A school's liability for a gym-class injury.

Practice point:   The infant plaintiff's affidavit was sufficient to raise a triable issue of fact in opposition to the school's motion for summary judgment. At her deposition and in her affidavit, the infant plaintiff stated that on the day of the accident, she was experiencing "pain and instability" in her ankle, and that she made complaints concerning this condition to the teacher who was supervising the gym class. The infant plaintiff further averred that, despite her complaints, the teacher insisted that she continue to participate in the gym exercises and that, as a result, she thereafter fell and sustained injuries.

Student note:   Schools have a duty to adequately supervise children in their charge, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. Although it is not an insurer of children's safety, a school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent.

Case:  Anastasiya M. v.  New York City Bd. of Educ., NY Slip Op 08053 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A claim of disability-based employment discrimination.

An untimely summary judgment motion.

Practice point:  Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, defendant was required to make his motion for summary judgment no later than 60 days after the filing of the note of issue, unless he obtained leave of the court on good cause shown. Here, defendant moved for summary judgment 67 days after the note of issue was filed and failed to demonstrate, in his moving papers, good cause for not filing the motion before the expiration of the 60-day deadline.

Student note:  The Appellate Division will not consider the "good cause" arguments raised for the first time in defendant's reply papers.

Case:  Goldin v. New York & Presbyt. Hosp., NY Slip Op 08047 (2d Dept. 2013).

Here is the decision.

Monday's issue: A school's liability for a gym-class injury.

An untimely notice of claim.

Practice point:  Petitioner's contention that he failed to timely file the notice because he was unaware of the extent of his injuries is unavailing as the record shows that he stopped working the day of the injury and subsequently filed a claim for Workers' Compensation. Even accepting petitioner's assertion that he did not know that he required surgery until May, he failed to explain why he waited until August to serve the notice. In addition, petitioner did not demonstrate that the agency acquired actual notice of the essential facts within 90 days after the claim arose or a reasonable time thereafter. The report prepared shortly after the accident did not give the agency actual knowledge of the facts constituting the claim alleging liability under the Labor Law as it fails to connect the incident to any claim against the agency.  It merely states that petitioner was injured while lifting plywood at the school, and makes no mention of petitioner's present allegations that the scaffolding and the flooring were not properly secured;  he was not equipped with proper safety devices; and on-site personnel were inadequately trained.

Student note:   Ignorance of the requirements of General Municipal Law § 50-e is not a reasonable excuse for failure to timely file a notice.

Case:  Mehra v. City of New York, NY Slip Op 08019 (1st  Dept. 2013)

Here is the decision.

Tomorrow's issue: An untimely summary judgment motion.

Premature dismissal of common-law negligence and Labor Law claims.

Practice point:  The court found that plaintiff's common law negligence and Labor Law claims were prematurely dismissed before depositions were taken. The contractual provisions requiring defendant to supervise and control the work, although not in themselves sufficient to justify holding the defendant liable for the alleged inadequacy of the ladder in question, do furnish cause to believe that further discovery may lead to evidence that the defendant's employees exercised actual supervision or control over the worksite, so as to implicate the claims. Defendant's submission of affidavits broadly disclaiming any supervisory control over plaintiff's work were insufficient to establish defendant's entitlement to judgment as a matter of law.

Student note:   The court also found that conflicting affidavits raise an issue of fact as to whether a bailment was created by defendant's loan of the allegedly defective ladder to plaintiff.  Such a bailment could give rise to liability for common-law negligence if the defendant provided plaintiff with dangerous equipment even if its defect was evident.

Case:  Rodriguez v. Coalition for Father Duffy, LLC, NY Slip Op 08007 (2d Dept. 2013)

 Here is the decision.

Tomorrow's issue: An untimely notice of claim.

Being true to your school goes both ways.

Practice point:  There is an implied contract between a school and its students such that if a student complies with the terms prescribed by the school, he or she will obtain the degree which he or she sought. The essence of the contract is that an academic institution must act in good faith in its dealings with its students. The parties' rights and obligations, as specified in the school's bulletins, circulars and regulations made available to students, become a part of the contract.

Student note: A cause of action based solely on the school's academic and administrative decision must be commenced in an Article 78 proceeding.

Case:  Clogher v. New York Medical Coll., NY Slip Op 08043 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Premature dismissal of common-law negligence and Labor Law claims.

Deposition testimony, hearsay, and summary judgment.

Practice point:  Defendant demonstrated his prima facie entitlement to judgment as a matter of law by showing that his car was struck in the rear by plaintiff's decedent's car, and in response, plaintiff failed to provide a nonnegligent explanation, in evidentiary form, for the collision.

The transcripts of the deposition testimony of two police officers who testified in a related action are hearsay as to defendant, since he was not notified about the deposition, nor present for the testimony, pursuant to CPLR 3117[a][3].

Student note:  Hearsay may be used to defeat summary judgment as long as it is not the only evidence submitted in opposition. Here, however, plaintiff submitted no other admissible evidence as to the circumstances of the accident.

Case:  Rugova v. Davis, NY Slip Op 08003 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:  Being true to your school goes both ways.

A deed conveying real property as security.

Practice point:  Real Property Law § 320 provides, in pertinent part, that a "deed conveying real property, which, by any other written instrument, appears to be intended only as a security in the nature of a mortgage, although an absolute conveyance in terms, must be considered a mortgage." In determining whether a deed was intended as security, examination may be made not only of the deed and a written agreement executed at the same time, but also of oral testimony bearing on the intent of the parties and to a consideration of the surrounding circumstances and the parties' acts.

Student note:  A court of equity will treat a deed, absolute in form, as a mortgage, when it is executed as a security for a loan of money. That court looks beyond the terms of the instrument to the real transaction; and when that is shown to be one of security, and not of sale, it will give effect to the parties' actual contract.

Case:  Bouffard v. Befese, LLC, NY Slip Op 07925 (2d Dept. 2013).

Here is the decision.

Monday's issue: Deposition testimony, hearsay, and summary judgment.

CPLR 305(c).

Practice point:  CPLR 305(c) authorizes the court to "allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced."  Where the motion is to cure a misnomer in the description of a party-defendant, it should be granted even after the statute of limitations has run where (1) there is evidence that the correct defendant, misnamed in the original process, was, in fact, properly served, and (2) the correct defendant would not be prejudiced by granting the amendment.

Student note: While CPLR 305(c) may be used to cure a misnomer in the description of a party-defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served.

Case:  Associated Geriatric Info. Network, Inc. v Split Rock Multi-Care Ctr., LLC, NY Slip Op 07922 (2d Dept. 2013)

Here is the decision. 

Tomorrow's issue: A deed conveying real property as security.

Applicability of the emergency doctrine.

Practice point:  Defendants established their entitlement to judgment as a matter of law by demonstrating the applicability of the emergency doctrine in this action where plaintiff was injured when the bus in which she was a passenger stopped suddenly, hurling her forward into the windshield. Defendants submitted evidence showing that, shortly after the bus had started to move after being stopped at a traffic light, a car drove around the bus erratically and at a high rate of speed, cutting the bus off so closely that the car's rear bumper came within an inch of striking the bus' front bumper. Defendant bus driver was forced to stop suddenly in order to avoid colliding with the car.

Student note: Plaintiff's assertion, in her opposition affidavit, that no car cut the bus off at any time prior to the accident was unavailing as it contradicted her deposition testimony.

Case:  Orsos v. Hudson Tr. Corp., NY Slip Op 097839 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: CPLR 305(c).

CPLR 3211(a)(7).

Practice point:  On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.  However, bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true.

Student note: Where evidentiary material is submitted and considered on the motion, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one.  Unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the motion will not be granted.

Case:  Gersher v. Ejamal, NY Slip Op 07447 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Applicability of the emergency doctrine.

"Walk" and "Don't walk."

Practice point:  Pursuant to Vehicle and Traffic Law § 1112, a pedestrian who proceeds across a roadway in the direction of a steady "walk" signal must be given the right of way by traffic.

Student note: A pedestrian who proceeds into a roadway with a "walk" signal, but only partially completes the crossing on the "walk" signal, may proceed to a sidewalk on the flashing or steady "don't walk" signal, pursuant to Vehicle and Traffic Law § 1112[b], [c].

Case:  DiDonna v. Houck, NY Slip Op 97446 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: CPLR 3211(a)(7).