The Labor Law, again.

Plaintiff was hired to rewire defendants' telephone system, and, while he was running wires in an attic crawl space, plaintiff fell through a sheet rock ceiling in the office below. He commenced this action to recover damages for personal injuries allegedly arising from violations of Labor Law §§ 200, 240, and 241, and common-law negligence.

The Second Department found that plaintiff's work involved an elevation-related risk within the purview of Labor Law § 240(1), and reinstated the complaint, in Becker v. ADN Design, which was decided on November 20, 2007. The court gave short shrift to defendant's arugment that plaintiff was engaged in mere routine maintenance, saying that, in fact, the work clearly was "altering," within the meaning of the statute.

The court declined plaintiff's invitation to search the record and grant him summary judgment, however, finding issues of fact as to, among other things, whether plaintiff's own conduct was the sole proximate cause of his injuries.

Falling concrete blocks.

The Second Department reinstated plaintiff's cause of action alleging a violation of Labor Law § 241(6), in Amerson v. Melito Construction, which was decided on November 20, 2007.

Plaintiff was employed by a masonry subcontractor in the construction of a concrete block wall for a new supermarket. The wall was being built by masons who worked while standing on scaffolding set up on the exterior side of the wall. Plaintiff testified that his regular duties included walking around to the interior side of the wall and scraping and removing the mortar which fell to the loading dock floor of the new supermarket as a result of the construction of the concrete block wall, 12 to 20 feet above him.

Plaintiff wore a hard hat and had a chipping hammer, a scraper, a shovel, and a wheelbarrow in order to perform this work. On the day of the accident, plaintiff allegedly was looking down and scraping the loading dock floor when he was struck in the head by a concrete block, or a portion of one, which fell from the top of the wall where the masons were working.

The Appellate Division said that, on these facts, Supreme Court improperly granted defendants' motion for summary judgment, dismissing the alleged Labor Law violation.

The court said that plaintiff's work area was one which was normally exposed to falling material or objects, and so comes within the purview of 12 NYCRR 23-1.7[a][1], a provision of the Industrial Code which requires the use of appropriate safety devices to protect workers from overhead hazards. The court said that it is for a jury to decide whether the falling of a concrete block was foreseeable and whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.

This defendant's in hot water.

The First Department denied a motion to dismiss in an action seeking damages for injuries allegedly suffered when a glass shower door fell on plaintiff at defendant's hotel, in Higgins-Barber v. Raffles, which was decided on November 20, 2007.

The court rejected defendants' argument that they cannot be held liable unless they had notice of the alleged defect in the shower door in plaintiff's particular room. The court said that, even if defendants never received any complaints about this particular shower door, or if they regularly inspected it and found no problems, there still would be issues of fact bearing on notice, including the adequacy of defendants' inspection and maintenance procedures. The court pointed to defendants' acknowledgment that there had been at least 22 similar incidents involving identical shower doors in other rooms going back 10 years, and to defendants' failure to adduce evidence in their initial moving papers as to the proper inspection and maintenance procedures for shower doors.

The court further said that defendants' argument that the prior incidents are statistically insignificant given that the hotel has over 500 rooms was effectively countered by plaintiff's expert's affidavit which specified defects in the assembly of an identical shower door, and by defendants' own witness's testimony that, beginning 10 months before plaintiff's accident, the hotel had begun replacing all the shower doors with shower curtains.

The clock ran out.

The First Department granted defendant's motion to dismiss, in Doddy v. City of New York, which was decided on November 20, 2007. Plaintiff had moved to file a late notice of claim just eight days before the one-year-and-90-day statute of limitations expired. The motion was filed as timely served 265 days later, during which time the statute was tolled. Once the motion was filed, though, the toll was lifted and so plaintiff had only eight days to serve the summons and complaint. Plaintiff failed to timely serve. The court pointed to General Municipal Law § 50-i(3) which says that the one-year-and-90-day limit may not be extended.

A computer glitch is law office failure.

The First Department vacated the default of defendant-law office, in Lancer Insurance v. Rivera, which was decided on November 20, even though the court said the excuse for failing to appear at the framed-issue hearing was "weak." Defendant said that its office computer incorrectly listed the hearing as set down for Nassau County, but did not say whether anybody from the firm appeared at Nassau. Still, said the court, it's tantamount to law office failure, which is a recognized excuse for vacating a default. The court noted the strong public policy of deciding cases on the merits, and said that the case must have had some merit given that a framed-issue hearing was even scheduled.

Lack of interest.

Plaintiff settled his claim for three-hundred-thousand dollars, but will not get interest, pursuant to CPLR 5003-a(e), because he did not timely provide defendant with the hold harmless stipulation and his W-9 form, according to the First Department, in Cely v. O'Brien & Krietzberg, which was decided on November 15, 2007.

The court noted that neither the CPLR nor the open court settlement agreement required the documents as a condition of paying the settlement amount, but said that the defendant had a right to ask for the documents, citing the Internal Revenue Code, 3406(a)(1)(A), and New York case law.

CPLR 214-a.

The First Department dismissed a dental malpractice claim because it was commenced beyond the two and one-half year statute of limitations, pursuant to CPLR 214-a, in Cresson v. New York University College of Dentistry, which was decided on November 13, 2007.

Defendant established through documentary evidence that, following plaintiff's last scheduled appointment, it put plaintiff on notice of its decision to discontinue treating her and that she would have to pursue outside consultation for her orthodontic complaints. The court found no basis upon which to find that defendant anticipated providing further orthodontic services to plaintiff.

Procedure matters.

The First Department dismissed an Article 78 petition seeking to overturn the termination of petitioner's employment, in Fluellen v. Hanley, which was decided on November 13, 2007.

The court pointed to the collective bargaining agreement which required petitioner to avail herself of a four-step grievance procedure in connection with the disciplinary proceeding. Petitioner did not go through the fourth step in the procedure and so was precluded from even bringing the Article 78 proceeding. Furthermore, said the court, she participated in the second and third steps of the grievance procedure without objection, notwithstanding her union's objection to the procedure during the first step, and so she effectively acquiesced to it.

The court acknowledged the legitimacy of petitioner's argument that her employer had improperly converted a proceeding to determine her medical fitness into a disciplinary proceeding, but it went for naught because she still was required to exhaust the grievance procedure. Indeed, petitioner could have raised her conversion claim in the disciplinary proceeding, and she did so.

Out of work and out of court.

The First Department found that defendant had offered legitimate, nondiscriminatory reasons for plaintiff's termination, in Elizarov v. Martha Stewart Living, which was decided on November 8, 2007. The court said that plaintiff offered no evidence to controvert defendant's proof that economic conditions made cost-cutting necessary, resulting in significant job layoffs, or that defendant's downsizing was somehow contrived for the purpose of terminating him. In addition, noted the court, plaintiff conceded that defendant granted his vacation request and let him attend religious services during his lunch hour. In light of that, his alleged "failure to accommodate" claim was dismissed.

Up to code.

While playing basketball in defendant's gym, a student was injured when his hand struck a pane of glass in a door and the pane shattered. The student's parent filed suit alleging, among other things, that defendant was negligent in failing to install safety glass in the door. According to plaintiffs' engineering expert, safety glass prevents injury because of its ability to withstand pressure and its tendency, if broken, not to form large sharp edges.

Defendant moved to dismiss, maintaining that the glass did not constitute a defective condition, and the Second Department granted the motion, in Dwyer v. Diocese of Rockville Center, which was decided on November 7, 2007. The court said that, as a matter of law, defendant was not negligent since it submitted evidence showing that the door fully complied with all applicable building codes which were in effect at the time the school was built.

The default stands.

In an action to recover damages for personal injuries, the Second Department refused to vacate a default judgment, in Anderson v. GHI Auto Services, decided on November 7, 2007, noting that defendant failed to demonstrate a reasonable excuse for the default and a meritorious defense, pursuant to CPLR 5015 [a][1].

The court also rejected defendant's argument of improper service, noting that the mere denial of having received the summons and complaint cannot rebut the presumption of proper service created by the affidavit of service, pursuant to 5015(a)(4).

In any event, said the court, defendant cannot be relieved from its default because of CPLR 317, which says that a defaulting person who had been served other than by personal delivery, may be allowed to defend the action within one year after learning of entry of the judgment, but no more than five years after the entry. Here, the judgment was entered in 1997 and defendant did not move for relief until 2006.

The elevator's here and it's safe to get on.

The First Department dismissed a complaint seeking damages allegedly suffered when plaintiff tripped and fell while exiting an elevator at work, in Cortes v. Central Elevator, Inc., which was decided on November 8, 2007. The court found that defendant offered submissions sufficient to establish that the elevator was working properly and that there was no misleveling problem on the day of the accident. Among other things, the court pointed to plaintiff's deposition testimony that he did not see the elevator in a misleveled state after his fall, and an affidavit from an elevator consultant who inspected the elevator and concluded that its doors would not have opened if the elevator was more than one-half inch below the hallway floor.

The court noted that plaintiff's expert's affidavit was conclusory and unsupported by the anything in the record. The court gave short shrift to plaintiff's res ipsa argument, noting that the accident could have occurred in the absence of negligence and could have been caused by a misstep on plaintiff's part.

In light of its determination, plaintiff's cross-motion to compel production of post-accident maintenance records was academic, but, the court opined that it was improper because neither control nor defective manufacture were at issue.

No on discrimation and harassment, but yes on retaliation.

The First Department dismissed plaintiff's sex discrimination and sexual harassment claims, in Clayton v. Best Buy, which was decided on November 8, 2007, noting that, under the New York Human Rights Law, an employer is not liable for an employee's act of discrimination unless the employer became a party to it by encouraging, condoning, or approving it.

The court found that when plaintiff reported the incident, defendant immediately took action, reprimanding the offending employee on the same day the incident occurred and warning him that another similar incident would result in his dismissal. Furthermore, the court said there was no evidence that plaintiff's workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive so as to alter the conditions of plaintiff's employment and create an abusive working environment.

The court also found that plaintiff's allegations of sexual and inappropriate remarks made by various employees of defendant were insufficient to support a claim of intentional infliction of emotional distress.

However, the court did find an issue of fact on the retaliation cause of action, in which plaintiff claimed that defendant had reduced her hours, saying that business had slowed, even though she was considered a good employee and no other cashiers' hours were reduced.

The courts are closed for Veterans Day but the law office is open and so we are posting.

Of course, best wishes to my fellow Vietnam veterans and to the women and men whose service has kept us free.

Staying put.

In this action for personal injuries and wrongful death, the First Department denied third-party defendant's motion to change venue from Bronx to Westchester, in Bakiriddin v. Idi Construction, which was decided on November 8, 2007.

Plaintiff's decedent, who was third-party defendant's employee, was injured at a construction site in New York County and was taken to a hospital in New York
County, where he remained for two months. He then was moved to a nursing home in Bronx County, where he died eight months later after being in a comatose state for most, if not all, of his stay there.

Plaintiff was appointed administrator in Bronx County, and venue was placed there pursuant to CPLR 503[b]. The pleading filed in Bronx Surrogate's Court gave plaintiff's address in Westchester, but it also indicated, as reflected in the death certificate, decedent's residence and place of death as Bronx County. The court said that, absent evidence that plaintiff's application for testamentary letters fraudulently misrepresented or withheld facts pertaining to decedent's domicile, a collateral attack on the Bronx County Surrogate's appointment of plaintiff is foreclosed, pursuant to SCPA 204 and 205[1].

The court also noted that third-party defendant did not follow the procedures of CPLR 511, namely, a timely motion following a demand for change of venue, and so a change of venue, based on the location of its principal place of business in Westchester County, is not owing as of right. Finally, the court said it could not grant a discretionary change of venue since third-party defendant did not identify any nonparty material witnesses whose convenience would be served by the change, as required by CPLR 510[3].

Untimely service of a summary judgment motion.

Plaintiff commenced this action to recover damages for alleged discrimination on the basis of his sexual orientation. Plaintiff filed a note of issue on May 15, 2006, and motions for summary judgment, if any, were to be made within 60 days thereafter, pursuant to a preliminary conference order.

Defendants' motion for summary judgment was untimely served but Supreme Court accepted counsel's excuse that she had mistakenly thought she had 120 days, not 60, and granted the motion on the merits.

The First Department reversed, in Crawford v. Liz Claiborne, which was decided on November 1, 2007. The court noted that a court will get to the merits of an untimely summary judgment motion only if movant demonstrates a satisfactory explanation for the untimeliness. Here, the court found defendants' explanation nothing more than a perfunctory claim of law office failure, which is insufficient to constitute good cause under CPLR 3212(a).

The court gave short shrift to the argument that the motion was untimely by just five days, saying that it does not defeat the requirement of a good cause for the delay.

There was a lengthy dissent in which two judges cited what they thought was ambiguity created by the motion court's referring to a local rule in its preliminary conference order. The dissenters also took sharp exception to the court's remitting the matter for reassignment to another judge, finding this a wholly unnecessary impugning of the motion court.

Failure to prosecute (or to explain).

In this medical malpractice action, the First Department granted defendants' motion to dismiss for failure to prosecute, in Patterson v. St. Luke's-Roosevelt Hospital, which was decided on November 1, 2007.

Plaintiff did not respond to defendants' disclosure demands served at about the same time as their answer, and had otherwise been utterly inactive when, two years later, defendants served a CPLR 3216 notice. Service of the notice required that plaintiff do one of three things: (1) file a note of issue within 90 days; (2) move to vacate the notice or extend the 90-day period; or (3) oppose the motion to dismiss, demonstrating the action's merit and proferring an excuse for the delay sufficient to convince the court to forgive the failure to prosecute as a matter of its inherent discretion.

Plaintiff chose the third alternative, submitting materials responsive to plaintiff's discovery demands, but offering no excuse whatsoever for the inactivity and, with respect to the merits, merely promising to produce an expert's affidavit within 60 days of the motion's return day. The court found it was way too little and way too late.

Malicious prosecution.

Plaintiff was employed by defendant-apartments and, in that capacity, did some maintenance work in individual defendant's unit. Afterward, individual defendant noticed that two watches and a pair of sun glasses were missing, and he reported the loss to the apartment's security director, who notified police. Plaintiff was later arrested and charged with petit larceny, and given an appearance ticket.

Plaintiff then left a threatening message on individual defendant's telephone answering machine, and plaintiff was arrested again, charged with aggravated harassment.

Both charges were dismissed on speedy trial grounds, pursuant to CPL 30.30, and plaintiff commenced this civil action, alleging, among other things, malicious prosecution and abuse of process. Supreme Court granted apartment-defendant's motion to dismiss, but did not dismiss the malicious prosecution cause of action as against individual defendant and the City. The Second Department reversed, in Baker v. City of New York,which was decided on October 30, 2007.

The court noted that, in order to recover for malicious prosecution, a plaintiff must establish all four necessary elements, namely, (1) that a criminal proceeding was commenced; (2) that it was terminated in favor of the accused; (3) that it lacked probable cause; and (4) that the proceeding was brought out of actual malice.

The court then found that individual defendant was entitled to summary judgment on the element of actual malice, saying, that, generally, a civilian who merely furnishes information to law enforcement authorities who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed will not be held liable for malicious prosecution. Here, plaintiff failed to raise a triable issue of fact as to whether individual defendant had played an active role in the prosecution of the charges by advising the police or by encouraging them to make the arrests. Plaintiff did not even allege that individual defendant knowingly gave false information to the police, and he did not allege anything which would raise a question of actual malice.

The court also found individual defendant entitled to summary judgment on the element of probable cause, which here required only information sufficient to support a reasonable belief that plaintiff had committed an offense.

The court also found the City entitled to summary judgment on the same elements, noting that information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest.

The courts are closed on this election day, but the law office is open and so we're posting a case.

Housing matters.

The First Department upheld the City agency's granting of a certificate of eviction on the ground that the apartment at issue was not petitioner-tenant's primary residence, in Kaufman v. New York City Housing Preservation and Development, which was decided on November 1, 2007. The court found in the record the requisite substantial evidence, including petitioner's failure to file income statements, hearing testimony, albeit largely hearsay, and petitioner's failure to testify on her own behalf. The court also noted that the issue of succession rights was not raised at the administrative level and so was not properly before the court as a matter for judicial review.

Assumption of the risk not in play.

Plaintiff was an experienced lifeguard who enrolled in a recertification CPR course which included lectures and demonstrations of CPR and rescue breathing techniques. Plaintiff alleges that, during the class, he was used to demonstrate the "head-tilt, chin-lift" technique, which is a method of clearing an unconscious person's airway. Plaintiff claims that demonstration was done in a negligent and reckless manner, thereby causing injury to his neck.

Defendants moved to dismiss, arguing, among other things, that plaintiff assumed the risk of injury by participating in the class. The Second Department denied defendant's motion and reinstated the complaint, in Schoenlank v. Yonkers YMCA, which was decided on October 23, 2007.

The court noted that the doctrine of primary assumption of risk precludes a voluntary participant in a sport or recreational activity from recovering for those injuries that may foreseeably result from the realization of a risk inherent in the activity itself. The doctrine can also apply in the context of nonsporting activities which pose inherent risks to the participants, as long as participation was voluntary and the injured participant had been fully apprised of the risks involved.

The court said that, here, defendants failed to establish, prima facie, that the "head-tilt, chin-lift" technique, when properly done, involved any inherent risk of injury to the person on whom it is performed, and that, therefore, they failed to establish that the doctrine of primary assumption of risk was even implicated.

The court that, in any event, even if plaintiff had assumed some degree of risk by allowing the technique to be performed on him, the law is clear that a participant does not assume the risk of another participant's negligent act which enhances the risk of injury. On these facts, the court found unresolved issues of fact as to whether the alleged application of forceful and excessive pressure and torque to the plaintiff's head and neck for a period of approximately 20 seconds was negligent and enhanced the risk of injury to plaintiff.

Municipal immunity.

The First Department dismissed the complaint as against the City, on the grounds of municipal immunity, in Shands v. Escalona, which was decided on October 23, 2007. Plaintiff had alleged that her intended roadside exit was closed because of flooding, and that a City police officer was negligent when he guided her back onto the highway, only to have her vehicle struck by a tractor-trailer owned and operated by co-defendants.

The court said that, even accepting plaintiff's allegations as true, any negligence on the part of the officer was committed in the course of a discretionary act for which the City is immune from suit, absent a special relationship. On these facts, the court did not find evidence of the requisite relationship.

A motion to preclude denied.

The Second Department affirmed the trial court's denial of plaintiff's motion to preclude one of defendants' medical experts from testifying on the ground that his testimony varied from the expert witness statement served before trial, pursuant to CPLR 3101[d][1][i], in Popkave v. Ramapo Radiology, which was decided on October 23, 2007.

On review of the trial record, the court found that the expert's testimony was fully consistent with his pretrial disclosure statement. The court said that any additional testimony the witness gave regarding the plaintiff's social history and the causes of breast cancer either was of collateral significance or constituted general background information, which did not render the pretrial disclosure statement inadequate or misleading, and did not result in prejudice or surprise to plaintiff.