An unsigned expert's report.

Practice point:  The motion court properly considered the report, even though it was unsigned, as it was incorporated into the expert's sworn affidavit, thus rendering it appropriate for consideration on defendant's summary judgment motion.

Case:  Pastabar Café Corp. v. 343 E. 8th St. Assoc., LLC, NY Slip Op 01305 (1st Dep't February 21, 2017)

Here is the decision.

Tomorrow's issue:  A rear-end collision and summary judgment.

Dismissal of an age-based discrimination claim.

The Appellate Division affirmed dismissal in this age-based employment discrimination action brought under the New York State and City Human Rights Laws. In moving for summary judgment, defendant submitted video footage, which it believed showed plaintiff and another employee surveying and intending to purloin a customer's computer equipment, as a legitimate, nondiscriminatory reason for terminating plaintiff.  In response to this showing, plaintiff failed to point to any evidence raising an issue of fact as to whether defendant's proffered reason was pretextual, or whether plaintiff's age otherwise played a part in its decision.

Practice point:   The absence of any evidence of age-based discriminatory animus is fatal to plaintiff's claim of hostile work environment.

Case:  Arifi v. Central Moving & Stor. Co., Inc., NY Slip Op 01268 (1st Dep't February 16, 2017)

Here is the decision.

Monday's issue:  An unsigned expert's report.

Notices of claim.

Practice point: A notice of claim must state the time when, the place where and the manner in which the claim arose, pursuant to General Municipal Law § 50-e[2].  Service of the notice within 90 days after accrual of the claim is a condition precedent to the commencement of a tort action against a municipality or a public benefit corporation such as the Transit Authority. The purpose of the statutory notice requirement is to afford the public corporation an opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available.  The statute is not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones. Therefore, a court may, in its discretion, allow a mistake, irregularity, or defect in a notice of claim to be corrected as long as that mistake, irregularity, or defect was made in good faith and the public corporation was not prejudiced thereby.

Case:  Bowers v. City of New York, NY Slip Op 01174 (2d Dep't February 15, 2017)

Here is the decision.

Tomorrow's issue:  Dismissal of an age-based employment discrimination claim.

The homeowner's exemption under the Labor Law.

Practice point:  Owners of a one- or two-family dwelling used as a residence are exempt from liability under Labor Law §§ 240(1) and 241(6), unless they directed or controlled the work being performed. The so-called homeowner's exemption was enacted to protect owners of one- and two-family dwellings who are not in a position to realize, understand, and insure against the responsibilities of strict liability imposed by the statute.  There are two requirements for a defendant's invoking the exemption. First, the defendant must show that the work was conducted at a dwelling that is a residence for only one or two families, and, second, the defendant does not direct or control the work.

Case:  Abdou v. Rampaul, NY Slip Op 01169 (2d Dep't February 15, 2017)

Here is the decision.

Tomorrow's issue:  Notices of claim.

A supplier's liability under the Labor Law.

The Appellate Division affirmed the motion court dismissal of the complaint as against the defendant-supplier.  The supplier established that it was not an agent of the owner under Labor Law § 241(6), since it did not have the authority to direct, supervise, or control the injury-producing work.  Instead, it was merely the supplier of the allegedly defective mini-container, against whom liability under the Labor Law cannot be imposed.

Case:  Ahern v. NYU Langone Med. Ctr., NY Slip Op 01264 (1st Dep't February 16, 2016)

Here is the decision.

Tomorrow's issue:  The homeowner's exemption under the Labor Law.

Court holiday

Tomorrow's issue: A supplier's liability under the Labor Law.

Manhole covers and the prior written notice requirement.

The Appellate Division affirmed dismissal in this action seeking recovery for injuries allegedly sustained when the front wheel of the bicycle plaintiff was riding came into contact with gravel located around a large hole, near a manhole cover.  The Appellate Division found that plaintiff failed to establish that an exception to the prior written notice requirement of Administrative Code of the City of New York § 7-201(c)(2) is at issue. The City's ownership of a manhole cover, which allows the City to access the sewer system and water pipes in order to perform maintenance and repairs, does not provide the City with a special benefit from that property unrelated to the public use.  Accordingly, it does not fall within the "special use" exception to the requirement that the City have prior written notice of the defect.

Case:  Chambers v. City of New York, NY Slip Op 01120 (1st Dep't February 10, 2017)

Here is the decision.

Tuesday's issue:  A supplier's liability under the Labor Law.

Compiling the appellate record.

 Practice point:  It is the appellant's obligation of the to assemble a proper record on appeal, including all the relevant papers before the Supreme Court. An appeal that is based on an incomplete and improper record must be dismissed.

Case:  Deutsche Bank Natl. Trust Co. v. Hounnou, NY Slip Op 00958 (2d Dep't February 8, 2017)

Here is the decision.

Tomorrow's issue:  Manhole covers and the prior written notice requirement.

A motion to strike an answer.

In an action to recover damages for personal injuries and wrongful death, the Appellate Division found that, in the absence of evidence that the defendant willfully and contumaciously failed to appear for deposition, the Supreme Court improvidently exercised its discretion in conditionally striking her answer.  Under the circumstances, the appropriate remedy was to preclude defendant from offering any testimony at trial unless she appeared for a deposition at least 30 days before the trial.

Case:  Brodsky v. Amber Ct. Assisted Living, LLC, NY Slip Op 00955 (2d Dep't February 8, 2017)

Here is the decision.

Tomorrow's issue:  Compiling the appellate record.

Liability under Labor Law § 241(6).

Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers. In order to recover damages on a cause of action alleging a statutory violation, a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards, and must demonstrate that the injuries were proximately caused by the violation of an Industrial Code provision that is applicable under the circumstances of the case. Contributory and comparative negligence are valid defenses to a Labor Law § 241(6) claim.

Practice point:  A party is not entitled to recovery under Labor Law § 241(6) based on a violation of 12 NYCRR 23-1.7(e) (1) where the object he or she tripped over was an integral part of the construction.

Case:  Aragona v. State of New York, NY Slip Op 00954 (2d Dep't February 8, 2017)

Here is the decision.

Tomorrow's issue:  A motion to strike an answer.

Court holiday.

Announcement of Candidacy for the Illinois Legislature March 1832

Fellow-Citizens: I presume you all know who I am. I am humble Abraham Lincoln. I have been solicited by many friends to become a candidate for the Legislature. My politics are short and sweet, like the old woman's dance. I am in favor of a national bank. I am in favor of the internal improvement system, and a high protective tariff. These are my sentiments and political principles. If elected, I shall be thankful; if not it will be all the same.

Note:  In a field of thirteen candidates, of whom the top four were elected, he finished eighth. In his home district of New Salem, of 300 votes cast, he received 277.

__________________________________________

Tomorrow's issue: Liability under Labor Law § 241(6).