Contriutory negligence and summary judgment on a Labor Law claiim.

Practice point:  The Appellate Division affirmed the denial of that branch of plaintiff's motion which was for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action. While a worker's contributory negligence is not a defense to a § 240(1) claim, liability does not attach if a plaintiff's actions were the sole proximate cause of the injuries.

Here, while plaintiff made out a prima facie statutory violation, defendants produced evidence that a safety harness and line were available to plaintiff; that he knew that he was required to anchor the line on the floor; and that the anchors, harness, and line would have prevented him from falling. Defendants also produced evidence that plaintiff consciously decided not to anchor the line as instructed. Defendant's submissions were sufficient to raise a triable issue of fact as to whether plaintiff's actions were the sole proximate cause of the accident.

Student note:  The statute imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites. To prevail on the cause of action, a plaintiff must establish that there was a statutory violation which was a proximate cause of the injuries.

Case:  Bascombe v. West 44th St. Hotel, LLC, NY Slip Op 00712 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Struck while crossing in the crosswalk.

Piercing the corporate veil.

Practice point:  A plaintiff seeking to pierce the corporate veil must demonstrate that a court in equity should intervene because, in the transaction at issue, the owners exercised complete domination over the corporation, and thereby abused the privilege of doing business in the corporate form, with a resulting injury to the plaintiff.

Student note:  The doctrine is an exception to the general rule that a corporation exists independently of its owners, who are not personally liable for its obligations, and that individuals may incorporate for the express purpose of limiting their liability.  The doctrine provides for the imposition of individual liability on owners for the obligations of their corporation in order to prevent fraud or to achieve equity.

Case:  AZTE, Inc. v. Auto Collection, Inc., NY Slip Op 00711 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Contributory negligence and summary judgment on a Labor Law claim.

An abutting landowner's liability for a fall on a public sidewalk.

Practice point:  The Appellate Division affirmed the granting of defendant landowner's summary judgment motion.  While the local ordinance requires an  abutting landowner to keep the sidewalk in good and safe repair, it does not specifically impose tort liability for a breach of that duty.

Student note:   Unless a statute or ordinance clearly imposes liability upon an abutting landowner, only a municipality may be held liable for the negligent failure to maintain a public sidewalk.

Case:  Ahdout v. Great Neck Park Dist., NY Slip Op 00710 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Piercing the corporate veil.

Summary judgment on Labor Law claims, denied in part and granted in part.

Practice point:  The Appellate Division affirmed the denial of that portion of defendants' motion seeking dismissal of plaintiff's Labor Law § 200 and common law negligence claims. There are questions of fact concerning whether the defendant property owner had actual or constructive notice of the icy condition that allegedly caused plaintiff, a core driller employed by a nonparty, to slip and fall. 

The Appellate Division affirmed the dismissal of plaintiff's Labor Law § 241(6) claim insofar as it was predicated on a violation of Industrial Code 23-1.7(d). This regulation has no application here, as plaintiff fell in a parking lot, not "floor, passageway, walkway, scaffold, platform or other elevated working surface," within the purview of 12 NYCRR 23-1.7(d).

Student note:  On the § 200 and common law negligence claims.the Appellate Division found questions of fact as to whether a geotechnical engineering firm hired to assure compliance with construction plans and specifications, had control over plaintiff's work and the work site, in which case summary judgment is precluded.

Case:  Borner v. Fordham Univ., NY Slip Op 00696 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  An abutting landowner's liability for a fall on a public sidewalk.

A successful motion for leave to file a late notice of claim.

Practice point:  The Appellate Division affirmed the granting of the motion in this action for personal injuries allegedly suffered by petitioner when he was involved in a multi-vehicle accident. Although petitioner failed to proffer a reasonable excuse for his delay in timely serving a notice, he demonstrated that respondent had actual notice of the essential facts constituting his claim. The police department's accident reports and records, which include a witness statement from a Sanitation supervisor, sufficiently connected the accident to the City's negligence in maintaining the road. As the reports and records show that the incident was caused by an icy condition on the roadway, the City was sufficiently apprised of petitioner's claim.

 Student note:  Any alleged prejudice is undermined by the police department's contemporaneous investigation, which included interviewing witnesses and taking photographs of the location as it existed at the time of the accident.  Even if the City might be prejudiced by a delay in seeking witnesses who are knowledgeable about the road maintenance procedures at the time of the accident, Sanitation's road inspection and maintenance records are available.

Case:  Sosa v. City of New York, NY Slip Op 00615 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Summary judgment on Labor Law claims, denied in part and granted in part.

A condominium board member's individual liability.

Practice point:  In moving to amend the complaint, plaintiff's proposed claims were barred to the extent that they are palpably insufficient or patently devoid of merit. The claim that board members violated the bylaws is insufficient, as such a violation is effectively a breach of contract and participation in a contract does not give rise to individual director liability. The cause of action alleging that the board violated the bylaws by failing to muster a quorum of unit owners for the annual election of board members is insufficient, as plaintiff cites to no authority imposing such a duty on the board. 

In addition, the business judgment rule, which applies to a condominium's board of directors, bars the cause of action alleging that the board acted outside the scope of its authority under the bylaws by failing to get the unit owners' approval for an improvement costing more than $10,000.  The bylaw provision on which plaintiff relies is not applicable to the elevator project at issue, as the project did not constitute an improvement, but was merely the replacement of existing building components that had fallen into a state of disrepair.

The business judgment rule also bars the cause of action alleging that the board acted in bad faith and for an improper purpose by wasting the condominium's funds on unnecessary litigation with the Sponsor. The bylaws give the board the power to negotiate and settle "all claims and actions relating to the Condominium." The issues of how aggressive the board should be toward the Sponsor, and whether it should discontinue a lawsuit against the Sponsor, are matters of business judgment.

Student note:  A movant's mere lateness is not a barrier to the amendment of the complaint.

Case:  Pomerance v McGrath, NY Slip Op 00466 (1st Dept. 2015)

Here is the decision.

 Monday's issue: A successful motion for leave to file a late notice of claim.

A defendant's summary judgment motion in a slip-and-fall action.

Practice point:  A defendant can establish prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff did not know what caused the fall.

Student note:  In determining a defendant's motion for summary judgment, the court must view all of the evidence in the light most favorable to the nonmoving plaintiff, and must resolve all reasonable inferences in the plaintiff's favor.

Case:  Shih v. Sanford Tower Condo, NY Slip Op 00488 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A condominium board member's individual liability.

A marching band, a fall, and the doctrine of assumption of the risk.

Practice point:  The injured plaintiff is a music teacher who was directing a school marching band during a parade that took place on a public street.  While directing the band, plaintiff, who was required to walk backwards, allegedly fell due to a defect in the roadway and was injured. Defendant municipality moved to dismiss, invoking the doctrine of primary assumption of the risk, and the Appellate Division affirmed the motion court's denial of the motion.

The Appellate Division found that the doctrine is inapplicable in this case, as it cannot be said that by leading a marching band in a parade on a public street, the injured plaintiff consented to the alleged negligent maintenance of the street by the County.  Extending the doctrine to cases involving persons injured while traversing streets and sidewalks would create an unwarranted diminution of the general duty of both public and private landowners to maintain their premises in a reasonably safe condition.

Student note:  As defendant failed to make out a prima facie case for entitlement to summary judgment, the sufficiency of opposing papers need not be considered.

Case:  Behr v. County of Nassau, NY Slip Op 00485 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A defendant's summary judgment motion in a slip-and-fall action.

Application of the storm in progress rule.

Practice point:  Plaintiff alleges that he was injured after slipping and falling on an icy condition on the landing of an exterior stairway of the apartment building in which he resided. He commenced this action against the owners and an individual who maintains the property. The Appellate Division reversed the motion court's denial of defendant's summary judgment motion, and dismissed the complaint..

In their moving papers, defendants submitted a transcript of plaintiff's deposition testimony, the individual defendant's affidavit, and certified meteorological records, which demonstrated, prima facie, that it was sleeting at the time of the occurrence. Accordingly, the Appellate Division determined that the storm in progress rule applied.

Student note:  Under the rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.

Case:  Fisher v. Kasten, NY Slip Op 00491 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A marching band, a fall, and the doctrine of assumption of the risk.

Summary judgment in a personal injury action, and feigned issues of fact.

Practice point:  Defendant established its entitlement to judgment as a matter of law dismissing the complaint through the submission of plaintiff's deposition testimony, which established that he was unable to identify the cause of his fall. While plaintiff testified that the staircase handrail ended before the last step, a determination that this, or any of the other alleged staircase defects, was the proximate cause of the plaintiff's accident, rather than a misstep or loss of balance, would be speculative. In addition, as plaintiff was carrying a pot weighing at least 35 to 40 pounds with both hands as he went down the staircase, any alleged defect in the handrail was not a proximate cause of the fall.

Student note:  Plaintiff's opposing papers were unavailing. Plaintiff's affidavit presented what clearly appeared to be feigned issues of fact designed to avoid the consequences of his earlier deposition testimony, and, therefore, was insufficient to defeat the motion.

Case:  Bardales v. VAM Realty Corp., NY Slip Op 00484 (2d Dept. 2015)

Here is the decision.

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

An application to stay arbitration.

Practice point:  An application to stay arbitration is made, pursuant to CPLR 7503[c], when the petition is filed, not when it is served. The petition must be served within 20 days from the date that the petitioner received the demand for arbitration.

Student note:  The question as to when the application is made, within the meaning of the statute, is a purely legal, and so it could be considered by the Appellate Division for the first time on appeal.

Case:   Matter of Travelers Prop. Cas. Co. of Am. v. Archibald, NY Slip Op 00465 (1st Dept. 2015)

Here is the decision.

Monday's issue: Summary judgment in a personal injury action, and feigned issues of fact.