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.

Construing contracts.

Practice point:  A contract will be construed in accordance with the parties' intent, which is generally discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. A contract is unambiguous if its language has a definite and precise meaning, unattended by the danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion.  A contract is considered ambiguous when, read as a whole, it does not disclose its purpose and the parties' intent, or when specific language is susceptible of two reasonable interpretations.

Whether a contract is ambiguous is an issue of law, and, if a court determines that a contract is ambiguous, it may consider extrinsic evidence in order to determine the parties' intent.

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:  Legum v. Russo, NY Slip Op 08149n (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Partition and sale of an apartment.

The Whistleblower Law.

Practice point:  The Appellate Division affirmed dismissal of the retaliation claim, finding that allegations that plaintiff reported an assault and battery by a supervisor fail to state a claim under Labor Law § 740, the Whistleblower Law. Assault and battery by a supervisor is not "an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud," as specified in § 740[2][a].

Student note:  The Appellate Division will not consider a claim asserted for the first time on appeal.

Case:  Diaz v. New York State Catholic Health Plan, Inc., NY Slip Op 08129 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Construing contracts.

Court Holiday.

Summary judgment in a slip-and-fall action.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion in this action where plaintiff alleges that he fell in the boiler room of the building where he worked as a maintenance worker when he attempted to back out of a tight area next to the boiler and his pants got caught on a brace or bracket supporting a pipe. Defendant, the owner of the building, established its entitlement to summary judgment by submitting photographic and testimonial evidence showing that the brace or bracket was not a defective condition, but was open and obvious, and not inherently dangerous. As was shown in the photographs, the condition was plainly observable and did not pose any danger to someone making reasonable use of his or her senses.

Student note:  Although plaintiff did not see the brace or bracket when he was backing up, it was not hidden or obscured from view and thus did not constitute a trap or snare. Contrary to plaintiff's arguments, defendant was not required to present expert testimony to meet its initial burden, and the issue of notice is irrelevant since there was no defective or dangerous condition in the boiler room.

Case:  Acosta v. Gouverneur Ct. L.P., NY Slip Op 08125 (1st Dept. 2015)

Here is the decision.

Friday's issue:  The Whistleblower Law.

Expert witness testimony in a medical malpractice action.

Practice point:  The Appellate Division rejected as without merit defendant's contention that plaintiff's expert was unqualified to give an expert opinion on the standard of care of a general surgeon and an anesthesiologist merely because the expert was a cardiologist. An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable.  Once a medical expert establishes knowledge of the relevant standards of care, the witness need not be a specialist in the particular area at issue to offer an opinion. Any lack of skill or expertise goes to the weight of the opinion as evidence, not its admissibility.

Student note:  In order to establish liability for medical malpractice, a plaintiff must prove that the defendant deviated or departed from accepted community standards of practice and that such departure was a proximate cause of the plaintiff's injuries.  On a motion for summary judgment, a defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In opposition, a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact.

Case:  Leavy v. Merriam, NY Slip Op 08148 (2d Dept. 2015)

Here is the decision.

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

Operating a vehicle with the right-of-way.

Practice point:  An operator of a motor vehicle traveling with the right-of-way has an obligation to keep a proper lookout and to see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles.

Student note:  As there can be more than one proximate cause of an accident, a plaintiff moving for summary judgment on the issue of liability has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault.  Generally, the issue of comparative fault is a jury question.

Case:  Jones v. Pinto, NY Slip Op 08147 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Expert witness testimony in a medical malpractice action.

Evidence of habit in a negligence case.

Practice point:  In a negligence case, a  party may introduce evidence of a habit or routine practice in order to allow the inference of its persistence, and, therefore, negligence on a particular occasion. However, to justify introduction of evidence as to habit or regular usage, there must be a showing that the party expects to prove a sufficient number of instances of the conduct in question.

Student note:  Here, the earliest proffered instance of the purported habit occurred more than two months after the date on which the appellant was injured, and was observed on only seven occasions over the next six weeks. The court, in its discretion, properly precluded the proffered evidence.

Case:  Gucciardi v. New Chopsticks House, Inc., NY Slip Op 08146 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Operating a vehicle with the right-of-way.

An injury resuting from an elevation-related risk.

Practice point:  The Appellate Division affirmed the granting of that branch of defendant's motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). Defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff's injury was not caused by the elevation-related hazards encompassed by the statute. In opposition, plaintiff failed to raise a triable issue of fact as to whether his injury arose from an elevation-related risk contemplated by the statute, rather than from the usual and ordinary dangers of the construction site. The fact that plaintiff was injured while lifting a heavy object does not give rise to liability within the meaning of the statute.

Student note:  The extraordinary protections of § 240(1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity.  The statute was designed to prevent accidents in which a protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.

Case:  Cardenas v. BBM Constr. Corp., NY Slip Op 08142 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Evidence of habit in a negligence case.

A motion to vacate a self-executing preclusion order.

Practice point:  The Appellate Division affirmed the denial of plaintiff's cross motion to vacate the self-executing preclusion order, as plaintiff failed to provide a reasonable excuse for his failure to appear at defendant's five separately scheduled medical examinations, two of which occurred after the issuance of the preclusion order.  Plaintiff's claimed lack of knowledge of the scheduled medical examinations is unreasonable, especially since he failed to indicate any efforts he made to stay in contact with his counsel, despite the fact that there were two court orders directing that he appear for his medical examination. Plaintiff does not deny that he was aware of those orders. His counsel also failed to confirm his assertions that he had no contact with his counsel, or that they mailed medical examination notices to plaintiff's mother's address.

Plaintiff also failed to show that his was a meritorious claim.  He failed to submit an affidavit of merit, and the only evidence he submitted as proof of defendant's liability was a police accident report containing his hearsay statement as to how the accident happened. This is insufficient to demonstrate a meritorious cause of action.

Student note:  The preclusion of any testimony as to plaintiff's medical condition rendered him unable to establish a prima facie case.

Case:  Arzuaga v. Tejada, NY Slip Op 08108 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  An injury resulting from an elevation-related risk.

Vicarious liability in a personal injury claim against a bouncer.

Practice point: When security guards or bounders are hired to maintain order, they may be acting within the scope of their employment when they use physical force on the businesses' patrons.

Student note:  An employer may be vicariously liable for its employees' negligence or intentional tortious conduct, as long as the employee's acts were committed in furtherance of the employer's business.

Case:  Fauntleroy v. EMM Group Holdings LLC, NY Slip Op 08106 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion to vacate a self-executing preclusion order.