A pox on both their motions.

Leading up to this legal malpractice action, defendant-attorney had let a year pass without moving for a default judgment in the underlying action, alleging an injury on premises leased to plaintiff's employer by out-of-possession owners, and, as a result the underlying action was dismissed as abandoned pursuant to CPLR 3215(c).

Defendant concedes that his failure to move for a default judgment was negligent, but argues that there was no resulting harm to plaintiff because the underlying action was not viable. The First Department rejected this argument, in Rodriguez v. Killerlane, which was decided on October 11, 2007. In denying summary judgment to defendant, the court said defendant incorrectly assumes, solely on the owners' out-of-possession status, that the owners had no duty to remedy the alleged hazard, namely, old and rusty pipes that froze and cracked due to a lack of heat.

However, the court also denied plaintiff's cross motion for summary judgment. Plaintiff had argued that defendant's liability was established, as a matter of law, by his negligence in failing to timely move for a default judgment and the resulting dismissal of the underlying action. The court said that this argument ignored the possibility that the owners might have successfully opposed a motion for a default judgment, had one been made, or successfully vacated a default judgment, had one been entered. The court said that, accordingly, plaintiff did not meet the required 'but for' standard of proof in a legal malpractice matter: but for the attorney's negligence, plaintiff would have been successful. The only proof of the owners' liability presented by plaintiff was defendant's initial optimistic assessment of the merits and value of plaintiff's case, and that this was insufficient to establish the merits of the underlying action.

Home is where the petitioner is.

The First Department upheld the Human Resources Administration's firing of petitioner for failing to maintain a City residency, as required by Administrative Code § 12-120, in Prendergast v. City of New York, which was decided on October 11, 2007.

The court began by citing the proper review standard, namely, that the agency's determination was not arbitrary or capricious, nor was it irrational or an abuse of discretion. Petitioner's documentary evidence did not show that he resided in Queens, but merely that, after learning of the investigation into his residency, he received much of his mail at a post office box in the borough. The court found his explanation for receiving mail at the post office box address demonstrably false. Petitioner's wife, to whom he remained married despite asserting that they had been separated for some 10 years, owned a home with petitioner, having purchased it together at the time they allegedly had separated.

Petitioner was seen spending most nights at the non-City home, but was never seen residing at the Queens address. Petitioner also refused to allow the investigators to come to his Queens home to prove that he had access to that residence, which, in fact, was occupied by someone else.

Everybody out of the car.

Defendant's vehicle, leased from plaintiff, was impounded after defendant was arrested for driving while intoxicated. After pleading guilty to driving while ability-impaired, defendant attempted by telephone and in writing to recover the vehicle, but to no avail. Plaintiff eventually got the vehicle by executing a release and hold harmless agreement, wherein it agreed not to return the vehicle to defendant or any member of his family.

Plaintiff commenced this action to recover the unpaid balance due under the lease on grounds that defendant breached paragraph 11 of the lease when the vehicle was seized by the government and not promptly and unconditionally returned, but the First Department dismissed the complaint, in Ford Motor Credit Co. v. Louie, which was decided on October 2, 2007.

The court said that defendant's papers established prima facie that he made immediate and diligent efforts to recover the vehicle; that the District Attorney's office authorized the release of the vehicle to him; that, notwithstanding such authorization, the police did not return the vehicle to him or commence forfeiture proceedings; and that plaintiff, upon taking possession of the vehicle, declined to return it to him.

The court noted that plaintiff took the matter out of defendant's hands when plaintiff executed a release and hold harmless agreement with the property clerk, and upon taking possession of the vehicle, refused to return it to defendant, thereby thwarting his good-faith efforts to cure any default on the lease. The court cited plaintiff's bad faith in purportedly giving defendant an opportunity to cure, when, in fact,plaintiff had previously entered into a contract with the City specifically agreeing not to return the vehicle to defendant.

Petition for Reinstatement

Petitioner was appointed as a probationary police officer, but was later terminated when it was determined that he committed fraud on his application. On appeal, the New York City Civil Service Commission directed that he be reinstated.

Petitioner appeared for a mandatory medical examination but was found not qualified for reinstatement, and he commenced a proceeding to enforce the Commission's directive that he be reinstated, and seeking retroactive salary and benefits. During the pendency of the proceeding, petitioner's medical records were reevaluated and it was determined that he was qualified for reinstatement and was so notified, but petitioner refused the offer.

The First Department denied the petition and dismissed the proceeding, in Matter of Allocca v. Kelly, which was decided on October 2, 2007, saying that petitioner had refused the only relief to which he was entitled. The court noted that, although the Commission had directed petitioner's reinstatement, it did not award him retroactive salary and benefits, and was without authority to issue such an award. Citing CPLR 7806, the court said that the retroactive salary and benefits being sought were not incidental to petitioner's reinstatement as a police officer.

The court also denied petitioner's request for disclosure of his medical records to assist him in settlement negotiations. The request was made for the first time in petitioner's response to the City's motion to dismiss, and so it was not properly before the court. In addition, said the court, petitioner made no showing that the records were material and necessary to the prosecution of this proceeding.

Late Notice of Claim

Since plaintiff did not serve the notice of claim within 90 days of the alleged injury, as required by General Municipal Law § 50-e[1][a], the First Department dismissed the complaint, in McCrae v. City of New York, which was decided on October 2, 2007. The court noted that plaintiff did not move for leave to file a late notice of claim within one year and 90 days, pursuant to General Municipal Law § 50-e[5]; § 50-i[1].

"The Transit Authority's alleged waiver of its jurisdictional defenses does not warrant a different finding inasmuch as a timely notice of claim is a condition of maintaining the action which may not be waived in the manner of an affirmative defense. Similarly, the Transit Authority was not estopped from seeking dismissal of the cause of action."

Employment Law

The First Department upheld defendant-law firm's firing of plaintiff, a black paralegal, in Stewart v. Schulte Roth & Zabel, which was decided on October 4, 2007. The court said that plaintiff had not offered any evidence to refute defendant's showing that the termination was based on a number of well-documented performance reviews by many of the attorneys for whom plaintiff had worked. Instead of addressing these negative performance reviews, plaintiff's evidence focuses on the transfer of some of her cases to her only similarly situated co-worker, who is white, thereby reducing her billable hours and denying her credit for work she says she performed.

Although informed of the firm's anti-discrimination policies, including a requirement that discrimination complaints be reported to specific persons, plaintiff never complained that the alleged shifting of work was discriminatory, and did not offer any evidence permitting an inference that it was.

The court noted that the firm's reason for terminating plaintiff was not insufficient billable hours or an unwillingness to work, but the poor quality of her work and an inability to accept suggestions for improvement. Finally, the court noted that there is no evidence tending to show that the performance reviews were inaccurate, much less the product of collusion among the reviewing attorneys to supply a pretext for race discrimination.

All bets are off.

The First Department upheld the state's denial of a petition for a race-track management license, in Scott v. New York State Racing and Wagering Board, which was decided on October 4, 2007. The court said the board's determination was supported by substantial evidence, including several misstatements in petitioner's financial disclosure. The court reasoned that the state was justified in requiring prospective track managers to demonstrate accurate record-keeping, since in the sport of horse racing, on which betting is legal, there is the potential for illegality.

Additionally, the court gave deference to the hearing officer's findings that petitioner had deliberately misrepresented certain of his financial holdings. Finally, the court found no nothing in the record to support petitioner's arguments that he was the victim of selective enforcement, and that the board had demonstrated an inherent bias toward him.

Res Ipsa.

Plaintiff allegedly was injured when the elevator in which she was riding fell rapidly and came to an abrupt stop, out of alignment with the floor. The Second Department refused to dismiss the complaint against the company retained to service and maintain the elevator, in Fyall v. Centennial Elevator Industries, which was decided on September 25, 2007.

According to the court, there could be liability under the doctrine of res ipsa loquitur if plaintiff can offer proof that (1) the elevator's rapid descent and abrupt, misaligned stop would not ordinarily occur in the absence of negligence, (2) the maintenance and service of the elevator was within the exclusive control of defendant, and (3) no act or negligence on plaintiff's part contributed to the accident.

Bad Form.

Plaintiff is a former sanitation worker who brought this action in 1999, alleging defendants had failed to comply with a prior judgment which ordered reinstatement to his former position or appointment to an alternative position with comparable rank, pay and benefits.

Nothing has yet been done, and the First Department said that plaintiff's complaint for enforcement should be converted into a contempt proceeding, in Nunez v. City of New York, which was decided on September 27, 2007.

Without passing on the merits of the contempt proceeding, the court cited CPLR 103(c), which gives discretion to convert an improperly brought action into its proper form.

Bus Stop.

Plaintiff was riding on a bus when, according to the bus driver, a car came out of nowhere, causing the driver to slam on the brakes. Plaintiff, who had been standing in the aisle holding a handle, lost her balance, struck her head on the fare box, lost consciousness, and has no recollection of the incident. A Transit Authority internal investigation concluded that the bus driver had failed to recognize the hazard.

In spite of the Transit Authority's own finding, the First Department dismissed the complaint, saying that, as a matter of law, the bus driver had acted reasonably in an emergency not of his own making, in Rahimi v. Manhattan & Bronx Surface Transit Operating Authority, which was decided on September 27, 2007. The court explained that the Transit Authority's s rules requiring that its drivers anticipate that other drivers will violate the rules of the road impose a standard of care higher than the common law, and cannot be the basis for imposing liability on the Transit Authority. The court gave short shrift to plaintiff's expert witness who merely offered a conclusory reiteration of the Transit Authority's determination.

Failure to prosecute

Strict conformity to the notice requirements of CPLR 3216 is a condition precedent to dismissal for failure to prosecute, according to the Second Department, in Harrison v. Good Samaritan Hospital Medical Center, which was decided on September 18, 2007. The court explained that, since 3216 is a legislative creation, it cannot be part of a court's inherent power.

Specifically, defendant must serve a written notice demanding that plaintiff resume prosecution of the action and file a note of issue within 90 days after receipt of the demand, and must stating that failure to comply with the demand will serve as the basis for a motion to dismiss the action.