Liability for an independent contractor's allegedly negligent acts.

The corporate defendant was a newspaper distributor which entered into a contract with The New York Times to distribute its papers. The individual defendant was the corporate defendant's independent contractor who had sole responsibility and control over the manner and means of delivering the papers. The First Department dismissed the complaint as against the corporate defendant, in Duhe v. Midence, which was decided on February 7, 2008. The court said that the distributorship did not exercise sufficient control over the actual delivery process to raise a triable issue of fact as to whether it was vicariously liable for the individual defendant's acts.

Practice point: General supervisory control is insufficient to impose liability on a corporate defendant for the acts and omissions of an independent contractor.

CPLR 3211(a)(8)

The affidavit of service showed that plaintiff attempted to serve a corporate defendant by delivering a copy of the summons and complaint to an employee, a customer service representative who stated that he had never been authorized to accept process on defendant's behalf. The process server alleged no independent recollection of the service, but stated that she would not have left the summons with a person who denied having authority to accept it. The Second Department dismissed for lack of jurisdiction, pursuant to CPLR 3211(a)(8), in Covillion v. TriState Service, which was decided on February 5, 2008. The court concluded that the employee was clearly not a director or an officer, and that he had not been designated to act as an agent for service of process.

Practice point: Beyond an affidavit of service, the record must support a reasonable belief that a corporate defendant's employee was authorized, either by appointment or law, to accept process.

Infant plaintiff was injured when she lost her balance walking in a classroom in defendant's day-care center and fell, striking her right eyebrow on the edge of a shelving unit in which toys were kept. Plaintiff claims defendant created a dangerous condition by placing a "toy shelf" with sharp edges in a children's classroom, in violation of New York City Health Code 24 RCNY § 47.35(g), which mandates that "[p]lay equipment" be "free from hazards such as sharp edges."

The First Department dismissed the complaint, in Hamdan v. Mosholu Montefiore Community Ctr., which was decided on February 7, 2008. The court found no evidence indicating the cause of plaintiff's fall, and no evidence that the shelves' edges were hidden or defective. Plaintiff's citation to the Health Code raised no triable issue, because the shelving unit constitutes furniture, not play equipment. Plaintiff's expert's affidavit is unavailing since the expert never examined the unit.

Plaintiff sought damages after defendant admittedly took every copy of plaintiff's catalog from its distribution box located on a street corner in defendant's neighborhood and threw them in the garbage because, in his view, they contributed to litter. The First Department dismissed the complaint, in Learning Annex v. Gittleman, which was decided on February 5, 2008.

The court found that plaintiff's cause of action for tortious interference with prospective business relations was not viable since plaintiff did not identify any specific customers it would have obtained but for defendant's actions. The conversion cause of action failed because plaintiff admits that the catalogs are free for the taking and anyone can take as many as they want and so plaintiff cannot demonstrate a superior possessory right to them. The prima facie tort cause of action was dismissed because the evidence demonstrated that no reasonable jury could conclude that defendant was motivated solely by "disinterested malevolence," and because plaintiff failed to sufficiently establish that it had sustained special damages.

Motion for leave to renew.

Defendant's summary judgment motion, unopposed by plaintiff, was granted, and plaintiff moved to vacate, claiming that his failure to oppose was due to law office failure. The motion was denied, since plaintiff failed to submit an affidavit of merit. Plaintiff renewed, but defendant opposed, arguing that plaintiff's affidavit of merit was not executed before a duly authorized person, pursuant to CPLR 2309. In reply, plaintiff submitted a properly notarized affidavit, but the renewed motion was denied because the corrected affidavit was submitted in reply. Plaintiff moved again for leave to renew and to reargue his motion to vacate, this time with the affidavit of merit in admissible form.

The Second Department granted the motion to vacate, in Simpson v. Tommy Hilfiger USA, Inc., which was decided on February 1, 2008. CPLR 2221(e) authorizes a motion for leave to renew based on new facts not offered on the prior motion that would change the prior determination, provided there is reasonable justification for the failure to present those facts previously.

The court said that CPLR 2221(e) should not be construed to disqualify new facts in a document originally rejected for its inadmissible form. The key to qualifying such corrected evidence for treatment on a renewal motion is reasonable justification not having presented it in the prior motion, pursuant to CPLR 2221[e][3]. Here, the court found that the explanation of plaintiff's limitations in language and education and a misunderstanding of the instructions for notarization in Jamaica, West Indies, where plaintiff resides, qualified as a reasonable justification for failing to present the affidavit in admissible form in the first renewal motion.

The court also vacated the prior order granting defendant's unopposed motion for summary judgment. Plaintiff demonstrated a reasonable excuse for his default, pursuant to CPLR 5015[a][1], by showing that the default resulted from the law office failure of his attorney who did not calendar the return date of the summary judgment motion and serve and file opposition papers. Defendant did not show that these failures eere either intentional or part of a pattern of willful default or neglect.

New law on leave to amend to add a cause of action in wrongful death.

The Second Department has held that a motion seeking leave to amend a complaint to add a cause of action alleging wrongful death must be decided as would any motion to amend, pursuant to CPLR 3025(b), and should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit, in Lucido v. Mancuso, which was decided on February 1, 2008.

The court expressly overruled a line of authority requiring a plaintiff to make an evidentiary showing by competent medical proof that defendant's conduct caused decedent's death. In effect, the holding means that, in the absence of prejudice or surprise, the motion for leave to amend will be denied only if the new cause of action would not withstand a motion to dismiss for legal insufficiency under CPLR 3211(a)(7).

Plaintiff's infant daughter slipped and fell at a roller-rink while participating in an after-school program sponsored by defendant-Goodwill Industries of Greater New York & Northern New Jersey, when she says she was "pushed from the side." The complaint alleged that the accident was proximately caused by defendant's negligent supervision and by overcrowding at the facility.

The Second Department dismissed the complaint, in Gaspard v. Board of Education of the City of New York, which was decided on January 22, 2008. Based on record evidence, including the injured daughter's deposition testimony, the court rejected the negligent supervision claim. Why? Since the accident occurred as the result of a sudden and abrupt action by an unknown skater or skaters, it could not have been prevented by even the most intense supervision, and so liability based on negligent supervision cannot be imposed. In addition, the facility general manager's deposition testimony established, prima facie, that the facility was not overcrowded at the time of the accident.

Late Notice of Claim.

The First Department determined that the motion court properly exercised its discretion in letting petitioner file a late notice of claim more than seven months after expiration of the 90-day filing requirement, pursuant to General Municipal Law § 50-e[1][a]; [5]), in Caridi v. New York Convention Operating Corp., which was decided on January 24, 2008.

The court said there is no prejudice to defendant since the State Police were on the scene at the time of the accident and immediately conducted an investigation that included interviewing witnesses and taking photographs of the location as it was at the time of the accident, which culminated in an accident report which is readily available to defendant.

In addition, the allegedly defective condition that caused petitioner to fall and injure his knee was highly transitory and defendant would have been unable to investigate even if the notice of claim had been served within the prescribed statutory period.

Plaintiff allegedly slipped and fell on a ramp at Shea Stadium. After plaintiff fell, he saw a reddish streak on the ramp and a ketchup-like substance on his shoes. Plaintiff's wife alleged that, about an hour before the accident, she saw a messy white condition consisting of a portion of a crushed hotdog bun, ketchup, and mustard on the ramp, as well as a hotdog, a hotdog bun, and two napkins. Plaintiff's wife did not witness the accident, but she alleged that plaintiff must have slipped on the remnants of the mess that she had seen.

Seeking damages for his alleged injuries, plaintiff commenced this action against, among others, the City of New York, the New York City Department of Parks and Recreation, the New York Mets National League Baseball Club, Sterling Enterprises, which leased the premises from the City, and Harvard Maintenance, which had a cleaning management contract at the stadium.

The Second Department dismissed the complaint, in Frazier v. City of New York, which was decided on January 22, 2008. Defendants met their initial burden by submitting evidence to establish, prima facie, that they neither created nor had actual or constructive notice of the alleged defect for a sufficient length of time to discover and remedy it. In opposition, plaintiff failed to submit evidence sufficient to raise a triable issue of fact. The court rejected plaintiff's contention that the defect which had caused him to fall was the remnant of the mess that his wife had seen an hour before his accident as purely speculative.

Alleged jurisdictional defects.

In an action to recover damages for legal malpractice, defendant cross-moved to dismiss for lack of jurisdiction, pursuant to CPLR 3211(a)(8). The Second Department denied the motion, in Day v. Davis, which was decided on January 22, 2008.

Contrary to defendant's contention, the summons with notice was not jurisdictionally defective merely because it omitted a specific dollar amount of money damages sought by plaintiff. In addition, since defendant held out as his business address the address where process was served, including maintaining it as his business address on his registration as an attorney with the Office of Court Administration, and thereby induced plaintiff's reliance on that address, he cannot now disclaim that this was his actual place of business for purposes of service of process.

Plaintiff was a passenger who had just entered a double-parked Access-a-Ride van which then was struck in the rear by another vehicle whose driver admits he feel asleep at the wheel. Defendant-van driver testified at deposition that he double parked in front of plaintiff's building to wait for her because there were no available spots at the curb and he did not see the entrance to the building's parking lot. He said he waited five minutes with his hazard lights on before plaintiff arrived, although plaintiff testified that she was standing at the building door waiting for the van when he pulled up, and got in immediately. In either event, after plaintiff got in, but before she was able to put on her seat belt,the accident occurred.

Following discovery, defendants-van driver and owner moved for summary judgment, arguing that since their van was struck in the rear while stopped, the accident was proximately caused solely by the negligence of the other driver, and that their van's presence in the traveling lane merely furnished the condition or occasion for the accident.

The First Department rejected that argument and denied the motion, in White v. Diaz, which was decided on January 24, 2008. The court concluded that a reasonable jury could find that a rear-end collision is a reasonably foreseeable consequence of double-parking for five minutes on a busy Manhattan street. Noting that the precise manner of the accident need not be foreseeable, the court said it was not necessary to find it foreseeable that a driver asleep at the wheel would hit the van; it is enough that it is foreseeable that, with the flow of traffic disrupted by the double-parked van, an inattentive, careless or distracted driver might not stop in time to avoid the van. Therefore, there is a triable issue of fact as to whether defendant-van driver's double-parking proximately caused the accident.

The court also said that summary judgement would be inapprpriate because of the dispute as to whether plaintiff was unable to put on her seat belt because it was stuck, as she claimed, or because the accident occurred too quickly to allow defendant-van driver time to help plaintiff with her seat belt.