Summary judgment in a dog bite case.

Practice point:  The defendants separately established their respective prima facie entitlement to judgment as a matter of law on their respective motions by demonstrating, through their deposition testimony, as well as the plaintiff's, that they were not aware, nor should they have been aware, that the dog had ever bitten anyone or exhibited any aggressive behavior. 

The plaintiff failed to raise a triable issue of fact in opposition. The court could not consider the affidavit of the plaintiff's father, a nonparty witness, as he was not properly disclosed as a notice witness in the plaintiff's discovery responses.

Student note:  To recover on a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the dog's owner knew or should have known of such propensities. Relevant evidence includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm

Case:  Henry v. Higgins, NY Slip Op 03489 (2d Dept. 2014)

 Here is the decision.

Tomorrow's issue: A bus-bicycle fatality.

Memorial Day.

Dismissal of a slip and fall claim.

Practice point:  Plaintiff alleged in her bill of particulars, and testified at her deposition, that she was injured when she slipped on an oily substance on the floor of defendant's grocery store. Defendant established prima facie its lack of constructive notice of the alleged dangerous condition with its porter's affidavit stating that he inspected the accident site a half hour prior to plaintiff's fall and that there were no slipping hazards present, together with its manager's deposition testimony regarding cleaning and mopping routines. Plaintiff did not contest defendant's evidence that it inspected for slipping hazards on the premises one-half hour before the accident but did not find any, and so she failed to raise a triable issue of fact

Student note:  Contrary to defendant's contention, plaintiff's supplemental bill of particulars and affidavit in opposition to the summary judgment motion did not raise a new theory of liability concerning the condition of the floor, but merely expanded on the original theory that plaintiff slipped on a foreign substance by alleging that "areas of missing or broken tiles allowed foreign substances to accumulate and remain on the floor."


Case:  Goodwin v. Western Beef Retail, Inc., NY Slip Op 03588 (1st Dept. 2014)

Here is the decision.

Tuesday's issue: Summary judgment in a dog bite case.

The effectiveness of a notice of claim in a playground accident.

Practice point:  The Appellate Division affirmed the denial of the motion to dismiss the claim that the playground equipment was inherently dangerous. While the notice of claim may not have expressly stated that the playground disc from which the infant fell had a defective design, the complaint alleged that the infant plaintiff's injury was caused by "the dangerous, defective and unsafe condition" posed by the disc, "including but not limited to lack of supervision, lack of control, lack of guidance and lack of instruction." This was enough to put the defendant on notice that part of plaintiffs' theory was that the disc itself was defective. What is more, it could be inferred that plaintiffs were alleging that the disc was defective based on the the allegation that the disc's excessive speed caused plaintiff to be ejected from it.

It is irrelevant that plaintiff's expert inspected the disc five years after the accident, because the condition on which he opined was unlikely to have changed in the intervening period of time.

Student note:  The Court distinguished this case from others in which the theories of liability introduced by the plaintiffs were wholly independent of the theories alleged in the notices of claim.

Case:  Jiminez v. City of New York, NY Slip Op 03585 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal of a slip and fall claim.

The effectiveness of a waiver and release from liability for negligence.

Practice point:  The plaintiff allegedly was injured when the Segway vehicle on which she was riding became stuck in the mud, causing her to fall. The plaintiff had rented the vehicle from the defendant and, at the time she was injured, she was taking a tour, conducted by two of the defendant's employees, along a public trail. Prior to the tour, the plaintiff had signed a waiver and release unambiguously expressing her intent to release the defendant from liability, even if injury was caused by the defendant's negligence.

The Appellate Division found that the defendant established its prima facie entitlement to judgment as a matter of law by producing the waiver and release signed by the plaintiff.  Contrary to the plaintiff's contention, General Obligations Law § 5-326 does not invalidate the release because the fee she paid to the defendant was for the rental of the vehicle, and was not an admission fee for the use of the public trail over which the tour was conducted.

Student note:  In New York, absent a statute or public policy to the contrary, a contractual provision absolving a party from its own negligence will be enforced.

Case:  Deutsch v Woodridge Segway, LLC, NY Slip Op 03475 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The effectiveness of a a notice of claim in a playground accident.

Giving effect to a forum selection clause.

Practice point:  The Appellate Division found no merit in plaintiff's claim that the forum selection clause should not be upheld because this is a tort action and not a breach of contract action. The applicability of a forum selection clause does not depend on the nature of the underlying action. Rather, it is the clause's that determines which claims fall within its scope. Here, the contract provision reciting that "[a]ny and all actions arising out of or related to th[e] Agreement" includes the causes of action at issue.

Student note:  In addition, the Appellate Division noted that the plaintiff failed to show that the forum selection clause was unreasonable or unjust, or that a trial in Westchester County would be so gravely difficult that, for all practical purposes, she would be deprived of her day in court. Also, the plaintiff did not allege, or demonstrate, that the forum selection clause was the result of fraud or overreaching. Under these circumstances, the plaintiff failed to make any showing that the forum selection clause should be set aside.

Case:  Couvertier v. Concourse Rehabilitation & Nursing, Inc., NY Slip Op 03473 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The effectiveness of a waiver and release from liability for negligence.

A misleveled elevator accident.

Practice point:  Defendant's motion to dismiss was denied in this action based on plaintiff's fall upon stepping into an elevator that had misleveled about 1½ to 2 feet. It is undisputed that the misleveling condition was caused by defective level up, level down, and door zone relays, which were replaced after the accident.

Plaintiff raised a triable issue of fact as to whether defendants had constructive notice of the misleveling condition, or with reasonable care could have discovered and corrected it, by submitting the affidavit of an expert who reviewed defendants' repair tickets and concluded that they revealed conditions related to the elevator's leveling function. The affidavit, which was not speculative, was sufficient to refute defendants' proof of the absence of prior misleveling problems.

Student note:  An elevator company that agrees to maintain an elevator may be liable to a passenger for failure to correct conditions of which it has knowledge, or failure to use reasonable care to discover and correct a condition which it should  have found.

Case:  McLaughlin v. Thyssen Dover El. Co., NY Slip Op 03440 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Giving effect to a forum selection clause.

Jurisdiction of the Court of Claims.

Practice point:  Generally, the Court of Claims has exclusive jurisdiction over actions for money damages against State agencies, departments, and employees acting in their official capacity in the exercise of governmental functions.  However, where the suit against the State agent or officer is in tort for damages arising from the breach of a duty owed individually by such agent or officer directly to the injured party, the State is not the real party in interest, even though it could be held secondarily liable for the tortious acts under respondeat superior.

Student note:  The Court of Claims has limited jurisdiction to hear actions against the State itself, or actions naming State agencies or officials as defendants, where the action is, in reality, one against the State, that is, where the State is the real party in interest.

Case:  Borawski v Abulafia, NY Slip Op 03221 (2d Dept. 2014)

Here is the decision.

Monday's issue: A misleveled elevator accident.

An application to file a late notice of claim.

Practice point:  The determination of an application for leave to serve and file a late notice of claim is left to the sound discretion of the court. Among the factors to be considered by a court in determining whether leave to serve a late notice of claim should be granted are whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense.

Student note: Neither the presence nor absence of any one factor is determinative. While the absence of a reasonable excuse is not necessarily fatal, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance.

Case: Bakioglu v Tornabene, NY Slip Op 03219 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Jurisdiction of the Court of Claims.

Fraud claims and the particularity requirement.

Practice point:  The Appellate Division agreed with plaintiff that the Supreme Court erred in dismissing the common-law fraud claims. The motion court dismissed the claims on the ground that there are no specific allegations that they engaged in any fraudulent conduct. However, plaintiff's theory of fraud does not rest upon a single decisive event which manifestly demonstrates defendants' wrongdoing, but on a series of interrelated events which, viewed as whole, portray the alleged fraudulent scheme.

Student note:  Generally, in a fraud claim, a plaintiff must allege a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, and justifiable reliance of the other party on the misrepresentation or material omission, and injury. CPLR 3016(b) requires that the misconduct complained of be set forth in sufficient detail to clearly inform a defendant with respect to the incidents complained of.

Case:  Loreley Fin. (Jersey) No. 28, Ltd. v Merrill Lynch, Pierce, Fenner & Smith Inc., NY Slip Op 03326 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: An application to file a late notice of claim.

A defendant's summary judgment motion in a legal malpractice action.

Practice Point:  The Appellate Division affirmed the denial of defendant's motion for summary judgment dismissing the amended complaint insofar as asserted against him. He failed to show, prima facie, that the plaintiff was unable to prove at least one of the essential elements of his legal malpractice cause of action, namely, he did not establish that successor counsel had a sufficient opportunity to protect the plaintiff's rights such that his conduct could not have proximately caused the plaintiff's alleged damages. Failure to make such a showing required denial of the motion, regardless of the sufficiency of the opposing papers.

Student note:  The elements of a cause of action sounding in legal malpractice are that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of that duty proximately caused the plaintiff to sustain actual and ascertainable damages. To succeed on a motion for summary judgment, the defendant in an action to recover damages for legal malpractice must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of the essential elements of the cause of action.

Case:  Anisman v. Nissman, NY Slip Op03218 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Fraud claims and the particularity requirement.