Struck by a bicycle, and the complaint is dismissed.

Practice point:  The Appellate Division reversed the trial court and dismissed the complaint in in this action where plaintiff was injured when a child, riding a bicycle, struck her from behind as she walked on an interior walkway of defendant's complex. Defendant submitted the testimony of a member of its private security force, who stated that defendant employed five to seven security guards during normal business hours. He stated that people traversed the property, and some "occasionally" rode bicycles, but this happened "rarely." Nevertheless, defendant had a rule against riding bicycles in the area of the incident, and there were a number of signs posting this rule. Defendant also had surveillance cameras on the interior and exterior of the property, and the security officer further stated that when someone was found riding a bicycle, either the bicycle would be confiscated, a summons would be issued, or a warning would be issued.

The Appellate Division found that the defendant had demonstrated that it provided the requisite minimal precautions to protect people from the foreseeable harm of bicycle riders, and there was nothing else that it reasonably could have done.

Student note:  Plaintiff failed to submit opposition to the motion, and the arguments she has set forth in her appellate brief are unpreserved. In any event, the Appellate Division determined that plaintiff's arguments do not present triable issues of fact that would warrant the denial of the defendant's motion.

Case:  DeJesus v. Parkchester S. Condominium Inc., NY Slip Op 05016 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A motion for leave to serve and file an amended notice of claim is denied.

Labor Law § 240(1).

Practice point:  Labor Law § 240(1) imposes on owners a nondelegable duty to protect workers from elevation-related risks at covered work-sites. In order for the statute to apply, the worker must be working on a building or structure and must be performing a covered task, such as altering or demolishing.

Student note:  The injured workers's negligence, if any, does not change the analysis.

Case:  Kharie v. South Shore Record Mgt., Inc., NY Slip Op 04738 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Struck by a bicycle, and the complaint is dismissed.

A claim for punitive damages is denied.

Practice point:  The Appellate Division found that the complaint alleges in conclusory and conjectural fashion that "defendants were grossly, willfully and wantonly negligent and acted with reckless indifference to the health and safety of plaintiff."  Such legal conclusions are insufficient, as the complaint does not allege any facts to demonstrate that the defendant  engaged in conduct which rose to the high level of moral culpability to support a claim for punitive damages.

Student note:  A plaintiff cannot maintain a punitive damages demand on the hope that discovery might provide a basis for it.  However, should discovery reveal facts supporting a claim for punitive damages, the plaintiff could move for leave to replead.

Case:  Barnes v. Hodge, NY Slip Op 04851 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Labor Law § 240(1).

Independence Day.

Qualified privilege.

Practice point:  A qualified privilege extends to any communication made by one person to another upon a subject in which both have an interest. Where a plaintiff can demonstrate that the communication made by the defendant was not made in good faith but was motivated solely by malice, the protection provided by the qualified privilege does not apply.

Student note:  Mere conclusory allegations, or charges based upon surmise, conjecture, and suspicion, are insufficient to defeat the claim of the privilege.

Case:  Bernacchi v. County of Suffolk, NY Slip Op 04725 (2d Dept. 2014)

Here is the decision.

Monday's issue: A claim for punitive damages is denied.

The traverse hearing officer's determination is reversed.

 Practice point:  Defendants' witness at the traverse hearing worked in an office at which plaintiff's law firm had previously served process without challenge. This was known to the process server, who was a lawyer at the firm. A substantial responsibility held by defendants' witness was to accept service of subpoenas served on defendants. The process server testified that he handed the summons and complaint to defendants' witness after having asked several people in defendants' office where he should go to serve the papers, and having been directed towards the area where her cubicle was located. Defendants' witness could not recall  whether she ever had an encounter with the process server, and neither did she deny it.

The Appellate Division determined that, viewed objectively, these circumstances compel the conclusion that service on defendants was calculated to give fair notice of the claims against them. The Appellate Division noted that the hearing court did not appear to base its conclusion on any credibility determinations. Instead, it found that both defendants' witness and the process server were inexperienced with service of process, leading to their mutual confusion. The Appellate Division found this to be an insufficient basis to dismiss the complaint, and it was reinstated.

 Student note:  In evaluating whether service is to be sustained, the circumstances of the particular case must be weighed. In addition, CPLR 311, pursuant to which plaintiff purported to make service, is to be liberally construed in determining whether service was made on a corporation by delivering the summons to one of the persons delineated in the statute.

Case:  Wells v. Continuum Health Partners, Inc., NY Slip Op 04850 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Qualified privilege.

Lack of subject matter jurisdiction in a Human Rights Law claim.

Practice point:  The Appellate Division determined that, because the alleged conduct occurred while plaintiff was physically situated outside of New York, none of her concrete allegations of harassing behavior or other discriminatory conduct had the impact  plaintiff in New York required to support claims under the State and City Human Rights Laws. Plaintiff's Human Rights Law claims were dismissed for lack of subject matter jurisdiction, since the statutes do not apply to the conduct at issue, pursuant to CPLR 3211[a][2]

Student note:  The Appellate Division rejected plaintiff's argument that, because she filed New York State nonresident income tax returns and paid income taxes here, she is entitled to the protections, benefits and values of New York government, including the State and City Human Rights Laws. Whether New York courts have subject matter jurisdiction over a nonresident plaintiff's claims under those statutes turns primarily on her physical location at the time of the alleged discriminatory acts, and not on her taxpayer status.

Case:  Benham v. eCommission Solutions, LLC, NY Slip Op 04695 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The traverse hearing officer's determination is reversed.

Service as jurisdictional.

Practice point:  The plaintiff bears the burden of proving that jurisdiction over the defendant was obtained Here, the plaintiff failed to submit an affidavit of a process server attesting to service of the motion at issue on the defendant pursuant to CPLR 311, as required by the order to show cause. The Appellate Division found that the Supreme Court correctly determined that the plaintiff failed to serve the defendant in the manner directed by the court, and so the plaintiff's motion was properly denied on that ground alone.

Student note:  The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with.

Case: Codrington v. Citimortgage, Inc., NY Slip Op 04460 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Lack of subject matter jurisdiction on a Human Rights Law claim.

The doctrine of res judicata.

:Practice point:  Since the complaint in the prior action was dismissed on the ground that it failed to state a cause of action due to the insufficiency of the allegations, the dismissal was not a dismissal on the merits. Therefore, the doctrine of res judicata does not bar the claims in the instant action.

Student note:  Plain and simple, where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply.

Case: Canzona v. Atanasio, NY Slip Op 04459 (2d Dept. 2014)

Here is the decision.

Monday's issue: Service as jurisdictional.

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.