Failure to state a claim as an affirmative defense.

Practice point:  The Appellate Division stated the the motion court was not free to dismiss the affirmative defense of failure to state a claim, as failure to state a claim may be raised at any time, even if not pleaded, pursuant to CPLR 3211[e], and, therefore, is mere surplusage as an affirmative defense.

Case:  San-Dar Assoc. v. Fried, NY Slip Op 04884 (1st Dep't June 15, 2017)

Here is the decision.

Monday's issue:  A non-resident's consent to jurisdiction.

Hearsay on a summary judgment motion.

Practice point:  While hearsay may be considered in opposition to a motion for summary judgment, it is insufficient to raise a triable issue of fact where it is the only evidence upon which the opposition to the motion is predicated.

Case:  Alpha Invs., LLC v. McGoldrick, NY Slip Op 04812 (2d Dep't June 14, 2017)

Here is the decision.

Tomorrow's issue:  Failure to state a claim as an affirmative defense.

Law of the case and sua sponte dismissal.

The Appellate Division reversed, and reinstated the complaint in this action where plaintiff, as administrator of the estate commenced a medical malpractice suit against, among others, defendant-physician. Defendant's motion for summary judgment was denied. The action was assigned to a different judge, and set for trial.  After jury selection, the complaint was dismissed insofar as asserted against other defendants, and, in light of the dismissal as to those defendants, the Supreme Court declared a mistrial, with jury selection to begin anew. After a second jury was selected, the court, sua sponte, directed a hearing, denominated as a Frye hearingat which the plaintiff's medical expert, was to testify in order to determine whether his opinion rendered in this case as to defendant was sufficiently reliable. Following the hearing, the court directed dismissal of the complaint insofar as asserted against defendant.

Practice point:  A Frye hearing is meant to determine whether an expert's opinion is based on principles that are sufficiently established to have gained general acceptance as reliable. Here, though, based on the court's questions and statements, the Appellate Division determined that the hearing's purpose was to revisit the determination made in the order denying defendant's motion for summary judgment insofar as asserted against her. In doing so, the court violated the doctrine of law of the case by disregarding the prior order, issued by a justice of coordinate jurisdiction, concluded that there were triable issues of fact as to whether defendant departed from accepted medical standards of care and whether such departures were a proximate cause of the decedent's injuries.

In addition, a court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal. Here, there were no extraordinary circumstances warranting the sua sponte dismissal of the complaint insofar as asserted against defendant.

Case in point:  Aguilar v. Feygin, NY Slip 04811 (2d Dep't June 14, 2017)

Here is the deision.

Tomorrow's issue:  Hearsay on a summary judgment motion.

Respondeat superior.

The Appellate Division reversed the motion and dismissed the complaint as against the employer-defendant, in this action where plaintiff was severely injured when, while standing on the sidewalk, a taxicab hopped the curb and struck her. Just before the accident, the taxi driver had an altercation with a bike messenger, who allegedly banged his hands and fists against the taxi.  Allegedly, the taxi driver then steered his vehicle into the messenger, striking plaintiff in the process. Plaintiff alleges that the messenger's employer is vicariously liable for the messenger, who incited the altercation.

While the determination of whether an employee's act is within the scope of his employment is heavily dependent on factual considerations, the complaint failed to state a cause of action the employer on the theory of respondeat superior. Accepting the allegation that the messenger was an employee at the time of the accident, his alleged conduct cannot be reasonably viewed as falling within the scope of his employment. Although the precipitating dispute might have arisen while the messenger was acting in the course of his employment in making deliveries, his alleged inciting of an altercation or provoking the taxicab driver's assault cannot reasonably be construed as part of his duties as a bike messenger, or as acting in furtherance of his employer's interests. The complaint does not allege that the employer condoned, instigated or authorized the messenger's actions.

Case:  Green v. Himon, NY Slip Op 04777 (1st Dep't June 13, 2017)

Here is the decision.

Tomorrow's issue:  Law of the case and sua sponte dismissal.

Applicability of the Workers' Compenstion Law.

Practice point:  Primary jurisdiction as to the applicability of the statute is vested in the Workers' Compensation Board., and where the availability of workers' compensation hinges on the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum to resolve the questions. Plaintiff has no choice but to litigate this issue before the Board, and the question of whether a person is an employee within the meaning of the statute is for the Board to determine in the first instance. The Board's findings are final and conclusive unless reversed on direct appeal, and are not subject to collateral attack in a plenary action. This is so even where, as here, the employer has filed a claim on the employee's behalf and the employee did not apply for or accept benefits.  Whether the employee or the employer first brings the injury to the Board's attention, the Board's finding that the injury is compensable is, until set aside, a final and conclusive determination which bars an action at law.

Case:  Aprile-Sci v. St. Raymond of Penyafort R.C. Church, NY Slip Op 04412 (2d Dep't June 7, 2017)

Here is the decision.

Monday's issue:  Respondeat superior.

A Labor Law § 241(6) claim.

Practice point:  The motion court properly exercised its discretion in granting plaintiffs' motion for leave to amend their bill of particulars, to allege violations of Industrial Code §§ 23-1.7(b)(1) and 23-4.2(h) in support of the Labor Law § 241(6) claim, since an amendment to allege a specific section of the Industrial Code is appropriately permitted, in the absence of unfair surprise or prejudice, even after a note of issue has been filed.

Labor Law § 241(6) imposes on owners a nondelegable duty to comply with specific safety regulations. Industrial Code § 23-1.7(b)(1) requires that "hazardous opening[s] into which a person may step or fall" must "be guarded by a substantial cover . . . or by a safety railing." Industrial Code § 23-4.2(h) requires that "[a]ny open excavation adjacent to a . . . street, . . . or other area lawfully frequented by any person shall be effectively guarded."

Case in point:  Gjeka v. Iron Horse Transp., Inc., NY Slip Op 04536 (1st Dep't June 8, 2017)

Here is the decision.

Monday's issue:  Applicability of the Workers' Compensation Law.

An insufficient claim for an accounting.

Practice point:  In the absence of an allegation that plaintiffs demanded an accounting, the claim fails to state a cause of action.

Case in point:  New York Studios, Inc. v. Steiner Digital Studios, NY Slip Op 04397 (1st Dep't June 6, 2017)

Here is the decision. 

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

Leave to amend a pleading.

Practice point:  Leave to amend a pleading will be freely given in the absence of prejudice or surprise to the opposing party, pursuant to CPLR 3025[b].  The motion for leave will be be denied, however, where the proposed amendment is palpably insufficient or patently devoid of merit.Whether to grant such leave is within the motion court's discretion, the exercise of which will not be lightly disturbed by the Appellate Division.

Case in point:  APF Mgt. Co., LLC v. Munn, NY Slip Op 04411 (2d Dep't June 7, 2017)

Here is the decision.

Tomorrow's issue:   An insufficient claim for an accounting.

CPLR 3101(a).

Practice point:   The statute is liberally construed in order to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.  To compel a deposition, a defendant must show that the disclosure sought is material and necessary.  If a defendant is seeking disclosure from a nonparty witness, the defendant must provide notice of the circumstances or reasons why the disclosure is sought or required.

Case in point:  Alumil Fabrication, Inc. v. F.A. Alpine Window Mfg. Corp., NY Slip Op 04410 (2d Dep't June 7, 2017)

Here is the decision.

Tomorrow's issue:  Leave to amend a pleading.

Setting aside a jury verdict.

Practice point:  The verdict may not be set aside for legal insufficiency unless, based on the evidence, there is no valid line of reasoning and permissible inferences which could possibly lead rational jurors to the conclusion the jury reached.

Case in point:  Foley v. City of New York, NY Slip Op 04389 (1st Dep't June 6, 2017)

Here is the decision.

Tomorrow's issue:  CPLR 3101(a).

A common-law indemnification claim.

Practice point:  The claim may continue by parties who have been held vicariously liable for the party that actually caused the negligence that injured the plaintiff.

Case in point:  Chatham Towers, Inc. v. Castle Restoration & Constr., Inc., NY Slip Op 04368 (1st Dep't June 1, 2017)

Here is the decision.

Monday's issue:  Setting aside a jury verdict.