Summary judgment on a 240(1) Labor Law claim.

Practice point:  The Appellate Division determined that plaintiff is entitled to partial summary judgment on his Labor Law § 240(1) claim alleging injuries after he slipped and fell down the stairs of a temporary tower scaffold.

A plaintiff is entitled to partial summary judgment on a 240(1) claim where, as here, stairs prove inadequate to shield him against harm resulting from the force of gravity, and his injuries are at least in part attributable to the defendants' failure to take mandated safety measures to protect him against an elevation-related risk.  Plaintiff's expert opined that the stairs showed obvious signs of longstanding use, wear and tear and that a decrease in anti-slip properties was to be expected.  Given that it is undisputed that the staircase, which was a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling, plaintiff is entitled to summary judgment, whatever the weather conditions might have been.

The fact that the parties offered conflicting experts'  affidavits as to the adequacy and safety of the temporary stairs does not preclude summary judgment in plaintiff's favor.

Student note:  A fall down a temporary staircase is the type of elevation-related risk to which the statute applies, and the staircase, which had been erected to allow workers access to different levels of the worksite, is a safety device within the meaning of the statute.

Case:  O'Brien v. Port Auth. of N.Y. & N.J., NY Slip Op 06749 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Schools and a negligent supervision claim.

The emergency doctrine.

Practice point:  The doctrine holds that persons faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be held negligent if their actions are reasonable and prudent in the context of the emergency.

Here, the Appellate Division affirmed dismissal, noting that, in support of their motion, the defendants submitted the transcripts the deposition testimony of the injured plaintiff and of a nonparty witness. This testimony established that the vehicle in which the plaintiff was a passenger had been traveling behind the tractor trailer driven by the defendant, in the same lane. The tractor trailer, with its full load of gravel in the 28-foot long attached dump trailer, weighed 102,000 pounds. The vehicle moved into the lane to the left of the tractor trailer, passed the tractor trailer, and attempted to move back into the lane of the tractor trailer in order to access an exit ramp on the right. The defendant testified that he first saw the vehicle as a "blur" to his left and three seconds later, despite slamming on his brakes, the tractor trailer made contact with the vehicle when the vehicle attempted to move into his lane. The nonparty witness testified that the vehicle suddenly crossed in front of the tractor trailer, creating a "risky" situation in which an accident was "imminent."  The Appellate Division found that this evidence was sufficient to establish, prima facie, that the defendant was confronted with a sudden and unexpected circumstance not of his own making and that, under the circumstances, his actions were reasonable and prudent.

Student note:  As the affidavit of the plaintiffs' accident reconstruction expert was conclusory and speculative, it was insufficient to raise a triable issue of fact.

Case:  Bonforte v. M.K.'s Landscaping of Liberty, LLC, NY Slip Op 06702 (2d Dept. 2015)

Monday's issue:  Summary judgment on a 240(1) Labor Law claim.

CPLR 3216 and dismissal

Practice point:  Pursuant to the statute, a court may dismiss the complaint for want of prosecution only after the court has issued an order directing, or the defendant has served the plaintiff with a written notice demanding, that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the order or demand, and also stating that the failure to comply with the order or demand will serve as the basis for a motion to dismiss the action.

Student note:  Since CPLR 3216 is a legislative creation and not part of a court's inherent power, the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the complaint.

Case:  Amos v. Southampton Hosp., NY Slip Op 06700 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  The emergency doctrine.

Go-karts and assumption of the risk.

Practice point:  The Appellate Division reversed the motion court and granted the defendant's summary judgment motion in this action where the plaintiff alleged injuries sustained when other go-karts bumped hers.  The Appellate Division applied the doctrine of assumption of the risk, determining that it cannot be reasonably suggested that contact between go-karts during a race is anything other than a commonly appreciated risk of go-karting.

Student note:  The Appellate Division noted that the defendant could not avoid liability based on the written waiver it asks its customers to sign.

Case:  Garnett v. Strike Holdings LLC, NY Slip Op 06694 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  CPLR 3216 and dismissal.

An allegation of false arrest or imprisonment, and the defense of probable cause.

Practice point:  Where the arrest is made without a warrant, the existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim.  Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed.

Student note:  To prevail on a cause of action alleging false arrest or false imprisonment, a plaintiff must prove (1) intentional confinement by the defendant, (2) of which the plaintiff was aware, (3) to which the plaintiff did not consent, and (4) which was not otherwise privileged.

Case:  Nolasco v. City of New York, NY Slip Op 06663 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Go-karts and assumption of the risk.

Court Holiday

 

Tomorrow's issue:  An allegation of false arrest or imprisonment, and the defense of probable cause.

The requirements of expert testimony.

Practice point:  The Appellate Division affirmed the trial court's determination that the testimony of the plaintiff's civil engineering expert did not support the causes of action. The expert testified that his conclusions were based on reports prepared and photographs taken by others, and that he had not personally observed any of the defendants' work. The expert's testimony made clear that he did not know which contractor had performed the work that was allegedly substandard and was thus being repaired at the plaintiff's expense, as he first visited the construction site approximately 16 months after the defendants withdrew from the job. In addition, the spreadsheet prepared by the plaintiff's expert itemizing the alleged costs of the repairs was rife with inaccuracies, and the expert admitted that this spreadsheet was "flawed."

Student note:  An expert's opinion testimony must be based on facts in the record or personally known to the witness. An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion.

Case:  Johnson v. Robertson, NY Slip Op 06658 (2d Dept. 2015)

Here is the decision.

Tuesday's issue:  An allegation of false arrest or imprisonment, and the defense of probable cause.

Personal liability for corporate violations of the Labor Law.

Practice point:  The Appellate Division reversed dismissal of the complaint, finding that, at this stage of litigation, it cannot be said that the plaintiff has failed to state a cognizable cause of action against the individual defendants for alleged violations of Labor Law §§ 191 and 195. The Appellate Division explained that, while corporate shareholders and officers generally are not personally liable for corporate violations of the Labor Law, the plaintiff alleged adequate facts to state a cause of action against each of the individual defendants in his or her distinct capacity as the plaintiff's employer within the meaning of the statute.

Student note:  On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the facts alleged in the complaint are accepted as true and are given a liberal construction to afford the pleading party every possible favorable inference, and the court's inquiry is limited to whether the pleading states any cognizable cause of action.

Case:  Cohen v. Finz & Finz, P.C., NY Slip Op 06654 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  The requirements for expert testimony.

Dismissal of a claim based on comity.

Practice point:  The Appellate Division affirmed the Supreme Court's determination that the adjudication of defendant's claims for compensation under employment and consulting agreements with his former employer in a winding-up proceeding that was litigated in the British Overseas Territory of Bermuda precluded the instant action against the employer, among others, to recover damages for breach of contract and fraud. The plaintiff appeared in the Bermuda proceeding by submitting his claims to the Bermuda court, and made no showing of fraud or that a public policy of this State would be violated by recognizing the Bermuda court's rejection of his claims.

Student note:  New York recognizes judgments rendered in a foreign country under the doctrine of comity, which is the equivalent of full faith and credit given by courts to judgments of other states.  According to the Appellate Division, absent some showing of fraud in the procurement of the foreign country judgment or that recognition of the judgment would do violence to a strong public policy of New York State, a party who properly appeared in the action is precluded from attacking the validity of the foreign country judgment in a collateral proceeding commenced in a New York court.

Case:  Basile v. CAI Master Allocation Fund, Ltd., NY Slip Op 06650 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Personal liability for corporate violations of the Labor Law.

At-will employment, termination, and fraudulent inducement claims.

Practice point:  An at-will employee who has been terminated cannot state a fraudulent inducement claim on the basis of having relied upon the employer's promise not to terminate the contract, or upon any representations of future intentions as to the duration or security of his employment.  However, where the employee alleges an injury that is separate and distinct from the termination of employment, there may be a cause of action sounding in fraudulent inducement. For the claim to be viable, the employee must allege not that his employer wrongly fired him, but that that he would not have taken the job in the first place if the true facts had been revealed to him.

Student note:  In any action to recover damages for fraud, a plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.

Case:  Laduzinski v. Alvarez & Marsal Taxand LLC, NY Slip Op 06646 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Dismissal of a claim based on comity.

Summary judgment in a personal injury action.

Practice point:  The Appellate Division reversed the motion court and determined that plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that, before entering the crosswalk and while crossing the street, he looked both ways for oncoming vehicles and that, with the pedestrian control and traffic control devices in his favor, defendant failed to yield the right-of-way. Plaintiff's evidence demonstrated that defendant violated Vehicle and Traffic Law § 1111(a)(1) and that plaintiff was not at comparative fault in the happening of the accident.  In opposition, the defendants submitted an affidavit which contradicted earlier deposition testimony, and merely raised what appear to be feigned issues of fact designed to avoid the consequences of the earlier testimony. Thus, the affidavit failed to raise a triable issue of fact and was insufficient to defeat plaintiff's motion.

 Student note:  In a personal injury action, to prevail on a motion for summary judgment on liability, 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, as there can be more than one proximate cause of an accident. Where a plaintiff has established prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff's comparative fault.

Case:  Zhu v. Natale, NY Slip Op 06586 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  At-will employment, termination, and fraudulent inducement claims.