Failure to prosecute

Strict conformity to the notice requirements of CPLR 3216 is a condition precedent to dismissal for failure to prosecute, according to the Second Department, in Harrison v. Good Samaritan Hospital Medical Center, which was decided on September 18, 2007. The court explained that, since 3216 is a legislative creation, it cannot be part of a court's inherent power.

Specifically, defendant must serve a written notice demanding that plaintiff resume prosecution of the action and file a note of issue within 90 days after receipt of the demand, and must stating that failure to comply with the demand will serve as the basis for a motion to dismiss the action.

An Inconvenient Forum.

The First Department denied defendant's motion to dismiss based on forum non conveniens, in Jones v. Eon Labs, Inc., which was decided on September 18, 2007.

The court said that the motion was untimely since it was made two years after the commencement of the action, and after there had been significant progress in discovery.

Moreover, said the court, defendant failed to carry its burden of demonstrating that its inconvenience strongly favors removal of the action to Virginia. "While many witnesses do appear to reside in Virginia, the very discovery statute cited by defendant (Va Code Ann § 8.01-411), through which it would assertedly be forced to operate to obtain depositions and other discovery, provides a simplified procedure."

Where's the causality?

Plaintiff allegedly was injured when she tripped on a concrete wheel-stop in a parking lot. The Second Department dismissed the complaint, in Albano v. Milano's Discount Wines & Liquors, which was decided on September 18, 2007.

Plaintiff offered expert evidence that the parking space's design violated various provisions of the New York City Building Code, but, in spite of that, the court said plaintiff failed to raise a triable issue of fact as to whether the allegedly defective design was a proximate cause of her accident.

Statutory Liens.

After a medical malpractice action settled, plaintiff's current counsel moved to preclude one of plaintiff's former counsels from an entitlement to an award of attorney's fees, arguing, among other things, that the original retainer agreement did not specify the retained attorney's name.

The Second Department said the former counsel is entitled to fees, in Fuentes v. Brookhaven Memorial Hospital, which was decided on September 18, 2007. The court said that the former counsel has a statutory lien, pursuant to Judiciary Law § 475, against the settlement proceeds since he was an attorney of record, he had filed the summons and complaint, and he had prosecuted the action to the point of trial.

The court gave short shrift to the fact that certain sections of the retainer agreement had been left blank, since they were not the subject of the dispute. In addition, the former counsel had filed his own retainer agreement, albeit late, and this was sufficient under the circumstances to preserve his right to recover a share of the fee.

School's Out.

The First Department denied petitioner's challenge to her termination as a probationary assistant principal, in Matter of James v. Klein, which was decided on September 25, 2007.

The court noted that the matter had been improperly transferred to it, citing CPLR 7804(g), and that the proper standard of review in this matter is "arbitrary and capricious," as specified in CPLR 7803(3), not the "substantial evidence" of 7803(4).

In any event, the court did not have to apply the review standard. Since petitioner failed to commence this Article 78 proceeding within four months of the effective termination of her probationary employment, the challenge to the discontinuation of her probationary status was time-barred.

Contractor Liability

The First Department denied defendant-contractor's cross-motion for summary judgment, in Grant v. Caprice Mgt. Co., decided on September 18, 2007, in which plaintiff seeks damages for injuries she allegedly sustained when a window installed by defendant fell out of its tracks and struck her in the head as she tried to close it.

While a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third person, there is an exception when a contractor, having undertaken to perform services pursuant to a contract, negligently creates or exacerbates a dangerous condition so as to effectively launch a force or instrument of harm. The court held that the allegations here fit that exception, and so plaintiff will have her day in court.

The Second Department denied defendant's motion to preclude plaintiff from recovering damages under the Dram Shop Act, as codified at General Obligations Law § 11-101, because he caused or procured the intoxication of the driver of the vehicle involved in the accident which resulted in his alleged injuries, in Baker v, D.J. Stapleton, Inc., which was decided on September 11, 2007.

The court said that defendant failed to make the requisite showing that plaintiff played a much more affirmative role than that of drinking companion to the driver. In addition, the court noted that defendant had submitted deposition testimony which presented issues of credibility, and from which conflicting inferences could be drawn with respect to plaintiff's involvement in the driver's intoxication, and that this made summary judgment inappropriate.

Sam Shaw was a photographer who took thousands of celebrity snapshots, including the one of Marilyn Monroe standing on the subway grate. Before he died, Shaw and his son were involved in contentious litigation over ownership of more than 200,000 photos.

When Shaw died, his two daughters were appointed temporary administrators to prosecute the ongoing action against their brother, and they appointed a receiver of another 500,000 photographs which had been in Shaw's possession. The receiver stored the photographs in a warehouse, where they were damaged. The receiver filed a $2 million claim with the insurer, which then filed for bankruptcy protection; the claim was turned over to the New York State Liquidation Bureau and assigned to an adjuster, but remains unresolved.

The original litigation was finally settled, but, subsequently, there were fee disputes between the parties and their attorneys, on both sides, which the First Department addressed, in Tunick v. Shaw, which was decided on September 13, 2007.

Here, plaintiff had represented Shaw's son in the original action, and under a written retainer agreement, he would bill at $200 an hour. The sisters' counsel billed at $300 an hour, and, pursuant to the written retainer agreement, double that rate if he obtained for the sisters the photos in question or certain monies flowing from the photos.

Plaintiff commenced this special proceeding to fix his charging lien, pursuant to Judiciary Law § 475, of more than one-half million dollars, and to attach the lien to the 700,000 photographs and any insurance proceeds settling the storage claim. The sisters' counsel cross-petitioned to fix his charging lien at more than a million dollars, representing the double fee rate as recited in his retainer agreement.

The court said that, although the disputed photographs were in existence before the attorneys got involved, their efforts resulted in the settlement, sorting out the ownership questions and creating a single collection, thus constituting proceeds from litigation upon which a charging lien can affix.

The court also said that charging liens attached to any insurance proceeds for damage to the photographs while in storage. The court explained that the enforcement of a charging lien is founded on the equitable notion that settlement proceeds are ultimately under the control of the court, and the parties within its jurisdiction, and the court must see that no injustice is done to its own officers. A charging lien follows the course of the litigation, wherever that goes, and follows the proceeds, whatever their source.

The court said that, in effect, proceeds of the insurance claim for the damaged photographs are the photographs in a different form, and therefore the charging liens attach to those insurance proceeds, even though the receiver, and not the attorneys themselves, had been prosecuting the insurance claim.

The court noted that Shaw's son had never denied receiving his attorney's bills, and he never protested their amounts, and so the attorney has a charging lien in that amount, plus contractual interest.

Finally, the court said the sisters' attorney could collect on the double-rate fee arrangement since it was clearly specified in the retainer agreement.

The First Department refused to dismiss the complaint as against defendant-owner of the staircases on which plaintiff's alleged injuries were sustained, in Tavis v. 885 Third Ave. Corp., which was decided on September 13, 2007. Noting that defendant owed a duty of reasonable care to keep the staircases safe, the court found evidence in the record that defendant had hired someone to clean and maintain the staircases, but only during the week and on Sunday evenings. Plaintiff's accident happened on a Saturday, and, on the date of the accident, both sets of stairs were littered with debris and trash and were wet in certain spots.

The court said this raised a fact-question as to the reasonableness of defendant's practice of leaving the staircases, located in a heavily traveled area, uninspected and unattended on weekends, and whether, the debris, trash and wetness were visible and apparent for a period time sufficient to constitute constructive notice.

Plaintiff was injured when he was hit by a bicyclist who was making deliveries for defendant, a franchisee of Papa John's. The First Department dismissed the complaint as against Papa John's, in Martinez v. Higher Powered Pizza, Inc., which was decided on September 13, 2007.

"The mere existence of a franchise agreement is insufficient to impose vicarious liability on the franchisor for the acts of its franchisee; there must be a showing that the franchisor exercised control over the day-to-day operations of its franchisee." The court noted that, here, the franchise agreement expressly states that the franchisee will have full responsibility for the terms of employment and conduct of its employees and for the day-to-day operation of its business, and that the only control the agreement reserves to Papa John's involves the enforcement of corporate standards regarding food quality and preparation, hours of operation, menu items, employee uniform guidelines, and packaging requirements.

Finally, the court said, Papa John's did not reserve control over the product-delivery process; the bicyclist was not employed by Papa John's; and Papa John's does not own or operate a restaurant in New York County.

Petitioner was a candidate to become a police officer and, in order to qualify, he had to take a polygraph examination. Based on that test, the department determined that petitioner was deceptive in answering questions about his involvement with illegal drugs and narcotics, and disqualified him from further consideration.

Petitioner commenced an administrative appeal and it was ordered that the polygraph results be sent to an independent police unit for verification, in this case, the Vermont State Police. That independent review confirmed petitioner's deceptiveness, and he was again notified that he was disqualified from employment.

The Second Department upheld the department's determination, in Mullen v. County of Suffolk, which was decided on September 11, 2007. The court noted that an appointing authority has wide discretion in determining the fitness of candidates, especially in the hiring of law enforcement officers, to whom high standards may properly be applied. The court said that a court will not interfere with the agency's decision unless it is irrational or arbitrary. Here, it was neither irrational nor arbitrary for the department to rely on its own reading of the polygraph results, as confirmed by an outside entity.