Faced with a summary judgment motion, the nonmoving party is entitled to discovery if potentially useful facts are exclusively within the knowledge and control of the moving party, or so said the Second Department, in Banks v. Department of Education, decided on April 24, 2007. CPLR 3212(f) gives the nonmoving party a reasonable opportunity to develop the record through discovery. Until that's done, the motion to dismiss is premature.

Trial court to counselor: enough already.

Appellate Division to trial court: not so fast.

The trial judge's wide latitude does not extend to blanket prohibitions against counsel's voicing any objections during the other side's summation, or so said the First Department, in Binder v. Miller, which was decided on April 24, 2007. "[I]t is axiomatic that where counsel, in summing up, exceeds the bounds of legal propriety, it is the duty of opposing counsel, inter alia, to object specifically, to point out the language deemed objectionable, and to request the court to rule on the objection, admonish counsel to desist from such improper remarks, and direct the jury at the appropriate time to disregard such improper statements."

OUR AUDIO BLOG IS NOW ON THE AIR!!

We are pleased to announce that we have an audio blog for the solo practitioner. You can find us at www.podbean.com. To listen, just type legalease in the search box. We hope you will tune in. Of course, this blog will continue publishing a new case every court-day.

What is the standard for holding a homeowner liable for injuries suffered by a construction contractor?

Plaintiff, a self-employed construction contractor who was hired to renovate a single-family home, was injured when a beam on which he was leaning gave way and he fell from the second floor to the ground. The Second Department dismissed plaintiff's suit against the homeowners, in Arama v. Fruchter, decided on April 17, 2007. Why? "[S]ingle-family homeowners who contract for construction services are exempt from liability unless they direct or control the work." In strictly construing "direct or control," the court gave short shrift to the fact that the homeowners had given instructions to plaintiff, and they had periodically inspected the work in progress.

The trial court's granting of an adjournment is discretionary, and it may be properly be denied when there are clear indicators of a failure to prosecute, according to the First Department, in Archibald v. Asia Five Eight, which was decided on April 19, 2007. The court found that "neither plaintiff's counsel of record nor plaintiff's newly retained trial counsel provided the court or the defense with advance notice of plaintiff's purported inability to proceed to trial on the appointed date, and instead, submitted, on the day of the scheduled trial, an affidavit of engagement that admittedly contained misstatements of fact. Not only did plaintiff's counsel of record act contrary to the mandate of 22 NYCRR § 202.31 by retaining outside trial counsel fewer than 10 days before the trial was to begin, but the attorney retained was clearly not prepared to try the matter on the scheduled date." On these facts, an adjournment was denied and the action was dismissed.

When it comes to your notice of claim, what is written is written.

In this matter, plaintiff's notice of claim, in pertinent part, had read:

"[I]nfant claimant while lawfully walking in the vicinity of said dumpster was accosted, beaten, assaulted and robbed by unknown assailants who had hidden about said dumpster. That the aforesaid occurred as a result of the negligence of [defendant], its agents and/or employees in the ownership, maintenance and control of said housing project and parking lot and areas thereof; in failing to provide adequate, sufficient and operable lighting at said location with prior knowledge of similar criminal conduct and activity in the immediate vicinity and location where the plaintiff was harmed."

Plaintiff's complaint, though, alleged that defendant failed to maintain its premises in a reasonably safe condition in that it did not provide adequate lighting and security in the vicinity of the assault and robbery. The First Department dismissed the inadequate security claim, in Monmasterio v. New York City Housing Authority, decided on April 19, 2007. The court said that "nothing in the notice of claim would have alerted defendant to the need to investigate the number and adequacy of the security personnel it employed, and plaintiffs were not free subsequently to interject a new, distinct theory of liability without leave of court."

If you smell somebody, tell somebody.

The First Department found a nuisance which warranted tenant's eviction in Zipper v Haroldon Ct. Condominium, decided on April 17, 2007. The court found credible testimony that the odors coming from tenant's apartment were not of the unavoidable variety but of a kind caused by rotting food. Tenant had offered witness testimony denying any such odors but the court credited the testimony of firefighters who had visited the apartment - unannounced - a month prior to trial. In addition to the odor, one firefighter referred to "Collier-like conditions" in the apartment, which was cluttered with furnishing, boxes and debris. The court was singularly unimpressed by the fact that that the odor was slightly less noxious when the apartment's door was closed. Let's get moving.

What is the standard to recover damages from a property owner for injuries caused by a criminal's acts?

The owner must have known, or should have known, of the probability of a third party's conduct which was likely to endanger the safety of persons lawfully on the premises, according to the Second Department, in Rodriguez v. 1705 & 1715 Caton Associates, decided on April 10, 2007. The court noted that plaintiff's conclusory allegations as to prior robberies were insufficient to raise a triable issue of fact.

Arts and draughts

While plaintiff was delivering premium waters to the performance center's theater, the dolly tipped and he was injured by the falling bottles. The suit against the property owner was dismissed by the First Department, in Ragusa v. Lincoln Center for the Performing Arts, Inc., decided on April 12, 2007. "Defendants submitted evidence showing that they obtained all of the requisite permits for the installation of the sidewalk, that the slope of the sidewalk was constructed in compliance with the New York City Building Code, and that the necessary certificate of occupancy was obtained upon completion of construction. This met their burden on summary judgment." The court said that plaintiff failed to refute defendant's claims, and, when it ran the numbers, found that plantiff's expert's affidavit actually supported defendant's position.

The curtain falls.

What is the proper standard for undoing a jury verdict in a medical malpractice action?

"It must be concluded that the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence," according to the Second Department, in Scudera v. Mahbubur, decided on April 10, 2007. Here, the court found that defendant's medical experts were plainly outdueled on the issue of nerve damage resulting from plaintiff's herniated disc, and, the defense verdict notwithstanding, ordered a new trial.

This plaintiff's chilled.

An SRO's tenant had installed a window air-conditioner, apparently against the house rules, and, when the weather turned cold, wanted to take it out. When the hotel's staff said they were too busy to help, the tenant tried to remove the unit herself, but she dropped it out the window and it injured plaintiff. On these facts, is the hotel liable for plaintiff's injuries? No, according to the First Department, in Grimaldi v. Manhattan Arms Hotel, Inc., decided on April 12, 2007. Assuming, without deciding, (1) that the hotel had a duty to help the tenant, (2) that its duty ran to the pedestrian plaintiff, and (3) that it was foreseeable that the tenant, acting on her own, would drop the unit, the court found that the hotel could not have foreseen that the tenant would try to remove the air-conditioner on her own.