Claims against an individual defendant as an employer, not as a corporate officer.

Practice point: While there is no private right of action against corporate officers for violations of Labor Law's Article 6, plaintiffs brought suit against the individual defendant as an employer, not as a corporate officer, and so their claims were not precluded. Plaintiffs also were allowed to assert claims against him for violations of the New York Minimum Wage Act and its implementing regulations, including 12 NYCRR 142-2.2. Under the Act, the individual defendant may be liable for failure to properly compensate plaintiffs if he was their employer, or if plaintiffs show that the corporate veil should be pierced. Here, plaintiffs alleged in their complaint that, during their employment with the corporation, the individual defendant exercised control of the day-to-day operations and that he was their employer under New York law. They also submitted a plaintiff's affidavit stating that the individual defendant hired and fired employees, supervised and controlled employees' work schedules, determined the method and rate of pay, kept employment records, and approved vacations.

Student note: At this pre-answer juncture, and upon consideration of the economic realities of the case, plaintiffs have stated a cause of action against the individual defendant as an employer within the meaning of Labor Law §§ 190(3) and 651(6). Accordingly, plaintiffs were not required to show that the corporate veil should be pierced or allege that the individual defendant exercised complete domination and control over the corporation.

Case:  Bonito v. Avalon Partners, NY Slip Op 03775 (1st Dept. 2013).

Here is the decision.

Monday's issue: Tolling the statute of limitations in a legal malpractice action.

A motion to vacate a default judgment.

Practice point:  The Appellate Division determined that the Supreme Court improvidently exercised its discretion in granting the motion of the defendant South 4th Street Condos, LLC, to vacate, as against it, a default judgment. Pursuant to CPLR 317, a defendant is entitled to vacatur of a default judgment if it is established that the defendant did not receive personal notice of the summons in time to defend and has a potentially meritorious defense. Here, South 4th established that it did not receive personal notice of the summons in time to defend. However, while there was no evidence that it deliberately attempted to avoid notice, it failed to show a potentially meritorious defense to the plaintiffs' Labor Law § 240 cause of action.

Student note:  The decision to set aside a default in answering is left to the sound discretion of the Supreme Court, and its determination likely will not be disturbed if there is support in the record.

Case:  Dias v. North True Constr. Mgt., LLC, NY Slip Op 03631 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Claims against an individual defendant as an employer, not as a corporate officer.

Slips and falls.

Practice point:  A plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation. Here, the moving defendants established their prima facie entitlement to judgment as a matter of law by submitting, among other things, the plaintiff's and her husband's deposition testimony which demonstrated that the plaintiff could not identify the cause of her fall without resorting to speculation. Although the plaintiff claimed that a bar connected to the bottom step of the bus caused her to trip, she acknowledged that she did not see this bar before her fall, and that she did not know which foot made contact with the bar. She stated that she only assumed that she had tripped on the bar after she regained consciousness and went looking for the source of the fall.

Student note: The settled law is that "[w]here it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a slip and fall accident, any determination by the trier of fact as to causation would be based upon sheer conjecture." Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 435.

Case:  Deputron v. A & J Tours, NY Slip Op 03629 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A motion to vacate a default judgment.

Retaliation and harassment claims.

Practice point:  It is unlawful to retaliate against an employee for having opposed statutorily forbidden discriminatory practices. Here, the defendants demonstrated that the claimant could not make out a prima facie case of retaliation by showing that the employee's complaints to her supervisors did not relate to statutorily forbidden discriminatory practices, and that she, therefore, had not engaged in protected activity. The cause of action alleging harassment was dismissed inasmuch as New York does not recognize a common-law cause of action to recover damages for harassment.

Student note:  To make a prima facie showing of retaliation under Executive Law § 296, a claimant is required to show that (1) the claimant was engaged in protected activity, (2) the claimant's employer was aware that he or she participated in such activity, (3) the claimant suffered an adverse employment action based upon his or her activity, and (4) there was a causal connection between the protected activity and the adverse action. Once this initial showing is made, the burden then shifts to the defendant to present legitimate, independent, and nondiscriminatory reasons to support its actions. Assuming the defendant meets this burden, the claimant would then have the obligation to show that the reasons put forth were merely a pretext.

Case:  Adeniran v. State of New York, NY Slip Op 03441 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Slips and falls.

Memorial Day.

For my generation's midwestern families who bore the cost, one station of their cross likely was a kitchen table at which sit a mother and dad, not because they're hungry though they haven't eaten since early morning, but because it's familiar, where they'd always sat and talked, all of them, going all the way back to when the kids were kids. It's late into the night of the day they got word that a son was killed in service, and they're reading aloud his letters, all of which they'd kept, the frank hand-written "Free," citing now-recognizable place-names they'd never even imagined just six months ago, and almost always closing with the well-intentioned, if unavailing, counsel, "Don't worry."

A valid release.

Practice point:  A valid release constitutes a complete bar to an action on a claim which is the subject of the release. Where the language is clear and unambiguous, the release is binding on the parties unless it is shown that it was procured by fraud, duress, overreaching, illegality or mutual mistake.

Student note:  A release will not be treated lightly because it is a a jural act of high significance without which the settlement of disputes would be rendered all but impossible.

Case:  Allen v. Riese Org., Inc., NY Slip Op 03547 (1st Dept. 2013).

Here is the decision.

Tuesday's issue: Retaliation and harassment claims.

Real estate commissions and bonus contracts with unlicensed persons.

Practice point:  The court determined that the action was not barred by Real Property Law § 442-d, which provides that an unlicensed person may not bring an action to recover a commission for facilitating the sale of real estate. The contract between the parties did not provide for plaintiff, who is not a licensed real estate broker, to receive a commission based on the sale of the property. Rather, it provided that, upon the sale of the property at a specified minimum selling price, plaintiff would be paid a bonus for, among other things, past management services rendered by him. In addition, although plaintiff was motivated to see the property sell above the minimum price, he was not the procuring cause of the real estate transaction. Defendant retained and paid a real estate broker to sell the property.

Student note:  The court also determined that plaintiff's breach of contract claim was not barred by the statute of limitations. The alleged breach for nonpayment under the terms of the contract did not occur until the property was sold, less than six years before the action was commenced (see CPLR § 213).

Case:  Glynos v. Dorizas, NY Slip Op 03414 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: A valid release.

Police officers' statements and a duty of care.

Practice point:  Defendants' motion for summary judgment dismissing the complaint was granted. In the absence of any evidence that defendants assumed an affirmative duty to protect plaintiff from attacks by her husband, defendants do not owe a duty of care to plaintiff. The statements allegedly made by police officers and other employees of defendants - that plaintiff's husband would spend time in jail, and that the police would provide protection of an unspecified nature - were too vague to constitute promises giving rise to a duty of care.

Student note:  The lack of any such duty also warranted the dismissal of the infant plaintiff's claim for negligent infliction of emotional distress.

Case:  Coleson v. City of New York, NY Slip Op 03409 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:  Real estate commissions and bonus contracts with unlicensed persons.

An allegedly defective staircase.

Practice point: Defendant established its entitlement to judgment as a matter of law where plaintiff was injured when he slipped and fell on a worn marble tread as he was going down the stairs in defendant's building. The worn marble tread is not an actionable defective condition, and, other than stating that he slipped, plaintiff was unable to explain the cause of his fall. He expressly said that he did not slip on any dirt or debris that may have been present.

Student note: The fact that defendant's superintendent was aware that the marble step was worn is irrelevant where the alleged defective condition is not actionable. In addition, the opinion of plaintiff's expert that the steps were worn and could cause one to slip is speculative, and plaintiff cited no applicable Building Code violations connecting his injuries to any alleged defective condition.

Case:  Sims v. 3349 Hull Ave. Realty Co., LLC, NY Slip Op 03398 (1st Dept. 2013).

Here is the decision.

 Tomorrow's issue: Police officers' statements and a duty of care.

Proving personal jurisdiction.

Practice point:  In opposing a motion to dismiss pursuant to CPLR 3211(a)(8), on the ground that discovery on the issue of personal jurisdiction is necessary, a plaintiff need not make a prima facie showing of jurisdiction, but must only set forth a sufficient start and show that its position is not frivolous.

Here, plaintiff's president's affidavit established that facts may exist to support the exercise of personal jurisdiction over the defendant, and thus the plaintiff made a sufficient start in showing that further discovery on the issue of personal jurisdiction is warranted. Under those circumstances, the Supreme Court should have exercised its discretion pursuant to CPLR 3211(d) to deny the motion without prejudice to renew upon the completion of such discovery.

Student note:  The jurisdictional issue is likely to be complex. Discovery is desirable and may be essential, and likely will lead to a more accurate judgment than one made solely on the basis of inconclusive preliminary affidavits.

Case:  Expert Sewer & Drain, LLC v. New England Mun. Equip. Co., Inc., NY Slip Op 03298 (2d Dept. 2013). 

Here is the decision. 

Tomorrow's issue: An allegedly defective staircase.

A mistake in a notice of claim.

Practice point:  In this trip and fall action, plaintiff's notice of claim listed the wrong street address (390 Central Park West rather than 360 Central Park West) in describing the location of her fall on a sidewalk, adjacent to Central Park, and across the street from that address. However, plaintiff also annexed a photograph to the notice of claim which depicted the intersection of Central Park West and 96th Street, which is nearly four blocks south of the incorrect address provided in the notice of claim, and the written description of the location in the notice was consistent with the area depicted in the photograph. Moreover, at the statutory hearing held six weeks after the notice was served, and three and a half months after the accident, plaintiff explicitly testified that her accident occurred on the sidewalk just a few car lengths south of the 96th Street intersection, and identified the location in the photograph as also shown. In addition, less than five months after the hearing, plaintiff served the summons and complaint, providing the proper street address. Under these circumstances, the Appellate Division found that the mistake in the notice was not made in bad faith, nor was it intended to mislead or confuse the City, and so it should have been disregarded or plaintiff should have been allowed to correct the notice pursuant to GML § 50-e(6).

Student note:  Municipalities must put forth at least a modicum of effort to investigate a notice of claim and to obtain missing information.  Here, defendant never sent anyone to investigate the scene depicted in the photograph, and did not perform a computerized record search of the incorrect address until more than two years after being apprised of the correct location at the hearing. Although plaintiff served a bill of particulars six months before the computer search with the same typographical error in the address, defendant still made no effort to ascertain which of the two locations was correct. In any event, plaintiff's discovery responses, served less than one week after this computer search, provided additional photographs showing the sidewalk defect at issue, and a building awning with the street number "360" is clearly visible directly across the street in the background. Moreover, defendant engaged in settlement discussions just a few months later, during which the actual accident location was discussed, and did not file the instant motion alleging confusion as to the accident location until nearly a year and a half later - one week after entering into a so-ordered stipulation to provide discovery for the proper location that was explicitly set forth in the order.

Case:  Green v. City of New York, NY Slip Op 03382 (1st Dept. 2013).

Here is the decision.

Monday's issue: Proving personal jurisdiction.

Ambiguous writings.

Practice point:  When a term or clause is ambiguous, the parties may submit extrinsic evidence as an aid in construction, and the resolution of the ambiguity is for the trier of fact.

Student note:  Whether a writing is ambiguous is a question of law to be resolved by the courts. There is ambiguity if the language is written so imperfectly that it is susceptible to more than one reasonable interpretation

Case:  Dobbs v. North Shore Hematology-Oncology Assoc., P.C., NY Slip Op 03295 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  A mistake in a notice of claim.

Homeowner's liability for negligent snow and ice removal.

Practice point:  Since the defendants' property, a two-family house, was owner-occupied and used exclusively for residential purposes, the defendants were exempt from liability imposed pursuant to Administrative Code of the City of New York § 7-210(b) for negligent failure to remove snow and ice from the sidewalk. Thus, the defendants may be held liable for a hazardous snow and ice condition on the sidewalk only if they undertook snow and ice removal efforts that made the naturally occurring condition more hazardous or caused the defect to occur because of a special use.

Student note: Unless one of these factors is present, an abutting owner of a two-family residence may not be held liable for the removal of snow and ice in an incomplete manner.

Case: Rodrigo Texis Cuapio v. Skrodzki, NY Slip Op 03293 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Ambiguous writings.

Motions for an extension of time and reargument.

Practice point: Defendants failed to offer a plausible excuse as to why they failed to secure a sworn statement from plaintiff's foreman although 2½ years had transpired since plaintiff's deposition where defendants learned of the foreman's involvement at the accident site. Accordingly, the court denied defendants a further extension of the time in which to file their summary judgment motion so as to permit them to obtain and incorporate such statement in the motion.

Student note: Since defendants failed to show any new facts which were not previously considered by the court on the original motion, their motion to renew and reargue was actually one for reargument only, the denial of which is nonappealable.

Case: Garcia v. New York Times Co., NY Slip Op 03380 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Homeowner's liability for negligent snow and ice removal.

Defects too trivial to be actionable.

Practice point:  Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable. Here, the photographs submitted by the school district depict a lengthy crack in the pavement which was at least ¾ of an inch deep and approximately 4 inches wide at the specific site of the accident. Given the high-traffic location of the occurrence, the length, depth, width, and irregularity of the defect, and the circumstances of the accident as set forth in witness testimony, the school district failed to meet its prima facie burden of establishing that the defect was trivial and nonactionable as a matter of law.

Student note: In determining whether a defect is trivial, courts must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect, and the time, place, and circumstances of the accident. There is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable.

 Case:  Brenner v. Herricks Union Free Sch. Dist., NY Slip Op 03290 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Motions for an extension of time and reargument.

Affidavits, and hearsay in opposition to summary judgment.

Practice point: Plaintiff alleged that he fell and sustained injuries when the ladder on which he was standing while painting a foyer outside third-party defendant's apartment twisted and then slipped out from underneath him. However, the affidavit of the third-party defendant, who hired plaintiff's employer and was in his apartment at the time of the accident, states that no ladders were being used on the project on the date of the alleged accident. Accordingly, the affidavit raised an issue of fact concerning whether plaintiff's accident occurred as alleged. In addition, defendant submitted medical reports wherein plaintiff was quoted as providing a different description of the accident from that alleged.

Student note: Even if the reports are hearsay, they may be submitted in opposition to plaintiff's motion, and may bar summary judgment when considered in conjunction with other evidence.

Case: Marquez v. 171 Tenants Corp., NY Slip Op 03174 (1st Dept. 2013).

Here is the decision.

Monday's issue: Defects too trivial to be actionable.

Disqualification during litigation.

Practice point: Where a party seeks to disqualify its adversary's counsel during litigation, courts consider when the challenged interests became materially adverse in order to determine if the party could have moved at an earlier time. If the moving party was aware, or should have been aware, of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the representation. What is more, if the moving party knew of the alleged conflict of interest well before making the motion, it may be inferred that the motion was made merely to secure a tactical advantage.

Student note:  The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination. Whether to disqualify an attorney is a matter which lies within the sound discretion of the court.

Case: Hele Asset, LLC v. S.S.E. Realty Assoc., NY Slip Op 03061 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Affidavits, and hearsay in opposition to summary judgment.

Expert testimony and liability in a medical malpractice action.

Practice point: Liability is not supported by an expert offering only conclusory assertions and mere speculation that the condition could have been discovered and successfully treated had the doctors not deviated from the accepted standard of medical practice.

Student note: Failing to investigate an otherwise unindicated disease is not malpractice.

Case: Curry v. Dr. Elena Vezza Physician, P.C., NY Slip Op 03163 (1st Dept. 2013).

 Here is the decision.

Tomorrow's issue: Disqualification during litigation.

Constructive trusts.

Practice point: The ultimate purpose of a constructive trust is to prevent unjust enrichment, and it will be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest.

Student note: The elements of a constructive trust are a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjust enrichment. These requirements, however, are not to be rigidly applied.

Case:  Broderson v. Parsons, NY Slip Op 03050 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Expert testimony in a medical malpractice action.

Amending bills of patriculars, and opposing summary judgment.

Practice point: A party may amend its bill of particulars once as of course before the filing of the note of issue, pursuant to CPLR 3042[b].. Here, when plaintiff served his amended bill of particulars, the court had vacated the original note of issue. A second note of issue had not been filed, and plaintiff had not yet amended his bill of particulars. Therefore, plaintiff properly served his amended bill of particulars without obtaining leave from the court.

Student note:  An affidavit submitted in opposition to a motion for summary judgment does not raise a triable issue of fact where the affidavit can only be considered to have been tailored to avoid the consequences of . . . earlier testimony. A court can infer dishonest intent where there is no supporting evidence for the contradictory affidavit. However, evidence in the record apart from the affidavit itself can raise a triable issue of fact, notwithstanding contradictory deposition testimony.

Case: Fields v. Lambert Houses Redevelopment Corp., NY03027 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Constructive trusts.

Transit employees and onlooker liability.

Practice point: Public Authorities Law § 1212(3) imposes liability upon the Transit Authority for the negligence of its employees in the operation of the subway system. Although it is a common carrier, the Transit Authority is held to a duty of ordinary care under the particular circumstances of each case. In Crosland v New York City Tr. Auth., 68 NY2d 165 [1986], the Court of Appeals held that the Transit Authority could be held liable for the negligent failure of its employees to summon aid as they watched a gang of thugs fatally assault a passenger. "Watching someone being beaten from a vantage point offering both safety and the means to summon help without danger is within the narrow range of circumstances which could be found to be actionable." id. at 170 [citation omitted]

Here,  plaintiffs were police officers who were injured in a subway station while a perpetrator struggled to resist their attempt to arrest him. The arrest stemmed from a criminal act that was committed in the street in plaintiffs' presence. The perpetrator fled and was chased by plaintiffs into the subway station. Upon entering the station plaintiffs, who were in plainclothes, displayed their shields and asked the station agent to call for backup support. At the time, the agent was inside a locked token booth that was equipped with an Emergency Booth Communication System (EBCS) that would have enabled him to summon help by pressing a button or stepping on a pedal. Both plaintiffs were injured when the perpetrator put up a fierce and protracted struggle to resist arrest. The agent watched the struggle from his token booth and did not activate the EBCS or make any other attempt to summon help. Plaintiffs' theory was that the agent's failure to call for help constituted negligence which was a proximate cause of their injuries. The trial court granted the Transit Authority's motion for judgment, finding that the agent was under no duty to call for any assistance to plaintiffs. The Appellate Division reversed.

Student note: The broad definition of onlooker liability articulated by the Crosland Court does not lend itself to any exception based upon an injured party's status as a police officer. To be sure, General Obligations Law § 11-106 gives police officers as well as firefighters, who are injured in the line of duty, a distinct right of action against tortfeasors that cause such injuries. Here, plaintiffs' recovery was not barred by their status as police officers and the Transit Authority's liability was established at trial.

Case: Filippo v. New York City Tr. Auth., NY Slip Op03025 (1st Dept. 2013).

Here is the decision.

Monday's issue: Amending bills of particulars, and opposing summary judgment.

Motions to dismiss, and statutes of limitations.

Practice point:  On a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. Here, defendant submitted documentary evidence in the form of the employment application, which demonstrated that the plaintiff contractually agreed to commence any lawsuit no more than six months after the date of the employment action that was the subject of the claim. Since the plaintiff commenced this action more than six months after the date his employment was terminated,that claim was dismissed.

Student note: The parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations. Absent proof that the contract is one of adhesion or the product of overreaching, or that the altered period is unreasonably short, the abbreviated period of limitation will be enforced.

Case: Hunt v. Raymour & Flanigan, NY Slip Op 02715 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Transit employees and onlooker liability.

A fall from a scaffold.

Practice point:  Plaintiff was injured when he fell after the six-foot baker's scaffold upon which he was  working shifted, despite the fact that he had locked the wheels; it is undisputed that the scaffold lacked guardrails. Such evidence establishes that plaintiff's injuries were proximately caused by defendants' failure to provide proper protection against the elevation-related risk.

Student note: Given that the scaffold was inadequate in the first instance, any failure by plaintiff to hydrate himself could not be the sole proximate cause of his injuries.

Case: Vail v. 1333 Broadway Assoc., L.L.C., NY Slip Op 02821 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Motions to dismiss, and statutes of limitations.