The Second Department affirmed the dismissal of the complaint as against defendant Cushman & Wakefield, in Vignapiano v. Herbert Construction, which was decided on December 6, 2007. The court began by noting that a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party. Here, Cushman demonstrated that its management contract with the predecessor of plaintiff's employer did not give rise to a duty of care to plaintiff. In opposition, plaintiff failed to raise a triable issue as to whether she detrimentally relied on Cushman's continued performance of its duties. As an example, at deposition, plaintiff testified that, two months before the accident, she called building management to express concern that the shelves in her office were slanted downward on the ends, and in response, someone came to inspect the shelves. However, plaintiff only speculates that this inspector was a Cushman employee, as opposed to an employee of her employer's in-house property management department. Further, said the court, even if the inspector were a Cushman employee, plaintiff did not raise a triable issue as to whether Cushman's alleged nonfeasance in failing to discover the alleged defect in the shelves launched a force or instrument of harm, such that Cushman might be liable. Finally, the court said that plaintiff did not raise a triable issue as to whether Cushman entirely displaced the duty of plaintiff's employer to maintain the premises safely. Why? Her employer maintained an in-house property management department, and the management contract provided that plaintiff's employer retained substantial control over the management and operation of the premises.

Saved!.

The First Department affirmed that two residences owned and operated by defendant were exempt from the Rent Stabilization Law since the primary use of the residences was charitable, in Candida v Salvation Army, which was decided on December 6, 2007. Because the tenants' initial occupancies commenced after defendant acquired the residences, they were exempt from the operation of the Rent Stabilization Law and defendant was entitled to refuse to renew the tenants' leases, pursuant to New York City Administrative Code § 26-511[c][9][c][i]. Furthermore, said the court, the leasing of some of the rooms in the residences to university students was incidental to the primarily charitable purpose of the residences, and did not deny defendant the benefit of exemption from the Rent Stabilization Law.

Respondeat superior.

The Second Department reinstated a complaint against the hospital, alleging vicarious liability for its employee's malpractice, even though the action against the physician had been dismissed for improper service, in Trivedi v. Golub, which was decided on December 4, 2007.

The court noted that, in an action against an employer based on respondeat superior, the employee who allegedly committed the tortious conduct is not a necessary party. Therefore, the fact that personal jurisdiction was not acquired over the physician did not warrant dismissal of the action as against the hospital.The court acknowledged that, in the absence of an employee's wrongful or actionable conduct, vicarious liability cannot be imposed on the employer. Here, though, the action against the physician was dismissed for a jurisdictional defect and did not go to the merits. Accordingly, said the court, there has been no determination with respect to whether the physician's conduct was either wrongful or actionable.

Expert witness is disqualified.

The First Department affirmed Supreme Court's disqualification of plaintiff's proposed expert witness, in de Hermandez v. Lutheran Medical Center, which was decided on December 4, 2007.The Court noted that it is within the Supreme Court's sound discretion to determine whether a particular witness is qualified to testify as an expert, and that its determination will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion. The court said, further, that an expert is qualified to proffer an opinion if he or she possesses the requisite skill, training, education, knowledge or experience to render a reliable opinion.

Here, plaintiff offered as an expert on causation a physicist who studied the growth patterns of breast cancer in general. The court found, though, that he was unqualified to render expert testimony regarding the rate of growth of the decedent's tumor, a retroperitoneal sarcoma. The purported expert, who was not a physician, showed no specialized knowledge, experience, training or education from which it could be inferred that his opinion regarding the growth of the decedent's sarcoma would be reliable.

Without any relevant expert testimony, plaintiff was unable to present a prima facie case of medical malpractice, and there was a directed verdict for defendant.

The First Department granted defendant's motion to dismiss, in Schulman v. Old Navy, which was decided on November 27, 2007. Plaintiff had alleged injuries from striking a metal bracket on a clothing rack, but the court found no negligence on the store's part. The court noted that, ordinarily, the issue of whether a condition is hazardous or open and obvious is a question of fact. On these facts, though, it could be said, as a matter of law, that the bracket was open and obvious and not inherently dangerous. Plaintiff admitted to knowing that the bracket was there, and so plaintiff's argument that the bracket was covered with clothing was unavailing.

The First Department denied defendant's motion to dismiss plaintiff's cause of action for promissory estoppel, in Global Icons v. Sillerman, which was decided on November 27, 2007.

Plaintiff alleged that it agreed to forgo its own attempt to acquire a business opportunity and facilitated defendant's purchase of the opportunity, in reliance on defendant's oral promise that plaintiff would have exclusive rights to manage and market the opportunity's products. The court found that this allegation was sufficient to show that plaintiff had irremediably changed its position in reliance on the alleged oral promise by undertaking acts which werer unequivocally referable to the promise, and that it would be unconscionable to deny enforcing that promise. Whether plaintiff's reliance on the alleged promise was reasonable is an issue of fact which cannot be decided on a motion to dismiss.

Legal malpractice, again.

The Second Department granted defendant's motion to dismiss the complaint alleging legal malpractice, in Asher v. Shlimbaum, which was decided on November 27, 2007. The underlying action was commenced to enforce an alleged oral contract regarding the conveyance of certain real property. The court said that plaintiff's actions in connection with the acquisition and maintenance of the property were not unequivocally referable to the alleged contract, pursuant to General Obligations Law § 5-703[4]), and so the alleged contract was barred by the statute of frauds and was unenforceable, pursuant to General Obligations Law § 5-703[3]). The court said that this was sufficient to show that plaintiff could not establish that he would have succeeded in the underlying action but for the defendant's failure to plead other legal theories in connection with the underlying action.

The standard for legal malpractice.

The First Department denied summary judgment to defendant-law firm in this legal malpractice action, in Duffy-Duncan v. Berns & Castro, which was decided on November 29, 2007.

Defendant's failure to timely serve a Notice of Claim on the Transit Authority had precluded plaintiff from prosecuting his personal injury action arising out of his alleged slip and fall on a patch of ice located on a subway platform. The court said that defendant failed to make a prima facie showing that, despite its failure to timely file, plaintiff could not have prevailed in the underlying action. The court found record evidence demonstrating that, because no discovery was conducted, it cannot be determined, as a matter of law, whether Transit had actual notice of the defective condition.

The court also said that defendant failed to establish that Transit lacked constructive notice of the condition on the platform. Transit submitted climatological reports, without an accompanying expert opinion, but they were insufficient since they were taken in neighboring counties, and are not dispositive as to the conditions at the site of plaintiff's fall in the Bronx.

The Labor Law, again.

Plaintiff was hired to rewire defendants' telephone system, and, while he was running wires in an attic crawl space, plaintiff fell through a sheet rock ceiling in the office below. He commenced this action to recover damages for personal injuries allegedly arising from violations of Labor Law §§ 200, 240, and 241, and common-law negligence.

The Second Department found that plaintiff's work involved an elevation-related risk within the purview of Labor Law § 240(1), and reinstated the complaint, in Becker v. ADN Design, which was decided on November 20, 2007. The court gave short shrift to defendant's arugment that plaintiff was engaged in mere routine maintenance, saying that, in fact, the work clearly was "altering," within the meaning of the statute.

The court declined plaintiff's invitation to search the record and grant him summary judgment, however, finding issues of fact as to, among other things, whether plaintiff's own conduct was the sole proximate cause of his injuries.

Falling concrete blocks.

The Second Department reinstated plaintiff's cause of action alleging a violation of Labor Law § 241(6), in Amerson v. Melito Construction, which was decided on November 20, 2007.

Plaintiff was employed by a masonry subcontractor in the construction of a concrete block wall for a new supermarket. The wall was being built by masons who worked while standing on scaffolding set up on the exterior side of the wall. Plaintiff testified that his regular duties included walking around to the interior side of the wall and scraping and removing the mortar which fell to the loading dock floor of the new supermarket as a result of the construction of the concrete block wall, 12 to 20 feet above him.

Plaintiff wore a hard hat and had a chipping hammer, a scraper, a shovel, and a wheelbarrow in order to perform this work. On the day of the accident, plaintiff allegedly was looking down and scraping the loading dock floor when he was struck in the head by a concrete block, or a portion of one, which fell from the top of the wall where the masons were working.

The Appellate Division said that, on these facts, Supreme Court improperly granted defendants' motion for summary judgment, dismissing the alleged Labor Law violation.

The court said that plaintiff's work area was one which was normally exposed to falling material or objects, and so comes within the purview of 12 NYCRR 23-1.7[a][1], a provision of the Industrial Code which requires the use of appropriate safety devices to protect workers from overhead hazards. The court said that it is for a jury to decide whether the falling of a concrete block was foreseeable and whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.

This defendant's in hot water.

The First Department denied a motion to dismiss in an action seeking damages for injuries allegedly suffered when a glass shower door fell on plaintiff at defendant's hotel, in Higgins-Barber v. Raffles, which was decided on November 20, 2007.

The court rejected defendants' argument that they cannot be held liable unless they had notice of the alleged defect in the shower door in plaintiff's particular room. The court said that, even if defendants never received any complaints about this particular shower door, or if they regularly inspected it and found no problems, there still would be issues of fact bearing on notice, including the adequacy of defendants' inspection and maintenance procedures. The court pointed to defendants' acknowledgment that there had been at least 22 similar incidents involving identical shower doors in other rooms going back 10 years, and to defendants' failure to adduce evidence in their initial moving papers as to the proper inspection and maintenance procedures for shower doors.

The court further said that defendants' argument that the prior incidents are statistically insignificant given that the hotel has over 500 rooms was effectively countered by plaintiff's expert's affidavit which specified defects in the assembly of an identical shower door, and by defendants' own witness's testimony that, beginning 10 months before plaintiff's accident, the hotel had begun replacing all the shower doors with shower curtains.