Tree wells, ownership, and liability.

Practice point:  Administrative Code of the City of New York § 7-210, which became effective on September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner.  However, a tree well is not part of the sidewalk for purposes of that Code section.

Student note:  Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land.

Case:  Avezbakiyev v. Champion Commons, LLC, NY Slip Op 07966 (2d Dept. 2014)

Here is the decision.

Monday's issue: The heightened pleading standard for fraud.

Court holiday.

The courts are closed to mark Thanksgiving Day.

Tomorrow's issue:  Tree wells, ownership, and liability.

Medical malpractice, summary judgment, and a battle of the experts.

Practice point:  Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such conflicting expert opinions will raise credibility issues which can only be resolved by a jury.

Student note:  However, a plaintiff's expert's affidavit that is conclusory or speculative is insufficient to raise a triable issue of fact in opposition to a defendant's prima facie showing of entitlement to judgment as a matter of law in a medical malpractice action.

Case:  Barrocales v. New York Methodist Hosp., NY Slip Op 07606 (2d Dept. 2014)

Here is the decision.

Friday's issue: Tree wells, ownership, and liability.

A fall on the ice.

Practice point:  The Appellate Division reversed and dismissed the complaint in this action where plaintiff allegedly slipped and fell on an icy condition on defendant's property. Defendant's supervisor of grounds testified that he and his crew had shoveled snow, removed ice, and salted and sanded the parking lot after a snow fall the day before the accident, and that any icy condition was addressed. This evidence showed that defendant did not have actual or constructive notice of the icy condition.

In opposition, plaintiff presented no evidence that defendant created the condition, that it was readily apparent, or that it was present for a sufficiently long period of time so that defendant had an opportunity to remedy the alleged hazard. Nor did plaintiff describe with any specificity the alleged condition that caused him to fall, from which it might be inferred, without speculation, that it was visible and apparent, particularly in view of the testimony of the supervisor of grounds that he had cleared the area and no snow or ice remained.

Student note:  While the issue was not addressed by the motion court, the Appellate Division found no triable issue as to whether the lighting in the parking lot contributed to plaintiff's fall. The record shows that defendant's supervisor of grounds inspected the exterior lights several days prior to plaintiff's fall and found them to be functioning properly, and plaintiff did not submit any contradictory evidence.

Case:  Vidal v. City of New York, NY Slip Op 07591 (1st Dept 2014)

Here is the decision.

Tomorrow's issue:  Medical malpractice, summary judgment, and a battle of the experts.

CPLR 3103(a) and an infant plaintiff's deposition.

Practice point:  The Appellate Division determined that the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' cross motion which was for a protective order pursuant to CPLR 3103(a) preventing the infant plaintiff from being deposed. Contrary to the plaintiffs' contention, the court did not err in determining that the infant plaintiff is competent to testify without conducting a preliminary examination.

Student note:  The Appellate Division agreed with the Supreme Court's determination that, in light of the infant plaintiff's fragile condition, the parties must work with their experts to put in place guidelines so as to lessen the stress and trauma on the infant plaintiff during the deposition.

Case:  Serrano v. Lutheran Social Servs. of Metro. N.Y., Inc., NY Slip Op 07491 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A fall on the ice.

CPLR 205(a).

Practice point:  CPLR 205(a) provides that when an action is dismissed on grounds other than voluntary discontinuance, lack of personal jurisdiction, neglect to prosecute, or a final judgment on the merits, the plaintiff may bring a new action within six months of the dismissal, even though the action would otherwise be barred by the statute of limitations.

Student note:  The six-month period runs from the date of termination of the earlier action, which in this case was the entry of the order.

Case:  Ross v. Jamaica Hosp. Med. Ctr., NY Slip Op 07490 (2d Dept. 2014)

Here is the decision.

Monday's issue: CPLR 3103(a) and an infant plaintiff's deposition.

A counterclaim to recover unpaid rent.

Practice point:  The Appellate Division determined that the Supreme Court properly denied that branch of the defendants' cross motion which was for summary judgment on their counterclaim to recover unpaid rent. Before a tenant may withhold rent, the tenant must prove actual or constructive eviction. To demonstrate constructive eviction a tenant must vacate the premises. Here, the defendants' submissions failed to demonstrate, prima facie, that the plaintiff remained in possession of the leased premises and thus, was not constructively evicted.

Student note:   A commercial tenant's obligation to pay rent is not suspended if the tenant remains in possession of the leased premises, even if the landlord fails to provide essential services.

Case:  Prakhin v. Fulton Towers Realty Corp., NY Slip Op 07487 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  CPLR 205(a)

Damages for a hot water burn.

Practice point:  The Appellate Division reversed, and dismissed the third-party complaint in this action for personal injuries allegedly sustained by plaintiff when she was burned by hot water while showering in the bathroom of an apartment  where third-party defendant was superintendent. Third-party defendant met its initial burden of demonstrating that it did not create or have actual or constructive notice of the alleged dangerous condition. Although third-party defendant acknowledges acting to address complaints of no heat or hot water on the upper floors of the building within two weeks of the incident which resulted in plaintiff's injuries, the undisputed evidence establishes that the domestic hot water supply system and the heating system for the building were separate, and that adjustments made by third-party defendant to the heating system would have had no effect on the domestic hot water supply system.

Student note:  Third-party plaintiff failed to present evidence that any action taken by third-party defendant caused excessively hot water. Third-party plaintiff's expert expressly stated that he did not evaluate the heating system, which was different from the domestic hot water supply system. Although he opined that leaving the domestic hot water supply system in the hands of an inexperienced person, such as third-party defendant, was dangerous and negligent, no evidence was presented that any action by third-party defendant proximately caused plaintiff's injuries or that third-party defendant was responsible for repairs to the domestic hot water supply system.

Case:  Duff v. 646 Tenth Ave., LLC, NY Slip Op 07589 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A counterclaim to recover unpaid rent.

Driving a vehicle without the owner's permission.

Practice point: For summary judgment on its defense that the vehicle was used without its permission, the defendant must present substantial evidence that the vehicle was used without its permission. The owner's uncontradicted testimony that the vehicle was operated without permission does not, by itself, overcome the presumption of permissive use. The question of consent is ordinarily one for the jury.


Student note:  Vehicle and Traffic Law § 388 creates a strong presumption that the driver is operating it with the owner's consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner's express or implied permission.

Case: Han v. BJ Laura & Son, Inc., NY Slip Op 07480 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Damages for a hot water burn.

An inaccurate notice of claim.

Practice point:  The plaintiff allegedly was injured when the vehicle she was driving struck a raised sewer cap. While the plaintiff's notice of claim, complaint, and bill of particulars alleged that the accident occurred on Narrows Road North at the intersection of Targee Street, an amended bill of particulars alleged that the accident occurred on Narrows Road North between Rhine Avenue and Targee Street. The Appellate Division affirmed the denial of the defendants' motion to dismiss the complaint on the ground that the notice of claim did not accurately describe the location of the accident. The defendants failed to establish that they were prejudiced by any inaccuracy in the description of the location of the accident in the notice of claim.

Student note:  Pursuant to General Municipal Law § 50-e(6), the Supreme Court had the discretion to allow the plaintiff to correct a mistake or supply an omission in the notice of claim at any time, and at any stage of the action.

Case:  Miller v. City of New York, NY Slip Op 07479 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Driving a vehicle without the owner's permission.

Striking a pleading.

Practice point:  The plaintiffs served a response to the defendant's notice for discovery and inspection, and answers to interrogatories, as they were directed to do by court order. Thereafter, they produced further documents, as set forth in a stipulation. The Appellate Division determined that, while the defendant was clearly dissatisfied with the responses to his demands, there was no showing of a pattern of willful failure to respond to discovery demands or comply with disclosure orders, so as to justify dismissing the complaint and striking the reply to counterclaims.

Student note:  The determination whether to strike a pleading lies within the sound discretion of the trial court, pursuant to CPLR 3126[3]. It is a drastic remedy that is not appropriate absent a clear showing that the failure to comply with discovery demands was willful or contumacious.

Case:  Holand v. Cascino, NY Slip Op 07474 (2d Dept. 2014)

Here is the decision.

Monday's issue:  An inaccurate notice of claim.