An exception to the best evidence rule.

Practice point:  Under an exception to the best evidence rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith.  Once the absence of an original document is excused, all competent secondary evidence is admissible to prove its contents. However, the proponent of the secondary evidence has a heavy burden of establishing, preliminarily to the court's satisfaction, that it is a reliable and accurate portrayal of the original. So, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original before ruling on its admissibility.

Case:  76-82 St. Marks, LLC v. Gluck, NY Slip Op 01329 (2d Dep't February 22, 2017)

Here is the decision.

Tomorrow's issue:  Guaranties on a note, and counterclaims.

The continuous wrong doctrine.

Practice point:  The continuous wrong doctrine is an exception to the general rule that the statute of limitations runs from the time of the breach, even though the damage occurs later.  Typically, the doctrine is invoked where there is a series of continuing wrongs, and it serves to toll the running of a period of limitations to the date of the commission of the last wrongful act.  If applicable, the doctrine saves all claims for recovery of damages, but only to the extent of wrongs committed within the applicable statute of limitations.

The doctrine may be predicated only on continuing unlawful acts, and not on the continuing effects of earlier unlawful conduct. The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs. The doctrine is inapplicable where there is one tortious act alleged, as the cause of action accrues in those cases at the time that the wrongful act first injured plaintiff, and it does not change as a result of continuing consequential damages. In a contract action, the doctrine extends the statute of limitations when the contract imposes a continuing duty on the breaching party. Thus, where a plaintiff asserts a single breach - with damages increasing as the breach continued - the theory does not apply.

Case:  Henry v. Bank of Am., NY Slip Op 01436 (1st Dep't February 23, 2017)

Here is the decision.

Tomorrow's issue:  An exception to the best evidence rule.

A rear-end collision and summary judgment.

The Appellate Division affirmed the granting of plaintiff's summary judgment motion on the issue of liability, finding that plaintiff established that defendant-driver was negligent. Although plaintiff came to a sudden stop and defendants contend that the icy road conditions provide a valid, non-negligent explanation for the accident, a driver must maintain enough distance between himself and cars ahead so as to avoid collisions with stopped vehicles, taking into account weather and road conditions. Defendants' reliance on the emergency doctrine is misplaced, as defendant-driver was aware of inclement weather conditions and should have accounted for them.

Practice point:  A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the rear vehicle's driver, and imposes a duty on the part of the moving vehicle's operator to offer an adequate, nonnegligent explanation for the accident. An argument that the plaintiff stopped suddenly does not rebut the presumption of negligence.

Case:  Matos v. Sanchez, NY Slip Op 01306 (1st Dep't February 21, 2017)

Here is the decision.

Tomorrow's issue:  The continuous wrong doctrine.

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.