A fall from an elevated display platform.

Practice point:  The Appellate Division reversed the motion court and dismissed the complaint in this action where plaintiff alleges that she was injured when she fell off an elevated display platform in defendants' store. Defendants submitted evidence demonstrating that the platform and steps leading to the platform were not dangerous conditions, as photographs showed that the steps of the platform were clearly demarcated with thick black lines which contrasted with the light color of the floorboards. The evidence also established that the steps were lighted and free of debris.

In addition, plaintiff testified that she turned and stepped without looking down because she was looking for a sales associate, and that the steps played no part in her fall.

Student note:  Defendants met their initial burden of showing that they neither created a dangerous condition at the platform and steps, nor had actual or constructive notice of such a condition.

Case:  Pinkham v. West Elm, NY Slip Op 05899 (1st Dep't August 25, 2016)

Here is the decision.

Tomorrow's issue:  Setting aside a foreclosure sale.

Dismissal based on the belated disclosure of a videotape.

Practice point:  The Appellate Division reversed the Supreme Court and reinstated the complaint in this action where plaintiff allegedly tripped and fell on wires laid across the floor at a banquet hall leased and operated by defendant.

At her deposition, plaintiff testified that a video was shot of the party. During discovery, when defendants requested production of any photographs taken at the time of the alleged accident, plaintiff responded that she did not have any. At trial, during cross-examination, plaintiff testified that, on the previous day, she had searched her home and found a video of the party. Plaintiff gave the video to her attorney around noon that day but the attorney did not notify the court and defendants until nearly 4:00 p.m., during plaintiff's cross-examination.

The Appellate Division found that, under these circumstances, the court abused its discretion in dismissing the complaint due to plaintiff's belated disclosure of the video. While CPLR 3101(i) requires, upon demand, disclosure of "any films, photographs, video tapes or audio tapes," there is insufficient evidence of willful or contumacious conduct on plaintiff's part, or of prejudice to defendant, so as to warrant the dismissal of the complaint in the midst of the jury trial.

There was no court order directing plaintiff to produce the video, and defendant's discovery demands only requested that plaintiff produce photographs.  Plaintiff did not seek to introduce the edited video, which did not show her fall, at trial. In fact, she was willing to consent to its preclusion, the striking of her testimony concerning its existence, and a curative instruction, even though she believed the video to be favorable to her because it showed a cord across the floor and one of defendant's principals standing in the vicinity.

Student note:  Prior to trial, the parties entered into a high-low agreement as to damages. As the dismissal was reversed, the agreement will be enforced at trial.

Case:  Cox v. Grand Slam Banquet Hall, NY Slip Op 05897 (1st Dep't August 25, 2016)

Here is the decision.

Tomorrow's issue:  A fall from an elevated display platform.

Aggrieved parties and the right to appeal.

Practice point:  The order was not based on defendant's default but on the merits, after consideration of the parties' arguments. Therefore, defendant is an aggrieved party and may appeal the motion court's determination.

Student note:  CPLR 5511 limits the right to appeal to aggrieved parties.

Case:  Abushihadeh v. Bravo, NY Slip Op 05843 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Dismissal based on the belated disclosure of a videotape.

Alleged ineffective assistance of counsel.

Practice point:  In a civil litigation, an attorney's errors or omissions are binding on the client, and, in the absence of extraordinary circumstances, the court will not entertain a claim of ineffective assistance of counsel.

Case:  HBJOBaron Assoc. v. Leahing, NY Slip Op 05793 (2d Dep't August 17, 2016)

Here is the decision.

Monday's issue:  Aggrieved parties and the right to appeal.

Company policy manuals as enforceable obligations.

Practice point:  Provisions in company policy manuals that can be amended or withdrawn unilaterally do not constitute enforceable obligations owing from an employer to its employees, absent a showing of the employer's regular practice of providing the benefits now claimed, the employee's knowledge of the practice, and the employee's reliance upon the practice as evidenced by accepting or continuing employment as a result thereof.

Case:  Cohen v. National Grid USA, NY Slip Op 05786 (2d Dep't August 17, 2016)

Here is the decision.

Tomorrow's issue:  Alleged ineffective assistance of counsel.

Waiving the issue of standing in a mortgage foreclosure action.

Practice point:  When the homeowner did not raise the affirmative defense of standing in his answer or in a pre-answer motion to dismiss the complaint, he waived the issue. Where the defendant in a mortgage foreclosure action waives the issue of standing, the plaintiff need not establish its standing in order to demonstrate its prima facie entitlement to judgment as a matter of law.

Student note:  Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default.

Case:  Bank of N.Y. Trust Co., N.A. v. Chiejina, NY Slip Op 05784 (2d Dep't August 17, 2016)

Here is the decision.

Tomorrow's issue:  Company policy manuals as enforceable obligations.

Vacating a default pursuant to CPLR 5015.

Practice point:  CPLR 5015(a)(1) requires a movant seeking to vacate a default to move within one year of entry of the default and to show both a reasonable excuse for the default and a meritorious defense.  Here, the Appellate Division found that law office failure was a reasonable excuse, noting that, at oral argument, the movant conceded that, in this e-filed case, their office failed to regularly check its email and, as a result, was unaware of the motion court's order that gave rise to the default.  This excuse was sufficiently particularized, and there is no evidence of wilful or contumacious conduct.

Additionally, movant demonstrated a meritorious defense. Petitioner was a probationary employee who was arrested and charged with DWI while still on probationary status. His commercial driver's license, a requirement for a sanitation worker, was suspended and then revoked as a result. Several disciplinary complaints were filed as a result of this incident, and he was subsequently terminated.

Student note:  A probationary employee may be discharged without a hearing or a statement of reasons, in the absence of a demonstration that the termination was made in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law.

Case:  Matter of Rivera v. New York City Dept. of Sanitation, NY Slip Op 05837 (1st Dep't August 18, 2016)

Tomorrow's issue:  Waiving the issue of standing in a mortgage foreclosure action.

Non-employers, joint employers, and employment discrimination claims.

Practice point:  In determining whether an ostensible non employer is actually a joint employer for purposes of employment discrimination claims under the State and City Human Rights Laws,  Federal District courts in New York have applied the "immediate control" test.  Under the test, there is a joint employer relationship where there is sufficient evidence that the defendant had immediate control over the other company's employees, especially the defendant's control in setting the terms and conditions of the employee's work.

Student note:  In applying the test, relevant factors include commonality of hiring, firing, discipline, pay, insurance, records, and supervision,  The most important factor is the extent of the employer's right to control the means and manner of the worker's performance.

Case:  Brankov v. Hazzard, NY Slip Op 05778 (1st Dep't August 11, 2016)

Here is the decision.

Tomorrow's issue:  Vacating a default pursuant to CPLR 5015.

CPLR 3126 and discovery violations.

Practice point:  The drastic remedy of striking a pleading pursuant to CPLR 3126 will not be imposed unless the failure to comply with discovery demands or orders is willful and contumacious. Similarly, precluding a party from presenting evidence requires a showing of willful and contumacious conduct. Such conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply over an extended period of time.

Student note:  The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of the motion court.

Case:  Cioffi v. S.M. Foods, Inc., NY Slip Op 05741 (2d Dep't August 10, 2016)

Here is the decision.

Monday's issue: Non-employers, joint employers, and employment discrimination claims.

Statue of limitations on an alleged violation of Rule 105 of Regulation M of the Securities Exchange Act.

Practice point:  A breach of fiduciary duty claim based on an alleged violation of Rule 105 of Regulation M of the Securities Exchange Act of 1934 is subject to a three-year rather than a six-year statute of limitations.

Student note:  The issue of the statute of limitations may be considered for the first time on appeal because it does not depend on a matter outside the record.

Case:  Beach v. Touradji Capital Mgt., LP, NY Slip Op 05757 (1st Dep't August 11, 2016)

Here is the decision.

Tomorrow's issue: CPLR 3126 and discovery violations.

Oral agreements and indefiniteness.

Practice point:  An oral agreement may be enforceable as long as the terms are clear and definite and the conduct of the parties evinces mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. However, not all terms of a contract need be fixed with absolute certainty, and courts will not apply the doctrine of indefiniteness to defeat the reasonable expectations of the parties in entering into the contract.

Student note:  Where there may exist an objective method for supplying the missing terms needed to calculate the alleged compensation owed to a plaintiff, a claimed oral agreement is not, as a matter of law, unenforceable for indefiniteness.

Case:  Kramer v. Greene, NY Slip Op 05776 (1st Dep't August 11, 2016)

Here is the decision.

Tomorrow's issue: Statue of limitations on an alleged violation of Rule 105 of Regulation M of the Securities Exchange Act.

A chain collision accident.

Practice point:  In a chain collision accident, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle.

Student note:  A driver shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway, pursuant to Vehicle and Traffic Law § 1129 [a]. So, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision.

Case:  Chuk Hwa Shin v. Correale, NY Slip Op 05749 (2d Dep't August 10, 2016)

Tomorrow's issue:  Oral agreements and indefiniteness.

Assumption of the risk in a zip-line accident.

Practice point:  The Appellate Division reversed the granting of the motion to dismiss, noting that if plaintiff had merely lost his grip and fallen off the seat while riding the zip line, he would be barred from recovery because that is an inherent risk of zip-lining. However, plaintiff's claim is not that he fell victim to such a common hazard. Rather, it is that the zip line was negligently constructed by defendant and that he had no way of knowing that. A person cannot be said to have assumed the risk of being injured by faulty equipment when he was unaware that the equipment was faulty.

Student note:  A participant in an athletic or recreational activity assumes known risks and relieves a defendant of any duty to safeguard him or her from those risks.  However, a participant only consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Whether a plaintiff was aware of the risk is key to determining if he or she assumed it, and this can only be assessed against the background of the skill and experience of the particular plaintiff. In addition, sporting participants will not be deemed to have assumed concealed or unreasonably increased risks.

Case:  Zelkowitz v. Country Group, Inc., NY Slip Op 05732 (1st Dep't August 4, 2016)

Here is the decision.

Tomorrow's issue:  A chain collision accident.

A post-appeal motion for leave to renew.

Practice point:  On a post-appeal motion for leave to renew, the movant bears a heavy burden of showing due diligence in presenting the new evidence to the Supreme Court.  The motion is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

Student note:  Pursuant to CPLR 2221(e)(2), a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination . . . and . . . shall contain reasonable justification for the failure to present such facts on the prior motion."

Case:  Priant v. New York City Tr. Auth., NY Slip Op 05707 (2d Dep't August 3, 2016)

Here is the decision.

Monday's issue:  Assumption of the risk in a zip-line accident.

Traffic lights and municipal liability.

Practice point:  The installation of a traffic control signal, where it had not previously existed, is a discretionary governmental function that does not give rise to state liability. However, liability is imposed where there is a failure properly to maintain an already established traffic ligh, and where that failure was a proximate cause of the accident.

Student note:  The state has a non-delegable duty to maintain the roadway in safe condition.

Case:  Chang v. City of New York, NY Slip Op 05728 (1st Dep't August 4, 2016)

Here is the decision.

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

Venue in an action involving a domestic corporation.

Practice point:  The venue of an action is proper in the county in which any of the parties resided at the time of commencement. The sole residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation, despite its maintenance of an office or facility in another county.

Student note:  To prevail on a motion pursuant to CPLR 510(1) to change venue, a defendant must show that the plaintiff's choice of venue is improper, and also that the defendant's choice of venue is proper.

Case:  Kidd v. 22-11 Realty, LLC, NY Slip Op 05705 (2d Dep't August 3, 2016)

Here is the decision.

Tomorrow's issue:  Traffic lights and municipal liability.

Attorney disqualification based on an alleged conflict of interest.

Practice point:  Where, as here, a party is neither a present nor a former client of the law firm sought to be disqualified, it acks standing to seek disqualification.

Student note:  The basis of a motion to disqualify an attorney due to an alleged conflict of interest is an allegation of a breach of a fiduciary duty owed by an attorney to a current or former client. When the firm sought to be disqualified has never represented the moving party, that firm owes no duty to that party, and there can be no duty breached.

Case:  Ellison v. Chartis Claims, Inc., NY Slip Op 05704 (2d Dep't August 3, 2016)

Here is the decision.

Tomorrow's issue:  Venue in an action involving a domestic corporation.

An "error in judgment" charge.

Practice point:  The Appellate Division determined that a new trial is required because the Supreme Court erred in giving an "error in judgment" charge over the plaintiff's objection. The Appellate Division found that this case does not present a choice between one of two or more medically acceptable alternative treatments or techniques.  The defendant testified that he diagnosed the decedent with a benign non-urgent condition, and he neither suspected cancer nor considered the option of sending the decedent for further diagnostic testing. Thus, the case presented the jury with the straightforward question of whether the defendant deviated from the applicable standard of care in diagnosing the decedent.

Student note:  The charge is appropriate only in a narrow category of medical malpractice cases in which there is evidence that defendant physician considered and chose among several medically acceptable treatment alternatives.

Case:  Lacqua v. Silich, NY Slip Op 05628 (2d Dep't July 27, 2016)

Here is the decision.

Tomorrow's issue: Attorney disqualification based on an alleged conflict of interest.

A municipality's liability based on a special duty owed to an injured plaintiff.

Practice point:  When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held liable unless it owed a special duty to the injured party. Such a special duty can arise, as is relevant in this action, where the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally, or where the municipality voluntarily assumed a special relationship with the plaintiff.

Student note:  A municipality will be held to have voluntarily assumed a duty or special relationship with the plaintiffs where there is: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.

Case:  Holloway v. City of New York, NY Slip Op 05267 (2d Dep't July 27, 2016)

Here is the decision.

Monday's issue:  An "error in judgment" charge.

Res judicata and permissive counterclaims.

Practice point:  New York is a permissive counterclaim jurisdiction, pursuant to CPLR 3011. New York's permissive counterclaim rule may save from the bar of res judicata those claims for separate or different relief that could have been, but were not interposed in the parties' prior action.  However, it does not permit a party to remain silent in the first action and then bring a second one on the basis of a preexisting claim for relief that would impair the rights or interests established in the first action.

Student note:  Under New York's transactional analysis approach to res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.

Case:  Paramount Pictures Corp. v. Allianz Risk Transfer AG, NY Slip Op 05618 (1st Dep't July 21, 2016)

Here is the decision.

Tomorrow's issue:  A municipality's liability based on a special duty owed to an injured plaintiff.

Summary judgment in a negligence action.

Practice point:  The Appellate Division reversed the motion court's granting of defendants' motion and reinstated the complaint in this action for injuries allegedly sustained when plaintiff's motorcycle came in contact with the rear of a box truck operated by defendant-driver and owned by defendant-owner. Defendants failed to establish their prima facie entitlement to judgment as a matter of law. In support of their motion, the defendants submitted, inter other things, an affidavit from defendant-driver and a number of verified witness statements which presented conflicting evidence as to how the accident occurred, including a statement that the defendants' vehicle "stop[ped] short at [a] green light [and] the motorcycle . . . had no time to stop or maneuver." On this record, defendants failed to eliminate all triable issues of fact as to whether the defendant-driver was free from fault in the happening of the accident.

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.

Case:  Gonzalez v. Ayala, NY Slip Op 05626 (2d Dep't July 27, 2016)

Here is the decision.

Tomorrow's issue:  Res judicata and permissive counterclaims.

Summary judgment on a motor vehicle accident claim.

Practice point:  The Appellate Division affirmed the granting of the motion dismissing plaintiff's claims based on a lack of a serious injury within the meaning of Insurance Law § 5102(d).

Defendant established entitlement to judgment as a matter of law by showing that plaintiff did not suffer a serious injury to her cervical spine, lumbar spine, or right knee as a result of the motor vehicle accident at issue. Defendant submitted the affirmed reports of an orthopedist and a neurologist, showing no significant limitations, negative clinical results, and a resolved sprain and contusion. Defendant also submitted a radiologist's affirmed report which found, upon review of the MRI scans, no evidence of any disc bulges or herniations in the spine, no recent or acute posttraumatic or causally related disc changes, and only preexisting degenerative changes in the knee.

In opposition, plaintiff failed to raise a triable issue of fact. She provided no medical findings of resulting limitations in use of her spine or right knee, shown by either quantified range of motion testing or by a qualitative assessment of her limitations compared with normal function. Plaintiff's orthopedic surgeon never examined her spine, and, although he performed diagnostic arthroscopic surgery on her right knee, he failed to set forth any findings of limitations in the knee, either before or after the surgery. In the absence of evidence of limitations, the orthopedist's conclusory opinion that the accident caused the right knee injury was also insufficient.

Student note:  The unaffirmed MRI reports, which were the only objective evidence submitted by plaintiff concerning her claims of spinal injury, are inadmissible because they are unsworn, and were not relied upon by defendant's experts.

Case:   Hernandez v Cespedes, NY Slip Op 05662 (1st Dep't July 28, 2016)

Here is the decision.

Tomorrow's issue:  Summary judgment in a negligence action.

A failed motion to strike an answer.

Practice point:  The Appellate Division reversed the Supreme Court, finding that plaintiff's motion to strike defendant's answer and for summary judgment on its complaint should have been denied. Striking a party's pleadings is a drastic sanction that requires a clear showing that the party's conduct was willful and contumacious, and plaintiff failed to make this showing. Instead, the record makes clear that the facts surrounding defendant's failure to appear for deposition are in dispute. Defendant submitted affidavits stating that plaintiff had affirmatively agreed to postpone depositions while the parties tried to discern, among other things, who had signed which agreements. The Appellate Division said that, under these circumstances, there must be a hearing to determine whether defendant's failure to attend the deposition was willful and contumacious,

Student note:  The Appellate Division noted that, in New York, there is a strong preference for deciding matters on the merits.

Case:  CEMD El. Corp. v. Metrotech LLC I, NY Slip Op 05542 (1st Dep't July 14, 2016)

Here is the decision.

Tomorrow's issue:  Summary judgment on a motor vehicle accident claim.