kidney showed extensive tumor infiltration, which a consulting physician determined to be evidence of lymphoma. Decedent died on September 19, 2002.

Plaintiff filed suit on September 20, 2004, and defendant moved to dismiss the complaint as barred by the 2½ year statute of limitations for medical malpractice actions (CPLR 214-a). The First Department denied the motion, in Rodriguez v. Saal, which was decided on August 2, 2007.

The court noted that when a complaint does not allege negligence in furnishing medical treatment to a patient, but, rather, the failure of a medical provider in fulfilling a different duty, the claim sounds in negligence. With this defendant, at issue are not questions of medical competence or treatment, but defendant's duties as a collection and distribution center of donated organs. Simply put, the issue to be resolved is whether defendant breached its duty to exercise due care in its organ collection activities.

The First Department vacated a compliance conference order directing defendants to provide plaintiff with all documents of similar incidents for the three years prior to the accident at issue, in Daniels v. Fairfield Presidential Mgt. Corp., which was decided on August 7, 2007. The court said that the directive was overly broad, and that the requested documents were neither material nor necessary to the prosecution of the action. "Discovery of evidence of prior similar accidents, while material in cases where a defect is alleged in the design or creation of a product or structure, is irrelevant and inappropriate in cases such as this, where no inherent defect is alleged."

Plaintiff, who alleged an injury while skiing, claimed that defendants had improperly set the skis' bindings so that they did not release during her fall. Two weeks before trial, defendants served plaintiff with expert witness information pursuant to CPLR 3101(d). This information included the report of an expert who opined that the alleged failure of the bindings to release could not have caused plaintiff's injury. Instead of seeking an adjournment of the trial, plaintiff moved to preclude defendants' expert from testifying. The motion was denied, and, at trial, the jury found that, while defendants were negligent, their negligence was not a substantial factor in causing plaintiff's injury.

The Second Department found that plaintiff's motion to preclude had properly been denied, in Rowan v. Cross County Ski & Skate, Inc., which was decided on July 31, 2007. The court said that CPLR 3101(d)(1)(i) does not require a party to respond to a demand for expert witness information at any specific time, nor does it mandate that a party be precluded from oferring expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party. The court found nothing in the record to support a conclusion that defendants' delay in retaining their expert or in serving their expert information was intentional or willful. Furthermore, disclosure of the expert information was not made on the eve of trial since plaintiff had two weeks within which to review the material prior to the trial date. Moreover, said the court, any potential prejudice to the plaintiffs could have been eliminated by an adjournment.

The First Department dismissed a legal malpractice complaint arising out of a matrimonial action, in Fleming v. Vassallo, which was decided on August 2, 2007. Plaintiff had alleged that defendant directed her, over her objection, to reject a purported settlement offer from her former husband, and that, after years of costly litigation, she received far less than he had originally offered.

On the record, though, the court found evidence that no concrete settlement offer was made between March 1987, when the divorce action was commenced, and October 1987, when defendant was retained as counsel. Indeed, there was no evidence that there had ever been even a preliminary agreement as to the financial terms of a settlement.

Therefore, said the court, plaintiff had no cognizable claim that defendant committed malpractice by pressing forward with the litigation. The court added that it found no evidence that defendant was in any way responsible for the fact that the matrimonial action was ultimately resolved in a manner that was not to plaintiff's liking. To the contrary, the evidence showed that the disposition of the economic issues was dictated by the reduced financial circumstances of plaintiff's then-husband, and not by any mishandling of the matter by defendant.

Finding improper service pursuant to CPLR 308(4), the Second Department dismissed the complaint as against the individual defendant in a medical malpractice action, in Abajian v. St. Francis Hosp., which was decided on July 31, 2007. The summons and complaint were affixed to the door of defendant's prior residence and not to his actual place of business, dwelling place or usual place of abode. Moreover, the attempts to serve the appellant pursuant to CPLR 308(1) and 308(2) prior to the employment of the "affix and mail" method of service did not satisfy the statutory requirement of "due diligence."

The First Department vacated an earlier judgment dismissing the action for failure to prosecute, in Feders v. Lamprecht, which was decided on August 2, 2007. The court found no intention to abandon the action, and defendants alleged no prejudice as a result of the delay. The motion court's sua sponte dismissal was based on plaintiff's counsel's failure to appear at a discovery compliance conference (22 NYCRR 202.27[b]), which apparently was the first such conference scheduled, and which was plaintiff's only default. However, plaintiff submitted evidence that counsel's absence from the conference was the result of injuries suffered in an automobile accident several weeks before the conference date, and defense counsel had been so advised. The court found that this was a reasonable excuse for the default. The court also found that any delay in prosecuting was minimal, given that only 11 months had elapsed between filing of the action and dismissal, and only 41 days from joinder of issue to dismissal. Furthermore, plaintiff promptly sought vacatur.

The court also said that the motion court's dismissal violated the provisions of CPLR 3216(b). Specifically, the record shows that two of the conditions necessary for dismissal were not met: passage of one year since joinder of issue (CPLR 3216[b][2]), and service of a written demand on plaintiff to resume prosecution and to serve and file a note of issue within 90 days of receipt of the demand (CPLR 3216[b][3]).

Pursuant to a written employment agreement with nonparty-Miller Center, plaintiff agreed to serve as the Executive Director of the Miller Center's two nursing homes for a period of two years commencing April 1, 1990, with base and additional salary to be adjusted yearly. The terms of the employment agreement included the following relevant sections:

"1. Term of Employment
b. Subject to the terms of Section 6 hereof, the parties hereto agree to enter into good faith negotiations not less than nine (9) months prior to the end of the Employment Period with respect to renewal of this Agreement on mutually agreeable terms."

"6.Termination. This Agreement may be terminated:
a.By mutual agreement of the parties;
b. By either party giving notice to the other at least six (6) months prior to the end of the Employment Period of its intention not to renew this Agreement in accordance with the notice provision of Section 9 . . .
f.The Miller Center will, as of the effective date of termination or expiration of this Agreement, be released of any responsibility or obligation hereunder, except for payment of salary and benefits accrued to the effective date of such expiration or termination."
"9.Notice. Any notice hereunder will be in writing and shall be sent by certified mail, return receipt requested, to the parties at their addresses set forth below, or to such other addresses as the parties may from time to time fix in the same manner . . . ."

The employment agreement also provided, in section 8, that it constituted the entire agreement and understanding between the parties, that neither party would be bound by any condition, warranty or representation other than as expressly provided for therein, and that neither party could waive her or its rights thereunder, unless in writing.

On October 27, 2004, the Miller Center completed the sale of its nursing facilities to defendant-White Plains Center for Nursing Care. Simultaneously, defendant agreed to assume, pursuant to an Assignment and Assumptions of Contracts agreement, the Miller Center's existing contracts, including plaintiff's employment agreement. On January 19, 2005, three months after acquiring the nursing homes, defendant terminated plaintiff's employment.

In support of her motion for partial summary judgment, plaintiff argued that her employment agreement, having been extended over a period of many years by the parties, in successive two-year terms, was last renewed for the term April 1, 2004 through March 31, 2006, and was therefore breached when defendant discharged her on January 19, 2005.

In support of its cross motion to dismiss the breach of contract claim, defendant argued that the employment agreement had never been renewed and that it expired by its own terms on March 31, 1992, thereby rendering plaintiff an employee at will. The motion court granted plaintiff summary judgment, ruling that while the statute of frauds barred any presumption of renewal for the original two-year term, the employment agreement had been impliedly renewed by operation of law for successive one-year extensions through March 31, 2006.

The First Department rejected that interpretation of the agreement and dismissed the complaint, in Goldman v. White Plains Ctr. for Nursing Care, which was decided on August 2, 2007.

"Where, as here, the terms of an agreement are clear and unambiguous, its plain meaning should be enforced without regard to consideration of extrinsic evidence of the parties' understanding or intent. In support of her argument that the term of her employment automatically renewed, plaintiff proffered no evidence that, in accordance with section 1b, the parties entered into negotiations with respect to the renewal of the agreement or that an extension agreement was in fact executed. In fact, plaintiff's argument contradicts the agreement's clear and unambiguous language that her term of employment was to be for a two-year period commencing April 1, 1990 unless it was terminated by mutual agreement or either party's notice of its intention not to renew. Plaintiff's argument, if we were to accept it, would also render meaningless the agreement's distinction between "termination" and "expiration," as well as the provision that renewal negotiations were to be begun no less than nine months prior to the end of the employment period."

In connection with the sale of their residential property, defendants-sellers completed a Property Condition Disclosure Statement in which they answered "No" to certain questions, thereby indicating that there were: no material defects in the footings; no rotting or water damage; no flooding, drainage, or grading problems that resulted in standing water on any portion of the property; no seepage in the basement that resulted in standing water; and no known material defects in the plumbing system, foundation/slab, interior walls/ceilings, exterior walls or siding, floors, chimney and patio/deck, and that no radon test had been done.

Defendant-broker showed the property to plaintiff, and provided him with a copy of the Disclosure Statement. Plaintiff then contracted with defendant-inspection services to perform a home inspection. The inspection report did not state that there was any material defect in the property. The property went into contract and, subsequent to the closing, plaintiff allegedly discovered material defects in the property including: water leaking through the porch; the rear deck sinking because of excessive water and pooling of water; the roof separating from the rest of the house due to the deck sinking; improper footings on the deck; mold behind the sheetrock caused by water in the basement; the radon system blower was inoperative; a cracked chimney, rotted bathroom floors due to excessive water leakage; and evidence of long-term heavy water damage on the garage roof and walls.

Plaintiff commenced this action to recover damages, and the First Department found a cause of action in fraudulent misrepresentation, but denied a cause of action in breach of contract, in Simone v. Homecheck Real Estate Servs., which was decided on July 24, 2007.

As regards fraud, the court noted that New York adheres to the doctrine of caveat emptor and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm's length, unless there is some conduct on the part of the seller which constitutes active concealment. The mere silence of the seller, without some act or conduct which deceived the buyer, does not amount to a concealment that is actionable as a fraud. To maintain a cause of action to recover damages for active concealment in the context of a fraudulent nondisclosure, the buyer must show, in effect, that the seller thwarted the buyer's efforts to fulfill the buyer's responsibilities fixed by the doctrine of caveat emptor.

The court found that that the alleged false representations by the sellers in the Disclosure Statement may be proof of active concealment.

As regards the breach of contract, however, the court said that there is no cause of action where the contract specifically disclaims the existence of warranties or representations. Here, the contract of sale specifically provided that the property had been inspected by the buyer and was being sold "as is" without any warranty as to condition, express or implied. Furthermore, a specific merger clause is contained in the rider to the contract and precludes the buyer from claiming that he relied on any of the sellers' alleged misrepresentations. In addition, because title to the property had closed and the deed was delivered, the doctrine of merger extinguished any claim the buyer may have had regarding the contract of sale.

Plaintiff commenced this medical malpractice action on December 19, 2003, claiming, among other things, that defendant had failed to diagnose her thyroid cancer. In moving for summary judgment, defendant argued that any alleged acts of malpractice occurring before June 22, 2001, were time-barred because they took place more than two-and-one-half years before the suit was filed. Finding a triable issue as to whether the statute was tolled by the continuous treatment doctrine, the Second Department denied the motion, in Connors v. Eng, which was decided on July 24, 2007.

Plaintiff's affidavit demonstrated that she initially saw the defendant on May 19, 1988, for an evaluation of her thyroid and thyroid nodule, and that, until May 18, 2002, she returned to the defendant's office 41 times for the purpose of monitoring her thyroid nodule.