The relation-back doctrine of CPLR 203(b).

The administratrix of decedent's estate brought a timely medical malpractice and wrongful death action against the state hospital, and then, after the statute of limitations had expired, brought a separate action against two individual physicians. Instead of answering, they moved to dismiss the complaints as time-barred, pursuant to CPLR 3211(a)(5), and the Second Department granted their motions, in Cardamone v. Ricotta, which was decided on January 15, 2008.

The court refused to apply the relation-back doctrine as specified in CPLR 203(b), which requires, among other things, that the newly-named party knew or should have known that, but for plaintiff's mistake as to the identity of the proper parties, the action would have been brought against that party as well.

Here, the court found that plaintiff had not made a mistake but, rather, had not made a timely and genuine effort to determine the identities of the physician-defendants. The court noted that defendants' identities were listed in decedent's chart and in a resident's notes, and found no evidence that these documents were not available to plaintiff before the statute of limitations expired. The court determined that, even if defendants knew about the Court of Claims action, they could reasonably have concluded that plaintiff's failure to timely name them meant that there was no intent to sue them at all and that the matter had been concluded as far as they were concerned.

Fee Matters.

The First Department granted plaintiff's attorney's motion for a one-third fee, in Gee v. Salem Day Care, which was decided on January 17, 2008. Although plaintiff signed a retainer agreement that stated otherwise, it is uncontested that she agreed to pay her attorneys a one-third contingency fee for services rendered in connection with her personal injury action, a fee considered reasonable, pursuant top 22 NYCRR 603.7[e][2], Schedule B. Since a fee in a personal injury case may be calculated either as a fixed percentage of the sum recovered or pursuant to a sliding scale, there is no legal, policy, or logical reason to deny a contingency fee to plaintiff's attorney simply because plaintiff inadvertently signed the wrong retainer agreement form. This is especially so because the attorney earned the agreed fee and plaintiff clearly wishes to pay it.

Although plaintiff's attorney chose to remedy this mutual mistake by forthrightly seeking redress and authorization from the court, there is nothing that would have prevented plaintiff from privately and informally correcting the error, by simply paying her attorney the fee differential directly.

The First Department vacated the administrative penalty of the revocation of petitioner's liquor license, in Dawkins v. New York State Liquor Authority, which was decided on January 10, 2008.

The state agency had determined that petitioner had impeded an inspection of the licensed premises, in violation of Alcoholic Beverage Control Law § 106[15], served alcohol to three visibly intoxicated individuals (§ 65[2]), failed to display her license conspicuously (§ 114[6]), and failed to comply with regulations regarding signage for fire exits.

The court, though, said that the penalty of license revocation was excessive, in light of petitioner's prior unblemished record, and considering the impact of such a penalty on her livelihood. The court remitted the matter to the agency for the imposition of an appropriately lesser penalty.

The Second Department granted plaintiff-bank's motion for partial summary judgment on the issue of liability on its breach of guaranty cause of action, in Sterling National Bank v. Biaggi, which was decided on January 10, 2008.

Defendant's written personal guaranty unequivocally provides that: (1) it is absolute and unconditional in all respects and enforceable irrespective of any other agreements or circumstances which might otherwise constitute a defense to the guaranty and obligation of the guarantor under the loan agreement; (2) the guarantor absolutely, unconditionally and irrevocably waives any and all rights to assert any defense, set-off, counterclaim or cross claim of any nature whatsoever concerning the guarantor's obligations under the guaranty or the loan agreement; and (3) the guarantor waives the right to interpose any defense based upon statute of limitations or any claim of laches and set-off or counterclaim of any nature or description in any action in which plaintiff is an adverse party.

The court concluded found this language sufficiently specific to make defendant liable on the guaranty and to constitute a valid waiver of the right to plead any affirmative defenses or to make any counterclaims.

Assumption of the risk.

Plaintiff was at a baseball field to watch her son's team play a practice-game and was injured when she was struck by a bat being swung by a player on the off-field side of a chain-link fence running along the third-base line. The player, in effect, was in the on-deck circle.

The First Department applied the doctrine of primary assumption of risk and dismissed the complaint, in Roberts v. Boys & Girls Republic, Inc., which was decided on January 8, 2008.

According to the doctrine, a voluntary participant, spectator or bystander assumes those commonly appreciated risks which are inherent in the sport or activity and which follow from participation in it. A plaintiff also assumes risks attributable to any open and obvious condition of the place where the activity is taking place.

Under the doctrine, a defendant's duty is limited to exercising care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff will have effectively consented to them and the defendant will have performed its duty.

Here, the court said that a player's taking practice swings is an inherent part of the game, and that plaintiff assumed the risks entailed by her voluntary proximity to the game, including the risk of being hit by a swung bat. The court gave no effect to plaintiff's argument that she did not know anything about baseball, saying that she still should have appreciated the risk posed by a swung bat.

The court rejected plaintiff's claim that the hazard was somehow concealed or sprung upon her. The on-deck area was obviously and logically situated relative to the activity on the field; it was marked with equipment; and it was in virtually continuous use by players during the 90 minutes that plaintiff was at the field. Indeed, plaintiff testified that she saw numerous children in the area of the accident swinging bats when she arrived at the field, and again saw such activity from the bleachers as she watched her son's team practice.

Two justices dissented, at some length, saying that plaintiff's injury resulted not from a risk commonly associated with the game, but from a risk that was created as a direct result of defendant's permitting the use of this non-defined, non-designated on-deck circle off the field of play in an area open to the public where plaintiff had every right to be. They concluded that the assumption of risk doctrine does not preclude a recovery for negligent acts which unduly enhance such risks, and that is what they thought defendants did here.

Notice and causality.

The First Department affirmed Supreme Court's denial of defendant's summary judgment motion, in Ruiz v. 30 Real Estate Corp., which was decided on January 8, 2008. Defendant failed to satisfy its initial burden of making a prima facie case on its argument that the grease and garbage on the staircase in its building was not a proximate cause of plaintiff's fall. In plaintiff's deposition testimony, which defendant offered in support of its motion, plaintiff said that he alerted a member of defendant's staff to the condition of the staircase, and that he slipped on the grease that was still there more than 12 hours later. The court gave short shrift to evidence that plaintiff had been drinking prior to his fall, and also to defendant's argument that, if plaintiff saw that garbage was still on the stairs, he should have taken the elevator.

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.