Trivial defects.

Practice point:  Property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub a toe, or trip. There is no minimal dimension test or per se rule that the condition must be of a certain height or depth in order to be actionable. In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect, in addition to the time, place and circumstances of the injury. Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable.

Student note:  Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case, and is a question of fact for the jury to decide.

Case:  Adler v. QPI-VIII, LLC, NY Slip Op 00320 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: An application to stay arbitration.

A plaintiff's motion for summary judgment in a negligence action.

Practice point: As there can be more than one proximate cause of an accident, a plaintiff must establish, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault. Typically, the issue of comparative fault is a question for the jury.

Student note:  In determining the motion, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in its favor.

Case:  Adams v. Bruno, NY Slip 00319 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Trivial defects.

Premises liability when a guest falls.

Practice point:  Plaintiff allegedly was injured when he stepped off a retaining wall on the outdoor premises of defendant's residence. Plaintiff alleges that he could not see the retaining wall at the time of the accident due to a lack of illumination. Plaintiff's bill of particulars alleges that defendant was negligent in "caus[ing] a dangerous condition to arise by switching off the lights on the soffit of the porch fronting the lawn and on the side of the house and on the post lamp situated on the lawn." After depositions, defendant moved for summary judgment on the grounds that she did not create the allegedly dangerous condition by turning off the lights, and that she did not have actual or constructive notice that the lights had allegedly been turned off.

In support of the motion for summary judgment, defendant submitted a transcript of her deposition testimony. She testified that the lights were turned on at the time of the accident, and that she was the only person who had access to the light switches. In addition, defendant submitted plaintiff's deposition testimony that the lights were on when he arrived at the residence, but that they had been turned off when he fell off the retaining wall as he tried to walk back to his car.

The Appellate Division found a triable issue as to whether defendant turned off the lights, based on plaintiff's testimony that the lights were off at the time of the accident, combined with defendant's testimony that she was the only person with access to the light switches. Defendant failed to sustain her burden of establishing, prima facie, that she did not create the allegedly dangerous condition by turning off the lights.

Student note:  A defendant who moves for summary judgment in a premises liability case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Case:   Guilfoyle v. Parkash, NY Slip Op 09104 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: A plaintiff's motion for summary judgment in a negligence action.

Court holiday.

The courts are closed.

Tomorrow's issue:  Premises liability when a guest falls.

Disqualification of counsel.

Practice point:  A movant seeking disqualification of opposing counsel bears a heavy burden  As a party has a right to be represented by counsel of its choice, any restrictions on that right will be carefully scrutinized.  This right will be balanced against a potential client's right to have confidential disclosures made to a prospective attorney subject to the protections afforded by an attorney's fiduciary obligation to keep confidential information secret, pursuant to New York Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.18.

The court will consider whether a motion to disqualify, made during ongoing litigation, is made for tactical purposes, such as to delay litigation and deprive an opponent of quality representation. The decision of whether to grant a motion to disqualify is discretionary with the motion court.

Student note:  Rule 1.6(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) defines "[c]onfidential information" as "information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential."

Case:  Mayers v. Stone Castle Partners, LLC, NY Slip Op 00295 (1st Dept. 2015)

Here is the decision.

Tuesday's issue: Premises liability when a guest falls.

Application of the storm-in-progress rule.

Practice point:  The Appellate Division reversed the motion court and found that there were issues of fact as to the applicability of the storm in progress rule. In support of its summary judgment motion, defendant submitted an affidavit by a certified meteorologist who stated that on the day of plaintiff's accident, from midnight until approximately 2 p.m., there was a winter storm. Plaintiff's accident happened at approximately 11:30 a.m. However, the weather data from one of the three location sources on which the meteorologist based his analysis also shows that the last snowfall was light and ceased at 6:25 a.m. and that freezing rain fell until 8:27 a.m. and did not start falling again until 11:35 a.m. A surveillance video shows that there was no precipitation at the time of plaintiff's fall.

The Appellate Division found triable issues of fact as to whether plaintiff's accident occurred while the storm was still in progress or whether there was a significant lull in the storm, and whether the three hours that elapsed between the last freezing rain and plaintiff's accident afforded defendant a reasonable opportunity to clear the steps on which plaintiff fell.

In addition, the record presents triable issues of fact as to whether the icy condition that caused plaintiff's fall existed prior to the storm, and whether defendants lacked notice of the preexisting condition. The affidavit of defendant's expert states that at the start of the day "approximately 17 inches of snow and ice cover was present on untreated, undisturbed and exposed outdoor surfaces in the vicinity of the subject area." While the expert states that frozen precipitation fell intermittently during the day of the accident, he did not state that the alleged icy condition on the steps resulted from that precipitation and not from remnants of ice that may have remained on the steps from the prior snowfalls.

Finally, plaintiff and her son testified that the steps had been icy for some days before the accident. Defendant submitted no evidence as to when the steps had last been inspected or cleaned of snow and ice or as to the condition of the steps on the day of the accident or the days immediately preceding it. Its superintendent's testimony about its general cleaning procedures alone is insufficient to establish that defendant lacked notice of the alleged condition before the accident. 

Student note:  A temporary lull or break in the storm at the time of the accident does not necessarily establish a reasonable opportunity to clear away the hazard. However, if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and storm-in-progress rule will not be applied.

Case:  Ndiaye v. NEP W. 119th St. LP, NY Slip Op 00279 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Disqualification of counsel.

Unambiguous language in a stipulation controls.

Practice point:  The Appellate Division reversed the motion court and determined that defendants-appellants were entitled to a declaration that the parties' December 1, 2010 stipulation had expired and was unenforceable. In the stipulation, the parties agreed that the closing date of the sale of the property should take place no later than May 31, 2011. The motion court found that the parties' intent was not to close by the date set forth in the stipulation, but, rather, the intent was to move the sale forward to a closing within a reasonable time. The Appellate Division held that the parties' intent should have been determined from the unambiguous language of the stipulation, as it is a well recognized precept of contract construction that the best evidence of what parties to a written agreement intend is what they say in their writing,

Student note:  Where, the term in a stipulation is not ambiguous, it is reversible error for the court to consider extrinsic evidence such as the conduct of the parties.

Case:  Bank of Am. N.A. v. Chau T. Lam, NY Slip Op 00282 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Application of the storm-in-progress rule.

Constructive notice and a defendant's motion for summary judgment ina slip and fall action.

Practice point:  A defendant has constructive notice of a dangerous condition when the condition has been visible and apparent long enough for the defendant to have discovered and remedied it. To meet its burden on the issue of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell. Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question.

Student note:  A defendant moving for summary judgment dismissing the complaint in a slip-and-fall case must establish, prima facie, that it did not create the dangerous condition that caused the plaintiff's injuries and had neither actual nor constructive notice of the condition when the plaintiff was injured.

Case:  Garcia-Monsalve v. Wellington Leasing, L.P., NY Slip Op 09102 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Unambiguous language in a stipulation controls.

An employer's liability for an employee's bad acts.

Practice point: The Appellate Division determined that the complaint fails to state a cause of action for conversion, and affirmed dismissal. The employee took property from plaintiffs' apartment while he was supposed to be installing a cable box in the neighboring apartment. His conduct was not in furtherance of the defendant's business and within the scope of his employment, but, instead, was based on his own personal motives.

Student note:  Plaintiffs argue that the defendant can be held vicariously liable for its employee's tortious conduct because the conduct was foreseeable. However, in determining the threshold legal question, namely, the scope of the defendant's duty to plaintiffs, the Appellate Division determined that the harm to plaintiffs was not within the reasonably foreseeable risks of the defendant's sending its employee to work in the neighboring apartment.

Case:  Sterk-Kirch v. Uptown Communications & Elec., Inc., NY Slip Op 00215 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Constructive notice and a defendant's motion for summary judgment in a slip and fall action.

The recovery of attorneys' fees in a landlord-tenant suit.

Practice point:  Under Real Property Law § 234, when a residential lease provides for a landlord's recovery of attorneys' fees resulting from a tenant's failure to perform a lease covenant, a reciprocal covenant is implied requiring the landlord to pay the tenant's attorneys' fees incurred as a result of the tenant's successful defense of an action or summary proceeding commenced by the landlord arising out of the lease.

Student note:  To support the award of fees, the tenant must be the prevailing party, that is, the result must be substantially favorable to the tenant.

Case:  Matter of 251 CPW Hous. LLC v. Pastreich, NY Slip Op 00208 (1st Dept. 2015)

Here is the decision.

Monday's issue: An employer's liability for an employee's bad acts.

Misplacing the summons and a motion to vacate.

Practice point:  A defendant moving to vacate a default in appearing or answering the complaint pursuant to CPLR 5015(a)(1) must establish a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense (see CPLR 5015[a][1]. Here, the Appellate Division determined that the defendant's conclusory allegations that it "misplaced" the summons and complaint, as well as the plaintiff's motion for leave to enter a default judgment against it and the order granting that motion, did not constitute a reasonable excuse for its default. In addition, the insurance carrier's lengthy delay before defending the action, without more, was insufficient to establish a reasonable excuse.

Student note:  As the defendant failed to demonstrate a reasonable excuse for its default, the Appellate Division did not consider whether it proffered a potentially meritorious defense to the action.

Case:  Blythe v. BJ's Wholesale Club, Inc., NY Slip Op 09094 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The recovery of attorneys' fees in a landlord-tenant suit.