A motion for sanctions, in the form of dismissal or, in the alternative, disqualification.

Practice point:  Dismissal of a complaint as a sanction is a penalty aimed to punish misconduct by a party to a litigation. However, as with any sanction, dismissal of a complaint must be appropriate to the conduct it aims to punish. As dismissal of a complaint deprives a litigant of a determination on the merits of a claim, it is so severe that it is generally warranted only in the most egregious of circumstances.

While disqualifying counsel is a lesser penalty than dismissal, it carries with it the serious consequence that a party is deprived of the right to be represented by its choice of counsel, warranting a broader inquiry about whether it is an appropriate sanction for the offending conduct. While the right to counsel of choice is not absolute and may be overridden where necessary, it is a valued right and any restrictions must be carefully scrutinized.  Disqualification often turns on whether the conduct complained of results in actual, or a reasonable probability of unauthorized disclosure of confidential information.

Student note:  The Appellate Division expressly rejected the argument that there are circumstances where a counsel's conduct is so egregious that a court should impose the most severe sanctions, even in the absence of actual prejudice.

Case: Roberts v. Corwin, NY Slip Op 04562 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The doctrine of res judicata.

Dismissal of conversion and contract claims.

Practice point:  The Appellate Division affirmed the dismissal of the cause of action alleging conversion of funds, since the plaintiff asserted a mere right to payment and did not allege that the defendants had unauthorized possession or control of specifically identifiable funds that allegedly had been converted.

Also affirmed was the dismissal of the cause of action alleging breach of contract. The plaintiff failed to plead the material terms of the alleged oral loan agreement by which the defendants agreed to repay or reimburse him for his payment of expenditures for the property and boat at issue.

Student note: The essential elements of a breach of contract cause of action are the existence of a contract; the plaintiff's performance pursuant to the contract; the defendant's breach of the contractual obligations; and damages resulting from the breach. The plaintiff's allegation must identify the provisions of the contract that were breached.

Case: Canzona v. Atanasio, NY Slip Op 04458 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A motion for sanctions, in the form of dismissal or, in the alternative, disqualification.

It's raining golf balls.

Practice point:  Plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on the cause of action alleging private nuisance by demonstrating that defendant has operated its golf course in a manner that has failed to sufficiently reduce the number of golf balls landing on the plaintiffs' property, producing a tangible and appreciable injury to the property that renders its enjoyment especially uncomfortable and inconvenient.

Similarly, the plaintiffs' submissions were sufficient to establish their prima facie entitlement with respect to the cause of action alleging trespass. Their submissions demonstrate that golf balls have invaded their property with such frequency and over such a long period of time, without defendant taking steps to sufficiently abate the situation, so as to amount to willfulness.

They also established, prima facie, that defendant breached its duty to exercise reasonable care in the maintenance and use of its property to prevent foreseeable injury that might occur on adjoining property by failing to take precautions in design and location, in the form of play, or in the erection of protective devices as a safeguard against injury to the plaintiffs' property.

Student note:  The elements of a private nuisance cause of action are an interference which is (1) substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act.

The essence of trespass is the invasion of a person's interest in the exclusive possession of land. The invasion of, or intrusion upon, the property interest must at least be the immediate or inevitable consequence of what the defendant willfully does, or which he does so negligently.

Case:  Behar v. Quaker Ridge Golf Club, Inc., NY Slip Op 04456 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal of conversion and contract claims.

No recovery from a fall on a slippery sidewalk.

Practice point:  Defendants made a prima facie showing of entitlement to summary judgment based upon plaintiff's testimony that he fell on a slippery sidewalk, during a period of heavy rain;  defendants' lack of prior notice of a dangerous condition;  and an expert opinion that there was no defect in the area of the fall.

Plaintiff's expert's finding lacked probative force and failed to raise a triable issue of fact as to the existence of a defective or dangerous condition in the absence of any assertion of a violation of a specific, applicable industry standard which contributed to the accident. Plaintiff's conclusory claim that a violation of 6 RCNY § 2-55(a)'s provision, concerning the maximum height for removable railings separating unenclosed sidewalk cafés, contributed to his injuries fails to raise a triable issue of fact. Likewise, plaintiff's claim that the sidewalk's condition violated Administrative Code of City of NY § 19-152(a), is unavailing. He failed to establish a causal relationship between the condition of the concrete patchwork, adjacent to the location of the fall, and the accident, and his claim that granite constituted an "unapproved non-concrete material" is unsupported.

Student note:  The mere fact that a sidewalk is inherently slippery by reason of its smoothness, or becomes more slippery when wet, does not constitute an actionable defect.

Case: Bock v. Loumarita Realty Corp., NY Slip Op 04426 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: It's raining golf balls.

Repair as opposed to routine maintenance under the Labor Law.

Practice point:  Plaintiff is a glazier whose employer directed him to replace cracked glass panels in the skylight of defendant church's steeple. To access the steeple, plaintiff and his coworkers placed an extension ladder belonging to their employer on top of the roof of the church and leaned it up against the steeple. Plaintiff had used the ladder on three prior occasions and found it to be in good condition. As plaintiff climbed the ladder, the bottom kicked out, moving away from the steeple wall. Both the ladder and plaintiff fell approximately 20 feet straight to the roof below, causing plaintiff to sustain injuries.

Plaintiff commenced this action alleging, among other things, that defendant violated Labor Law § 240(1) by failing to provide him with an adequate ladder and by failing to provide any safety harnesses or belts that would have prevented his fall.

The question is whether plaintiff was involved in repair or maintenance work. For statutory purposes,  routine maintenance work does not rise to the level of an enumerated term such as repairing or altering. In distinguishing between what constitutes repair as opposed to routine maintenance, courts will consider such factors as whether the work in question was occasioned by an isolated event as opposed to a recurring condition, whether the object being replaced was a worn-out component in something that was otherwise operable, and whether the device or component that was being fixed or replaced was intended to have a limited life span or to require periodic adjustment or replacement.

Here, plaintiff described the panes as being constructed of "heavy plate glass" with wire running through them and stated that they "do not crack or wear out over time." Plaintiff showed, without contradiction, that these panes were not being replaced as a result of normal wear and tear, as they were not expected to be regularly replaced. In fact, defendant presented no evidence that the panes ever had to be replaced or repaired from the time the steeple had been built. As an experienced glazier with over 30 years of experience, plaintiff was more than competent to state that the replacement of these panes constituted repair work, and was not routine maintenance.

The Appellate Division reversed and found that plaintiff had made out a prima facie case as to liability, and defendant failed to raise a question of fact.

Student note: A plaintiff moving for partial summary judgment must establish that § 240(1) was violated and that the violation was a proximate cause of the injuries. The plaintiff need not demonstrate that the safety devicewas defective or failed to comply with applicable safety regulations, but only that it proved inadequate to shield plaintiff from harm directly flowing from the application of the force of gravity to an object or person. The inexplicable shifting of an unsecured ladder may alone support a § 240(1) claim if a worker is caused to fall due to such shifting. A worker's prima facie entitlement to partial summary judgment on his or her § 240(1) claim may be established by proof that the ladder provided collapsed under the worker while the worker was engaged in an enumerated task.

Case:  Soriano v. St. Mary's Indian Orthodox Church of Rockland, Inc., NY Slip Op 04419 (2d Dept. 2014)

Here is the decision.

Monday's issue: No recovery from a fall on a slippery sidewalk.

Rear-end and chain collision accidents.

Practice point:  When an automobile approaches another automobile from the rear, the driver is bound to maintain a reasonably safe rate of speed and control over the vehicle, and to exercise reasonable care to avoid colliding with the other vehicle. A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision.

Student note: In chain collision accidents, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was struck from behind by the rear vehicle and propelled into the lead vehicle.

Case:  Marcellin v. Passaro, NY Slip Op 04174 (2d Dept. 2014)

Here is the decision. 

Tomorrow's issue: Repair as opposed to routine maintenance under the Labor Law.

A petition for a delayed birth certificate.

Practice point:  The Appellate Division reversed the granting of the petition seeking to direct respondents to create, file and issue a birth certificate for petitioner's deceased grandfather, and dismissed the Article 78 proceeding.

Student note: New York City Health Code (24 RCNY) § 201.11(c) prohibits, among other things, registering or issuing a delayed birth certificate for a deceased person, and so there is no legal authority for granting the petition.

Case:  Kraar v. New York City Dept. of Health, NY Slip Op 04246 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Rear-end and chain collision accidents.

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.