Alleged jurisdictional defects.

In an action to recover damages for legal malpractice, defendant cross-moved to dismiss for lack of jurisdiction, pursuant to CPLR 3211(a)(8). The Second Department denied the motion, in Day v. Davis, which was decided on January 22, 2008.

Contrary to defendant's contention, the summons with notice was not jurisdictionally defective merely because it omitted a specific dollar amount of money damages sought by plaintiff. In addition, since defendant held out as his business address the address where process was served, including maintaining it as his business address on his registration as an attorney with the Office of Court Administration, and thereby induced plaintiff's reliance on that address, he cannot now disclaim that this was his actual place of business for purposes of service of process.

Plaintiff was a passenger who had just entered a double-parked Access-a-Ride van which then was struck in the rear by another vehicle whose driver admits he feel asleep at the wheel. Defendant-van driver testified at deposition that he double parked in front of plaintiff's building to wait for her because there were no available spots at the curb and he did not see the entrance to the building's parking lot. He said he waited five minutes with his hazard lights on before plaintiff arrived, although plaintiff testified that she was standing at the building door waiting for the van when he pulled up, and got in immediately. In either event, after plaintiff got in, but before she was able to put on her seat belt,the accident occurred.

Following discovery, defendants-van driver and owner moved for summary judgment, arguing that since their van was struck in the rear while stopped, the accident was proximately caused solely by the negligence of the other driver, and that their van's presence in the traveling lane merely furnished the condition or occasion for the accident.

The First Department rejected that argument and denied the motion, in White v. Diaz, which was decided on January 24, 2008. The court concluded that a reasonable jury could find that a rear-end collision is a reasonably foreseeable consequence of double-parking for five minutes on a busy Manhattan street. Noting that the precise manner of the accident need not be foreseeable, the court said it was not necessary to find it foreseeable that a driver asleep at the wheel would hit the van; it is enough that it is foreseeable that, with the flow of traffic disrupted by the double-parked van, an inattentive, careless or distracted driver might not stop in time to avoid the van. Therefore, there is a triable issue of fact as to whether defendant-van driver's double-parking proximately caused the accident.

The court also said that summary judgement would be inapprpriate because of the dispute as to whether plaintiff was unable to put on her seat belt because it was stuck, as she claimed, or because the accident occurred too quickly to allow defendant-van driver time to help plaintiff with her seat belt.

Age discrimination and retaliation.

The First Department dismissed the complaint sounding in age discrimination and retaliation, in Edwards v. Jamaica Medical Center, which was decided on January 24, 2008. The court found that defendants had offered valid, nondiscriminatory reasons for plaintiff's termination, and, in response, plaintiff had offered nothing to raise a triable issue as to whether defendant's reasons were merely pretextual.

The record demonstrates that plaintiff's termination resulted from her misuse of sick days, specifically in her not reporting for work at defendant-hospital facility while reporting for her evening shift at another job on those very same days. Plaintiff had been repeatedly warned that excess absences could lead to termination. Plaintiff's conclusory allegations of a discriminatory practice did not give rise to an inference that defendants engaged in a pattern or practice of attempting to replace older employees with younger, less qualified ones who were willing to work on a per diem basis.

Plaintiff alleged injuries sustained by walking into a forklift parked in front of defendant's premsises, but the First Department dismissed the complaint, in Pinto v. Selinger Ice Cream Corp., which was decided on January 22, 2008.

Plaintiff testified at deposition that he was very familiar with the premises, including defendant's custom of parking the forklift on the sidewalk, which defendant used as a driveway and loading bay for its ice cream distribution business. As plaintiff turned the corner just before the incident, he saw the forklift from 100 feet away. As he walked closer, he heard someone call to him from across the street, and turned his head toward the voice, and then walked squarely into the forklift, and fell.

Noting evidence that the forklift was bright yellow, the court concluded that, under these circumstances, the forklift was readily observable by the reasonable use of one's senses, and that plaintiff's inattentiveness was the sole proximate cause of the accident.

The court gave short shrift to plaintiff's deposition testimony that the sidewalk was cluttered with crates, noting its inconsistency with his other deposition testimony that he didn't notice anything other than the forklift and another parked vehicle, which he could only say was either a car or a truck, and disregarding it as a generic statement calculated to create a feigned issue.

In a personal injury action, defendants appealed an adverse interlocutory judgment, upon a jury verdict, on the issue of liability. The Second Department affirmed, in Coogan v. Torrisi, which was decided on January 15, 2008.

Defendants' contention that they were deprived of a fair trial because of the alleged prejudicial effect of testimony regarding alcoholic beverages at their home on the day of the accident was unpreserved for appellate review. The court opined that reversal would not be warranted anyway since defendants failed to establish that this limited testimony diverted the jurors' attention from the issues to be decided.

It was not error for the trial court to charge the jury that a defendant's violation of the Vehicle and Traffic Law was negligence per se, pursuant to Vehicle Traffic Law §§ 501[5][a], 509[3], 1129[a] and 1180[a]. The fact that this defendant's learner's permit required him to have a licensed adult driver supervising his actions when driving related directly to the actual operation of the vehicle. The statute sets a standard of care, and its unexcused violation is negligence per se.

A pedestrian accident and comparative negligence.

The Second Department denied plaintiff's summary judgment motion, in Cator v. Filipe, which was decided on January 15, 2008. Plaintiff-pedestrian was crossing the street within a crosswalk, with the traffic light, when she was struck by defendant's vehicle as it was making a left turn. While defendant failed to yield the right of way to plaintiff, in apparent violation of Vehicle and Traffic Law § 1112(a), plaintiff testified at her deposition that she had not looked to her left or right while crossing the street. On these facts, plaintiff failed to meet her burden of demonstrating her entitlement to judgment as a matter of law on the issue of liability, since a triable issue of fact exists as to her comparative negligence.

CPLR 3011, collateral estoppel and res judicata.

Plaintiffs alleged legal malpractice stemming from defendants' representation of them in a real estate transaction in which plaintiffs were the purchasers, and the First Department reinstated their complaint, in Kahn v. Taub, which was decided on January 15, 2008.

The court said that, although plaintiffs could have interposed their claims as cross claims in a prior action in which they and defendants were co-defendants, they were not required to do so either by CPLR 3011 or by the doctrines of collateral estoppel and res judicata.

The only issue litigated in that prior action was whether the tenants of the premises purchased by plaintiffs herein had a valid right of first refusal to purchase the premises themselves. While plaintiffs' claims of legal malpractice arose from the sale of the premises, they relate solely to the legal representation plaintiffs received and whether their attorney and his law firm were negligent or unethical in the handling of the matter due to an alleged conflict of interest. There is no identity of issue which was necessarily decided in the prior action and which would be dispositive of the instant action, as is required to invoke collateral estoppel; nor do plaintiffs' claims arise solely from the single transaction that was at issue in the prior litigation, as is required to bar the instant litigation on the basis of res judicata.

The relation-back doctrine of CPLR 203(b).

The administratrix of decedent's estate brought a timely medical malpractice and wrongful death action against the state hospital, and then, after the statute of limitations had expired, brought a separate action against two individual physicians. Instead of answering, they moved to dismiss the complaints as time-barred, pursuant to CPLR 3211(a)(5), and the Second Department granted their motions, in Cardamone v. Ricotta, which was decided on January 15, 2008.

The court refused to apply the relation-back doctrine as specified in CPLR 203(b), which requires, among other things, that the newly-named party knew or should have known that, but for plaintiff's mistake as to the identity of the proper parties, the action would have been brought against that party as well.

Here, the court found that plaintiff had not made a mistake but, rather, had not made a timely and genuine effort to determine the identities of the physician-defendants. The court noted that defendants' identities were listed in decedent's chart and in a resident's notes, and found no evidence that these documents were not available to plaintiff before the statute of limitations expired. The court determined that, even if defendants knew about the Court of Claims action, they could reasonably have concluded that plaintiff's failure to timely name them meant that there was no intent to sue them at all and that the matter had been concluded as far as they were concerned.

Fee Matters.

The First Department granted plaintiff's attorney's motion for a one-third fee, in Gee v. Salem Day Care, which was decided on January 17, 2008. Although plaintiff signed a retainer agreement that stated otherwise, it is uncontested that she agreed to pay her attorneys a one-third contingency fee for services rendered in connection with her personal injury action, a fee considered reasonable, pursuant top 22 NYCRR 603.7[e][2], Schedule B. Since a fee in a personal injury case may be calculated either as a fixed percentage of the sum recovered or pursuant to a sliding scale, there is no legal, policy, or logical reason to deny a contingency fee to plaintiff's attorney simply because plaintiff inadvertently signed the wrong retainer agreement form. This is especially so because the attorney earned the agreed fee and plaintiff clearly wishes to pay it.

Although plaintiff's attorney chose to remedy this mutual mistake by forthrightly seeking redress and authorization from the court, there is nothing that would have prevented plaintiff from privately and informally correcting the error, by simply paying her attorney the fee differential directly.

The First Department vacated the administrative penalty of the revocation of petitioner's liquor license, in Dawkins v. New York State Liquor Authority, which was decided on January 10, 2008.

The state agency had determined that petitioner had impeded an inspection of the licensed premises, in violation of Alcoholic Beverage Control Law § 106[15], served alcohol to three visibly intoxicated individuals (§ 65[2]), failed to display her license conspicuously (§ 114[6]), and failed to comply with regulations regarding signage for fire exits.

The court, though, said that the penalty of license revocation was excessive, in light of petitioner's prior unblemished record, and considering the impact of such a penalty on her livelihood. The court remitted the matter to the agency for the imposition of an appropriately lesser penalty.

The Second Department granted plaintiff-bank's motion for partial summary judgment on the issue of liability on its breach of guaranty cause of action, in Sterling National Bank v. Biaggi, which was decided on January 10, 2008.

Defendant's written personal guaranty unequivocally provides that: (1) it is absolute and unconditional in all respects and enforceable irrespective of any other agreements or circumstances which might otherwise constitute a defense to the guaranty and obligation of the guarantor under the loan agreement; (2) the guarantor absolutely, unconditionally and irrevocably waives any and all rights to assert any defense, set-off, counterclaim or cross claim of any nature whatsoever concerning the guarantor's obligations under the guaranty or the loan agreement; and (3) the guarantor waives the right to interpose any defense based upon statute of limitations or any claim of laches and set-off or counterclaim of any nature or description in any action in which plaintiff is an adverse party.

The court concluded found this language sufficiently specific to make defendant liable on the guaranty and to constitute a valid waiver of the right to plead any affirmative defenses or to make any counterclaims.

Assumption of the risk.

Plaintiff was at a baseball field to watch her son's team play a practice-game and was injured when she was struck by a bat being swung by a player on the off-field side of a chain-link fence running along the third-base line. The player, in effect, was in the on-deck circle.

The First Department applied the doctrine of primary assumption of risk and dismissed the complaint, in Roberts v. Boys & Girls Republic, Inc., which was decided on January 8, 2008.

According to the doctrine, a voluntary participant, spectator or bystander assumes those commonly appreciated risks which are inherent in the sport or activity and which follow from participation in it. A plaintiff also assumes risks attributable to any open and obvious condition of the place where the activity is taking place.

Under the doctrine, a defendant's duty is limited to exercising care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff will have effectively consented to them and the defendant will have performed its duty.

Here, the court said that a player's taking practice swings is an inherent part of the game, and that plaintiff assumed the risks entailed by her voluntary proximity to the game, including the risk of being hit by a swung bat. The court gave no effect to plaintiff's argument that she did not know anything about baseball, saying that she still should have appreciated the risk posed by a swung bat.

The court rejected plaintiff's claim that the hazard was somehow concealed or sprung upon her. The on-deck area was obviously and logically situated relative to the activity on the field; it was marked with equipment; and it was in virtually continuous use by players during the 90 minutes that plaintiff was at the field. Indeed, plaintiff testified that she saw numerous children in the area of the accident swinging bats when she arrived at the field, and again saw such activity from the bleachers as she watched her son's team practice.

Two justices dissented, at some length, saying that plaintiff's injury resulted not from a risk commonly associated with the game, but from a risk that was created as a direct result of defendant's permitting the use of this non-defined, non-designated on-deck circle off the field of play in an area open to the public where plaintiff had every right to be. They concluded that the assumption of risk doctrine does not preclude a recovery for negligent acts which unduly enhance such risks, and that is what they thought defendants did here.

Notice and causality.

The First Department affirmed Supreme Court's denial of defendant's summary judgment motion, in Ruiz v. 30 Real Estate Corp., which was decided on January 8, 2008. Defendant failed to satisfy its initial burden of making a prima facie case on its argument that the grease and garbage on the staircase in its building was not a proximate cause of plaintiff's fall. In plaintiff's deposition testimony, which defendant offered in support of its motion, plaintiff said that he alerted a member of defendant's staff to the condition of the staircase, and that he slipped on the grease that was still there more than 12 hours later. The court gave short shrift to evidence that plaintiff had been drinking prior to his fall, and also to defendant's argument that, if plaintiff saw that garbage was still on the stairs, he should have taken the elevator.

Late notice of claim.

The Second Department granted leave to serve a late notice of claim, pursuant to General Municipal Law § 50-e(5), in Hursala v. Seaford Middle School, which was decided on December 26, 2007. The court began by noting that (1) petitioners had demonstrated a reasonable excuse for failing to serve a timely notice; (2) defendant had actual knowledge of the essential facts of the claim within 90 days or a reasonable time thereafter; (3) the injured petitioner was an infant; and (4) the delay would not substantially prejudice a defense on the merits.

Specifically, the court found that petitioners demonstrated a reasonable excuse for the delay since they were unaware of the severity of the infant petitioner's ankle injury until eight months after the accident. Further, defendant will not be substantially prejudiced since all of the witnesses to the accident are known, and there will likely be no problem in interviewing them.

An administrative termination.

The First Department confirmed the Fire Commissioner's termination of petitioner, a former firefighter, and dismissed the proceeding, in Kirk v. City of New York, which was decided on January 3, 2008.

Petitioner tested positive for cocaine during a random drug test, and the Fire Department terminated his employment. Appellate Division found substantial evidence -- the evidentiary standard -- to support the termination, and gave short shrift to petitioner's argument that the Department's random drug testing policy is unconstitutional. Appellate Division also opined that the penalty of termination for substance abuse does not shock the court's conscience.

Appellate Division noted that while alcohol dependency qualifies as a disability under the Human Rights Law, pursuant to Executive Law § 292[21], drug abuse does not. Petitioner failed to establish that his drug abuse was causally related to his alcoholism, and thus did not state a prima facie case of employment discrimination under Executive Law § 296(1).

The statute of frauds.

Plaintiffs stated various causes of action based on an alleged unwritten contract for them to perform services and provide proprietary materials in order to secure clients seeking defendants' services. The First Department dismissed the complaint in its entirety, in Stanwich Consulting v. Etkin, which was decided on January 3, 2008.

The court said it was undisputed that plaintiffs' compensation was contingent on their finding paying clients for defendants. However, the complaint did not allege that plaintiffs ever found any such clients. In any event, the court said that the alleged oral contract was too indefinite to be enforceable, and was barred by the statute of frauds, pursuant to General Obligations Law § 5-701(10).

Infant plaintiff was struck by a vehicle which suddenly accelerated while the driver was parking it. In a previous negligence action, brought against the owner and the driver, Supreme Court granted plaintiffs' motion for summary judgment on the issue of liability. In deciding that motion, the court added that the driver's negligence was the "sole proximate cause" of infant plaintiff's injuries. The parties settled and an infant's compromise order was entered.

Two years later, infant plaintiff and his mother commenced this action against the dealership, asserting causes of action sounding in products liability and negligent repair. Supreme Court dismissed the complaint on the ground that the issue of liability was determined in the previous action, and said plaintiffs were collaterally estopped from asserting that anything other than that the driver's negligence caused the infant's injuries.

The Second Department reinstated the complaint, in Sneddon v. Koeppel Nissan, which was decided on December 26, 2007. Appellate Division noted that collateral estoppel, or issue preclusion, prohibits a party from relitigating an issue which was previously decided in a proceeding in which that party had a full and fair opportunity to fully litigate the identical issue. The key is that the issue must have been necessarily decided in the prior proceeding.

Here, said Appellate Division, the previous action found that the driver's negligence was a proximate cause of infant plaintiff's injury, to which infant plaintiff did not contribute. In this action, though, the issues are whether the alleged manufacturing defect or negligent repair of the vehicle were also proximate causes of infant plaintiff's injuries. The issues in the current action are discrete and not identical to those in the previous action, and so plaintiffs are not barred from litigating them.

Labor Law 240.

To recover on a cause of action pursuant to Labor Law § 240(1) and (6), a plaintiff must demonstrate that (1) there was a violation of the statute, and (2) the violation was a proximate cause of the accident, or so said the Second Department, in Gittleson v. Cool Wind Ventilation Corp., which was decided on December 26, 2007. The court found that plaintiff's injury was not caused by a statutory violation, but solely by plaintiff's own actions in choosing to use an improperly placed, unopened, and unsecured ladder rather than the one he had brought and used earlier that day. The court also found that plaintiff's injury resulted from his own method of operation, and that defendant had no authority to supervise or control the work, and so no liability attached under Labor Law § 200 or under a common-law negligence theory.

The First Department affirmed the denial of summary judgment to plaintiff on his cause of action under Labor Law § 240(1), in Boccia v. City of New York, which was decided on December 20, 2007. The court said there was an issue of fact as to whether plaintiff fell from the ladder because it "shifted" or "slipped" due to water, mud, concrete mortar and other debris on the ground, as plaintiff claims, or because of "wet concrete" or "wet cement" on his boots, as defendant claims. The court found that issue in the accident reports prepared by plaintiff's foreman, in plaintiff's presence, in which plaintiff said he slipped on the ladder because of a wet substance on his boots.

The First Department granted defendant's motion to strike two claims in plaintiff's bill of particulars, namely, that defendant (1) negligently failed to hire enough competent employees, and (2) failed to adhere to applicable ordinances, codes and statutes, in DeJesus v. New York City Housing Authority, which was decided on December 28, 2007.

Plaintiff tripped and fell on a sidewalk abutting premises controlled by defendant, and near an area that was used to recycle tenants' garbage. Plaintiff's notice of claim alleges that defendant was negligent by locking the area so that garbage accumulated on the sidewalk, in not providing another location for tenants to dispose of their garbage, and in failing to maintain and inspect the area. There was nothing in the notice of claim about defendant's negligent failure to hire enough employees and to ensure their competence. Accordingly, this is a new theory of liability that must be stricken from the bill of particulars.

Regarding the allegation that defendant failed to adhere to applicable ordinances, codes and statutes, the court said this was a vague and open-ended assertion which amplified nothing in the notice of claim, and that it too must be stricken from the bill of particulars.

Plaintiff -- who was defendant-college's only full-time corporate recruiter -- was fired after injuries she suffered in a car accident made her unable to make recruiting trips to Staten Island. She sued, alleging violations of the New York State and City Human Rights Law, but the First Department dismissed her complaint, in Jones v. Saint Joesph's College, which was decided on December 27, 2007. The court found record evidence that recruiting trips to Staten Island were an essential function of the job, and determined that plaintiff's suggested accommodation of assigning Staten Island recruiting trips to other employees was unreasonable. The court gave short shrift to plaintff's contention that the firing was based on animus.

The First Department reversed the motion court's granting of summary judgment on tenant-plaintiff's cause of action for breach of the implied warranty of habitability, in Armstrong v. Archives L.L.C., which was decided on December 27, 2007. The court also reversed the declaratory judgment that plaintiff had rightfully terminated her lease and is not liable for further rent, and reinstated landlord-defendant's affirmative defenses and counterclaim.

The court said that defendant's affidavits raised material issues of fact as to whether the alleged noise from a neighboring apartment was so excessive that plaintiff was deprived of the essential functions of the residence. Plaintiff's showing of numerous complaints does not establish a breach, and defendant's notice of cure reciting the dates and substance of noise complaints against the offending tenant does not constitute a conclusive admission that the noise rose to the level of constituting a breach. Additionally, plaintiff's claim that defendant did nothing to address her complaints is contradicted by evidence that defendant's agents, including a porter and doormen, assisted plaintiff on many occasions by calling the offending tenant and going to his apartment in response to her complaints and setting up meetings to explore her relocation options to another apartment in the building. In addition, defendant's counsel wrote letters to, and served a notice to cure upon, the offending tenant.