A schoolyard injury, premises liability, and assumption of the risk.

Practice point: The Appellate Division affirmed the denial of plaintiff's summary judgment motion as to liability in this action where infant plaintiff allegedly was injured while playing basketball at recess when his head struck the pole supporting the backboard and he fell to the ground.  Defendant established its prima facie entitlement to judgment as a matter of law dismissing the premises liability cause of action by demonstrating that the pole was open and apparent; that the risk of colliding with it was inherent in the activity of playing basketball in the courtyard; that defendant did nothing to conceal or unreasonably increase the risk; and that plaintiff assumed the risk of injury by voluntarily participating in the activity at that location, as he had on numerous prior occasions.

Student note:  The doctrine of primary assumption of risk applies where a consenting participant in a sporting activity is aware of the risks inherent in the activity, has an appreciation of the nature of the risks, and voluntarily assumes the risks. The doctrine is not a bar to liability if the risk is unassumed, concealed, or unreasonably increased.

Case: Altagracia v. Harrison Cent. Sch. Dist.,  NY Slip Op 01141 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Summary judgment on a Labor Law § 240(1) cause of action.

Respondeat superior.

Practice point:  The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting in furtherance of the employer's business and within the scope of employment. An employee's actions fall within the scope of employment where the employee's purpose is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business.  Where an employee's actions are taken for wholly personal reasons, which are not job related,  the employee's conduct is outside the scope of employment.

Student note:  An employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment.

Case:  Brandford v. Singh, NY Slip Op 00920 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  A schoolyard injury, premises liability, and assumption of the risk.

A petition to annul an agency's termination of employment.

Practice point:  The Appellate Division affirmed the denial of the Article 78 petition seeking to annul petitioner's employment. It is undisputed that petitioner failed to serve the notice of petition and petition upon the agency, as required by CPLR 307(2). The failure to properly effectuate service on, and acquire personal jurisdiction over, the agency warrants dismissal.

Student note:  The agency did not concede to the court's jurisdiction by seeking an adjournment, and the cross motion to dismiss the petition on jurisdictional grounds was properly brought prior to the time that the answer was required to be served, pursuant to CPLR 3211[a][8] and [e], and 320[b].

Case:  Matter of Crichlow v. NYS Off. of Mental Health, NY Slip Op 01050 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Respondeat superior.

Resoving a fact issue on a motion for a preliminary injunction.

Practice point:  The Appellate Division modified the motion court's denial of plaintiff's motion for a preliminary injunction, and vacated so much of the order as deemed defendant the owner of the premises and directed entry of a money judgment for use and occupancy. The Appellate Division determined that, in deciding the motion, the court erred in resolving a factual issue.

Student note:  Before a court may treat a motion addressed to the pleadings as a summary judgment motion, it must give notice to the parties.

Case:  Solomon-Cox v. Expert Bldrs. 26, Inc., NY Slip Op 01044 (1st Dept. 2016)

Here is the decision.

Monday's issue:  A petition to annul an agency's termination of employment.

Res ipsa, and summary judgment denied.

Practice point:  The Appellate Division affirmed denial of defendant's summary judgment motion in this action for damages after plaintiff allegedly was injured by a falling picture frame as she was entering a room inside office space leased by defendant.

Plaintiff pled that defendant was liable under a theory of common-law negligence and the doctrine of res ipsa loquitur.  Defendant failed to make the requisite showing of its entitlement to judgment as a matter of law, as the evidence submitted in support of the motion failed to establish, prima facie, that defendant lacked exclusive control over the picture frame.  Defendant also failed to establish that it was entitled to summary judgment on the ground that the picture frame, as it was positioned on the date of the accident, did not constitute a dangerous condition, or that defendant did not create a dangerous condition.

Student note:  As defendant failed to establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to plaintiff to raise a triable issue of fact.

Case: Assil v. Camba, Inc., NY Slip Op 00914 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Resolving a fact issue on a motion for a preliminary injunction.

Standing in a mortgage foreclosure action.

Practice point:  By submitting evidence that the note was in its possession and the mortgage had been assigned to it prior to the commencement of the action, the plaintiff made a showing sufficient to deny that branch of the defendants' 3211(a)(3) motion to dismiss for lack of standing.

Student note:  A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note. The plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the action. On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law. To defeat the motion, a plaintiff must submit evidence which raises a question of fact as to its standing.

Case:  Arch Bay Holdings, LLC-Series 2010B v. Smith, NY Slip Op 00913 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue: Res ipsa, and summary judgment denied.

A summary judgment motion denied as untimely.

Practice point:  The Appellate Division affirmed the motion court's denial, as defendant filed its motion after the deadline set forth in the preliminary conference order. That deadline is controlling, given that there is no subsequent order or directive explicitly providing otherwise. In addition, defendant failed to provide good cause for the delay in moving for summary judgment.

Student note:  The Appellate Division noted that the action's conversion to e-filing approximately two months before the order does not warrant a different result.

Case:  Winfield v. Monticello Senior Hous. Assoc., NY Slip Op 00873 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Standing in a mortgage foreclosure action.

Court holiday.

Tomorrow's issue:  A summary judgment motion denied as untimely.

Court holiday.

Tuesday's issue:  A summary judgment motion denied as untimely.

Sidewalk defects and an abutting landowner's liability.

Practice point:  The Appellate Division reversed, and granted defendant's summary judgment motion in this action where plaintiff allegedly tripped and fell on a sidewalk abutting premises owned by defendant.

An abutting landowner will be liable to a pedestrian injured by a sidewalk defect where the landowner created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk. Here, defendant established, prima facie, that her property was covered by the exemption for owner-occupied residential property set forth in section 2-710(b) of the Administrative Code of the City of New York, and that she had no statutory duty to maintain the sidewalk.

Student note:  Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality, and not the abutting landowner.

Case:  Ippolito v. Innamorato, NY Slip Op 00648 (2d Dept. 2016)

Here is the decision.

Tuesday's issue:  A summary judgment motion denied as untimely.

Expert opinion testimony in a chiropractic malpractice action.

Practice point:  Physicians offering opinions in medical, dental, podiatric, chiropractic, or other specialty malpractice actions must establish their credentials in order for their expert opinions to be considered by courts. They do so by being specialists in the field that is the subject of the action, or if not specialists in the same field, then by possessing the requisite skill, training, education, knowledge, or experience from which it can be assumed that the opinion rendered is reliable. 

Student note:  As with medical malpractice actions, chiropractic malpractice actions require proof that the defendant chiropractor deviated or departed from the accepted community standards of chiropractic practice, and that such deviation or departure was a proximate cause of the plaintiff's injuries.

Case:  Bongiovanni v. Cavagnuolo, NY Slip Op 00638 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue: Sidewalk defects and an abutting landowner's liability.