The First Department reinstated the complaint labeled as negligence and dismissed the complaint labeled as negligence/res ipsa loquitor, in Ianotta v. Tishman Speyer, which was decided on December 11, 2007. The court noted that plaintiff failed to raise an issue of fact as to whether defendant had notice of the alleged defective condition of the elevator in which she was injured, since the incidents noted in the elevator service report log were not similar to the accident giving rise to this lawsuit. However, the court found that facts did warrant application of the doctrine of res ipsa loquitur, since plaintiff testified that the elevator doors were open for a second or two before she entered the elevator right behind her co-worker and that another co-worker had to pry the doors open to free her, and the safety edge on the elevator was not a rubber bumper that plaintiff could have touched or put pressure on to cause the doors to retract but a device that used infrared beams to detect the presence of passengers. Since the public did not have access to the mechanism which would cause the doors to retract, the greater probability of responsibility for the alleged malfunction is on the defendant.
The court reinstated the negligence cause of action and dismissed the negligence/res ipsa cause of action in order to clarify that without a cause of action for negligence there is no viable cause of action to which to apply the doctrine of res ipsa. It is not a separate theory of liability but merely a common-sense application of the probative value of circumstantial evidence.
There was a lengthy dissent which argued that the doctrine of res ipsa cannot save the deficiencies in plaintiff's proof of negligence. The dissenting judge said that plaintiff was resorting to the mere happening of the accident as proof of negligence, and said that cannot be supported by New York law.

The First Department took down defendant's directed verdict, reinstated the complaint, and ordered a new trial, in Hendricks v. Baksh, which was decided on December 6, 2007. The court said that the directed verdict was improperly granted on the ground that expert testimony was necessary for plaintiff to make a prima facie case of negligence. The court noted that defendant admitted that two years before the accident he repaired the area of the sidewalk in front of his home where plaintiff tripped and fell, and concluded that the question of whether this repair was performed negligently, thereby creating a defect causing plaintiff to trip and fall, should have been given to a jury. The details of the repair work -- whether defendant used the right concrete, or poured enough of it in the right places, or should have removed the cobblestones, or failed to properly take into account the effects of weather, foot traffic and tree roots on the installation -- are not matters beyond the ken of the typical juror, nor are they issues of such scientific or technical complexity as to require the explanation of an expert in order for the jury to comprehend and resolve them.

Plaintiff is the mother of decedent, a five-year-old kindergarten student who was asthmatic, a fact known by his teacher and reflected in records maintained by the school nurse. At the beginning of the school year, plaintiff gave to the nurse decedent's asthma medication, an inhaler, and an authorization and directive for its use, as well as a separate authorization for an allergy medication.

On the day in question, decedent's teacher and the teacher's aide in his class noticed that he was coughing and they decided he should see the nurse. According to the nurse's records, decedent was breathing, alert, and in no distress. The nurse gave decedent his inhaler medication and notified plaintiff, who drove to the school. According to plaintiff, when she arrived, decedent was standing with the nurse and the principal. He was breathing and able to walk and talk. Plaintiff told the nurse that she was taking decedent to his pediatrician, which the nurse had suggested, and plaintiff put decedent in her car and drove away.

Plaintiff alleges that in the car decedent appeared to be hot and ill, and that she stopped twice to attend to him. Plaintiff decided to drive directly home, which she says was closer than the doctor's office, to call for help. Plaintiff asserts that, on reaching her home, she left decedent in the car, called 911, and then moved him into the house where emergency medical personnel treated him before taking him to the hospital by ambulance. Decedent was pronounced dead at the emergency room.

The Second Department granted defendant's motion to dismiss, in Williams v. Hempstead School District, which was decided on December 6, 2007. The court noted that decedent had been released to plaintiff who assumed complete custody and control of him. Having removed decedent from the geographic boundaries of the school district, as well as from defendant's actual control, and having decided to take him home where plaintiff administered medication, plaintiff cannot establish, as matter of law, that a duty existed which could give rise to any liability by defendant.

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.