CPLR 3211 motions to dismiss.

Practice point:  On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.  While the court is may consider evidentiary material submitted by a defendant in support of the motion to dismiss, unless the motion is converted to one for summary judgment, the standard is whether the plaintiff has a cause of action, not whether he has stated one. Unless it is shown that a material fact as claimed by the plaintiff is not a fact at all, and unless there is no significant dispute exists regarding it, the motion will be denied.  A motion to dismiss pursuant to CPLR 3211(a)(1) may properly be granted only where there is documentary evidence that utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Case:  Anzora v. 81 Saxon Ave. Corp., NY Slip Op 00281 (2d Dep't January 18, 2017)

Here is the decision.

Tomorrow's issue:  A premature summary judgment motion.

Force majeure clauses

Practice point:  Force majeure clauses are interpreted in accord with their purpose, which is to limit damages in a case where the reasonable expectation of the parties and the performance of the contract have been frustrated by circumstances beyond the parties' control.  When the parties themselves have defined the contours of force majeure in their agreement, those contours dictate the application, effect, and scope of force majeure.

Case:  Constellation Energy Servs. of N.Y., Inc. v. New Water St. Corp., NY Slip Op 00260 (1st Dep't January 17, 2017)

Here is the decision.

Monday's issue:  CPLR 3211 motions to dismiss.

A traffic violation and negligence per se.

Practice point:  Vehicle and Traffic Law § 1141 provides, in pertinent part, that "[t]he driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard."  A violation of this statute constitutes negligence per se.

Case:  Al-Mamar v. Terrones, NY Slip Op 00140 (2d Dep't January 11, 2017)

Here is the decision.

Tomorrow's issue:  Force majeure clauses.

Summary judgment on a Labor Law 240(1) claim.

The Appellate Division reversed the order denying plaintiff's motion for partial summary judgment on liability, and granted the motion in this action to recover for personal injuries allegedly sustained when plaintiff fell from a ladder at defendant-church while performing electrical work.

Plaintiff testified that as he descended from the attic on a wooden ladder, which was permanently affixed to the wall, the ladder shifted. Specifically, plaintiff testified that as he attempted to descend the ladder, he reached for it and placed his right hand and foot on it, but it moved away from him, causing him to fall headfirst 12 to 17 feet to the choir loft below. He further testified that he did not have anything in his hands as he was coming down the ladder. According to plaintiff, the ladder was attached to the wall in a jerry-rigged fashion, connected at the top to a joist beam with grey metal wires. The ladder went up the wall of the choir loft/mezzanine to an access point for the attic of the church. The church's pastor testified that he guessed the ladder had been there since the church had been built 150 years ago.

By testifying that as he descended the ladder it shifted, causing his fall, plaintiff established a prima facie violation of the statute.  Defendant's affidavit averring that plaintiff had told his nonparty-employer that he fell when attempting to descend the ladder using one hand as he carried tools or equipment in the other and missed a rung with his free hand, failed to refute plaintiff's testimony that the ladder shifted and failed to create triable issues of fact that plaintiff's actions were the sole proximate cause of the accident. Plaintiff also denies making the statement.

The Appellate Division rejected defendant's contention that there are issues of fact as to whether plaintiff may be the sole proximate cause of the accident for failing to use the ladder, safety harness and rope provided by his employer. While the vice-president of plaintiff's employer stated in an affidavit that safety harnesses and other safety devices were available to plaintiff, the affidavit was vague as to what other safety devices were available, to what plaintiff should have attached the harness, or whether there were any available anchorage points.  In addition, defendant does not explain how a rope that was used to hoist materials to the attic where plaintiff was working could be used as a safety device.  Plaintiff's decision to use the ladder already in place cannot be the sole proximate cause of his accident where he was never instructed not to use it.

Case:  Garcia v. Church of St. Joseph of the Holy Family of the City of N.Y., NY Slip Op 00239 (1st Dep't January 12, 2017)

Here is the decision.

Tomorrow's issue:  A traffic violation and negligence per se.

Absolute liability under the Labor Law.

Practice point:  Once it is determined that the owner or contractor failed to provide the necessary safety devices required to give a worker proper protection, absolute liability is inescapable under § 240(1). In opposition to the motion for summary judgment, defendants must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact.

Case:  Erkan v. McDonald's Corp., NY Slip Op 00099 (1st Dep't January 10, 2017)

Here is the decision.

Tomorrow's issue:  Summary judgment on a Labor Law 240(1) claim.

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.