Motions for an extension of time and reargument.

Practice point: Defendants failed to offer a plausible excuse as to why they failed to secure a sworn statement from plaintiff's foreman although 2½ years had transpired since plaintiff's deposition where defendants learned of the foreman's involvement at the accident site. Accordingly, the court denied defendants a further extension of the time in which to file their summary judgment motion so as to permit them to obtain and incorporate such statement in the motion.

Student note: Since defendants failed to show any new facts which were not previously considered by the court on the original motion, their motion to renew and reargue was actually one for reargument only, the denial of which is nonappealable.

Case: Garcia v. New York Times Co., NY Slip Op 03380 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Homeowner's liability for negligent snow and ice removal.

Defects too trivial to be actionable.

Practice point:  Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable. Here, the photographs submitted by the school district depict a lengthy crack in the pavement which was at least ¾ of an inch deep and approximately 4 inches wide at the specific site of the accident. Given the high-traffic location of the occurrence, the length, depth, width, and irregularity of the defect, and the circumstances of the accident as set forth in witness testimony, the school district failed to meet its prima facie burden of establishing that the defect was trivial and nonactionable as a matter of law.

Student note: In determining whether a defect is trivial, courts must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect, and the time, place, and circumstances of the accident. There is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable.

 Case:  Brenner v. Herricks Union Free Sch. Dist., NY Slip Op 03290 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Motions for an extension of time and reargument.

Affidavits, and hearsay in opposition to summary judgment.

Practice point: Plaintiff alleged that he fell and sustained injuries when the ladder on which he was standing while painting a foyer outside third-party defendant's apartment twisted and then slipped out from underneath him. However, the affidavit of the third-party defendant, who hired plaintiff's employer and was in his apartment at the time of the accident, states that no ladders were being used on the project on the date of the alleged accident. Accordingly, the affidavit raised an issue of fact concerning whether plaintiff's accident occurred as alleged. In addition, defendant submitted medical reports wherein plaintiff was quoted as providing a different description of the accident from that alleged.

Student note: Even if the reports are hearsay, they may be submitted in opposition to plaintiff's motion, and may bar summary judgment when considered in conjunction with other evidence.

Case: Marquez v. 171 Tenants Corp., NY Slip Op 03174 (1st Dept. 2013).

Here is the decision.

Monday's issue: Defects too trivial to be actionable.

Disqualification during litigation.

Practice point: Where a party seeks to disqualify its adversary's counsel during litigation, courts consider when the challenged interests became materially adverse in order to determine if the party could have moved at an earlier time. If the moving party was aware, or should have been aware, of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the representation. What is more, if the moving party knew of the alleged conflict of interest well before making the motion, it may be inferred that the motion was made merely to secure a tactical advantage.

Student note:  The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination. Whether to disqualify an attorney is a matter which lies within the sound discretion of the court.

Case: Hele Asset, LLC v. S.S.E. Realty Assoc., NY Slip Op 03061 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Affidavits, and hearsay in opposition to summary judgment.

Expert testimony and liability in a medical malpractice action.

Practice point: Liability is not supported by an expert offering only conclusory assertions and mere speculation that the condition could have been discovered and successfully treated had the doctors not deviated from the accepted standard of medical practice.

Student note: Failing to investigate an otherwise unindicated disease is not malpractice.

Case: Curry v. Dr. Elena Vezza Physician, P.C., NY Slip Op 03163 (1st Dept. 2013).

 Here is the decision.

Tomorrow's issue: Disqualification during litigation.

Constructive trusts.

Practice point: The ultimate purpose of a constructive trust is to prevent unjust enrichment, and it will be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest.

Student note: The elements of a constructive trust are a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjust enrichment. These requirements, however, are not to be rigidly applied.

Case:  Broderson v. Parsons, NY Slip Op 03050 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Expert testimony in a medical malpractice action.

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.