Future lost earnings.

The First Department affirmed the dismissal of the complaint and plaintiff's claim for future lost earnings, in Velasco v. Green-Wood Cemetery, which was decided on February 14, 2008. Plaintiff, who had been granted summary judgment on liability under Labor Law § 240(1), failed to offer evidence responsive to defendants' showing, based on plaintiff's deposition, that plaintiff returned to the same type of work he was doing at the time of the accident only four months after the accident. While the Workers' Compensation Board found that he has a permanent partial disability, and awarded him benefits, the benefits ran for only the four-month period immediately following the accident, and there was no finding that plaintiff was unable to return to work.

Practice point: The expected testimony of a vocational rehabilitation expert and orthopedic surgeon, set forth in expert disclosure notices prepared by plaintiff's attorney, is not evidentiary proof in admissible form, as is required to defeat a meritorious motion for summary judgment.

CPLR 3126

The Second Department granted defendant's motion to strike a pleading, pursuant to CPLR 3126(3), in McArthur v. New York City Housing Authority, which was decided on February 5, 2008. The court began by noting that the striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful and contumacious. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failures to respond to demands and/or to comply with discovery orders.

Practice point: Here, the court found willful and contumacious character in plaintiff's repeated failures to comply with the court's discovery orders to appear for a deposition and an independent medical examination, and to provide certain disclosure, including authorizations to obtain information and medical and employment records, without an adequate excuse.

The First Department held that dismissal of the complaint against the Housing Authority was appropriate in Martinez v. City of New York, decided on February 7, 2008. The City was timely served with notices of claim on behalf of all plaintiffs, but plaintiffs never served a notice of claim on the Housing Authority and never moved for leave to serve a late notice of claim even after becoming aware of this omission when served with the Housing Authority's answer within the limitations period of one year and 90 days. Plaintiffs' cross motion to amend the notice of claim served on the City, to add the Housing Authority as a defendant, was untimely since it was made one year and seven months after the accident.

Practice point: Plaintiffs' attorney's letter to the Housing Authority alerting it to the accident could not substitute for a notice of claim since it did not contain the requisite information, and, in any event, the Housing Authority denied ever having received it.

The Second Department denied leave to amend to add a cause of action in breach of contract, in D'Angelo v. State Insurance Fund, which was decided on February 5, 2008.

The court began by noting that leave to amend a pleading should be freely granted unless the proposed amendment is palpably improper or insufficient as a matter of law, or unless prejudice and surprise directly result from delay in seeking the amendment.

Here, the court said that the proposed amendment was palpably improper because Supreme Court lacks subject matter jurisdiction over a cause of action to recover damages for breach of contract against this defendant. A claim for money damages against the State must be litigated in the Court of Claims, pursuant to Court of Claims Act § 9[2].

Practice point: Defendant did not raise this issue in Supreme Court, but a court's lack of subject matter jurisdiction may not be waived, and may be raised at any time.

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.