Setting aside a jury verdict.

Practice point:  The Appellate Division affirmed plaintiff's motion, pursuant to CPLR 4404, to set aside the verdict as contrary to the weight of the evidence, and for a new trial. The Appellate Division determined that a fair interpretation of the evidence does not support the jury's finding that the defendant was not negligent. The defendant testified that, when she was stopped at the intersection, her view to her left, the direction from which the injured plaintiff was coming, was obstructed, and yet she proceeded. The fact that the defendant proceeded into the intersection without having a clear view of the traffic and without yielding the right-of-way after a stop sign demonstrated that she violated Vehicle and Traffic Law §§ 1142(a) and 1172(a). The jury could not properly disregard these violations, as they constitute negligence as a matter of law.

Student note: A jury verdict will not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence. It is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses.

Case:  Zhubrak v. Petro, NY Slip Op 08332 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Reviewing a Court of Claims determination in a slip-and-fall action.

A training injury where plaintiff had signed a release.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss this action where plaintiff allegedly sustained injuries while engaged in a personal training program, under a trainer's supervision and instruction, at a one-on-one training facility owned and operated by defendant. Plaintiff alleges that the personal trainer negligently instructed and supervised him in the lifting of an excessive amount of weight.

Plaintiff had executed a release wherein he acknowledged that there were "inherent risks in participating in a program of strenuous exercise" and released defendant from "all claims . . . which [plaintiff]...may have against [defendant] . . . for all injuries . . . which may occur in connection with my participation in the program."

However, the Appellate Division found that the language of the release does not reflect a clear and unequivocal intent to limit liability for negligence. While the release warned of the risks inherent in undergoing a strenuous exercise program, it does not exempt defendant from liability for injury which may result from its failure to use due care in its training methods.

Student note:  General Obligations Law § 5-326 does not bar enforcement of this release, as defendant's facility is an instructional, and not a recreational, one.

Case:  Kim v. Harry Hanson, Inc., NY Slip Op 08229 (1st Dept. 2014)

Here is the decision.

Monday's issue: Setting aside a jury verdict.

A CPLR 4404(a) motion.

Practice point:  The motion here raises issues of errors in the trial court's charge and verdict sheet. In its instructions, the trial court must state the law relevant to the particular facts in issue. A set of instructions that confuses or incompletely conveys the appropriate legal principles to be applied in a case requires a new trial.

Student note: In considering such a motion, the court will decide whether substantial justice has been done, and must look to common sense, experience, and sense of fairness in deciding the motion.

Case:  Ali v. City of New York, NY Slip Op 08310 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A training injury where plaintiff had signed a release.

Notice in a slip and fall action

Practice point:  In support of its motion to dismiss, defendant submitted a transcript of the injured plaintiff's deposition testimony and argued that she was unable to identify the cause of her fall. However, at deposition, the injured plaintiff, with the aid of accident scene photographs, identified the uneven portion of the sidewalk abutting the liquor storefront that caused her to trip and fall. So, the Appellate Division determined that defendant failed to make a prima facie showing that the sidewalk was not in a hazardous condition and that the injured plaintiff's fall was not proximately caused by its negligence in failing to remedy the defect.

As defendant did not establish its entitlement to judgment as a matter of law, there was no need to review the sufficiency of the plaintiffs' opposition papers.

Student note:  A plaintiff's inability to identify the cause of his or her fall is fatal to the cause of action.

Case: Alayev v. Juster Assoc., LLC, NY Slip Op 08309 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A CPLR 4404(a) motion.

Reassignment to another Part and summary judgment.

Practice point:  The controlling preliminary conference order directed that summary judgment motions were to be submitted within 120 days of the filing of the note of issue. The matter then was reassigned to another Part, whose rules provide for a 60-day time limit. However, that did not eliminate the provision of the preliminary conference order, in the absence of a further order or directive explicitly providing for a reduced time limit, or some other direction that the time limits of the new Part's rules would supersede the preliminary conference order.

Student note:  CPLR 3212(a) provides that unless the court sets another date, a motion for summary judgment must be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.

Case:  Freire-Crespo v. 345 Park Ave. L.P., NY Slip Op 08106(1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Notice in a slip and fall action.

The heightened pleading standard for fraud.

Practice point:  The Appellate Division affirmed dismissal of the fraud claim, as plaintiff did not satisfy the heightened pleading standard under CPLR § 3016(b). Plaintiff failed to identify any allegedly false representations that defendant made with the intent to induce plaintiff's investment.

Student note:  The Appellate Division found that the fraudulent inducement claim duplicates the breach of contract claim because plaintiff has not alleged any representation that is collateral to the contract. A fraud-based claim is duplicative of breach of a contract claim when the only fraud alleged is that the defendant was not sincere when it promised to perform under the contract.

Case:  MMCT, LLC v. JTR Coll. Point, LLC, NY Slip Op 08103 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Reassignment to another Part and summary judgment.

Tree wells, ownership, and liability.

Practice point:  Administrative Code of the City of New York § 7-210, which became effective on September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner.  However, a tree well is not part of the sidewalk for purposes of that Code section.

Student note:  Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land.

Case:  Avezbakiyev v. Champion Commons, LLC, NY Slip Op 07966 (2d Dept. 2014)

Here is the decision.

Monday's issue: The heightened pleading standard for fraud.

Court holiday.

The courts are closed to mark Thanksgiving Day.

Tomorrow's issue:  Tree wells, ownership, and liability.

Medical malpractice, summary judgment, and a battle of the experts.

Practice point:  Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such conflicting expert opinions will raise credibility issues which can only be resolved by a jury.

Student note:  However, a plaintiff's expert's affidavit that is conclusory or speculative is insufficient to raise a triable issue of fact in opposition to a defendant's prima facie showing of entitlement to judgment as a matter of law in a medical malpractice action.

Case:  Barrocales v. New York Methodist Hosp., NY Slip Op 07606 (2d Dept. 2014)

Here is the decision.

Friday's issue: Tree wells, ownership, and liability.

A fall on the ice.

Practice point:  The Appellate Division reversed and dismissed the complaint in this action where plaintiff allegedly slipped and fell on an icy condition on defendant's property. Defendant's supervisor of grounds testified that he and his crew had shoveled snow, removed ice, and salted and sanded the parking lot after a snow fall the day before the accident, and that any icy condition was addressed. This evidence showed that defendant did not have actual or constructive notice of the icy condition.

In opposition, plaintiff presented no evidence that defendant created the condition, that it was readily apparent, or that it was present for a sufficiently long period of time so that defendant had an opportunity to remedy the alleged hazard. Nor did plaintiff describe with any specificity the alleged condition that caused him to fall, from which it might be inferred, without speculation, that it was visible and apparent, particularly in view of the testimony of the supervisor of grounds that he had cleared the area and no snow or ice remained.

Student note:  While the issue was not addressed by the motion court, the Appellate Division found no triable issue as to whether the lighting in the parking lot contributed to plaintiff's fall. The record shows that defendant's supervisor of grounds inspected the exterior lights several days prior to plaintiff's fall and found them to be functioning properly, and plaintiff did not submit any contradictory evidence.

Case:  Vidal v. City of New York, NY Slip Op 07591 (1st Dept 2014)

Here is the decision.

Tomorrow's issue:  Medical malpractice, summary judgment, and a battle of the experts.

CPLR 3103(a) and an infant plaintiff's deposition.

Practice point:  The Appellate Division determined that the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' cross motion which was for a protective order pursuant to CPLR 3103(a) preventing the infant plaintiff from being deposed. Contrary to the plaintiffs' contention, the court did not err in determining that the infant plaintiff is competent to testify without conducting a preliminary examination.

Student note:  The Appellate Division agreed with the Supreme Court's determination that, in light of the infant plaintiff's fragile condition, the parties must work with their experts to put in place guidelines so as to lessen the stress and trauma on the infant plaintiff during the deposition.

Case:  Serrano v. Lutheran Social Servs. of Metro. N.Y., Inc., NY Slip Op 07491 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A fall on the ice.