Thursday, July 29, 2010

Useful Practice Nuggets

In Perez v. New York Housing Authority - the plaintiff did not disclose as part of her discovery responses the nonparty witnesses upon whose affidavits she relied in opposition to the defendant's motion for summary judgment. Given that the plaintiff did not explain this failure, the court found as a matter of discretion, that those affidavits should not have been considered.

In McGee v. Dunn - the court reiterated the well-established rule that entry of a default judgment is not a "ministerial" act. Rather, the moving party must demonstrate that a viable cause of action exists. In determining whether such a cause of action exists, the court can consider the complaint, affidavits and affirmations submitted by the plaintiff.

In Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp. - the court observed that the motion court did not err in considering defendants' untimely cross motion for summary judgment to the extent that it addressed the Labor Law causes of action that were the subject of plaintiffs' timely motion for summary judgment.

Tuesday, July 27, 2010

Court of Appeals Watch

The following cases have been granted leave to appeal to the Court of Appeals by the First Department:

Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp. is a Labor Law case that we posted in March.  In this case, the First Department held that the collapse of pipes standing on the floor, like the collapse of a wall, does not give rise to a Labor Law Sec. 240(1) claim.  The Court reasoned that because the pipes and plaintiff "'were at the same level at the time of the collapse the incident was not sufficiently attributable to elevation differentials to warrant imposition of liability pursuant to Labor Law § 240.'"  

CPS Operating Co, LLC. v. Pathmark Stores Inc. is a real estate action involving issues related to a consent requirement and a land use restriction contained in a land disposition agreement entered into by a prior purchaser of the land, as part of an urban renewal plan.  The majority held that the plaintiff could not use the consent agreement as a pretext to avoid its obligations under the agreement because the consent agreement could be considered a permitted exception.  Judge Saxe dissented arguing that the concept of permitted exceptions does not include the requirement that Housing Preservation and Development pre-approve any transfer of the subject property.

Thursday, July 22, 2010

MGL's Court of Appeals 2010 Mid-Year Report

At the halfway mark this year, the Court of Appeals had decided 88 cases.  Fifty-one percent of the cases were affirmed, nine percent modified and forty percent reversed.  In those 88 cases, 77 percent were unanimous, three percent were 6-1, eight percent were 5-2 and 11 percent were 4-3.  The most frequent 4-3 alignment was Justices Smith, Read, Pigott and Graffeo with Justices Lippman, Ciparick and Jones dissenting.  Out of the 88 cases, Justices Lippman and Ciparick were almost unanimously in agreement.    

Wednesday, July 21, 2010

Second Department Holds That One Entity Must Control the Day-to-Day Operations of Another Entity to Qualify For Alter-Ego Status

Samuel v. Fourth Ave. Assoc.: In this case the Second Department noted that the defense of Workers' Compensation Law sects. 11 and 29(6) applies to entities that are alter-egos of the plaintiff's employer. To qualify as an alter-ego, the two entites must be operated as a single, integrated entity, or one entity must control the day-to-day operations of the other. In Samuel, the defendant failed to show that it and the plaintiff's employer operated as a single entity or that either entity controlled the day-to-day operations of the other. Therefore, the Second Department reversed an award of summary judgment in favor of the defendant.

Similarly, the Court held that the defendant had failed to show that it controlled the manner, details or results of the plaintiff's work, such that it could be considered the plaintiff's special employer.

From an Appellate perspective, by its citation to Parochial Bus v. Bd. of Ed. of City of N.Y. (60 N.Y.2d 539), it can be gleaned from the Second Department's decision that the latter theory was raised in the trial court, but not relied upon by the trial court when it awarded summary judgment to the defendant.

Second Department Finds Question of Fact as to Construction Site Defendants Liability for Injury to Member of the Public

Cordova v. Union Turnpike Dev. Corp.: In this case the plaintiff tripped and fell due to a hole in a sidewalk adjacent to construction work. The plaintiff had alleged that heavy machines traversed the sidewalk to gain access to the construction site. In reversing an award of summary judgment in favor of the defendants, the Second Department found that the defendants had failed to prove prima facie that they did not have actual or constructive notice of the defective sidewalk.

Thursday, July 15, 2010

Court of Appeals Watch

Ortiz v. Varsity Holdings: In this Labor Law 240 (1) action, the Second Department affirmed summary judgment for the defendant, but in a rare move sua sponte granted leave to appeal to the Court of Appeals. The plaintiff claimed he was standing "on or near the ledge of a six-foot high dumpster" and that he injured himself after falling onto the sidewalk. No safety device was in place while the plaintiff was "rearranging debris from an apartment renovation project." Justices Skelos, Eng, Belen, and Austin concurred in the Decision that noted "[w]e are constrained to affirm the Supreme Court" based on prior Second Department cases which held that Labor Law 240(1) did not apply to accidents involving dumpsters. 

Using the Facilities?

Eversfield v. Brush Hollow Realty - in this case, Nastasi claimed that toilets furnished at the job site are not "facilities" within the meaning of the indemnification clause of its contract with Cauldwell. The Second Department disagreed, "Since the use of portable toilets at a construction site is frequently a 'necessary and unavoidable activity' in the performance of the work (Turner Constr. Co. v Pace Plumbing Corp., 298 AD2d 146, 147), such toilets constitute 'facilities' within the contemplation of the indemnification clause, and Nastasi may potentially be held liable for contractual indemnification."

Monday, July 5, 2010

Court of Appeals Watch

The following cases have been granted leave to appeal to the Court of Appeals:

Acosta v. City of New York - Second Department reversed a jury verdict on the basis that the plaintiff's version of the events was manifestly untrue and tailored to avoid the consequences of previous statements made by him.

Simon v. Usher - First Department held that the defendants were not entitled to the five-day extension in CPLR 2103(b)(2) for the time period set forth in CPLR 511(b) to move to change venue.

McCarthy v. Turner - at issue is whether an owner can be entitled to contribution or indemnification from a general contractor where the general contractor has the authority to direct, supervise and control the work giving rise to the injury or whether contribution or indemnification can only arise where the general contractor is actually responsible for the supervision, direction and control of the work the plaintiff was performing at the time of injury. The Supreme Court adopted the later approach, which was affirmed on appeal. On June 29th, the First Department granted leave to appeal to the Court of Appeals.

Grimm v. State of New York Department of Housing and Community Renewal -
The First Department held that the Department of Housing and Community renewal (DHCR) was incorrect to refuse to review a rent overcharge claim and would have to review for fraud. The DHCR refused to review a case involving a landlord who set an illegal rent on a rent stabilized apartment. The critical issue is whether a four-year statute of limitations for rent overcharge should be interpreted to preclude a finding of an overcharge related to a fraud that occured beyond the four-year term. A new tenant brought the petition more than four years after the initial illegal rent, but documents may show that the landlord continued to hide the original fraud.

Groninger v. Village of Mamaroneck - The Second Department affirmed dismissal of a plaintiff's slip and fall claim due to a lack of prior written notice. The plaintiff slipped and fell on an ice patch in a municipal parking lot. The village moved for and the trial court granted summary judgment because that the village had not received prior written notice of the icy condition as required by Village Law. At the Court of Appeals, the issue will likely center on whether applying the Village Law was inconsistent with Walker v. Town of Hempstead. In Walker, the Court of Appeals declared a similar written notice provision of the Hempstead Code inconsistent with state law.

Perl v. Meher - The Second Department affirmed dismissal of a serious injury car accident case because the treating physician did not record objective results of range of motion tests taken shortly after the accident to a level of specificity sufficient for the Second Department. A dissenting Justice noted that while the contemporaneous examination failed to state the results with specificity, it did allege there were objective limits, and the Justice also noted that a later examination was satisfactory.

Ridge Road Fire District v. Schiano - The Fourth Department reinstated a hearing officer's determination that granted a firefighter benefits for a work-related back injury. The firefighter’s employer originally denied the claim for benefits because of some evidence of non-work related back injuries, but a hearing officer vacated the denial on appeal. The claim has bounced around between the hearing officer and Supreme Court due to mistakes in the standard of review, but at its core, it seems the disagreement between the hearing officer and Supreme Court was the outcome.

Thursday, July 1, 2010

A Passenger is not an Operator of a Vehicle

In Kohl v. Amer. Tr. Ins. Co., the plaintiff, who was a passenger in a taxicab, was sued by a bicyclist who claimed that he was injured when the passenger opened the taxi’s door. At issue was whether the passenger was an insured under the taxi owner’s auto insurance policy. The Court of Appeals held that the policy’s coverage to those legally “operating” a vehicle “cannot be stretched to include a passenger’s riding in the car or opening the door.”