Ordinary negligence and recklessness standards of care.

Practice point: The Appellate Division reversed and reinstated the complaint in this action where plaintiff, a livery cab driver, was parked on the shoulder near a parkway's exit ramp when his vehicle was struck by a snow plow driven by defendant, an employee of defendant New York City Department of Transportation.  On appeal, plaintiff asserted that the Supreme Court should have assessed defendant's liability based on an ordinary negligence standard of care because, at the time of the accident, the City regulation governing snow plows did not expressly set forth a standard of care. The Appellate Division held that a recklessness standard of care applies, as the Court of Appeals recently held that, even though the statute did not specifically identify the applicable standard of care, in light of the language of the statute as a whole, its legislative history, and related case law, the standard is recklessness.

Student note: Under the applicable standard, defendants will be liable only if driver-defendant acted in conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.

Case:  Dejean v. Lawton, NY Slip Op 01149 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Motions for leave to renew.

Doctrine of law of the case.

Practice point: The Appellate Division affirmed the motion court's order, as, on a prior appeal, it had determined that representatives of the retired/deceased partner were not entitled to share in the appreciation of partnership assets after the date of dissolution of the partnerships, namely, the gain on the sale of commercial real estate sold after the date of dissolution.  On this appeal, the defendant did not demonstrate new factual circumstances or a change in the law which would warrant reconsideration of the issue.

Student note: The Appellate Division noted that the doctrine of law of the case precludes it from reexamining an issue which has been raised and decided against a party or those in privity with that party on a prior appeal absent a showing of subsequent evidence or a change in law.

Case:  Breidbart v. Wiesenthal, NY Slip Op 01143 (2d Dept. 2016)

Here is the decision.

Monday's issue:  Ordinary negligence and recklessness standards of care.

Summary judgment on a Labor Law § 240(1) cause of action.

Practice point:  The Appellate Division affirmed the granting of plaintiff's motion in this action resulting from an injury sustained while plaintiff was operating a prime mover, which resembles a mini-forklift, to hoist a load of bricks onto a scaffold.

The Appellate Division determined that if the prime mover pitched forward due to the force of gravity, it failed to offer adequate protection and Labor Law § 240(1) applies.  Similarly, if the accident occurred because either the prime mover or scaffold could not support the weight of the brick load, the accident also resulted from the application of the force of gravity to the load during the hoisting operation, and the statute also applies.

Student note:  Comparative negligence is not a defense to a Labor Law § 240(1) claim.

Case:  Somereve v. Plaza Constr. Corp., NY Slip Op 01236 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Doctrine of law of the case.

A schoolyard injury, premises liability, and assumption of the risk.

Practice point: The Appellate Division affirmed the denial of plaintiff's summary judgment motion as to liability in this action where infant plaintiff allegedly was injured while playing basketball at recess when his head struck the pole supporting the backboard and he fell to the ground.  Defendant established its prima facie entitlement to judgment as a matter of law dismissing the premises liability cause of action by demonstrating that the pole was open and apparent; that the risk of colliding with it was inherent in the activity of playing basketball in the courtyard; that defendant did nothing to conceal or unreasonably increase the risk; and that plaintiff assumed the risk of injury by voluntarily participating in the activity at that location, as he had on numerous prior occasions.

Student note:  The doctrine of primary assumption of risk applies where a consenting participant in a sporting activity is aware of the risks inherent in the activity, has an appreciation of the nature of the risks, and voluntarily assumes the risks. The doctrine is not a bar to liability if the risk is unassumed, concealed, or unreasonably increased.

Case: Altagracia v. Harrison Cent. Sch. Dist.,  NY Slip Op 01141 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Summary judgment on a Labor Law § 240(1) cause of action.

Respondeat superior.

Practice point:  The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting in furtherance of the employer's business and within the scope of employment. An employee's actions fall within the scope of employment where the employee's purpose is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business.  Where an employee's actions are taken for wholly personal reasons, which are not job related,  the employee's conduct is outside the scope of employment.

Student note:  An employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment.

Case:  Brandford v. Singh, NY Slip Op 00920 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  A schoolyard injury, premises liability, and assumption of the risk.

A petition to annul an agency's termination of employment.

Practice point:  The Appellate Division affirmed the denial of the Article 78 petition seeking to annul petitioner's employment. It is undisputed that petitioner failed to serve the notice of petition and petition upon the agency, as required by CPLR 307(2). The failure to properly effectuate service on, and acquire personal jurisdiction over, the agency warrants dismissal.

Student note:  The agency did not concede to the court's jurisdiction by seeking an adjournment, and the cross motion to dismiss the petition on jurisdictional grounds was properly brought prior to the time that the answer was required to be served, pursuant to CPLR 3211[a][8] and [e], and 320[b].

Case:  Matter of Crichlow v. NYS Off. of Mental Health, NY Slip Op 01050 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Respondeat superior.

Resoving a fact issue on a motion for a preliminary injunction.

Practice point:  The Appellate Division modified the motion court's denial of plaintiff's motion for a preliminary injunction, and vacated so much of the order as deemed defendant the owner of the premises and directed entry of a money judgment for use and occupancy. The Appellate Division determined that, in deciding the motion, the court erred in resolving a factual issue.

Student note:  Before a court may treat a motion addressed to the pleadings as a summary judgment motion, it must give notice to the parties.

Case:  Solomon-Cox v. Expert Bldrs. 26, Inc., NY Slip Op 01044 (1st Dept. 2016)

Here is the decision.

Monday's issue:  A petition to annul an agency's termination of employment.

Res ipsa, and summary judgment denied.

Practice point:  The Appellate Division affirmed denial of defendant's summary judgment motion in this action for damages after plaintiff allegedly was injured by a falling picture frame as she was entering a room inside office space leased by defendant.

Plaintiff pled that defendant was liable under a theory of common-law negligence and the doctrine of res ipsa loquitur.  Defendant failed to make the requisite showing of its entitlement to judgment as a matter of law, as the evidence submitted in support of the motion failed to establish, prima facie, that defendant lacked exclusive control over the picture frame.  Defendant also failed to establish that it was entitled to summary judgment on the ground that the picture frame, as it was positioned on the date of the accident, did not constitute a dangerous condition, or that defendant did not create a dangerous condition.

Student note:  As defendant failed to establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to plaintiff to raise a triable issue of fact.

Case: Assil v. Camba, Inc., NY Slip Op 00914 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Resolving a fact issue on a motion for a preliminary injunction.

Standing in a mortgage foreclosure action.

Practice point:  By submitting evidence that the note was in its possession and the mortgage had been assigned to it prior to the commencement of the action, the plaintiff made a showing sufficient to deny that branch of the defendants' 3211(a)(3) motion to dismiss for lack of standing.

Student note:  A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note. The plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the action. On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law. To defeat the motion, a plaintiff must submit evidence which raises a question of fact as to its standing.

Case:  Arch Bay Holdings, LLC-Series 2010B v. Smith, NY Slip Op 00913 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue: Res ipsa, and summary judgment denied.

A summary judgment motion denied as untimely.

Practice point:  The Appellate Division affirmed the motion court's denial, as defendant filed its motion after the deadline set forth in the preliminary conference order. That deadline is controlling, given that there is no subsequent order or directive explicitly providing otherwise. In addition, defendant failed to provide good cause for the delay in moving for summary judgment.

Student note:  The Appellate Division noted that the action's conversion to e-filing approximately two months before the order does not warrant a different result.

Case:  Winfield v. Monticello Senior Hous. Assoc., NY Slip Op 00873 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Standing in a mortgage foreclosure action.

Court holiday.

Tomorrow's issue:  A summary judgment motion denied as untimely.

Court holiday.

Tuesday's issue:  A summary judgment motion denied as untimely.

Sidewalk defects and an abutting landowner's liability.

Practice point:  The Appellate Division reversed, and granted defendant's summary judgment motion in this action where plaintiff allegedly tripped and fell on a sidewalk abutting premises owned by defendant.

An abutting landowner will be liable to a pedestrian injured by a sidewalk defect where the landowner created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk. Here, defendant established, prima facie, that her property was covered by the exemption for owner-occupied residential property set forth in section 2-710(b) of the Administrative Code of the City of New York, and that she had no statutory duty to maintain the sidewalk.

Student note:  Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality, and not the abutting landowner.

Case:  Ippolito v. Innamorato, NY Slip Op 00648 (2d Dept. 2016)

Here is the decision.

Tuesday's issue:  A summary judgment motion denied as untimely.

Expert opinion testimony in a chiropractic malpractice action.

Practice point:  Physicians offering opinions in medical, dental, podiatric, chiropractic, or other specialty malpractice actions must establish their credentials in order for their expert opinions to be considered by courts. They do so by being specialists in the field that is the subject of the action, or if not specialists in the same field, then by possessing the requisite skill, training, education, knowledge, or experience from which it can be assumed that the opinion rendered is reliable. 

Student note:  As with medical malpractice actions, chiropractic malpractice actions require proof that the defendant chiropractor deviated or departed from the accepted community standards of chiropractic practice, and that such deviation or departure was a proximate cause of the plaintiff's injuries.

Case:  Bongiovanni v. Cavagnuolo, NY Slip Op 00638 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue: Sidewalk defects and an abutting landowner's liability.

A legal malpractice claim based on violation of a contract's non-disparagement provision.

Practice point:  The Appellate Division affirmed denial of defendant's motion to dismiss the complaint in this action where plaintiff alleges that he would not have lost his contractual right to certain deferred compensation if his attorneys had not acted negligently in speaking to newspaper, in violation of the non-disparagement provision of the contract. The Appellate Division found that these allegations state a cause of action for legal malpractice, and that defendant's documentary evidence fails to establish a defense as a matter of law.  As the motion court found, neither the arbitration award nor the subsequent opinions submitted by defendants unequivocally contradict plaintiff's claim that, but for defendants' alleged negligent conduct, he would not have lost his contractual benefit.

Student note:  It does not matter whether the arbitration decision was reached on the merits or under a procedural bar to considering the deferred compensation issue in the arbitration.

Case:  Barr v. Liddle & Robinson, LLP, NY Slip Op 00744 (1st Dept. 2016)

Here is the decision.

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

A lessee/sublessor's liability.

Practice point:  The Appellate Division reversed, and reinstated the complaint in this action which plaintiff commenced after he allegedly was injured when he slipped and fell on premises that had been leased by defendant, and then subleased to another corporate entity.  Defendant failed to establish, prima facie, that the nonparty sublessee assumed the exclusive obligation to maintain the premises, and that defendant, as lessee/sublessor, had no duty to maintain the premises.  Since defendant failed to meet its initial burden as the movant, it was not necessary to review the sufficiency of plaintiff's opposition papers.

Student note:  An out-of-possession landlord may be liable for injuries occurring on the premises if it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs.  However, where the premises have been leased and subleased and the subtenant assumes the exclusive obligation to maintain the premises, both the out-of-possession landlord and the out-of-possession lessee/sublessor will be free from liability for injuries to a third party caused by the negligence of the subtenant in possession.

Case:  Iturrino v. Brisbane S. Setauket, LLC, NY Slip Op 00480 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  A legal malpractice claim based on violation of a contract's non-disparagement provision.

Dismissal of a fraud claim.

Practice point:  Pursuant to CPLR 3016(b), where a cause of action is based upon fraud or aiding and abetting fraud, the circumstances constituting the wrong must be stated in detail.  The Appellate Division affirmed dismissal of the claim here, as the causes of action alleging fraud contained only bare and conclusory allegations, without any supporting detail.  Absent that detail, they failed to satisfy the statutory requirements.

Student note:   A cause of action to recover damages for fraud requires allegations of: (1) a false representation of fact, (2) knowledge of the falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) damages.

Case:  Doukas v. Ballard, NY Slip Op 00474 (2d Dept. 2016)

Here is the decision.

Monday's issue:  A lessee/sublessor's liability.

A double-parked vehicle, negligence, and proximate cause.

Practie point:  The Appellate Division reversed the motion court, and denied plaintiff's motion for partial summary judgment on the issue of liability in this action where plaintiff's vehicle was double-parked, in violation of 34 RCNY 4-08(f)(1), when it was struck by defendants' vehicle as that vehicle attempted to pass plaintiff's car. Plaintiff failed to show that his own negligence in double-parking his car in the traveling lane was not a proximate cause of the accident.

Student note:  The Appellate Division rejected, as a matter of law, plaintiff's assertion that the fact that his vehicle was double-parked merely furnished the occasion for the accident.

Case:  Brito v. RDJ Express Transp., NY Slip Op 00594 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Dismissal of a fraud claim.

CPLR 3408 and negotiating in good faith.

Practice point:  CPLR 3408 is a remedial statute, enacted in response to the 2008 mortgage crisis, which requires that the parties enter into and conduct negotiations in good faith. In this mortgage foreclosure action, the Appellate Division affirmed the denial of defendant's motion to dismiss  as a sanction for plaintiff's alleged failure to negotiate in good faith. The Appellate Division determined that the documentation defendant submitted in support of her motion did not establish that plaintiff failed to negotiate in good faith by refusing to accept defendant's proposal of a lump sum payment of in full satisfaction of the outstanding loan balance.

Student note:  The issue of whether a party failed to negotiate in good faith' within the meaning of CPLR 3408(f) will be determined by considering whether the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution.

Case:  Deutsche Bank Natl. Trust Co. v. Twersky, NY Slip Op 00473 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  A double-parked vehicle, negligence, and proximate cause.

Premature summary judgment motions.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion even though it was made before defendant produced a witness  for deposition.  Defendant established prima facie that plaintiff's slip and fall on ice was not due to any negligence on its part by submitting a departmental director's affidavit stating that defendant operated a bus route with a stop at the subject location but did not "own, manage, maintain, operate, or control any bus stops."  Plaintiff failed to make a showing that discovery might lead to relevant evidence supporting her claim that defendant owned or was responsible for removing snow and ice from the accident location.

Plaintiff could not argue that defendant breached a common carrier's duty to provide a safe means of ingress, because plaintiff did not plead this theory of liability in her notices of claim.

Case:  Cruz v. City of New York, NY Slip Op 00586 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  CPLR 3408 and negotiating in good faith.

Unjust enrichment claims and the statute of frauds.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss the unjust enrichment claim in this action to recover a finder's fee allegedly due plaintiff from the sale of certain assets belonging to a nonparty, and misappropriated by defendant. It is uncontested that the finder's fee was a matter of contract between plaintiff and the nonparty, and that plaintiff and defendant were not parties to a written agreement.

Plaintiff's claim is not, as defendant contends, barred by the statute of frauds, at  General Obligations Law § 5-701[a][10]. The Court of Appeals has upheld an unjust enrichment claim in the absence of a writing, and so the statute of frauds is inapplicable and irrelevant to the analysis.

Student note:  An unjust enrichment claim is founded on a quasi-contract theory of recovery and is imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned.

Case:  Winthrop v. Rosenthal & Rosenthal, Inc., NY Slip Op 00582 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Premature summary judgment motions.