Entering into a contract.

Practice point:  To enter into a contract, a party must clearly and unequivocally accept the offeror's terms. If, instead, the offeree responds by conditioning acceptance on new or modified terms, that response constitutes both a rejection and a counteroffer which extinguishes the initial offer. As the counteroffer extinguishes the original offer, thereafter the offeree cannot unilaterally revive the offer by accepting it.

Student note:  Oral acceptance of a written offer can form a binding contract for the sale of real property.

Case:  Thor Props., LLC v. Willspring Holdings LLC, NY Slip Op 04237 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A petition for a delayed birth certificate.

Notice and res ipsa in a personal injury action.

Practice point:  Postal worker-plaintiff sued for damages resulting from personal injuries allegedly sustained when the mailbox receptacle unit in defendants' building fell into the wall as she was closing the unit after placing the mail in the individual boxes.

The Appellate Division affirmed the motion court's granting of defendants' motion for summary judgment. Defendants sustained their initial burden of demonstrating that they did not cause, create or have actual or constructive notice of a defect in the mailbox receptacle unit, that the defect was not visible or apparent, and that a reasonable inspection would not have revealed that the box was loose.

Student note:  The Appellate Division found that the doctrine of res ipsa loquitur is inapplicable because defendants did not have exclusive access to the mailbox receptacle unit. It was undisputed that only postal employees, like plaintiff, were given a key.

Case:  Soto v. New Frontiers 2 Hope Hous. Dev. Fund Co., NY Slip Op 04123 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Entering into a contract.

A certification order to file a note of issue, and dismissal.

Practice point:  In a certification order, the Supreme Court directed the plaintiff to file a note of issue within 90 days, and warned that the action would be deemed dismissed without further order of the court if the plaintiff failed to comply with that directive. Counsel for the plaintiff signed the order, acknowledging receipt thereof. Having received a 90-day notice, the plaintiff was required either to serve and file a timely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend the time within which to serve and file a note of issue. The plaintiff did neither, and the Appellate Division found that the the action was properly dismissed pursuant to CPLR 3216.

Student note:  The certification order had the same effect as a valid 90-day notice pursuant to CPLR 3216.

Case:  Dai Mang Kim v. Hwak Yung Kim, NY Slip Op 03972 (2d Dept. 2014)

Here is the decision.

Monday's issue: Notice and res ipsa in a personal injury action.

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.