Non-employers, joint employers, and employment discrimination claims.

Practice point:  In determining whether an ostensible non employer is actually a joint employer for purposes of employment discrimination claims under the State and City Human Rights Laws,  Federal District courts in New York have applied the "immediate control" test.  Under the test, there is a joint employer relationship where there is sufficient evidence that the defendant had immediate control over the other company's employees, especially the defendant's control in setting the terms and conditions of the employee's work.

Student note:  In applying the test, relevant factors include commonality of hiring, firing, discipline, pay, insurance, records, and supervision,  The most important factor is the extent of the employer's right to control the means and manner of the worker's performance.

Case:  Brankov v. Hazzard, NY Slip Op 05778 (1st Dep't August 11, 2016)

Here is the decision.

Tomorrow's issue:  Vacating a default pursuant to CPLR 5015.

CPLR 3126 and discovery violations.

Practice point:  The drastic remedy of striking a pleading pursuant to CPLR 3126 will not be imposed unless the failure to comply with discovery demands or orders is willful and contumacious. Similarly, precluding a party from presenting evidence requires a showing of willful and contumacious conduct. Such conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply over an extended period of time.

Student note:  The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of the motion court.

Case:  Cioffi v. S.M. Foods, Inc., NY Slip Op 05741 (2d Dep't August 10, 2016)

Here is the decision.

Monday's issue: Non-employers, joint employers, and employment discrimination claims.

Statue of limitations on an alleged violation of Rule 105 of Regulation M of the Securities Exchange Act.

Practice point:  A breach of fiduciary duty claim based on an alleged violation of Rule 105 of Regulation M of the Securities Exchange Act of 1934 is subject to a three-year rather than a six-year statute of limitations.

Student note:  The issue of the statute of limitations may be considered for the first time on appeal because it does not depend on a matter outside the record.

Case:  Beach v. Touradji Capital Mgt., LP, NY Slip Op 05757 (1st Dep't August 11, 2016)

Here is the decision.

Tomorrow's issue: CPLR 3126 and discovery violations.

Oral agreements and indefiniteness.

Practice point:  An oral agreement may be enforceable as long as the terms are clear and definite and the conduct of the parties evinces mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. However, not all terms of a contract need be fixed with absolute certainty, and courts will not apply the doctrine of indefiniteness to defeat the reasonable expectations of the parties in entering into the contract.

Student note:  Where there may exist an objective method for supplying the missing terms needed to calculate the alleged compensation owed to a plaintiff, a claimed oral agreement is not, as a matter of law, unenforceable for indefiniteness.

Case:  Kramer v. Greene, NY Slip Op 05776 (1st Dep't August 11, 2016)

Here is the decision.

Tomorrow's issue: Statue of limitations on an alleged violation of Rule 105 of Regulation M of the Securities Exchange Act.

A chain collision accident.

Practice point:  In a chain collision accident, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle.

Student note:  A driver shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway, pursuant to Vehicle and Traffic Law § 1129 [a]. So, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision.

Case:  Chuk Hwa Shin v. Correale, NY Slip Op 05749 (2d Dep't August 10, 2016)

Tomorrow's issue:  Oral agreements and indefiniteness.

Assumption of the risk in a zip-line accident.

Practice point:  The Appellate Division reversed the granting of the motion to dismiss, noting that if plaintiff had merely lost his grip and fallen off the seat while riding the zip line, he would be barred from recovery because that is an inherent risk of zip-lining. However, plaintiff's claim is not that he fell victim to such a common hazard. Rather, it is that the zip line was negligently constructed by defendant and that he had no way of knowing that. A person cannot be said to have assumed the risk of being injured by faulty equipment when he was unaware that the equipment was faulty.

Student note:  A participant in an athletic or recreational activity assumes known risks and relieves a defendant of any duty to safeguard him or her from those risks.  However, a participant only consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Whether a plaintiff was aware of the risk is key to determining if he or she assumed it, and this can only be assessed against the background of the skill and experience of the particular plaintiff. In addition, sporting participants will not be deemed to have assumed concealed or unreasonably increased risks.

Case:  Zelkowitz v. Country Group, Inc., NY Slip Op 05732 (1st Dep't August 4, 2016)

Here is the decision.

Tomorrow's issue:  A chain collision accident.

A post-appeal motion for leave to renew.

Practice point:  On a post-appeal motion for leave to renew, the movant bears a heavy burden of showing due diligence in presenting the new evidence to the Supreme Court.  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:  Pursuant to CPLR 2221(e)(2), a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination . . . and . . . shall contain reasonable justification for the failure to present such facts on the prior motion."

Case:  Priant v. New York City Tr. Auth., NY Slip Op 05707 (2d Dep't August 3, 2016)

Here is the decision.

Monday's issue:  Assumption of the risk in a zip-line accident.

Traffic lights and municipal liability.

Practice point:  The installation of a traffic control signal, where it had not previously existed, is a discretionary governmental function that does not give rise to state liability. However, liability is imposed where there is a failure properly to maintain an already established traffic ligh, and where that failure was a proximate cause of the accident.

Student note:  The state has a non-delegable duty to maintain the roadway in safe condition.

Case:  Chang v. City of New York, NY Slip Op 05728 (1st Dep't August 4, 2016)

Here is the decision.

Tomorrow's issue:  A post-appeal motion for leave to renew.

Venue in an action involving a domestic corporation.

Practice point:  The venue of an action is proper in the county in which any of the parties resided at the time of commencement. The sole residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation, despite its maintenance of an office or facility in another county.

Student note:  To prevail on a motion pursuant to CPLR 510(1) to change venue, a defendant must show that the plaintiff's choice of venue is improper, and also that the defendant's choice of venue is proper.

Case:  Kidd v. 22-11 Realty, LLC, NY Slip Op 05705 (2d Dep't August 3, 2016)

Here is the decision.

Tomorrow's issue:  Traffic lights and municipal liability.

Attorney disqualification based on an alleged conflict of interest.

Practice point:  Where, as here, a party is neither a present nor a former client of the law firm sought to be disqualified, it acks standing to seek disqualification.

Student note:  The basis of a motion to disqualify an attorney due to an alleged conflict of interest is an allegation of a breach of a fiduciary duty owed by an attorney to a current or former client. When the firm sought to be disqualified has never represented the moving party, that firm owes no duty to that party, and there can be no duty breached.

Case:  Ellison v. Chartis Claims, Inc., NY Slip Op 05704 (2d Dep't August 3, 2016)

Here is the decision.

Tomorrow's issue:  Venue in an action involving a domestic corporation.

An "error in judgment" charge.

Practice point:  The Appellate Division determined that a new trial is required because the Supreme Court erred in giving an "error in judgment" charge over the plaintiff's objection. The Appellate Division found that this case does not present a choice between one of two or more medically acceptable alternative treatments or techniques.  The defendant testified that he diagnosed the decedent with a benign non-urgent condition, and he neither suspected cancer nor considered the option of sending the decedent for further diagnostic testing. Thus, the case presented the jury with the straightforward question of whether the defendant deviated from the applicable standard of care in diagnosing the decedent.

Student note:  The charge is appropriate only in a narrow category of medical malpractice cases in which there is evidence that defendant physician considered and chose among several medically acceptable treatment alternatives.

Case:  Lacqua v. Silich, NY Slip Op 05628 (2d Dep't July 27, 2016)

Here is the decision.

Tomorrow's issue: Attorney disqualification based on an alleged conflict of interest.