A dog bite and the professional judgment rule.

Practice point:  The plaintiff commenced this action alleging negligence after he was bitten by a dog employed by the canine unit of the defendant's police department. The plaintiff was a school custodian who was at the scene of the incident because the police needed him to to open certain doors in order to conduct a search.

In denying summary judgment, the court noted that the professional judgment rule insulates a municipality from liability for its employees' performance of their duties where the conduct involves the exercise of professional judgment, such as electing one among many acceptable methods of carrying out tasks or making tactical decisions.  However, the immunity does not extend to situations where an employee-police officer violates acceptable police practice.  The court found a question of fact as to whether the dog-handler's conduct was consistent with acceptable police practice.

Student note:  In the absence of a prima facie showing, summary judgment was denied regardless of the sufficiency of the plaintiff's opposing papers.

Case:  Newsome v. County of Suffolk, NY Slip Op 05805 (2d Dept. 2013).

Here is the decision.

Monday's issue:  Tenure by estoppel

A premises liability claim.

Practice point:  To demonstrate prima facie entitlement to judgment as a matter of law in a premises liability case, a defendant must establish that it did not create the condition that allegedly caused the fall or have actual or constructive notice of that condition. For constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it.

Here, the defendants established, prima facie, that they did not create or have actual or constructive notice of the alleged hazardous condition, as the condition of the screws, which were hidden from view, could not have been discerned by reasonable inspection. In opposition, the plaintiff failed to raise a triable issue of fact. The photographs of the accident site, which did not depict the broken screws, and the affidavit of the plaintiff's expert, who never inspected the staircase, were insufficient to defeat summary judgment.

Student note:  Constructive notice will not be imputed where a defect is latent and would not be discoverable upon reasonable inspection

Case:  Hoffman v. Brown, NY Slip Op 05798 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A dog bite and the professional judgment rule.

Counsel fees in a divorce action.

Practice point:  Domestic Relations Law § 237 provides that in any action for a divorce, the court may direct either spouse to pay counsel fees directly to the attorney of the other spouse to enable the other party to carry on or defend the action as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. The statute provides that there shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. A determination of an application for interim counsel fees is committed to the sound discretion of the trial court. Such an award is intended to ensure that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse.

Student note:  The issue of interim counsel fees is controlled by the equities of the case and the financial circumstances of the parties. An award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties.

Case:  Falcone v. Falcone, NY Slip Op. 05795 (2d Dept. 2013).

 Here is the decision.

Tomorrow's issue: A premises liability claim.

Setting aside a jury verdict.

Practice point:  A jury verdict will not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence. When a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view.

Student note:  The jury's determination of witness credibility is entitled to great deference, as the jurors had the opportunity to see and hear the witnesses.

Case:  Cinao v. Reers, NY Slip Op. 05791 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Counsel fees in a divorce action.

Vacating a default, and demonstrating merit.

Practice point:  To vacate their default in opposing the defendant's motion to dismiss this action based upon the plaintiffs' failure to serve a complaint pursuant to CPLR 3012(b), the plaintiffs were required to demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see CPLR 5015[a][1]. The motion must be made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party.

Student note:  Expert opinion evidence is required to demonstrate merit with respect to matters not within the ordinary experience of laypersons.

Case:  Bistre v. Rongrant Assoc., NY Slip Op 05788 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Setting aside a jury verdict.

Judicial review of a school's disciplinary determination.

Practice point:  Judicial review of a school's disciplinary determinations is limited to whether it substantially adhered to its own published rules and guidelines, and whether the discipline is based on a rational interpretation of the relevant evidence. Here, to the extent that plaintiff's causes of action were a challenge to her expulsion, she was only entitled to article 78 review, and the filing of the article 78 proceeding mandated dismissal of the plenary action insofar as it raised such claims.

Student note:  However, to the extent the gravamen of plaintiff's causes of action is not a challenge to the decision to expel her and is not duplicative of the petition's allegations, she is not limited to article 78 review and may seek damages in a plenary action.

Case:  Kickertz v. New York Univ., NY Slip Op 05781 (1st Dept. 2013).

Here is the decision.

Monday's issue: Vacating a default, and demonstrating merit.

An elevator accident, and the timeliness of a summary judgment motion.

Practice point:  Defendant denied that it had actual or constructive notice of a dangerous condition at the premises, and established that, before the accident, plaintiff's decedent did not make any complaints about problems with the elevator's shaking.  However, plaintiff raised a triable issue of fact by coming forward with what are called trouble site reports indicating that, in the year before the accident, there had been two reported problems with the guide rollers on the elevators. According to the deposition testimony of the elevator company's witness, these guide rollers are what allow an elevator car to move smoothly and travel shake free. The witness also testified that the company had recommended replacement of those rollers and that, at or about the time of the accident, there was a recurring problem with low voltage which may have affected how smoothly the elevators functioned.

Student note:  In calculating whether more than 120 days had passed since the filing of the note of issue, the reference-point is the date on which the motion was served, not the date on which it was filed.

Case:  Derouen v. Savoy Park Owner, L.L.C., NY Slip Op 05779 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Judicial review of a school's disciplinary determination.

Computing maintenance, and prenuptial agreements.

Practice point:  In computing maintenance, a court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential.  The court may properly take into account plaintiff's income from investments, voluntarily deferred compensation, and substantial distributions, pursuant to Domestic Relations Law §§ 236[B][5-a][b][4]; 240[1-b][b][5][i], [iv].

Student note:  Here, the defendant did not waive temporary maintenance in the parties' prenuptial agreement. Notwithstanding that defendant waived any claim to a final award of alimony or maintenance in the prenuptial agreement, the court was entitled, in its discretion, to award pendente lite relief in the absence of an express agreement to exclude an award of temporary maintenance.

Case:  Lennox v. Weberman, NY Slip Op 05766 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: An elevator accident, and the timeliness of a summary judgment motion.

An injury on a municipal basketball court.

Practice point:  Here, the defendant-town failed to satisfy its prima facie burden of establishing its entitlement to judgment as a matter of law by eliminating all triable issues of fact as to the applicability of the doctrine of primary assumption of the risk. The evidence submitted in support of its motion, including the plaintiff's deposition testimony and photographs of the basketball court and metal cap, demonstrated that the metal cap was small, was raised only slightly above ground level, was painted the same color as the basketball court, and was difficult to see from more than a few feet away. Under these circumstances, a triable issue of fact exists as to whether the condition was concealed, and it cannot be said as a matter of law that the plaintiff assumed the risks associated with it.

Student note:   By engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of participation, but not to unassumed, concealed, or unreasonably increased risks.

Case:  Bunn v. Town of N. Hempstead, NY Slip Op 05727 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Computing maintenance, and prenuptial agreements.

A coop board's invocation of the business judgment rule, and injunctive relief.

Practice point:  The business judgment rule does not shield cooperatives from liability for breaches of contract. A breach of a tenant's proprietary lease by the cooperative's board of directors may be the best of the options open to the board, but that does not protect it from liability for that breach.

 Student note:  Injunctive relief may only be awarded if the movant makes a clear showing of a probability of success on the merits, a danger of irreparable injury in the absence of an injunction, and that the balancing of the equities weighs in its favor.

Case:  Goldstone v. Gracie Terrace Apt. Corp., NY Slip Op 05725 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: An injury on a municipal basketball court.

Checks paid on forged signatures.

Practice point:  A bank is strictly liable to its customer when it pays a check on a forged signature. However, the bank avoids such liability if it demonstrates that the customer's negligence substantially contributed to the forgery and that the bank acted in good faith and in accordance with reasonable commercial standards.

Student note:  Here, in moving for summary judgment, the defendant did not establish, prima facie, that it acted in a commercially reasonable manner, as it did not submit evidence of the procedures that it used to detect forged signatures. Since the defendant failed to meet its prima facie burden, the court need not consider the sufficiency of the papers submitted in opposition.

Case: R.A. Contr., Co. v. JP Morgan Chase, NY Slip Op 05683 (2d Dept. 2013).

Here is the decision.

Monday's issue: A coop board's invocation of the business judgment rule, and injunctive relief.