The arbitrability of a fee dispute.

Practice point:  The Appellate Division affirmed the Supreme Court's conclusion that the plaintiff could not seek de novo review on the merits of an attorney-client fee dispute that was previously submitted for arbitration. Under the terms of the parties' retainer agreement and the Rules of the Chief Administrator of the Courts, the plaintiff's election to resolve the fee dispute by arbitration is binding upon both attorney and client, and reviewable pursuant to CPLR article 75.  The Appellate Division found nothing in the record to supports the plaintiff's contention that the parties modified the retainer agreement, or elected to proceed to arbitration in a manner that was inconsistent with the retainer agreement or 22 NYCRR Part 136.

Student note:  A challenge to the confirmation of an arbitration award requires a showing that the arbitrators exceeded their power or so imperfectly executed the arbitration that a final and definite award upon the submitted matter was not made, pursuant to CPLR 7511[b][iii].

Case:  Dermigny v. Harper, NY Slip Op 02721 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Lave to amend the complaint to assert malicious prosecution.

A fall at a bus stop, or not?

Practice point:  Plaintiff was injured when, while disembarking from the rear doors of a bus, she stepped onto an allegedly broken and uneven sidewalk causing her to fall. Located approximately 55 feet west of the location where plaintiff fell is a sign designating a bus stop.  The Appellate Division found a triable issue of fact as to whether plaintiff fell within a designated bus stop location, and reinstated the complaint as against the City.

The fact that plaintiff believed she did not fall within the bus stop is immaterial since she has no knowledge regarding what the City has designated to be the location of the bus stop. The motion court's reliance on Section 16-124.1(a)(2) of the Administrative Code as limiting a bus stop to "five feet of the sidewalk and the gutter immediately adjacent to the curb," was misplaced. The regulation pertains to the City's responsibility to remove snow and ice adjacent to bus stops, and does not purport to define "bus stop" for all purposes. In addition, the regulation became effective three years after the incident.

Student note:  A bus stop is not delimited to the roadway where buses operate, but includes the sidewalk where passengers board and disembark.

Case:  Bednark v. City of New York, NY Slip Op 02841 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: The arbitrability of a fee dispute.

Contracts, and tort liability to a third party.

Practice point:  Plaintiff allegedly sustained injuries when he fell through a coal chute cover while exiting his parents' house. Defendant had been hired to perform certain plumbing work in the basement of the house 16 days prior to the accident. Plaintiff alleged defendant's employees failed to properly replace the coal chute cover after removing it to enter the basement.

Defendant moved pursuant to CPLR 3126 to strike the complaint on the ground of spoliation of evidence, and for summary judgment dismissing the complaint on the ground that it owed no duty of care to the plaintiff and that there was no evidence that its employees had improperly replaced the coal chute cover. The Supreme Court granted that branch of the motion which was to strike the complaint on the ground of spoliation of evidence to the extent of precluding plaintiff from offering evidence at trial regarding the condition of the coal chute cover and frame, and also granted that branch of the defendant's motion which was for summary judgment dismissing the complaint. Plaintiff appealed, and the Appellate Division affirmed.

The Appellate Division noted that there are three exceptions to the general rule that a contractual obligation, standing alone, does not give rise to tort liability in favor of a third party. One of the exceptions is relevant here, namely,  that a party who enters into a contract to render services may be liable in tort to a third party where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm. A claim that a contractor exacerbated an existing condition requires some showing that the contractor left the premises in a more dangerous condition than the contractor found them.

Here, defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence that it owed no duty of care to the plaintiff.  In opposition, plaintiff failed to raise a triable issue of fact as to whether defendant, in allegedly failing to exercise reasonable care in the performance of its work, launched a force or instrument of harm. Plaintiff made no showing that defendant left the coal chute in a more dangerous condition than it had found it, and plaintiff testified that after the defendant completed its work, he had walked over the coal chute cover twice a day up until the date of the accident and did not observe anything wrong with it.  Plaintiff's mother similarly testified that she, too, had walked over the coal chute cover, without incident, after the defendant's work was completed. Plaintiff's contention that defendant owed a duty to his parents to warn them about the allegedly deteriorating condition of the coal chute cover is unavailing, as there is nothing to impose a duty of care on a party not in privity of contract with the injured party.

Student note:  In light of the determination with respect to summary judgment, the appellate issue regarding the remaining branch of defendant's motion was rendered academic.

Case:  Berger v. NYCO Plumbing & Heating Corp., NY Slip Op 02716 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A fall at a bus stop, or not?

Summary judgment in a slip and fall action.

Practice point:  The Appellate Division determined that the motion court properly found that defendant made a prima facie showing that there was no dangerous condition in existence when plaintiff slipped and fell, and that it was therefore entitled to summary judgment. In opposition, plaintiff failed to raise a triable issue of fact.

Plaintiff testified that he slipped on the wet ramp minutes after it had stopped raining, and that he did not see any debris, substances, or other defects on the ramp prior to his attempted ascent.  Mere wetness on a walking surface due to rain does not constitute a dangerous condition. Moreover, there is no evidence that defendant created the condition that caused plaintiff's accident, nor does the record show that defendant had constructive notice of a problem with the ramp.

As to constructive notice, plaintiff's expert report merely described the surface of the ramp as "worn, smooth and polished," concluded that "the wet condition . . . would have made the ramp slippery and dangerous." This conclusion, unsupported by any empirical data obtained by scientific analysis, was insufficient to demonstrate an issue of material fact.

Student note:   A defendant moving for summary judgment in a slip and fall action has the initial burden of making a prima facie demonstration that it neither created the dangerous condition,  assuming that the condition existed, nor had actual or constructive notice of its existence.  If a defendant establishes prima facie entitlement to such relief as a matter of law, the burden shifts to the plaintiff to raise a triable issue of fact as to the creation of the defect or notice thereof.

Case:  Ceron v. Yeshiva Univ., NY Slip Op 02680 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contracts, and tort liability to a third party.

A defendant's burden on summary judgment.

Practice point:  While the ultimate burden of proof at trial is on the plaintiff, a defendant seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form. The ultimate burden of proof after trial plays no part in the assessment of whether there are relevant factual issues presented on a motion for summary judgment. A moving defendant does not meet its burden of affirmatively establishing its entitlement to judgment as a matter of law by merely pointing to gaps in the plaintiff's case. Instead, it must affirmatively demonstrate the merit of its claim or defense.

Student note  A motion for summary judgment will not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.

Case:  Collado v. Jiacono, NY Slip Op 02443 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Summary judgment in a slip and fall action.

Gravity and Labor Law § 240(1).

Practice point:  The Appellate Division determined that the motion court properly rejected the City's argument that § 240(1) was inapplicable, because the rail that struck plaintiff did not fall from a "physically significant elevation differential." The Appellate Division affirmed the motion court's finding that the pile of rails that were stacked two and one-half to three feet high was not de minimis, given the approximately 1500 pound weight of the rail and the amount of force it was capable of generating, even over the course of a relatively short descent. The harm plaintiff suffered was the direct consequence of the application of the force of gravity to the rail that struck plaintiff.

Student note:  In a claim such as this, the essential element to a conclusion that an object requires securing is that it presents a foreseeable elevation risk in light of the work being undertaken.

Case:  Jordan v. City of New York, NY Slip Op 02565 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A defendant's burden on summary judgment.

The justifiable reliance element of a fraud claim.

Practice point:  The Appellate Division determined that the plaintiff failed to establish the element of justifiable reliance, noting that where the plaintiff has available the means of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation at issue, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations.

Student note:  A viable fraud claim requires a showing of a misrepresentation or omission of material fact which the defendant knew was false; that the misrepresentation was made to induce the plaintiff's reliance; the plaintiff's justifiable reliance on the misrepresentation or material omission; and a resulting injury.

Case:  Cervera v. Bressler, NY Slip Op 02441 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Gravity and Labor Law § 240(1).

"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.