A fall from a catwalk.

Practice point:  The defendants established their prima facie entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, who had no recollection of the accident and could only state that just prior thereto, he heard a "sound . . . like the wood giving out from underneath me." Based on this testimony, a jury would have to speculate as to the cause of the accident. In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, his employer's deposition testimony was insufficient to raise a triable issue of fact on causation. The testimony regarding a conversation he had with the plaintiff at the hospital following the accident about what caused him to fall was vague and, in any event, hearsay.  The deposition testimony regarding a conversation he had with a maintenance person employed by the church about what the plaintiff told him caused the accident also constituted hearsay. Finally, although, in opposition to the defendants' motion, the plaintiff's expert offered his opinion regarding dangerous conditions that caused the plaintiff's accident, such as the lack of handrails, there was no evidence to connect these alleged dangerous conditions to the plaintiff's fall.

Student note:   A defendant can establish its prima facie entitlement to judgment as a matter of law by showing that the plaintiff cannot identify the cause of the accident.  A plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the injuries would be based on speculation.

Case:  Antelope v. Saint Aidan's Church, Inc., NY Slip Op 07003 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Statute of limitations.

Court holiday.

The courts are closed for election day.

Tomorrow's issue: A fall from a catwalk.

Discovery sanctions.

Practice point:  To invoke the drastic remedy of preclusion, the court must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious. The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse.

Student note: Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed. The nature and degree of the penalty is a matter generally left to the court's discretion

Case:  Aha Sales, Inc. v. Creative Bath Prods., Inc., NY Slip Op 07001 (2d Dept. 2013).

Here is the decision.

Wednesday's issue: A fall from a catwalk.

Labor Law § 241[6].

Practice point:  The statute imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed.  To state a cause of action, a plaintiff must allege that the property owners violated a regulation that sets forth a specific standard of conduct, and not simply a recitation of common-law safety principles.

Student note:  Since this section imposes a nondelegable duty on owners, a plaintiff need not show that a defendant exercised supervision or control over the worksite in order to establish a right of recovery.

Case:  Gonzalez v. Perkan Concrete Corp., NY Slip Op 06835 (2d Dept. 2013).

Here is the decision.

Monday's issue: Discovery sanctions.

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.