Plaintiff was granted leave to amend her bill of particulars, and to plead an additional theory of negligence which first came to light about a month after the note of issue was filed, in Cherebin v. Empress Ambulance Serv., Inc., which was decided by the First Department on August 30, 2007.

The court noted that leave to amend pleadings, including a bill of particulars, is to be freely given, absent prejudice or surprise, and that, in the absence of prejudice, mere delay is insufficient to defeat the proposed amendment. If the delay is an extended one, though, plaintiff must offer an affidavit of reasonable excuse and an affidavit of merit.

The court gave short shrift to defendant's allegations that plaintiff's new theory of liability was a surprising, substantial departure from the one articulated in the original bill of particulars, noting that the amendment is based on defendant's own records and the depositions of its own employees, all of which has been readily available to defendant since at least the time of the motion. The court did, though, grant defendant further, reasonable discovery on the new theory.

The so-called Dead Man's Statute, as codified in CPLR 4519, applies in a disciplinary context, or so said the First Department, in Matter of Zalk, which was decided on August 23, 2007. Charged with taking from his escrow account funds which, if not for his claim to them, would otherwise belong to his recently-deceased client's estate, the attorney was relying on his explanation that his client, before her death, gave him the funds remaining in his escrow account from the sale of her property, as payment for ten years of unpaid legal services.

The court noted that, "for the statute to apply, the testimony in question must be (1) upon the hearing on the merits of a special proceeding, (2) by a person interested in the event being examined as a witness in his own behalf or interest, (3) against the executor, administrator or survivor of a deceased person, (4) concerning a personal transaction or communication between the witness and the deceased person." The court found all four elements, and determined that the statute clearly applies.

Importantly, though, the court said that the Dead Man's Statute does not apply to the issue of mitigation, and that the attorney's offer of evidence of his conversation with his deceased client is admissible in the context of determining the nature of the discipline to be imposed.

There was a brief but pointed dissent which expressed puzzlement at that, and which would have found that the statute applies in every aspect of a disciplinary proceeding. The dissent characterized the attorney's evidence as "self-serving and otherwise unsupported," and would not have admitted it.

The First Department rejected plaintiff's claim for treble damages, and, what is more, reduced the jury's damages award from $400,000 to $15,000, in Glatzer v. Michael F. Hanley Moving & Stor., Inc., which was decided on August 23, 2007.

In saying that the damages awarded deviated materially from what would be reasonable compensation under the circumstances, the court noted that plaintiff's testimony was, in key respects, contradicted by an affidavit he himself had submitted, and that his testimony was riddled with inconsistencies which made it "unworthy of belief."

Plaintiff, a 40-year-old woman in her first year at the county's community college, enrolled in a backpacking course to satisfy the school's physical education requirement. Plaintiff testified that she thought it would be the least strenuous of the several courses available. In the session at issue, students were divided into two teams, and the gym instructor directed them to perform a number of activities, one of which plaintiff had never heard of, much less participated in. As part of the activity, a rope was tied to the back of two folding chairs and the instructor told the students that each team member had to go over the rope without touching it. If any team member touched the rope, the team had to start over. Team members were also instructed that each of them had to remain in physical contact with another team member while clearing the rope.

After plaintiff made several unsuccessful attempts to clear the rope on her own, she told her teammates that she could not do it and that they should continue without her. The gym instructor, who had been watching from the back of the room, approached the members of plaintiff's team, and, pointing to the other team, said, "Let me give you a hint." One member of the other team was positioned so that his left knee was on the floor and his right knee was extended and parallel to the floor. His teammates were using the upper part of his right leg as a prop to step over the rope. Plaintiff's team tried it, but, in executing the step, plaintiff lost her balance, and her foot slammed to the floor, resulting in leg and ankle fractures.

The Second Department denied defendant's summary judgment motion, in Calouri v. County of Suffolk, which was decided on August 21, 2007. The court noted that, under the doctrine of assumption of the risk, a voluntary participant is deemed to have consented to any apparent or reasonably foreseeable consequences of engaging in a sport. However, "[u]nder these circumstances, where the plaintiff was a neophyte with regard to the activity she was directed to perform, the doctrine of assumption of risk should not be applied with the same force as in the case of an experienced athlete. The relationship between the gym instructor, on the one hand, and the plaintiff, a complete novice, on the other, was such that, for all intents and purposes, the gym instructor was the plaintiff's superior whose directions she was obliged to follow. Accordingly, a triable issue of fact exists as to whether the plaintiff acted voluntarily in attempting the strategy suggested by the gym instructor and whether the doctrine of assumption of risk applies to this case."

The First Department found defendant's summary judgment motion timely, in view of a prior court order, which had been issued by another justice of coordinate jurisdiction, extending the time to make the motion, in Fernandez v. Laret, which was decided on August 23, 2007.

On the merits, the court dismissed the negligence claim based on defendant's unrebutted testimony that his car was stopped when it was struck. In addition, the court said that plaintiff's deposition, replete with internal contradictions, was clearly coached and tailored, creating only a feigned issue of fact as to whether defendant's car was moving at the time of the accident.

In New York, there is no cause of action for seduction, pursuant to Civil Rights Law § 80-a, and, if that is what it comes down to, it cannot be couched as a claim for breach of fiduciary duty or intentional infliction of emotional distress, at least according to the First Department, in Marmelstein v. Kehillat New Hempstead: Rav Aron Jofen Community Synagogue, which was decided on August 23, 2007.

Plaintiff alleged that defendant, who she said represented himself as "an advisor, a father figure and a god," induced her to engage in a sexual relationship "as part of a course of sexual therapy which he represented would lead to her achieving her goals of marriage and children."

The court, though, noted that, while plaintiff claims that defendant held a position as fiduciary, there is no claim that he held himself out to be a professional counselor, that the parties had a professional relationship, that he was trained to be a therapist in any particular specialty or even that he was counseling her in a specific area. All she did claim was that he had had counseled her on her personal, legal and financial problems. "That plaintiff may have succumbed to defendant's persuasive power and may have been exploited by him for his own sexual gratification is insufficient to impose a legal duty on him, entitling plaintiff to the recovery of damages. She must allege more than her subjective belief in defendant's rectitude and honesty. A fiduciary duty cannot be imposed unilaterally."

The court further noted that an informal fiduciary relationship has been found to exist between friends or family members in cases where there has been a pecuniary injury. Here, however, the alleged harm was sexual exploitation, and, by statute, that is not actionable in New York.

Since the cause of action for intentional infliction of emotional distress is founded on the sexual relationship, it too is barred by § 80-a and was dismissed.

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.