Second-best evidence rules.
The Second Department has upheld a counterclaim to recover on a promissory note even though defendant could not produce the original. In Comerica Bank v. Benedict, decided on April 3, 2007, the court found that defendant had "satisfactorily accounted for her inability to produce the original, thus establishing a foundation for admission of the copy." In addition, the court noted, plaintiff did not dispute the contents of the original promissory note and acknowledged the signature on the copy.
April 9, 2007
Forum matters.
Plaintiff's personal injury action, commenced in Kings County Civil Court, was on the "ready for trial" calendar on May 31, 2001, but it was marked off after plaintiff failed to appear. Plaintiff never moved to restore and, in 2004, defendants to dismiss pursuant to CPLR 3404 for failure to prosecute. Defendants' motion was denied since, according to the Second Department in Chavez v. 407 Seventh Avenue Corp., decided on April 3, 2007, CPLR 3404 does not apply to actions in Civil Court. The Civil Court rule controlling actions stricken from the calendar is 22 NYCRR 208.14[c], which does not provide for dismissing an action for a failure to prosecute.
Plaintiff's personal injury action, commenced in Kings County Civil Court, was on the "ready for trial" calendar on May 31, 2001, but it was marked off after plaintiff failed to appear. Plaintiff never moved to restore and, in 2004, defendants to dismiss pursuant to CPLR 3404 for failure to prosecute. Defendants' motion was denied since, according to the Second Department in Chavez v. 407 Seventh Avenue Corp., decided on April 3, 2007, CPLR 3404 does not apply to actions in Civil Court. The Civil Court rule controlling actions stricken from the calendar is 22 NYCRR 208.14[c], which does not provide for dismissing an action for a failure to prosecute.
April 5, 2007
A lesson on winning the schoolyard battle but losing the courtroom war...
After having been injured in a schoolyard fight, a student sued the city and its board of education, alleging, among other things, negligent supervision. The student lost, in the courtroom at least, according to the Second Department in Legette v. City of New York, decided on March 27, 2007. Why? The student had been a willing participant in the fight and so, as a matter of law, the allegedly negligent supervision could not have been a proximate cause of his injuries. Put up your dukes to that!
After having been injured in a schoolyard fight, a student sued the city and its board of education, alleging, among other things, negligent supervision. The student lost, in the courtroom at least, according to the Second Department in Legette v. City of New York, decided on March 27, 2007. Why? The student had been a willing participant in the fight and so, as a matter of law, the allegedly negligent supervision could not have been a proximate cause of his injuries. Put up your dukes to that!
April 4, 2007
What showing is required in order to prevail on a legal malpractice claim resulting from a personal injury action?
"A plaintiff must demonstrate that he or she would have succeeded on the merits of the underlying action but for the attorney's negligence," according to the First Department in Aquino v. Kuczinski, Vila & Associates, P.C., decided on April 3, 2007. The court noted that it is a difficult showing since, in effect, it requires the proving of a case within a case, both of which require that proximate causation be established.
"A plaintiff must demonstrate that he or she would have succeeded on the merits of the underlying action but for the attorney's negligence," according to the First Department in Aquino v. Kuczinski, Vila & Associates, P.C., decided on April 3, 2007. The court noted that it is a difficult showing since, in effect, it requires the proving of a case within a case, both of which require that proximate causation be established.
April 3, 2007
Home may be where the heart is, but you'll need documentation.
After plaintiff venued this personal injury action in Kings County, defendant moved, pursuant to CPLR 510 and 511, to transfer venue to Nassau County, arguing that plaintiff did not live in Kings when the action was commenced. In opposition, plaintiff offered, among other things, a vehicle registration; a phone bill; a bank statement; and a tax return, all pointing to Kings County. In Johnson v. Gioia, decided on March 29, 2007, the Second Department found a fact question and remanded for a hearing to determine if plaintiff did indeed live in Kings when the action was commenced.
After plaintiff venued this personal injury action in Kings County, defendant moved, pursuant to CPLR 510 and 511, to transfer venue to Nassau County, arguing that plaintiff did not live in Kings when the action was commenced. In opposition, plaintiff offered, among other things, a vehicle registration; a phone bill; a bank statement; and a tax return, all pointing to Kings County. In Johnson v. Gioia, decided on March 29, 2007, the Second Department found a fact question and remanded for a hearing to determine if plaintiff did indeed live in Kings when the action was commenced.
April 2, 2007
Bus Stop
After school, the bus driver let plaintiff and three other students off at their appointed stop. The driver knew that plaintiff had to cross the street in order to get home but, in direct contravention of Vehicle and Traffic Law § 1174(b), did not tell plaintiff to cross in front of the bus. Plaintiff was fooling around with his friends and, as the bus pulled away, lost his balance, fell backwards into the bus and was injured. The Second Department found for the bus company, in Isola v. Independent Coach Corp., decided on March 27, 2007. The court determined that the statute in question was designed to protect children crossing the street after having been let off the bus, and, on these facts, the statute's violation could not have been a proximate cause of plaintiff's injury.
After school, the bus driver let plaintiff and three other students off at their appointed stop. The driver knew that plaintiff had to cross the street in order to get home but, in direct contravention of Vehicle and Traffic Law § 1174(b), did not tell plaintiff to cross in front of the bus. Plaintiff was fooling around with his friends and, as the bus pulled away, lost his balance, fell backwards into the bus and was injured. The Second Department found for the bus company, in Isola v. Independent Coach Corp., decided on March 27, 2007. The court determined that the statute in question was designed to protect children crossing the street after having been let off the bus, and, on these facts, the statute's violation could not have been a proximate cause of plaintiff's injury.
March 30, 2007
Is an employer liable for the sexual assaults of its employees?
No, according to the First Department, in DaSilva v. Trinity Church, decided on March 29, 2007.
Citing the definitive N.X. v. Cabrini Medical Center, the court said that a sexual assault is categorically outside the scope of employment and so there can be no liability under a theory of respondeat superior.
A plaintiff might have a cause of action under a theory of negligent hiring, supervision or retention but, here, the court found that (1) at the time of the hiring, the employer was unaware of any facts which might trigger a duty to inquire further, and (2) during the employee's tenure the employer did not receive any complaints which might have put it on actual or constructive notice as to the employee's propensity to a sexual assault.
No, according to the First Department, in DaSilva v. Trinity Church, decided on March 29, 2007.
Citing the definitive N.X. v. Cabrini Medical Center, the court said that a sexual assault is categorically outside the scope of employment and so there can be no liability under a theory of respondeat superior.
A plaintiff might have a cause of action under a theory of negligent hiring, supervision or retention but, here, the court found that (1) at the time of the hiring, the employer was unaware of any facts which might trigger a duty to inquire further, and (2) during the employee's tenure the employer did not receive any complaints which might have put it on actual or constructive notice as to the employee's propensity to a sexual assault.
March 29, 2007
For this plaintiff, school's out.
Schools have a cognizable duty to provide supervision to ensure their students' safety, and they will be held liable if (1) a student's injury was foreseeable, and (2) the lack of adequate supervision was a proximate cause of the injury, according to the Second Department, in Link v. Quogue Union Free School District, decided on March 20, 2007. Here, though, the accident happened in such a short span of time that, even if the school's supervision had been inadequate, it could not have proximately caused the injury. Summary judgment was granted, and the complaint was dismissed.
Schools have a cognizable duty to provide supervision to ensure their students' safety, and they will be held liable if (1) a student's injury was foreseeable, and (2) the lack of adequate supervision was a proximate cause of the injury, according to the Second Department, in Link v. Quogue Union Free School District, decided on March 20, 2007. Here, though, the accident happened in such a short span of time that, even if the school's supervision had been inadequate, it could not have proximately caused the injury. Summary judgment was granted, and the complaint was dismissed.
March 26, 2007
What showing must plaintiff make in order to amend the bill of particulars once the trial has begun?
The touchstones are excuse, lack of prejudice, and merit, according to the Second Department, in Cohen v. Ho, decided on March 20, 2007. Plaintiff's motion was denied because (1) plaintiff gave no excuse for the delay in seeking the amendment, and (2) defendant would be prejudiced since plaintiff was proposing a different theory of medical malpractice and, therefore, a theory of recovery which bore no resemblance to that recited in the complaint and the original bill of particulars. The court also noted that, in deciding such a motion, consideration should be given to the merit of the underlying amendment so as not to waste everybody's time.
The touchstones are excuse, lack of prejudice, and merit, according to the Second Department, in Cohen v. Ho, decided on March 20, 2007. Plaintiff's motion was denied because (1) plaintiff gave no excuse for the delay in seeking the amendment, and (2) defendant would be prejudiced since plaintiff was proposing a different theory of medical malpractice and, therefore, a theory of recovery which bore no resemblance to that recited in the complaint and the original bill of particulars. The court also noted that, in deciding such a motion, consideration should be given to the merit of the underlying amendment so as not to waste everybody's time.
March 23, 2007
You, with the umbrella, off the bus!
Q. What is the proper standard for judicial review of an administrative agency's decision when neither the constitution nor a statute is implicated?
A. "Arbitrary and capricious," as applied by the First Department in Duncan v. Klein, decided on March 22, 2007. After determining that a school bus escort had hit a student with her umbrella, the City's Office of Pupil Transportation had recommended revocation of the escort's certification. In a disciplinary hearing, it was recommended that the penalty be reduced to a suspension for time already served with no back-pay. The Chancellor opted for revocation, and the escort petitioned for judicial review. The court said, "Since the disciplinary conference was not conducted pursuant to the constitution or any statute, it was properly reviewed under the arbitrary and capricious rather than substantial evidence standard. Applying that standard, the record provides a rational basis for disbelieving petitioner's version of the facts, and finding instead that she actively hit the student and was not merely defending herself. The penalty of revocation does not shock our conscience."
Q. What is the proper standard for judicial review of an administrative agency's decision when neither the constitution nor a statute is implicated?
A. "Arbitrary and capricious," as applied by the First Department in Duncan v. Klein, decided on March 22, 2007. After determining that a school bus escort had hit a student with her umbrella, the City's Office of Pupil Transportation had recommended revocation of the escort's certification. In a disciplinary hearing, it was recommended that the penalty be reduced to a suspension for time already served with no back-pay. The Chancellor opted for revocation, and the escort petitioned for judicial review. The court said, "Since the disciplinary conference was not conducted pursuant to the constitution or any statute, it was properly reviewed under the arbitrary and capricious rather than substantial evidence standard. Applying that standard, the record provides a rational basis for disbelieving petitioner's version of the facts, and finding instead that she actively hit the student and was not merely defending herself. The penalty of revocation does not shock our conscience."
March 21, 2007
What showing must you make in order to win your motion to strike a pleading?
The statute is CPLR 3126 and the magic words are "willful and contumacious," as applied to the other side's failure to comply with your discovery demands. In Bjorke v. Rubenstein, decided by the Second Department on March 13, 2007, there was a second procedural matter in play, namely, a motion to dismiss the complaint based on the alleged spoilation of evidence. This motion may be granted in the absence of willful and contumacious conduct, if, but only if, you show that the evidence was necessary to your being able to mount a defense.
The statute is CPLR 3126 and the magic words are "willful and contumacious," as applied to the other side's failure to comply with your discovery demands. In Bjorke v. Rubenstein, decided by the Second Department on March 13, 2007, there was a second procedural matter in play, namely, a motion to dismiss the complaint based on the alleged spoilation of evidence. This motion may be granted in the absence of willful and contumacious conduct, if, but only if, you show that the evidence was necessary to your being able to mount a defense.
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