July 19, 2016 | Vol. 11

MUST READS
(3 summaries)

Snow/Ice   3rd Party Contractor   Espinal  

Second Deptartment

In a case of first impression for the Second Department, the Court ruled that failure of a third-party contractor to apply salt or sand does not fit within the “launch an instrumentality of harm” exception to Espinal where there is no proof that the failure to apply the salt or sand created or exacerbated the icy conditions. Plaintiff slipped in an area open only to employees which had been plowed by the defendant’s subcontractor. Plaintiff put in no climatic evidence or evidence regarding how or when the ice formed. Any claim that the failure to apply salt or sand caused or aggravated the icy condition, therefore, would be speculative. Santos v Deanco Servs., Inc.


Legal Mal   Judiciary Law §487   Statute of Limitations   Counterclaims  

Second Deptartment

Two duplicated counterclaims and a third-party cause of action were properly dismissed since they did not contain additional claims of malpractice or seek additional remedies. Defendant’s counterclaims and third-party action were not time-barred as they related to the same transactions in the complaint, which was to recover for legal services, and were timely to the extent of the demand in the complaint. Denial of dismissal of the judiciary law §487 claim and counterclaims and third-party cause of action alleging that defendant improperly withheld portions of the litigation file was proper. Counterclaim for sanctions for frivolous actions was properly dismissed as there is no independent cause of action for frivolous actions. Lewis, Brisbois, Bisgaard & Smith, LLP v Law Firm of Howard Mann

Comment: The action appears to have been settled long before the court’s decision. Just a reminder that when a case settles during an appeal, notify the court as soon as possible. If the court is not notified by the argument date, it will likely decide the appeal.


School Security   School Custody  

Second Deptartment

16-year-old plaintiff was stabbed and assaulted by members of a gang after being discharged from school grounds. The majority found the school entitled to summary judgment because the student left the orbit of the school’s control and was not placed into a foreseeably dangerous situation partially created by the school. The dissent, however, opined that the plaintiff’s testimony that he attempted to go back into the school grounds to avoid the attack, was told to leave, and was attacked 10 away raised and triable issue of fact. Diaz v Brentwood Union Free Sch. Dist.

Comment: For the exception to the rule that a school’s duty ceases immediately upon release from custody, the foreseeably dangerous condition must have been at least partly created by the school. There was no fact in this case showing how the school partially created the gang danger.

NOTEWORTHY
(2 summaries)

School Supervision   Recess  

Second Deptartment

A fifth grade student who was not allowed to be in areas where sports were played due to a medical condition was struck in the eye by a ball kicked by another student. At the time, he was standing in a blacktop area of the playground near his aide and a substitute teacher. The Second Department reversed the lower court’s denial of summary judgment, finding that the school showed that it provided adequate supervision of the infant plaintiff and that any lack of supervision was not the cause of the injury. ‘Schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another.’ Perez v Comsewogue School Dist.


Premises Liab   Falling Ceiling   Notice  

First

Landlord entitled to summary judgment where portion of bathroom ceiling fell on plaintiff’s head. Overflowing bathtup from bathroom two floors above on the same day caused the ceiling collapse. Superintendent and plaintiff both testified that there were no leaks or staining in the months before the accident. Lozano v Mt. Hope Place Props., Inc.

IF YOU MUST READ
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About Matt McMahon

Civil trials and appeals since 1984
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