Crossing guards and the City's liability.

Dismissal was granted as to the City in this action where the infant plaintiffs, on their way to school, were walking within the crosswalk when one of them was struck by a school bus owned by defendant-bus company and operated by defendant-bus driver. The City had assigned a crossing guard to assist children at the intersection, but the guard called out sick that morning.

In order to establish that the City voluntarily assumed a duty, a plaintiff must show: (1) an assumption by the City's agents, through promises or action, of an affirmative duty to act on behalf of the plaintiff; (2) knowledge on the part of the City's agents that inaction could lead to harm; (3) some form of direct contact between the City's agents and the plaintiff; and (4) the plaintiffs justifiable reliance.  Here, as a matter of law, the City had assumed no special duty as to the plaintiffs. There was no direct contact between the City's agents and the plaintiffs. The fact that the guard, when on duty, greeted the plaintiffs and they relied on the guard's instructions does not create a special duty.

Ivan D. v. Little Richie Bus Serv. Inc., NY Slip Op 04823 (1st Dep't June 28, 2018)

Here is the decision.

A viable malpractice claim.

Plaintiff sufficiently pled a claim as against successor firm and the prior firm. Successor counsel had the chance to protect plaintiff's rights by seeking discretionary leave, pursuant to General Municipal Law § 50-e(5), to serve a late notice of claim. Whether the motion would have succeeded is up to the trier of fact. Denying dismissal is not speculative, as the trial court will weigh the established factors in exercising its § 50-e(5) discretion. Prior counsel failed to serve a timely notice of claim as of right in the underlying personal injury action. Plaintiff has a viable claim in spite of the fact that the successor firm was substituted as counsel before the expiration of time to move to serve a late notice. The substitution will be deemed a superseding and intervening act severing malpractice liability only if it is determined that the motion to file a late claim would have been successful.

Liporace v. Neimark & Neimark, LLP, NY Slip Op 04668 (1st Dep't June 26, 2018)

Here is the decision.

Service other than by personal delivery.

Pursuant to CPLR 317, a defendant who is served other than by personal delivery may defend the action within one year after learning of entry of the judgment on a finding that the summons was not  received in time to defend and that there is a potentially meritorious defense.

Benchmark Farm, Inc. v. Red Horse Farm, LLC, NY Slip Op 04522 (2d Dep't June 20, 2018)

Here is the decision.

Dismissal of duplicative claims.

The conversion and aiding and abetting conversion claims are dismissed as duplicative of the breach of contract claim, because they are predicated on the breach of contract and allege no facts that would give rise to tort liability.

Johnson v. Cestone, NY Slip Op 04512 (1st Dep't June 19, 2018)

Here is the decision.

Summary judgment to a non-moving party.

The Appellate Division has authority to search the record and award summary judgment to the nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court, pursuant to CPLR 3212[b].

Bank of N.Y. v. Penalver, NY Slip Op 04521 (2d Dep't June 20, 2018)

Here is the decision.

Labor Law § 240(1).

The statute imposes a nondelegable duty upon owners, general contractors, and their agents to provide proper protection to persons working upon elevated structures. To be considered a statutory agent, the subcontractor must have been delegated the supervision and control over the work or the work area which gave rise to the aleged injury.  A subcontractor who is a statutory agent may not escape liability by delegating the work to another entity.

White v. 31-01 Steinway, LLC, NY Slip Op 04279 (1st Dep't June 12, 2018)

Here is the decision.

Jury verdicts.

A jury verdict will not be set aside as contrary to the weight of the evidence unless the verdict could not have been reached by any fair interpretation of the evidence.  It is for the jury to make determinations as to witness credibility, and reviewing courts give great deference to the jury, which actually saw and heard the witnesses.  The jury may believe or disbelieve a witness's testimony, or believe some parts of the testimony and disbelieve others.

Agostino v. L & M Bus Co., NY Slip Op 04297 (2d Dep't June 13, 2018)

Here is the decision.

Plaintiff as sole witness to the accident..

The fact that the plaintiff is the sole witness to the accident does not preclude summary judgment in his favor where nothing in the record contradicts his account or raises an issue of fact as to his credibility.

Concepcion v. 333 Seventh LLC, NY Slip Op 0442 (1st Dep't June 14 2018)

Here is the decision.

A municipality's liability for a personal injury.

Generally, a municipality is not liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection.  On a negligence claim against a municipality exercising a governmental function, the plaintiff must first demonstrate that the municipality owed a special duty to the injured person. The elements required to establish the duty are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.

Axt v. Hyde Park Police Dept., NY Slip Op 04298 (2d Dep't June 13, 2018)

Here is the decision.

The emergency doctrine.

The motion court properly invoked the doctrine where the plaintiff' adduced no evidence that the defendant-bus operator created the emergency or could have avoided a collision with the nonparty taxi by taking some action other than applying the brakes. The sudden unexpected swerving of the taxi into the bus lane required the defendant to act immediately.  His reaction of braking and swerving the bus to the right was reasonable under the circumstances. The defendant's awareness that taxis often cut-off buses does not require a different result.

Jones v. New York City Tr. Auth., NY Slip Op 04281 (1st Dep't June 12, 2018)

Here is the decision.

An easement by prescription.

Acquiring the easement requires a showing, by clear and convincing evidence, that the use was hostile, open and notorious, and continuous and uninterrupted for the prescriptive period of ten years. Where an easement has been open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the other side to show that the use was permissive.

Ciringione v. Ryan, NY Slip Op 03960 (2d Dep't June 6, 2018)

Here is the decision.