Application of the storm in progress rule.

Practice point:  Under the rule, a property owner is not responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence including the affidavit of a meteorologist, certified climatological data, and the affidavit of a licensed engineer. That evidence demonstrated that the roof of the shed partially collapsed due to the weight of the accumulated snow, and that it was snowing at the time of the occurrence and, therefore, that so the storm in progress rule applies. The burden then shifted to the plaintiff to raise a triable issue of fact as to whether the precipitation from the storm in progress was not the cause of the accident. The plaintiff failed to sustain this burden, and the Appellate Division affirmed the granting of the defendants' motion for summary judgment dismissing the complaint.

Student note:  A lull in the storm does not impose a duty to remove the accumulation of snow or ice before the storm ceases in its entirety.

Case:  Baker v. St. Christopher's Inn, Inc., NY Slip Op 02600 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Application of the relation-back doctrine.

Leave to amend denied.

Practice point:  The Appellate Division affirmed, finding that the IAS court did not abuse its discretion in denying plaintiff leave to amend to add claims of injuries to her left foot. While plaintiff was aware of the injury to her left foot for more than three years, she inexplicably delayed in seeking her expert's opinion on the issue of causation, and then further delayed in filing the instant motion. As the evidence ultimately relied upon by plaintiff's expert was developed in 2009 and 2011, well before plaintiff filed her note of issue in 2012, the motion was untimely.

Student note:  The decision to permit an amendment to a pleading or bill of particulars, especially on the eve of trial, is committed to the sound discretion of the IAS court.

Case:  Reuling v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 02707 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Application of the storm in progress rule.

CPLR 7511 and arbitration awards.

Practice point:  The Appellate Division rejected the petitioner's contention that the arbitrator exceeded his authority, and affirmed the arbitrator's award.  An arbitrator exceeds his or her authority only if the arbitrator gives a completely irrational construction to the provisions in dispute. Here, the Appellate Division determined that it was not irrational for the arbitrator to find that the broad arbitration clause of the subject personal management agreement, which contained a carve-out for the "collection of any past due monies," pertained only to disputes that were delinquent but not genuinely disputed, and that the determination of amounts owing could be determined by the arbitrator.

Nor was the arbitrator's determination in disregard of the law or so abusive of his discretion as to constitute misconduct. Petitioners were not denied a fair hearing because the arbitrator accepted respondent's position on commissions as expressed in her affidavit, which was supported by the documentary evidence submitted in response to petitioner's extensive interrogatories. There was no need for a deposition to determine respondent's credibility; the arbitrator had the opportunity to make that assessment at the arbitration hearing.

Student note:  The standard for vacating an arbitration award under CPLR 7511 is clear and convincing evidence.

Case:  Matter of Greenky v. Aytes, NY Slip Op 02714 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Leave to amend denied.

An attorney's withdrawal.

Practice point:  The Appellate Division reversed the motion court, finding that it improvidently exercised its discretion in denying the unopposed renewed motion for leave to withdraw as plaintiffs' counsel. The attorney established that plaintiffs were in substantial arrears in the payment of legal fees, and failed to cooperate in their representation.  In addition, plaintiffs did not oppose the motion for leave to withdraw as their counsel.

Student note:  An attorney may be permitted to withdraw from employment where a client refuses to pay reasonable legal fees, pursuant to Rules of Professional Conduct 1.16[c][5].  In addition, an attorney may withdraw from representing a client if the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively, pursuant to Rules of Professional Conduct 1.16[c][7].

Case:  Aragona v. Shaibani, NY Slip Op 02598 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  CPLR 7511 and arbitration awards.

Expert testimony and jury delibertions.

Practice point:  The jury is entitled to resolve in plaintiff's favor the conflict between the parties' expert witness testimony.  While defendant's expert reached a different conclusion as to causation, the jury is free to accord more weight to the testimony of plaintiff's expert.

Student note: The jury's resolution of the conflicting expert testimony is not a basis for an appellate court's disturbing the verdict.

Case:  Douayi v. Carissimi, NY Slip Op 02563 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  An attorney's withdrawal.

The death of a party.

Practice point:  The death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a legal representative for the decedent, pursuant to CPLR 1015(a).  Any determination rendered without the necessary substitution will be deemed a nullity.

Student note:  The death of a party terminates the authority of that person's attorney to act on that person's behalf.

Case:  Aurora Bank FSB v. Albright, NY Slip Op 02307 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Expert testimony and jury deliberations.

Summary judgment in a slip-and-fall action.

Practice point:  The defendant's maintenance employee testified at his deposition about his regular cleaning routine for the building, but he had no independent recollection of having cleaned the floor on the date of the plaintiff's accident.  There was no deposition testimony describing the condition, including whether the maintenance employee had seen water on the floor.  Since the defendant did not submit evidence regarding any specific inspection or cleaning of the area on the date of the accident, the defendant failed to establish that it did not have constructive notice of the alleged dangerous condition.  In addition, the defendant's submissions did not eliminate all triable issues of fact as to whether it created the alleged dangerous condition.  Therefore, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, and the Appellate Division affirmed the denial of the defendant's motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers.

Student note:  A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.  To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall. Mere reference to general cleaning practices, without evidence of any specific cleaning or inspection of the area, does not establish lack of constructive notice.

Case:  Ansari v. MB Hamptons, LLC, NY Slip Op 02305 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  The death of a party.

A motion to dismiss, and amending a bill of particulars.

Practice point:  The Appellate Division affirmed the motion to dismiss, as photographic evidence proves, and plaintiff acknowledges, that the compressor that was allegedly involved in plaintiff's accident was not at the job site on the day alleged. Plaintiff was not entitled to amend the bill of particulars on the eve of trial, after approximately seven years of litigation, since the photographs serving as the basis for the amendment were not newly available to plaintiff. Moreover, the proposed amendment, including changing the date of the accident, would have resulted in prejudice to defendants  

Student note:  Leave to amend pleadings, including a bill of particulars, will be freely given, absent prejudice or surprise. However, when the amendment is sought at or on the eve of trial, judicial discretion in allowing the amendment should be discreet, circumspect, prudent, and cautious.

Case:  Garguilo v. Port Auth. of N.Y. & N.J., NY Slip Op 02534 (1st Dep't 2016) 

Here is the decision.

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

Setting up a supplemental needs trust.

Practice point:  Plaintiff's daughter, now the decedent, had entered into a settlement with the MTA, resolving a personal injury action. Upon entering into the settlement, decedent, who was receiving supplemental security income, Medicare and Medicaid due to several preexisting conditions, petitioned the court to approve and authorize the creation of a supplemental needs trust, into which the settlement proceeds would be transferred.  The petition was granted, and the MTA sent its portion of the settlement to decedent's counsel, who placed the funds in escrow pending completion of the documents creating and funding the trust.  However, decedent died before she had the opportunity to formally execute the trust documents.  Defendant-claimant, which was to be the remainderman of the trust, moved for the principal and interest that remains in the trust.

The motion court denied the motion, because decedent's failure to complete the formalities associated with setting up the trust prior to her death was fatal to the trust's existence, and the Appellate Division affirmed. Neither decedent nor the putative trustee executed or acknowledged the proposed trust agreement, and the trust was never properly funded with the settlement proceeds. Accordingly, a valid trust was never created.

Student note:  The proposed trust is a "lifetime trust" within the meaning of the EPTL, and therefore it must comply with the formality requirements of EPTL 1-2.20.

Case:  Gaines v. City of New York, NY Slip Op 02294 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A motion to dismiss, and amending a bill of particulars.

The presumed constitutionality of a statute.

Practice point:  The Appellate Division found that the motion court properly determined that plaintiff failed to demonstrate that Family Court Act § 517 was unconstitutional to the extent that it placed a limitation on the time when a child could seek a paternity test, given the state's legitimate interest in securing support for a child from those legally responsible. The limitations period is not arbitrary and capricious in that, by age 21, a parent may not be legally responsible for support.

Plaintiff also failed to provide binding legal authority for his claim that he had a constitutional right to know the identity of his biological father, given the strong presumption that his mother's husband, who was listed on his birth certificate, is his father.

Student note:  A statute is presumed constitutional, and that presumption can only be overcome by proof that is persuasive beyond a reasonable doubt.

Case:  Winkler v. Sherman, NY Slip Op -2142 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Setting up a supplemental needs trust.

A successful motion for leave to amend.

Practice point:  The Appellate Division affirmed the granting of the cross motion for leave to amend, as the proposed amendments were not palpably insufficient or patently devoid of merit, and they did not prejudice or surprise the defendants.  Without alleging new or different facts, the proposed amendments merely sought to add new theories of recovery.

Student note:  Pursuant to CPLR 3025(b), leave to amend a pleading will be freely given, provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.  The motion court will not examine the merits of the proposed amendment unless its insufficiency or lack of merit is clear and beyond any doubt.

Case:  Gallagher v. 109-02 Dev., LLC, NY Slip Op 02050 (2d Dep't 2016)

Here is the decision.

Monday's issue: The presumed constitutionality of a statute.