Unless a defendant has willfully and contumaciously failed to appear for an examination before trial, a court should not conditionally strike his answer unless he appears for a deposition on or before a date set by plaintiff, or so said the Second Department, in Patel v. DeLeon, which was decided on August 14, 2007. Instead, said the court, defendant should be precluded from offering any testimony at trial unless he appears for a deposition at a time and place mutually agreed to by the parties, but in no event less than 30 days before trial.

Plaintiff was a mechanic's helper who was injured while he and a co-worker were installing an elevator, which was designed so that, when the car descended, a counterweight frame with partially enclosed weights on top of it would ascend, and vice versa.

Both the injured plaintiff and his co-worker testified that, at the time of the accident, they were bringing the elevator platform down the shaft from the eighth floor to the basement, using a hand-held control box. Plaintiff was standing in the elevator shaft's doorway at the basement level, and his co-worker was at the lobby level. As the counterweight frame was ascending, it hit a spike protruding from the elevator shaft's wall, causing five of the counterweights to fall out of their housing. At least one of the counterweights struck plaintiff on his right side.

On these facts, the First Department found that the scaffold law, as codified in Labor Law § 240(1), did not apply, in Buckley v. Columbia Grammar & Preparatory, which was decided on August 16, 2007. The court noted that the statute extends only to a narrow class of special hazards, and does not encompass any and all perils which may be connected in some tangential way with the effects of gravity. Specifically, for the statute to apply, there must be a significant, inherent, and foreseeable risk which is attributable to an elevation differential.

The court concluded that, here, it was not foreseeable that the counterweights which struck plainff posed an elevation-related hazard inherent in testing the functioning of the elevator platform. All that was involved was the moving of the platform up and down using a hand-held control unit. At the time of the accident, the counterweights were in their housing in accordance with both the elevator's design and the installation manual. The elevator shaft was constructed according to specification, and, before the counterweight rails were installed, the walls were inspected for any protrusions which might impinge on the space where the counterweights would move up and down.

"Thus, it could not reasonably be expected at the time of the testing that the counterweight frame would tilt or move in a way that would cause the counterweights to fall."

A tenant is entitled to recover attorney's fees only after successfully defending against a landlord's action arising out of the lease, according to the First Department, in Jerulee Co. v. Sanchez, which was decided on August 16, 2007. Importantly for practitioners, the court clarified exactly what "arising out of the lease" means.

"[T]he action was not one to enforce a covenant or obligation of the lease or due to a violation of the lease; rather, it was to rescind the lease due to fraud and mutual mistake. Although the ultimate relief sought was a warrant of eviction, it is not the ultimate relief that determines whether or not a dispute arises out of the lease within the meaning of § 234, as the tenant contends. Rather, it is determined by whether the litigation is based upon a breach of the terms of the lease."

Plaintiff alleged that two of defendant's employees had misappropriated trade secrets, and that the ill-gotten information was given to plaintiff's competitor, a Massachusetts company, in which the two employees were investors. In a prior action, a Massachusetts court had rejected plaintiff's respondeat superior argument, finding that the allegedly tortious acts of defendant's employees were outside the scope of their employment.

The First Department said that plaintiff may not relitigate the question, in Cartesian Broadcasting Network, Inc. v. Robeco USA, which was decided on August 16, 2007. Noting that, here, plaintiff's burden of persuasion is the same as in the prior action, the court found that plaintiff is precluded from advancing its present claims, "all of which seek to hold defendant liable by reason of the conduct of its employees."

The Second Department denied defendants' motion for a change of venue as untimely, in Obas v. Grappel, which was decided on August 14, 2007. The court noted that, pursuant to CPLR 511[a], a demand to change venue based on the designation of an improper county must be served with, or before, the answer. Furthermore, pursuant to CPLR 511[b], defendants are required to make a motion for that relief within 15 days after the service of their demand.

Failing that, the issue of venue is discretionary with the court, and, here, the court found (1) that defendants failed to move promptly for a change of venue even after ascertaining plaintiff's alleged true residence, and (2) that there was nothing in the record to establish that plaintiff had misled defendants or had sought to manipulate the venue rules to his advantage.

Plaintiff's house was damaged when its concrete slab foundation settled, sank, and cracked. Defendant disclaimed coverage for the damage, relying on terms of the insurance policy which, in pertinent part, excluded losses due to "earth movement, sinking, rising or shifting" and due to the "settling, shrinking, bulging or expansion, including resultant cracking, of pavements, patios, foundations, walls, floors, roofs or ceilings."

The Second Department found for the insurer, in Cali v. Merrimack Mut. Fire Ins. Co., which was decided on August 14, 2007. Pointing to the plain meaning of the policy's language, the court said it had no choice but to conclude that there was no coverage for damages resulting from earth movement, even when the cause of the earth movement is a covered peril.

In a proceeding to compel an estate accounting, the Second Department determined that, pursuant to a Merger, Dissolution and Distribution Agreement, petitioner was obligated to contribute to a partnership debt, based on his pro rata ownership interest as a limited partner, in Matter of Page, which was decided on August 7, 2007.

The court noted that paragraph 9 of the Agreement specifically provided that, among other things, "[a]ny shortfall in the cash needs for the closing of the transaction set forth herein shall be paid by the undersigned individuals pro-rata according to their interests in the legal entities."

The court concluded that, while the subject of that paragraph included legal and accounting fees, the plain meaning of the writing in no way limited its application to such fees, as petitioner had urged.

After plaintiff commenced a medical malpractice action, neither the hospital-defendant nor the individual-defendant appeared. However, plaintiff failed to move for leave to enter a default judgment within one year of the default, pursuant to CPLR 3215(c), and the Second Department dismissed the complaint as abandoned, in Durr v. New York Community Hosp., which was decided on August 7, 2007. The court found that plaintiff had failed to make the requisite showing of (1) a reasonable excuse for its delay in seeking a default judgment and (2) a meritorious cause of action.

The Second Department granted leave to serve a late notice of claim based on (1) evidence that plaintiffs' decedent had a reasonable excuse for his failure to serve the notice timely, (2) medical records indicating that the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) evidence of an absence of prejudice resulting from the delay, in Difuentes v. New York City Health & Hosps. Corp., which was decided on August 7, 2007.

The court noted that plaintiffs' decedent's delay was attributable to the fact that he did not learn that his cancer had recurred until five months after defendants' treatment of him had ended. Thereafter, he suffered a recurring debilitating illness, and, what is more, had difficulty in retaining counsel. Importantly, the court also said that there is actual knowledge of the facts constituting the claim when, as here, medical records suggest an injury attributable to malpractice.

The First Department upheld the termination of a probationary police officer, in Matter of Duncan v. Kelly, which was decided on August 9, 2007. The court rejected the argument that the firing was improperly based on pre-hiring conduct, over which the Department of Citywide Administrative Services would have exclusive authority. Instead, the court said that petitioner's post-hiring conduct provided ample basis for his termination, inasmuch as he had made false and misleading statements to Internal Affairs concerning a crime in which he was allegedly involved prior to his employment.

The court noted that the investigation absolved the ex-officer of two other crimes, and that substantial deference must be given to the investigatory findings, which were reviewed at a number of levels, up to and including the Police Commissioner.

There was a lengthy and virogous dissent which argued that the department had fabricated a post-hiring reason for termination which was based on pre-hiring conduct by "summarily deeming" the ex-officer's statements to Internal Affairs to be lies.

In February 2002, plaintiff's decedent underwent a kidney transplant procedure, with a replacement cadaveric kidney supplied by defendant. Four and a half weeks later, a kidney biopsy revealed lesions in the new kidney. After several treatments to the implanted kidney, it was determined that it had been rejected and needed to be removed. The pathology report of the donor kidney showed extensive tumor infiltration, which a consulting physician determined to be evidence of lymphoma. Decedent died on September 19, 2002.

Plaintiff filed suit on September 20, 2004, and defendant moved to dismiss the complaint as barred by the 2½ year statute of limitations for medical malpractice actions (CPLR 214-a). The First Department denied the motion, in Rodriguez v. Saal, which was decided on August 2, 2007.

The court noted that when a complaint does not allege negligence in furnishing medical treatment to a patient, but, rather, the failure of a medical provider in fulfilling a different duty, the claim sounds in negligence. With this defendant, at issue are not questions of medical competence or treatment, but defendant's duties as a collection and distribution center of donated organs. Simply put, the issue to be resolved is whether defendant breached its duty to exercise due care in its organ collection activities.