Triable issues of fact on a Labor Law claim.

Practice point:  The Appellate Division found in the record triable issues of fact as to how plaintiff's accident occurred, and, therefore, it cannot be concluded, as a matter of law, that the alleged failure to provide him with proper protection proximately caused his injuries. Plaintiff testified that he "fell backwards and the ladder forward," and submitted an affidavit in which he stated that the ladder suddenly went forward and he simultaneously fell backwards, and that he did not become dizzy or lose his balance. However, plaintiff also testified that he opened the ladder and locked it and checked that it was sturdy; that he did not experience any problems with the ladder while he was on it; that he did not remember how he fell off the ladder or know why he fell; and that he did not feel the ladder move before he fell. When asked if he remembered or knew if the ladder shook or wobbled, plaintiff responded, "No."

In addition, plaintiff's employer testified that he situated the ladder just before plaintiff's fall, locked the braces and climbed it himself, and that when he went back into the room after plaintiff fell, the ladder was in the same place as before the accident and was not on the ground. He also testified that plaintiff did not say that there was anything wrong with the ladder that caused him to fall.

These contradictions raise credibility issues which cannot be resolved on a motion for summary judgment.

Student note:  To establish liability under Labor Law § 240(1), a plaintiff must prove a violation of the statute that was the proximate cause of the injury. A fall from a ladder does not, in and of itself, establish that the ladder did not provide appropriate protection.

Case: Campos v. 68 E. 86th St. Owners Corp., NY Slip Op 03747 (1st Dept. 2015)

Here is the decision.

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

A fall at the laundromat.

Practice point:  The Appellate Division determined that the laundromat defendants did not meet their initial burden of establishing their entitlement to judgment as a matter of law. They failed to establish, prima facie, that they did not have constructive notice of the alleged hazardous condition of the mat on which plaintiff fell, as they did not submit evidence that they had inspected the mat within  a reasonable time prior to the accident. The motion court should not have considered the affidavit of the laundromat defendants' general manager, since the defendants did not previously disclose the general manager as a witness and did not provide a reasonable excuse for their failure to identify her during the discovery process.  In any event, the affidavit was insufficient to demonstrate, prima facie, that the laundromat defendants did not have constructive notice of the alleged hazardous condition .

Student note: Since the laundromat defendants failed to meet their initial burden as the movants, it is unnecessary to review the sufficiency of the plaintiff's opposition papers.

Case:  Francis v. Super Clean Laundromat, Inc., NY Slip Op 03650 (2d Dept. 2014)

 Here is the decision.

Tomorrow's issue: Triable issues of fact on a Labor Law claim.

A bus-bicycle fatality.

Practice point:  The defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that the bus was operated in a prudent and reasonable manner, and the driver acted with due care under the circumstances. The evidence established that the bus entered the intersection with the light and had nearly completed exiting the intersection when the decedent, against the light, entered the intersection, ost his balance, and fell to the pavement in the path of the bus's rear tire.

In opposition, the plaintiffs' conclusory and speculative assertions of defendants' possible negligence were unsupported by any competent evidence, and, therefore, did not raise a triable issue of fact.

Student note:  Where, as here, the plaintiffs failed to make some showing of negligence on the part of the defendants, the plaintiffs were not entitled to invoke the Noseworthy doctrine, under which a plaintiff may prevail on a lesser degree of proof.

Case: Clark v. Amboy Bus Co., NY Slip 03645 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A fall at the laundromat.

Summary judgment in a dog bite case.

Practice point:  The defendants separately established their respective prima facie entitlement to judgment as a matter of law on their respective motions by demonstrating, through their deposition testimony, as well as the plaintiff's, that they were not aware, nor should they have been aware, that the dog had ever bitten anyone or exhibited any aggressive behavior. 

The plaintiff failed to raise a triable issue of fact in opposition. The court could not consider the affidavit of the plaintiff's father, a nonparty witness, as he was not properly disclosed as a notice witness in the plaintiff's discovery responses.

Student note:  To recover on a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the dog's owner knew or should have known of such propensities. Relevant evidence includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm

Case:  Henry v. Higgins, NY Slip Op 03489 (2d Dept. 2014)

 Here is the decision.

Tomorrow's issue: A bus-bicycle fatality.

Memorial Day.

Dismissal of a slip and fall claim.

Practice point:  Plaintiff alleged in her bill of particulars, and testified at her deposition, that she was injured when she slipped on an oily substance on the floor of defendant's grocery store. Defendant established prima facie its lack of constructive notice of the alleged dangerous condition with its porter's affidavit stating that he inspected the accident site a half hour prior to plaintiff's fall and that there were no slipping hazards present, together with its manager's deposition testimony regarding cleaning and mopping routines. Plaintiff did not contest defendant's evidence that it inspected for slipping hazards on the premises one-half hour before the accident but did not find any, and so she failed to raise a triable issue of fact

Student note:  Contrary to defendant's contention, plaintiff's supplemental bill of particulars and affidavit in opposition to the summary judgment motion did not raise a new theory of liability concerning the condition of the floor, but merely expanded on the original theory that plaintiff slipped on a foreign substance by alleging that "areas of missing or broken tiles allowed foreign substances to accumulate and remain on the floor."


Case:  Goodwin v. Western Beef Retail, Inc., NY Slip Op 03588 (1st Dept. 2014)

Here is the decision.

Tuesday's issue: Summary judgment in a dog bite case.

The effectiveness of a notice of claim in a playground accident.

Practice point:  The Appellate Division affirmed the denial of the motion to dismiss the claim that the playground equipment was inherently dangerous. While the notice of claim may not have expressly stated that the playground disc from which the infant fell had a defective design, the complaint alleged that the infant plaintiff's injury was caused by "the dangerous, defective and unsafe condition" posed by the disc, "including but not limited to lack of supervision, lack of control, lack of guidance and lack of instruction." This was enough to put the defendant on notice that part of plaintiffs' theory was that the disc itself was defective. What is more, it could be inferred that plaintiffs were alleging that the disc was defective based on the the allegation that the disc's excessive speed caused plaintiff to be ejected from it.

It is irrelevant that plaintiff's expert inspected the disc five years after the accident, because the condition on which he opined was unlikely to have changed in the intervening period of time.

Student note:  The Court distinguished this case from others in which the theories of liability introduced by the plaintiffs were wholly independent of the theories alleged in the notices of claim.

Case:  Jiminez v. City of New York, NY Slip Op 03585 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal of a slip and fall claim.

The effectiveness of a waiver and release from liability for negligence.

Practice point:  The plaintiff allegedly was injured when the Segway vehicle on which she was riding became stuck in the mud, causing her to fall. The plaintiff had rented the vehicle from the defendant and, at the time she was injured, she was taking a tour, conducted by two of the defendant's employees, along a public trail. Prior to the tour, the plaintiff had signed a waiver and release unambiguously expressing her intent to release the defendant from liability, even if injury was caused by the defendant's negligence.

The Appellate Division found that the defendant established its prima facie entitlement to judgment as a matter of law by producing the waiver and release signed by the plaintiff.  Contrary to the plaintiff's contention, General Obligations Law § 5-326 does not invalidate the release because the fee she paid to the defendant was for the rental of the vehicle, and was not an admission fee for the use of the public trail over which the tour was conducted.

Student note:  In New York, absent a statute or public policy to the contrary, a contractual provision absolving a party from its own negligence will be enforced.

Case:  Deutsch v Woodridge Segway, LLC, NY Slip Op 03475 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The effectiveness of a a notice of claim in a playground accident.

Giving effect to a forum selection clause.

Practice point:  The Appellate Division found no merit in plaintiff's claim that the forum selection clause should not be upheld because this is a tort action and not a breach of contract action. The applicability of a forum selection clause does not depend on the nature of the underlying action. Rather, it is the clause's that determines which claims fall within its scope. Here, the contract provision reciting that "[a]ny and all actions arising out of or related to th[e] Agreement" includes the causes of action at issue.

Student note:  In addition, the Appellate Division noted that the plaintiff failed to show that the forum selection clause was unreasonable or unjust, or that a trial in Westchester County would be so gravely difficult that, for all practical purposes, she would be deprived of her day in court. Also, the plaintiff did not allege, or demonstrate, that the forum selection clause was the result of fraud or overreaching. Under these circumstances, the plaintiff failed to make any showing that the forum selection clause should be set aside.

Case:  Couvertier v. Concourse Rehabilitation & Nursing, Inc., NY Slip Op 03473 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The effectiveness of a waiver and release from liability for negligence.

A misleveled elevator accident.

Practice point:  Defendant's motion to dismiss was denied in this action based on plaintiff's fall upon stepping into an elevator that had misleveled about 1½ to 2 feet. It is undisputed that the misleveling condition was caused by defective level up, level down, and door zone relays, which were replaced after the accident.

Plaintiff raised a triable issue of fact as to whether defendants had constructive notice of the misleveling condition, or with reasonable care could have discovered and corrected it, by submitting the affidavit of an expert who reviewed defendants' repair tickets and concluded that they revealed conditions related to the elevator's leveling function. The affidavit, which was not speculative, was sufficient to refute defendants' proof of the absence of prior misleveling problems.

Student note:  An elevator company that agrees to maintain an elevator may be liable to a passenger for failure to correct conditions of which it has knowledge, or failure to use reasonable care to discover and correct a condition which it should  have found.

Case:  McLaughlin v. Thyssen Dover El. Co., NY Slip Op 03440 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Giving effect to a forum selection clause.

Jurisdiction of the Court of Claims.

Practice point:  Generally, the Court of Claims has exclusive jurisdiction over actions for money damages against State agencies, departments, and employees acting in their official capacity in the exercise of governmental functions.  However, where the suit against the State agent or officer is in tort for damages arising from the breach of a duty owed individually by such agent or officer directly to the injured party, the State is not the real party in interest, even though it could be held secondarily liable for the tortious acts under respondeat superior.

Student note:  The Court of Claims has limited jurisdiction to hear actions against the State itself, or actions naming State agencies or officials as defendants, where the action is, in reality, one against the State, that is, where the State is the real party in interest.

Case:  Borawski v Abulafia, NY Slip Op 03221 (2d Dept. 2014)

Here is the decision.

Monday's issue: A misleveled elevator accident.

An application to file a late notice of claim.

Practice point:  The determination of an application for leave to serve and file a late notice of claim is left to the sound discretion of the court. Among the factors to be considered by a court in determining whether leave to serve a late notice of claim should be granted are whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense.

Student note: Neither the presence nor absence of any one factor is determinative. While the absence of a reasonable excuse is not necessarily fatal, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance.

Case: Bakioglu v Tornabene, NY Slip Op 03219 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Jurisdiction of the Court of Claims.

Fraud claims and the particularity requirement.

Practice point:  The Appellate Division agreed with plaintiff that the Supreme Court erred in dismissing the common-law fraud claims. The motion court dismissed the claims on the ground that there are no specific allegations that they engaged in any fraudulent conduct. However, plaintiff's theory of fraud does not rest upon a single decisive event which manifestly demonstrates defendants' wrongdoing, but on a series of interrelated events which, viewed as whole, portray the alleged fraudulent scheme.

Student note:  Generally, in a fraud claim, a plaintiff must allege a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, and justifiable reliance of the other party on the misrepresentation or material omission, and injury. CPLR 3016(b) requires that the misconduct complained of be set forth in sufficient detail to clearly inform a defendant with respect to the incidents complained of.

Case:  Loreley Fin. (Jersey) No. 28, Ltd. v Merrill Lynch, Pierce, Fenner & Smith Inc., NY Slip Op 03326 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: An application to file a late notice of claim.

A defendant's summary judgment motion in a legal malpractice action.

Practice Point:  The Appellate Division affirmed the denial of defendant's motion for summary judgment dismissing the amended complaint insofar as asserted against him. He failed to show, prima facie, that the plaintiff was unable to prove at least one of the essential elements of his legal malpractice cause of action, namely, he did not establish that successor counsel had a sufficient opportunity to protect the plaintiff's rights such that his conduct could not have proximately caused the plaintiff's alleged damages. Failure to make such a showing required denial of the motion, regardless of the sufficiency of the opposing papers.

Student note:  The elements of a cause of action sounding in legal malpractice are that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of that duty proximately caused the plaintiff to sustain actual and ascertainable damages. To succeed on a motion for summary judgment, the defendant in an action to recover damages for legal malpractice must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of the essential elements of the cause of action.

Case:  Anisman v. Nissman, NY Slip Op03218 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Fraud claims and the particularity requirement.

Liability when a plaintiff was thrown from a bike into a bus in a split-second.

Practice point:  A defendant is not liable where he or she is faced with a sudden and unforeseen occurrence that was not of his own making.. Here, defendant-cab driver opened his driver's side door, causing plaintiff to be thrown from his bicycle into the path of an oncoming bus. Testimony concerning the length of time that elapsed from plaintiff' being thrown from his bike and the impact with defendant-Transit Authority's bus consistently stated that it was only an instant or a second, an insufficient length of time to constitute actionable negligence.

Student note:  The only evidence that could have served as the basis for the jury's verdict against the Transit Authority was inadmissible, since it was based, at least in part, on the Authority's own rules and internal standards which hold the Authority to a higher standard of care than the common law.

Case:  Cropper v. Stewart, NY Slip Op 03018 (1st Dept. 2014)

 Here is the decision.

Tomorrow's issue: A defendant's summary judgment motion in a legal malpractice action.

Successive motions for summary judgment, and certificates of conformity.

Practice point:  Despite the general rule that successive motions for summary judgment should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause, a successive motion may be properly entertained where it is substantively valid, and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts.
Student note:  The absence of a certificate of conformity in violation of CPLR 2309 is not a fatal defect, and, if relief is denied on that ground, the denial should be without prejudice to renewal upon proper papers.
Case:  Fuller v. Nesbitt, NY Slip Op 02897 (2d Dept. 2014)
Here is the decision.
Monday's issue: Liability when a plaintiff was thrown from a bike into a bus in a split-second.

Summary judgment in an action based on a playground fall.

Practice point:  The Appellate Division reversed the granting of summary judgment in this action where the infant plaintiff injured his shoulder when, while playing football during recess in defendants' school playground, he tripped over a crack in the pavement and fell to the ground. Plaintiff submitted evidence, including photographs of the playground, sufficient to raise triable issues as to whether the subject crack had been present for a sufficient period time to give rise to constructive notice.

Student note: Defendants submitted their employee's testimony and the accident report showing that the infant plaintiff did not initially identify the cause of his accident, and so they established an absence of proximate causation between their alleged negligent maintenance of the premises and the accident. However,  the infant plaintiff's affidavit stating that he tripped and fell on the crack while playing football was enough to raise an issue of the connection between the accident to the defect.

Case: Pagan v. City of New York, NY Slip Op 03017 (1st Dept. 2014)

Here is the decision. 

Tomorrow's issue:  Successive motions for summary judgment, and certificates of conformity.

A fall on a wet locker room floor.

Practice point:  The defendant met its initial burden of demonstrating lack of notice of the wet condition by submitting evidence that it followed its routine maintenance and inspection procedures, and that the condition was not observed either by maintenance staff when they inspected the area, or by plaintiff and her daughter. Testimony that the plaintiff and her daughter had seen water on the locker room floor on several other occasions and that the daughter had complained about it demonstrates, at most, that the defendant had a general awareness of a wet condition, which is insufficient to raise a triable issue of fact as to notice.

Student note: The plaintiff's expert's affidavit was conclusory, and failed to cite any accepted industry practice, standard, code or regulation that had been violated.

Case:  Phillip v. Young Men's Christian Assn. of Greater N.Y., NY Slip Op 03013 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Summary judgment in a action based on a playground fall.

A worker's fall from a ladder, and a motion to compel discovery of plaintiff's medical records.

Practice point:  The court granted plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240(1) claim, as there was uncontradicted deposition testimony that the unsecured extended ladder upon which plaintiff was working slipped and fell out from underneath him. Plaintiff's actions were not the sole proximate cause of the accident, since the deposition testimony established that his coworker, unknown to plaintiff and in departure from their normal procedure, stopped footing the base of the ladder while plaintiff was still climbing it, thereby allowing it to slip out from underneath plaintiff.
.
The court denied defendants' motion to compel plaintiff's authorizations allowing defendants to obtain all medical records pertaining to his psychological condition and treatment, as plaintiff did not seek to recover damages for emotional or psychological injury, or aggravation of a preexisting emotional or mental condition  Plaintiff's bill of particulars alleged damages for specific physical injuries in his lower back. His general allegations of "anxiety and mental anguish" resulting from his back injuries did not place his entire mental health history into contention.

Student note:  As the court granted plaintiff partial summary judgment on his Labor Law § 240(1) claim, it was not necessary for the court to address his Labor Law § 241(6) claim.

Case:  Serra v. Goldman Sachs Group, Inc., NY Slip Op 02881 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A fall on a wet locker room floor.

An attorney's overzealousness and the Judiciary Law.

Practice point:  The Appellate Division determined that the allegations of tbe attorney's conduct in his representation of defendant during settlement discussions with plaintiff, which plaintiff characterizes as "overzealous and intimidating," do not state a cause of action under Judiciary Law § 487. The complaint alleges neither an intent to deceive nor a chronic and extreme pattern of legal delinquency that caused plaintiff a loss.

Student note:  In addition, the Appellate Division noted that the only allegations of wrongdoing refer to a settlement discussion had after the defendant commenced a legal proceeding, and that communication is absolutely privileged.

Case:  Wailes v. Tel Networks USA, LLC, NY Slip Op 02861 (1st Dept. 2014)

Here is the decision.

Tomorrow' issue: A worker's fall from a ladder, and a motion to compel discovery of plaintiff's medical records.

A cause of action for civil conspiracy.

Practice point:  Under New York law, in order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement. A bare conclusory allegation of conspiracy is usually insufficient.

Student note:  New York does not recognize civil conspiracy to commit a tort as an independent cause of action.  However, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme. The allegation of conspiracy carries no greater burden, but also no less, than to assert adequately common action for a common purpose by common agreement or understanding among a group, from which common responsibility derives.

Case:  Blanco v. Polanco, NY Slip Op 02735 (2d Dept. 2014)

Here is the decision.

Monday's issue:  An attorney's alleged overzealousness and the Judiciary Law.

A divorce action, and a referre's overstepping his bounds.

Practice point:  Plaintiff commenced this divorce action on the ground of constructive abandonment, and, at a preliminary conference, the parties, each represented by counsel, stipulated that defendant would assert a counterclaim for divorce on the ground of constructive abandonment, and plaintiff withdrew her claim. The outstanding financial matters were referred to a special referee to hear and determine. The parties then stipulated that the referee would also hear and determine the issue of grounds, pursuant to their preliminary conference stipulation. However, at the hearing, defendant made an application to withdraw his counterclaim, and, over plaintiff's objection, the referee granted the application, leaving plaintiff without a cause of action for divorce. The referee then granted plaintiff's application to reinstate her claim for divorce. Although the referee stated that he was permitting plaintiff to proceed by inquest, instead he conducted a full trial on grounds, at which defendant was permitted to interpose opposition. The referee denied the divorce.

The Appellate Division determined that the referee exceeded his authority when he permitted defendant to withdraw his counterclaim for constructive abandonment, and conducted a fully contested trial on plaintiff's previously-withdrawn claim. The referral by the court, as thereafter expanded by the parties' stipulation, did not give the referee authority to set aside any part of the parties' stipulation, pursuant to CPLR 4311; By clear and unambiguous terms, defendant had waived his right to withdraw his counterclaim.

Student note: Even if the Referee had the authority to set aside the stipulation, there was no legal basis whatsoever was set forth justifying setting it aside.

Case:  Karpov v. Shiryaev, NY Slip Op 02848 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A cause of action for civil conspiracy.