Amending bills of patriculars, and opposing summary judgment.

Practice point: A party may amend its bill of particulars once as of course before the filing of the note of issue, pursuant to CPLR 3042[b].. Here, when plaintiff served his amended bill of particulars, the court had vacated the original note of issue. A second note of issue had not been filed, and plaintiff had not yet amended his bill of particulars. Therefore, plaintiff properly served his amended bill of particulars without obtaining leave from the court.

Student note:  An affidavit submitted in opposition to a motion for summary judgment does not raise a triable issue of fact where the affidavit can only be considered to have been tailored to avoid the consequences of . . . earlier testimony. A court can infer dishonest intent where there is no supporting evidence for the contradictory affidavit. However, evidence in the record apart from the affidavit itself can raise a triable issue of fact, notwithstanding contradictory deposition testimony.

Case: Fields v. Lambert Houses Redevelopment Corp., NY03027 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Constructive trusts.

Transit employees and onlooker liability.

Practice point: Public Authorities Law § 1212(3) imposes liability upon the Transit Authority for the negligence of its employees in the operation of the subway system. Although it is a common carrier, the Transit Authority is held to a duty of ordinary care under the particular circumstances of each case. In Crosland v New York City Tr. Auth., 68 NY2d 165 [1986], the Court of Appeals held that the Transit Authority could be held liable for the negligent failure of its employees to summon aid as they watched a gang of thugs fatally assault a passenger. "Watching someone being beaten from a vantage point offering both safety and the means to summon help without danger is within the narrow range of circumstances which could be found to be actionable." id. at 170 [citation omitted]

Here,  plaintiffs were police officers who were injured in a subway station while a perpetrator struggled to resist their attempt to arrest him. The arrest stemmed from a criminal act that was committed in the street in plaintiffs' presence. The perpetrator fled and was chased by plaintiffs into the subway station. Upon entering the station plaintiffs, who were in plainclothes, displayed their shields and asked the station agent to call for backup support. At the time, the agent was inside a locked token booth that was equipped with an Emergency Booth Communication System (EBCS) that would have enabled him to summon help by pressing a button or stepping on a pedal. Both plaintiffs were injured when the perpetrator put up a fierce and protracted struggle to resist arrest. The agent watched the struggle from his token booth and did not activate the EBCS or make any other attempt to summon help. Plaintiffs' theory was that the agent's failure to call for help constituted negligence which was a proximate cause of their injuries. The trial court granted the Transit Authority's motion for judgment, finding that the agent was under no duty to call for any assistance to plaintiffs. The Appellate Division reversed.

Student note: The broad definition of onlooker liability articulated by the Crosland Court does not lend itself to any exception based upon an injured party's status as a police officer. To be sure, General Obligations Law § 11-106 gives police officers as well as firefighters, who are injured in the line of duty, a distinct right of action against tortfeasors that cause such injuries. Here, plaintiffs' recovery was not barred by their status as police officers and the Transit Authority's liability was established at trial.

Case: Filippo v. New York City Tr. Auth., NY Slip Op03025 (1st Dept. 2013).

Here is the decision.

Monday's issue: Amending bills of particulars, and opposing summary judgment.

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.