Court holiday.

Tomorrow's issue:  Absolute liability under the Labor Law.

The presumption of proper service.

Practice point:  A defendant's conclusory and undocumented affidavit asserting that he had moved, when the defendant had not notified the post office of a change of address, is insufficient to rebut the presumption of proper service created by the process server's affidavit, even if that service was by nail and mail.

Case:  Wells Fargo Bank, N.A. v. Kissi, NY Slip Op 00006 (1st Dep't January 3, 2017)

Here is the decision.

Tuesday's issue:  Absolute liability under the Labor Law.

A runaway bus.

The Appellate Division affirmed the order granting plaintiff's motion for summary judgment on  liability and dismissing the affirmative defenses alleging plaintiff's culpable conduct. The evidence showed that the owner-defendants' unoccupied bus, which the driver-defendant had parked on a sloping street, began to roll down the street after its brakes made an alleged "hissing" sound, and struck the rear of plaintiff's taxi, which was waiting at a red light about 100 feet from where the bus had been parked.  The injured plaintiff testified at his deposition that he was stopped at a red light at the intersection for 10 to 15 seconds, and that he did not hear or see the bus until it struck the back of his taxi. The bus pushed plaintiff's taxi into the crosswalk where it hit a pedestrian.

A prima facie inference of defendants' negligence is inescapable, and there is no evidence of culpable conduct on plaintiff's part.. Defendants' evidence, including the bus driver's testimony about his usual custom and practice, does not raise a triable issue of fact as to defendants' alleged lack of negligence or plaintiff's alleged culpable conduct.

Case:  Fofana v. New Jersey Tr. Corp., NY Slip Op 00073 (1st Dep't January 5, 2016)

Here is the decision.

Tomorrow's issue:  The presumption of proper service.

Tort claims asserted under Mexican law.

The Appellate Division affirmed dismissal in this action where plaintiff claimed defendant acted tortiously by using its power as the note holder to seize control of the property and squeeze plaintiff out of its operations. Plaintiff failed to meet its burden of showing a relevant conflict between the laws of New York and Mexico. Neither did plaintiff adequately plead that the locus of the alleged torts was in Mexico, since the complaint alleges that the business transactions, including the loan purchase, occurred in New York. In addition, plaintiff does not allege that the post-acquisition conduct to take control of the property occurred elsewhere.

Case:  Desarrolladora Farallon S. de R.L. de C.V. v. Mexvalo, S. de R.L. de C.V., NY Slip Op 00070 (1st Dep't January 5, 2016)

Tomorrow' issue:  A runaway bus.

The reinstatement of common-law negligence and Labor Law § 200 claims.

The Appellate Division reversed the motion court and reinstated the claims in this action where plaintiff alleges that he was injured when the ladder he was standing on slipped out from under him because it was missing the proper footing. The legal standard that governs claims under Labor Law § 200 is whether the owner created the dangerous or defective condition or had actual or constructive notice thereof, not whether the accident arose out of the means and methods of plaintiff's work.

Based on the parties' conflicting deposition testimony, there is a triable issue as to whether defendants provided plaintiff with the allegedly defective ladder. Moreover, plaintiff's testimony that the ladder was missing its feet was sufficient to raise an issue of fact as to whether defendants had constructive notice of the defect because of its visible and apparent nature.

Case:  Jaycoxe v. VNO Bruckner Plaza, LLC, NY Slip Op 00012 (1st Dep't January 3, 2017)

Here is the decision.

Tomorrow's issue:  Tort claims asserted under Mexican law.

A Labor Law 241(6) claim.

The Appellate Division affirmed the granting of summary judgement as to liability in this claim predicated on a violation of NYCRR 23-1.16(b), finding that, while plaintiff was provided with a safety harness, he was not provided with a proper place to tie off his harness.

The statute imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety to workers. Industrial Code (12 NYCRR) § 23-1.16(b), which applies to the proper use, instruction, maintenance and measurements for safety belts, harnesses, tail lines and life lines, is sufficiently specific to sustain a claim under the statute. Specifically, NYCRR 23-1.16(b) provides as follows:

(b) Attachment required. Every approved safety belt or harness provided or furnished to an employee for his personal safety shall be used by such employee in the performance of his work whenever required by this Part (rule) and whenever so directed by his employer. At all times during use such approved safety belt or harness shall be properly attached either to a securely anchored tail line, directly to a securely anchored hanging lifeline or to a tail line attached to a securely anchored hanging lifeline. Such attachments shall be so arranged that if the user should fall such fall shall not exceed five feet.

Case:  Anderson v. MSG Holdings, L.P., NY Slip Op 00002 (1st Dep't January 3, 2017)

Here is the decision.

Tomorrow's issue:  The reinstatement of common-law negligence and Labor Law § 200 claims.

Terminating the employment of a probationary teacher.

Practice point:  A board of education has the right to terminate the employment of a probationary teacher or principal at any time and for any reason, unless the teacher or principal establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith.

Case:  Matter of Palmore v. Board of Educ. of Hempstead Union Free Sch. Dist., NY Slip Op 08973 (2d Dep't December 30, 2016)

Here is the decision.

Monday's issue:  A Labor Law 241(6) claim.

A summary judgment motion in a case involving an insurance contract or policy.

Practice point:  On the motion, the evidence will be construed in the light most favorable to the nonmovant, and the insured has the burden of showing that the contract covers the loss for which the claim is made.  The applicable standard holds that the insurer has a duty to defend when (1) the allegations in the complaint in the underlying action, construed liberally, suggest a reasonable possibility of coverage, or (2) where the insurer has actual knowledge of facts establishing such a reasonable possibility.  Any .contractual exclusion from coverage must be specific and clear in order to be enforced.

Case:  City of New York v. Wausau Underwriters Ins. Co., NY Slip Op 08932 (1st Dep't December 29, 2016)

Here is the decision.

Tomorrow's issue:  Terminating the employment of a probationary teacher.

An insufficient motion to strike an answer.

Practice point:  The trial court improvidently exercises its discretion in granting the motion in the absence of a finding that the nonmovant's behavior was willful, contumacious, or due to bad faith, and it will be reversed.

Case:  Haynes v. City of New York, Slip Op 08930 (1st Dep't December 29, 2016)

Here is the decision.

Tomorrow's issue:  A summary judgment motion in a case involving an insurance contract or policy.

The presumption of proper service.

Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service.  When a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the process server's affidavit, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing.  A hearing is not required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavit.

Case:  Emigrant Bank v. Ramasir, NY Slip Op 08503 (2d Dep't December 21, 2016)

Here is the decision.

Tomorrow's issue:  An insufficient motion to strike an answer.

Court holiday.