A motion to strike the testimony of defendant's expert.

Practice point:  The Appellate Division affirmed the denial of plaintiff's cross motion to strike the testimony of defendant's expert concerning the cause of the decedent's death. Upon receipt of defendant's 3101(d) statement expert disclosure statement, plaintiff's only objection was that the expert's qualifications failed to include the dates of his residency, which deficiency defendant then cured. Plaintiff neither rejected the document nor made any objection to the lack of specificity regarding the cause of death.

The Appellate Division determined that, having failed to timely object to the lack of specificity in defendant's expert disclosure statement regarding the cause of the decedent's death, plaintiff was not justified in assuming that the defense expert's testimony would comport with the conclusion reached by the autopsy report. The Appellate Division further determined that  plaintiff cannot now be heard to complain that defendant's expert improperly espoused some other theory of causation for which there was support in the evidence.

There was, however, a dissent.

Student note:  CPLR 3101(d)(1) requires reasonably detailed expert disclosure of the substance of the facts and opinions on which each expert is expected to testify in order to provide the plaintiff with the defendant's theories of the case in advance of trial.

Case:  Rivera v. Montefiore Med. Ctr., NY Slip Op 08469 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal of a complaint alleging discrimination under the State and City Human Rights Laws.

The denial of defendant's summary judgment motion in a Labor Law § 200 action.

Practice point:  Where, as here, a plaintiff contends that an accident occurred because of a dangerous condition at the work-site, an owner moving to dismiss Labor Law § 200 and common-law negligence claims has the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of it. Defendant failed to meet that burden and the Appellate Division affirmed the motion's denial

Student note:  The failure to make a prima showing requires the motion's denial, regardless of the sufficiency of the opposition papers.

Case:  Costa v. Sterling Equip., Inc., NY Slip Op 08391 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A motion to strike the testimony of defendant's expert.

Reviewing a Court of Claims determination in a slip-and-fall action.

Practice point:  The Appellate Division affirmed the Court's determination that claimant failed to establish that the State created, or had actual or constructive notice of, the icy condition on a walkway at the state facility where claimant fell. The State had no more than a general awareness that icy conditions had developed on the hospital grounds, which was insufficient to constitute notice of the specific condition that caused the fall.

Student note:  In reviewing a determination made after a nonjury trial, the power of the Appellate Division is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts. In a close case, the Appellate Division will bear in mind that the trial judge had the advantage of seeing the witnesses.

Case:  Atkins v. State of New York, NY Slip Op 08387 (2d Dept. 2014)

 Here is the decision.

Tomorrow's issue:  The denial of defendant's summary judgment motion in a Labor Law § 200 action.

A Labor Law § 240(1) claim.

Practice point:  Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1).

Student note:  Labor Law § 240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks.

Case:  Garcia v. Market Assoc., NY Slip Op 08400 (2d Dept. 2014)

Here is the decision.

Monday's issue: Dismissal of a complaint alleging discrimination under the State and City Human Rights Laws.

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.