"Structure" and "demolition" within the meaning of the Labor Law, and the recalcitrant worker defense.

Practice point:  Plaintiff was injured in a fall from an unsecured ladder while working in a warehouse, where his job required the removal of heavy machinery and shelves that ran from floor to ceiling across three second-floor walls, each 50 feet long and 8 feet high, and were bolted to the floors and walls.  Heavy tools were required to cut the bolts in order to break down and remove the shelves.  The removed materials, including the shelving, were so heavy that they had to be loaded in cages, which were then lifted by a pallet jack, moved to the edge of the second floor, and lowered to the first floor with a forklift.

The Appellate Division determined that the dismantling of the shelves was a sufficiently complex and difficult task to render the shelving a "structure" within the meaning of §§ 240(1) and 241(6).  In addition, dismantling the shelving was "demolition" for the purposes of the statute.

Student note:  In opposition to plaintiff's prima facie showing, defendants failed to raise an issue of fact as to whether plaintiff was the sole cause of his accident. There is no evidence that plaintiff received any immediate and active direction not to use the ladder, as is necessary in order to establish a recalcitrant worker defense.

Case:  Phillips v. Powercrat Corp., NY Slip Op 02407 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  The justifiable reliance element of a fraud claim.

A tenant-shareholder's action against the coop board.

Practice point:  The Appellate Division reversed, and granted the board's president and a board member's motion to dismiss.  In an action involving a coop, the business judgment rule provides that a court should defer to a cooperative board's determination so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith.  While decision-making based on discriminatory considerations is not protected by the business judgment rule, the Appellate Division determined that the amended complaint contained only conclusory allegations of discrimination, without any factual basis.  Moreover, the amended complaint was devoid of allegations that the defendants acted tortiously, other than within the scope of their authority as board members.

Student note:  As the plaintiffs failed to allege that the defendants entered their property without permission at any time, they failed to state a cause of action sounding in trespass.

Case:  Cohen v. Kings Point Tenant Corp., NY Slip Op 02088 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: "Structure" and "demolition" within the meaning of the Labor Law, and the recalcitrant worker defense.

A college's denial of tenure.

Practice point:  The Appellate Division affirmed the denial of the Article 75 petition to vacate an arbitration award denying petitioner's grievance of respondent college's determination to deny her tenure, and granted the cross motion to confirm the arbitration award.

Petitioner's claim that the college did not provide adequate notice of any alleged deficiencies is unavailing, as the college's bylaws and the collective bargaining agreement provided notice that publication requirements were rigorous and progressive.  In addition, there was adequate notice in the letter of concern that the college sent to petitioner five months before the tenure process, one year before her appeal, and fifteen months before the college's final determination.

The Appellate Division noted that the college's determination as to the quality and quantity of petitioner's publications was a proper exercise of academic judgment.

Student note:  An arbitrator's award will not be vacated unless it violates a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on the arbitrator's power.

Case:  Matter of Santos v. City Univ. of N.Y., NY Slip Op 02193 (1st Dept. 2015)

Here is the decision.

Monday's issue:  A tenant-shareholder's action against the coop board.

An attorney's account stated claim.

Practice point:  Plaintiff law firm established its entitlement to judgment as a matter of law on its account stated claim by demonstrating that defendant received and retained the invoices without objection for a reasonable time and made about 30 partial payments and agreed to pay the rest. In fact, defendant acknowledged that he owed the outstanding amounts, precluding his objection to how the invoices were calculated.

In opposition, defendant failed to raise an issue of material fact. Defendant offered a letter that contained nonspecific and conclusory allegations and did not comply with the retainer agreement's objection requirements.  As such, it was insufficient to defeat plaintiff's summary judgment motion.

Student note:  The Appellate Division rejected defendant's argument that the motion court decided the motion before the deadline for submitting opposition papers. Pursuant to court order, dispositive motions were to be made no later than 60 days after the note of issue was filed. This did not preclude either party from submitting motion papers prior to that time. Defendant did not suffer any prejudice as a result of his misunderstanding since he received two notices of motion and the court accepted his untimely opposition papers.

Case:  Brunelle & Hadjikow, P.C. v. O'Callaghan, NY Slip Op 02223 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A college's denial of tenure.

Res ipsa loquitur in a podiatric malpractice action.

Practice point:  The plaintiff developed a deep tissue Methicillin-resistant Staphylococcus aureus (MRSA) infection in her foot after the defendant podiatrist administered a cortisone injection into the bottom of her foot to treat her for plantar fasciitis. After a trial, the jury rendered a verdict in the defendant's favor.

The Appellate Division found that it was reversible error for the trial court to deny the plaintiff's request for a res ipsa loquitur charge.  The plaintiff presented expert testimony that a MRSA infection from an injection does not occur if the podiatrist adheres to the accepted standard of care. While the defendant presented expert testimony that an infection is a rare, but possible, complication of an injection which can occur in the absence of negligence, a plaintiff need not conclusively eliminate the possibility of all other causes of the injury to rely on res ipsa loquitur. In addition, the plaintiff presented sufficient evidence to establish, prima facie, that the instrumentalities used for the injection were all under the defendant's exclusive control at the time of the injection, and that the injury was not the result of any action of the plaintiff.

Student note:  The evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event. The doctrine derives from the understanding that some events ordinarily do not occur in the absence of negligence. To invoke the doctrine, a plaintiff must establish that the injury was caused by an agent or instrumentality within the exclusive control of defendant, and that no act or negligence on the plaintiff's part contributed to the happening of the event.  Expert testimony may be used to help the jury bridge the gap between its own common knowledge, which does not encompass the specialized knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence, and the common knowledge of physicians, which does.

Case:  Bernard v. Bernstein, NY Slip Op 02084 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  An attorney's account stated claim.

A slip and fall on the ice.

Practice point:  Defendants established their entitlement to judgment as a matter of law by submitting certified weather records and a meteorologist's affidavit showing that a winter storm was in progress at the time that plaintiff slipped and fell on ice covering the sidewalk in front of defendants' building. Plaintiff himself testified that it was sleeting at the time he fell at approximately 8 a.m., and defendants' porter stated that it had hailed through the night and a "slow rain" was falling at the time of the accident.

As plaintiff's opposing papers did not create a triable issue of fact, the Appellate Division reversed, and dismissed the complaint.

Student note: Plaintiff submitted an affidavit of an expert meteorologist who did not dispute that freezing rain was ongoing at the time plaintiff fell, but concluded that defendants should have cleared and treated the sidewalk during the previous afternoon, when it was only drizzling. However, defendants' porter was not required to clear the public sidewalk of snow or ice during freezing precipitation.  In addition, plaintiff's expert did not opine that in the 30 hours preceding the accident there was ever a four-hour lull in the storm that would give rise to defendants' duty to have cleared snow and ice from the public sidewalk, pursuant to Administrative Code of City of NY § 16-123. Finally plaintiff's testimony also provided no support for the theory that the ice was old or preexisting, as he did not recall any unusual snow or ice conditions on the sidewalk when he walked there the previous night.

Case:  Levene v. No. 2 W. 67th St., Inc., NY Slip Op 02072 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Res ipsa loquitur in a podiatric malpratice action.

Statute of limitations in a legal malpractice action.

Practice point:  The three-year limitations period is tolled by the continuous representation doctrine where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.  The doctrine's application requires clear indicators of an ongoing, continuous, developing, and dependent relationship between the client and the attorney. A predicate for the doctrine's application is continuing trust and confidence in the relationship between the parties.

Student note:  On a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint as barred by the applicable statute of limitations, the moving defendant must establish, prima facie, that the time in which to commence the action has expired.  The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

Case:  Beroza v. Sallah Law Firm, P.C., NY Slip Op 01913 (2d Det. 2015)

Here is the decision.

Tomorrow's issue: A slip and fall on the ice.

An objection to arbitration.

Practice point:  The Appellate Division affirmed the granting of defendant's motion to compel arbitration, determining that, in light of plaintiff's union's commencement of the arbitration proceedings on her behalf, any objection to compulsory arbitration was waived.

Student note:  In light of the order compelling arbitration, the motion to compel DNA testing of defendant was denied.

Case:  Pupiales v. BLDG Mgt. Co., Inc., NY Slip Op 01988 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Statute of limitations in a legal malpractice action.

CPLR 3211 and the single motion rule

Practice point:  The defendants previously moved pursuant to CPLR 3211(a) to dismiss the original complaint on the grounds that documentary evidence established a complete defense to the action, that the action was time-barred, and that the complaint failed to state a cause of action. The Supreme Court denied those branches of that motion to dismiss the causes of action to recover damages for breach of fiduciary duty and gross negligence and, upon renewal, denied those branches of the motion which were to dismiss the fraud and unjust enrichment causes of action. The common-law negligence cause of action, which was asserted in the amended complaint as the fourth cause of action, was the only one of the five causes of action asserted in the amended complaint that was not substantially identical to a cause of action asserted in the original complaint.

The Appellate Division determined that those branches of the defendants' motion which were to dismiss the first, second, third, and fifth causes of action in the amended complaint were procedurally barred by the single-motion rule, and were properly denied.

Student note:  CPLR 3211(e) provides, in pertinent part, that at any time before service of a responsive pleading is required, a party may move to dismiss a pleading "on one or more grounds set forth" in CPLR 3211(a), and that "no more than one such motion shall be permitted." This single motion rule prohibits parties from making successive motions to dismiss a pleading. The rule bars both repetitive motions to dismiss a pleading pursuant CPLR 3211(a), as well as subsequent motions to dismiss that pleading pursuant to CPLR 3211(a) that are based on alternative grounds.

Case:  Bailey v. Peerstate Equity Fund, L.P., NY Slip Op 01911 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: An objection to arbitration.

Claims for fraud and negligent misrepresentation.

Practice point:  After purchasing a pair of sneakers, plaintiff was asked to show the receipt before exiting Defendant's store. Store security advised him that it was store policy to check customers' receipts and he would not be permitted to leave without complying. Plaintiff refused and contacted the police. The police arrived and instructed plaintiff to produce the receipt and when he did, he was permitted to leave.

In pleading fraud, plaintiff alleged that defendant knowingly made a materially false statement that it was store policy for customers to show their receipts before departing the store. Plaintiff stated that defendant's employee made the statement to induce him to rely upon it and surrender his rights not to present the receipt.

The Appellate Division affirmed the dismissal of the claim, finding that plaintiff does not have a viable claim for fraud because he refused to show his receipt to store employees, offering it only to the police when they arrived and directed him to produce it. Therefore, a necessary element of a fraud claim, namely, justifiable reliance upon a false statement, has been negated.

Student note:  The Appellate Division determined that the negligent misrepresentation claim fails because plaintiff did not plead any special duty owed to him by defendant. Such a duty is a necessary element of a viable claim.

Case:  Bishop v. Henry Modell & Co., Inc., NY Slip 01980 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  CPLR 3211 and the single motion rule.

Service on New York City Health & Hospitals Corp.

Practice point:  Plaintiff's notice of claim named HHC, but Plaintiff filed the notice with the New York City Comptroller. Service on the Comptroller does not constitute service on HHC.  For purposes of service of a notice of claim, the City and HHC are separate entities.

Student note:  As plaintiff failed to serve a notice of claim, or move for leave to serve a late notice, for more than a year and 90 days after accrual of the claim, the Appellate Division affirmed the dismissal of the claim as to HHC.

Case:  Smith v. Das, NY Slip Op 01885 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Claims for fraud and negligent misrepresentation.

Taxi medallions and claims sounding in breach of contract and unjust enrichment.

Practice point:  The Appellate Division affirmed dismissal of the complaint which alleged that the plaintiff entered into an oral contract with the defendant to lease a medallion for $666 per week, and that the defendant breached the contract by later "extracting" fees from the plaintiff of $852 per week and imposing a 5% charge for all credit card transactions.

The Appellate Division determined that, as the plaintiff paid the allegedly excessive fees, the plaintiff was describing an oral modification, not a breach, of the original contract, which was fully performed. Accordingly, the plaintiff failed to state a cause of action sounding in breach of contract.

The Appellate Division noted that, where the contract's existence is in dispute, a plaintiff may allege a cause of action to recover for unjust enrichment as an alternative to a cause of action alleging breach of contract, pursuant to CPLR 3014. Here, though, the plaintiff's allegations establish that there was a contract, which was fully performed, and full performance of the contract cannot constitute unjust enrichment.

The Appellate Division determined that the causes of action alleging violations of the Rules of the City of New York Taxi and Limousine Commission were properly dismissed, as a private civil right of action may not be implied from that regulatory scheme.

Student note:  The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract; the plaintiff's performance pursuant to the contract; the defendant's breach of its contractual obligations; and damages resulting from the breach.

Case:  El-Nahal v. FA Mgt., Inc., NY Slip Op 01778 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Service on New York City Health & Hospitals Corp.

An improper wrestling move, and the resulting claim of negligent supervision.

Practice point:  While participating in a wrestling match sponsored by the defendant the plaintiff's child allegedly sustained injuries when his opponent performed "an illegal or unreasonably dangerous wrestling move." Seeing the alleged illegal move, the referee, who himself was an experienced high school wrestler, disqualified the opponent.

The plaintiff alleges that the defendant was negligent in failing to provide an adequately trained or certified referee to supervise the wrestling match. The Appellate Division determined that the defendant established its prima facie entitlement to judgment as a matter of law with evidence, including a transcript of the deposition testimony of the plaintiff's child and a videotape of the wrestling match, demonstrating that the allegedly illegal wrestling move occurred in so short a span of time that even the most intense supervision could not have prevented it. As the plaintiff failed to raise a triable issue of fact, the Appellate Division reversed, and dismissed the complaint.

Student note:  Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not the proximate cause of the injury, and the court will grant summary judgment to a defendant charged with a breach of the duty of reasonable supervision.

Case:  Cvijenovich v. Beacon Kids Wrestling Club, NY Slip Op 01777 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Taxi medallions and claims sounding in breach of contract and unjust enrichment.

The relation-back doctrine, and leave to amend.

Practice point:  The Appellate Division affirmed and determined that the proposed cause of action to recover damages for wrongful termination of employment, which was otherwise time-barred, did not relate back to the original complaint, pursuant to CPLR 203[f]. The relation-back doctrine lets a plaintiff interpose a claim or cause of action, which would otherwise be time-barred, where the allegations of the original complaint gave notice of the transactions or occurrences to be proven, and the cause of action would have been timely interposed if asserted in the original complaint.

The doctrine does not apply where, as here, causes of action sought to be added are based on events that occurred after the filing of the initial pleading, rather than upon the transactions giving rise to the causes of action in the initial pleading. In this  action, the original complaint could not have provided notice that the plaintiff's employment was terminated, since as the termination occurred subsequent to the commencement of the instant action. The fact that the defendants had actual notice of the termination was insufficient to invoke the relation-back doctrine, as the requisite notice must be provided in the original pleading itself.

Student note:  Leave to amend a pleading, pursuant to CPLR 3025[b], will be granted if the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.

Case:  Cooper v. Sleepy's LLC, NY Slip Op 01776 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  An improper wrestling move, and the resulting claim of negligent supervision.

Improper service and dismissal for lack of jurisdiction.

Practice point:  The Appellate Division affirmed the dismissal as to defendant rehabilitation facility, pursuant to CPLR 3211(a)(8).  Jurisdiction over the defendant was not obtained by delivery of the summons and complaint to the Secretary of State, because the summons and complaint misstated the defendant's name. Jurisdiction was not obtained by the alleged delivery of the summons and complaint to an employee at the facility's security desk because it is a limited liability company, and its four individual members are the only persons authorized to accept service on its behalf, pursuant to CPLR 311-a.

Student note:  The Appellate Division determined that the motion court properly considered the motion, even though the Defendant allegedly failed to properly serve its motion papers. The plaintiff requested and obtained two adjournments of the motion return date, and thereafter submitted an affirmation in opposition which addressed the merits of the motion, and was accompanied by evidentiary submissions. Under these circumstances, the plaintiff was not prejudiced by the allegedly improper service of the motion papers, and waived his objection.

Case:  Ciafone v. Queens Ctr. for Rehabilitation & Residential Healthcare, NY Slip Op 01774 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: The relation-back doctrine, and leave to amend.

Granting an extension of time, pursuant to CPLR 2204.

Practice point:  The Appellate Division affirmed the denial of that branch of the plaintiff's motion which was, in effect, to extend the time in which to conduct his deposition, since the plaintiff's own failure to comply with discovery demands hampered the defendant's ability to conduct the deposition. In addition, the plaintiff failed to show good cause for the past delay and that the defendant would not be prejudiced by the delay.

Student note:  In exercising its discretion to grant an extension of time pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the motion's opponent.

Case:  Blay v. Frost, NY Slip Op 01771 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Improper service and dismissal for lack of jurisdiction.

Commencing a foreclosure action.

Practice point:  In order to commence a foreclosure action, a plaintiff must have a legal or equitable interest in the mortgage.  If the defendant puts standing into issue, a plaintiff must prove its standing.

The Appellate Division determined that the appellant did not waive the issue of standing.  Although the appellant's answer did not raise standing as a separate defense, a fair reading of the pleading reveals that it contained language which denied that the plaintiff was the owner and holder of the note and mortgage being foreclosed.  Under such circumstances, the appellant was not required to expressly plead lack of standing as a defense, pursuant to CPLR 3211[e].

Student note:  In a mortgage foreclosure action, a plaintiff establishes standing by demonstrating that, at the time the action is commenced, it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note.

Case:  Bank of Am., N.A. v. Paulsen, NY Slip Op 01597 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Granting an extension of time, pursuant to CPLR 2204.

Medical malpractice, summary judgment, expert opinions, and motions to renew and reargue.

Practice point:  Typically, a qualified expert's opinion that plaintiff's injuries were caused by a deviation from relevant standards would preclude a grant of summary judgment. However, where the expert's ultimate assertions are speculative or without evidentiary foundation, the opinion is of no probative force and is insufficient to withstand summary judgment.

Applying the test in Frye v United States, New York courts permit expert testimony based on scientific principles, procedures or theories only after they have gained general acceptance in the relevant scientific field.  The burden of proving general acceptance is on the proponent of the disputed expert testimony.

Here, the Appellate Division affirmed the motion court's finding that plaintiff failed to submit evidence sufficient to raise a triable issue of fact that his experts' opinions were generally accepted in the medical community.  Although plaintiff submitted numerous articles in medical literature concerning adverse reactions to Lipitor and Azithromycin, none of the articles linked atrioventricular (AV) heart block to the drugs prescribed by defendant. Biological plausibility and convergence in time between the administration of the drugs and the AV heart block diagnosis are insufficient, where no scientific evidence of causation was provided.   The Appellate Division noted that observational studies or case reports are not generally accepted in the scientific community on questions of causation.

Student note:  The motion to renew was denied because plaintiff failed to submit new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221 [e][2]. The additional case reports did not raise an issue concerning the general acceptance of plaintiff's experts' causation theory in the medical community. Denial of the motion to reargue is not appealable.

Case:  Pullman v. Silverman, NY Slip Op 01707 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Commencing a foreclosure action.

A defendant's establishing a lack of constructive notice in a slip and fall case.

Practice point:  To constitute constructive notice, a dangerous condition must be visible and apparent and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it. To meet its burden on the issue of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.  Merely referring to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice.

Student note:  In a slip-and-fall case, a defendant moving for summary judgment has the initial burden of making a prima facie showing that it did not create the condition on which the plaintiff slipped, and did not have actual or constructive notice of that condition.

Case:  Arcabascio v. We're Assoc., Inc., NY Slip Op 01595 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Medical malpractice, summary judgment, expert opinions, and motions to renew and reargue.

Police failure to record information regarding a driver involved in a traffic accident.

Practice point:  Plaintiff alleges that, after she was struck by an automobile, the responding officers failed to record the identity of the owner and/or operator of the vehicle that struck plaintiff.

The Appellate Division determined that the City is entitled to summary judgment because the investigation of the accident at issue here is a governmental function, and so the City is not liable for failing to properly investigate the incident unless there existed a special duty to plaintiff, in contrast to a general duty owed to the public.

Here, plaintiff cannot establish a special relationship through defendants' violation of a statutory duty, because none of the cited sections of the Vehicle and Traffic Law authorize a private right of action, nor were they otherwise enacted for the benefit of a particular class of persons as opposed to the public at large

 Student note:  While the statute imposes criminal liability if the vehicle's operator does not identify himself or herself, there is no statutory provision for governmental tort liability.

Case:  Bouet v. City of New York, NY Slip Op 01567 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A defendant's establishing a lack of constructive notice in a slip and fall case.

Easement by prescription and declaratory judgment.

Practice point:  The Appellate Division determined that the defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence establishing that the plaintiffs' claim is based on their possession and occupancy of the property, and therefore is inconsistent with an easement by prescription. 

Student note:  To the extent that this is a declaratory judgment action, it was remitted for the entry of a judgment declaring that the plaintiffs do not have a prescriptive easement over the property.

Case:  Kostovetsky v. Rockaway Hunting Club, NY Slip Op 01421 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Police failure to record information regarding a driver involved in a traffic accident.

A common tenancy in unequal shares.

Practice point:  The Appellate Division affirmed that plaintiff, as administrator of her husband's estate, was entitled to judgment in an amount equal to his property interest and the appointed referee's award of that value.

The Appellate Division determined that the court properly considered defendant's undisputed testimony that she alone contributed all of the funds utilized to purchase and maintain the property, and that she had resided in the home since its purchase. Defendant further testified that her son, plaintiff's husband, never resided in the home and that his name was put on the deed solely for defendant's convenience.

Student note:  The presumption that tenants-in-common share equally in their common tenancy may be rebutted by facts showing that they hold the tenancy in unequal shares. A court acting in equity may take into account the amounts invested in the property by the respective tenants in determining the shares to which they are entitled.

Case:  Ampratwum v. Appiah, NY Slip Op 01533 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Easement by prescription and declaratory judgment.