Law office failure and a motion to vacate a default.

Practice point:  The Appellate Division determined that the plaintiff's bare allegation of law office failure was insufficient to show a reasonable excuse for its default.

Student note:  A party seeking to vacate an order entered upon its failure to oppose a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1].

Case:  Bank of N.Y. v. Young, NY Slip Op 09090 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Misplacing the summons and a motion to vacate.

The doctrine of assumption of risk as it relates to the duty of care.

Practice point:  The doctrine is not a defense based on a plaintiff's culpable conduct, but, instead, is a measure of the defendant's duty of care to participants in certain types of athletic or recreational activities. Under the theory, a plaintiff who freely accepts a known risk commensurately negates any duty on the part of the defendant to safeguard him or her from the risk.

Student note:  Because determining the existence and scope of a duty of care requires an examination of plaintiff's reasonable expectations of the care owed by others, the plaintiff's consent does not merely furnish the defendant with a defense; it effectively eliminates the duty of care that otherwise would exist.

Case:  Braile v. Patchogue Medford School Dist. of Town of Brookhaven, NY Slip Op 08949 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Law office failure and a motion to vacate a default.

A court's authority to reach the issue of attorneys' fees, and separate fees for appellate work.

:Practice point:  A court has no inherent authority to reach the issue of attorneys' fees sua sponte.  Rather, a court has inherent authority over attorneys' fees in two situations, namely, when an attorney asks the court to approve a fee, or a client complains about a fee.

Student note:  Where the parties expressly contemplate additional fees in connection with a successful appeal, such an award is legally and ethically permissible.

Case:  Stewart v. New York City Tr. Auth., NY Slip Op 09063 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  The doctrine of assumption of risk as it relates to the duty of care.

Defendant's summary judgment motion in a legal malpractice action.

Practice point:  Defendant-attorney did not meet its burden of presenting evidence in admissible form establishing that plaintiff is unable to prove at least one of these essential elements of the claim, namely, that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages.

Student note:  A defendant cannot sustain its burden merely by pointing out gaps in plaintiff's proof.

Case:  Bivona v. Danna & Assoc., P.C., NY Slip Op 08948 (2d Dept. 2014)

Here is the decision.

Monday's issue: A court's authority to reach the issue of attorneys' fees, and separate fees for appellate work.

Court holiday.

The courts are closed to mark New Year's Day.

Tomorrow's issue:  Defendant's summary judgment motion in a legal malpractice action.

A fall on the stairs, and summary judgment denied.

Practice point:  Defendant failed to eliminate triable issues of fact as to whether it had constructive notice of the allegedly dangerous condition for a sufficient length of time before the accident to have permitted it to discover and remedy it.  In support of its motion, defendant submitted a transcript of plaintiff's deposition testimony, in which she stated, in response to a question asking her to identify the cause of the fall, that the subject stairs were shaky and the carpet was loose. So, contrary to defendant's contention, plaintiff sufficiently identified the cause of the fall. In addition, plaintiff testified that the stairs had been shaky for years and that she complained about the stairs to her supervisor two or three years before the accident.

Student note:  Although defendant also submitted transcripts of the superintendent's and porter's deposition testimony indicating that they never noticed any dangerous condition, this simply raised a question of credibility which may not be resolved on a motion for summary judgment.

Case:  Beharovic v. 18 E. 41st St. Partners, Inc., NY Slip Op 08946 (2d Dept. 2014)

Here is the decision.

 Friday's issue: Defendant's summary judgment motion in a legal malpractice action.

A slip-and-fall on water in the lobby.

Practice point:  In affirming the dismissal of the complaint, the Appellate Division noted that the defendants were not required to cover all of the floor with mats or continuously mop up all moisture resulting from the tracked-in rain.

Student note:  A general awareness that water might be tracked into a building when it rains is insufficient to impute to the defendants constructive notice of the particular dangerous condition.

Case:  Aguila v. Fox Hills Partners, LLC, NY Slip Op 08945 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A fall on the stairs, and summary judgment denied.

Dismissal of Labor Law claims.

Practice Point:  The Appellate Division reversed, and dismissed the complaint in its entirety, in this action where plaintiff was injured when he stepped into a hole on the flatbed trailer on which he was working.

Defendants demonstrated their prima facie entitlement to summary judgment dismissing the § 200 claims, as the uncontroverted evidence shows that defendants neither supervised or controlled plaintiffs' work, and that they had no actual or constructive notice of the hole in the flatbed trailer.

As for the § 240(1) claim, as plaintiff was working on a flatbed trailer, he was not exposed to any gravity-related risk arising from his work.  In fact, there is nothing in the record as to the manner of safety device that should have been provided to plaintiff.

While plaintiffs submitted in their pleadings and bills of particulars at least a dozen specific Industrial Code violations in support of their § 241(6) claim, only two were contested on appeal, and so the remainder are deemed abandoned and dismissed.

Plaintiffs allege a violation of Industrial Code § 23-1.7(b)(1)(i), which pertains to hazardous openings. However, that regulation has been construed to apply to openings that persons can fall through in their entirety. The hole at issue here does not meet this definition.

Industrial Code § 23-9.2(a) pertains to power-operated equipment. However, the flatbed trailer at issue here is not a piece of power operated equipment, and its attachment to a truck does not transform it into such.

Student note: As a result of the dismissal of the complaint in the entirety, plaintiff's spouse has no derivative claims.

Case:  Brown v. New York-Presbyterian HealthCare Sys., Inc., NY Slip Op 08912 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A slip-and-fall on water in the lobby.

Snow, ice, and a homeowner's liability.

Practice point:  Owners of owner-occupied single-family homes are exempt from liability imposed pursuant to section 7-210(b) of the Administrative Code of the City of New York for negligent failure to remove snow and ice from the abutting public sidewalk. However, they can be held liable where they, or someone on their behalf, undertook snow and ice removal efforts which made the natural conditions more hazardous.

Student note:  A property owner that elects to engage in snow removal must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm.

Case:  Arashkovitch v. City of New York, NY Slip Op 08793 (2d Dept. 2014)

 Here is the decision.

Monday's issue: Dismissal of Labor Law claims.

Court holiday.

The courts are closed to mark Christmas Day.

Tomorrow's issue: Snow, ice, and a homeowner's liability.

Summary judgment in a personal injury action.

Practice point:  To prevail on the motion on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but also that he or she was free from comparative fault.

Student note:  The movant bears the initial burden of establishing prima facie entitlement to such relief, tendering sufficient evidence to eliminate any material issues of fact from the case.

Case:  Anjum v. Bailey, NY Slip Op 08792 (2d Dept. 2014)

Here is the decision.

Friday's issue:  Snow, ice, and a homeowner's liability.