Admissible evidence in opposition to a summary judgment motion.

Practice point:  The Appellate Division found that plaintiff's deposition testimony that he was employed by a nursing home in 1998 when he was arrested, together with his bill of particulars, were sufficient to raise a triable issue of fact as to whether he sustained pecuniary losses resulting from defendants' alleged legal malpractice.

The Appellate Division also found that defendants failed to preserve their argument that plaintiff may not rely upon his deposition testimony since such deposition was taken in an action in which they were not parties and were not represented. In any event, the argument is unavailing, as defendants' absence at the time of the deposition merely renders the deposition transcript hearsay as to them, and hearsay evidence may be considered to defeat a motion for summary judgment, as long as it is not the only evidence submitted in opposition.

Student note:  Plaintiff also submitted his bill of particulars, and factual allegations contained in a verified bill of particulars may be considered in opposition to a motion for summary judgment.

Case:  Fountain v. Ferrara, NY Slip Op 0347 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The Sidewalk Law.

Outstanding discovery and a summary judgment motion.

Practice point:  The Appellate Division determined that the Supreme Court properly denied that branch of the plaintiff's cross motion which was for summary judgment on the complaint since, at the time of the cross motion, court-ordered discovery remained outstanding, pursuant to CPLR 3212[f].

Student note:  CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof."

Case:  Daniels v. City of New York, NY Slip Op 03793 (2d Dept. 2014)

Here is the decision.

Monday's issue: Admissible evidence in opposition to a summary judgment motion.

The application of laches in a real property dispute.

Practice point:  In order for laches to apply to the failure of an owner of real property to assert his or her interest, it must be shown that the plaintiff inexcusably failed to act when he or she knew, or should have known, that there was a problem with the title to the property. So, the application of laches requires the elements sufficient to create an equitable estoppel.

Student note:  Equitable estoppel arises when a property owner stands by without objection while an opposing party asserts an ownership interest in the property and incurs expense in reliance on that belief. The property owner must inexcusably delay in asserting a claim to the property, while knowing that the opposing party has changed its position to its irreversible detriment.  As the effect of delay may be critical to an adverse party, delays of less than one year have been held sufficient to warrant the application of the defense.

Case:  Jean v. Joseph, NY Slip Op 03798 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Outstanding discovery and a summary judgment motion.

The homeowner's exemption under the Labor Law.

Practice point:  The exemption to liability under § 240(1) is available to owners of one and two-family dwellings who contract for but do not direct or control the work. Here, it was undisputed that the defendant's home where the accident occurred is a single-family private residence. The defendant also submitted the parties' deposition testimony and her affidavit establishing, prima facie, that she did not direct or control the method or manner of the work. The defendant's involvement was merely a retention of the limited power of general supervision, and was no more extensive than would be expected of the typical homeowner who hired a contractor to renovate his or her home. The defendant did not lose the protection of the statutory exemption by furnishing the ladder, bleach, and hose.

Student note:  Labor Law § 240(1) imposes a nondelegable duty upon owners and contractors to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute. To recover, the plaintiff must have been engaged in a covered activity, namely, the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.

Case:  DiMaggio v. Cataletto, NY Slip Op 03795 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The application of laches in a real property dispute.

Dismissal of a Labor Law § 240(1) claim.

Practice point:  During construction, concrete stones were delivered on wooden pallets, and, to keep the stones dry, they were covered with a plastic tarp. On the day of the accident, plaintiff was constructing a scaffold near an open area where the pallets were located. As plaintiff walked by one of the pallets, a stone block that was resting on top of it allegedly fell and struck him on the right knee. Plaintiff commenced this action, asserting, among other claims, a Labor Law § 240(1) claim, alleging that the tarp was not properly secured and that, if it had been, plaintiff would not have been injured.

The Appellate Division affirmed the dismissal of the claim, finding that the plastic tarp was not an object that needed to be secured within the meaning of § 240(1). The purpose of the tarp was to keep the stones dry in case of rain, not to protect the workers from an elevation-related risk.

Student note: Section 240(1) does not necessarily apply every time a worker is injured by a falling object.  The question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. The plaintiff must establish that the object fell because of the inadequacy or absence of a safety device of the kind contemplated by the statute. In order for something to be deemed a safety device under the statute, it must have been put in place as to give proper protection for the worker.

Case: Guallpa v. Leon D. DeMatteis Constr. Corp, NY Slip Op 03768 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The homeowner's exemption to liability under the Labor Law.

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.