There is no case posted today because of the holiday. Happy July 4th to my fellow Vietnam veterans, and to veterans of every stripe, and to the men and women who serve to keep us free.

Plaintiff was employed by a nonparty subcontractor at a construction site when, acting on his employer's instructions, he used a wood beam to support the jib of a crane, and was injured when the beam struck him. The Second Department dismissed the complaint against the general contractor, in McLeod v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., which was decided on June 26, 2007. The court said that, to be liable under Labor Law § 200 or for common law negligence, a general contractor must have actually exercised supervision and control over the work performed at the site. Here, the court found only general supervisory authority for the purpose of overseeing the progress of the work and inspecting the work product, which is insufficient to impose liability.

The First Department found that jurisdiction was demonstrated by plaintiff's affidavit of service showing delivery to a person of suitable age and discretion
at -- and a mailing to -- a place which defendant acknowledged was his place of business, in Kunio Takeuchi v. Silberman, which was decided on June 28, 2007. The court found it of no consequence that, for reasons of health, defendant may not have actually been at his place of business for some four months prior to service, and that plaintiffs never tried to ascertain whether he was available to receive service there. "Unlike CPLR 308(4), CPLR 308(2) does not require preliminary diligent attempts at alternative methods of service."

Plaintiff-tenant slipped and fell on debris in her building's stairwell. She testified that accumulated litter was an everyday problem in this particular stairwell because tenants used it to take their garbage bags downstairs for disposal. She said that nothing had been done to remedy this condition, even after she complained about it to the building superintendent, Rego.

Plaintiff's daughter, who also lived in the building, attested to the condition in a nonparty deposition. Another nonparty witness in the building also testified that he saw garbage on the stairways, and that the building was rarely cleaned.

Arguing that it had neither actual nor constructive notice of the condition, the landlord offered deposition testimony of one of the building's owners, indicating that he inspected the interior stairwells once a week, and denied knowledge of anyone named Rego.

The First Department denied the landlord's motion to dismiss, in Bido v. 876-882 Realty, which was decided on June 26, 2007. The court found that plaintiff's and nonparty deposition testimony had raised issues of fact as to whether the accumulation of refuse in this stairwell was a dangerous and recurring condition which caused plaintiff's injury. Importantly, the court noted that plaintiff did not have to prove that the landlord knew or should have known of the exact item of debris which caused her fall.

Plaintiff alleged that she slipped and fell on a "shiny, slippery" floor in the south wing of the Port Authority Bus Terminal. She did not recall seeing any water or debris at the time of the fall, and the accident report stated that the area was clean and dry. In a report based on an inspection of the area almost a year after the accident, plaintiff's expert said that that the floor had been slippery because it was made of ceramic tile and was covered with a polyurethane coating. The First Department granted defendant's motion to dismiss, in Kudrov v. Laro Servs. Sys., Inc., which was decided on June 26, 2007. "Absent proof of the negligent application of wax or polish, the fact that a floor is slippery by reason of its smoothness or having been polished does not give rise to an inference of negligence." The court found evidence sufficient to demonstrate that the floor had been waxed and was dry before the area was opened to the public.

Claimant was injured when he fell on snow-and-ice covered steps outside the entrance to a state psychiatric facility. The Second Department rejected the state's claim of governmental immunity, in McGowan v. State of New York, which was decided on June 19, 2007. The court determined that, on these facts, the state had not been acting within its governmental function when the accident occurred. The court said that the state's snow removal operations constitute a maintenance activity, which traditionally is regarded as a proprietary function and not a governmental function.

Plaintiff was three months pregnant when she allegedly slipped and fell on coffee beans on the floor of defendant's supermarket. She had a miscarriage the next day and sued for the emotional distress she suffered as a result. The Second Department denied defendant's motion to dismiss, in Falah v. Stop & Shop Cos., Inc., which was decided on June 19, 2007. The court gave effect to an Ohio physician's notarized affidavit which said that, based on his review of the hospital records, the miscarriage was causally related to the fall. The court said that the fact that there was no certification as to the notary's authenticity was not a fatal defect since, as a general rule, a party cannot establish its entitlement to summary judgment merely by pointing to gaps in the opponent's proof.

The Second Department offers an instructive opinion in Berger v. Temple Beth-el of Great Neck, which was decided on June 19, 2007. Plaintiff alleged that defendants had defamed him by issuing statements disclosing and explaining the termination of his membership from the synagogue. The court granted defendants' summary judgment motion on the basis of a qualified privilege, since the challenged statements had been made in the discharge of a private duty and in furtherance of a religious organization's common interest. The court noted that plaintiff could not defeat the qualified privilege by arguing that the challenged statements were excessively published, since the recipients all shared a common interest.

They should have kept a light burning.

Petitioner-landlord will be getting his rent-stablilized apartment back since he proved, by a preponderance of the evidence, that it was not the tenant's primary residence, in Carmine Limited v. Gordon, which was decided by the First Department on June 14, 2007. The apartment in question -- a 450-square foot, one bedroom walk-up in Greenwich Village -- was first rented in 1978. In 1991, though, tenants also leased a rent-stabilized two-bedroom apartment in Stuyvesant Town, and have been paying rent on both apartments ever since. The court gave short shrift to tenants' argument that,because their marriage was rocky, the husband had moved into the Stuyvesant apartment, while the wife continued to live in the Village apartment. The court noted that, through all these years, there has never been even a separation agreement, much less divorce proceedings, and that the tenants remain very much married. They share a single joint bank account into which the wife's paychecks are deposited directly, and the husband pays all the bills, to include rent on both apartments. The court said that what it found most persuasive was the evidence that there had been negligible use -- and for extended periods no use -- of electricity in the Village apartment for more than a year prior to the commencement of this holdover proceeding.

A motion to dismiss pursuant to CPLR 3211(a)(7) will fail if the complaint states in some recognizable form any cause of action known to New York law, according to the Second Department, in New York Merchants Protective Co., Inc. v. Rodriguez, which was decided on June 12, 2007. Here, the court found that the complaint had sufficiently made out a cause of action sounding in tortious interference with contract, the elements of which are (1) the existence of a valid contract with a third party, (2) defendant's knowledge of that contract, (3) defendant's intentional and improper procuring of a breach, and (4) damages.

The doctor's employment contract included a provision which said that, if he were fired without cause, he would receive severance pay, provided that he did not thereafter provide medical services on his own behalf or for another entity.

The First Department refused to give that provision effect, in Scott v. Beth Israel Med. Ctr., which was decided on June 19, 2007. "[T]he employee choice doctrine contemplates that where the employer terminates the employment relationship without cause, his action necessarily destroys the mutuality of obligation on which the covenant rests as well as the employer's ability to impose a forfeiture."