Motions to dismiss, and statutes of limitations.

Practice point:  On a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. Here, defendant submitted documentary evidence in the form of the employment application, which demonstrated that the plaintiff contractually agreed to commence any lawsuit no more than six months after the date of the employment action that was the subject of the claim. Since the plaintiff commenced this action more than six months after the date his employment was terminated,that claim was dismissed.

Student note: The parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations. Absent proof that the contract is one of adhesion or the product of overreaching, or that the altered period is unreasonably short, the abbreviated period of limitation will be enforced.

Case: Hunt v. Raymour & Flanigan, NY Slip Op 02715 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Transit employees and onlooker liability.

A fall from a scaffold.

Practice point:  Plaintiff was injured when he fell after the six-foot baker's scaffold upon which he was  working shifted, despite the fact that he had locked the wheels; it is undisputed that the scaffold lacked guardrails. Such evidence establishes that plaintiff's injuries were proximately caused by defendants' failure to provide proper protection against the elevation-related risk.

Student note: Given that the scaffold was inadequate in the first instance, any failure by plaintiff to hydrate himself could not be the sole proximate cause of his injuries.

Case: Vail v. 1333 Broadway Assoc., L.L.C., NY Slip Op 02821 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Motions to dismiss, and statutes of limitations.

Vacating defaults, and law office failure.

Practice point: A defendant seeking to vacate a default in appearing or answering must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action, pursuant to CPLR 5015[a][1]. While the defendants may have proffered a reasonable excuse for the initial two-month delay in retaining their current attorney, the subsequently retained attorney failed to proffer a reasonable excuse for the further four-month delay in moving to vacate the default and for leave to serve a late answer, pursuant to CPLR 2214.

Student note: Although the Supreme Court has the discretion to accept law office failure as a reasonable excuse, see CPLR 2005, the excuse must be supported by detailed allegations of fact explaining the failure.

Case:  CEO Bus. Brokers, Inc. v. Alqabili, NY Slip Op 02708 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A fall from a scaffold.

Jury misconduct and a mistrial.

Practice point: Immediately after receiving the verdict in this personal injury action, an off-the-record discussion with the jury revealed that they had consulted an online dictionary to define the term "substantial." The Appellate Division determined that, regardless of whether the jury was discharged, the trial court properly engaged in an inquiry regarding external influences on the jury. Further, the court properly determined that the jury's act of consulting an outside dictionary on a term critical to its decision constitutes misconduct warranting a mistrial, especially since the foreperson indicated that the jury was "confused" about the term "substantial" and the court was unable to give curative instructions.

Student note: However, because the jury's misconduct related only to the issue of liability, and there is no evidence that it affected the jury's determination on damages, the Appellate Division reinstated the verdict on damages.

Case: Olshantesky v. New York City Tr. Auth., NY Slip Op 02685 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Vacating defaults, and law office failure.

Elevation-related hazards at the work-site, and safety devices.

Practice point: An owner or its agent is liable under Labor Law § 240(1) if the plaintiff was injured while engaged in an activity covered by the statute and was exposed to an elevation-related hazard for which no safety device was provided or the device provided was inadequate. The statute requires owners and their agents to provide workers with adequate safety devices when they engage in activities such as repairing or altering a building.

Student note: The purpose of the statute is to protect workers by placing the ultimate responsibility for work-site safety on the owner, and Labor Law § 240(1) imposes strict liability on the owner for a breach of the statutory duty which has proximately caused injury.

Case: Vasquez v. Cohen Bros. Realty Corp., NY Slip Op 02682 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Jury misconduct and a mistrial.

Relief from an order or judgment.

Practice point: CPLR 5015(a)(3) permits a court to relieve a party from an order or judgment on the ground of fraud, misrepresentation, or other misconduct of an adverse party.

Student note: While there is no specific time limit within which to move under this provision, the motion must be made within a reasonable time.

Case: Empire State Conglomerates v. Mahbur, NY Slip Op 02537 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Elevation-related hazards at the work-site, and safety devices.

Meeting of the minds.

Practice point: Plaintiff failed to meet its burden of showing that there was a meeting of the minds as to the terms of a joint venture, or even that a joint venture was contemplated. Indeed, the record is filled with lengthy, handwritten, sometimes illegible documents by someone who had no authority to bind plaintiff to any contract. Moreover, the documents were written from his prison cell and thus had to be based only on his recall, as he was not allowed to give or receive documents from visitors. The record contains multiple versions of what plaintiff asserts to be the alleged joint venture agreement (also handwritten), yet not one of these documents is signed by both parties. The various versions of the agreements are oddly numbered, sometimes missing pages, and missing clauses plaintiff asserts were both material and agreed upon. Further, the testimony of plaintiff's witnesses, who were all self-interested and sometimes gave patently unbelievable testimony, did not tend to cure the deficiencies in the documentary evidence.

Student note: The same failures that prevent plaintiff from showing an express contract prevent it from showing an implied contract.

Case:  Gold Coast Advantage, Ltd. v. Trivedi, NY Slip Op 02651 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Relief from an order or judgment.

Workers' Compensation and special employers.

Practice point: The protection against lawsuits brought by injured workers which is afforded to employers by Workers' Compensation Law §§ 11 and 29(6) extends to special employers.Thus, an injured person who elects to receive Workers' Compensation benefits from the general employer is barred from maintaining a personal injury action against the special employer. The exclusivity provisions of the Workers' Compensation Law also extend to entities which are alter egos of the injured worker's employer.

Student note: A special employee is one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer.

Case: Abreu v. Wel-Made Enters., Inc., NY Slip Op 02524 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Meeting of the minds.

Motion to dismiss a legal malpractice claim.

Practice point: Defendants' motion to dismiss was not untimely since the parties had stipulated, both orally and in writing, to extend defendants' time to respond to the complaint, and defendants had served and
filed their motion to dismiss by the stipulated date.

Student note: On the merits, defendants were entitled to dismissal on res judicata grounds. The Workers' Compensation Board's award of legal fees to defendants, imposed as a lien against the ultimate award of compensation to plaintiff, pursuant to Workers' Compensation Law § 24, precludes plaintiff's claim that defendants represented him negligently, a claim that could have been raised in opposition to defendants' fee application.

Case: Bob v. Cohen, NY Slip Op 02499 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Workers' Compensation and special employers.

Accord and satisfaction.

Practice point: Here, there were a number of factual disputes as to which accounts would form the basis of decedent's commissions, the amount due on those accounts and whether the final yearly tally contained amounts constituting gifts. The motion court properly found that there was no evidence of an accord and satisfaction for commissions payable during the year 2002 based upon the conflicting claims for that year. Although the checks issued by defendant to decedent for commissions bore the notation "settlement," the doctrine requires a clear manifestation of intent by the parties that the payment was made, and accepted, in full satisfaction of the claim.

Student note: Accord and satisfaction requires the existence of an actual dispute, manifested by a specific demand by the alleged creditor and an express, good-faith disagreement with that demand by the debtor.

Case: Rosenthal v. Quadriga Art, Inc., NY Slip Op 02475 (1st Dept. 2013).

Here is the decision.

Monday's issue: Motion to dismiss a legal malpractice claim.

Medical malpractice, negligence, and nursing homes.

Practice point: In this medical malpractice and negligence action, defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting, among other things, their expert affirmation and medical records. The medical records supported defendants' expert's opinion that decedent's chronic skin ulcers, gangrene and above-the-knee amputations, were the unavoidable result of his preexisting, chronic conditions, as well as other risk factors.

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff submitted the conclusory and speculative affirmation of an unnamed expert who failed to identify specific departures made by the nursing home, when other actions should have been taken by the nursing home and by whom, and how the results would have been different had those actions been taken.  The court found these failures especially troublesome, given plaintiff's expert's concession that decedent's preexisting conditions placed him at an increased risk for the conditions at issue.

Student note: In addition, the expert failed to address the evidence supporting vascular involvement and failed to establish that the nursing home's negligence, and not the natural progress of decedent's diseases and conditions, was a substantial factor in producing the injury.

Case: Negron v. St. Barnabas Nursing Home, NY Slip Op 02468 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Accord and satisfaction.