In a personal injury matter, defendant submitted a nonparty witness' affidavit which raised a triable issue of fact regarding plaintiff's comparative negligence. Plaintiff timely objected to the affidavit saying that it did not comply with the statute and challenging the notary's authority. The First Department said that such defects can be corrected nunc pro tunc, in Moccia v. Carrier Car Rental, Inc., which was decided on May 29, 2007. The court noted that defedant's attorney had submitted the original affidavit, bearing a notary seal, and along with proper certification.

Venue, again.

If you're looking to change venue, don't bother pleading convenience of the parties, since it is irrelevant, according the Second Department, in Frankel v. Stavsky, which was decided on May 22, 2007. Instead, the movant must plead (1) the convenience of the nonparty witness who is willing to testify, and (2) the nature and materiality of that witness's anticipated testimony. Failing that, said the court, we're staying put.

While playing basketball at a schoolyard, the ninth-grade plaintiff was hurt when he says he fell on a hole in the court's surface. Plaintiff testified that he had played basketball there before and that he had been playing for about forty minutes when the accident occurred. It is black-letter law that a player consents to those risks which are inherent to the sport and which flow from playing it. That consent runs to the construction of the playing surface and any open and obvious condition on it, according to the Second Department, which dismissed the suit, in Casey v. Garden City Park-New Hyde Park School Dist., which was decided on May 22, 2007.

In a suit seeking damages arising out of an unproductive raid of her premises, plaintiff demanded disclosure which included, among other things, the deposition of virtually everyone involved in obtaining the no-knock warrant or who participated in any way in its execution. She will not get it, according to the First Department, in Espady v. City of New York, which was decided on May 24, 2007. The court noted that, while New York strongly favors disclosure, it is not without limits. Here, plaintiff will get copies of affidavits used in securing the warrant, an inventory of the items to be searched and seized, and a transcript of the court proceedings which led to the granting of the warrant. However, she will not get to depose the confidential informant who testified under oath in those proceedings, or to know his identity. She will not get to depose any prosecutors involved in the underlying investigation, and she will not get personnel or disciplinary records, reprimands, complaints and investigations of the police officers and prosecutors who may have been involved.

Both sides agree on the following facts: at seven p.m. one Friday, plaintiff, needing to change his vehicle's tire, put down two reflectors to close an entire lane of traffic on Seventh Avenue between 39th and 40th Streets in Manhattan. While he was working on it, a taxi pulled up between the reflectors to drop off a passenger and pick up new passengers. As the taxi pulled away, it ran over one of the reflectors. The taxi driver stopped, and plaintiff approached the vehicle. There are two very different versions of what happened next. Plaintiff says he put his arms on the frame of the taxi's open window, and politely asked the driver to pay for the broken reflector. The taxi driver, though, says that plaintiff, armed with a pipe, approached the taxi, yelling, "You are going to pay for this." With that, and at the insistence of his passengers, who urged, repeatedly, "Move, move, move. Go, go. He's crazy. He's going to kill us," the taxi driver says he drove away from the scene, unaware of his having run over plaintiff's foot. That was enough to merit a comparative negligence charge, according to the First Department, in Hazel v. Nika, which was decided on May 22, 2007. The court noted that, even though the taxi driver testified that plaintiff never got closer to the taxi than six or seven meters, plaintiff's own testimony put him at the taxi's window, "close enough for the taxicab to make physical contact with his foot and right knee, thereby allegedly causing his injuries." The court further noted that, "Juries are empowered to dissect the testimony of witnesses to accept what is credible and reject what is not."

Plaintiff had retained defendant to commence a medical malpractice action, and, shortly before trial in that case, there was a settlement offer of a million dollars. It was not accepted, the case went to trial, and plaintiff won a jury verdict of $330,000. Plaintiff then commenced this action for legal malpractice, claiming, among other things, that defendant had never communicated the settlement offer, a charge which defendant denies. The Second Department dismissed the complaint, in Bauza v. Livington, which was decided on May 15, 2007, saying that plaintiff had not made the necessary showing of proximate cause, namely, that, but for the alleged negligence, the settlement offer would have been accepted. The court noted that plaintiff had testified only that she was "pretty sure" that she would have accepted the offer, and that plaintiff had consented to a court-approved order which paid counsel fees, thus establishing that the fee was appropriate and that there had been no malpractice.

The parol evidence rule precludes extrinsic evidence to contradict or change the terms of a written contract which embodies the agreement between the parties. It is admissible only to clarify ambiguities or to show that it was not the parties' intention to enter into an enforceable contract, or so said the First Department, in Cole v. Macklowe, which was decided on May 17, 2007. The court noted that parol evidence may be admitted to show that the entire writing is a nullity, but not that select provisions of the writing were not to be enforced.

As specified in DR 5-102(c) and 22 NYCRR 1200.21(c), the advocate-witness disqualification rule is intended to provide guidance, and is not binding authority, at least according to the Second Department, in Ahrens v. Chisena, which was decided on May 15, 2007. The court said it was permissible for plaintiff's counsel to testify that he had personally delivered the summons and complaint. The court explained that where it was not a necessity that the party's counsel be called as a witness, there was no violation of the rule.

For plaintiff, this train's still in the station.

To succeed in getting an action restored to the trial calendar, movant must make a showing that (1) the cause of action is meritorious, (2) there was a reasonable excuse for the delay in restoring, (3) there was no intent to abandon, and (4) there is no prejudice to the other side, or so said the Second Department, in Pryor v. Long Island Rail Road, which was decided on May 8, 2007. In granting plaintiff's motion to restore, the court noted that the action was originally marked off the calendar voluntarily to permit further discovery, that the parties had stipulated to extend plaintiff's time to restore, and that the parties continued to conduct discovery beyond the time agreed to.

Bridge Over Troubled Waters

Claimant was sandblasting on a bridge when he slipped and, in breaking his fall, was injured when he was sprayed with sand from his sandblasting hose. Claimant said that he had been given a safety harness but that there were no safety cables to which he could anchor it. In Bonilla v. State of New York, which was decided on May 8, 2007, the First Department found that claimant could seek damages under Labor Law 240(1), which imposes absolute liability on owners and contractors who fail to provide or erect safety devices necessary to properly protect workers from elevation-related hazards. Notwithstanding the nature of claimant's injury, recovery under the statute was not foreclosed since he was working on a bridge more than 100 feet above the ground.

For this plaintiff there'll be no dancin' in the dark.

Plaintiff alleged injuries after she tripped and fell on a walkway inside a parking garage at a state university's medical center, and she sued the garage, which had a contract with the university. The Second Department dismissed the complaint, in Huttie v. Central Parking Corp., which was decided on May 8, 2007, because the contract, without more, did not subject defendant to tort liability to a third party. The court said that "[t]here are three circumstances under which a party who enters into a contract to render services may be said to have assumed a duty of care, and thus be potentially liable in tort to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies upon the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely." The court found none of those circumstances here, specifically saying that plaintiff could not have relied on the garage's contractual duties since plaintiff had admittedly entered the garage knowing that it was pitch-dark because of a regional blackout.