A bus operator's duty of care.

Practice point:  A common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area.

Student note:  A common carrier is subject to the same duty of care as any other potential tortfeasor, namely, reasonable care under all of the circumstances of the particular case.

Case:  Amin v. County of Suffolk, NY Slip Op 02947 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Primary assumption of the risk.

The common interest privilege.

Practice point:  Under this doctrine, a third party may be present at the communication between an attorney and a client without destroying the privilege if the communication is for the purpose of furthering a nearly identical legal interest shared by the client and the third party.

Student note:  The common interest privilege serves as an exception to the general rule that the presence of a third party at a communication between counsel and client will waive a claim that a communication is confidential.

Case:  Levy v. Arbor Commercial Funding, LLC, NY Slip Op 03063 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A bus operator's duty of care.

Derivative suits and the futility of making a demand of the board.

Practice point:  Business Corporation Law § 626(c) provides that in a shareholders' derivative suit, "the complaint shall set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board or the reasons for not making such effort."  To overcome a motion to dismiss for failure to plead demand futility, a plaintiff must have alleged with particularity that (1) a majority of the directors are interested in the transaction, or (2) the directors failed to inform themselves to a degree reasonably necessary about the transaction, or (3) the directors failed to exercise their business judgement in approving the transaction.

Student note:  The Appellate Division did not consider plaintiff's argument because it was made for the first time on appeal, and it contradicted the allegations in his complaint.

Case:  Goldstein v. Bass, NY Slip Op 03060 (1st Dep't 2016)

Here is the deision.

Tomorrow's issue:  The common interest privilege.

An assault on Transit Authority property.

Practice point:  The Appellate Division affirmed the granting of defendant's motion for summary judgment in this action to recover damages for personal injuries. The defendant-Transit Authority demonstrated that it had no special relationship with the plaintiff, thereby establishing its prima facie entitlement to judgment as a matter of law, and, in opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's claims that a Transit employee observed another passenger injuring her on Transit property and failed to summon emergency assistance in a timely manner from a position of safety is based on speculation and conjecture, and thus, is insufficient to defeat the motion.

Student note:  Generally, the Transit Authority owes no duty to protect a person on its premises from assault by a third person, absent facts establishing a special relationship between the agency and the person assaulted. A "special relationship" requires justifiable reliance by a plaintiff upon an affirmative undertaking by the municipal defendant to act on the plaintiff's behalf.  However, a Transit employee's unreasonable failure to summon aid upon observing an injury being inflicted from a vantage point offering both safety and the means to summon help without danger may fall within the narrow range of circumstances which could be actionable.

Case:  Jacobs v. Transit Authority, NY Slip Op 02776 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Derivative suits and the futility of making a demand of the board.

The granting of attorneys' fees pursuant to Lien Law.

Practice point:  The Appellate Division found that attorneys' fees were improperly granted pursuant to Lien Law §§ 39 and 39-a, since this was not an action or proceeding to enforce the lien, and the lien had been discharged without a finding of willful exaggeration.  The Appellate Division noted that the statute is penal in nature, and must be strictly construed in favor of the person upon whom the penalty is sought to be imposed.

Student note:  Although respondents failed to raise this issue in opposition to the petition, the Appellate Division reached it because it presents a legal issue that appears on the face of the record and could not have been avoided if raised at the proper juncture.

Case:  Harrington v. Smith, NY Slip Op 02934 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  An assault on Transit Authority property.

Alleging injuries caused by the negligence of a state employee.

Practice point:  Pursuant to the Court of Claims Act § 10(3), a claim to recover damages for personal injuries caused by a state employee's negligence must be filed within 90 days after the claim accrues, unless the claimant within such time serves a written notice of intention to file a claim, in which event the claim shall be filed within two years after accrual.  The statute requires a claim to specify, among other things, the time when the claim arose and the place where it arose.  A notice of intention to file a claim must also include a statement as to when and where the claim arose.

Student note:  The statutory requirements  are set forth in sections §§ 10(3) and 11(b), and must be strictly construed. Noncompliance is a jurisdictional defect compelling dismissal.

Case:  Hargrove v. State of New York, NY Slip Op 02774 (2d Dep't 2016)

Here is the decision.

Monday's issue:  The granting of attorneys' fees pursuant to Lien Law.

A livery cab, an accident, and summary judgment.

Practice point:  The Appellate Division affirmed the denial of defendant's summary judgment motion dismissing the complaint in this action where plaintiff injured her ankle when, while riding as a passenger in the back seat of defendant's livery cab, she claims the vehicle came to an abrupt stop. At deposition, plaintiff admitted that she could not provide an account of the sequence of events culminating in the accident because she was not paying attention. Defendant moved for summary judgment, relying on the emergency doctrine, claiming that another car unexpectedly cut in front of him, which required him to immediately apply his brakes to avoid a collision. The Appellate Division agreed with the motion court that, notwithstanding defendant's present account of the accident, there are issues of fact regarding whether the stop was necessitated by an emergency that was not of defendant's own making.

Student note:  The emergency doctrine will prevent a finding of negligence against a driver confronted by a sudden and unexpected situation that leaves little time for thought, deliberation or consideration, provided that the driver's actions were reasonably prudent under emergent circumstances, and the driver did not create or contribute to the emergency. The existence of an emergency and reasonableness of a party's response to the situation ordinarily present questions of fact.

Case:  Weston v. Castro, NY Slip Op 02902 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Alleging injuries caused by the negligence of a state employee.

A motion for leave to serve an amended notice of claim.

Practice point:  The Appellate Division found that the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion for leave to serve an amended notice of claim, and reversed.  The Appellate Division found nothing in the record to suggest that the plaintiff acted in bad faith or attempted to change the location of her fall, as she gave a consistent description of the location of her fall in her notice of claim, in her testimony at the General Municipal Law § 50-h hearing held pursuant to,  and in her complaint. When the plaintiff served the defendant with a notice of claim, she attached a photograph of the accident-site. When she moved for leave to amend, she attached additional photographs which depicted the same intersection viewed from different angles. If there were any inconsistency between the original description of the location of the plaintiff's fall and the description provided in the amended notice of claim, it did not prejudice the defendant.

Student note:  A notice of claim must state the time when, the place where and the manner in which the claim arose.  Its purpose is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available. The statutory requirements are met when the notice describes the accident with sufficient particularity so as to enable the defendant to conduct a proper investigation thereof and to assess the claim's merits. A court may, in its discretion, allow a mistake, irregularity, or defect in the notice to be corrected as long as that mistake, irregularity, or defect was made in good faith and the public corporation was not prejudiced thereby.

Case: Avery v. New York City Tr. Auth., NY Slip Op 02770 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  A livery cab, an accident, and summary judgment.

Sanctions for destruction of evidence.

Practice point:  A party's willful and prejudicial destruction of evidence warrants the sanction of striking its pleadings.  Where a party disposes of evidence without moving for a protective order, a negative inference may be drawn that the destruction was willful. Willfulness may also be inferred from a party's repeated failure to comply with discovery directives.

Student note:  The Appellate Divison has upheld the striking of pleadings where the destruction of critical evidence occurs through ordinary negligence.

Case:  Chan v. Cheung, NY Slip Op 02731 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A motion for leave to serve an amended notice of claim.

Appliction of the relation-back doctrine.

Practice point:  There are three conditions that a plaintiff must satisfy before claims against one defendant may relate back to claims asserted against another: (1) both claims must arise out of the same conduct, transaction, or occurrence; (2) the new party must be united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new party either knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well.

Student note:  To establish the requisite unity of interest, the plaintiff had to show that their interest in the subject matter of the action is such that the defendants stand or fall together, and that a judgment against one would similarly affect the other.  If the relationship between the defendants is such that one may have a defense not available to the other, they are not united in interest. In addition, interests are united only where one defendant is vicariously liable for the acts of the other.

Case:  Berkeley v. 89th Jamaica Realty Co., L.P., NY Slip Op 02640 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Sanctions for destruction of evidence.

Application of the storm in progress rule.

Practice point:  Under the rule, a property owner is not responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence including the affidavit of a meteorologist, certified climatological data, and the affidavit of a licensed engineer. That evidence demonstrated that the roof of the shed partially collapsed due to the weight of the accumulated snow, and that it was snowing at the time of the occurrence and, therefore, that so the storm in progress rule applies. The burden then shifted to the plaintiff to raise a triable issue of fact as to whether the precipitation from the storm in progress was not the cause of the accident. The plaintiff failed to sustain this burden, and the Appellate Division affirmed the granting of the defendants' motion for summary judgment dismissing the complaint.

Student note:  A lull in the storm does not impose a duty to remove the accumulation of snow or ice before the storm ceases in its entirety.

Case:  Baker v. St. Christopher's Inn, Inc., NY Slip Op 02600 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Application of the relation-back doctrine.

Leave to amend denied.

Practice point:  The Appellate Division affirmed, finding that the IAS court did not abuse its discretion in denying plaintiff leave to amend to add claims of injuries to her left foot. While plaintiff was aware of the injury to her left foot for more than three years, she inexplicably delayed in seeking her expert's opinion on the issue of causation, and then further delayed in filing the instant motion. As the evidence ultimately relied upon by plaintiff's expert was developed in 2009 and 2011, well before plaintiff filed her note of issue in 2012, the motion was untimely.

Student note:  The decision to permit an amendment to a pleading or bill of particulars, especially on the eve of trial, is committed to the sound discretion of the IAS court.

Case:  Reuling v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 02707 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Application of the storm in progress rule.

CPLR 7511 and arbitration awards.

Practice point:  The Appellate Division rejected the petitioner's contention that the arbitrator exceeded his authority, and affirmed the arbitrator's award.  An arbitrator exceeds his or her authority only if the arbitrator gives a completely irrational construction to the provisions in dispute. Here, the Appellate Division determined that it was not irrational for the arbitrator to find that the broad arbitration clause of the subject personal management agreement, which contained a carve-out for the "collection of any past due monies," pertained only to disputes that were delinquent but not genuinely disputed, and that the determination of amounts owing could be determined by the arbitrator.

Nor was the arbitrator's determination in disregard of the law or so abusive of his discretion as to constitute misconduct. Petitioners were not denied a fair hearing because the arbitrator accepted respondent's position on commissions as expressed in her affidavit, which was supported by the documentary evidence submitted in response to petitioner's extensive interrogatories. There was no need for a deposition to determine respondent's credibility; the arbitrator had the opportunity to make that assessment at the arbitration hearing.

Student note:  The standard for vacating an arbitration award under CPLR 7511 is clear and convincing evidence.

Case:  Matter of Greenky v. Aytes, NY Slip Op 02714 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Leave to amend denied.

An attorney's withdrawal.

Practice point:  The Appellate Division reversed the motion court, finding that it improvidently exercised its discretion in denying the unopposed renewed motion for leave to withdraw as plaintiffs' counsel. The attorney established that plaintiffs were in substantial arrears in the payment of legal fees, and failed to cooperate in their representation.  In addition, plaintiffs did not oppose the motion for leave to withdraw as their counsel.

Student note:  An attorney may be permitted to withdraw from employment where a client refuses to pay reasonable legal fees, pursuant to Rules of Professional Conduct 1.16[c][5].  In addition, an attorney may withdraw from representing a client if the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively, pursuant to Rules of Professional Conduct 1.16[c][7].

Case:  Aragona v. Shaibani, NY Slip Op 02598 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  CPLR 7511 and arbitration awards.

Expert testimony and jury delibertions.

Practice point:  The jury is entitled to resolve in plaintiff's favor the conflict between the parties' expert witness testimony.  While defendant's expert reached a different conclusion as to causation, the jury is free to accord more weight to the testimony of plaintiff's expert.

Student note: The jury's resolution of the conflicting expert testimony is not a basis for an appellate court's disturbing the verdict.

Case:  Douayi v. Carissimi, NY Slip Op 02563 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  An attorney's withdrawal.

The death of a party.

Practice point:  The death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a legal representative for the decedent, pursuant to CPLR 1015(a).  Any determination rendered without the necessary substitution will be deemed a nullity.

Student note:  The death of a party terminates the authority of that person's attorney to act on that person's behalf.

Case:  Aurora Bank FSB v. Albright, NY Slip Op 02307 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Expert testimony and jury deliberations.

Summary judgment in a slip-and-fall action.

Practice point:  The defendant's maintenance employee testified at his deposition about his regular cleaning routine for the building, but he had no independent recollection of having cleaned the floor on the date of the plaintiff's accident.  There was no deposition testimony describing the condition, including whether the maintenance employee had seen water on the floor.  Since the defendant did not submit evidence regarding any specific inspection or cleaning of the area on the date of the accident, the defendant failed to establish that it did not have constructive notice of the alleged dangerous condition.  In addition, the defendant's submissions did not eliminate all triable issues of fact as to whether it created the alleged dangerous condition.  Therefore, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, and the Appellate Division affirmed the denial of the defendant's motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers.

Student note:  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 neither created the alleged dangerous condition nor had actual or constructive notice of its existence 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 plaintiff's fall. Mere reference to general cleaning practices, without evidence of any specific cleaning or inspection of the area, does not establish lack of constructive notice.

Case:  Ansari v. MB Hamptons, LLC, NY Slip Op 02305 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  The death of a party.

A motion to dismiss, and amending a bill of particulars.

Practice point:  The Appellate Division affirmed the motion to dismiss, as photographic evidence proves, and plaintiff acknowledges, that the compressor that was allegedly involved in plaintiff's accident was not at the job site on the day alleged. Plaintiff was not entitled to amend the bill of particulars on the eve of trial, after approximately seven years of litigation, since the photographs serving as the basis for the amendment were not newly available to plaintiff. Moreover, the proposed amendment, including changing the date of the accident, would have resulted in prejudice to defendants  

Student note:  Leave to amend pleadings, including a bill of particulars, will be freely given, absent prejudice or surprise. However, when the amendment is sought at or on the eve of trial, judicial discretion in allowing the amendment should be discreet, circumspect, prudent, and cautious.

Case:  Garguilo v. Port Auth. of N.Y. & N.J., NY Slip Op 02534 (1st Dep't 2016) 

Here is the decision.

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

Setting up a supplemental needs trust.

Practice point:  Plaintiff's daughter, now the decedent, had entered into a settlement with the MTA, resolving a personal injury action. Upon entering into the settlement, decedent, who was receiving supplemental security income, Medicare and Medicaid due to several preexisting conditions, petitioned the court to approve and authorize the creation of a supplemental needs trust, into which the settlement proceeds would be transferred.  The petition was granted, and the MTA sent its portion of the settlement to decedent's counsel, who placed the funds in escrow pending completion of the documents creating and funding the trust.  However, decedent died before she had the opportunity to formally execute the trust documents.  Defendant-claimant, which was to be the remainderman of the trust, moved for the principal and interest that remains in the trust.

The motion court denied the motion, because decedent's failure to complete the formalities associated with setting up the trust prior to her death was fatal to the trust's existence, and the Appellate Division affirmed. Neither decedent nor the putative trustee executed or acknowledged the proposed trust agreement, and the trust was never properly funded with the settlement proceeds. Accordingly, a valid trust was never created.

Student note:  The proposed trust is a "lifetime trust" within the meaning of the EPTL, and therefore it must comply with the formality requirements of EPTL 1-2.20.

Case:  Gaines v. City of New York, NY Slip Op 02294 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A motion to dismiss, and amending a bill of particulars.

The presumed constitutionality of a statute.

Practice point:  The Appellate Division found that the motion court properly determined that plaintiff failed to demonstrate that Family Court Act § 517 was unconstitutional to the extent that it placed a limitation on the time when a child could seek a paternity test, given the state's legitimate interest in securing support for a child from those legally responsible. The limitations period is not arbitrary and capricious in that, by age 21, a parent may not be legally responsible for support.

Plaintiff also failed to provide binding legal authority for his claim that he had a constitutional right to know the identity of his biological father, given the strong presumption that his mother's husband, who was listed on his birth certificate, is his father.

Student note:  A statute is presumed constitutional, and that presumption can only be overcome by proof that is persuasive beyond a reasonable doubt.

Case:  Winkler v. Sherman, NY Slip Op -2142 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Setting up a supplemental needs trust.

A successful motion for leave to amend.

Practice point:  The Appellate Division affirmed the granting of the cross motion for leave to amend, as the proposed amendments were not palpably insufficient or patently devoid of merit, and they did not prejudice or surprise the defendants.  Without alleging new or different facts, the proposed amendments merely sought to add new theories of recovery.

Student note:  Pursuant to CPLR 3025(b), leave to amend a pleading will be freely given, provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.  The motion court will not examine the merits of the proposed amendment unless its insufficiency or lack of merit is clear and beyond any doubt.

Case:  Gallagher v. 109-02 Dev., LLC, NY Slip Op 02050 (2d Dep't 2016)

Here is the decision.

Monday's issue: The presumed constitutionality of a statute.