Municipal immunity.

The First Department dismissed the complaint as against the City, on the grounds of municipal immunity, in Shands v. Escalona, which was decided on October 23, 2007. Plaintiff had alleged that her intended roadside exit was closed because of flooding, and that a City police officer was negligent when he guided her back onto the highway, only to have her vehicle struck by a tractor-trailer owned and operated by co-defendants.

The court said that, even accepting plaintiff's allegations as true, any negligence on the part of the officer was committed in the course of a discretionary act for which the City is immune from suit, absent a special relationship. On these facts, the court did not find evidence of the requisite relationship.

A motion to preclude denied.

The Second Department affirmed the trial court's denial of plaintiff's motion to preclude one of defendants' medical experts from testifying on the ground that his testimony varied from the expert witness statement served before trial, pursuant to CPLR 3101[d][1][i], in Popkave v. Ramapo Radiology, which was decided on October 23, 2007.

On review of the trial record, the court found that the expert's testimony was fully consistent with his pretrial disclosure statement. The court said that any additional testimony the witness gave regarding the plaintiff's social history and the causes of breast cancer either was of collateral significance or constituted general background information, which did not render the pretrial disclosure statement inadequate or misleading, and did not result in prejudice or surprise to plaintiff.

It was in the mail.

The Second Department reversed Supreme Court's denial of defendants' motion to dismiss on the ground that it was untimely served, in Ortega v. Trefz, which was decided on October 23, 2007. The court noted that service on a party's attorney by mail is complete upon mailing, pursuant to CPLR 2103[b][2]. The court went on to explain that "mailing" means the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person's last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state, pursuant to CPLR 2103[f][1].

Furthermore, said the court, a properly executed affidavit of service raises a presumption that there was a proper mailing.

Here, defendants submitted a notarized affidavit of service from an employee of defendants' counsel attesting that she mailed the motion papers on May 9, 2006, in strict adherence to the statutory requirement. The postmark date of May 10, on the envelope in which the plaintiffs received the motion, did not establish that service was not completed on May 9.

A disability claim denied.

The First Department affirmed the denial of petitioner-police officer's claim to disability retirement benefits, in Igneri v. Kelly, which was decided on October 25, 2007.

The court said that, on this record, it could not be determined, as a matter of law, that petitioner's disabling arthritic condition was the natural and proximate result of the 1983 gunshot wound to his right thigh.

While petitioner offered various theories of causation, they were all refuted by credible evidence of lack of causation. As an example, petitioner proffered that the damage to his right thigh caused him to alter his gait and kept him from exercising, resulting in the weight gain that the Medical Board believes contributed to the arthritis. But the Medical Board countered that its examination of petitioner revealed full functional recovery of the thigh with the exception of some decreased sensation. No atrophy or motor problems were noted, and there was no indication of a change in gait or other cause for increased weight gain due to an inability to exercise.

While petitioner was claiming arthritis in his right-knee, the Medical Board cited evidence that the bullet fired at petitioner missed the knee and that no bullet or bone fragments were found in the knee. The Medical Board also cited evidence that petitioner was now displaying symptoms of arthritis in his left knee.

Finally, the court said that the fact that the Police Department had paid for petitioner's medical treatment for the knee is not evidence that the condition of the knee is service-related.

Class dismissed.

The First Department upheld petitioner-employee's termination, finding her complaint time-barred, in DiRuzzo v. Department of Education, which was decided on October 25, 2007. The court said that, once the claim accrued, the employee's filing of a grievance did not toll the statutory limitation period.

It's settled.

The Second Department upheld a stipulation of settlement, saying that, since plaintiff's attorney engaged in settlement negotiations and appeared at pretrial conferences, he had, as a matter of law, apparent authority to bind his client to the settlement terms, even if it exceeds his actual authority, in Davidson v. Metropolitan Transportation Authority, which was decided on October 16, 2007.

The court added that a party will be relieved from the consequences of a stipulation made during litigation only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident.

The court noted that, subsequent to the stipulation of settlement, plaintiff's attorney, acting on behalf of the party to be bound, confirmed the essential terms of the oral settlement agreement reached at the pretrial conference in a subscribed writing sufficient to satisfy the requirements of CPLR 2104.

Finally, said the court, plaintiff failed to make a showing of any procedural unconscionability in reaching the agreement which would warrant a vacatur of the agreement or a hearing on that issue.

The school of hard knocks.

At the § 50-h hearing, the infant plaintiff testified that three days before the incident which triggered the complaint, another student at his junior high school entered plaintiff's classroom, challenged him to a fight, and threw plaintiff's hat, which was on his desk, to the floor. The teacher ejected the other student from the classroom, but the next day he was back and, once again, he challenged plaintiff to a fight. This time the teacher merely instructed the students not to pay any attention to the intruding student.

On the day of the incident at issue, while plaintiff was in the basement lunchroom during lunch period, the same other student started staring aggressively at plaintiff. Fearing that the other student was going to hit him, plaintiff told the teachers in the lunchroom what was happening, but they were busy and told him they could not do anything.

Shortly thereafter, the other student approached plaintiff and pushed him. One of the counselors who was present in the lunchroom saw the contact, separated the boys, and directed them to leave the basement by different stairways. When plaintiff returned to the area of the second floor outside of his classroom, he was approached again by the other student, who this time had three friends with him. Plaintiff swung at the other student but missed, and the other student punched plaintiff in the mouth, breaking a tooth.

The Second Department denied defendant's motion for summary judgment, in Ambroise v. City of New York, which was decided on October 16, 2007. The court noted that liability for injuries resulting from a fight between two students cannot be predicated on negligent supervision if the plaintiff was a voluntary participant in the fight, and found that, on these alleged facts, there was a triable issue as to whether plaintiff was participating voluntarily in the fight, or was acting in self-defense.

She's gotta go home again.

Pursuant to a written lease, defendant is the tenant of an apartment in plaintiff's building. Plaintiff served a notice of nonrenewal, citing nonprimary residence, and commenced an action for ejectment. Defendant moved to dismiss, asserting that plaintiff had served her with a notice of renewal before it served notice of nonrenewal, and that she executed the lease and submitted it to plaintiff approximately one month later. Plaintiff cross-moved for summary judgment, arguing that the tenant is a British citizen who entered the United States on a B-2 tourist visa, and is thus statutorily barred from maintaining a permanent residence in the United States.

The First Department granted plaintiff's summary judgment motion, in Katz Park Avenue Corp. v. Jagger, which was decided on October 18, 2007. The court noted that a landlord may recover a rent-controlled apartment which is not occupied as the tenant's primary residence, and said that primary residence is an ongoing, substantial, physical nexus with the controlled premises for actual living purposes, which can be demonstrated by objective, empirical evidence.

Here, said the court, tenant concedes that she is a citizen of the United Kingdom, and therefore, to the extent she resides in the United States, she does so as a nonimmigrant on a B-2 tourist visa, which requires her to maintain a permanent residence outside the United States that she has no intention of abandoning.

The court said that, even if it were to conclude that the holder of a B-2 tourist visa is not necessarily precluded from maintaining a primary residence in a rent stabilized apartment, this record is devoid of any evidence supporting this tenant's primary residence claim or showing that she is in the United States as anything other than a temporary visitor.

Two judges dissented, finding a fact question as to primary residence. They argued that plaintiff's immigration status -- albeit not permanent -- may be extended and therefore could well result in a protracted stay. If the lease is for only one year, the immigration status is not enough to summarily deny that this is a primary residence for leasehold purposes.

Labor Law § 240(1)

The Second Department denied defendant's motion to dismiss a Labor Law § 240(1) cause of action, in Mentesana v Bernard Janowitz Constr. Corp., which was decided on October 9, 2007.

Plaintiff allegedly was injured while on a flatbed truck as he was looking for certain pieces of steel which were to be installed at a construction site. As he bent over, a steel I-beam which was being hoisted by crane came loose and fell, hitting another beam, which slid onto and crushed the plaintiff's finger. Plaintiff testified at his deposition that someone else attached the I-beams to the crane, that he had never received instructions on the proper way to attach the I-beams to the crane, and that he had never before performed that particular task. He also testified that the I-beams were elevated approximately three feet above his head when they came loose and fell.

The crane operator testified at deposition that plaintiff attached the I-beams to the crane improperly, and knew that they were attached improperly, but told the crane operator to hoist them anyway. He further testified that plaintiff had performed this task many times before, and knew that the foreman had instructed plaintiff with respect to the proper method of attaching the I-beams to the crane. The crane operator also stated that, after plaintiff told him to hoist the I-beams without properly securing them, he complied, knowing that the beams were improperly secured. Further, he stated that the I-beams were only one to two feet above the bed of the truck when they fell.

The court noted that Labor Law § 240(1) imposes liability upon owners and contractors who fail, in accordance with the statute, to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards. In order for the statute to apply, the plaintiff must show more than simply that an object fell causing injury to a worker. Instead, a plaintiff must show that the object fell while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute. What is more, liability is contingent on the existence of a hazard contemplated in the statute, and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein.

Here, the court found triable issues, to include the relative height of the I-beams when they fell; whether safety devices were available to the plaintiff; and whether he had received instructions on how to attach the I-beams to the crane.

Losing causes.

The First Department affirmed defendant's motion to dismiss, pursuant to CPLR 3211(a)(1), (5) and (7), in Langer v. Dadabhoy, which was decided on October 11, 2007.

The court said that the breach of contract claim was properly dismissed, since plaintiff's bare allegation that he had "set aside" funds for the real estate purchase at issue does not constitute adequate consideration for an alleged agreement.

As regards the claim for breach of a joint venture, the court found that plaintiff failed to sufficiently set forth facts to establish necessary elements such as his contribution of property and skills, control over the venture, and the sharing of possible financial losses. Moreover, absent a proper pleading of a joint venture, plaintiff's alleged oral agreement to invest $150,000 toward the purchase of real property was unenforceable under the Statute of Frauds.

The court also noted that documentary evidence in the form of e-mails conclusively established that the parties intended to finalize their agreement in a writing, which never materialized, since the parties' negotiations were eventually discontinued. As such, there was no meeting of the minds as to the proposed joint venture.

In light of these determinations, the court gave short shrift to the alleged causes of action for breach of fiduciary duty and for the imposition of a constructive trust.

No day at the races.

The First Department affirmed the state agency's determination that a noted thoroughbred-horse trainer had violated the so-called "trainer responsibility rule," codified at 9 NYCRR 4043.4, and that his license should be suspended for 120 days, in Sciacca v. Hoblock, which was decided on October 11, 2007.

Citing CPLR 7803[4], the court found the requisite substantial evidence that the trainer's employees had tried to administer a so-called "milk shake" -- a mixture of bicarbonate of soda and sugar -- to a horse he trained, with the intent of affecting the horse's race-day performance.

The court said that the trainer responsibility rule should be read to mean that trainers are liable for failing to guard their horses from such attempts prior to races.