CPLR 3211(a)(7).

Practice point:  A court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint and, upon considering such affidavits, the facts alleged therein must also be assumed to be true. . Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Unless it is shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the complaint should not be dismissed.

Student note:  On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Case:  Karimov v. Brown Harris Stevens Residential Mgt., LLC, NY Slip Op 03659 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal of a Labor Law § 240(1) claim.

Triable issues of fact on a Labor Law claim.

Practice point:  The Appellate Division found in the record triable issues of fact as to how plaintiff's accident occurred, and, therefore, it cannot be concluded, as a matter of law, that the alleged failure to provide him with proper protection proximately caused his injuries. Plaintiff testified that he "fell backwards and the ladder forward," and submitted an affidavit in which he stated that the ladder suddenly went forward and he simultaneously fell backwards, and that he did not become dizzy or lose his balance. However, plaintiff also testified that he opened the ladder and locked it and checked that it was sturdy; that he did not experience any problems with the ladder while he was on it; that he did not remember how he fell off the ladder or know why he fell; and that he did not feel the ladder move before he fell. When asked if he remembered or knew if the ladder shook or wobbled, plaintiff responded, "No."

In addition, plaintiff's employer testified that he situated the ladder just before plaintiff's fall, locked the braces and climbed it himself, and that when he went back into the room after plaintiff fell, the ladder was in the same place as before the accident and was not on the ground. He also testified that plaintiff did not say that there was anything wrong with the ladder that caused him to fall.

These contradictions raise credibility issues which cannot be resolved on a motion for summary judgment.

Student note:  To establish liability under Labor Law § 240(1), a plaintiff must prove a violation of the statute that was the proximate cause of the injury. A fall from a ladder does not, in and of itself, establish that the ladder did not provide appropriate protection.

Case: Campos v. 68 E. 86th St. Owners Corp., NY Slip Op 03747 (1st Dept. 2015)

Here is the decision.

Monday's issue: CPLR 3211(a)(7).

A fall at the laundromat.

Practice point:  The Appellate Division determined that the laundromat defendants did not meet their initial burden of establishing their entitlement to judgment as a matter of law. They failed to establish, prima facie, that they did not have constructive notice of the alleged hazardous condition of the mat on which plaintiff fell, as they did not submit evidence that they had inspected the mat within  a reasonable time prior to the accident. The motion court should not have considered the affidavit of the laundromat defendants' general manager, since the defendants did not previously disclose the general manager as a witness and did not provide a reasonable excuse for their failure to identify her during the discovery process.  In any event, the affidavit was insufficient to demonstrate, prima facie, that the laundromat defendants did not have constructive notice of the alleged hazardous condition .

Student note: Since the laundromat defendants failed to meet their initial burden as the movants, it is unnecessary to review the sufficiency of the plaintiff's opposition papers.

Case:  Francis v. Super Clean Laundromat, Inc., NY Slip Op 03650 (2d Dept. 2014)

 Here is the decision.

Tomorrow's issue: Triable issues of fact on a Labor Law claim.

A bus-bicycle fatality.

Practice point:  The defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that the bus was operated in a prudent and reasonable manner, and the driver acted with due care under the circumstances. The evidence established that the bus entered the intersection with the light and had nearly completed exiting the intersection when the decedent, against the light, entered the intersection, ost his balance, and fell to the pavement in the path of the bus's rear tire.

In opposition, the plaintiffs' conclusory and speculative assertions of defendants' possible negligence were unsupported by any competent evidence, and, therefore, did not raise a triable issue of fact.

Student note:  Where, as here, the plaintiffs failed to make some showing of negligence on the part of the defendants, the plaintiffs were not entitled to invoke the Noseworthy doctrine, under which a plaintiff may prevail on a lesser degree of proof.

Case: Clark v. Amboy Bus Co., NY Slip 03645 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A fall at the laundromat.

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.