Turn it down.

Practice point:  The Appellate Division found substantial evidence in the record to support the determination that the petitioner violated the New York City Noise Control Code (Administrative Code § 24-231[a][2]) by allowing music from his store to reach an audible level inside the upstairs apartment of 50-51 decibels (dB), exceeding the 45 dB permissible limit in a frequency of 100 hertz (Hz).

The court found that it was irrelevant that the inspector used the one-third octave noise meter for the first time at this inspection site as he testified that he had previously received two days of training in its use and knew how it worked, and that it worked similarly to other noise meters. That the investigator was directed to contact his supervisor after taking the readings, rather than issue a violation immediately, does not render the measurements inherently suspect.

The court found no merit to the argument that the inspector deviated from standard procedure by testing the noise level at 100 Hz, a frequency not on the preprinted form as the form notably leaves room for an additional reading at another frequency. Petitioner's contention that the inspector should have taken lengthier readings of the ambient sound level when the music was off because the meter might have recorded a higher decibel level over time, was considered and properly rejected by the Administrative Law Judge. The inspector stated that a longer reading could have shown a higher level, but that his three readings taken within one minute were consistent at 43 dB. In any event, a reading of 43 dB is a full two decibels lower than the maximum ambient level allowed of 45 dB.

Student note:  Because there is in the whole record substantial evidence for the Administrative Law Judge's determination that petitioner violated the Noise Code, judicial review is at an end.

Case:  Matter of Zabari v. New York City Dept. of Envtl. Protection, NY Slip Op 08201 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Lights out.

A claim of false arrest and malicious prosecution.

Practice point:  Probable cause to believe that a person committed a crime is a complete defense to claims of false arrest and malicious prosecution.

Student note: The existence or absence of probable cause becomes a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn surrounding the arrest.

Case:  McDonald v. Town of Greenburgh, NY Slip Op 08054 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Turn it down.

A claim of disability-based employment discrimination.

Practice point:  Plaintiff's claims of disability-based employment discrimination were dismissed for failure to point to evidence raising an inference of discriminatory animus.  Remarks by hospital to the effect that she had "brought her situation upon herself" and that she should "take her assets elsewhere" were not of themselves derogatory or indicative of discriminatory animus. Neither does plaintiff's testimony that unidentified persons laughed at her behind her back raise an issue of fact as to such animus.

Student note:  Stray remarks in the worplace, even if made by a decision maker, do not, in and of themselves, constitute evidence of discrimination.

Case:  Serdans v. New York & Presbyt. Hosp., NY Slip Op 08133 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: A claim of false arrest and malicious prosecution.

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.