Age discrimination and retaliation.

The First Department dismissed the complaint sounding in age discrimination and retaliation, in Edwards v. Jamaica Medical Center, which was decided on January 24, 2008. The court found that defendants had offered valid, nondiscriminatory reasons for plaintiff's termination, and, in response, plaintiff had offered nothing to raise a triable issue as to whether defendant's reasons were merely pretextual.

The record demonstrates that plaintiff's termination resulted from her misuse of sick days, specifically in her not reporting for work at defendant-hospital facility while reporting for her evening shift at another job on those very same days. Plaintiff had been repeatedly warned that excess absences could lead to termination. Plaintiff's conclusory allegations of a discriminatory practice did not give rise to an inference that defendants engaged in a pattern or practice of attempting to replace older employees with younger, less qualified ones who were willing to work on a per diem basis.

Plaintiff alleged injuries sustained by walking into a forklift parked in front of defendant's premsises, but the First Department dismissed the complaint, in Pinto v. Selinger Ice Cream Corp., which was decided on January 22, 2008.

Plaintiff testified at deposition that he was very familiar with the premises, including defendant's custom of parking the forklift on the sidewalk, which defendant used as a driveway and loading bay for its ice cream distribution business. As plaintiff turned the corner just before the incident, he saw the forklift from 100 feet away. As he walked closer, he heard someone call to him from across the street, and turned his head toward the voice, and then walked squarely into the forklift, and fell.

Noting evidence that the forklift was bright yellow, the court concluded that, under these circumstances, the forklift was readily observable by the reasonable use of one's senses, and that plaintiff's inattentiveness was the sole proximate cause of the accident.

The court gave short shrift to plaintiff's deposition testimony that the sidewalk was cluttered with crates, noting its inconsistency with his other deposition testimony that he didn't notice anything other than the forklift and another parked vehicle, which he could only say was either a car or a truck, and disregarding it as a generic statement calculated to create a feigned issue.

In a personal injury action, defendants appealed an adverse interlocutory judgment, upon a jury verdict, on the issue of liability. The Second Department affirmed, in Coogan v. Torrisi, which was decided on January 15, 2008.

Defendants' contention that they were deprived of a fair trial because of the alleged prejudicial effect of testimony regarding alcoholic beverages at their home on the day of the accident was unpreserved for appellate review. The court opined that reversal would not be warranted anyway since defendants failed to establish that this limited testimony diverted the jurors' attention from the issues to be decided.

It was not error for the trial court to charge the jury that a defendant's violation of the Vehicle and Traffic Law was negligence per se, pursuant to Vehicle Traffic Law §§ 501[5][a], 509[3], 1129[a] and 1180[a]. The fact that this defendant's learner's permit required him to have a licensed adult driver supervising his actions when driving related directly to the actual operation of the vehicle. The statute sets a standard of care, and its unexcused violation is negligence per se.

A pedestrian accident and comparative negligence.

The Second Department denied plaintiff's summary judgment motion, in Cator v. Filipe, which was decided on January 15, 2008. Plaintiff-pedestrian was crossing the street within a crosswalk, with the traffic light, when she was struck by defendant's vehicle as it was making a left turn. While defendant failed to yield the right of way to plaintiff, in apparent violation of Vehicle and Traffic Law § 1112(a), plaintiff testified at her deposition that she had not looked to her left or right while crossing the street. On these facts, plaintiff failed to meet her burden of demonstrating her entitlement to judgment as a matter of law on the issue of liability, since a triable issue of fact exists as to her comparative negligence.

CPLR 3011, collateral estoppel and res judicata.

Plaintiffs alleged legal malpractice stemming from defendants' representation of them in a real estate transaction in which plaintiffs were the purchasers, and the First Department reinstated their complaint, in Kahn v. Taub, which was decided on January 15, 2008.

The court said that, although plaintiffs could have interposed their claims as cross claims in a prior action in which they and defendants were co-defendants, they were not required to do so either by CPLR 3011 or by the doctrines of collateral estoppel and res judicata.

The only issue litigated in that prior action was whether the tenants of the premises purchased by plaintiffs herein had a valid right of first refusal to purchase the premises themselves. While plaintiffs' claims of legal malpractice arose from the sale of the premises, they relate solely to the legal representation plaintiffs received and whether their attorney and his law firm were negligent or unethical in the handling of the matter due to an alleged conflict of interest. There is no identity of issue which was necessarily decided in the prior action and which would be dispositive of the instant action, as is required to invoke collateral estoppel; nor do plaintiffs' claims arise solely from the single transaction that was at issue in the prior litigation, as is required to bar the instant litigation on the basis of res judicata.

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.