Summary judgment on the issue of liability on a Labor Law § 240(1) claim.

Practice point:  The Appellate Division reversed the motion court's denial of plaintiff's summary judgment motion, as his deposition testimony establishes that a proximate cause of his injury was the shifting of unsecured scaffold planks. Therefore, contrary to defendants' contention, plaintiff was not the sole proximate cause of the accident. In addition, defendants' recalcitrant worker defense, predicated on plaintiff's alleged entry into an area of the scaffold that had been cordoned off, is unavailing, as there is no evidence that plaintiff had been instructed on the day of the accident not to enter or use the cordoned-off area.

Student note:  The unsworn accident report relied upon by defendants to show an inconsistency in plaintiff's account of the accident is insufficient to raise an issue of fact. The report is inadmissible hearsay, and defendants provide no excuse for their failure to tender the report in admissible form. The inconsistent statement in plaintiff's hospital record as to how the accident occurred is also insufficient to raise a triable issue of fact, because it is not germane to plaintiff's diagnosis and treatment.

Case:  Kristo v. Board of Educ. of the City of N.Y., NY Slip Op 09358 (1st Dep't 2015)

Monday's issue:  Evidentiary material and motions to dismiss.

Extending time to settle a judgment.

Practice point:  The plaintiffs and the defendants are neighbors and share a common right-of-way.  Years ago the owner subdivided her property into what is now the plaintiffs' property and the defendants' property. A 10-foot-wide strip of land between the parties' properties was not conveyed to either property. The parties do not dispute that they both have the right of ingress and egress over the 10-foot-wide strip of land, but the disagree as to whether the plaintiffs have an easement to use portions of the defendants' property as a driveway.

According to the plaintiffs, the defendants began to restrict access to portions of the common driveway that were on the defendants' property.  The plaintiffs commenced this action seeking a declaration that the defendants' property is subject to an easement in favor of the plaintiffs' property. After a nonjury trial, the Supreme Court issued a decision and order directing the dismissal of the plaintiffs' claims, and directing that a judgment be settled on notice. However, the defendants did not settle the judgment within 60 days, as is required by 22 NYCRR 202.48.

The plaintiffs commenced a second action, seeking essentially the same relief that was denied in this action, and asserting additional causes of action. The defendants moved for summary judgment in the second action dismissing numerous causes of action on the ground that they had been dismissed in this action and were thus barred by the doctrine of res judicata. The Supreme Court denied the motion, partly because no judgment had been entered in this action.

Thereafter, the defendants moved pursuant to CPLR 2004 in this action to extend their time to settle the judgment pursuant to the decision and order. The Supreme Court granted the motion, and a judgment was entered. On this appeal from that judgment, the plaintiffs contend that the Supreme Court erred in extending the defendants' time to settle the judgment, in dismissing their first cause of action as abandoned, and in dismissing their causes of action seeking an easement by prescription or necessity.

The Appellate Division affirmed, finding that, while the defendants' did engage in dilatory behavior, the interests of justice demand that the court not be burdened with the trial of demonstrably meritless causes of action. 

Student note:   It is within the sound discretion of the court to accept a belated order or judgment for settlement.  A court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources.

Case:  Curanovic v. Cordone, NY Slip Op 09398 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:   Summary judgment on the issue of liability on a Labor Law § 240(1) claim.

The death of a party.

Practice point:  The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a).

Student note:  CPLR 1021 is an exception to that principle.  It provides, in pertinent part, that a motion for substitution may be made by the successors or representatives of a party or by any other party within a reasonable time after the party's death. If "timely substitution has not been made, the court, before proceeding further, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent's estate to show cause why the action or appeal should not be dismissed."

Case:  Barnabas v. Boodoo, NY Slip Op 09394 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Extending time to settle a judgment.

Failure to identify the cause of the fall.

Practice point:  In a slip-and-fall case, 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.

Student note:  Proximate cause may be established without direct evidence of causation by inference from the circumstances of the accident. However, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action.

Case:  Amico v. Kasneci, NY Slip Op 09393 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  The death of a party.

Constructive notice in a slip and fall action.

Practice point:  The Appellate Division reversed, on the law, and denied defendant's motion for summary judgment in this action resulting from plaintiff's fall on an oil patch in defendant's parking lot.

A defendant who moves for summary judgment in a slip and fall case has the initial burden of making a prima facie showing that it did not create the allegedly hazardous condition that caused the accident, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the accident.  Mere reference 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:  The owner or possessor of real property has a duty to maintain the property in a reasonably safe condition 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:  Bruni v. Macy's Corporate Servs., Inc., NY Slip Op 09238 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Failure to identify the cause of the fall.

A missing witness charge.

Practice point:  Upon a jury verdict in defendants' favor, plaintiff appealed and the Appellate Divison reversed, on the law, and remanded for a new trial.

Plaintiff claims that she sustained a permanent, consequential limitation of her neck and back as a result of a motor vehicle accident. The accident occurred while she was on a trip  with other members of her Jehovah's Witness congregation. Four years before the motor vehicle accident, plaintiff had injured her back when a bookcase fell on her. In connection with the earlier injury, she saw an orthopedist and a physical therapist.

Plaintiff claims that, at trial, the court erred in giving a missing witness charge. The charge was related to her testimony that, in connection with the earlier accident, she saw an orthopedist who referred her to physical therapy. Plaintiff did not call the orthopedist as a witness, nor did she introduce into evidence any of the medical records generated by him or the physical therapist.

The Appellate Division noted that the record does not reflect when defendants asked for a missing witness charge. This presents the possibility that they did not do so until after plaintiff presented her case.  If that were so, plaintiff had no chance to account for the orthopedist's absence, argue that plaintiff did not have the requisite control over him, or attempt to procure his appearance. The Appellate Division determined that, since there is no indication that defendants promptly notified the court when the need for the charge arose, the charge was improperly given.

Student note:  The party seeking a missing witness charge has the burden of promptly notifying the court when the need for the charge arises. The purpose of imposing the burden is, at least in part, to permit the parties to tailor their trial strategy to avoid substantial possibilities of surprise. Once the party requesting the charge meets its initial burden, the party opposing the request can defeat it by demonstrating that the witness was not available or beyond its control, or that the issue about which the witness would have been called to testify is immaterial.

Case:  Herman v. Moore, NY Slip Op 09352 (1st Dept. 2015)

Tomorrow's issue: Constructive notice in a slip and fall action.

Disclosure and social media.

Practice point:  This is a personal injury action in which plaintiff alleges that, while riding one of defendant's horses, the stirrup leather attached to the saddle broke, causing her to lose her balance and fall to the ground. Plaintiff claims that defendant was negligent in failing to prepare the horse for riding, and in maintaining and inspecting the equipment. Plaintiff alleges that the accident resulted in cognitive and physical injuries that have limited her ability to participate in social and recreational activities. At deposition, plaintiff testified that she maintained and posted to a Facebook account prior to the accident, but deactivated the account at some point after.

Defendant sought an order compelling plaintiff to provide an unlimited authorization to obtain records from her Facebook account, including all photographs, status updates, and instant messages. The motion court granted the motion to the extent of directing plaintiff to produce: (a) all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial; (b) all photographs of herself privately posted on Facebook after the accident that do not show nudity or romantic encounters; and (c) authorizations for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages. Plaintiff appealed, and the Appellate Division vacated those portions of the order directing plaintiff to produce photographs of herself posted to Facebook after the accident that she does not intend to introduce at trial and authorizations related to plaintiff's private Facebook messages.

The Appellate Division noted that courts consistently have required a threshold showing before allowing access to a party's private social media information.  The Appellate Division determined that defendant failed to establish entitlement to either plaintiff's private Facebook photographs or information about the times and length of plaintiff's private Facebook messages. The fact that plaintiff had previously used Facebook to post pictures of herself or to send messages is insufficient to warrant discovery of this information.  Further, defendant's speculation that the requested information might be relevant to rebut plaintiff's claims of injury or disability is not a proper basis for requiring access to plaintiff's Facebook account.

Student note:  CPLR 3101(a) provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.  In determining whether the information sought is subject to discovery, the test is one of usefulness and reason.

Case:  Forman v. Henkin, NY Slip Op 09350 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A missing witness charge.

CPLR 205(a) and 306-b.

Practice point:   The Appellate Division affirmed the denial of the 306-b cross-motion to dismiss and the granting of the 205(b) motion for leave to extend time to serve process.  After the dismissal of a previous action without prejudice, the plaintiff commenced the instant action within the applicable limitations period.  The six-month period in CPLR 205(a) is not a limitations period but a tolling provision, which has no application where, as here, the statute of limitations has not expired at the time the second action was commenced.

Student note:   The Appellate Division determined that the Supreme Court did not improvidently exercise its discretion in finding, in effect, that the time for service should be extended in the interest of justice.

Case:  Bonilla v. Tutor Perini Corp., NY Slip 09237 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Disclosure and social media.

Summary judgment in a slip-and-fall action.

Practice point:  The Appellate Division reversed the Supreme Court's sua sponte dismissal of the complaint in this action against the store's owner and the store's lessee. The Appellate Division rejected lessee-defendant's argument that it owed no duty to plaintiff.  As the operator of a place of public assembly, a store lessee has a duty to provide its customers with a safe means of entering and leaving the store.

Student note:  On a summary judgment motion, a defendant must establish prima facie entitlement to judgment as a matter of law before the burden shifts to the party opposing the motion to establish the existence of a material issue of fact

Case:  Taveras v. 1149 Webster Realty Corp, NY Slip Op 09192 (1st Dept. 2015)

Here is the decision.

Monday's issue:  CPLR 205(a) and 306-b.

A police accident report and summary judgment.

Practice point:  The Appellate Division affirmed the denial of plaintiff's summary judgment motion as to liability, finding that plaintiff failed to establish his prima facie entitlement to judgment as a matter of law by eliminating all triable issues of fact.

In support of his motion, plaintiff submitted his own affidavit, in which he alleged that defendant was negligent because he violated Vehicle and Traffic Law § 1128(a), and that plaintiff could not avoid the collision. However, plaintiff also submitted an uncertified police accident report containing defendant's statement that plaintiff sped up to prevent defendant from merging into the lane in which the plaintiff was traveling and, thus, contributed to the accident.

Student note:  In submitting the uncertified police accident report, plaintiff waived any objection to its admissibility.

Case:  Kadashev v. Medina, NY Slip Op 09069 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Summary judgment in a slip-and-fall action.

A plaintiff's negligence and proximate cause.

Practice point:  The Appellate Division affirmed the jury verdict that, while the plaintiff was negligent, her negligence was not a proximate cause of her injury. The Appellate Division found that  the issues were not so inextricably interwoven as to make it logically impossible to find negligence but not proximate cause.

Student note:  The defendant's argument that the jury verdict was inconsistent was not raised before the jury was discharged, and therefore was unpreserved for appellate review.

Case: Blechman v. New York City Tr. Auth., NY Slip Op 09173 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A police accident report and summary judgment.

Limiting the scope of discovery.

Practice point:  The Appellate Division affirmed the motion court's denial of those branches of the plaintiff's motion which were to extend the time to complete discovery and compel the defendants to respond to his discovery demands. The Appellate Division determined that the plaintiff's discovery demands were overly broad and unduly burdensome, and sought a large number of documents that were irrelevant to his remaining causes of action.

Student note:  The Supreme Court has broad discretion to supervise disclosure to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice. Discovery demands that are overly broad, are lacking in specificity, or seek irrelevant documents are improper and will not be allowed.

Case:  Jacobs v. Mostow, NY Slip Op 09067 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A plaintiff's negligence and proximate cause.

Jurisdiction based on a tort committed outside the State causing injury inside the State.

Practice point:  The Appellate Division affirmed dismissal for lack of personal jurisdiction in this action stemming from the sale and deliver of steel from a New York company to two New Jersey corporations.  It determined that the motion court properly rejected plaintiff's assertion of jurisdiction under CPLR 302(a)(3)(ii), for an alleged tort committed without the State causing injury within the State. As to the tort committed without the State, plaintiff points to the alleged fraudulent conveyance of plaintiff's assets to defendant. This fails, however, because the situs of the injury is the location of the original event which caused the injury, not the location where the resulting damages are subsequently felt.  Therefore, the alleged tortious act did not cause]injury within New York, but in New Jersey.

Student note:  The Appellate Division determined that plaintiff has also offered nothing but conclusory allegations that any defendant derives substantial revenue from interstate or international commerce, as required for jurisdiction under CPLR 302(a)(3)(ii).

Case:  Cotia (USA) Ltd. v Lynn Steel Corp., NY Slip Op 09169 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Limiting the scope of discovery.

Darkness falls.

Practice point:  The Appellate Division the denial of defendant's summary judgment motion in this action where plaintiff seeks damages after he was injured when he tripped over the forks of a power jack parked in the 25-foot-wide central walkway between rows of work tables in a commercial warehouse leased by defendant. Plaintiff, a subcontractor of defendant, had been working at one of the tables when a power outage plunged the warehouse into complete darkness, and after about 20 seconds he decided to leave the warehouse. He turned from his table and took a few steps into the central walkway, and tripped over the jack. About 10 seconds later, the power was restored.

Defendant failed to establish prima facie that it maintained the premises in a reasonably safe condition and did not create a dangerous condition that posed a foreseeable risk of injury to individuals expected to be on the premises. Plaintiff testified that the power jacks were usually stored in an area near the front of the building and that he had never seen one unattended in the central walkway. Moreover, the record shows that machinery in the warehouse was operated solely by defendant's employees.

Student note:  The Appellate Division rejected defendant's argument that the power jack was an open and obvious hazard and not inherently dangerous as misplaced. Nor did defendant establish as a matter of law that plaintiff's decision to walk through the dark warehouse was the sole proximate cause of his injury, since, even in the dark, plaintiff could not have tripped over a jack that was not there. Defendant also failed to establish as a matter of law that the power outage was a supervening event that severed the causal connection between any negligence on its part and plaintiff's injury. Finally, defendant made no showing that power outages in the area were a very rare occurrence in the area, and the record demonstrates that the warehouse had a working back-up generator.

Case:  Washington v. Autumn Props. II, LLC, NY Slip Op 08950 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Jurisdiction based on a tort committed outside the State causing injury inside the State.

A rear-end collision.

Practice point:  Mere evidence of a sudden stop, without more, is not enough to raise a triable issue of fact as to whether the operator of the stopped vehicle was partly at fault, so as to defeat a motion for summary judgment. However, while vehicle stops under prevailing traffic conditions are forseeable and must be anticipated by the following driver, where the sudden stop is unexplained by the existing circumstances and conditions, an issue of fact as to liability is raised.

Student note:   A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the accident. Here, an affidavit averring that the vehicle was stopped at a red traffic light for 40-45 seconds when it was struck from behind was sufficient to establish Galuten's prima facie entitlement to judgment as a matter of law.

Case:  Etingof v. Metropolitan Laundry Mach. Sales, Inc., NY Slip Op 08803 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Darkness falls.

Leave to amend a summons and complaint.

Practice point:  The Appellate Division reversed the motion court, finding that it improvidently exercised its discretion in denying plaintiff's cross motion to substitute an identified defendant in the summons and complaint, pursuant to CPLR 305[c], 1024 and 3025. There was no evidence of any prejudice or surprise to the proposed defendant resulting from the substitution, and defendant City of New York stated that it had no substantive objection to plaintiff's cross motion to the extent it sought leave to substitute the identified police officer for a "John/Jane Doe" defendant.

Student note:  Since the limited proposed amendments were clearly described in the moving papers, plaintiff's failure to submit proposed amended pleadings with his original moving papers, pursuant to CPLR 3025[b], was a technical defect, which the court should have overlooked, pursuant to CPLR 2001, particularly after plaintiff provided those documents with his reply.

Case:  Medina v. City of New York, NY Slip Op 08909 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A rear-end collision.

Res judicata.

Practice point:  The Supreme Court determined that this personal injury action was barred by collateral estoppel, and the Appellate Division affirmed, but on a different ground, namely, res judicata.

The Appellate Division found that, in a declaratory judgment action, an order was issued granting the plaintiffs therein leave to enter a default judgment against the appellants, who were named defendants in that action, upon their failure to appear or answer the complaint in that action. The Appellate Division determined that that order is conclusive for res judicata purposes as to any matters actually litigated or that might have been litigated in that action, and that it precludes the appellants from maintaining this action.

Student note:  Res judicata, or claim preclusion, bars successive litigation based upon the same transaction or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action, or in privity with a party who was. The doctrine applies to an order or judgment taken by default which has not been vacated, as well as to issues which were or could have been raised in the prior proceeding.

Case:  Albanez v. Charles, NY Slip Op 08795 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to amend a summons and complaint.

Denial of an award for enhanced earning capacity.

Practice point:  The Appellate Division determined that the court properly exercised its discretion in denying the husband any award of a portion of the wife's enhanced earning capacity stemming from her United States medical license. The husband failed to show that he contributed to the wife's attainment of her license.  Prior to the marriage, the wife completed medical school in China and had a medical license in China. Thus, the only marital property was her US medical license, and while the wife did not work from May 2004 to May 2007, as she studied for the exam, she supported herself with her own savings and financial support from her mother, and paid for the exam review course herself.

Student note:  If the husband were entitled to an award based on the wife's enhanced earning capacity, he would have to establish the value of such enhanced earning capacity through expert testimony.

Case:  Ruo Mei Cai v. Victor Fai Lau, NY Slip Op 08635 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Res judicata.

CPLR 4401 and 4404(a)

Practice point:  The Appellate Division affirmed the denial of the motion, made pursuant to CPLR 4401,  for judgment as a matter of law on the issue of liability, made at the close of the plaintiffs' case and renewed at the close of evidence. A 4401 motion may be granted where the trial court determines that, upon the evidence presented, there is no rational process by which the trier of fact could base a finding in favor of the nonmoving party.  In considering the motion, the court must afford the nonmovant every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant.

Student note:  A 4404(a) motion to set aside a jury verdict as contrary to the weight of the evidence will not be granted unless the jury could not have reached the verdict by any fair interpretation of the evidence.

Case:  Cobenas v. Ginsburg Dev. Cos., LLC, NY Slip Op 08702 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Denial of an award for enhanced earning capacity.

An enforceable contract.

Practice point:  The Appellate Division reversed the motion court and dismissed the complaint in this action to recover damages for an alleged breach of contract.  A binding contract requires mutual assent sufficiently definite to assure that the parties are in agreement with respect to all material terms, and the contract is not enforceable if a court cannot determine what the parties have agreed to. If the agreement is not reasonably certain in its material terms, there is no legally enforceable contract.

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:  Carione v. Hickey, 08700 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  CPLR 4401 and 4404(a).

A motion for leave to renew.

Practice point:  The motion court has discretion to grant renewal on facts known to the movant at the time of the original motion on a showing of reasonable justification for not having offered the additional facts in the prior application.  Law office failure may be a reasonable justification.

Student note:  Generally, though, the motion must be made on new facts, not offered in the original application, that would change the prior determination, pursuant to CPLR 2221(e)(2).

Case:  Calle v. Zimmerman, NY Slip Op 08699 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  An enforceable contract.

Partition and sale of an apartment.

Practice point:  The Appellate Division determined that plaintiff is entitled as a matter of law to the partition and sale of the apartment under Real Property Actions and Proceedings Law (RPAPL) § 901. In the record there was support for a finding that the parties are tenants in common, and defendant did not raise an issue of fact contesting the assertion that the apartment's value is maximized by remaining undivided, or that the parties would be prejudiced by dividing it.

The Appellate Division noted that defendant may not invoke the notice provision in RPAPL § 1304, and is not entitled to a court-supervised settlement conference under CPLR 3408, as the definitions of "home loan" and "lender" under the statute have not been met.

Student note:  For the purposes of RPAPL § 901(1), a plaintiff may be in "possession" of the apartment, despite not having lived in it.

Case:  Lane v. Tyson, NY Slip Op 08623 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion for leave to renew.