An alleged § 1983 violation.

Practice point:  An employee of the county police department, plaintiff brought this action to recover damages pursuant to 42 USC § 1983 for the violation of constitutional rights under color of state law.

The Appellate Division reversed the denial of the defendants' motion to dismiss, and found that the defendants demonstrated their entitlement to judgment as a matter of law dismissing the first cause of action, which alleged violations of the plaintiff's rights to equal protection and due process. The plaintiff based her equal protection claim on the "class of one" theory, that is, she alleged that she was subject to adverse employment consequences not because of her membership in an identified class of persons based on categories such as race, sex, and national origin, but simply for arbitrary, vindictive, and malicious reasons. .However, an equal protection claim based on a "class of one" theory cannot be asserted in the public employment context. With respect to the due process claim, the defendants established that the plaintiff was not deprived of a constitutionally protected property right.

Student note: The defendants established their prima facie entitlement to judgment as a matter of law dismissing the plaintiff's First Amendment retaliation claim as the conduct claimed by the plaintiff to have triggered the alleged retaliation, consisting of the filing of a prior lawsuit and the ticketing of the plaintiff's off-duty police coworker for a traffic infraction, did not constitute protected speech.

Case:  Bein v. County of Nassau. NY Slip Op 03967 (2d Dept. 2014)

 Here is the decision.

Tomorrow's issue: A certification order to file a note of issue, and dismissal.

The limitations period as applied to an at-will employee's Article 78 petition.

Practice point: The Appellate Division reversed the dismissal of the terminated employee's petition to annul the agency's action as time-barred.

 In informing petitioner by letter that she was terminated, and advising her of the possibility of review, respondent employed the same language as that used in the article 78 statute of limitations, pursuant to CPLR 217,  to inform petitioner that the result of that review would be "final and binding." The termination letter's language tracked that of paragraph V (G) of Operating Procedure 20-39, which provides that "[t]he reviewer's decision is final and binding, and is not subject to further administrative review."

The Appellate Division found that, notwithstanding the fact that the letter otherwise conveyed the effect typically associated with finality for statute of limitations purposes, there was sufficient ambiguity as to finality such that the petition must be deemed timely.

Student note:  Ordinarily, when an at-will employee's employment is terminated, the four-month statute of limitations applicable in article 78 proceedings, pursuant to CPLR 217, begins to run from the date of the termination, regardless of optional administrative review proceedings. However, where an administrative agency creates ambiguity and the impression of nonfinality, the ambiguity regarding finality is resolved against the agency.

 Case: Matter of Matter of Burch v. New York City Health & Hosps. Corp., NY Slip Op 04060

Here is the decision.

Tomorrow's issue: An alleged § 1983 violation.
 

The Sidewalk Law.

Practice point:  The Administrative Code of the City of New York § 7-210, the so-called Sidewalk Law, shifts tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner. For purposes of the Code, a tree well is not part of the sidewalk, and so the Sidewalk Law does not impose civil liability on property owners for injuries that occur in city-owned tree wells.

Student note: Rules of City of New York Department of Transportation (34 RCNY) § 2-07(b) provides that the owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending 12 inches outward from the perimeter of the hardware, and for ensuring that the hardware is flush with the surrounding street surface, pursuant to 34 RCNY § 2-07[b];[3]. The definition of the term "street" includes the sidewalk.

Case:  Alexander v. City of New York, NY  Slip Op 03964 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The limitations period as applied to an at-will employee's Article 78 petition.

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.