Speed bumps, and failure to disclose experts.

Practice point:  While a landowner has a duty to maintain its premises in a reasonably safe manner, there is no duty on the part of a landowner to warn against an open and obvious condition, such as a speed bump, that is readily observable by those employing the reasonable use of their senses and is not inherently dangerous.

Student note:  A party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment. Here, however, the court declined to consider the affidavit of the plaintiffs' expert which was submitted after the filing of the note of issue and certificate of readiness.

Case:  Brande v. City of White Plains, NY Slip Op 04766 (2d Dept. 2013).

Here is the decision.

Monday's issue: Labor Law § 240.

Court holiday.

The courts are closed to mark Independence Day.

Tomorrow's issue: Speed bumps, and failure to disclose experts.

Summary judgment in a Labor Law action, attorneys' fees, and amending a bill of particulars.

Practice point:  The court granted summary judgment dismissing plaintiff's § 241(6) claim, as amended. Plaintiff's testimony showed that the rebar that allegedly caused him to fall was in the process of being installed and thus integral to the ongoing work, defeating his claim of a violation of 12 NYCRR 23-1.7(e)(2). Moreover, given plaintiff's vague and inconsistent testimony concerning the condition of the stacked rebar, his claim that the accident was caused by the rebar being stored in an unstable manner in violation of 12 NYCRR 23-2.1(a)(1) was based on mere speculation.

Defendants are entitled to the costs and attorneys' fees incurred by them in defense of this action. The contract clauses at issue provide for indemnification, including costs and fees arising from "any act or omission," and do not require proof of negligence to be enforced.  In any event, the record does not contain any evidence that defendants were negligent.

Student note:  The court permitted plaintiff to amend the bill of particulars, since no prejudice accrued from plaintiff's late invocation of violations of 12 NYCRR 23-1.7(e)(2) and 23-2.1(a)(1), and the claims entailed no new factual allegations or theories of liability.

Case: Flynn v. 835 6th Ave. Master L.P., NY Slip Op 04889 (1st Dept. 2013).

Here is the decision.

Friday's issue: Speed bumps, and failure to disclose experts.

Summary judgment in lieu of complaint, and collateral estoppel.

Practice point:  Pursuant to CPLR 3213, the plaintiff commenced this action to recover on a promissory note by filing a summons with notice of motion for summary judgment in lieu of complaint. The motion was denied. The plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating the existence of the promissory note executed by the defendant, the unconditional terms of repayment, and the defendant's default thereunder. However, in opposition, the defendant raised a  fact question as to whether the note was procured through coercion and duress.

Student note:  The plaintiff failed to demonstrate that the defendant should be collaterally estopped from raising this issue, as the plaintiff failed to demonstrate that the issue was necessarily decided against the defendant in a prior action commenced by the plaintiff to set aside a fraudulent conveyance pursuant to Debtor and Creditor Law §§ 273 and 276.

Case:  Baldeo v. Rambaran, NY Slip Op 04763 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Summary judgment in a Labor Law action, attorneys' fees, and amending a bill of particulars.

Exculpatory clauses.

Practice point:  A clause which exculpates a contractee from liability to a contractor for damages resulting from delays in the performance of the latter's work is valid and enforceable and is not contrary to public policy if the clause and the contract of which it is a part satisfy the requirements for the validity of contracts generally.

Student note:  However, even with such a clause, damages may be recovered for: (1) delays caused by the contractee's bad faith or its willful, malicious, or grossly negligent conduct: (2) uncontemplated delays; (3) delays so unreasonable that they constitute an intentional abandonment of the contract by the contractee; and (4) delays resulting from the contractee's breach of a fundamental obligation of the contract.

Case:  Aurora Contrs., Inc. v. West Babylon Pub. Lib., NY Slip Op 04762 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Summary judgment in lieu of complaint, and collateral estoppel.

Board of Education's liability for an injury at school.

Practice point:  The infant plaintiff was injured when, while playing basketball in the school gymnasium, he was shoved by a classmate into an electrical outlet. Defendants moved for summary judgment, asserting that the Board lacked actual or constructive notice of the defective electrical outlet in the gym, and, in any event, was not the proximate cause of the infant plaintiff's injury. The motion court granted the motion, finding that the evidence showed that the conduct of the Board was not the proximate cause of plaintiff's injuries.
The Appellate Division affirmed, finding that, whatever the merit to the assertion that the outlet was improperly maintained and dangerously protruding from the wall, the spontaneous act of another student pushing plaintiff into the electrical outlet constituted a supervening act relieving the Board of liability.

Student note: Plaintiffs' claim of negligent supervision was never asserted in the notice of claim, and therefore cannot be raised on appeal.

Case:  Ramos v. New York City Bd. of Educ., NY Slip Op 04730 (1st Dept. 2013).

Here is the decision.

Monday's issue: Exculpatory clauses.

An erroneous jury charge in a falling object case.

Practice point:  Here, the plaintiff was injured while removing a mirror from the ceiling of a shower stall within a bathroom in a residential cooperative building owned by the defendant. The trial court erred in failing to charge the jury in connection with Labor Law § 240(1) as it applies to falling objects, such as the mirror.

Student note:  Liability may be imposed where an object was a load that required securing for the purposes of the undertaking at the time it fell. Whether the statute applies in a falling object case does not depend upon whether the object has hit the worker but whether the harm flows directly from the application of the force of gravity to the object. The jury should have been charged that the mirror required securing.

Case: Saber v. 69th Tenants Corp., NY Slip Op 04591 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Board of Education's liability for an injury at school.

A failed fraud claim.

Practice point:  Plaintiff's fraud claim failed because merely alleging that the breach of a contract duty arose from a lack of due care does not transform a simple breach of contract into a tort.

Student note:  An actionable fraud claim requires proof that the defendant made a misrepresentation of fact which was false and known to be false, and that the plaintiff reasonably or justifiably relied on that misrepresentation.

Case: Waterscape Resort LLC v. McGovern, NY Slip Op 04709 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: An erroneous jury charge in a falling object case.

Allegations of failure to diagnose and improper treatment.

Practice point:  As to the alleged failure to diagnose, defendant met his initial burden through the affirmed report of his expert who noted that decedent had no prior history of diabetes or elevated glucose during the previous year and a half he had been treated by defendant, and opined that defendant acted appropriately and within the standard of care in performing a focused clinical examination when decedent presented with a sore throat.  In opposition, plaintiffs' expert's opinion that defendant deviated from the standard of care relied on his statement that decedent presented with a history of symptoms, including polyuria and polydipsia. However, in the record there is no evidence that any such history was presented to defendant, but rather to a hospital two days later. To the extent plaintiffs' expert's opinion relied on facts and evidence not in the record, plaintiffs' theory was without the requisite expert or record support.

Student note: As to the alleged improper treatment during the hospital stay, a physician's general duty of care may be limited to those medical functions undertaken by the physician and relied upon by the patient. Defendant was entitled to rely on the treatment rendered in the hospital by specialists better equipped to handle the patient's condition.

Case:  Perez v. Edwards, NY Slip Op 04704 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: A failed fraud claim.

The scope of discovery demands.

Practice point:  Although CPLR 3101(a) is to be construed liberally so that there should be disclosure of any evidence that is material, necessary and arguably relevant, unlimited disclosure is not required, and supervision of disclosure is generally left to the trial court's broad discretion. The test when determining discovery issues is one based on usefulness and reason.

Student note: The Supreme Court's determination as to discovery issues will not be disturbed on appeal unless improvidently made. However, discovery demands which are unduly burdensome, lack specificity, or seek privileged or irrelevant information are improper and will be vacated.

Case: H.R. Prince, Inc. v. Elite Envtl. Sys., Inc., NY Slip Op 04567 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Allegations of failure to diagnose and improper treatment.

Prior written notice laws.

Practice point:  Where a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries arising from a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies.

Student note:  The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality.

Case:  Avellino v. City of New York, NY Slip Op 04567 (2d Dept. 2013).

Here is the decision.

Monday's issue: The scope of discovery demands.