It was in the mail.

The Second Department reversed Supreme Court's denial of defendants' motion to dismiss on the ground that it was untimely served, in Ortega v. Trefz, which was decided on October 23, 2007. The court noted that service on a party's attorney by mail is complete upon mailing, pursuant to CPLR 2103[b][2]. The court went on to explain that "mailing" means the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person's last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state, pursuant to CPLR 2103[f][1].

Furthermore, said the court, a properly executed affidavit of service raises a presumption that there was a proper mailing.

Here, defendants submitted a notarized affidavit of service from an employee of defendants' counsel attesting that she mailed the motion papers on May 9, 2006, in strict adherence to the statutory requirement. The postmark date of May 10, on the envelope in which the plaintiffs received the motion, did not establish that service was not completed on May 9.

A disability claim denied.

The First Department affirmed the denial of petitioner-police officer's claim to disability retirement benefits, in Igneri v. Kelly, which was decided on October 25, 2007.

The court said that, on this record, it could not be determined, as a matter of law, that petitioner's disabling arthritic condition was the natural and proximate result of the 1983 gunshot wound to his right thigh.

While petitioner offered various theories of causation, they were all refuted by credible evidence of lack of causation. As an example, petitioner proffered that the damage to his right thigh caused him to alter his gait and kept him from exercising, resulting in the weight gain that the Medical Board believes contributed to the arthritis. But the Medical Board countered that its examination of petitioner revealed full functional recovery of the thigh with the exception of some decreased sensation. No atrophy or motor problems were noted, and there was no indication of a change in gait or other cause for increased weight gain due to an inability to exercise.

While petitioner was claiming arthritis in his right-knee, the Medical Board cited evidence that the bullet fired at petitioner missed the knee and that no bullet or bone fragments were found in the knee. The Medical Board also cited evidence that petitioner was now displaying symptoms of arthritis in his left knee.

Finally, the court said that the fact that the Police Department had paid for petitioner's medical treatment for the knee is not evidence that the condition of the knee is service-related.

Class dismissed.

The First Department upheld petitioner-employee's termination, finding her complaint time-barred, in DiRuzzo v. Department of Education, which was decided on October 25, 2007. The court said that, once the claim accrued, the employee's filing of a grievance did not toll the statutory limitation period.

It's settled.

The Second Department upheld a stipulation of settlement, saying that, since plaintiff's attorney engaged in settlement negotiations and appeared at pretrial conferences, he had, as a matter of law, apparent authority to bind his client to the settlement terms, even if it exceeds his actual authority, in Davidson v. Metropolitan Transportation Authority, which was decided on October 16, 2007.

The court added that a party will be relieved from the consequences of a stipulation made during litigation only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident.

The court noted that, subsequent to the stipulation of settlement, plaintiff's attorney, acting on behalf of the party to be bound, confirmed the essential terms of the oral settlement agreement reached at the pretrial conference in a subscribed writing sufficient to satisfy the requirements of CPLR 2104.

Finally, said the court, plaintiff failed to make a showing of any procedural unconscionability in reaching the agreement which would warrant a vacatur of the agreement or a hearing on that issue.

The school of hard knocks.

At the § 50-h hearing, the infant plaintiff testified that three days before the incident which triggered the complaint, another student at his junior high school entered plaintiff's classroom, challenged him to a fight, and threw plaintiff's hat, which was on his desk, to the floor. The teacher ejected the other student from the classroom, but the next day he was back and, once again, he challenged plaintiff to a fight. This time the teacher merely instructed the students not to pay any attention to the intruding student.

On the day of the incident at issue, while plaintiff was in the basement lunchroom during lunch period, the same other student started staring aggressively at plaintiff. Fearing that the other student was going to hit him, plaintiff told the teachers in the lunchroom what was happening, but they were busy and told him they could not do anything.

Shortly thereafter, the other student approached plaintiff and pushed him. One of the counselors who was present in the lunchroom saw the contact, separated the boys, and directed them to leave the basement by different stairways. When plaintiff returned to the area of the second floor outside of his classroom, he was approached again by the other student, who this time had three friends with him. Plaintiff swung at the other student but missed, and the other student punched plaintiff in the mouth, breaking a tooth.

The Second Department denied defendant's motion for summary judgment, in Ambroise v. City of New York, which was decided on October 16, 2007. The court noted that liability for injuries resulting from a fight between two students cannot be predicated on negligent supervision if the plaintiff was a voluntary participant in the fight, and found that, on these alleged facts, there was a triable issue as to whether plaintiff was participating voluntarily in the fight, or was acting in self-defense.

She's gotta go home again.

Pursuant to a written lease, defendant is the tenant of an apartment in plaintiff's building. Plaintiff served a notice of nonrenewal, citing nonprimary residence, and commenced an action for ejectment. Defendant moved to dismiss, asserting that plaintiff had served her with a notice of renewal before it served notice of nonrenewal, and that she executed the lease and submitted it to plaintiff approximately one month later. Plaintiff cross-moved for summary judgment, arguing that the tenant is a British citizen who entered the United States on a B-2 tourist visa, and is thus statutorily barred from maintaining a permanent residence in the United States.

The First Department granted plaintiff's summary judgment motion, in Katz Park Avenue Corp. v. Jagger, which was decided on October 18, 2007. The court noted that a landlord may recover a rent-controlled apartment which is not occupied as the tenant's primary residence, and said that primary residence is an ongoing, substantial, physical nexus with the controlled premises for actual living purposes, which can be demonstrated by objective, empirical evidence.

Here, said the court, tenant concedes that she is a citizen of the United Kingdom, and therefore, to the extent she resides in the United States, she does so as a nonimmigrant on a B-2 tourist visa, which requires her to maintain a permanent residence outside the United States that she has no intention of abandoning.

The court said that, even if it were to conclude that the holder of a B-2 tourist visa is not necessarily precluded from maintaining a primary residence in a rent stabilized apartment, this record is devoid of any evidence supporting this tenant's primary residence claim or showing that she is in the United States as anything other than a temporary visitor.

Two judges dissented, finding a fact question as to primary residence. They argued that plaintiff's immigration status -- albeit not permanent -- may be extended and therefore could well result in a protracted stay. If the lease is for only one year, the immigration status is not enough to summarily deny that this is a primary residence for leasehold purposes.

Labor Law § 240(1)

The Second Department denied defendant's motion to dismiss a Labor Law § 240(1) cause of action, in Mentesana v Bernard Janowitz Constr. Corp., which was decided on October 9, 2007.

Plaintiff allegedly was injured while on a flatbed truck as he was looking for certain pieces of steel which were to be installed at a construction site. As he bent over, a steel I-beam which was being hoisted by crane came loose and fell, hitting another beam, which slid onto and crushed the plaintiff's finger. Plaintiff testified at his deposition that someone else attached the I-beams to the crane, that he had never received instructions on the proper way to attach the I-beams to the crane, and that he had never before performed that particular task. He also testified that the I-beams were elevated approximately three feet above his head when they came loose and fell.

The crane operator testified at deposition that plaintiff attached the I-beams to the crane improperly, and knew that they were attached improperly, but told the crane operator to hoist them anyway. He further testified that plaintiff had performed this task many times before, and knew that the foreman had instructed plaintiff with respect to the proper method of attaching the I-beams to the crane. The crane operator also stated that, after plaintiff told him to hoist the I-beams without properly securing them, he complied, knowing that the beams were improperly secured. Further, he stated that the I-beams were only one to two feet above the bed of the truck when they fell.

The court noted that Labor Law § 240(1) imposes liability upon owners and contractors who fail, in accordance with the statute, to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards. In order for the statute to apply, the plaintiff must show more than simply that an object fell causing injury to a worker. Instead, a plaintiff must show that the object fell while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute. What is more, liability is contingent on the existence of a hazard contemplated in the statute, and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein.

Here, the court found triable issues, to include the relative height of the I-beams when they fell; whether safety devices were available to the plaintiff; and whether he had received instructions on how to attach the I-beams to the crane.

Losing causes.

The First Department affirmed defendant's motion to dismiss, pursuant to CPLR 3211(a)(1), (5) and (7), in Langer v. Dadabhoy, which was decided on October 11, 2007.

The court said that the breach of contract claim was properly dismissed, since plaintiff's bare allegation that he had "set aside" funds for the real estate purchase at issue does not constitute adequate consideration for an alleged agreement.

As regards the claim for breach of a joint venture, the court found that plaintiff failed to sufficiently set forth facts to establish necessary elements such as his contribution of property and skills, control over the venture, and the sharing of possible financial losses. Moreover, absent a proper pleading of a joint venture, plaintiff's alleged oral agreement to invest $150,000 toward the purchase of real property was unenforceable under the Statute of Frauds.

The court also noted that documentary evidence in the form of e-mails conclusively established that the parties intended to finalize their agreement in a writing, which never materialized, since the parties' negotiations were eventually discontinued. As such, there was no meeting of the minds as to the proposed joint venture.

In light of these determinations, the court gave short shrift to the alleged causes of action for breach of fiduciary duty and for the imposition of a constructive trust.

No day at the races.

The First Department affirmed the state agency's determination that a noted thoroughbred-horse trainer had violated the so-called "trainer responsibility rule," codified at 9 NYCRR 4043.4, and that his license should be suspended for 120 days, in Sciacca v. Hoblock, which was decided on October 11, 2007.

Citing CPLR 7803[4], the court found the requisite substantial evidence that the trainer's employees had tried to administer a so-called "milk shake" -- a mixture of bicarbonate of soda and sugar -- to a horse he trained, with the intent of affecting the horse's race-day performance.

The court said that the trainer responsibility rule should be read to mean that trainers are liable for failing to guard their horses from such attempts prior to races.

Rings and Things.

Q. In today's DAILY NEWS there is a story headlined, "City man sues ex-girlfriend over platinum engagement ring." What is the likely outcome?

A. "The clear purpose of [Civil Rights Law] section 80-b is to return the parties to the position they were in prior to their becoming engaged, without rewarding or punishing either party for the fact that the marriage failed to materialize. The crucial fact is that the engagement is dead and that the statute evidences a policy to allow the return of all gifts given in contemplation of the marriage." Gaden v. Gaden, 29 N.Y.2d 80, 88 (1971).

Discovery matters.

Plaintiff suffered facial burns while using a heating pad and sued, among others, third-party defendant, claiming defective design and manufacture. During the course of discovery, third-party defendant refused to comply with plaintiff's notice to produce documents and information relating to its heating pads, claiming that the demanded information constituted trade secrets. Third-party defendant cross-moved for a protective order, but only in response to plaintiff's motion to strike its answer.

The Second Department denied the motion, in Hunt v. Odd Job Trading, which was decided on October 9, 2007, and converted the motion to strike, pursuant to CPLR 3126, to a motion to compel, pursuant to CPLR 3124. In granting that motion, the court noted that the failure to timely challenge the notice to produce forecloses inquiry into the propriety of the information sought except with regard to material which is privileged pursuant to CPLR 3101, or to a request which is palpably improper. The court said that, here, there was not even a minimal showing that the demanded information contained trade secrets.

The house fell in on this plaintiff.

Plaintiff failed to apply for a mortgage commitment, failed to obtain a mortgage commitment within 45 days of her receipt of the contract, and failed to provide reasonably timely notice of her purported inability to secure a commitment. The Second Department said that was more than enough to support the trial court's determination that plaintiff breached the clear and unequivocal provisions of the contract, and the implied covenant of good faith and fair dealing. In DiBlanda v. ADC Pinebrook, which was decided on October 11, 2007, the court concluded that, under these circumstances, plaintiff had no authority to cancel the contract, and defendants were entitled to keep the down payment.

A pox on both their motions.

Leading up to this legal malpractice action, defendant-attorney had let a year pass without moving for a default judgment in the underlying action, alleging an injury on premises leased to plaintiff's employer by out-of-possession owners, and, as a result the underlying action was dismissed as abandoned pursuant to CPLR 3215(c).

Defendant concedes that his failure to move for a default judgment was negligent, but argues that there was no resulting harm to plaintiff because the underlying action was not viable. The First Department rejected this argument, in Rodriguez v. Killerlane, which was decided on October 11, 2007. In denying summary judgment to defendant, the court said defendant incorrectly assumes, solely on the owners' out-of-possession status, that the owners had no duty to remedy the alleged hazard, namely, old and rusty pipes that froze and cracked due to a lack of heat.

However, the court also denied plaintiff's cross motion for summary judgment. Plaintiff had argued that defendant's liability was established, as a matter of law, by his negligence in failing to timely move for a default judgment and the resulting dismissal of the underlying action. The court said that this argument ignored the possibility that the owners might have successfully opposed a motion for a default judgment, had one been made, or successfully vacated a default judgment, had one been entered. The court said that, accordingly, plaintiff did not meet the required 'but for' standard of proof in a legal malpractice matter: but for the attorney's negligence, plaintiff would have been successful. The only proof of the owners' liability presented by plaintiff was defendant's initial optimistic assessment of the merits and value of plaintiff's case, and that this was insufficient to establish the merits of the underlying action.

Home is where the petitioner is.

The First Department upheld the Human Resources Administration's firing of petitioner for failing to maintain a City residency, as required by Administrative Code § 12-120, in Prendergast v. City of New York, which was decided on October 11, 2007.

The court began by citing the proper review standard, namely, that the agency's determination was not arbitrary or capricious, nor was it irrational or an abuse of discretion. Petitioner's documentary evidence did not show that he resided in Queens, but merely that, after learning of the investigation into his residency, he received much of his mail at a post office box in the borough. The court found his explanation for receiving mail at the post office box address demonstrably false. Petitioner's wife, to whom he remained married despite asserting that they had been separated for some 10 years, owned a home with petitioner, having purchased it together at the time they allegedly had separated.

Petitioner was seen spending most nights at the non-City home, but was never seen residing at the Queens address. Petitioner also refused to allow the investigators to come to his Queens home to prove that he had access to that residence, which, in fact, was occupied by someone else.

Everybody out of the car.

Defendant's vehicle, leased from plaintiff, was impounded after defendant was arrested for driving while intoxicated. After pleading guilty to driving while ability-impaired, defendant attempted by telephone and in writing to recover the vehicle, but to no avail. Plaintiff eventually got the vehicle by executing a release and hold harmless agreement, wherein it agreed not to return the vehicle to defendant or any member of his family.

Plaintiff commenced this action to recover the unpaid balance due under the lease on grounds that defendant breached paragraph 11 of the lease when the vehicle was seized by the government and not promptly and unconditionally returned, but the First Department dismissed the complaint, in Ford Motor Credit Co. v. Louie, which was decided on October 2, 2007.

The court said that defendant's papers established prima facie that he made immediate and diligent efforts to recover the vehicle; that the District Attorney's office authorized the release of the vehicle to him; that, notwithstanding such authorization, the police did not return the vehicle to him or commence forfeiture proceedings; and that plaintiff, upon taking possession of the vehicle, declined to return it to him.

The court noted that plaintiff took the matter out of defendant's hands when plaintiff executed a release and hold harmless agreement with the property clerk, and upon taking possession of the vehicle, refused to return it to defendant, thereby thwarting his good-faith efforts to cure any default on the lease. The court cited plaintiff's bad faith in purportedly giving defendant an opportunity to cure, when, in fact,plaintiff had previously entered into a contract with the City specifically agreeing not to return the vehicle to defendant.

Petition for Reinstatement

Petitioner was appointed as a probationary police officer, but was later terminated when it was determined that he committed fraud on his application. On appeal, the New York City Civil Service Commission directed that he be reinstated.

Petitioner appeared for a mandatory medical examination but was found not qualified for reinstatement, and he commenced a proceeding to enforce the Commission's directive that he be reinstated, and seeking retroactive salary and benefits. During the pendency of the proceeding, petitioner's medical records were reevaluated and it was determined that he was qualified for reinstatement and was so notified, but petitioner refused the offer.

The First Department denied the petition and dismissed the proceeding, in Matter of Allocca v. Kelly, which was decided on October 2, 2007, saying that petitioner had refused the only relief to which he was entitled. The court noted that, although the Commission had directed petitioner's reinstatement, it did not award him retroactive salary and benefits, and was without authority to issue such an award. Citing CPLR 7806, the court said that the retroactive salary and benefits being sought were not incidental to petitioner's reinstatement as a police officer.

The court also denied petitioner's request for disclosure of his medical records to assist him in settlement negotiations. The request was made for the first time in petitioner's response to the City's motion to dismiss, and so it was not properly before the court. In addition, said the court, petitioner made no showing that the records were material and necessary to the prosecution of this proceeding.

Late Notice of Claim

Since plaintiff did not serve the notice of claim within 90 days of the alleged injury, as required by General Municipal Law § 50-e[1][a], the First Department dismissed the complaint, in McCrae v. City of New York, which was decided on October 2, 2007. The court noted that plaintiff did not move for leave to file a late notice of claim within one year and 90 days, pursuant to General Municipal Law § 50-e[5]; § 50-i[1].

"The Transit Authority's alleged waiver of its jurisdictional defenses does not warrant a different finding inasmuch as a timely notice of claim is a condition of maintaining the action which may not be waived in the manner of an affirmative defense. Similarly, the Transit Authority was not estopped from seeking dismissal of the cause of action."

Employment Law

The First Department upheld defendant-law firm's firing of plaintiff, a black paralegal, in Stewart v. Schulte Roth & Zabel, which was decided on October 4, 2007. The court said that plaintiff had not offered any evidence to refute defendant's showing that the termination was based on a number of well-documented performance reviews by many of the attorneys for whom plaintiff had worked. Instead of addressing these negative performance reviews, plaintiff's evidence focuses on the transfer of some of her cases to her only similarly situated co-worker, who is white, thereby reducing her billable hours and denying her credit for work she says she performed.

Although informed of the firm's anti-discrimination policies, including a requirement that discrimination complaints be reported to specific persons, plaintiff never complained that the alleged shifting of work was discriminatory, and did not offer any evidence permitting an inference that it was.

The court noted that the firm's reason for terminating plaintiff was not insufficient billable hours or an unwillingness to work, but the poor quality of her work and an inability to accept suggestions for improvement. Finally, the court noted that there is no evidence tending to show that the performance reviews were inaccurate, much less the product of collusion among the reviewing attorneys to supply a pretext for race discrimination.

All bets are off.

The First Department upheld the state's denial of a petition for a race-track management license, in Scott v. New York State Racing and Wagering Board, which was decided on October 4, 2007. The court said the board's determination was supported by substantial evidence, including several misstatements in petitioner's financial disclosure. The court reasoned that the state was justified in requiring prospective track managers to demonstrate accurate record-keeping, since in the sport of horse racing, on which betting is legal, there is the potential for illegality.

Additionally, the court gave deference to the hearing officer's findings that petitioner had deliberately misrepresented certain of his financial holdings. Finally, the court found no nothing in the record to support petitioner's arguments that he was the victim of selective enforcement, and that the board had demonstrated an inherent bias toward him.

Res Ipsa.

Plaintiff allegedly was injured when the elevator in which she was riding fell rapidly and came to an abrupt stop, out of alignment with the floor. The Second Department refused to dismiss the complaint against the company retained to service and maintain the elevator, in Fyall v. Centennial Elevator Industries, which was decided on September 25, 2007.

According to the court, there could be liability under the doctrine of res ipsa loquitur if plaintiff can offer proof that (1) the elevator's rapid descent and abrupt, misaligned stop would not ordinarily occur in the absence of negligence, (2) the maintenance and service of the elevator was within the exclusive control of defendant, and (3) no act or negligence on plaintiff's part contributed to the accident.

Bad Form.

Plaintiff is a former sanitation worker who brought this action in 1999, alleging defendants had failed to comply with a prior judgment which ordered reinstatement to his former position or appointment to an alternative position with comparable rank, pay and benefits.

Nothing has yet been done, and the First Department said that plaintiff's complaint for enforcement should be converted into a contempt proceeding, in Nunez v. City of New York, which was decided on September 27, 2007.

Without passing on the merits of the contempt proceeding, the court cited CPLR 103(c), which gives discretion to convert an improperly brought action into its proper form.

Bus Stop.

Plaintiff was riding on a bus when, according to the bus driver, a car came out of nowhere, causing the driver to slam on the brakes. Plaintiff, who had been standing in the aisle holding a handle, lost her balance, struck her head on the fare box, lost consciousness, and has no recollection of the incident. A Transit Authority internal investigation concluded that the bus driver had failed to recognize the hazard.

In spite of the Transit Authority's own finding, the First Department dismissed the complaint, saying that, as a matter of law, the bus driver had acted reasonably in an emergency not of his own making, in Rahimi v. Manhattan & Bronx Surface Transit Operating Authority, which was decided on September 27, 2007. The court explained that the Transit Authority's s rules requiring that its drivers anticipate that other drivers will violate the rules of the road impose a standard of care higher than the common law, and cannot be the basis for imposing liability on the Transit Authority. The court gave short shrift to plaintiff's expert witness who merely offered a conclusory reiteration of the Transit Authority's determination.

Failure to prosecute

Strict conformity to the notice requirements of CPLR 3216 is a condition precedent to dismissal for failure to prosecute, according to the Second Department, in Harrison v. Good Samaritan Hospital Medical Center, which was decided on September 18, 2007. The court explained that, since 3216 is a legislative creation, it cannot be part of a court's inherent power.

Specifically, defendant must serve a written notice demanding that plaintiff resume prosecution of the action and file a note of issue within 90 days after receipt of the demand, and must stating that failure to comply with the demand will serve as the basis for a motion to dismiss the action.

An Inconvenient Forum.

The First Department denied defendant's motion to dismiss based on forum non conveniens, in Jones v. Eon Labs, Inc., which was decided on September 18, 2007.

The court said that the motion was untimely since it was made two years after the commencement of the action, and after there had been significant progress in discovery.

Moreover, said the court, defendant failed to carry its burden of demonstrating that its inconvenience strongly favors removal of the action to Virginia. "While many witnesses do appear to reside in Virginia, the very discovery statute cited by defendant (Va Code Ann § 8.01-411), through which it would assertedly be forced to operate to obtain depositions and other discovery, provides a simplified procedure."