Late notice of claim.

The Second Department granted leave to serve a late notice of claim, pursuant to General Municipal Law § 50-e(5), in Hursala v. Seaford Middle School, which was decided on December 26, 2007. The court began by noting that (1) petitioners had demonstrated a reasonable excuse for failing to serve a timely notice; (2) defendant had actual knowledge of the essential facts of the claim within 90 days or a reasonable time thereafter; (3) the injured petitioner was an infant; and (4) the delay would not substantially prejudice a defense on the merits.

Specifically, the court found that petitioners demonstrated a reasonable excuse for the delay since they were unaware of the severity of the infant petitioner's ankle injury until eight months after the accident. Further, defendant will not be substantially prejudiced since all of the witnesses to the accident are known, and there will likely be no problem in interviewing them.

An administrative termination.

The First Department confirmed the Fire Commissioner's termination of petitioner, a former firefighter, and dismissed the proceeding, in Kirk v. City of New York, which was decided on January 3, 2008.

Petitioner tested positive for cocaine during a random drug test, and the Fire Department terminated his employment. Appellate Division found substantial evidence -- the evidentiary standard -- to support the termination, and gave short shrift to petitioner's argument that the Department's random drug testing policy is unconstitutional. Appellate Division also opined that the penalty of termination for substance abuse does not shock the court's conscience.

Appellate Division noted that while alcohol dependency qualifies as a disability under the Human Rights Law, pursuant to Executive Law § 292[21], drug abuse does not. Petitioner failed to establish that his drug abuse was causally related to his alcoholism, and thus did not state a prima facie case of employment discrimination under Executive Law § 296(1).

The statute of frauds.

Plaintiffs stated various causes of action based on an alleged unwritten contract for them to perform services and provide proprietary materials in order to secure clients seeking defendants' services. The First Department dismissed the complaint in its entirety, in Stanwich Consulting v. Etkin, which was decided on January 3, 2008.

The court said it was undisputed that plaintiffs' compensation was contingent on their finding paying clients for defendants. However, the complaint did not allege that plaintiffs ever found any such clients. In any event, the court said that the alleged oral contract was too indefinite to be enforceable, and was barred by the statute of frauds, pursuant to General Obligations Law § 5-701(10).

Infant plaintiff was struck by a vehicle which suddenly accelerated while the driver was parking it. In a previous negligence action, brought against the owner and the driver, Supreme Court granted plaintiffs' motion for summary judgment on the issue of liability. In deciding that motion, the court added that the driver's negligence was the "sole proximate cause" of infant plaintiff's injuries. The parties settled and an infant's compromise order was entered.

Two years later, infant plaintiff and his mother commenced this action against the dealership, asserting causes of action sounding in products liability and negligent repair. Supreme Court dismissed the complaint on the ground that the issue of liability was determined in the previous action, and said plaintiffs were collaterally estopped from asserting that anything other than that the driver's negligence caused the infant's injuries.

The Second Department reinstated the complaint, in Sneddon v. Koeppel Nissan, which was decided on December 26, 2007. Appellate Division noted that collateral estoppel, or issue preclusion, prohibits a party from relitigating an issue which was previously decided in a proceeding in which that party had a full and fair opportunity to fully litigate the identical issue. The key is that the issue must have been necessarily decided in the prior proceeding.

Here, said Appellate Division, the previous action found that the driver's negligence was a proximate cause of infant plaintiff's injury, to which infant plaintiff did not contribute. In this action, though, the issues are whether the alleged manufacturing defect or negligent repair of the vehicle were also proximate causes of infant plaintiff's injuries. The issues in the current action are discrete and not identical to those in the previous action, and so plaintiffs are not barred from litigating them.

Labor Law 240.

To recover on a cause of action pursuant to Labor Law § 240(1) and (6), a plaintiff must demonstrate that (1) there was a violation of the statute, and (2) the violation was a proximate cause of the accident, or so said the Second Department, in Gittleson v. Cool Wind Ventilation Corp., which was decided on December 26, 2007. The court found that plaintiff's injury was not caused by a statutory violation, but solely by plaintiff's own actions in choosing to use an improperly placed, unopened, and unsecured ladder rather than the one he had brought and used earlier that day. The court also found that plaintiff's injury resulted from his own method of operation, and that defendant had no authority to supervise or control the work, and so no liability attached under Labor Law § 200 or under a common-law negligence theory.

The First Department affirmed the denial of summary judgment to plaintiff on his cause of action under Labor Law § 240(1), in Boccia v. City of New York, which was decided on December 20, 2007. The court said there was an issue of fact as to whether plaintiff fell from the ladder because it "shifted" or "slipped" due to water, mud, concrete mortar and other debris on the ground, as plaintiff claims, or because of "wet concrete" or "wet cement" on his boots, as defendant claims. The court found that issue in the accident reports prepared by plaintiff's foreman, in plaintiff's presence, in which plaintiff said he slipped on the ladder because of a wet substance on his boots.

The First Department granted defendant's motion to strike two claims in plaintiff's bill of particulars, namely, that defendant (1) negligently failed to hire enough competent employees, and (2) failed to adhere to applicable ordinances, codes and statutes, in DeJesus v. New York City Housing Authority, which was decided on December 28, 2007.

Plaintiff tripped and fell on a sidewalk abutting premises controlled by defendant, and near an area that was used to recycle tenants' garbage. Plaintiff's notice of claim alleges that defendant was negligent by locking the area so that garbage accumulated on the sidewalk, in not providing another location for tenants to dispose of their garbage, and in failing to maintain and inspect the area. There was nothing in the notice of claim about defendant's negligent failure to hire enough employees and to ensure their competence. Accordingly, this is a new theory of liability that must be stricken from the bill of particulars.

Regarding the allegation that defendant failed to adhere to applicable ordinances, codes and statutes, the court said this was a vague and open-ended assertion which amplified nothing in the notice of claim, and that it too must be stricken from the bill of particulars.

Plaintiff -- who was defendant-college's only full-time corporate recruiter -- was fired after injuries she suffered in a car accident made her unable to make recruiting trips to Staten Island. She sued, alleging violations of the New York State and City Human Rights Law, but the First Department dismissed her complaint, in Jones v. Saint Joesph's College, which was decided on December 27, 2007. The court found record evidence that recruiting trips to Staten Island were an essential function of the job, and determined that plaintiff's suggested accommodation of assigning Staten Island recruiting trips to other employees was unreasonable. The court gave short shrift to plaintff's contention that the firing was based on animus.

The First Department reversed the motion court's granting of summary judgment on tenant-plaintiff's cause of action for breach of the implied warranty of habitability, in Armstrong v. Archives L.L.C., which was decided on December 27, 2007. The court also reversed the declaratory judgment that plaintiff had rightfully terminated her lease and is not liable for further rent, and reinstated landlord-defendant's affirmative defenses and counterclaim.

The court said that defendant's affidavits raised material issues of fact as to whether the alleged noise from a neighboring apartment was so excessive that plaintiff was deprived of the essential functions of the residence. Plaintiff's showing of numerous complaints does not establish a breach, and defendant's notice of cure reciting the dates and substance of noise complaints against the offending tenant does not constitute a conclusive admission that the noise rose to the level of constituting a breach. Additionally, plaintiff's claim that defendant did nothing to address her complaints is contradicted by evidence that defendant's agents, including a porter and doormen, assisted plaintiff on many occasions by calling the offending tenant and going to his apartment in response to her complaints and setting up meetings to explore her relocation options to another apartment in the building. In addition, defendant's counsel wrote letters to, and served a notice to cure upon, the offending tenant.

The First Department set aside a plaintiff's verdict of $2,000,000 compensatory and $500,000 punitive damages, plus attorneys' fees of $257,428.71, in Jordan v. Bates Advertising, which was decided on December 27, 2007. In addition, the court upheld a $5,000 sanction against plaintiff, and dismissed the complaint which had sounded in disability discrimination.

Plaintiff was hired as a senior vice president at the advertising agency, after having worked there for two months as a consultant. She was fired a year later. After her federal claims were dismissed, plaintiff brought a state action claiming, among other things, that she was fired because she was perceived to be disabled.

The First Department agreed with defendant that, at trial, plaintiff did not prove that defendant's proffered legitimate reasons for the firing were pretextual.
The court said that, in establishing her claim under Executive Law § 296, plaintiff had the initial burden of establishing a prima facie case of discriminatory termination. The burden then shifted to defendant to rebut the prima facie case by offering a nondiscriminatory reason for the termination, and then again shifted to plaintiff to show that defendant's reasons were pretextual. The burden of persuasion on the ultimate issue of discrimination always was plaintiff's.

At trial, plaintiff established that she was diagnosed with multiple sclerosis (MS) in 1992 and, because of it, used a cane. When she was asked about the cane after having been hired, she said she used it because of a skiing injury, a lie which she repeated when she was asked about it again. Plaintiff testifed that, since she was often asked about the cane, she felt that they believed she had a disability, and that if she revealed the truth she would be fired. However, she did not complain to anyone at the agency about the inquiries as to her use of the cane. Plaintiff further testified that, at a rehearsal for a client presentation, an executive knocked over her cane which was leaning on her chair, and laughed with another executive, while commenting sarcastically, "We've got a cripple." Plaintiff did not mention this comment to anyone at the company.

Agency executives testified that plaintiff's termination was financially motivated, and that a merger and the loss of major clients had precipitated layoffs of a large portion of the workforce, including executives more highly placed than plaintiff. There was testimony that, as a result of the merger alone, half of the staff was terminated.

The court said that defendant's overwhelming and consistent evidence of financial reasons for layoffs in the light of the merger and the loss of major client accounts was undisputed, and that, therefore, the finding that defendant failed to demonstrate a legitimate reason for terminating plaintiff was against the weight of the evidence.

The court said that the sanction of $5,000 on plaintiff was a proper exercise of the trial court's discretion. Plaintiff's conduct after the court directed a hearing to determine the amount of attorneys' fees was egregious and repeated. The record shows that plaintiff pro se relentlessly bombarded the court with letters and faxes accusing the court of ex parte communications, declaring her intention to depose the court, and claiming that her now-former trial attorney had committed serious errors costing her millions in damages. Although the court recognized that plaintiff was proceeding pro se after trial, it properly observed that she still was obliged to comply with court orders and not make baseless accusations regarding the court's integrity.

The First Department affirmed the denial of defendant's summary judgment motion, in Moore v. 793-797 Garden St. Housing Development Corp., which was decided on December 20, 2007.

Plaintiff alleges that, while she was walking down a marble staircase, one of the stairs moved from its base and she fell. Defendant failed to satisfy its initial burden of establishing a lack of notice as a matter of law since its witness had no personal knowledge of the condition of the allegedly defective step. In addition, defendant offered no evidence from its employees who were regularly at the property and dealt with tenant complaints, and who could have testified regarding the lack of complaints about the staircase or when it was last inspected or repaired. Furthermore, the record included plaintiff's testimony that (1) she had complained to the superintendent that the steps were uneven and had broken chips, and (2) steps in the vicinity of the accident had been patched and grouted and were the subject of violations issued by the Department of Housing Preservation and Development. All of this raised a triable issue as to whether defendant had notice of the allegedly hazardous condition.