"Structure" and "demolition" within the meaning of the Labor Law, and the recalcitrant worker defense.

Practice point:  Plaintiff was injured in a fall from an unsecured ladder while working in a warehouse, where his job required the removal of heavy machinery and shelves that ran from floor to ceiling across three second-floor walls, each 50 feet long and 8 feet high, and were bolted to the floors and walls.  Heavy tools were required to cut the bolts in order to break down and remove the shelves.  The removed materials, including the shelving, were so heavy that they had to be loaded in cages, which were then lifted by a pallet jack, moved to the edge of the second floor, and lowered to the first floor with a forklift.

The Appellate Division determined that the dismantling of the shelves was a sufficiently complex and difficult task to render the shelving a "structure" within the meaning of §§ 240(1) and 241(6).  In addition, dismantling the shelving was "demolition" for the purposes of the statute.

Student note:  In opposition to plaintiff's prima facie showing, defendants failed to raise an issue of fact as to whether plaintiff was the sole cause of his accident. There is no evidence that plaintiff received any immediate and active direction not to use the ladder, as is necessary in order to establish a recalcitrant worker defense.

Case:  Phillips v. Powercrat Corp., NY Slip Op 02407 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  The justifiable reliance element of a fraud claim.

A tenant-shareholder's action against the coop board.

Practice point:  The Appellate Division reversed, and granted the board's president and a board member's motion to dismiss.  In an action involving a coop, the business judgment rule provides that a court should defer to a cooperative board's determination so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith.  While decision-making based on discriminatory considerations is not protected by the business judgment rule, the Appellate Division determined that the amended complaint contained only conclusory allegations of discrimination, without any factual basis.  Moreover, the amended complaint was devoid of allegations that the defendants acted tortiously, other than within the scope of their authority as board members.

Student note:  As the plaintiffs failed to allege that the defendants entered their property without permission at any time, they failed to state a cause of action sounding in trespass.

Case:  Cohen v. Kings Point Tenant Corp., NY Slip Op 02088 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: "Structure" and "demolition" within the meaning of the Labor Law, and the recalcitrant worker defense.

A college's denial of tenure.

Practice point:  The Appellate Division affirmed the denial of the Article 75 petition to vacate an arbitration award denying petitioner's grievance of respondent college's determination to deny her tenure, and granted the cross motion to confirm the arbitration award.

Petitioner's claim that the college did not provide adequate notice of any alleged deficiencies is unavailing, as the college's bylaws and the collective bargaining agreement provided notice that publication requirements were rigorous and progressive.  In addition, there was adequate notice in the letter of concern that the college sent to petitioner five months before the tenure process, one year before her appeal, and fifteen months before the college's final determination.

The Appellate Division noted that the college's determination as to the quality and quantity of petitioner's publications was a proper exercise of academic judgment.

Student note:  An arbitrator's award will not be vacated unless it violates a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on the arbitrator's power.

Case:  Matter of Santos v. City Univ. of N.Y., NY Slip Op 02193 (1st Dept. 2015)

Here is the decision.

Monday's issue:  A tenant-shareholder's action against the coop board.

An attorney's account stated claim.

Practice point:  Plaintiff law firm established its entitlement to judgment as a matter of law on its account stated claim by demonstrating that defendant received and retained the invoices without objection for a reasonable time and made about 30 partial payments and agreed to pay the rest. In fact, defendant acknowledged that he owed the outstanding amounts, precluding his objection to how the invoices were calculated.

In opposition, defendant failed to raise an issue of material fact. Defendant offered a letter that contained nonspecific and conclusory allegations and did not comply with the retainer agreement's objection requirements.  As such, it was insufficient to defeat plaintiff's summary judgment motion.

Student note:  The Appellate Division rejected defendant's argument that the motion court decided the motion before the deadline for submitting opposition papers. Pursuant to court order, dispositive motions were to be made no later than 60 days after the note of issue was filed. This did not preclude either party from submitting motion papers prior to that time. Defendant did not suffer any prejudice as a result of his misunderstanding since he received two notices of motion and the court accepted his untimely opposition papers.

Case:  Brunelle & Hadjikow, P.C. v. O'Callaghan, NY Slip Op 02223 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A college's denial of tenure.

Res ipsa loquitur in a podiatric malpractice action.

Practice point:  The plaintiff developed a deep tissue Methicillin-resistant Staphylococcus aureus (MRSA) infection in her foot after the defendant podiatrist administered a cortisone injection into the bottom of her foot to treat her for plantar fasciitis. After a trial, the jury rendered a verdict in the defendant's favor.

The Appellate Division found that it was reversible error for the trial court to deny the plaintiff's request for a res ipsa loquitur charge.  The plaintiff presented expert testimony that a MRSA infection from an injection does not occur if the podiatrist adheres to the accepted standard of care. While the defendant presented expert testimony that an infection is a rare, but possible, complication of an injection which can occur in the absence of negligence, a plaintiff need not conclusively eliminate the possibility of all other causes of the injury to rely on res ipsa loquitur. In addition, the plaintiff presented sufficient evidence to establish, prima facie, that the instrumentalities used for the injection were all under the defendant's exclusive control at the time of the injection, and that the injury was not the result of any action of the plaintiff.

Student note:  The evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event. The doctrine derives from the understanding that some events ordinarily do not occur in the absence of negligence. To invoke the doctrine, a plaintiff must establish that the injury was caused by an agent or instrumentality within the exclusive control of defendant, and that no act or negligence on the plaintiff's part contributed to the happening of the event.  Expert testimony may be used to help the jury bridge the gap between its own common knowledge, which does not encompass the specialized knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence, and the common knowledge of physicians, which does.

Case:  Bernard v. Bernstein, NY Slip Op 02084 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  An attorney's account stated claim.

A slip and fall on the ice.

Practice point:  Defendants established their entitlement to judgment as a matter of law by submitting certified weather records and a meteorologist's affidavit showing that a winter storm was in progress at the time that plaintiff slipped and fell on ice covering the sidewalk in front of defendants' building. Plaintiff himself testified that it was sleeting at the time he fell at approximately 8 a.m., and defendants' porter stated that it had hailed through the night and a "slow rain" was falling at the time of the accident.

As plaintiff's opposing papers did not create a triable issue of fact, the Appellate Division reversed, and dismissed the complaint.

Student note: Plaintiff submitted an affidavit of an expert meteorologist who did not dispute that freezing rain was ongoing at the time plaintiff fell, but concluded that defendants should have cleared and treated the sidewalk during the previous afternoon, when it was only drizzling. However, defendants' porter was not required to clear the public sidewalk of snow or ice during freezing precipitation.  In addition, plaintiff's expert did not opine that in the 30 hours preceding the accident there was ever a four-hour lull in the storm that would give rise to defendants' duty to have cleared snow and ice from the public sidewalk, pursuant to Administrative Code of City of NY § 16-123. Finally plaintiff's testimony also provided no support for the theory that the ice was old or preexisting, as he did not recall any unusual snow or ice conditions on the sidewalk when he walked there the previous night.

Case:  Levene v. No. 2 W. 67th St., Inc., NY Slip Op 02072 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Res ipsa loquitur in a podiatric malpratice action.

Statute of limitations in a legal malpractice action.

Practice point:  The three-year limitations period is tolled by the continuous representation doctrine where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.  The doctrine's application requires clear indicators of an ongoing, continuous, developing, and dependent relationship between the client and the attorney. A predicate for the doctrine's application is continuing trust and confidence in the relationship between the parties.

Student note:  On a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint as barred by the applicable statute of limitations, the moving defendant must establish, prima facie, that the time in which to commence the action has expired.  The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

Case:  Beroza v. Sallah Law Firm, P.C., NY Slip Op 01913 (2d Det. 2015)

Here is the decision.

Tomorrow's issue: A slip and fall on the ice.

An objection to arbitration.

Practice point:  The Appellate Division affirmed the granting of defendant's motion to compel arbitration, determining that, in light of plaintiff's union's commencement of the arbitration proceedings on her behalf, any objection to compulsory arbitration was waived.

Student note:  In light of the order compelling arbitration, the motion to compel DNA testing of defendant was denied.

Case:  Pupiales v. BLDG Mgt. Co., Inc., NY Slip Op 01988 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Statute of limitations in a legal malpractice action.

CPLR 3211 and the single motion rule

Practice point:  The defendants previously moved pursuant to CPLR 3211(a) to dismiss the original complaint on the grounds that documentary evidence established a complete defense to the action, that the action was time-barred, and that the complaint failed to state a cause of action. The Supreme Court denied those branches of that motion to dismiss the causes of action to recover damages for breach of fiduciary duty and gross negligence and, upon renewal, denied those branches of the motion which were to dismiss the fraud and unjust enrichment causes of action. The common-law negligence cause of action, which was asserted in the amended complaint as the fourth cause of action, was the only one of the five causes of action asserted in the amended complaint that was not substantially identical to a cause of action asserted in the original complaint.

The Appellate Division determined that those branches of the defendants' motion which were to dismiss the first, second, third, and fifth causes of action in the amended complaint were procedurally barred by the single-motion rule, and were properly denied.

Student note:  CPLR 3211(e) provides, in pertinent part, that at any time before service of a responsive pleading is required, a party may move to dismiss a pleading "on one or more grounds set forth" in CPLR 3211(a), and that "no more than one such motion shall be permitted." This single motion rule prohibits parties from making successive motions to dismiss a pleading. The rule bars both repetitive motions to dismiss a pleading pursuant CPLR 3211(a), as well as subsequent motions to dismiss that pleading pursuant to CPLR 3211(a) that are based on alternative grounds.

Case:  Bailey v. Peerstate Equity Fund, L.P., NY Slip Op 01911 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: An objection to arbitration.

Claims for fraud and negligent misrepresentation.

Practice point:  After purchasing a pair of sneakers, plaintiff was asked to show the receipt before exiting Defendant's store. Store security advised him that it was store policy to check customers' receipts and he would not be permitted to leave without complying. Plaintiff refused and contacted the police. The police arrived and instructed plaintiff to produce the receipt and when he did, he was permitted to leave.

In pleading fraud, plaintiff alleged that defendant knowingly made a materially false statement that it was store policy for customers to show their receipts before departing the store. Plaintiff stated that defendant's employee made the statement to induce him to rely upon it and surrender his rights not to present the receipt.

The Appellate Division affirmed the dismissal of the claim, finding that plaintiff does not have a viable claim for fraud because he refused to show his receipt to store employees, offering it only to the police when they arrived and directed him to produce it. Therefore, a necessary element of a fraud claim, namely, justifiable reliance upon a false statement, has been negated.

Student note:  The Appellate Division determined that the negligent misrepresentation claim fails because plaintiff did not plead any special duty owed to him by defendant. Such a duty is a necessary element of a viable claim.

Case:  Bishop v. Henry Modell & Co., Inc., NY Slip 01980 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  CPLR 3211 and the single motion rule.

Service on New York City Health & Hospitals Corp.

Practice point:  Plaintiff's notice of claim named HHC, but Plaintiff filed the notice with the New York City Comptroller. Service on the Comptroller does not constitute service on HHC.  For purposes of service of a notice of claim, the City and HHC are separate entities.

Student note:  As plaintiff failed to serve a notice of claim, or move for leave to serve a late notice, for more than a year and 90 days after accrual of the claim, the Appellate Division affirmed the dismissal of the claim as to HHC.

Case:  Smith v. Das, NY Slip Op 01885 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Claims for fraud and negligent misrepresentation.