The sufficiency of a notice of claim.

Practice point:  The Appellate Division affirmed the denial of defendants' motion to dismiss and the granting of plaintiff's cross motion for leave to amend the notice of claim. The Appellate Division found that the motion court properly determined that the original notice of claim, together with the photographs provided by plaintiff showing broken cement barriers strewn over the sidewalk and roadway at the accident location, sufficiently set forth the location and manner of his accident to satisfy the requirements of General Municipal Law § 50-e(2), since they provided information sufficient to enable the city to investigate the claim.

Student note:  The amended notice of claim, clarifying the location and manner of the alleged accident, was properly permitted pursuant to General Municipal Law § 50-e(6), since the City did not show any prejudice, or assert that plaintiff acted in bad faith.

Case:  Weiss v. City of New York, NY Slip Op 01267 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  An insured's delay in giving notice.

Liability under Labor Law § 200 for injuries arising from the manner in which work is performed,

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 the authority to exercise supervision and control over the work.  For statutory purposes, a defendant has the authority to supervise or control the work when the defendant bears the responsibility for the manner in which the work is performed.  Mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under the statute.

Student note:  If the challenged means and methods of the work are those of a subcontractor, and the owner or contractor exercises no supervisory control over the work, no liability attaches under Labor Law § 200 or the common law.

Case:  Hernandez v. Pappco Holding Co., Ltd., NY Slip Op 01295 (2d Dep't 2016)

Here is the decision.

Monday's issue:  The sufficiency of a notice of claim.

Out-of-possession landlords.

Practice point:  The Appellate Division affirmed denial of defendants' motion to dismiss the complaint as to them in this action for personal injuries allegedly sustained by plaintiff when she was caused to fall in the bathroom of her apartment due to tiles falling off the wall.  The Appellate Division found that defendants failed to make a prima facie showing that they were out-of-possession landlords who ceded possession and control to the co-defendant, as they leased individual apartments to the co-defendant pursuant to individual leases; the lease to plaintiff's unit limited the repair obligations that were the co-defendant's responsibility and prohibited it from making any alterations; and defendants employed a live-in superintendent in the building.

Student note:  In any event, defendants' contention that they are out-of-possession landlords with no duty to repair the allegedly dangerous condition is unpreserved since it is raised for the first time on appeal.

Case:  Rios v. 1146 Ogden LLC, NY Slip Op 01420 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Labor Law § 200 and liability for injuries arising from the manner in which the work is performed.

Schools, negligent supervision, and punitive damages.

Practice point:  The Appellate Division reversed, and dismissed the claims of negligent supervision and punitive damages in this action for damages allegedly sustained when plaintiff was assaulted in a school hallway by a fellow student's family members.

The school district established its prima facie entitlement to judgment as a matter of law by demonstrating that it had no actual or constructive knowledge or notice of any dangerous conduct on the part of the fellow student's family, and that the attack on plaintiff was thus not reasonably foreseeable. Plaintiff failed to raise a triable issue of fact.

Student note:  New York does not recognize a separate cause of action for punitive damages, and, in any event, punitive damages are not available against the school district because it is a public corporation.

Case:  Dixon v. William Floyd Union Free Sch. Dist., NY Slip Op 01289 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Out-of-possession landlords.

Motions for leave to renew.

Practice point:  The motion must be based upon new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221[e][2], and it must contain reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][3]. The motion is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

Student note:  The Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion.

Case:  Central Mtge. Co. v. Resheff, NY Slip Op 01283 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Schools, negligent supervision, and punitive damages.

Ordinary negligence and recklessness standards of care.

Practice point: The Appellate Division reversed and reinstated the complaint in this action where plaintiff, a livery cab driver, was parked on the shoulder near a parkway's exit ramp when his vehicle was struck by a snow plow driven by defendant, an employee of defendant New York City Department of Transportation.  On appeal, plaintiff asserted that the Supreme Court should have assessed defendant's liability based on an ordinary negligence standard of care because, at the time of the accident, the City regulation governing snow plows did not expressly set forth a standard of care. The Appellate Division held that a recklessness standard of care applies, as the Court of Appeals recently held that, even though the statute did not specifically identify the applicable standard of care, in light of the language of the statute as a whole, its legislative history, and related case law, the standard is recklessness.

Student note: Under the applicable standard, defendants will be liable only if driver-defendant acted in conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.

Case:  Dejean v. Lawton, NY Slip Op 01149 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Motions for leave to renew.

Doctrine of law of the case.

Practice point: The Appellate Division affirmed the motion court's order, as, on a prior appeal, it had determined that representatives of the retired/deceased partner were not entitled to share in the appreciation of partnership assets after the date of dissolution of the partnerships, namely, the gain on the sale of commercial real estate sold after the date of dissolution.  On this appeal, the defendant did not demonstrate new factual circumstances or a change in the law which would warrant reconsideration of the issue.

Student note: The Appellate Division noted that the doctrine of law of the case precludes it from reexamining an issue which has been raised and decided against a party or those in privity with that party on a prior appeal absent a showing of subsequent evidence or a change in law.

Case:  Breidbart v. Wiesenthal, NY Slip Op 01143 (2d Dept. 2016)

Here is the decision.

Monday's issue:  Ordinary negligence and recklessness standards of care.

Summary judgment on a Labor Law § 240(1) cause of action.

Practice point:  The Appellate Division affirmed the granting of plaintiff's motion in this action resulting from an injury sustained while plaintiff was operating a prime mover, which resembles a mini-forklift, to hoist a load of bricks onto a scaffold.

The Appellate Division determined that if the prime mover pitched forward due to the force of gravity, it failed to offer adequate protection and Labor Law § 240(1) applies.  Similarly, if the accident occurred because either the prime mover or scaffold could not support the weight of the brick load, the accident also resulted from the application of the force of gravity to the load during the hoisting operation, and the statute also applies.

Student note:  Comparative negligence is not a defense to a Labor Law § 240(1) claim.

Case:  Somereve v. Plaza Constr. Corp., NY Slip Op 01236 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Doctrine of law of the case.

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.