A negligent security claim.

Practice point:  The Appellate Division modified the Supreme Court's order and denied defendant's motion for summary judgment as to plaintiffs' negligence causes of action.  The Appellate Division found that there are triable issues of fact as to whether defendants breached their duty to take minimal security precautions to protect plaintiff's decedent from the criminal acts of third-party intruders and as to whether any such failure was a proximate cause of the attack on her. Viewing the evidence in the light most favorable to plaintiffs, there are questions of fact as to whether the lock on the building's front door, through which the assailant entered, was broken. In addition, evidence of a history of prior crimes, including assaults, in and around the building raises an issue of fact as to whether defendants' alleged negligence was a proximate cause of the attack.

The Appellate Division also found that the court abused its discretion in denying the portion of plaintiffs' cross motion seeking to preclude the deposition testimony of the assailant, who improperly terminated the deposition, thereby depriving plaintiffs of a full and fair opportunity to conduct their cross-examination.

Student note:  It was not improper for the court to address the parties' motions, made before decedent's death, in the order on appeal.  Although the court recalled and vacated its previous order, pursuant to  CPLR 1015), there was no need to renew the motions that were previously made.

Case:  Gonzalez v. 231 Ocean Assoc., NY Slip Op 06868 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A legal malpractice claim.

Labor Law § 200.

Practice point:  To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to supervise or control the methods or materials of a plaintiff's work. Where a plaintiff's injuries arise not from the manner in which the work was performed but from a dangerous condition on the premises, a defendant may be liable under the statute if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition. Where a plaintiff's injures are alleged to have been caused by defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment dismissing causes of action alleging a statutory violation must address the proof applicable to both of the foregoing liability standards.  The movant will prevail only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard.

Student note:  Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to maintain a safe construction site.

Case:  Bennett v. Hucke, NY Slip Op 06771 (2d Dept. 2015)

Here is the decision.

Monday's issue:  A negligent security claim.

Charging a jury on comparative fault.

Practice point:  In this action for injuries allegedly sustained at the construction site by plaintiff's decedent,  the Appellate Division found that the trial court erred in charging the jury on comparative fault. Although defendants argued that the extensive debris and garbage on the floor could have easily been avoided, the jury's verdict established that defendants were responsible for keeping the area clear.  Moreover, the decedent was not obligated to clear the floor of garbage and there was no clear path that he could use. The charge was not warranted because there was no evidence of culpable conduct on decedent's part.

Student note:  The charge should be given if, based on the evidence presented at trial, there is a valid line of reasoning and permissible inferences from which rational persons can draw a conclusion of the plaintiff's negligence.

Case:  Kutza v. Bovis Lend Lease LMB, Inc., NY Slip Op 06753 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Labor Law  § 200.

Motions to dismiss for failure to state a claim.

Practice point:  On the CPLR 3211(a)(7) motion, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference.  Where evidentiary material is submitted and considered, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, the claim will not be dismissed.

Student note:  The court may consider any factual submissions made in opposition to a motion to dismiss in order to remedy pleading defects, pursuant to CPLR 3211[c].

Case:  Barouh v. Law Offs. of Jason L. Abelove, NY Slip Op 06769 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Charging a jury on comparative fault.

Preclusion of testimony as cumulative.

Practice point:  In this worksite injury case, the Appellate Division found that the testimony of plaintiff's wife and his coworker should not have been precluded, as it would have added to the testimony of other witnesses.  The coworker saw plaintiff fall, and his testimony as to the impact to plaintiff's foot could have been highly probative of plaintiff's claim that the continuing pain in his foot was caused by the accident and did not pre-exist it, as defendants argued. Further, the coworker could have testified as to the particular duties carried out by plaintiff as a heavy-construction carpenter, which would have supported plaintiff's position that as a result of his injury he could no longer perform that kind of work. Plaintiff testified about his job duties, but the coworker's status as a disinterested witness would have given his testimony added value to the jury.

The proffered testimony of plaintiff's wife was not likely to be cumulative, notwithstanding her not having asserted a derivative claim. The wife had a unique perspective on her husband's condition before and after the accident, and could have assisted the jury in further understanding the extent of his disability and of his pain and suffering.

Student note:  Testimony is properly precluded as cumulative when it would neither contradict nor add to the testimony of other witnesses.

Case:  Segota v. Tishman Constr. Corp. of N.Y., NY Slip Op 06764 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Motions to dismiss for failure to state a claim.

A client's dissatisfaction with a lawyer's stratetic choice.

Practice point:  The defendant law firm was entitled to summary judgment, as a matter of law, by demonstrating that its recommendation that plaintiffs execute a consent agreement was a reasonable strategic decision.  Defendant also demonstrated that the recommendation was made after extensive discussions with the plaintiffs, who agreed to the course of action.  In opposition, the plaintiffs raised no issue of triable fact that the recommendation was an unreasonable course of action that constituted legal malpractice.

Student note:  As a matter of law, a client's present dissatisfaction with a lawyer's strategic choice, without more, is not actionable.

Case:  Tantleff v. Kestenbaum & Mark, NY Slip Op 06720 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Preclusion of testimony as cumulative.

Setting aside a prenuptial agreement.

Practice point:  The Appellate Division affirmed the motion court's refusal to set aside the agreement, but on different grounds.  The defendant established that the parties' agreement, which is fair on its face, was not the product of fraud, duress, overreaching, or unconscionability. The plaintiff was represented by counsel of her choosing during the negotiation of the agreement.  Moreover, the agreement itself recites that the plaintiff had considered all of the facts and circumstances likely to influence her judgment, and that she entered into the agreement freely, voluntarily, and with full knowledge of its consequences. She was provided with meaningful bargained-for benefits. There is no evidence that the defendant attempted to conceal or misrepresent the nature or extent of his assets.  As the plaintiff entered into the agreement with the assistance and advice of her own attorney, she may not now complain that her interests were not adequately safeguarded.

Student note:  An agreement will not be set aside merely because, in hindsight, some of its provisions are improvident or even one-sided.

Case:  Barnes-Levitan v. Levitan, NY Slip Op 06768 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A client's dissatisfaction with a lawyer's strategic choice.

Contracts and ambiguity.

Practice Point:  The Appellate Division noted that the threshold question of whether a contract is unambiguous, and the subsequent construction and interpretation of an unambiguous contract, are issues of law.  The Appellate Division further noted that, when interpreting a contract, the court should arrive at a construction which will give fair meaning to all of the parties' language in order to reach a practical interpretation of the parties' expressions so that their reasonable expectations will be realized.  Extrinsic and parol evidence of the parties' intent may not be admitted to create ambiguity in a contract that is unambiguous on its face, but such evidence may be considered where a contract is determined to be ambiguous.

Student note:   If the contract's language is susceptible of more than one reasonable interpretation, the contract will be considered ambiguous.

Case:  NRT N.Y., LLC v. Harding, NY Slip Op 06719 (2d Dept. 2015)

Here is the decision.

Monday's issue:   Setting aside a prenuptial agreement.

Standing to bring a legal malpractice claim.

Practice point:  The Appellate Division affirmed the denial of defendant-lawyer's motion for summary  judgment. The defendant was retained to create a trust and fund it with several insurance policies. The plaintiffs allege that the defendant allowed one of the policies to lapse due to nonpayment, and they commenced this legal malpractice action to recover the policy's face value. The defendant moved to dismiss pursuant to CPLR 3211(a), asserting, among other things, that the trustee plaintiffs lack legal standing.

The Appellate Division determined that the motion court correctly found that the trustee plaintiffs stand in a position analogous to that of an estate's personal representative, and, therefore, have the requisite privity, or a relationship sufficiently approaching privity, to maintain the action.

Student note:  Plaintiffs also raised a triable issue of fact as to the applicability of the continuous representation doctrine sufficient to toll the statute of limitations, pursuant to CPLR 203[a] and 214[6].

Case:  Ianiro v. Bachman, NY Slip Op 06709 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contracts and ambiguity.

Dismissal of an appeal when the plaintiff is not an aggrieved party.

Practice point:  As the order appealed from granted relief to the third-party defendant, against the defendant's third-party plaintiffs, but not against the plaintiff, the plaintiff is not aggrieved by the order appealed from and her appeal must be dismissed.

Student note:  Pursuant to CPLR 5511, an aggrieved person is one who asks for relief but that relief is denied in whole or in part, or who opposes another person's request for relief which is granted in whole or in part.

Case:  Faicco v. Mr. Lucky's Pub, Inc., NY Slip Op 06707 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Standing to bring a legal malpractice claim.

Schools and a negligent supervision claim.

Practice point:  The Appellate Division affirmed defendant's motion for summary judgment dismissing the complaint in this action where the infant plaintiff alleges that, when he was a seven-year-old second-grade student at a New York City public school, he suffered serious physical injuries as the result of an altercation in which a classmate caused him to strike his head against a bookcase.

The Appellate Division found no evidence that the school had notice that the plaintiff's classmate had a proclivity to engage in physically aggressive conduct. The evidence that plaintiff had complained to his teacher and others that the classmate was "picking on him" and calling him names, and that his mother had called the principal's office and reported that some unidentified boys were "picking on her son," when viewed in the light most favorable to plaintiff, shows only that the school knew that the classmate had been picking on plaintiff verbally. Knowledge of such taunting, however, did not give the school sufficiently specific knowledge or notice of prior conduct similar to the unanticipated injury-causing act by the classmate.

Student note:  While schools have a duty to adequately supervise their students, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision, unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school's liability in negligence absent actual or constructive notice of prior similar conduct.

Case:  Emmanuel B. v. City of New York, NY Slip Op 06750 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Dismissal of an appeal when the plaintiff is not an aggrieved party.