Due diligence and personal service

CPLR 308(1) and (2) requires personal service unless it cannot be accomplished with due diligence, in which case "nail and mail" service is sufficient, pursuant to CPLR 308(4). The question for the solo practitioner, of course, is what exactly constitutes due diligence in the matter of personal service? In Akler v. Chisena, decided on May 1, 2007, the Second Department found the requisite due diligence -- and allowed nail and mail -- when plaintiff's process server had tried three times to serve defendant at his residence, but to no avail.

Spa Day

After having signed a release, plaintiff was injured during a complimentary one-hour training session at defendant-spa. The First Department held that the release was void as against public policy, in Debell v. Wellbridge Club Management, which was decided on May 3, 2007. The statute is General Obligation Law § 5-326, which declares unenforceable a release entered into with a place of amusement or recreation, as opposed to one which offers services which are instructional in nature and design. The court said that it did not matter that the actual injury was suffered during a training session, arguably instructional, since defendant-spa did not hold itself out as a training center.

For Con Ed, it's light's out.

Plaintiff was injured in a collision between his van and a Con Ed truck. He testified at trial that he was driving down Ninth Avenue, stopped at a red light and, when the light turned green, began moving into the intersection when he was broadsided by defendant's truck. Defendant testified that, no, he had the green light, and that he couldn't remember having seen plaintiff's vehicle before impact. Plaintiff conceded that he had not looked to see whether there was traffic in the intersection as he moved forward. Jury found for plaintiff but the trial court granted defendant's motion to set aside the verdict and directed a new trial on both liability and damages. The First Department reversed, in Lopez v. Con Ed, which was decided on May 1, 2007. The court said that there had been eyewitness pedestrian testimony which was equivocal and which presented a pure question of fact, solely and properly within the jury's province. The court noted that "the finding of the jury may be disturbed only if it may be said that the preponderance of the evidence in this case was so great that the jury could not have reached the verdict it did on any fair interpretation of such evidence," and that wasn't this case. The court also determined that the jury's award of nearly one-half million dollars amounted to reasonable compensation for plaintiff's injuries.

With defendant's motion for leave to oppose still pending, the lower court granted plaintiff's motion for discovery sanctions, even though a Pennsylvania court had issued a stay of proceedings against all insureds of defendant's insurance carriers. Plaintiff and Queens County Clerk had been properly served with the stay. The Second Department reversed, in Dambrot v. REJ Long Beach, which was decided on April 24, 2007. The court said that the Pennsylvania courts' stay was entitled to full faith and credit and effectively suspended all proceedings against defendant as of it issuance date. Since the deadline for REJ's filing of opposition papers had not expired before the filing and service of the stay, it was premature for the lower court to rule on plaintiff's prior motion.

Plaintiff was seeking damages after she was injured while stepping into an elevator in her apartment building. Plaintiff claimed that when she entered the lobby after returning from grocery shopping, neither elevator was there. She and another woman waited, and, when an elevator arrived, plaintiff tripped and fell because the elevator was not level with the floor. However, defendant produced eyewitnesses who testified that plaintiff, who was carrying several bags, had been running to catch an open elevator which was waiting.

The jury found that defendant had negligently failed to maintain, repair or prevent the so-called misleveling of the elevator, and that defendant knew or should have known of this condition on the day of plaintiff's accident. The jury apportioned 25% fault to plaintiff and 75% to defendant. However, the judgment of nearly one-half-million dollars does not reflect the plaintiff's apportionment.

Defense counsel objected that the verdict was inherently inconsistent, and the First Department agreed, in Dubec v. NYC Housing Authority, which was decided on April 26, 2007. Saying that the trial court should have (1) directed the jury to reconsider the verdict, or (2) ordered a new trial, pursuant to CPLR 4111(c), the court took down the jury verdict and remanded for a new trial.

The court also gave directions as to a necessary jury charge regarding plaintiff's photographs of the misleveled elevator, and as to the appropriate timing for certain witness testimony.

While it was academic as regards this particular judgment, the court said that the trial court was within its bounds in ordering an interest rate of less than 9%.

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."