The First Department set aside a plaintiff's verdict of $2,000,000 compensatory and $500,000 punitive damages, plus attorneys' fees of $257,428.71, in Jordan v. Bates Advertising, which was decided on December 27, 2007. In addition, the court upheld a $5,000 sanction against plaintiff, and dismissed the complaint which had sounded in disability discrimination.

Plaintiff was hired as a senior vice president at the advertising agency, after having worked there for two months as a consultant. She was fired a year later. After her federal claims were dismissed, plaintiff brought a state action claiming, among other things, that she was fired because she was perceived to be disabled.

The First Department agreed with defendant that, at trial, plaintiff did not prove that defendant's proffered legitimate reasons for the firing were pretextual.
The court said that, in establishing her claim under Executive Law § 296, plaintiff had the initial burden of establishing a prima facie case of discriminatory termination. The burden then shifted to defendant to rebut the prima facie case by offering a nondiscriminatory reason for the termination, and then again shifted to plaintiff to show that defendant's reasons were pretextual. The burden of persuasion on the ultimate issue of discrimination always was plaintiff's.

At trial, plaintiff established that she was diagnosed with multiple sclerosis (MS) in 1992 and, because of it, used a cane. When she was asked about the cane after having been hired, she said she used it because of a skiing injury, a lie which she repeated when she was asked about it again. Plaintiff testifed that, since she was often asked about the cane, she felt that they believed she had a disability, and that if she revealed the truth she would be fired. However, she did not complain to anyone at the agency about the inquiries as to her use of the cane. Plaintiff further testified that, at a rehearsal for a client presentation, an executive knocked over her cane which was leaning on her chair, and laughed with another executive, while commenting sarcastically, "We've got a cripple." Plaintiff did not mention this comment to anyone at the company.

Agency executives testified that plaintiff's termination was financially motivated, and that a merger and the loss of major clients had precipitated layoffs of a large portion of the workforce, including executives more highly placed than plaintiff. There was testimony that, as a result of the merger alone, half of the staff was terminated.

The court said that defendant's overwhelming and consistent evidence of financial reasons for layoffs in the light of the merger and the loss of major client accounts was undisputed, and that, therefore, the finding that defendant failed to demonstrate a legitimate reason for terminating plaintiff was against the weight of the evidence.

The court said that the sanction of $5,000 on plaintiff was a proper exercise of the trial court's discretion. Plaintiff's conduct after the court directed a hearing to determine the amount of attorneys' fees was egregious and repeated. The record shows that plaintiff pro se relentlessly bombarded the court with letters and faxes accusing the court of ex parte communications, declaring her intention to depose the court, and claiming that her now-former trial attorney had committed serious errors costing her millions in damages. Although the court recognized that plaintiff was proceeding pro se after trial, it properly observed that she still was obliged to comply with court orders and not make baseless accusations regarding the court's integrity.

The First Department affirmed the denial of defendant's summary judgment motion, in Moore v. 793-797 Garden St. Housing Development Corp., which was decided on December 20, 2007.

Plaintiff alleges that, while she was walking down a marble staircase, one of the stairs moved from its base and she fell. Defendant failed to satisfy its initial burden of establishing a lack of notice as a matter of law since its witness had no personal knowledge of the condition of the allegedly defective step. In addition, defendant offered no evidence from its employees who were regularly at the property and dealt with tenant complaints, and who could have testified regarding the lack of complaints about the staircase or when it was last inspected or repaired. Furthermore, the record included plaintiff's testimony that (1) she had complained to the superintendent that the steps were uneven and had broken chips, and (2) steps in the vicinity of the accident had been patched and grouted and were the subject of violations issued by the Department of Housing Preservation and Development. All of this raised a triable issue as to whether defendant had notice of the allegedly hazardous condition.

NEW TELEPHONE IN THE NEW YEAR...

The office telephone number will be changed in the new year and, in the meantime, the number is 917-834-8012. The mailing address is still 225 Broadway-41st Floor, New York NY 10007.

Plaintiff alleges he was injured when he was struck by sheetrock boards while doing renovation work. Plaintiff's expert, a professional engineer whose opinion is unrefuted, said that the boards, which had been leaning against the wall, were inherently unstable and unsafely stored, in violation of Industrial Code (12 NYCRR) § 23-2.1(a)(1). Based on that, the First Department said that the Santos motion for dismissal of the Labor Law § 241(6) claim against him was properly denied, in Castillo v. 3440 LLC, which was decided on December 20, 2007.

The court also said that the claim as against 3440 LLC was properly dismissed since Santos did not obtain prior written consent for this work, in violation of the lease terms, and since 3440 LLC did not learn of the renovation until after plaintiff's accident.

There was a dissent in which one judge pointed to the statutory language which governs the proper and safe storage of building materials in a "passageway, walkway, stairway or other thoroughfare." The dissenting justice said that, here, plaintiff's accident occurred in an open work space, and so the statute does not apply.

The Second Department denied defendant's summary judgment motion in an action to recover damages for injuries allegedly sustained as a result of a fall caused by a puddle of soapy water in an aisle of defendant's store, in Granera v. 32nd Street 99¢ Corp., which was decided on December 18, 2007.

The court noted that defendant met its initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. However, in opposition, plaintiff offered her deposition testimony that it was neither snowing nor raining on the day of the accident, and that,immediately after she fell, she saw an employee with a mop and a bucket standing a couple of aisles away. There also was deposition testimony from the store manager that, after the accident, he too saw "two clean-up individuals" with buckets and mops "by the cashier." The court found this evidence sufficient to raise an issue of fact as to whether defendant may have created the condition which proximately caused plaintiff's injury.

Defendants wrote and published an article in the local paper, asserting that plaintiff, the former head of a high school English department, had "misappropriated" funds "that came directly from the pockets of students." Specifically, the article stated that plaintiff told students that they had to pay $5 for workbooks. However, according to the article, the workbooks had already been paid for by district taxpayers, and plaintiff turned the money into a "slush fund" for the English department. The article asserted that plaintiff "got away" with the misappropriation because he maintained the financial records of the department, and that his actions had been "discovered" by school district officials when some students attempted to pay their book fees directly to the school's principal. The article named only two specific purchases made by plaintiff with the money he collected: an air conditioner for a teachers' room and lunches for faculty meetings.

On the same day it ran the article, the newspaper published a related piece, labeled as an editorial, which set forth the statutory definition of the crime of scheme to defraud in the second degree and then posed the following question: "When a teacher tells his students they must give him cash to pay for workbooks and spends the cash on lunches and appliances, does that fit the description above?" The editorial called for the district attorney to investigate the matter. Plaintiff commenced a libel action based on the article and editorial, and the Second Department denied defendant's motion to dismiss, in Matovcik v. Times Beacon Record Newspapers, which was decided on December 11, 2007.

The court noted that the tort of libel is based on the publication of a statement that is both false and defamatory, and that a defamatory statement is libelous per se if it imputes fraud, dishonesty, misconduct, or unfitness in conducting one's profession.

Here, the article and editorial asserted that plaintiff engaged in misconduct in the course of his employment as a teacher, and plaintiff alleged that the defamatory facts set forth in the article and editorial were false. The court concluded that, accepting plaintiff's allegations as true, as it must in considering a 3211 motion, plaintiff stated a legally cognizable cause of action to recover damages for libel.

The court said that defendant's documentary evidence failed to establish, as a matter of law, the truth of certain facts set forth in the article and the editorial. That's a fatal flaw since, on a 3211 motion, the documentary evidence must resolve all factual issues and must conclusively dispose of plaintiff's claim.

Here, defendant's submissions provided some evidence that the practice of collecting and spending workbook funds predated plaintiff's tenure as department head and had been condoned, accepted, and encouraged by school district administrators. A reader would be likely to view plaintiff's actions in a different light if the school district had known of and had approved the collection practice. Additionally, by citing only the lunches and the air conditioner as examples of plaintiff's purchases, the article left the reader with the impression that plaintiff had used the money to purchase items which benefitted only the faculty. However, defendant's documentary evidence suggested that plaintiff spent the money largely on books and other classroom supplies used by or for the students.

The First Department affirmed the denial of an administrative determination denying accidental disability retirement benefits to a former police officer, in Picciurro v. Police Pension Fund, which was decided on December 18, 2007.

Petitioner, now retired, took a one-day voluntary assignment at the World Trade Center-site on September 12, 2001. She alleges that the experience was so overwhelming that she was unable to return the next day, despite being ordered to do so. When she refused to return to the site, she allegedly was humiliated and handcuffed by her superior officer in front of her peers, who thereafter subjected her to taunting, causing her to suffer post-traumatic stress disorder and depression. This allegedly rendered her incapable of performing her duties and resulted in her application for accidental disability retirement (ADR).

Petitioner's application was considered on three separate occasions and, each time, was denied. The Appellate Division said that the trial court properly declined to annul that determination, citing Court of Appeals' decisions to the effect that a reviewing court may only disturb such finding if it determines that, as a matter of law,causation is established, that is, that the disability was the natural and proximate result of a line-of-duty accident. If the record contains any credible evidence of a lack of causation, said the court, the adverse determination must stand.

The court noted that, although petitioner asserts both her service on September 12, 2001, and her subsequent humiliation, harassment and taunting by co-workers were the line-of-duty accidents that caused her disability, the record contains statements by her indicating that she felt the latter to be more significant than the former. For example, before the Medical Board she stated, "It was at the scene of the World Trade Center when I was badly humiliated in front of the other officers by being handcuffed and from then on I was harassed . . . I was told that I shouldn't be an officer and that's my flashback. This is the one that bothers me the most. The officer who put the handcuffs on me ruined my life, that's why I cannot be a full-time police officer."

The court concluded that this theory of causation does not meet the definition of "accident" adopted by the Court of Appeals, namely, a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact, and, therefore, it is insufficient to support her claim.

The Second Department found that defendant's submissions in his motion to dismiss were sufficient to establish the existence of an accord and satisfaction by way of a substituted agreement, in Gibbs v. Moore, which was decided on December 11, 2007. They clearly manifest the parties' intent that the obligation incurred by a promissory note would be satisfied by defendant's execution of a Separation Agreement settling a Maryland divorce action pending between him and plaintiff's daughter. The Separation Agreement was signed on the same date that the parties signed a discrete agreement as to the promissory note. That note agreement referenced the Separation Agreement and expressly provided that the promissory note was "hereby paid and satisfied" and that it "shall be so marked." That this was the parties' intent is further confirmed by the handwritten phrase, "Satisfied in full," in what appears to be plaintiff's own hand, on the original promissory note, and plaintiff's inscription of his signature immediately under that term.

The First Department found that the motion court did not improvidently exercise its discretion in granting a continuance so that intervenor-insurance company could present the videotaped deposition testimony of an out-of-state nonparty witness, in Shia v. McFarlane, which was decided on December 13, 2007. The court found that (1) both sides were at fault for the delay in discovery since they failed to settle orders pursuant to the direction of the court with respect to the tangential issue of deposition costs; (2) plaintiffs did not claim, much less demonstrate, prejudice; and (3) the anticipated deposition testimony was crucial to the principal issues in the case.

Lead paint and causation.

In a matter alleging damages caused by lead paint, the First Department denied plaintiffs motion for summary judgment on liability, in Lagoa v. Joremi Enterprises, which was decided on December 13, 2007. The court noted that, to establish cause, plaintiffs must directly link the injured child's condition to lead in the apartment. Here, plaintiffs' expert opined that lead poisoning was the substantive cause of the child's condition. While defendant's expert did not dispute the exposure to lead, he opined that the amount of exposure in the apartment and the levels of lead in the child's blood were not enough to cause the medical condition. The court concluded that this sufficiently raised a triable issue of fact on liability.

The First Department reinstated the complaint labeled as negligence and dismissed the complaint labeled as negligence/res ipsa loquitor, in Ianotta v. Tishman Speyer, which was decided on December 11, 2007. The court noted that plaintiff failed to raise an issue of fact as to whether defendant had notice of the alleged defective condition of the elevator in which she was injured, since the incidents noted in the elevator service report log were not similar to the accident giving rise to this lawsuit. However, the court found that facts did warrant application of the doctrine of res ipsa loquitur, since plaintiff testified that the elevator doors were open for a second or two before she entered the elevator right behind her co-worker and that another co-worker had to pry the doors open to free her, and the safety edge on the elevator was not a rubber bumper that plaintiff could have touched or put pressure on to cause the doors to retract but a device that used infrared beams to detect the presence of passengers. Since the public did not have access to the mechanism which would cause the doors to retract, the greater probability of responsibility for the alleged malfunction is on the defendant.
The court reinstated the negligence cause of action and dismissed the negligence/res ipsa cause of action in order to clarify that without a cause of action for negligence there is no viable cause of action to which to apply the doctrine of res ipsa. It is not a separate theory of liability but merely a common-sense application of the probative value of circumstantial evidence.
There was a lengthy dissent which argued that the doctrine of res ipsa cannot save the deficiencies in plaintiff's proof of negligence. The dissenting judge said that plaintiff was resorting to the mere happening of the accident as proof of negligence, and said that cannot be supported by New York law.

The First Department took down defendant's directed verdict, reinstated the complaint, and ordered a new trial, in Hendricks v. Baksh, which was decided on December 6, 2007. The court said that the directed verdict was improperly granted on the ground that expert testimony was necessary for plaintiff to make a prima facie case of negligence. The court noted that defendant admitted that two years before the accident he repaired the area of the sidewalk in front of his home where plaintiff tripped and fell, and concluded that the question of whether this repair was performed negligently, thereby creating a defect causing plaintiff to trip and fall, should have been given to a jury. The details of the repair work -- whether defendant used the right concrete, or poured enough of it in the right places, or should have removed the cobblestones, or failed to properly take into account the effects of weather, foot traffic and tree roots on the installation -- are not matters beyond the ken of the typical juror, nor are they issues of such scientific or technical complexity as to require the explanation of an expert in order for the jury to comprehend and resolve them.

Plaintiff is the mother of decedent, a five-year-old kindergarten student who was asthmatic, a fact known by his teacher and reflected in records maintained by the school nurse. At the beginning of the school year, plaintiff gave to the nurse decedent's asthma medication, an inhaler, and an authorization and directive for its use, as well as a separate authorization for an allergy medication.

On the day in question, decedent's teacher and the teacher's aide in his class noticed that he was coughing and they decided he should see the nurse. According to the nurse's records, decedent was breathing, alert, and in no distress. The nurse gave decedent his inhaler medication and notified plaintiff, who drove to the school. According to plaintiff, when she arrived, decedent was standing with the nurse and the principal. He was breathing and able to walk and talk. Plaintiff told the nurse that she was taking decedent to his pediatrician, which the nurse had suggested, and plaintiff put decedent in her car and drove away.

Plaintiff alleges that in the car decedent appeared to be hot and ill, and that she stopped twice to attend to him. Plaintiff decided to drive directly home, which she says was closer than the doctor's office, to call for help. Plaintiff asserts that, on reaching her home, she left decedent in the car, called 911, and then moved him into the house where emergency medical personnel treated him before taking him to the hospital by ambulance. Decedent was pronounced dead at the emergency room.

The Second Department granted defendant's motion to dismiss, in Williams v. Hempstead School District, which was decided on December 6, 2007. The court noted that decedent had been released to plaintiff who assumed complete custody and control of him. Having removed decedent from the geographic boundaries of the school district, as well as from defendant's actual control, and having decided to take him home where plaintiff administered medication, plaintiff cannot establish, as matter of law, that a duty existed which could give rise to any liability by defendant.

The Second Department affirmed the dismissal of the complaint as against defendant Cushman & Wakefield, in Vignapiano v. Herbert Construction, which was decided on December 6, 2007. The court began by noting that a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party. Here, Cushman demonstrated that its management contract with the predecessor of plaintiff's employer did not give rise to a duty of care to plaintiff. In opposition, plaintiff failed to raise a triable issue as to whether she detrimentally relied on Cushman's continued performance of its duties. As an example, at deposition, plaintiff testified that, two months before the accident, she called building management to express concern that the shelves in her office were slanted downward on the ends, and in response, someone came to inspect the shelves. However, plaintiff only speculates that this inspector was a Cushman employee, as opposed to an employee of her employer's in-house property management department. Further, said the court, even if the inspector were a Cushman employee, plaintiff did not raise a triable issue as to whether Cushman's alleged nonfeasance in failing to discover the alleged defect in the shelves launched a force or instrument of harm, such that Cushman might be liable. Finally, the court said that plaintiff did not raise a triable issue as to whether Cushman entirely displaced the duty of plaintiff's employer to maintain the premises safely. Why? Her employer maintained an in-house property management department, and the management contract provided that plaintiff's employer retained substantial control over the management and operation of the premises.

Saved!.

The First Department affirmed that two residences owned and operated by defendant were exempt from the Rent Stabilization Law since the primary use of the residences was charitable, in Candida v Salvation Army, which was decided on December 6, 2007. Because the tenants' initial occupancies commenced after defendant acquired the residences, they were exempt from the operation of the Rent Stabilization Law and defendant was entitled to refuse to renew the tenants' leases, pursuant to New York City Administrative Code § 26-511[c][9][c][i]. Furthermore, said the court, the leasing of some of the rooms in the residences to university students was incidental to the primarily charitable purpose of the residences, and did not deny defendant the benefit of exemption from the Rent Stabilization Law.

Respondeat superior.

The Second Department reinstated a complaint against the hospital, alleging vicarious liability for its employee's malpractice, even though the action against the physician had been dismissed for improper service, in Trivedi v. Golub, which was decided on December 4, 2007.

The court noted that, in an action against an employer based on respondeat superior, the employee who allegedly committed the tortious conduct is not a necessary party. Therefore, the fact that personal jurisdiction was not acquired over the physician did not warrant dismissal of the action as against the hospital.The court acknowledged that, in the absence of an employee's wrongful or actionable conduct, vicarious liability cannot be imposed on the employer. Here, though, the action against the physician was dismissed for a jurisdictional defect and did not go to the merits. Accordingly, said the court, there has been no determination with respect to whether the physician's conduct was either wrongful or actionable.

Expert witness is disqualified.

The First Department affirmed Supreme Court's disqualification of plaintiff's proposed expert witness, in de Hermandez v. Lutheran Medical Center, which was decided on December 4, 2007.The Court noted that it is within the Supreme Court's sound discretion to determine whether a particular witness is qualified to testify as an expert, and that its determination will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion. The court said, further, that an expert is qualified to proffer an opinion if he or she possesses the requisite skill, training, education, knowledge or experience to render a reliable opinion.

Here, plaintiff offered as an expert on causation a physicist who studied the growth patterns of breast cancer in general. The court found, though, that he was unqualified to render expert testimony regarding the rate of growth of the decedent's tumor, a retroperitoneal sarcoma. The purported expert, who was not a physician, showed no specialized knowledge, experience, training or education from which it could be inferred that his opinion regarding the growth of the decedent's sarcoma would be reliable.

Without any relevant expert testimony, plaintiff was unable to present a prima facie case of medical malpractice, and there was a directed verdict for defendant.

The First Department granted defendant's motion to dismiss, in Schulman v. Old Navy, which was decided on November 27, 2007. Plaintiff had alleged injuries from striking a metal bracket on a clothing rack, but the court found no negligence on the store's part. The court noted that, ordinarily, the issue of whether a condition is hazardous or open and obvious is a question of fact. On these facts, though, it could be said, as a matter of law, that the bracket was open and obvious and not inherently dangerous. Plaintiff admitted to knowing that the bracket was there, and so plaintiff's argument that the bracket was covered with clothing was unavailing.

The First Department denied defendant's motion to dismiss plaintiff's cause of action for promissory estoppel, in Global Icons v. Sillerman, which was decided on November 27, 2007.

Plaintiff alleged that it agreed to forgo its own attempt to acquire a business opportunity and facilitated defendant's purchase of the opportunity, in reliance on defendant's oral promise that plaintiff would have exclusive rights to manage and market the opportunity's products. The court found that this allegation was sufficient to show that plaintiff had irremediably changed its position in reliance on the alleged oral promise by undertaking acts which werer unequivocally referable to the promise, and that it would be unconscionable to deny enforcing that promise. Whether plaintiff's reliance on the alleged promise was reasonable is an issue of fact which cannot be decided on a motion to dismiss.

Legal malpractice, again.

The Second Department granted defendant's motion to dismiss the complaint alleging legal malpractice, in Asher v. Shlimbaum, which was decided on November 27, 2007. The underlying action was commenced to enforce an alleged oral contract regarding the conveyance of certain real property. The court said that plaintiff's actions in connection with the acquisition and maintenance of the property were not unequivocally referable to the alleged contract, pursuant to General Obligations Law § 5-703[4]), and so the alleged contract was barred by the statute of frauds and was unenforceable, pursuant to General Obligations Law § 5-703[3]). The court said that this was sufficient to show that plaintiff could not establish that he would have succeeded in the underlying action but for the defendant's failure to plead other legal theories in connection with the underlying action.

The standard for legal malpractice.

The First Department denied summary judgment to defendant-law firm in this legal malpractice action, in Duffy-Duncan v. Berns & Castro, which was decided on November 29, 2007.

Defendant's failure to timely serve a Notice of Claim on the Transit Authority had precluded plaintiff from prosecuting his personal injury action arising out of his alleged slip and fall on a patch of ice located on a subway platform. The court said that defendant failed to make a prima facie showing that, despite its failure to timely file, plaintiff could not have prevailed in the underlying action. The court found record evidence demonstrating that, because no discovery was conducted, it cannot be determined, as a matter of law, whether Transit had actual notice of the defective condition.

The court also said that defendant failed to establish that Transit lacked constructive notice of the condition on the platform. Transit submitted climatological reports, without an accompanying expert opinion, but they were insufficient since they were taken in neighboring counties, and are not dispositive as to the conditions at the site of plaintiff's fall in the Bronx.