A livery vehicle driver's duty of care.

Practice point:  The injured plaintiff exited the livery vehicle, and, while he was standing behind it, next to the vehicle's driver, he was struck by another vehicle. Plaintiff sued, among others, the livery vehicle's driver.

By submitting evidence that he parked at the curb and thus provided plaintiff with a safe place to exit, defendant established prima facie that he satisfied his duty of care. Plaintiff, however, raised a triable issue of fact as to defendant's negligence by submitting evidence that he did not park alongside the curb, but at a distance from it.

The Appellate Division affirmed the denial of defendant's summary judgment motion.

Student note:  As a common carrier, defendant owed a duty to plaintiff to stop at a place where he could exit safely and leave the area.

Case:  Meyers v. Delancey Car Serv., Inc., NY Slip Op 03508 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A Labor Law claim, hoisting equipment, and fork-lift trucks.

Prior notice laws and municipal liability.

Practice point:  Infant plaintiff alleged damages for a fall on a sidewalk fronting property owned by defendant, who then brought a third-party action against the Village for contribution and indemnification. The Village established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice, as required by Village code, of the snow and ice on the sidewalk. However, defendant raised a triable issue of fact as to whether the snow and ice condition was created by the Village's snow removal efforts.

The fact that the ice and snow was open and obvious does not preclude a finding of liability as against defendant, but, instead, presents a triable issue of fact regarding the comparative fault of plaintiff, defendant, and the Village. In addition, although plaintiff testified at his deposition that he had problems with his balance, and usually wore inner soles in his shoes to help him maintain his balance, the Village failed to establish, prima facie, that plaintiff's failure to wear inner soles in his shoes was the sole proximate cause of the accident.

The Appellate Division affirmed the denial of the Village's summary judgment motion.

Student note:  Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a defect or a dangerous condition which comes within the ambit of the law unless it has received written notice of the alleged defect or dangerous condition prior to the occurrence of the subject accident, or an exception to the written notice requirement. Exceptions include the municipality's having negligently created the defect or hazard.

Case:  Lopez-Calderone v. Lang-Viscogliosi, NY Slip Op 03505 (2d Dept. 2015)

Here is the decision.

Monday's issue: A livery vehicle driver's duty of care.

Spoilation.

Practice point:  When a party either negligently loses or intentionally destroys key evidence, thus depriving an adversary of the ability to prove a claim, the responsible party may be sanctioned. The party requesting sanctions has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to prove its claim or defense.

Student note:   Spoilation is a common-law doctrine, and its application discretionary with the trial court.

Case:  Johnson v. NBO Realty, Inc., NY Slip Op 03503 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Prior notice laws and municipal liability.

Summary judgment in a legal malpractice action.

Practice point:  Plaintiffs alleged that the underlying medical malpractice action as against the hospital was voluntarily discontinued by the defendant attorneys due to the defendants' legal malpractice. Defendants established, prima facie, that plaintiffs would not have succeeded on the merits of their underlying action, regardless of whether the defendants consented to the discontinuance. Defendants' submissions demonstrated that the hospital staff involved in the underlying medical procedures properly carried out the directions of the attending private physicians and did not engage in any independent negligent acts. In opposition, plaintiffs failed to raise a triable issue as to whether the alleged legal malpractice was a proximate cause of the plaintiffs' failure to recover against the hospital.

Plaintiffs also alleged that, in the underlying action, the complaint as against the other defendants, was dismissed due to defendants' failure to prosecute the action. Defendants established, prima facie, that their alleged negligence in failing to prosecute the action was not a proximate cause of the damages alleged in the complaint since plaintiffs chose not to appeal from the order that dismissed the complaint. In opposition, plaintiff failed to raise a triable issue.

The Appellate Division reversed, and dismissed the complaint.

Student note:  The failure to pursue an appeal in an underlying action bars a legal malpractice action where the client was likely to have succeeded on appeal in the underlying action.

Case:  Buczek v. Dell & Little, LLP, NY Slip Op 03492 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Spoilation.

Post-termination commissions.

Practice point:  The Appellate Division determined that, over the seven-year course of dealing between the parties, plaintiff earned commissions only if and when customers paid on the contracts plaintiff procured. Absent an agreement expressly providing for post-termination commissions, plaintiff, as an at-will commissions salesman, was not entitled to commissions for payments made by customers after his termination.

Student note:  As plaintiff was fully compensated under his agreement, he has no claim for a violation of the Labor Law. Neither does he have an unjust enrichment claim, where defendants merely retained the amounts that they were not obligated to pay for post-termination commissions.

Case:  Linder v. Innovative Commercial Sys. LLC, NY Slip Op 03617 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in a legal malpractice action.

Probative evidence in a slip and fall action.

Practice point:  Defendant failed to establish entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when, while descending the interior stairs of defendant's building, she slipped on a wet step and fell.  Defendant's maintenance caretaker's affidavit contradicted his deposition testimony as to whether he could recall the building in the housing complex he had been assigned to clean on the date in question, and was insufficient to establish a prima facie case for summary judgment

In any event, the Appellate Division found in the record triable issues as to whether defendant created the wet stair condition. Plaintiff testified that she observed water on the stairs, that the water had dampened her back and pants in the process of her fall and that the staircase smelled like it had recently been cleaned. In addition, the building's janitorial schedule indicated that the subject staircase was to be mopped shortly before plaintiff's fall, and the caretaker testified that he would have mopped the staircase around the time of the accident.

Student note:  Evidence of defendant's general cleaning and inspection procedures does not not constitute probative evidence of the procedures actually performed on the day of the accident.

Case:  Tucker v New York City Hous. Auth., NY Slip Op 03453 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Post-termination commissions.

Denial of a motion for leave to renew.

Practice point:  The Appellate Division affirmed the denial that branch of the plaintiff's motion which, in effect, was for leave to renew its prior motion, pursuant to RPAPL 1321, for an order of reference. The plaintiff failed to present new facts not offered on the prior motion that would change the prior determination, as required by CPLR 2221[e][2]. In addition, the plaintiff presented no reasonable justification for failing to submit the purportedly new evidence when it previously moved for the same relief, as required by CPLR 2221[e][3].

Student note: A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

Case:  Bank of N.Y. v. Waters, NY Slip Op 03310 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Probative evidence in a slip and fall action.

A missing witness charge.

Practice point:  The charge instructs the jury that it may draw an adverse inference based on a party's failure  to call a witness who normally would be expected to support that party's version of events. The preconditions for the charge, in both criminal and civil trials, are: (1) the witness's knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the control' of the party against whom the charge is sought, so that the witness would be expected to testify in that party's favor; and (4) the witness is available to that party.

Student note:  The use of the missing witness' deposition testimony does not constitute a waiver of the right to request a missing witness charge.

Case:  Alli v. Full Serv. Auto Repair, LLC, NY Slip Op 03308 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Denial of a motion for leave to renew.

Rebutting the presumption of proper service.

Practice point:  Defendant's affidavit denying receipt of process, and his averment that he was at his place of employment in New York County at the time of the alleged service, were sufficient to rebut the presumption of proper service, necessitating a hearing.

Student note:  A process server's affidavit of service establishes, prima facie, that defendant was properly served pursuant to CPLR 308(1). However, where, as here, the presumption is rebutted, a hearing is required.

Case:  American Home Mtge. Servicing, Inc. v. Gbede, NY Slip Op 03309 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: A missing witness charge.

A petition to disqualify an attorney.

Practice point:  The Appellate Division determined that the motion court properly granted the petition, as petitioner demonstrated that the attorney likely would be a witness on a significant fact-issue, within the meaning of Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]. Petitioner-estate alleges, among other things, that respondent withdrew $65,000 from an account he held jointly with the estate's decedent, after he entered into a written agreement, signed on his behalf by the attorney, pursuant to which he agreed to turn over to the estate the funds remaining in the account after he made certain agreed upon payments. Since respondent has asserted as a defense that he was unaware of that agreement, the attorney is a significant witness as to the negotiation of the agreement and whether he had actual or apparent authority to enter into the agreement on respondent's behalf.

Student note:  The Appellate Division noted that the attorney's testimony is likely to be prejudicial to respondent, unless the attorney testifies that he acted without his client's knowledge or authority in entering into the agreement, pursuant to Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[b].

Case:  Matter of Ehrlich v. Wolf, NY Slip Op 03417 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Rebutting the presumption of proper service.

A counterclaim for breach of contract resulting in lost business opportunities.

Practice point:  The Appellate Division ordered dismissal of the counterclaim alleging that plaintiff breached the parties' contract by engaging in certain misconduct at the workplace, resulting in lost business opportunities. In support of his motion, plaintiff submitted defendants' responses to requests to admit and the deposition testimony in which defendants admitted that they could not identify any prospective business that was lost due to plaintiff's misconduct. Therefore, plaintiff demonstrated, prima facie, that the corporation did not sustain damages as a result of any alleged misconduct on his part in the performance of his job.  In opposition, the defendants failed to raise a triable issue of fact with respect to the element of damages.

Student note:  To recover damages for breach of contract, a party must demonstrate, among other things, that damages resulted from the breach.

Case:  Cortes v. 3A N. Park Ave. Rest Corp., NY Slip Op 03120 (2d Dept. 2015)

Here is the decision. 

Tomorrow's issue:  A petition to disqualify an attorney.