The preclusion of expert testimony, and the appealability of an order effectively granting reargument.

Practice point:  Plaintiff's experts' testimony was precluded as the medical and scientific literature submitted did not support the proffered theory that exposure to gasoline fumes caused plaintiff's birth defects. While the literature shows that some of gasoline's constituent chemicals, and presumably those chemicals' vapors, can cause birth defects, plaintiff failed to show how exposure to those constituent chemicals, constituted as unleaded gasoline vapors, could have caused his injuries.

Student note:  The Appellate Division determined that, as a threshold matter, the order which denied plaintiff's motion to reargue the order precluding the experts' testimony effectively granted reargument, and, upon reargument, adhered to the court's original decision. Accordingly, it was appealable.

Case:  Sean R. v. BMW of N. Am., NY Slip Op 01503 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue:  Respondeat superior.

A Labor Law 240(1) claim.

Practice point:  Plaintiff demonstrated prima facie entitlement to summary judgment as to liability through his testimony that, at the direction of the defendants' site foreman, he used the only ladder on the floor, an open A-frame that was "not too far" from the foreman's toolbox, and that while he was standing on the ladder, it became unstable, wobbled and fell, causing him to fall and sustain injury.

However, summary judgment was denied as, in opposition, defendants raised factual questions as to whether plaintiff was provided an adequate ladder, and, if so, whether he knew it was available and that he was expected to use it, but nevertheless unreasonably chose not to use it, thereby causing his own injury. In his affidavit, the site foreman avers that prior to the accident, he directed plaintiff not to use "a couple of ladders, broken-up and busted-up" that had been placed by the garbage bins. He further averred that "at least two A-frame sturdy ladders" were on the floor, and that he told plaintiff to "sweep the floor until a safe ladder" was available. According to the foreman, upon arriving at the scene of the accident, he observed that plaintiff had used a ladder that the foreman had specifically instructed him not to use.

Case:  Morato-Rodriguez v Riva Constr. Group, Inc., NY Slip Op 01408 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: The preclusion of expert testimony, and the appealability of an order effectively granting reargument.

Compelling discovery from a nonparty.

Practice point:  Whether the motion is directed to a party or a nonparty, the movant must satisfy the threshold requirement that the disclosure sought is material and necessary, pursuant to CPLR 3101[a][1]. Beyond that, when seeking disclosure from a nonparty, the movant must set forth the circumstances or reasons why the disclosure is sought or required, pursuant to CPLR 3101[a][4]. In the case of a nonparty witness, more than mere relevance and materiality is necessary to warrant compulsory disclosure.

Student note: CPLR 3101(a) is liberally construed to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay.

Case: Reid v. Soults, NY Slip Op 01307 (2d Dept. 2014).

Here is the decision. 

Monday's issue:  A Labor Law 240(1) claim.

A handwritten memorandum as an enforceable settlement agreement.

Practice point:  The handwritten memorandum executed following mediation between the parties was a binding and enforceable settlement agreement, and not merely an agreement to agree. The memorandum's plain language expressed the parties' intention to be bound, and established a meeting of the minds regarding the material terms pertaining to the settlement of plaintiff's claim for unpaid deferred compensation.

Student note:  The agreement was not rendered ineffective simply because certain non-material terms were left for future negotiation, or because it stated that the parties would promptly execute formal settlement papers.

Case: Trolman v Trolman, Glaser & Lichtman, P.C., NY Slip Op 01396 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Compelling discovery from a nonparty.

Liability of owners of covers and gratings on a street.

Practice point:  Pursuant to 34 RCNY 2-07(b), the owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware.

Student note:  Liability for a dangerous or defective condition on property is generally predicated on ownership, occupancy, control or special use of the property.  Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property.

Case:  Hickman v. Medina, NY Slip Op 01295 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  A handwritten memorandum as an enforceable settlement agreement.

Deed restrictions that run with the land.

Practice point:  New York law favor the free and unobstructed use of realty. A purchaser takes with notice from the record only of incumbrances in the direct chain of title. Absent actual notice before or at the time of the purchase, a land owner is bound only by such restrictions as appear in some deed of record in the conveyance to the owner or a direct predecessors in title. A purchaser is not required to search outside the chain of title.

Student  note:  Deed restrictions are strictly construed against those seeking to enforce them and will be enforced only on the basis of clear and convincing proof.

Case:  Butler v. Mathisson, NY Slip Op 01289 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Liability of owners of covers and gratings on a street.

A claim of unjust enrichment, and a 3211(a)(7) motion to dismiss.

Practice point: The plaintiff must show that (1) the other party was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered.

Student note:   On a motion to dismiss pursuant to CPLR 3211(a)(7), for failure to state a cause of action, the court must afford the pleading a liberal construction, accept as true all facts as alleged in the pleading, give the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, is not considered in deciding the prediscovery motion.

Case:  Alan B. Greenfield, M.D. v. Beach Imaging Holdings, LLC, NY Slip Op 01285 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Deed restrictions that run with the land.

Conflict of laws and the enforceability of employment agreements.

Practice point:  Defendants moved for partial summary judgment as to the unenforceability of nonsolicitation agreements as overbroad. While, by their terms, the agreements were to be governed by and construed in accordance with Delaware law, the parties differed as to whether New York law or Delaware law should be applied.

There is no actual conflict unless each jurisdiction's laws provide different substantive rules that are relevant to the issue at hand and have a significant possible effect on the trial's outcome.

Here, as the parties' briefs disclosed no such conflict, the Appellate Division applied the law of New York as the forum state.

Student note:  Under New York law, an employee's noncompetition agreement is reasonable and, therefore, enforceable only if it: (1) is no greater than is required for the protection of the employer's legitimate interest; (2) does not impose undue hardship on the employee; and (3) is not injurious to the public.

Case:  TBA Global, LLC v Proscenium Events, LLC, NY Slip Op 01266 (1st Dept. 2014).

Here is the decision.

Monday's issue: A claim of unjust enrichment, and a 3211(a)(7) motion to dismiss.

An easement by necessity.

Practice point:  The party asserting that it has an easement by necessity bears the burden of establishing by clear and convincing evidence that there was a unity and subsequent separation of title, and that at the time of severance, an easement over the servient estate was absolutely necessary to obtain access to the party's land.

Student  note:  The necessity must exist in fact and not as a mere convenience, and must be indispensable to the reasonable use of the adjacent property.

Case:  Faviola, LLC v. Patel, NY Slip Op 01447 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Conflict of laws and the enforceability of employment agreements.

Labor Law and a fall from a ladder.

Practice point:  Not every fall from a ladder establishes that the ladder did not provide proper protection Here, the plaintiffs' own submissions demonstrated triable issues of fact as to how the injured plaintiff's accident occurred, including whether he fell because he merely lost his balance. In any event, the defendants and the third-party defendant demonstrated that the plaintiffs' motion was premature, as further discovery may lead to relevant evidence, pursuant to CPLR 3212[f].

The Appellate Division found that the Supreme Court properly denied the plaintiffs' motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant-school district, without prejudice to renew after discovery.

Student note:  In order to establish liability under § 240(1), there must be a violation of the statute, and the violation must be a proximate cause of the plaintiff's injury.

Case:  Degen v. Uniondale Union Free Sch. Dist., NY Slip Op 01146 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  An easement by necessity.

A motion for voluntary discontinuance.

Practice point:  Absent a showing of special circumstances, including prejudice to a substantial right of the defendant or other improper consequences, a motion for a voluntary discontinuance should be granted without prejudice. Here, there was no such showing if the plaintiff were permitted to commence a second action for the same relief in another venue. Any prejudice to the defendants was properly obviated by awarding costs and an attorney's fee as compensation for the time expended in the defense of the action to date. Accordingly, the Appellate Division found no valid reason for the Supreme Court's granting plaintiff's motion with prejudice.

Student note:  The plaintiff is not required to demonstrate any basis for seeking a voluntary discontinuance.

Case:  American Tr. Ins. Co. v. Roberson, NY Slip Op 01144 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Labor Law and a fall from a ladder.