Summary judgment in a slip-and-fall action.

Practice point:  The Appellate Division reversed the Supreme Court's sua sponte dismissal of the complaint in this action against the store's owner and the store's lessee. The Appellate Division rejected lessee-defendant's argument that it owed no duty to plaintiff.  As the operator of a place of public assembly, a store lessee has a duty to provide its customers with a safe means of entering and leaving the store.

Student note:  On a summary judgment motion, a defendant must establish prima facie entitlement to judgment as a matter of law before the burden shifts to the party opposing the motion to establish the existence of a material issue of fact

Case:  Taveras v. 1149 Webster Realty Corp, NY Slip Op 09192 (1st Dept. 2015)

Here is the decision.

Monday's issue:  CPLR 205(a) and 306-b.

A police accident report and summary judgment.

Practice point:  The Appellate Division affirmed the denial of plaintiff's summary judgment motion as to liability, finding that plaintiff failed to establish his prima facie entitlement to judgment as a matter of law by eliminating all triable issues of fact.

In support of his motion, plaintiff submitted his own affidavit, in which he alleged that defendant was negligent because he violated Vehicle and Traffic Law § 1128(a), and that plaintiff could not avoid the collision. However, plaintiff also submitted an uncertified police accident report containing defendant's statement that plaintiff sped up to prevent defendant from merging into the lane in which the plaintiff was traveling and, thus, contributed to the accident.

Student note:  In submitting the uncertified police accident report, plaintiff waived any objection to its admissibility.

Case:  Kadashev v. Medina, NY Slip Op 09069 (2d Dept. 2015)

Here is the decision.

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

A plaintiff's negligence and proximate cause.

Practice point:  The Appellate Division affirmed the jury verdict that, while the plaintiff was negligent, her negligence was not a proximate cause of her injury. The Appellate Division found that  the issues were not so inextricably interwoven as to make it logically impossible to find negligence but not proximate cause.

Student note:  The defendant's argument that the jury verdict was inconsistent was not raised before the jury was discharged, and therefore was unpreserved for appellate review.

Case: Blechman v. New York City Tr. Auth., NY Slip Op 09173 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A police accident report and summary judgment.

Limiting the scope of discovery.

Practice point:  The Appellate Division affirmed the motion court's denial of those branches of the plaintiff's motion which were to extend the time to complete discovery and compel the defendants to respond to his discovery demands. The Appellate Division determined that the plaintiff's discovery demands were overly broad and unduly burdensome, and sought a large number of documents that were irrelevant to his remaining causes of action.

Student note:  The Supreme Court has broad discretion to supervise disclosure to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice. Discovery demands that are overly broad, are lacking in specificity, or seek irrelevant documents are improper and will not be allowed.

Case:  Jacobs v. Mostow, NY Slip Op 09067 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A plaintiff's negligence and proximate cause.

Jurisdiction based on a tort committed outside the State causing injury inside the State.

Practice point:  The Appellate Division affirmed dismissal for lack of personal jurisdiction in this action stemming from the sale and deliver of steel from a New York company to two New Jersey corporations.  It determined that the motion court properly rejected plaintiff's assertion of jurisdiction under CPLR 302(a)(3)(ii), for an alleged tort committed without the State causing injury within the State. As to the tort committed without the State, plaintiff points to the alleged fraudulent conveyance of plaintiff's assets to defendant. This fails, however, because the situs of the injury is the location of the original event which caused the injury, not the location where the resulting damages are subsequently felt.  Therefore, the alleged tortious act did not cause]injury within New York, but in New Jersey.

Student note:  The Appellate Division determined that plaintiff has also offered nothing but conclusory allegations that any defendant derives substantial revenue from interstate or international commerce, as required for jurisdiction under CPLR 302(a)(3)(ii).

Case:  Cotia (USA) Ltd. v Lynn Steel Corp., NY Slip Op 09169 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Limiting the scope of discovery.

Darkness falls.

Practice point:  The Appellate Division the denial of defendant's summary judgment motion in this action where plaintiff seeks damages after he was injured when he tripped over the forks of a power jack parked in the 25-foot-wide central walkway between rows of work tables in a commercial warehouse leased by defendant. Plaintiff, a subcontractor of defendant, had been working at one of the tables when a power outage plunged the warehouse into complete darkness, and after about 20 seconds he decided to leave the warehouse. He turned from his table and took a few steps into the central walkway, and tripped over the jack. About 10 seconds later, the power was restored.

Defendant failed to establish prima facie that it maintained the premises in a reasonably safe condition and did not create a dangerous condition that posed a foreseeable risk of injury to individuals expected to be on the premises. Plaintiff testified that the power jacks were usually stored in an area near the front of the building and that he had never seen one unattended in the central walkway. Moreover, the record shows that machinery in the warehouse was operated solely by defendant's employees.

Student note:  The Appellate Division rejected defendant's argument that the power jack was an open and obvious hazard and not inherently dangerous as misplaced. Nor did defendant establish as a matter of law that plaintiff's decision to walk through the dark warehouse was the sole proximate cause of his injury, since, even in the dark, plaintiff could not have tripped over a jack that was not there. Defendant also failed to establish as a matter of law that the power outage was a supervening event that severed the causal connection between any negligence on its part and plaintiff's injury. Finally, defendant made no showing that power outages in the area were a very rare occurrence in the area, and the record demonstrates that the warehouse had a working back-up generator.

Case:  Washington v. Autumn Props. II, LLC, NY Slip Op 08950 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Jurisdiction based on a tort committed outside the State causing injury inside the State.

A rear-end collision.

Practice point:  Mere evidence of a sudden stop, without more, is not enough to raise a triable issue of fact as to whether the operator of the stopped vehicle was partly at fault, so as to defeat a motion for summary judgment. However, while vehicle stops under prevailing traffic conditions are forseeable and must be anticipated by the following driver, where the sudden stop is unexplained by the existing circumstances and conditions, an issue of fact as to liability is raised.

Student note:   A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the accident. Here, an affidavit averring that the vehicle was stopped at a red traffic light for 40-45 seconds when it was struck from behind was sufficient to establish Galuten's prima facie entitlement to judgment as a matter of law.

Case:  Etingof v. Metropolitan Laundry Mach. Sales, Inc., NY Slip Op 08803 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Darkness falls.

Leave to amend a summons and complaint.

Practice point:  The Appellate Division reversed the motion court, finding that it improvidently exercised its discretion in denying plaintiff's cross motion to substitute an identified defendant in the summons and complaint, pursuant to CPLR 305[c], 1024 and 3025. There was no evidence of any prejudice or surprise to the proposed defendant resulting from the substitution, and defendant City of New York stated that it had no substantive objection to plaintiff's cross motion to the extent it sought leave to substitute the identified police officer for a "John/Jane Doe" defendant.

Student note:  Since the limited proposed amendments were clearly described in the moving papers, plaintiff's failure to submit proposed amended pleadings with his original moving papers, pursuant to CPLR 3025[b], was a technical defect, which the court should have overlooked, pursuant to CPLR 2001, particularly after plaintiff provided those documents with his reply.

Case:  Medina v. City of New York, NY Slip Op 08909 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A rear-end collision.

Res judicata.

Practice point:  The Supreme Court determined that this personal injury action was barred by collateral estoppel, and the Appellate Division affirmed, but on a different ground, namely, res judicata.

The Appellate Division found that, in a declaratory judgment action, an order was issued granting the plaintiffs therein leave to enter a default judgment against the appellants, who were named defendants in that action, upon their failure to appear or answer the complaint in that action. The Appellate Division determined that that order is conclusive for res judicata purposes as to any matters actually litigated or that might have been litigated in that action, and that it precludes the appellants from maintaining this action.

Student note:  Res judicata, or claim preclusion, bars successive litigation based upon the same transaction or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action, or in privity with a party who was. The doctrine applies to an order or judgment taken by default which has not been vacated, as well as to issues which were or could have been raised in the prior proceeding.

Case:  Albanez v. Charles, NY Slip Op 08795 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to amend a summons and complaint.

Denial of an award for enhanced earning capacity.

Practice point:  The Appellate Division determined that the court properly exercised its discretion in denying the husband any award of a portion of the wife's enhanced earning capacity stemming from her United States medical license. The husband failed to show that he contributed to the wife's attainment of her license.  Prior to the marriage, the wife completed medical school in China and had a medical license in China. Thus, the only marital property was her US medical license, and while the wife did not work from May 2004 to May 2007, as she studied for the exam, she supported herself with her own savings and financial support from her mother, and paid for the exam review course herself.

Student note:  If the husband were entitled to an award based on the wife's enhanced earning capacity, he would have to establish the value of such enhanced earning capacity through expert testimony.

Case:  Ruo Mei Cai v. Victor Fai Lau, NY Slip Op 08635 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Res judicata.

CPLR 4401 and 4404(a)

Practice point:  The Appellate Division affirmed the denial of the motion, made pursuant to CPLR 4401,  for judgment as a matter of law on the issue of liability, made at the close of the plaintiffs' case and renewed at the close of evidence. A 4401 motion may be granted where the trial court determines that, upon the evidence presented, there is no rational process by which the trier of fact could base a finding in favor of the nonmoving party.  In considering the motion, the court must afford the nonmovant every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant.

Student note:  A 4404(a) motion to set aside a jury verdict as contrary to the weight of the evidence will not be granted unless the jury could not have reached the verdict by any fair interpretation of the evidence.

Case:  Cobenas v. Ginsburg Dev. Cos., LLC, NY Slip Op 08702 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Denial of an award for enhanced earning capacity.