Struck in the crosswalk, and a motion to renew.

Practice point:  Plaintiff established entitlement to judgment on liability as a matter of law by submitting evidence demonstrating that she was crossing the street, within the crosswalk, with a "walk" sign in her favor, when defendants' vehicle, which was making a left turn, struck her. The affidavits from the nonparty eyewitnesses and the police report confirm plaintiff's version of the accident.

Defendants failed to raise a triable issue of fact as to comparative negligence. Plaintiff averred that she looked both ways before entering the intersection and continued to look for traffic as she crossed the street, and that she could not have avoided the accident because she only noticed defendants' vehicle, which was moving quickly, a "split second" prior to being struck. Contrary to the assertion of defendant driver, the position of plaintiff's body after impact is not probative as to whether she was walking in the cross-walk prior to being struck.

Student note:  Plaintiff's motion was considered one for renewal, since she submitted a properly notarized affidavit of a nonparty witness, thereby correcting an error in the original papers. The court has discretion to relax the requirement that a motion to renew be based on newly discovered evidence or evidence not previously available, and to grant such a motion in the interest of justice, absent prejudice to the opposing party resulting from any delay.

Case:  Hines v. New York City Tr. Auth., NY Slip Op 08527 (1st Dept. 2013).

Here is the decision.

Thursday's issue: Liability for an independent contractor's negligence.

Discovery sanctions.

Practice point:  As a sanction against a party who refuses to obey an order for disclosure or wilfully fails to disclose information which should have been disclosed, a court may issue an order, among other things, prohibiting the disobedient party from producing in evidence designated things or items of testimony or striking out pleadings, pursuant to CPLR 3126[2], [3].

Student note:  However, a court may invoke the drastic remedy of striking a pleading only upon a clear showing that the failure to comply with court-ordered discovery was willful and contumacious.

Case:  Holloway v. Station Bar Corp., NY Slip Op 08408 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Struck in the crosswalk, and a motion to renew.

A common-law tort action against a municipality.

Practice point: The court granted the defendants' motion to dismiss based on his failure to allege in the notice of claim the date or time when his claim against the defendants arose. The plaintiff's failure to so allege with sufficient particularity frustrated the defendants' ability to conduct a meaningful investigation into his claim and to assess its merits.

Student note:  Compliance with the notice of claim requirements set forth in General Municipal Law § 50-e(2) is a condition precedent to the commencement of a common-law tort action against a municipality.

Case:  Forster v. City of New York, NY Slip Op 08406 (2d Dept. 2013).

Here is the decision.

Monday's issue: Discovery sanctions.

Workers' Comp.

Practice point:  Workers' Compensation Law §§ 11 and 29(6), which protects employers against lawsuits brought by injured workers, extends to entities which are alter egos of the entity which employs the plaintiff.  A defendant moving for summary judgment under this theory may establish itself, prima facie, as the employer's alter ego by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity.

Student note:  A parent corporation may be deemed to be an employer of an employee of a subsidiary corporation for Workers' Compensation purposes if the subsidiary functions as the alter ego of the parent. However, a mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other.

Case:  Batts v. IBEX Constr., LLC, NY Slip Op 08394 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A common-law tort action against a municipality.

Merry Christmas.

The courts are closed to mark Christmas Day.

 

 Tomorrow's issue:  Workers' Comp.

An application for a continuance.

Practice point:  It is an improvident exercise of discretion to deny a continuance where the application is properly made, is not made for the purpose of delay, the evidence is material, and the need for a continuance did not result from the failure to exercise due diligence.

Student note:  An application for a continuance or adjournment is addressed to the sound discretion of the trial court, and the grant or denial thereof will be upheld on appellate review if the trial court providently exercised its discretion.

Case:  Black v. St. Luke's Cornwall Hosp., NY Slip Op 08223 (2d Dept. 2013).

Here is the decision.

Thursday's issue: Workers' Comp.

Apportioning responsibility for marital debt.

Practice point:  Generally, expenses incurred prior to the commencement of an action for a divorce are marital debt to be equally shared by the parties upon an offer of proof that they represent marital expenses.

Student note:  Equitable distribution does not necessarily mean equal distribution, and the court may consider the entirety of the marital estate in apportioning responsibility for marital debt.

Case:  Augustin v. Bullen, NY Slip Op 08221 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: An application for a continuance.

Lights out.

Practice point:   Absent a hazardous condition or other circumstance giving rise to an obligation to provide exterior lighting for a particular area, landowners are generally not required to illuminate their property during all hours of darkness.

Student note:  A landowner has a duty to maintain his or her premises in a reasonably safe condition to prevent foreseeable injuries. The scope of such duty is determined in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.

Case:  Assefa v. Bam, NY Slip Op 08220 (2d Dept. 2013).

Here is the decision.

Monday's issue: Apportioning responsibility for marital debt.

Turn it down.

Practice point:  The Appellate Division found substantial evidence in the record to support the determination that the petitioner violated the New York City Noise Control Code (Administrative Code § 24-231[a][2]) by allowing music from his store to reach an audible level inside the upstairs apartment of 50-51 decibels (dB), exceeding the 45 dB permissible limit in a frequency of 100 hertz (Hz).

The court found that it was irrelevant that the inspector used the one-third octave noise meter for the first time at this inspection site as he testified that he had previously received two days of training in its use and knew how it worked, and that it worked similarly to other noise meters. That the investigator was directed to contact his supervisor after taking the readings, rather than issue a violation immediately, does not render the measurements inherently suspect.

The court found no merit to the argument that the inspector deviated from standard procedure by testing the noise level at 100 Hz, a frequency not on the preprinted form as the form notably leaves room for an additional reading at another frequency. Petitioner's contention that the inspector should have taken lengthier readings of the ambient sound level when the music was off because the meter might have recorded a higher decibel level over time, was considered and properly rejected by the Administrative Law Judge. The inspector stated that a longer reading could have shown a higher level, but that his three readings taken within one minute were consistent at 43 dB. In any event, a reading of 43 dB is a full two decibels lower than the maximum ambient level allowed of 45 dB.

Student note:  Because there is in the whole record substantial evidence for the Administrative Law Judge's determination that petitioner violated the Noise Code, judicial review is at an end.

Case:  Matter of Zabari v. New York City Dept. of Envtl. Protection, NY Slip Op 08201 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Lights out.

A claim of false arrest and malicious prosecution.

Practice point:  Probable cause to believe that a person committed a crime is a complete defense to claims of false arrest and malicious prosecution.

Student note: The existence or absence of probable cause becomes a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn surrounding the arrest.

Case:  McDonald v. Town of Greenburgh, NY Slip Op 08054 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Turn it down.

A claim of disability-based employment discrimination.

Practice point:  Plaintiff's claims of disability-based employment discrimination were dismissed for failure to point to evidence raising an inference of discriminatory animus.  Remarks by hospital to the effect that she had "brought her situation upon herself" and that she should "take her assets elsewhere" were not of themselves derogatory or indicative of discriminatory animus. Neither does plaintiff's testimony that unidentified persons laughed at her behind her back raise an issue of fact as to such animus.

Student note:  Stray remarks in the worplace, even if made by a decision maker, do not, in and of themselves, constitute evidence of discrimination.

Case:  Serdans v. New York & Presbyt. Hosp., NY Slip Op 08133 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: A claim of false arrest and malicious prosecution.

A school's liability for a gym-class injury.

Practice point:   The infant plaintiff's affidavit was sufficient to raise a triable issue of fact in opposition to the school's motion for summary judgment. At her deposition and in her affidavit, the infant plaintiff stated that on the day of the accident, she was experiencing "pain and instability" in her ankle, and that she made complaints concerning this condition to the teacher who was supervising the gym class. The infant plaintiff further averred that, despite her complaints, the teacher insisted that she continue to participate in the gym exercises and that, as a result, she thereafter fell and sustained injuries.

Student note:   Schools have a duty to adequately supervise children in their charge, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. Although it is not an insurer of children's safety, a school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent.

Case:  Anastasiya M. v.  New York City Bd. of Educ., NY Slip Op 08053 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A claim of disability-based employment discrimination.

An untimely summary judgment motion.

Practice point:  Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, defendant was required to make his motion for summary judgment no later than 60 days after the filing of the note of issue, unless he obtained leave of the court on good cause shown. Here, defendant moved for summary judgment 67 days after the note of issue was filed and failed to demonstrate, in his moving papers, good cause for not filing the motion before the expiration of the 60-day deadline.

Student note:  The Appellate Division will not consider the "good cause" arguments raised for the first time in defendant's reply papers.

Case:  Goldin v. New York & Presbyt. Hosp., NY Slip Op 08047 (2d Dept. 2013).

Here is the decision.

Monday's issue: A school's liability for a gym-class injury.

An untimely notice of claim.

Practice point:  Petitioner's contention that he failed to timely file the notice because he was unaware of the extent of his injuries is unavailing as the record shows that he stopped working the day of the injury and subsequently filed a claim for Workers' Compensation. Even accepting petitioner's assertion that he did not know that he required surgery until May, he failed to explain why he waited until August to serve the notice. In addition, petitioner did not demonstrate that the agency acquired actual notice of the essential facts within 90 days after the claim arose or a reasonable time thereafter. The report prepared shortly after the accident did not give the agency actual knowledge of the facts constituting the claim alleging liability under the Labor Law as it fails to connect the incident to any claim against the agency.  It merely states that petitioner was injured while lifting plywood at the school, and makes no mention of petitioner's present allegations that the scaffolding and the flooring were not properly secured;  he was not equipped with proper safety devices; and on-site personnel were inadequately trained.

Student note:   Ignorance of the requirements of General Municipal Law § 50-e is not a reasonable excuse for failure to timely file a notice.

Case:  Mehra v. City of New York, NY Slip Op 08019 (1st  Dept. 2013)

Here is the decision.

Tomorrow's issue: An untimely summary judgment motion.

Premature dismissal of common-law negligence and Labor Law claims.

Practice point:  The court found that plaintiff's common law negligence and Labor Law claims were prematurely dismissed before depositions were taken. The contractual provisions requiring defendant to supervise and control the work, although not in themselves sufficient to justify holding the defendant liable for the alleged inadequacy of the ladder in question, do furnish cause to believe that further discovery may lead to evidence that the defendant's employees exercised actual supervision or control over the worksite, so as to implicate the claims. Defendant's submission of affidavits broadly disclaiming any supervisory control over plaintiff's work were insufficient to establish defendant's entitlement to judgment as a matter of law.

Student note:   The court also found that conflicting affidavits raise an issue of fact as to whether a bailment was created by defendant's loan of the allegedly defective ladder to plaintiff.  Such a bailment could give rise to liability for common-law negligence if the defendant provided plaintiff with dangerous equipment even if its defect was evident.

Case:  Rodriguez v. Coalition for Father Duffy, LLC, NY Slip Op 08007 (2d Dept. 2013)

 Here is the decision.

Tomorrow's issue: An untimely notice of claim.

Being true to your school goes both ways.

Practice point:  There is an implied contract between a school and its students such that if a student complies with the terms prescribed by the school, he or she will obtain the degree which he or she sought. The essence of the contract is that an academic institution must act in good faith in its dealings with its students. The parties' rights and obligations, as specified in the school's bulletins, circulars and regulations made available to students, become a part of the contract.

Student note: A cause of action based solely on the school's academic and administrative decision must be commenced in an Article 78 proceeding.

Case:  Clogher v. New York Medical Coll., NY Slip Op 08043 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Premature dismissal of common-law negligence and Labor Law claims.

Deposition testimony, hearsay, and summary judgment.

Practice point:  Defendant demonstrated his prima facie entitlement to judgment as a matter of law by showing that his car was struck in the rear by plaintiff's decedent's car, and in response, plaintiff failed to provide a nonnegligent explanation, in evidentiary form, for the collision.

The transcripts of the deposition testimony of two police officers who testified in a related action are hearsay as to defendant, since he was not notified about the deposition, nor present for the testimony, pursuant to CPLR 3117[a][3].

Student note:  Hearsay may be used to defeat summary judgment as long as it is not the only evidence submitted in opposition. Here, however, plaintiff submitted no other admissible evidence as to the circumstances of the accident.

Case:  Rugova v. Davis, NY Slip Op 08003 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:  Being true to your school goes both ways.

A deed conveying real property as security.

Practice point:  Real Property Law § 320 provides, in pertinent part, that a "deed conveying real property, which, by any other written instrument, appears to be intended only as a security in the nature of a mortgage, although an absolute conveyance in terms, must be considered a mortgage." In determining whether a deed was intended as security, examination may be made not only of the deed and a written agreement executed at the same time, but also of oral testimony bearing on the intent of the parties and to a consideration of the surrounding circumstances and the parties' acts.

Student note:  A court of equity will treat a deed, absolute in form, as a mortgage, when it is executed as a security for a loan of money. That court looks beyond the terms of the instrument to the real transaction; and when that is shown to be one of security, and not of sale, it will give effect to the parties' actual contract.

Case:  Bouffard v. Befese, LLC, NY Slip Op 07925 (2d Dept. 2013).

Here is the decision.

Monday's issue: Deposition testimony, hearsay, and summary judgment.

CPLR 305(c).

Practice point:  CPLR 305(c) authorizes the court to "allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced."  Where the motion is to cure a misnomer in the description of a party-defendant, it should be granted even after the statute of limitations has run where (1) there is evidence that the correct defendant, misnamed in the original process, was, in fact, properly served, and (2) the correct defendant would not be prejudiced by granting the amendment.

Student note: While CPLR 305(c) may be used to cure a misnomer in the description of a party-defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served.

Case:  Associated Geriatric Info. Network, Inc. v Split Rock Multi-Care Ctr., LLC, NY Slip Op 07922 (2d Dept. 2013)

Here is the decision. 

Tomorrow's issue: A deed conveying real property as security.

Applicability of the emergency doctrine.

Practice point:  Defendants established their entitlement to judgment as a matter of law by demonstrating the applicability of the emergency doctrine in this action where plaintiff was injured when the bus in which she was a passenger stopped suddenly, hurling her forward into the windshield. Defendants submitted evidence showing that, shortly after the bus had started to move after being stopped at a traffic light, a car drove around the bus erratically and at a high rate of speed, cutting the bus off so closely that the car's rear bumper came within an inch of striking the bus' front bumper. Defendant bus driver was forced to stop suddenly in order to avoid colliding with the car.

Student note: Plaintiff's assertion, in her opposition affidavit, that no car cut the bus off at any time prior to the accident was unavailing as it contradicted her deposition testimony.

Case:  Orsos v. Hudson Tr. Corp., NY Slip Op 097839 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: CPLR 305(c).

CPLR 3211(a)(7).

Practice point:  On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.  However, bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true.

Student note: Where evidentiary material is submitted and considered on the motion, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one.  Unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the motion will not be granted.

Case:  Gersher v. Ejamal, NY Slip Op 07447 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Applicability of the emergency doctrine.

"Walk" and "Don't walk."

Practice point:  Pursuant to Vehicle and Traffic Law § 1112, a pedestrian who proceeds across a roadway in the direction of a steady "walk" signal must be given the right of way by traffic.

Student note: A pedestrian who proceeds into a roadway with a "walk" signal, but only partially completes the crossing on the "walk" signal, may proceed to a sidewalk on the flashing or steady "don't walk" signal, pursuant to Vehicle and Traffic Law § 1112[b], [c].

Case:  DiDonna v. Houck, NY Slip Op 97446 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: CPLR 3211(a)(7).