A fall at the market.

Practice point: In a slip and fall action, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the fall. Here, the store-defendants failed to make the requisite showing as the plaintiff testified at deposition that she fell on "muddy" water.

In addition, the store-defendants failed to establish that they were entitled to judgment as a matter of law on the ground that they did not create or have constructive notice of any hazardous condition.  They presented no evidence to establish when the area was last cleaned or inspected prior to the plaintiff's fall.

Student note:  A defendant has constructive notice of a defect when it is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected. To meet its initial burden, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the plaintiff's fall.

Case:  Altinel v. John's Farms, NY Slip Op 00314 (2d Dept. 2014).

Here is the decision.

Monday's issue: A defendant-corporation's pro se answer.

A workplace fall on masonite.

Practice point:  The Appellate Division determined that dismissal of plaintiff's Labor Law § 241(6) claim was warranted as there was no evidence that plaintiff's accident was the result of a failure to remove or cover a foreign substance, and masonite is not a slipping hazard contemplated by 12 NYCRR 23-1.7(d). In addition, 12 NYCRR 23-1.7(e), which requires work areas to be kept free of tripping hazards, is inapplicable because plaintiff does not allege that he tripped on an accumulation of dirt or debris. Instead, he testified that he slipped on an unsecured piece of masonite, which was not a tripping hazard.

Student note:  The court declined to consider plaintiff's fact-based argument that the accident resulted from a slippery condition caused by construction dust, as this argument was raised for the first time on appeal.

Case:  Stier v. One Bryant Park LLC, NY Slip Op 00458 (1st Dept. 2014).

 Here is the decision.

Tomorrow's issue: Another fall, this time at the market.

Effect of a default judgment as to liability.

Practice point:  In this action for plaintiff's injuries allegedly sustained while he was working for third-party defendant at a restaurant located on premises owned and/or managed by defendants, the Appellate Division, on a prior appeal, had reinstated a default judgment entered against defendants. By virtue of this default, defendants are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them.  Therefore, as between plaintiff and defendants, the issue of liability has been determined as a matter of law, and defendants may not now introduce evidence tending to defeat the plaintiff's cause of action.

Student note:  The default does not preclude defendants' pursuit of claims against third-parties for the apportionment of fault.

Case:  Paez v. 1610 St. Nicholas Ave., L.P., NY Slip Op 00421 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A workplace fall on masonite.

Plaintiff's wrongdoing as it affects a legal malpractice claim.

Practice point:  The physician-plaintiff alleged that defendant-law firm failed to represent him properly in connection with investigations by Medicare and the Office of Professional Conduct into the licensure of his employee and his billing practices, and that these failures resulted in his arrest for grand larceny and insurance fraud.

In the CPLR 3211 motion to dismiss, defendants offered documentary evidence refuting plaintiff's allegations by showing that any purported negligence in connection with the administrative proceedings or any advice with respect to plaintiff's method of billing Medicare did not proximately cause plaintiff's arrest. The indictment for grand larceny charged that plaintiff billed for services that were not rendered, and the record of his criminal conviction contradicts the allegations in the complaint. As plaintiff's own actions resulted in his arrest, he failed to show that any alleged malpractice on defendants' part proximately caused his damages, namely, his arrest. This failure required dismissal of the legal malpractice action regardless of whether defendants were negligent.

Student note: In pleading his Judiciary Law § 487 claim, plaintiff failed to allege that defendants acted with intent to deceive the court or any party, or a chronic and extreme pattern of legal delinquency.

Case:   Herschman v Kern, Augustine, Conroy & Schoppman, NY Slip Op 00416 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Effect of a default judgment as to liability.

Perfecting an appeal based on an appendix.

Practice point:  Using the appendix method, the appellants sought review of an order denying their joint motion pursuant to CPLR 4404(a) to set aside a jury verdict. However, as the appendix did not include the full trial transcript, the Appellate Division could not render an informed decision on the merits and the appeal was dismissed.

Student note:  An appellant who perfects an appeal using the appendix method must file an appendix that contains all those portions of the record necessary for the court to fully consider the issues which will be raised by the appellant and the respondent, pursuant to 22 NYCRR 670.10-b[c][1] and CPLR 5528[a][5].

Case:  Aguilar-Consolo v. City of New York, NY Slip Op 00312 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Plaintiff's wrongdoing as it affects a legal malpractice claim.

Comparative negligence and the Labor Law.

Practice point:  Comparative negligence is not a defense to an action predicated on Section 240(1). A plaintiff in an action involving the collapse of a permanent structure must establish that the collapse was foreseeable, not in a strict negligence sense, but in the sense of foreseeability of exposure to an elevation-related risk.

Student note:  Section 240(1) will be construed liberally in order to accomplish its purpose, namely, to put ultimate responsibility for safety practices at building construction jobs on the owner and the general contractor.

Case:  Garcia v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., NY Slip Op 00298 (1st Dept. 2014).

Here is the decision. 

Monday's issue: Perfecting an appeal using an appendix.

Unsigned contracts.

Practice point:  Where the parties contemplate that a signed writing is required, there is no contract until one is delivered. However, an unsigned contract may be enforceable if there is objective evidence establishing that the parties intended to be bound. In determining whether the parties entered into a contractual agreement and what were its terms, the court must look to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds.

Student note: Where a question of intention is determinable by written agreements, the question is one of law. However, where the intent must be determined by disputed evidence or inferences outside the written words of the instrument, there is a fact-question.

Case:  Gallagher v. Long Is. Plastic Surgical Group, P.C., NY Slip Op 00204 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Comparative negligence and the Labor Law.

Discovery disputes.

Practice point:  The Appellate Division found that, given the appellants' persistent failure to cooperate with the plaintiffs' repeated requests to schedule the examinations of the plaintiffs, the Supreme Court providently exercised its discretion in granting the appellants' motion to strike the note of issue only to the extent of directing that the depositions of the plaintiffs be conducted expeditiously. However, the Appellate Division also found that, under the circumstances of this case, the court also should have directed the prompt independent medical examinations of the plaintiffs, and remitted the matter for the expeditious scheduling of those examinations. Finally, the Appellate Division did not disturb the court's .determination that the appellants, by their conduct, are deemed to have waived all other outstanding discovery.

Student note:  While the Supreme Court has broad discretion in supervising disclosure and in resolving discovery disputes, the Appellate Division may substitute its own discretion for that of the trial court in such matters, even in the absence of an abuse of discretion.

Case:  Clarke v. Clarke, NY Slip Op00200 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Unsigned contracts.

A slip-and-fall on water...near the pool, where else?

Practice point:  Defendants established entitlement to judgment as a matter of law in this action where plaintiff slipped and fell on water located on the tile floor around the indoor pool of defendants' health club. Defendants established that the presence of such water was necessarily incidental to the pool's use.

Student note: The mere fact that the water was there did not raise a fact-issue, and plaintiff did not assert a violation of a code, rule, regulation or industry standard. In addition, there was no evidence as to how long the water was on the floor, nor was the amount of water above and beyond what one might ordinarily expect find in the vicinity of a pool.

Case:  Dove v. Manhattan Plaza Health Club, NY Slip Op 00195 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Discovery disputes.

Court holiday.

The courts are closed to mark the holiday.

Tomorrow's issue:  A slip-and-fall on water...near the pool, where else?

A motion to compel arbitration.

Practice point:  Although doubts as to the arbitrability of a claim are to be resolved in favor of arbitrability, arbitration is a matter of consent, not coercion, and a party cannot be required to submit to arbitration any dispute which it has not agreed so to submit.

Student note:  The determination as to whether the parties have entered into an agreement to arbitrate is made by applying ordinary state law principles governing the formation of contracts.

Case:  Highland HC, LLC v. Scott, NY Slip Op 00089 (2d Dept. 2014).

Here is the decision.

Tuesday's issue: A slip-and-fall on water...near the pool, where else?