General Practice Update January 2023

General Practice Update January 2023

(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Appropriate for Experienced Attorneys

Areas of Professional Practice: 2 CLE Credit Hours

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) and posted on the New York Appellate Digest website in January 2023. In the spirit of “General Practice,” this CLE covers all of the January 2023 decision-summaries as collected in the four January 2023 “Weekly Reversal Reports.” The “General Practice Update CLE” provides credit for keeping up with the latest substantive appellate rulings.

The decision-summaries posted weekly on the New York Appellate Digest website are organized in “Weekly Reversal Reports” which are accessed on the Home Page.” The “Weekly Reversal Reports” comprise the written materials for the “General Practice Update CLE” courses. Links to the written materials for this course (the four January 2023 Weekly Reversal Reports) are provided below.

As you listen to the course, you will hear verification codes. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification codes, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 2.5 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the links below for the written materials (the four January 2023 Weekly Reversal Reports), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

The media player for this course is at the bottom of the page.

Weekly Reversal Report January 2 – 6, 2023

Weekly Reversal Report January 9 – 13, 2023

Weekly Reversal Report January 16 – 20, 2023

Weekly Reversal Report January 23 – 27, 2023

Attorney Affirmation General Practice Update January 2023

Evaluation Survey General Practice Update January 2023

Topics Covered in the “January 2023 General Practice Update CLE” Course Are Described Below; Page Numbers Refer to the Written Materials, i.e., the Pages in Each of the Four Weekly Reversal Reports

 

JANUARY 2 – 6, 2023 WEEKLY REVERSAL REPORT

CIVIL PROCEDURE, CONSUMER LAW, JURISDICTION OVER FOREIGN ELECTRONIC-CIGARETTE MANUFACTURER. 2

NEW YORK HAS JURISDICTION OVER OUT-OF-STATE DEFENDANT JUUL LABS, THE MANUFACTURER OF ELECTRONIC CIGARETTES, AND TWO CORPORATE OFFICERS IN AN ACTION ALLEGING DECEPTIVE BUSINESS PRACTICES, FRAUD AND PUBLIC NUISANCE (FIRST DEPT). 2

CIVIL PROCEDURE, NEGLECT TO PROSECUTE, SIX-MONTH RECOMMENCEMENT OPTION (CPLR 205(A)). 3

TO DEPRIVE A PLAINTIFF OF THE SIX-MONTH RECOMMENCEMENT BENEFIT OF CPLR 205(A) THERE MUST HAVE BEEN A PATTERN OF NEGLECT, NOT, AS HERE, A SINGLE INSTANCE OF NEGLECT (PLAINTIFF WAS NOT READY FOR TRIAL); THERE WAS A DISSENT (FIRST DEPT). 3

CORPORATION LAW, PIERCE-THE-CORPORATE-VEIL ALLEGATIONS INSUFFICIENT. 4

THE ALLEGATIONS IN THE COMPLAINT WERE NOT SUFFICIENT TO SUPPORT LIABILITY ON A PIERCING-THE-CORPORATE-VEIL THEORY AND THE HOPE THAT DISCOVERY WOULD REVEAL SOMETHING WAS NOT A BASIS FOR DENIAL OF THE MOTION TO DISMISS (FIRST DEPT). 4

CRIMINAL LAW, FAMILY LAW, FAMILY OFFENSES, DISORDERLY CONDUCT. 5

THE MAJORITY HELD THE EVIDENCE DID NOT ESTABLISH DISORDERLY CONDUCT AS A FAMILY OFFENSE, FINDING THE CONDUCT WAS NOT “PUBLIC;” THE DISSENT ARGUED THE CONDUCT WAS “PUBLIC” IN THAT IT TOOK PLACE IN THE PRESENCE OF ADULTS AND CHILDREN OUTSIDE A DAYCARE CENTER (THIRD DEPT). 5

MEDICAID, PUBLIC HEALTH LAW, TAX LAW, HEALTH CARE FACILITIES. 6

NONPUBLIC RESIDENTIAL HEALTH CARE FACILITIES NEED PERMISSION TO WITHDRAW EQUITY OR TRANSFER ASSETS IN EXCESS OF 3% OF THE FACILITIES’ REVENUE; CORPORATE OWNERS NEED NOT INCLUDE FEDERAL AND STATE INCOME TAXES IN THE 3% CALCULATION; FACILITIES OWNED BY PASS-THROUGH ENTITIES (I.E., LIMITED LIABILITY COMPANIES) MUST INCLUDE FEDERAL AND STATE INCOME TAXES IN THE 3% CALCULATION (THIRD DEPT). 6

TOXIC TORTS, ASBESTOS EXPOSURE, SUMMARY-JUDGMENT EVIDENCE REQUIREMENTS. 7

DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW THAT PLAINTIFF’S EXPOSURE TO ASBESTOS WHEN MAINTAINING DEFENDANT’S PRODUCTS DID NOT CONTRIBUTE TO PLAINTIFF’S ASBESTOS-INJURIES; AT THE SUMMARY JUDGMENT STAGE, IT IS NOT ENOUGH FOR DEFENDANT TO ARGUE PLAINTIFF COULD NOT PROVE CAUSATION (THIRD DEPT). 7

 

JANUARY 9 – 13, 2023 WEEKLY REVERSAL REPORT

BATTERY, INMATES, CORRECTIONS OFFICERS, EMPLOYMENT LAW, RESPONDEAT SUPERIOR. 3

THE ASSAULT AND BATTERY OF CLAIMANT-INMATE BY CORRECTIONS OFFICERS OCCURRED WITHIN THE SCOPE OF THE OFFICERS’ EMPLOYMENT AND WAS REASONABLY FORESEEABLE; THEREFORE THE STATE, AS THE OFFICERS’ EMPLOYER, COULD BE LIABLE FOR THE ASSAULT AND BATTERY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR (THIRD DEPT). 3

CIVIL PROCEDURE, VERDICT SHEETS, JUROR CONFUSION. 4

NO ONE OBJECTED TO THE VERDICT SHEET BEFORE THE VERDICT AND JUROR AFFIDAVITS ALLEGING CONFUSION ARE NOT TO BE CONSIDERED EXCEPT IN EXTRAORDINARY CIRCUMSTANCES NOT PRESENT HERE; THE MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 4

CIVIL PROCEDURE, MOTION TO DISMISS, DOCUMENTARY EVIDENCE. 5

THE EVIDENCE SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS WAS NOT “DOCUMENTARY EVIDENCE” WITHIN THE MEANING OF CPLR 3211(A)(1); THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 5
EMPLOYMENT LAW, HUMAN RIGHTS LAW, LABOR LAW, DISCRIMINATION. 6
PLAINTIFF STATED CAUSES OF ACTION FOR EMPLOYMENT DISCRIMINATION AND VIOLATIONS OF THE LABOR LAW (FIRST DEPT). 6

NEGLIGENCE, ATTORNEYS, DISCOVERY DISPUTE, AFFFIRMATION OF GOOD FAITH. 7

PLAINTIFFS’ COUNSEL’S GOOD-FAITH AFFIRMATION DID NOT INCLUDE DETAILS OF ANY EFFORTS TO RESOLVE THE DISCOVERY ISSUE AND WAS THEREFORE INADEQUATE; PLAINTIFFS’ MOTION TO COMPEL DEFENDANT TO SUBMIT TO A DEPOSITION UNDER THREAT OF PRECLUSION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 7

NEGLIGENCE, DAMAGES, EVIDENCE, PRIOR INJURY. 8

MEDICAL (SURGICAL) RECORDS IN A NO-FAULT FILE RELATED TO A PRIOR INJURY SUFFERED BY PLAINTIFF SHOULD NOT HAVE BEEN ADMITTED IN THIS DAMAGES TRIAL; NEW TRIAL ON DAMAGES ORDERED (FIRST DEPT). 8

NEGLIGENCE, SLIP AND FALL, INDEPENDENT MEDICAL EXAMINATION. 9

PLAINTIFF SLIPPED AND FELL COMING OUT OF THE SHOWER, INJURING HER GENITAL AND PELVIC AREAS; DEFENDANTS WERE ENTITLED TO AN INDEPENDENT MEDICAL EXAMINATION WHICH MIRRORED THE EXAM DONE BY PLAINTIFF’S OWN PHYSICIAN, INCLUDING A GYNECOLOGICAL EXAM AND A FULL PELVIC EXAM; SUPREME COURT HAD DENIED THE FULL PELVIC EXAM; THERE WAS AN EXTENSIVE DISSENT (FIRST DEPT). 9

NEGLIGENCE, SLIP AND FALL, MUNICIPAL LAW. 10

THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS ROAD-DEFECT SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED; THE NINE-MONTH DELAY WAS NOT EXPLAINED; THE CITIY DID NOT HAVE TIMELY NOTICE OF THE POTENTIAL LAWSUIT; AND PETITIONER DID NOT SHOW THE CITY WOULD NOT BE PREJUDICED BY THE DELAY (SECOND DEPT). 10

NEGLIGENCE, SLIP AND FALL, OUT-OF-POSSESSION LANDLORD. 11

THE TERMS OF THE LEASE DID NOT DEMONSTRATE DEFENDANT OUT-OF-POSSESSION LANDLORD DID NOT HAVE A DUTY TO MAKE NONSTRUCTURAL FLOOR REPAIRS; THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 11

NEGLIGENCE, TRAFFIC ACCIDENTS, MUNICIPAL LAW, IMMUNITY. 12

THE CITY IS NOT ENTITLED TO GOVERNMENTAL FUNCTION IMMUNITY WHEN ENGAGED IN THE PROPRIETARY FUNCTION OF MAINTAINING ROADS; IN THE ABSENCE OF A STUDY TO DETERMINE THE RISKS OF A HIGHWAY DESIGN, THE CITY IS NOT ENTITLED TO QUALIFIED IMMUNITY; THERE WAS A QUESTION OF FACT WHETHER THE ABSENCE OF SIGNS AND ROADWAY MARKINGS WAS A PROXIMATE CAUSE OF THE INTERSECTION TRAFFIC ACCIDENT (FIRST DEPT). 12

NEGLIGENCE, SLIP AND FALL, CIVIL PROCEDURE, WORKERS’ COMPENSATION. 13

HERE THERE IS AN UNRESOLVED QUESTION ABOUT WHETHER PLAINTIFF IS ENTITLED TO WORKERS’ COMPENSATION BENEFITS; SUPREME COURT SHOULD GRANTED SUMMARY JUDGMENT TO DEFENDANTS AND REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD (SECOND DEPT). 13

PRODUCTS LIABILITY, UNIFORM COMMERCIAL CODE, IMPLIED WARRANTIES. 14

THE COMPLAINT DID NOT STATE CAUSES OF ACTION FOR BREACH OF IMPLIED WARRANTY FOR A PARTICULAR PURPOSE OR BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY (FIRST DEPT). 14

 

JANUARY 16 – 20, 2023, WEEKLY REVERSAL REPORT

CIVIL PROCEDURE, AMEND COMPLAINT. 3

THE TEN-MONTH DELAY BEFORE SEEKING TO AMEND THE COMPLAINT AND DEFENDANT’S SPECULATIVE ALLEGATION OF PREJUDICE WERE NOT SUFFICIENT GROUNDS FOR DENYING THE MOTION TO AMEND (SECOND DEPT). 3

CRIMINAL LAW, JUDGES, JURORS. 4

AFTER A JUROR CAME FORWARD DURING DELIBERATIONS TO SAY SHE THOUGHT THE DEFENDANT HAD FOLLOWED HER IN HIS CAR DURING THE TRIAL AND OTHER JURORS EXPRESSED SAFETY CONCERNS WITH RESPECT TO TRIAL SPECTATORS, THE JUDGE INTERVIEWED EACH JUROR AND PROPERLY DENIED DEFENDANT’S MOTION FOR A MISTRIAL BASED ON A GROSSLY-UNQUALIFIED-JUROR ARGUMENT; TWO-JUSTICE DISSENT (THIRD DEPT). 4

CRIMINAL LAW, UNCORROBORATED ADMISSION. 5

DEFENDANT’S RAPE CONVICTION BASED SOLELY ON HIS UNCORROBORATED ADMISSION WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (THIRD DEPT). 5

FAMILY LAW, CUSTODY, CHANGE IN CIRCUMSTANCES. 6

ALLEGATIONS FATHER DID NOT ABIDE BY THE VISITATION TERMS AND USED DRUGS DURING VISITATION SUPPORTED MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY BASED UPON CHANGED CIRCUMSTANCES (THIRD DEPT). 6

FAMILY LAW, JUDGES, PARENTAL RIGHTS, PERMANENT NEGLECT. 7

ALTHOUGH THE RECORD SUPPORTED FATHER’S PERMANENT NEGLECT AND THE TERMINATION OF FATHER’S PARENTAL RIGHTS, FAMILY COURT SHOULD NOT HAVE DISPENSED WITH THE DISPOSITIONAL HEARING ABSENT FATHER’S CONSENT; MATTER REMITTED (THIRD DEPT). 7

FAMILY LAW, NYC ADMINISTRATION OF CHILDREN’S SERVICES, CHILD ABUSE AND NEGLECT RECORDS. 8

FATHER MADE A PRIMA FACIE SHOWING THE NYC ADMINISTRATION OF CHILDREN’S SERVICES (ACS) SHOULD BE HELD IN CONTEMPT FOR FAILING TO PROVIDE UNREDACTED REPORTS OF CHILD ABUSE OR NEGLECT WHICH WERE DEEMED UNFOUNDED; MATTER REMITTED (FIRST DEPT). 8

FAMILY LAW, PARENTAL RIGHTS, ABANDONMENT. 9

THE ABANDONMENT PETITION SHOULD NOT HAVE BEEN GRANTED; PETITIONER DID NOT DEMONSTRATE RESPONDENT FATHER INTENDED TO FOREGO HIS PARENTAL RIGHTS AND, IN FACT, PETITIONER AFFIRMATIVELY INTERFERED WITH FATHER’S ATTEMPTS TO MAINTAIN CONTACT WITH THE CHILDREN (THIRD DEPT). 9

FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PROOF OF MAILING. 11

PLAINTIFF BANK DID NOT DEMONSTRATE THE NOTICE OF FORECLOSURE WAS MAILED IN ACCORDANCE WITH RPAPL 1304; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULDN’T HAVE BEEN GRANTED (SECOND DEPT). 11

LABOR LAW-CONSTRUCTION LAW. 12

PLAINTIFF ALLEGEDLY FELL INTO A DITCH WHICH WAS COVERED BY A TARP; THE FACT THAT PLAINTIFF WAS THE ONLY WITNESS AND THE ALLEGATION PLAINTIFF COULD HAVE TAKEN A DIFFERENT ROUTE DID NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). 12

LEGAL MALPRACTICE, FAILURE TO SEEK DAMAGES FROM TORTFEASOR PERSONALLY. 13

PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE ALLEGED DEFENDANT ATTORNEY NEGLIGENTLY FAILED TO PURSUE DAMAGES IN EXCESS OF THE POLICY LIMITS AGAINST THE TORTFEASOR PERSONALLY; DEFENDANT DID NOT DEMONSTRATE PLAINTIFF WOULD NOT HAVE PREVAILED AGAINST THE TORTFEASOR PERSONALLY; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 13

NEGLIGENCE, LANDLORD-TENANT, DANGEROUS CONDICTION. 14

PLAINTIFF FELL THROUGH A STOREFRONT WINDOW IN DEFENDANT PLANET ROSE’S KARAOKE BAR; GIVEN THE CIRCUMSTANCES, THE FAILURE TO INSTALL TEMPERED GLASS MAY HAVE BEEN NEGLIGENT; BY THE TERMS OF THE LEASE, THE OUT-OF-POSSESSION LANDLORD, DEFENDANT 219 AVE. A, COULD NOT BE HELD LIABLE (FIRST DEPT). 14

TRUSTS AND ESTATES, TESTAMENTARY CAPACITY, UNDUE INFLUENCE. 15

CONFLICTING EVIDENCE OF DECEDENT’S TESTAMENTARY CAPACITY AND PETITIONER’S UNDUE INFLUENCE PRECLUDED SUMMARY DISMISSAL OF RESPONDENT’S OBJECTIONS TO THE WILL SUBMITTED FOR PROBATE BY PETITIONER (THIRD DEPT). 15

 

JANUARY 23 – 27, 2023 WEEKLY REVERSAL REPORT

APPEALS, CIVIL PROCEDURE, SUMMARY JUDGMENT, SEARCH THE RECORD. 4

THE SECOND DEPARTMENT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO A NONAPPEALING PARTY IN THIS SLIP AND FALL CASE (SECOND DEPT). 4

CIVIL PROCEDURE, CORPORATION LAW, NEGLIGENCE, VENUE. 5

EVEN THOUGH THE DEFENDANT CORPORATION DID NOT HAVE AN OFFICE IN NEW YORK COUNTY AND THE TRAFFIC ACCIDENT OCCURRED IN NASSAU COUNTY WHERE THE CORPORATION DID HAVE AN OFFICE, VENUE WAS APPROPRIATELY PLACED IN NEW YORK COUNTY BASED ON DEFENDANT’S CERTIFICATE OF INCORPORATION (FIRST DEPT). 5

CIVIL PROCEDURE, EDUCATION-SCHOOL LAW, MUNICIPAL LAW, NEGLIGENCE, INFANCY TOLL, STATUTE OF LIMITATIONS. 6

THE ONE-YEAR-AND-NINETY-DAY TIME LIMIT FOR A SUIT AGAINST A SCHOOL DISTRICT IN GENERAL MUNICIPAL LAW 50-I(1)(C) IS SUBJECT TO THE INFANCY TOLL IN CPLR 208 (SECOND DEPT). 6
CIVIL PROCEDURE, PRODUCTS LIABILITY, JURISDICTION, FOREIGN CORPORATIONS. 7
NEW YORK DID NOT HAVE LONG-ARM OR PERSONAL JURISDICTION OVER THE ITALIAN MANUFACTURER OF A HOSE USED AS A COMPONENT IN A DISHWASHER MADE AND SOLD BY A NONPARTY (SECOND DEPT). 7

CONTRACT LAW, EVIDENCE, DAMAGES. 8

PLAINTIFF’S FAILURE TO PROVIDE EVIDENCE OF THE EXACT AMOUNT OF DAMAGES HE SUFFERED FROM DEFENDANT’S BREACH OF CONTRACT PRECLUDED SUMMARY JUDGMENT (SECOND DEPT). 8

CRIMINAL LAW, JUDGES, JURY INSTRUCTIONS, POSSESSION OF A WEAPON. 9

THE INDICTMENT CHARGED DEFENDANT WITH POSSESSION OF A WEAPON OUTSIDE HIS HOME OR BUSINESS; THE JUDGE INSTRUCTED THE JURY THEY NEED ONLY FIND DEFENDANT POSSESSED A LOADED FIREARM; THE POSSESSION OF A WEAPON CONVICTION WAS REVERSED (SECOND DEPT). 9

EDUCATION-SCHOOL LAW, MUNICIPAL LAW, NEGLIGENCE. 10

THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SCHOOL PLAYGROUND ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED; PETITIONER DID NOT DEMONSTRATE THE SCHOOL HAD TIMELY ACTUAL KNOWLEDGE OF THE POTENTIAL NEGLIGENT-SUPERVISION CLAIM AND PETITIONER DID NOT OFFER A REASONABLE EXCUSE FOR FAILURE TO TIMELY FILE (SECOND DEPT). 10

FAMILY LAW, JUDGES, ATTORNEYS. 11

FAMILY COURT SHOULD NOT HAVE PROCEEDED WITH THE CUSTODY HEARING WITHOUT A SEARCHING INQUIRY INTO WHETHER RESPONDENT FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (SECOND DEPT). 11

FORECLOSURE, CIVIL PROCEDURE, MOTION TO RENEW. 13

IN THIS FORECLOSURE ACTION, THE BANK’S FAILURE TO EXPLAIN WHY AN AFFIDAVIT DEMONSTRATING THE NOTICE OF DEFAULT WAS PROPERLY MAILED WAS NOT SUBMITTED WITH THE INITIAL MOTION FOR SUMMARY JUDGMENT PRECLUDED A MOTION FOR LEAVE TO RENEW (SECOND DEPT). 13

LABOR LAW-CONSTRUCTION LAW. 14

A HEAVY DOOR FELL ON PLAINTIFF’S HAND AS HE AND A CO-WORKER ATTEMPTED TO LIFT THE DOOR ONTO A TRUCK; NO LIFTING DEVICES WERE AVAILABLE; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). 14

LABOR LAW-CONSTRUCTION LAW. 15

PLAINTIFF STRUCK HIS HEAD AS HE FELL AND WAS INJURED BY THE ABRUPT STOP OF HIS FALL BY THE SAFETY HARNESS AND LANYARD; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). 15

LABOR LAW-CONSTRUCTION LAW. 16

PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS FALL; THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT). 16

LABOR LAW-CONSTRUCTION LAW. 17

THERE WAS A QUESTION OF FACT WHETHER REPLACEMENT OF DAMAGED CEILING TILES WAS REPAIR, COVERED BY LABOR LAW 240(1) AND 241(6), OR ROUTINE MAINTENANCE, WHICH IS NOT COVERED (SECOND DEPT). 17

MEDICAL MALPRACTICE, INFORMED CONSENT. 18

A SIGNED CONSENT FORM ALONE DOES NOT PRECLUDE A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION IN A MEDICAL MALPRACTICE CASE (SECOND DEPT). 18

MEDICAL MALPRACTICE, VICARIOUS LIABILITY. 19

ATTENDING PHYSICIAN NOT VICARIOUSLY LIABLE FOR NEGLIGENCE OF PHYSICIAN’S ASSISTANT BASED UPON THE PHYSICIAN’S STATUS AS A SHAREHOLDER IN THE PROFESSIONAL SERVICE CORPORATION WHICH EMPLOYED THE PHYSICIAN’S ASSISTANT; $3 MILLION VERDICT EXCESSIVE (FIRST DEPT). 19

MUNICIPAL LAW, CIVIL PROCEDURE, STATUTE OF LIMITATIONS, ARTICLE 78. 20

HERE NOTICE OF THE DENIAL OF PETITIONER’S APPLICATION TO THE TOWN FOR THE APPROVAL OF A FENCE AND GATE WAS MAILED TO PETITIONER; PETITIONER WAS ENTITLED TO THE PRESUMPTION THE NOTICE ARRIVED FIVE DAYS AFTER IT WAS MAILED; THEREFORE PETITIONER’S ARTICLE 78 PROCEEDING WAS TIMELY COMMENCED (SECOND DEPT). 20

NEGLIGENCE, CONSTRUCTIVE NOTICE. 21

DEFENDANT SUPERMARKET DID NOT OFFER PROOF OF WHEN THE AREA OF THE SLIP AND FALL WAS LAST INSPECTED OR CLEANED PRIOR TO THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE GRAPES ON THE FLOOR (FIRST DEPT). 21

NEGLIGENCE, ESPINAL EXCEPTIONS. 22

IN THIS SLIP AND FALL CASE, THE DEFENDANT SNOW-REMOVAL CONTRACTOR DID NOT NEED TO ADDRESS ANY ESPINAL EXCEPTION IN ITS ANSWER BECAUSE PLAINTIFF DID NOT ALLEGE AN EXCEPTION APPLIED; PLAINTIFF DID NOT DEMONSTRATE THAT AN ESPINAL EXCEPTION APPLIED IN OPPOSITION TO SUMMARY JUDGMENT; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). 22

NEGLIGENCE, PROXIMATE CAUSE 23

ALTHOUGH PLAINTIFF ALLEGED HE TRIPPED OVER A HOSE HE HAD PLACED ON THE STEPS, THERE WAS A QUESTION OF FACT WHETHER INADEQUATE LIGHTING WAS ANOTHER PROXIMATE CAUSE OF THE SLIP AND FALL (SECOND DEPT). 23

REAL ESTATE, CONTRACT LAW, LIMITED LIABILITY COMPANY LAW, STATUTE OF FRAUDS. 24

ALTHOUGH THE LIMITED LIABILITY COMPANY (LLC) VOTING AGREEMENT CONCERNED THE SALE OF REAL PROPERTY, IT WAS NOT SUBJECT TO THE STATUTE-OF-FRAUDS PROHIBITION OF ORAL AGREEMENTS (FIRST DEPT). 24

REAL ESTATE, CONTRACT LAW, TIME OF THE ESSENCE. 25

THE STIPULATION SETTING A DATE FOR THE CLOSING ON DEFENDANT’S PURCHASE OF THE PROPERTY DID NOT INFORM DEFENDANT HE WOULD BE CONSIDERED TO BE IN DEFAULT IF THE CLOSING DID NOT TAKE PLACE BY THAT DATE; THEREFORE THERE WAS NO “TIME OF THE ESSENCE” AGREEMENT AND PLAINTIFF WAS NOT ENTITLED TO THE DOWN PAYMENT (SECOND DEPT). 25

REAL PROPERTY TAX, CORPORATION LAW, EDUCATION-SCHOOL LAW. 26

TOWNHOUSES PURCHASED BY A NOT-FOR-PROFIT SCHOOL TO HOUSE FACULTY ARE TAX EXEMPT (SECOND DEPT), 26

RETIREMENT AND SOCIAL SECURITY LAW. 27

PETITIONER POLICE OFFICER FELL TWICE AT NIGHT WHILE INVESTIGATING SUSPICIOUS ACTIVITY; HE FELL IN A THREE-FOOT DEEP HOLE WHEN CHECKING OUT A HOUSE AND HE FELL DOWN SOME STAIRS CHECKING OUT A PARKING LOT; NEITHER FALL WAS A COMPENSABLE “ACCIDENT” (THIRD DEPT). 27