A motion to dismiss a slip-and-fall action, and open and obvious conditions.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss this action for personal injuries sustained when plaintiff tripped over an extension cord.

The Appellate Division found in the record presents triable issues of fact as to whether defendants created the condition that caused plaintiff's fall. A premises' security manager testified that, after viewing video footage from two days before the accident, he observed defendants' employees working at the location the weekend before the accident. In addition, there are issues of fact as to whether defendants had constructive notice of the extension cord that was on the floor prior to the accident. Defendants never established when their employees last inspected the location prior to the accident, even though their witnesses testified that defendants inspected the area.

Student note:  The fact that the extension cord was bright yellow, the floor was white, and the cord was seen by two nonparty witnesses prior to the accident does not establish that the condition was open and obvious. Plaintiff testified that the accident did not happen until after he passed the portable air conditioning unit, and that the air conditioning unit obscured a view of the extension cord.

Case:  DiMarzo v. Jones Lang LaSalle Ams. Inc., NY Slip Op 04924(1st Dept. 2015)

Here is the decision.

Monday's issue:  The scaffold law.

Operating a vehicle with the owner's consent, and leave to amend the complaint.

Practice point:  Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner's consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner's express or implied permission.  The owner's uncontradicted testimony that the vehicle was operated without permission, does not, by itself, overcome the presumption of permissive use. The question of consent is ordinarily one for the jury.

Student note:  Motion for leave to amend should be granted in the absence of a showing that the proposed amendment would prejudice or surprise the defendants, and the proposed amendment was not palpably insufficient or patently devoid of merit, CPLR 3025[b].

Case:  Blassberger v. Varela, NY Slip Op 04796 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion to dismiss a slip-and-fall action, and open and obvious conditions.

Denial of an Article 78 petition.

Practice point:  The Appellate Division affirmed the denial of the petition to set aside CUNY's determination, dated January 12, 2012, dismissing petitioner from its law school.

The proceeding is untimely as it was commenced on June 25, 2012, more than four months after respondent's final and binding determination, pursuant to CPLR 217[1]).

Student note:  Contrary to petitioner's argument, her subsequent correspondences with respondent did not toll or recommence the statutory period.

Case:  Lopez v. CUNY, NY Slip Op 04927 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Operating a vehicle with the owner's consent, and leave to amend the complaint.

Substitution of a party.

Practice point:  The Appellate Division determined that the Supreme Court providently exercised its discretion in granting the defendants' motion pursuant to CPLR 1021 to dismiss the complaint, and denying that branch of the administrator's cross motion which was, in effect, a CPLR 1015 motion for leave to substitute himself as a party plaintiff and to amend the caption accordingly.

The Appellate Division noted that the administrator's failure to effect the required substitution until more than 6 ½ years after the decedent's death and nearly 5 ½ years after he was appointed administrator evinced a lack of diligence in prosecuting this action, which had been pending for nearly 8 years at the time the administrator sought substitution. The administrator failed to demonstrate a reasonable excuse for the delay in seeking substitution, which he did only after the defendants moved to dismiss the complaint. In addition, the administrator failed to demonstrate a potentially meritorious cause of action through the submission of admissible evidence, and did not rebut the defendants' allegations of prejudice.

Student note:  CPLR 1021 provides, in pertinent part, that if the event requiring the substitution of a party "occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate."

Determining whether the motion is made within a reasonable time requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has potential merit.

Case:  Alejandro v. North Tarrytown Realty Assoc., NY Slip Op 04792 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Denial of an Article 78 petition.

A fall down the stairs, and actionable defets.

Practice point:   The Appellate Division affirmed dismissal of the complaint claiming personal injuries sustained when plaintiff allegedly slipped on a marble step tread as he descended the stairs in defendants' building. The Appellate Division noted that plaintiff denied that any debris on the step caused his fall, and the photographs did not reveal any major defects.

Student note:   As a matter of law, the worn marble edge of the step on which plaintiff allegedly slipped is not an actionable defect.

Case:  Carrion v. Faulkner, NY Slip Op 04762 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Substitution of a party.

Denial of a motion for a default judgment.

Practice point:  The Appellate Division affirmed the denial of the motion and the order directing plaintiff to accept the answer.  The Appellate Division noted that while defendant's excuse for not timely answering -- confusion and inadvertence -- was not particularly compelling, it was sufficient.  In addition, the delay was relatively short, plaintiff suffered no prejudice, there is no evidence of willfulness, and there is a strong public policy in favor of resolving cases on the merits.

Student note:  As no default judgment had been entered, defendant was not required to demonstrate a meritorious defense, pursuant to CPLR 3012[d].

Case:  Marine v. Montefiore Health Sys., Inc., NY Slip Op 04725 (1st Dept. 2015)

Here is the decision.

Monday's issue: A fall down the stairs, and actionable defects.

Summary judgment in a discriminatory employment action.

Practice point:   To prevail on a motion for summary judgment in a discriminatory employment action, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual.

Student note:  A plaintiff alleging discrimination in employment has the initial burden to establish a prima facie case of discrimination. To meet this burden, the plaintiff must show that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination.

The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision. To succeed on the claim, the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason.

Case:  Cotterell v. State of New York, NY Slip Op 04601 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Denial of a motion for a default judgment.

Consolidation, joint trials, and venue.

Practice point:  In this medical malpratice action, the claims relate to treatment rendered at a hospital located in Nassau County.  Many of the individual defendants reside in Nassau County, and all of the individual defendants worked in Nassau County at the time of the alleged malpractice and lack of informed consent. The plaintiffs themselves resided in Nassau County at the time each action was commenced.

The Appellate Division determined that, under these circumstances, the Supreme Court providently exercised its discretion in granting those branches of the cross motions which were to place the venue of the consolidated action in Nassau County and denying that branch of the plaintiffs' motion which was to place venue in Queens County.

Student note:  When a trial court orders consolidation or joint trials under CPLR 602(a), venue should generally be placed in the county where jurisdiction was invoked in the first action. However, the court, in its discretion, may place venue elsewhere.

Case:  Castro v. Durban, NY Slip Op 04600 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in a discriminatory employment action.

Jury verdict in a bus driver negligence action.

Practice point:  The Appellate Division  found no basis for setting the jury verdict and affirmed the judgment in favor of defendant Transit Authority.  The jury's verdict, finding that defendant was not negligent, is supported by a fair interpretation of the evidence, given the evidence that, among other things, none of the other passengers fell

In addition, defense counsel's statements during summation as to why the bus driver may have stopped as it did were fair comments on the evidence.  Plaintiff's arguments regarding the prejudicial effect of the bus driver's absence at trial are unavailing. The court instructed the jury that it could accept or reject defendant's explanation for the driver's absence, and permitted the jurors to draw a negative inference from the absence. Defendant did not improperly use the driver's absence as both a sword and a shield.

 Student note:  Even if it were error to charge the emergency doctrine as part of negligence, plaintiff failed to adequately preserve its objection.

Case:  DiGennaro v. New York City Tr. Auth. (MTA), NY Slip Op 04584 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Consolidation, joint trials, and venue.

Summary judgment in a medical malpractice action.

Practice point:  On the motion, the defendant physician must make a prima facie showing that there was no departure from good and accepted medical practice, or that the plaintiff was not injured thereby.  If defendant has made such a showing, the burden shifts to plaintiff to submit evidentiary facts or materials to rebut defendant's showing, but only as to those elements on which defendant met the prima facie burden.

Student note:  The essential elements of a cause of action to recover damages for medical malpractice are a deviation or departure from accepted medical practice, and evidence that such departure was a proximate cause of injury.

Case:  Harris v. Saint Joseph's Med. Ctr., NY Slip Op 04449 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Jury verdict in a bus driver negligence action.

Notice of claim as a condition precedent.

Practice point:  Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to the commencement of a tort action against a public corporation or any employee thereof, pursuant to Education Law § 3813[2] and General Municipal Law §§ 50-e[1][a]; 50-i[1][a].

Student note:  A school district is a public corporation.

Case:  Cassidy v. Riverhead Cent. Sch. Dist., NY Slip Op 04442 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Summary judgment in a medical malpractice action.