Property owners, notice, and summary judgment.

Practice point:  A defendant property owner who moves for summary judgment in a premises liability case has the initial burden of making a prima facie showing that he or she neither created the hazardous condition nor had actual or constructive notice of its existence.

Student note:  A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a length of time sufficient to afford the defendant a reasonable opportunity to discover and remedy it.

Case:  Gebert v. Catalano, NY Slip Op 06833 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Labor Law § 241[6].

Objections to an invoice as a defense to an account stated claim.

Practice point:  The court found that defendants raised an issue of fact whether they objected to the March 5, 2008 invoice that is the sole basis of the account stated cause of action.  In correspondence throughout early March 2008, including a letter dated March 6, defendants refer to "the amount allegedly owed," and, from plaintiff's responding correspondence, it appears that plaintiff understood that language as a challenge to the validity of the invoice.

Student note:  In light of the strong policy of resolving disputes on the merits, and in the absence of a claim of prejudice by plaintiff, the court considered defendants' opposition to plaintiff's motion,  despite the fact that it was served five or six hours after the time to which the parties stipulated.

Case:  Hoffinger Stern & Ross, LLP v. Neuman, NY Slip Op 06936 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Property owners, notice, and summary judgment.

Forum non conveniens.

Practice point:  The doctrine permits a court to stay or dismiss an action when, although it may have jurisdiction over a claim, the court determines that, in the interest of substantial justice, the action should be heard in another forum, pursuant to CPLR 327[a].  On a motion to dismiss based on forum non conveniens, the defendant bears the burden to demonstrate relevant private or public interest factors which militate against accepting the litigation.

Student note:  On such a motion, the court will weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system.  No single factor is dispositive.

Case:  Boyle v. Starwood Hotels, NY Slip Op 06830 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Objections to an invoice as a defense to an account stated claim.

Dissolved corporations, assignees, and standing.

Practice point:  With limited exceptions, a dissolved corporation may not bring suit in the courts of the State of New York. Here, the plaintiff was suing as an assignee of a dissolved corporation, and there was nothing in the record to indicate that the loan transaction at issue was related to the winding up of the corporation's affairs (see Business Corporation Law § 1005[a][1]. Neither was there anything in the record to suggest that either the de facto corporation doctrine or the corporation by estoppel doctrine applied.

Student note: Because an assignee stands in the shoes of the assignor, the plaintiff, as assignee, would similarly lack capacity to sue.

Case:  Weiss v. Markel, NY Slip Op 06676 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Forum non conveniens.

A fall on the sidewalk.

Practice point:  Plaintiff sought damages for injuries sustained when he tripped and fell on a sidewalk located in front of the premises owned by defendant.  While walking on the sidewalk, plaintiff's right foot got caught on a round metal screw or other object that was protruding from the sidewalk. The metal object or screw appeared to have been placed in the concrete as part of the construction of the sidewalk and was never removed. According to plaintiff, he saw the metal object after he fell, and had never seen it before, although he had passed the location at least one hundred times before the accident.

Defendant established its entitlement to judgment as a matter of law. The record presented failed to establish that the claimed defect was actionable. Defendant established that the the metal screw or other object was just five-eighths of an inch in diameter and protruded only about three-sixteenths of an inch above the surface. This minor height differential alone is insufficient to establish the existence of a dangerous or defective condition.

Defendant also demonstrated that it did not have notice of any defect by submitting testimony from its maintenance personnel who stated that they cleaned the sidewalk every morning and had never noticed the metal object until after the accident. Defendant also showed that there was no record of complaints about the condition of the sidewalk

Student note: Plaintiff did not come forward with any evidence to show that this trivial defect could have been a trap or snare by reason of its location, adverse weather or lighting conditions or other circumstances. His expert's report was insufficient to raise such an issue since the expert visited the site more than two years after the accident, and, by that time, the condition had been corrected. Thus, the expert's opinion was speculative, conclusory and not based on foundational facts, such as the exact measurements of the defect at the time of the accident.

Case:  Hutchinson v. Sherridan Hill House Corp., NY Slip Op 06822 (1st Dept. 2013).

Here is the decision.

Monday's issue:  Dissolved corporations, assignees, and standing.

Successive motions for summary judgment.

Practice point:  The general rule is that successive motions for summary judgment will not be entertained in the absence of a showing of newly discovered evidence or other sufficient cause. Although newly discovered evidence may consist of deposition testimony which was not elicited until after the date of a prior order denying an earlier motion for summary judgment, such evidence is not considered newly discovered simply because it was not submitted on the previous motion. Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means.

Student note:  Successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment.

Case:  Vinar v. Litman, NY Slip Op 06675 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A fall on the sidewalk.

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Judicial estoppel.

Practice point:  A party who assumed a certain position in a prior proceeding and secured a ruling in his or her favor is estopped from advancing a contrary position in another action simply because his or her interests have changed.

Student note:  Sometimes referred to as estoppel against inconsistent positions, the doctrine rests upon the principle that a litigant should not be permitted to lead a court to find a fact one way, and then contend in another judicial proceeding that the same fact should be found otherwise.

Case:  Becerril v. City of New York Dept. of Health & Mental Hygiene, NY Slip Op06783 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Successive motions for summary judgment.

Correcting a notice of claim.

Practice point: Plaintiff's decedent was allegedly injured when she tripped and fell after stepping into a 20-foot-long depressed area in the street, which was about 25 to 30 feet from a subway exit in Union Square Park. The notice of claim mistakenly described the location of a subway exit as between 16th and 17th Streets on Union Square East, rather than Union Square West. However, at the statutory hearing held approximately eight months after the accident, plaintiff correctly stated that the accident occurred in the location shown in a photograph of a Union Square subway exit with no canopy, amid a farmer's market, by a 16th Street sign. Plaintiff also submitted information obtained from the Internet showing that the other two subway exits in Union Square Park are covered by canopies and are located well south of 16th Street.

Under these circumstances, plaintiff was allowed to correct the notice of claim pursuant to General Municipal Law § 50-e(6), since the mistake was not made in bad faith and defendant was not prejudiced by the defective notice.

Student note:  Defendant failed to meet its burden of showing prejudice, because the record does not indicate that it sent anyone to investigate the scene of the accident either before or after the correct location had become apparent.

Case:  Ciarvino v. City of New York, NY Slip Op 06775 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Judicial estoppel.

Drinking parties.

Practice point:  A defendant may be liable for injuries caused by an intoxicated guest that
occurred on the defendant's property, or in an area under the defendant's control, where the defendant had the opportunity to control the intoxicated guest and was reasonably aware of the need for such control.  Here, the fraternity-defendant established its prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action insofar as asserted against it by showing that the plaintiff's injuries occurred in an area not under its control and, thus, that it had no duty to supervise or control the assailant-defendant's conduct in that area.

Student note:  Liability under General Obligations Law § 11-100 may be imposed only on a person who knowingly causes intoxication by furnishing alcohol to, or assisting in the procurement of alcohol for, persons known or reasonably believed to be underage.

Case:  Holiday v. Poffenbarger, NY Slip Op 06658 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Correcting a notice of claim.

Stating an employment discrimination claim.

Practice point:  The defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging employment discrimination on the ground of disability by showing legitimate, independent, and nondiscriminatory reasons for its employment decision. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the reasons stated for his discharge from employment were pretextual. Specifically, the plaintiff failed to raise a triable issue of fact as to whether there remained a full-time, light-duty position available after the defendant's relocation to a larger facility.

Student note: To state a prima facie case of employment discrimination due to a disability under Executive Law § 296, a plaintiff must show that he or she suffers from a disability and that the disability engendered the behavior for which he or she was discriminated against in the terms, conditions, or privileges of his or her employment. If the plaintiff succeeds in establishing a prima facie case, the burden of proof shifts to the employer to demonstrate that the disability prevented the employee from performing the duties of the job in a reasonable manner or that the employer's action was motivated by legitimate nondiscriminatory reasons. If the employer establishes that it had valid nondiscriminatory reasons for its action, the burden shifts back to the plaintiff to raise a triable issue of fact as to whether the stated reasons were pretextual.

Case:  Kulaya v. Dunbar Armored, Inc., NY Slip Op 06549 (2d Dept. 2013).

Here is the decision.

Monday's issue: Drinking parties.

Due diligence in the service of process.

Practice point:  Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence.  As the statute does not define "due diligence," it has been interpreted and applied on a case-by-case basis. The due diligence requirement may be met with a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times.

Here, the process server's affidvit constituted prima facie evidence of proper service pursuant to CPLR 308(4), as the process server made three attempts to serve the defendant at his home at different times and on different days, including a Saturday.  Since there was no indication that the defendant worked Saturdays or that his workplace was readily ascertainable, the plaintiff was not required to attempt to serve the defendant at his workplace.

Student note:  The defendant's bare and unsubstantiated denial of receipt was insufficient to rebut the presumption of proper service, and a hearing on the issue of service was not required.

Case:  Deutsche Bank Natl. Trust Co. v. White, NY Slip Op 06542 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Stating an employment discrimination claim.