Evidence of inspection and cleaning as it relates to constructive notice.

Practice point:  The Appellate Division reversed, and reinstated this premises liability claim. Although defendant presented evidence that it neither created nor had actual notice of the alleged condition, it failed to demonstrate that it did not have constructive notice of the condition, as defendant failed to tender any evidence establishing when the accident area was inspected and cleaned prior to the accident.

Student note:  In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of the condition.

Case:  Beri v. Chung Fat Supermarket, Inc., NY Slip Op 00837 (2d Dept. 2015)

Here is the decision.

Friday's issue:  A motion to change venue denied.

Supplemental bills of particulars and discovery rights.

Practice point:  After plaintiff exercised the right to serve a second supplemental bill of particulars concerning continuing disabilities in the cervical spine, defendant was entitled to newly exercise all discovery rights as to such newly alleged continuing disabilities, pursuant to CPLR 3043[b].

Student note:  Defendant's discovery rights include the right to take a further deposition, pursuant to CPLR 3106, and to notice a physical examination by a designated physician, pursuant to CPLR 3121[a]. In the absence of a showing of bias or prejudice, the further physical examination need not be conducted by the physician who conducted the initial examination.

Case:  Brown v. Brink El. Corp., NY Slip Op 00815 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Evidence of inspection and cleaning as it relates to constructive notice.

Struck while crossing in the crosswalk.

Practice point:  Plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that defendant negligently failed to yield the right-of-way, and that the injured plaintiff was free from comparative fault.  In support of their motion, plaintiffs submitted the the injured plaintiff's deposition, during which she testified that she stopped at the intersection, observed traffic and the pedestrian "WALK" signal in her favor before entering the street, and crossed within the crosswalk while the pedestrian crossing signal remained in her favor. She also testified that she was more than halfway across the street, closer to the other side and still within the crosswalk, when she was struck on the right side by the defendant's vehicle as it turned left into the intersection, causing her to fall to the ground. This testimony demonstrated that the injured plaintiff entered the intersection after exercising due care. Plaintiffs submitted the defendant's deposition testimony in which he testified that he did not remember looking for pedestrians when he was stopped on before making the left turn, he did not see the injured plaintiff until he saw her on top of his vehicle's hood even though he had an unobstructed view of the roadway, and, after the impact, the injured plaintiff slid off the front of his vehicle to the ground. Although the defendant later testified that the injured plaintiff was not within the crosswalk at the time of impact, this claim was speculative in view of his admission that he did not see the injured plaintiff until the impact had already occurred.

Student note:  To prevail on summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault, since there can be more than one proximate cause of an accident. Once the movant establishes entitlement to judgment as a matter of law, the burden shifts to the opposing party to submit sufficient evidence to raise a triable issue of fact as to the movant's comparative fault.

Case:  France Herly Bien-Aime v. Clare, NY Slip Op 00713 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Supplemental bills of particulars and discovery rights.

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.