What is the standard for leave to serve a late Notice of Claim on the City?

The standard includes (1) reasonable excuse, (2) the city's having actual knowledge of the underlying facts of the claim, and (3) prejudice to the defendant, according to the Second Department, in Acosta v. City of New York, decided on April 10, 2007. In denying leave, the court took special note of the fact that the police accident report was insufficient to constitute actual notice in that it did not link the accident to the city's negligence as an alleged proximate cause.

What is the proper standard on a motion to strike for spoliation of evidence?

The proper standard is whether the moving party has lost the chance to establish his or her position, according the Second Department, in Molinari v. Smith, decided on April 10, 2007.

Seeking damages after a fall from a trampoline, and arguing that the trampoline had been deliberately disposed of so it could not be inspected, plaintiff moved to strike defendant's answer, citing CPLR 3216.

The court denied the motion, since "the loss of the opportunity to inspect the trampoline will not deprive the plaintiffs of the means of proving their claims of negligent supervision and attractive nuisance."

The court did allow lesser sanctions, however, requiring defendants to stipulate to the admission of the manufacturer's assembly and safety instructions, and allowing a negative inference charge at trial.

After this flock got fleeced, is the high-profile pastor's employer liable?

No, according to the First Department, in Naegele v. Archdiocese of N.Y., decided on April 10, 2007. Advancing claims sounding in negligent supervision and respondeat superior, plaintiff had argued that since defendant's clergy-employees are modestly paid and in the habit of accepting monies and gifts from parishioners, defendant should reasonably have foreseen that this particular pastor would exercise undue influence over an elderly parishioner and raid her assets. The court found plaintiff's allegations to be conclusory and insufficient to establish the pastor's propensity to commit the specific tortious acts alleged. Therefore, the negligent supervision claim cannot stand. As for respondeat superior, the alleged tortious acts were clearly not in furtherance of defendant's business and, just as clearly, were outside the scope of the pastor's employment.

Two feet high and rising.

In settling a previous action, the parties had entered into a stipulation in which, among other things, defendant agreed undertake "a study of the entire water drainage area" and to "take whatever steps it deems appropriate in accordance with such a study." Defendant did nothing, though, and three years later a severe storm resulted in flooding which caused substantial damage to plaintiff's property. In Eichler v. Town of Cortlandt, decided on April 3, 2007, the Second Department found that the alleged breach of the stipulation was actionable under general contract principles.

Trading places.

The First Department granted defendant's motion to change venue from Bronx County to Queens, in Espinoza v. Concordia Intrl. Forwarding Corp., decided on April 5, 2007. Plaintiff lives in Queens; she was injured and treated there; and defendant-employer conducts its business there. What about Bronx County? Defendant's employee, named individually in the action, lives there, but, even if he were found liable, his employer would indemnify him.

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.

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.

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!

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.

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.

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.