Power-washing is within the ambit of the Labor Law.

Practice point:  The defendants did not establish their prima facie entitlement to judgment as a matter of law, as they did not demonstrate that the plaintiff, who was injured while power washing buildings in preparation for painting them, was not engaged in a specifically enumerated activity under 12 NYCRR 23-1.4(b)(13). Painting is an activity enumerated under that provision, and the power washing performed here was in preparation for, and a contractual part of, the painting work. Accordingly, the power washing was not "routine maintenance" which is excluded from the ambit of Labor Law § 241(6), but, rather, was surface preparation, which was an integral part of the painting process contemplated by the parties.

Student note:  Labor Law § 241(6) 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. Section 23-1.4(b)(13) of the Industrial Code defines construction work as including all work "performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures."

Case:  Dixson v. Waterways at Bay Pointe Homeowners Assn., Inc., NY Slip Op 08591 (2d Dept. 2013).

Here is the decision.

Tomorrow''s issue: A general contractor's liability.

A motion for leave to enter a default judgment.

Practice point:  On a motion for leave to enter a default judgment under CPLR 3215[f], a plaintiff must submit proof of service of the summons and the complaint, the facts constituting the claim, and the defendant's default. To defeat the motion, the defendant must establish a reasonable excuse for the default and a potentially meritorious defense to the action.

Student note:  Where, as here, the defendant fails to establish a reasonable excuse for the default, it is unnecessary to determine whether she demonstrated the existence of potentially meritorious defenses to the complaint.

Case:  Diederich v. Wetzel, NY Slip Op 08590 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Power-washing is within the ambit of the Labor Law.

A judgment issued by a foreign country's court.

Practice point:  A money judgment issued by the court of a foreign country is recognized and enforceable in New York State if it is "final, conclusive and enforceable where rendered," pursuant to CPLR 5301. However, the judgment is not conclusive, and thus may not be recognized, if (1) it was "rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law" or (2) "the foreign court did not have personal jurisdiction over the defendant," pursuant to CPLR 5304[a][1], [2].

Student note:  A plaintiff seeking enforcement of the judgment bears the burden of making a prima facie showing that the mandatory grounds for nonrecognition do not exist.

Case:  Daguerre, S.A.R.L. v Rabizadeh, NY Slip Op 08587 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  A motion for leave to enter a default judgment.

Statute of frauds.

Practice point: The cause of action alleging breach of contract was found to be barred by the statute of frauds. It is undisputed that no there was no written agreement to convey half of the interest in the condominium to plaintiff, pursuant to General Obligations Law § 5-703. Similarly, while plaintiff acknowledged that he and defendant never entered into a common-law marriage or otherwise were married, he asserts that they were involved in a 10-year romantic and business relationship and that they entered into an oral agreement to share equally in the assets and resources they gained. Plaintiff testified that he expected this arrangement to last for his lifetime. Thus, the agreement was required to be in writing, pursuant to General Obligations Law § 5-701[a][1].

Student note:  Plaintiff correctly stated that the statute of frauds does not apply to partnerships or joint ventures created at will.  However, here there was no evidence of a joint venture or partnership in which the parties shared control, profits, and losses of their enterprise. Instead, plaintiff described an amorphous kind of partnership and admitted that defendant alone controlled the financial management of their company, including his salary and expenses, thereby establishing that he had no control over the company. Nor did he file tax forms that would demonstrate that theirs was a partnership or joint venture.

Case:  Massey v. Byrne, NY Slip Op 08534 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: A judgment issued by a foreign country's court.

Liability for a dog bite off the premises.

Practice point:  Plaintiff sought damages for injuries he allegedly sustained in an attack by a dog being kept by the night watchman at a construction site. Defendant, a general contractor, was constructing buildings on two adjacent properties, and had hired the night watchman and given him permission to keep the dog at the premises. The dog apparently escaped from the premises, and it and another dog attacked plaintiff on a public sidewalk near the site.

Defendant established prima facie that it was unaware of the dog's vicious propensities, through its owner's testimony that he had never received any complaints about the dog and was not aware of any previous incidents involving the dog, and that the dog appeared friendly and well trained when he observed it. However, plaintiff raised an issue of fact through the testimony of a nonparty witness that he had seen the dog bite an electrician working at the construction site approximately one month before the subject incident occurred and was present when defendant's foreman called the owner and told him what had happened.

Student note:  The owner or a party in control of premises may be held liable for injuries resulting from a dog bite that occurred off the premises if it had knowledge of the vicious propensities of the dog and had control of the premises and the capability to remove or confine the animal.

Case:  Hall v. United Founders, Ltd., NY Slip Op08530 (1st Dept. 2013).

Here is the decision.

Monday's issue: Statute of frauds.

Liability for an independent contractor's negligence.

Practice point:  As a general rule, a party who engages an independent contractor is not liable for that contractor's negligent acts. There are exceptions, however, one of which implicates the nondelegable duty to keep the premises safe.

Student note:  Whenever the general public is invited into stores, office buildings, and other places of public assembly, the premises' owner is charged with the duty to provide members of the general public with a reasonably safe premises, including a safe means of entry and exit.

Case:  Blatt v. L'Pogee, Inc., NY Slip Op 08582 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Liability for a dog bite off the premises.

Happy New Year.

The courts are closed to mark New Year's Day.



Tomorrow's issue: Liability for an independent contractor's negligence.

Struck in the crosswalk, and a motion to renew.

Practice point:  Plaintiff established entitlement to judgment on liability as a matter of law by submitting evidence demonstrating that she was crossing the street, within the crosswalk, with a "walk" sign in her favor, when defendants' vehicle, which was making a left turn, struck her. The affidavits from the nonparty eyewitnesses and the police report confirm plaintiff's version of the accident.

Defendants failed to raise a triable issue of fact as to comparative negligence. Plaintiff averred that she looked both ways before entering the intersection and continued to look for traffic as she crossed the street, and that she could not have avoided the accident because she only noticed defendants' vehicle, which was moving quickly, a "split second" prior to being struck. Contrary to the assertion of defendant driver, the position of plaintiff's body after impact is not probative as to whether she was walking in the cross-walk prior to being struck.

Student note:  Plaintiff's motion was considered one for renewal, since she submitted a properly notarized affidavit of a nonparty witness, thereby correcting an error in the original papers. The court has discretion to relax the requirement that a motion to renew be based on newly discovered evidence or evidence not previously available, and to grant such a motion in the interest of justice, absent prejudice to the opposing party resulting from any delay.

Case:  Hines v. New York City Tr. Auth., NY Slip Op 08527 (1st Dept. 2013).

Here is the decision.

Thursday's issue: Liability for an independent contractor's negligence.

Discovery sanctions.

Practice point:  As a sanction against a party who refuses to obey an order for disclosure or wilfully fails to disclose information which should have been disclosed, a court may issue an order, among other things, prohibiting the disobedient party from producing in evidence designated things or items of testimony or striking out pleadings, pursuant to CPLR 3126[2], [3].

Student note:  However, a court may invoke the drastic remedy of striking a pleading only upon a clear showing that the failure to comply with court-ordered discovery was willful and contumacious.

Case:  Holloway v. Station Bar Corp., NY Slip Op 08408 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Struck in the crosswalk, and a motion to renew.

A common-law tort action against a municipality.

Practice point: The court granted the defendants' motion to dismiss based on his failure to allege in the notice of claim the date or time when his claim against the defendants arose. The plaintiff's failure to so allege with sufficient particularity frustrated the defendants' ability to conduct a meaningful investigation into his claim and to assess its merits.

Student note:  Compliance with the notice of claim requirements set forth in General Municipal Law § 50-e(2) is a condition precedent to the commencement of a common-law tort action against a municipality.

Case:  Forster v. City of New York, NY Slip Op 08406 (2d Dept. 2013).

Here is the decision.

Monday's issue: Discovery sanctions.

Workers' Comp.

Practice point:  Workers' Compensation Law §§ 11 and 29(6), which protects employers against lawsuits brought by injured workers, extends to entities which are alter egos of the entity which employs the plaintiff.  A defendant moving for summary judgment under this theory may establish itself, prima facie, as the employer's alter ego by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity.

Student note:  A parent corporation may be deemed to be an employer of an employee of a subsidiary corporation for Workers' Compensation purposes if the subsidiary functions as the alter ego of the parent. However, a mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other.

Case:  Batts v. IBEX Constr., LLC, NY Slip Op 08394 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A common-law tort action against a municipality.