A claim of discrimination based on national origin.

The Appellate Division affirmed dismissal of this claim in which plaintiff alleged that the City agency failed to select him for two promotions and paid him less than it paid a peer of a different national origin.

Plaintiff established prima facie that he was passed over for promotion under circumstances raising an inference of discrimination. In response, defendants offered legitimate, nondiscriminatory reasons for promoting two employees who were not of plaintiff's origin. Agency decision-makers demonstrated that plaintiff limited his work to fulfilling the minimal requirements of his job; that he sometimes balked at assignments without good reason; and that he failed to meet all of his goals. Defendants further demonstrated that, in contrast, the promoted employees had done outstanding work in positions relevant to the two vacancies at issue.

Plaintiff failed to raise triable issues of fact as to whether defendants' proffered reasons for their decisions were pretextual or incomplete, given the absence of any evidence from which a reasonable jury could infer that his national origin played a role in defendants' passing him over for the promotions. Plaintiff admittedly never complained about the promotion process before commencing this action, and there is no indication that he raised any internal complaints of discrimination. Even if the promotions contravened Civil Service Rules and Regulations § 3.3(a) because the promoted individuals were provisional rather than permanent employees, this technical violation does not establish a discriminatory motive. Plaintiff's other claims that the promotions violated policies and regulations are unsupported. His testimony that the promoted employees were appointed based on friendship with the decision-makers is unavailing. The agency's failure to advertise the positions does not give rise to an inference of discrimination, but merely relieves a plaintiff of the burden to show that he applied for the position.

Plaintiff's deposition testimony recounting two occasions when one of the decision-makers allegedly shouted admonitions at him or another employee of plaintiff's national origin does not establish discrimination based on national origin.  Mere personality conflicts must not be mistaken for unlawful discrimination, lest the antidiscrimination laws become a general civility code.

Finally, plaintiff failed to make a prima facie showing in support of his claim that he was paid less than a peer of another national origin. Although both he and the other employee had the same civil service title, they were not similarly situated in light of the differences in their experience, the other employee's earlier salary, and their differing job responsibilities.

Case:  Uwoghiren v. City of New York, NY Slip Op 01782 (1st Dep't March 9, 2017)

Here is the decision.

Monday's issue:  A fall down the stairs.

Attorneys' fees in a matrimonial action.

Practice point:  In determining whether to award attorneys' fees, a court will review the financial circumstances of both parties, together with all of the other circumstances of the case, which may include the relative merit of the parties' positions. An award pursuant to Domestic Relations Law § 237(a) is warranted where there is a significant disparity in the financial circumstances of the parties.

Case:  Bagielto v. Kolsch, NY Slip Op 01666 (2d Dep't March 8, 2017)

Here is the decision.

Tomorrow's issue:  A claim of discrimination based on national origin.

September 11 and the presumption of causation.

Practice point:  As the legislature has not the extended the presumption of causation to all disabilities subsequently developed by responders to the September attacks, a Court must limit the presumption's applicability to the scope the legislature has provided for it.

Case:  Matter of Stavropoulos v. Bratton, NY Slip Op 01779 (1st Dep't March 9, 2017)

Here is the decision.

Tomorrow's issue: Attorneys' fees in a matrimonial action.

All courts in New York City, including SDNY and EDNY, are closed.

An insufficient claim of intentional infliction of emotional distress.

Practice point:  Plaintiff's factual allegation that defendant made false statements to the police, causing her arrest and incarceration, was insufficient as a matter of law to constitute the extreme and outrageous behavior necessary to sustain the claim.

Case:  Matthaus v. Hadjedj, NY Slip Op 01636 (1st Dep't March 2, 2017)

Here is the decision.

Tomorrow's issue:  September 11 and the presumption of causation.

Summary judgment in a slip-and-fall action.

The Appellate Division affirmed summary judgment and dismissal in this action where plaintiff was injured when she tripped and fell on the sidewalk in front of defendant's home. Defendant, as a single family homeowner, could only be liable for the alleged half-inch height differential where the two sidewalk flagstones met in front of her house if she created or exacerbated the alleged hazardous condition. There was no evidence in the record to indicate that defendant created the height differential. Plaintiff, at most, alleged that tar applied by defendant's husband in the joints between the sidewalk flagstones had somehow obstructed her vision of the alleged height differential. She never claimed to have tripped over the caulking that was only applied in the joint space between the sidewalk flagstones, and her assertion that the caulking had obstructed her view of the height differential in the flagstones was insufficient to raise a triable issue of fact.

Case:  Napoli v. Di Marco, NY Slip Op 01633 (1st Dep't March 2, 2017)

Here is the decision.

Monday's issue:  An insufficient claim of intentional infliction of emotional distress.

The standard for an employment termination that shocks the conscience.

Practice point:  A result is shocking to the court's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in similar situations, and, therefore, a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved.

Case:  Matter of Beatty v. City of New York,, NY Slip 01628 (1st Dep't March 2, 2017)

Here is the decision.

Tomorrow's issue:  Summary judgment in a slip-and-fall action.

A foreclosure settlement conference.

Practice point:  Pursuant to CPLR 3408(f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution. The purpose of the good faith requirement is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort. Compliance with the good faith requirement is measured by the totality of the circumstances and whether the party's conduct demonstrates a meaningful effort to reach a resolution.

Case:  Aurora Loan Servs., LLC v. Diakite, NY Slip Op 01528 (2d Dep't March 1, 2017)

Here is the decision.

Tomorrow's issue: The standard for an employment termination that shocks the conscience.

A landowner's liability.

Practice point:  A landowner has a duty to maintain the premises in a reasonably safe condition. In determining the extent of that duty, the court must take into account circumstances including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that the landowner affirmatively created the condition or had actual or constructive notice of its existence. A defendant is deemed to have had constructive notice of a defect when (1) the defect was visible and apparent, and (2) it existed long enough for the defendant to have discovered and remedied it before the plaintiff was injured.  When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed.  In moving for summary judgment on the ground that the alleged defect was latent, a defendant must establish, prima facie, that the defect was not visible or apparent and would not have been discoverable upon a reasonable inspection, and that he or she did not affirmatively create the defect and did not have actual notice of it.

Case:  Arevalo v. Abitabile, NY Slip Op 01526 (2d Dep't March 2, 2017)

Here is the decision.

Tomorrow's issue:  A foreclosure settlement conference.

Motions to vacate.

Practice point:  The court may grant a motion to vacate a default on grounds of excusable default and a showing of a meritorious defense, if the motion is made within one year after service of the order entered on default, with written notice of its entry, pursuant to CPLR 5015[a][1].

Case:  Marston v. Cole, NY Slip Op 01489 (1st Dep't February 28, 2017)

Here is the decision.

Tomorrow's issue: A landowner's liability.

Guaranties on a note, and counterclaims.

Plaintiff established prima facie its entitlement to summary judgment on defendants' guaranties of a nonparty's obligations under a loan agreement by submitting evidence of the loan agreement, promissory notes, individual guaranties, and the borrower's and defendants' failure to pay. In opposition, defendants failed to raise an issue of fact.

The claims of breach of contract and negligent interference with collateral are not defenses to the borrower's liability under the loan agreement; they are merely counterclaims. The adjudication of these claims will not affect the borrower's liability for repayment of the amounts borrowed before the breach occurred, although it may entitle the borrower to damages. Because the breach of contract and negligent interference with collateral claims are separate from the borrower's unequivocal and unconditional obligation to repay the monies it was loaned, defendants are still liable under the guaranties and promissory notes.

Case:  Capital One Taxi Medallion Fin. v. Corrigan, NY Slip Op 01488 (1st Dep't February 28, 2017)

Here is the decision.

Monday's issue:  Motions to vacate.