Extortion with an E.

There is no private cause of action for extortion or attempted extortion, according to the First Department, in Minnelli v. Soumayah, which was decided on June 28, 2007. In dismissing that cause of action, in which plaintiff had alleged that defendant had compelled her to deliver money to him by threatening physical harm to plaintiff and her employees, the court observed that "extortionate behavior, coercion and duress may be elements of a cause of action for tortious interference with contract or unjust enrichment." The court also said that a mere threat, without something forcing the other party to give in to a further demand, is insufficient to make out a cause of action sounding in economic duress.

Pursuant to a contract, plaintiff markets, sells, and distributes defendant's beverages to retail outlets in a specifically designated geographic area of Manhattan. He brought a breach of contract action after defendant entered into agreements to directly sell its products to public schools and certain municipal entities. The Second Department dismissed the complaint, in McGuckin v. Snapple Distribs., Inc., which was decided on June 26, 2007. The court found that the contract, by its express terms, allowed defendant to market, sell, and distribute products to institutional accounts such as public schools and municipal entities. That was enough for the court, which said that the contact should be given effect according to its plain meaning.

Plaintiff was stuck in an elevator in the building where he worked as a porter. Against the building's superintendent's express directions, plaintiff climbed out of the elevator and was injured when the elevator began to move again. Plaintiff was terminated and, at an unemployment hearing, it was determined that plaintiff had been fired for misconduct in disobeying his building superintendent's direct order. That finding did not preclude plaintiff's suing for his injuries, though, according to the First Department, in Pelzer v. Transel Elevator & Electric, which was decided on June 28, 2007. The court noted that administrative agency determinations are binding in subsequent legal actions for purposes of issue preclusion, but only as to the precise issues which the agency decided. Here, the agency's finding was limited to the matter of plaintiff's misconduct, and did not address the issues of sole proximate cause and assumption of risk, which were pivotal to the subsequent lawsuit.

Plaintiff alleged (1) a failure to pay commissions as required by his written employment contract with defendant-LLC, a New York corporation with its principal place of business in New York City, and (2) certain violations of the Labor Law. In Fieldman v. Smart Choice Communications, which was decided on June 28, 2007, the First Department said that the contract's New Jersey choice-of-law provision runs to the Labor Law causes of action since they did not assert "an extra-contractual wrong, such as payment of commissions in accordance with the contract but in violation of section 191(a)(1)(c) because made less frequently than once a month."

What's in a name?

Avon did not misappropriate the name of the landlord's building in violation of the parties' agreement, according to the First Department, in Avon Products v. Solow, which was decided on June 28, 2007. "Although two of the four documents relied upon by Solow tend to show that Avon did refer to the building as the 'Avon Building' in communications to persons outside the Avon organization, that is not sufficient to establish Avon's misappropriation of the building's name. The remaining two documents, letters to Diesel Construction and the New York City Board of Trade, are inconsequential and could not reasonably have been viewed as tipping the balance in Solow's favor."

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.