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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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."

Plaintiff allegedly was injured when she tripped and fell on defendant's driveway. At her deposition, plaintiff testified that the accident occurred on the "edge" of the street, and that the cause of her accident was that "the earth was not good" and the "place is wrong." She later indicated that there was "[l]ike a hole." Plaintiff then circled on a photograph the location where she allegedly fell.

The Second Department dismissed the complaint, in Shohet v. Shaaya, which was decided on September 4, 2007. Upon scrutiny of the photograph as circled by the plaintiff and the other evidence in the record, the court concluded that the alleged defect did not constitute a trap or nuisance and was merely a trivial defect which, as a matter of law, was not actionable.

On the Sidewalks of New York

Tree wells are not a part of sidewalks, at least not for purposes of Administrative Code of the City of New York § 7-210, which requires owners of real property to maintain abutting sidewalks in reasonably safe condition, or so said the First Department, in Vucetovic v. Epsom Downs, Inc., which was decided on September 6, 2007.

The court noted that, pursuant to Administrative Code § 19-101[d], a "sidewalk" is "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians." The court concluded that tree wells are not intended for pedestrian use, "and therefore they are not part of the sidewalk."

Two judges filed a lengthy dissent, pointing to § 7-210(b) which reads, in pertinent part, that "[f]ailure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk." The dissenters concluded that the Code expressly acknowledges that an owner's duty extends beyond merely repairing sidewalk flags or removing ice and snow, and that it runs to tree wells.

Plaintiffs' decedent, a supervising engineer at Brooklyn's Woodhull Hospital, was investigating a missing fan belt in the heating and cooling system, when he fell 30 feet from a narrow beam between two catwalks.

Plaintiffs commenced an action against decedent's employer, New York City Health and Hospitals Corporation, and the City of New York, alleging, among other things, violations of Labor Law §§ 240(1) and 241(6).

The Second Department found that decedent was injured doing routine maintenance involving the replacement of a missing component, and not while involved in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure," so as to fall within the protective ambit of § 240(1), in English v. City of New York, which was decided on September 4, 2007.

In addition, the court found § 241(6) inapplicable, since decedent was not working in a construction area, and the accident did not occur in connection with construction, demolition, or excavation work.

In 1989, defendant executed a promissory note in favor of plaintiff's predecessor-in-interest, Chemical Bank. On his loan application, defendant gave a Brooklyn address as his residence and stated that he had been living there for 20 years. Defendant defaulted and, in 1994, Chemical Bank commenced an action to collect on the note. A summons and complaint was allegedly served on defendant by personal delivery to defendant's aunt, at the address listed on the note. Plaintiff contends that the summons and complaint was also mailed to that address.

In 1992 defendant was arrested on an unrelated matter, and, though plaintiff was unaware of it, he was incarcerated until 2005.

When defendant failed to respond to service of the summons and complaint in this action, Chemical Bank moved for a deficiency judgment on default, which was granted in 1994, in the amount of $47,543.64. In 1997, this unsatisfied judgment was assigned to plaintiff. It was filed with the Clerk of Kings County in 1999, and became a lien upon any real property owned by defendant in Kings County. A renewal of the judgment was entered in 2005.

In 2006, plaintiff moved for an order authorizing the Kings County Sheriff to mail all required papers in aid of execution of the 1994 judgment to defendant's last known address in Brooklyn, and to his counsel. Plaintiff also sought to amend the caption in this action to substitute its name for Chemical Bank.

The First Department denied defendant's cross-motion, in which he claimed a lack of personal jurisdiction and sought to dismiss the action and to vacate the 1994 judgment, in The Cadle Company v. Nunez, which was decided on September 6, 2007. The court found the record clear that service of a copy of the summons and complaint had been made to a person of suitable age and discretion, in conformity with statutory requirements, and that after such service plaintiff mailed the summons and complaint to defendant at his last known address, in satisfaction of the jurisdictional requirements of CPLR 308(2).

The court noted that plaintiff produced the process server as its only witness at the traverse hearing, and credited his testimony. The court further noted that defendant "produced four witnesses, all of whom were interested parties. Further, their testimony was rife with contradictions and inconsistencies. For example, defendant's aunt, the relative named on the affidavit of service testified that she could not have been the brown haired woman described in the affidavit of service because her hair color is blonde. However, upon production of her passport, she admitted that her hair is and was brown."

Defendant produced three other witnesses -- two relatives and his business partner -- but the court said that their testimony was tailored to show that defendant did not have notice of the action, and the court found their testimony incredible as a matter of law.

In a dispute involving home improvements which plaintiff was hired to perform for defendants, defendants did not answer and plaintiff was given a default judgment. Defendants moved to vacate, pursuant to CPLR 5015(a)(5), on the sole ground that they never received process or other notice of the suit until after the judgment was issued and their bank account was frozen.

In opposing the motion, plaintiff alleged that service of process was effected upon defendants' doorman as a person of suitable age and discretion, followed by the requisite mailing and the filing of an affidavit of service, as permitted by CPLR 308(2). Plaintiff also offered into evidence, by affidavit, a follow-up notice advising defendants of the suit, pursuant to CPLR 3215(g).

The Second Department said that the motion to vacate was premature, and ordered a hearing to determine whether service of process had been effected, thereby resolving the jurisdictional issue, in CLE Assoc., Inc. v. Greene, which was decided on August 7, 2007. The court said that, in the absence of that hearing, it was impossible to say whether defendants had a meritorious defense and a reasonable excuse for failing to appear, both of which would be necessary for their motion to be granted.

The Second Department granted plaintiffs' motion to restore the action to active status and to extend their time to serve and file a note of issue, even though, six months earlier, a certification order provided for dismissal if plaintiffs failed to file a note of issue within 30 days, in Ratway v. Donnenfeld, which was decided on August 21, 2007.

The court said that the certification order did not constitute a 90-day demand pursuant to CPLR 3216 since it gave the plaintiffs only 30 days within which to file the note of issue, and so, with that failure of a condition precedent, the action could not have been dismissed. The court noted that, since plaintiffs were not moving to reinstate the note of issue, they were not required to demonstrate a meritorious action pursuant to 22 NYCRR 202.21[f]).

Plaintiff was granted leave to amend her bill of particulars, and to plead an additional theory of negligence which first came to light about a month after the note of issue was filed, in Cherebin v. Empress Ambulance Serv., Inc., which was decided by the First Department on August 30, 2007.

The court noted that leave to amend pleadings, including a bill of particulars, is to be freely given, absent prejudice or surprise, and that, in the absence of prejudice, mere delay is insufficient to defeat the proposed amendment. If the delay is an extended one, though, plaintiff must offer an affidavit of reasonable excuse and an affidavit of merit.

The court gave short shrift to defendant's allegations that plaintiff's new theory of liability was a surprising, substantial departure from the one articulated in the original bill of particulars, noting that the amendment is based on defendant's own records and the depositions of its own employees, all of which has been readily available to defendant since at least the time of the motion. The court did, though, grant defendant further, reasonable discovery on the new theory.

The so-called Dead Man's Statute, as codified in CPLR 4519, applies in a disciplinary context, or so said the First Department, in Matter of Zalk, which was decided on August 23, 2007. Charged with taking from his escrow account funds which, if not for his claim to them, would otherwise belong to his recently-deceased client's estate, the attorney was relying on his explanation that his client, before her death, gave him the funds remaining in his escrow account from the sale of her property, as payment for ten years of unpaid legal services.

The court noted that, "for the statute to apply, the testimony in question must be (1) upon the hearing on the merits of a special proceeding, (2) by a person interested in the event being examined as a witness in his own behalf or interest, (3) against the executor, administrator or survivor of a deceased person, (4) concerning a personal transaction or communication between the witness and the deceased person." The court found all four elements, and determined that the statute clearly applies.

Importantly, though, the court said that the Dead Man's Statute does not apply to the issue of mitigation, and that the attorney's offer of evidence of his conversation with his deceased client is admissible in the context of determining the nature of the discipline to be imposed.

There was a brief but pointed dissent which expressed puzzlement at that, and which would have found that the statute applies in every aspect of a disciplinary proceeding. The dissent characterized the attorney's evidence as "self-serving and otherwise unsupported," and would not have admitted it.