A municipality's liability, and denial of a motion to renew.

Practice point:  Where a municipality has adopted a prior written notice law, it cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies. Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it.

Here, in the bill of particulars, the plaintiff alleged that the City affirmatively created a dangerous condition by the manner in which it piled up snow and ice at the location of the accident. The City established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of a snow mound or icy condition in the area in which the plaintiff fell, and that it did not, merely by plowing the roadway, create a dangerous condition through an affirmative act of negligence.

Student note: The purportedly new facts submitted by the plaintiff on that branch of the motion which was for leave to renew would not have changed the prior determination, and so renewal was denied, pursuant to CPLR 2221[e].

Case:  Moncrieffe v. City of White Plains, NY Slip Op 02017 (2d Dept. 2014).

Here is the decision.

Monday's issue:  A jury's inconsistent verdict.

The common-interest privilege.

Practice point:  A bona fide communication made upon any subject matter in which the communicating party has an interest, or in reference to which that party has a duty, is privileged if made to a person having a corresponding interest or duty.  This privilegre can be overcome by a showing of malice.  The Appellate Division found that the allegations of malice as set forth in the complaint and in the plaintiff's affidavit preclude dismissal for failure to state a cause of action, pursuant to CPLR 3211[a][7].

Student note:  On a 3211(a)(7) motion, a plaintiff has no obligation to show evidentiary facts to support the allegations of malice.

Case:  Colantonio v. Mercy Med. Ctr., NY Slip Op 02009 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A municipality's liability, and denial of a motion to renew.

An out-of-possession landlord's liability for a fall through an open trap door.

Practice point:  The Appellate Division found that the out-of-possession landlord was entitled to summary judgment where the plaintiff fell through an open trap door in the tenant's store. Even though the landlord reserved the right to reenter the leased premises for purposes of inspection and repair, the properly functioning trap door that was left open by someone within the tenant's control did not constitute a significant structural or design defect, and plaintiff failed to show a violation of a specific statutory provision, as required to impose liability upon the out-of-possession landlord.

Student note:  A general non-specific safety provision such as Administrative Code of City of NY § 28-301.1 is insufficient to impose liability on an out-of-possession owner.

Case:  Yuying Qiu v J & J Deli Corp., NY Slip Op 02150 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: The common-interest privilege.

Vacating a default.

Practice point:  To vacate their default in opposing the plaintiffs' motion for summary judgment on the issue of liability, the defendants were required to demonstrate a reasonable excuse for their default and a potentially meritorious opposition to that motion, pursuant to CPLR 5015[a][1].

Student note: While the decision whether to vacate a default judgment rests within the sound discretion of the trial court, a disposition on the merits is favored.

Case:  Bardes v. Pintado, NY Slip Op 02003 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  An out-of-possession landlord's liability for a fall through an open trap door.

A cause of action for false arrest or imprisonment.

Practice point:  A plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged".

Student note:  Probable cause serves as a legal justification for the arrest, and is an affirmative defense to the claim.

Case:  Fakoya v. City of New York, NY Slip Op01709 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Vacating a default.

Res judicata, and the preclusive effect of summary judgment.

Practice point:  Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding. It operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding.

Student note:  An order granting a summary judgment motion is on the merits and has preclusive effect.

Case:  Cox v. Hubbard, NY Slip Op 01705 (2d Dept. 2014).

 Here is the decision.

Monday's issue:  A cause of action for false arrest or imprisonment.

Compulsory arbitration and the CPLR 78 standard.

Practice point:  Where the parties are subjected to compulsory arbitration, the arbitration award must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78.

Student note:  A hearing officer's determinations of credibility are generally not reviewable because the hearing officer was in a position to observe the witnesses and was able to perceive the inflections, the pauses, the glances and gestures that combine to form an impression of either candor or deception.

Case:  Matter of Brito v. Walcott, NY Slip Op 01813 (1st Dept.2014).

Here is the decision.

Tomorrow's issue: Res judicata, and the preclusive effect of summary judgment.

Labor Law 200 and 241(6) claims.

Practice point:  As the essence of plaintiff's claim is that the safety equipment provided to him was inadequate, and the defendant-general contractor did not dispute that it provided the safety equipment plaintiff used, plaintiff may hold the defendant-general contractor liable under Labor Law § 200 for any negligence in its providing safety equipment shown to have contributed to his injury.

Student note:  Plaintiff's Labor Law § 241(6) claim was dismissed. The complaint alleges violations of 12 NYCRR 23-1.7(h) and 12 NYCRR 23-1.8(c), which require adequate protective equipment and apparel for workers using or handling "corrosive substances and chemicals." In support of their motion for summary judgment, defendants provided expert evidence that these Industrial Code sections are inapplicable here, as the particular substance that injured plaintiff is not considered a corrosive substance or chemical, and plaintiff's opposition to the motion failed to adequately rebut this evidence.

Case:  Flores v. Infrastructure Repair Serv., LLC, NY Slip Op 01811 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Compulsory arbitration and the CPLR 78 standard.

Liability for trivial defects.

Practice point:  A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a person might merely stumble, stub his or her toes, or trip. In determining whether a defect is trivial, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury,.

Student note:  Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable.

Case:  Abalo v. Santorelli, NY Slip Op 01701 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Labor Law 200 ad 241(6) claims.

Motions for leave to renew and reargue.

Practice point:  The Appellate Division held that plaintiff's motion for leave to renew was properly denied in the absence of new facts, citing CPLR 2221[e][2].

Student note:  No appeal lies from the denial of a motion to reargue.

Case:  Kaplan v. U.S. Coal Corp., NY Slip Op 01681 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Liability for trivial defects.

Duties relating to an easement.

Practice point:  While an easement generally imposes no affirmative duty on the owner of the servient estate to maintain and repair structures, such an owner may be required to perform maintenance functions where it makes use of the easement for its own purposes and that use does not interfere with the legitimate activities of the holder of the dominant estate.

Student note:  To the extent that the servient estate's owner may incur a duty, it is that of a landowner, namely, to maintain the portion of its premises that is subject to the easement in a reasonably safe condition, provided that such maintenance subjects the owner of the servient estate to no unusual hazards and requires no special expertise.

Case:  Kleyner v. City of New York, NY Slip Op 01584 (2d Dept. 2014).

Here is the decision.

Monday's issue: Motions for leave to renew and reargue.