CPLR 3212[a]
Practice point: The statutory deadline for filing summary judgment motions must be strictly followed, and, regardless of merit, courts may not excuse a late motion based on a perfunctory claim of law office failure.
Case: Azcona v. Salem, NY Slip Op 02195 (1st Dept. 2008)
Facts: Defendants claimed that they were unaware of the filing of the note of issue until they learned of an imminent pretrial conference, just before the end of the 120-day period for moving for summary judgment, and that they filed as soon as they could thereafter. The bald assertion that defendants' counsel did not receive a copy of the note of issue was insufficient to rebut the presumption that service was complete upon mailing of the document, as indicated by an affidavit of service.
March 14, 2008
Vehicle and Traffic Law § 1104(b)(2)
The Second Department determined that defendant-City of New York failed to meet its initial burden of establishing, prima facie, that defendant-police officer did not act in reckless disregard for the safety of others in entering the intersection where the accident in question occurred, in Burrell v. City of New York, which was decided on March 4, 2008. The court noted that Vehicle and Traffic Law § 1104(b)(2) permits an emergency vehicle to proceed past a steady red signal only after slowing down as may be necessary for safe operation. The court said that the City's submissions left questions of fact as to whether the police vehicle had its emergency siren and flashers on and whether the officer operating the vehicle accelerated, rather than slowed down, as she approached the intersection. Moreover, there are fact questions as to whether the defendant-police officer's view of the intersection was obstructed by a parked vehicle or hindered by the inclement weather.
New York practice point: An officer's operation of a police vehicle in responding to an emergency call may not be the basis of civil liability to an injured third-party unless the officer acted in reckless disregard for the safety of others. The "reckless disregard" standard requires proof that the officer intentionally committed an unreasonable act in disregard of a known or obvious risk so great as to make it highly probable that harm would result.
The Second Department determined that defendant-City of New York failed to meet its initial burden of establishing, prima facie, that defendant-police officer did not act in reckless disregard for the safety of others in entering the intersection where the accident in question occurred, in Burrell v. City of New York, which was decided on March 4, 2008. The court noted that Vehicle and Traffic Law § 1104(b)(2) permits an emergency vehicle to proceed past a steady red signal only after slowing down as may be necessary for safe operation. The court said that the City's submissions left questions of fact as to whether the police vehicle had its emergency siren and flashers on and whether the officer operating the vehicle accelerated, rather than slowed down, as she approached the intersection. Moreover, there are fact questions as to whether the defendant-police officer's view of the intersection was obstructed by a parked vehicle or hindered by the inclement weather.
New York practice point: An officer's operation of a police vehicle in responding to an emergency call may not be the basis of civil liability to an injured third-party unless the officer acted in reckless disregard for the safety of others. The "reckless disregard" standard requires proof that the officer intentionally committed an unreasonable act in disregard of a known or obvious risk so great as to make it highly probable that harm would result.
March 13, 2008
CPLR 3101(a)
The First Department granted defendants' motion to compel discovery, in Rega v. Avon Products, Inc., which was decided on March 11, 2008, determining that the evidence sought about plaintiff's prior and subsequent injuries was material to defense of the action. The court noted that plaintiff had put his physical condition at issue by averring in his bill of particulars that his condition had been made worse by the injuries he alleged in his compaint, and defendants had a right to information about that condition.
New York practice point: CPLR 3101(a) requires full disclosure of all information which is material and necessary in the prosecution or defense of an action, regardless of the burden of proof. The information must be sought in good faith for possible use as evidence-in-chief, rebuttal or for cross-examination. The physician-patient privilege is waived if plaintiff's physical condition is interjected through testimony or written submission.
The First Department granted defendants' motion to compel discovery, in Rega v. Avon Products, Inc., which was decided on March 11, 2008, determining that the evidence sought about plaintiff's prior and subsequent injuries was material to defense of the action. The court noted that plaintiff had put his physical condition at issue by averring in his bill of particulars that his condition had been made worse by the injuries he alleged in his compaint, and defendants had a right to information about that condition.
New York practice point: CPLR 3101(a) requires full disclosure of all information which is material and necessary in the prosecution or defense of an action, regardless of the burden of proof. The information must be sought in good faith for possible use as evidence-in-chief, rebuttal or for cross-examination. The physician-patient privilege is waived if plaintiff's physical condition is interjected through testimony or written submission.
March 12, 2008
Legal Malpractice
The First Department found no prima facie case for legal malpractice and dismissed the complaint, in Orchard Motorcycle Distributors, Inc. v. Morrison Cohen Singer & Weinstein, which was decided on March 6, 2008. Plaintiffs did not submit an expert affidavit establishing the appropriate standard of professional care and skill defendant was required to exercise in the underlying action which involved foreclosure matters, complex loan arrangements and bankruptcy proceedings that ordinary jurors could not evaluate based on their own knowledge and experience. The affidavit of plaintiffs' principal was unavailing, since it failed to establish that, but for defendant's alleged malpractice, corporate plaintiffs would have successfully reorganized in Chapter 11. In addition, the court found record evidence that corporate plaintiffs' dire financial situation was brought on by factors independent of defendant's professional representation, rendering speculative the claim that defendant proximately caused plaintiffs' business failure.
New York practice point: Regarding plaintiff's "failure to advise" claim, an attorney does not commit malpractice by choosing one of several reasonable courses of action.
The First Department found no prima facie case for legal malpractice and dismissed the complaint, in Orchard Motorcycle Distributors, Inc. v. Morrison Cohen Singer & Weinstein, which was decided on March 6, 2008. Plaintiffs did not submit an expert affidavit establishing the appropriate standard of professional care and skill defendant was required to exercise in the underlying action which involved foreclosure matters, complex loan arrangements and bankruptcy proceedings that ordinary jurors could not evaluate based on their own knowledge and experience. The affidavit of plaintiffs' principal was unavailing, since it failed to establish that, but for defendant's alleged malpractice, corporate plaintiffs would have successfully reorganized in Chapter 11. In addition, the court found record evidence that corporate plaintiffs' dire financial situation was brought on by factors independent of defendant's professional representation, rendering speculative the claim that defendant proximately caused plaintiffs' business failure.
New York practice point: Regarding plaintiff's "failure to advise" claim, an attorney does not commit malpractice by choosing one of several reasonable courses of action.
March 11, 2008
CPLR 3216
The Second Department denied defendant's motion to dismiss for want of prosecution, in Anonymous v. Duane Reade, decided on March 4, 2008, even though plaintiff admittedly failed to serve a note of issue by the court-ordered deadline. The court noted that the parties had barely begun discovery proceedings, and that a motion and cross motion to compel discovery were pending at the deadline for the service and filing of the note of issue.
New York practice point: CPLR 3216 is extremely forgiving in that it never requires, but merely permits, the dismissal of an action based on the plaintiff's unreasonable neglect to proceed.
The Second Department denied defendant's motion to dismiss for want of prosecution, in Anonymous v. Duane Reade, decided on March 4, 2008, even though plaintiff admittedly failed to serve a note of issue by the court-ordered deadline. The court noted that the parties had barely begun discovery proceedings, and that a motion and cross motion to compel discovery were pending at the deadline for the service and filing of the note of issue.
New York practice point: CPLR 3216 is extremely forgiving in that it never requires, but merely permits, the dismissal of an action based on the plaintiff's unreasonable neglect to proceed.
March 10, 2008
Labor Law 241(6)
The First Department denied defendant-contractors' motion to dismiss the Labor Law § 241(6) cause of action, in Gheradi v. City of New York, which was decided on March 4, 2008. Plaintiff was injured while working on an extensive project for the installation of wiring on four floors of a public high school. The court determined that this project effected a significant physical change to the building and was therefore an alteration sufficient to bring it within the statute's coverage.
New York practice point: The statute extends its protection to an entrance ramp used for worker access and for bringing in materials, and is not limited to where plaintiff's work was actually being done. It is not necessary that the accident-causing instrumentality be set up specifically for plaintiff's use.
The First Department denied defendant-contractors' motion to dismiss the Labor Law § 241(6) cause of action, in Gheradi v. City of New York, which was decided on March 4, 2008. Plaintiff was injured while working on an extensive project for the installation of wiring on four floors of a public high school. The court determined that this project effected a significant physical change to the building and was therefore an alteration sufficient to bring it within the statute's coverage.
New York practice point: The statute extends its protection to an entrance ramp used for worker access and for bringing in materials, and is not limited to where plaintiff's work was actually being done. It is not necessary that the accident-causing instrumentality be set up specifically for plaintiff's use.
March 7, 2008
CPLR 3211(a)(7)
Plaintiff underwent a surgical procedure during which there were implants of bone, bone paste and other tissue which had been distributed by defendants. Plaintiff alleged that, seven months later, he was advised that those materials were "potentially" contaminated with HIV, but he did not allege that he was infected. The Second Department dismissed the complaint, in its entirety, in Aberbach v. Biomedical Tissue Services, which was decided on February 26, 2008.
The court found no valid claim for battery because there was no allegation that defendants intentionally touched plaintiff's body, either personally or with an instrumentality. There was no cause of action sounding in negligent infliction of emotional distress because plaintiff did not allege that he was actually, or even probably, exposed to HIV. The alleged breach of express and implied warranties, along with the claim of strict products liability, could not stand because there was no allegation of a sale, which is required to support these causes of action. Finally, the complaint failed to allege a cognizable injury resulting from negligence.
New York practice point: In considering a motion to dismiss, pursuant to CPLR 3211(a)(7), the court must accept as true the facts as alleged in the complaint, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit any cognizable legal theory. The court may not consider whether plaintiff can ultimately establish the allegations.
Plaintiff underwent a surgical procedure during which there were implants of bone, bone paste and other tissue which had been distributed by defendants. Plaintiff alleged that, seven months later, he was advised that those materials were "potentially" contaminated with HIV, but he did not allege that he was infected. The Second Department dismissed the complaint, in its entirety, in Aberbach v. Biomedical Tissue Services, which was decided on February 26, 2008.
The court found no valid claim for battery because there was no allegation that defendants intentionally touched plaintiff's body, either personally or with an instrumentality. There was no cause of action sounding in negligent infliction of emotional distress because plaintiff did not allege that he was actually, or even probably, exposed to HIV. The alleged breach of express and implied warranties, along with the claim of strict products liability, could not stand because there was no allegation of a sale, which is required to support these causes of action. Finally, the complaint failed to allege a cognizable injury resulting from negligence.
New York practice point: In considering a motion to dismiss, pursuant to CPLR 3211(a)(7), the court must accept as true the facts as alleged in the complaint, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit any cognizable legal theory. The court may not consider whether plaintiff can ultimately establish the allegations.
March 6, 2008
General Obligations Law § 5-326
The First Department reinstated the complaint, in Connolly v. Peninsula Group, decided on February 28, 2008, even though plaintiff had signed a release with a covenant against bringing suit for personal injuries incurred during training sessions at defendant's spa. Plaintiff alleges that the trainer, who was aware of plaintiff's limited mobility in his shoulder, insisted that plaintiff engage in a modified lateral pulldown. Plaintiff felt a snap in his shoulder and later learned that a piece of steel, still in his shoulder from a previous surgery, had dislodged.
New York practice point: Although clear and unambiguous, the release is void as against public policy, pursuant to General Obligations Law § 5-326, inasmuch as the training sessions were merely ancillary to the recreational activities offered by the spa.
The First Department reinstated the complaint, in Connolly v. Peninsula Group, decided on February 28, 2008, even though plaintiff had signed a release with a covenant against bringing suit for personal injuries incurred during training sessions at defendant's spa. Plaintiff alleges that the trainer, who was aware of plaintiff's limited mobility in his shoulder, insisted that plaintiff engage in a modified lateral pulldown. Plaintiff felt a snap in his shoulder and later learned that a piece of steel, still in his shoulder from a previous surgery, had dislodged.
New York practice point: Although clear and unambiguous, the release is void as against public policy, pursuant to General Obligations Law § 5-326, inasmuch as the training sessions were merely ancillary to the recreational activities offered by the spa.
March 5, 2008
CPLR 306-b
The First Department dismissed the complaint for failure to make service within 120 days after filing the summons and complaint, pursuant to CPLR 306-b, in Okoh v. Bunis, which was decided on February 28, 2008. The court noted that, in addition to plaintiff's lack of diligence in serving, there was no showing of merit so as to justify an extension of time.
New York practice point: Fatal to the motion to extend was the fact that it addressed only the failure to serve within the 120-day statutory period. There was no explanation whatsoever why plaintiff's attorney waited more than 14 months to ask for an extension, and, even then, only in response to defendants' motion to dismiss.
The First Department dismissed the complaint for failure to make service within 120 days after filing the summons and complaint, pursuant to CPLR 306-b, in Okoh v. Bunis, which was decided on February 28, 2008. The court noted that, in addition to plaintiff's lack of diligence in serving, there was no showing of merit so as to justify an extension of time.
New York practice point: Fatal to the motion to extend was the fact that it addressed only the failure to serve within the 120-day statutory period. There was no explanation whatsoever why plaintiff's attorney waited more than 14 months to ask for an extension, and, even then, only in response to defendants' motion to dismiss.
March 4, 2008
22 NYCRR Part 130.
The First Department dismissed a purported class action seeking an injunction and a judgment declaring that defendant-food distributor trespassed on plaintiff's property by slipping an advertising flier under the door to plaintiff's apartment without plaintiff's permission, in Leyse v. Domino's Pizza, which was decided on February 28, 2008. The court said that dismissal was proper in the absence of plaintiff's having given prior notice to defendant that he objected to delivery of the flier. Such notice was required by defendant's constitutional right of free speech. In addition, the court noted the possibility of numerous other apartment dwellers suing distributors of those ubiquitous restaurant fliers.
New York practice point: Costs and sanctions, pursuant to 22 NYCRR Part 130, were not warranted even though plaintiff continued the action after being advised that the offending flier came not from defendant but a franchisee of defendant. Why? To this point there had been no disclosure, and plaintiff's counsel was not required to accept defendant's assertion at face value.
The First Department dismissed a purported class action seeking an injunction and a judgment declaring that defendant-food distributor trespassed on plaintiff's property by slipping an advertising flier under the door to plaintiff's apartment without plaintiff's permission, in Leyse v. Domino's Pizza, which was decided on February 28, 2008. The court said that dismissal was proper in the absence of plaintiff's having given prior notice to defendant that he objected to delivery of the flier. Such notice was required by defendant's constitutional right of free speech. In addition, the court noted the possibility of numerous other apartment dwellers suing distributors of those ubiquitous restaurant fliers.
New York practice point: Costs and sanctions, pursuant to 22 NYCRR Part 130, were not warranted even though plaintiff continued the action after being advised that the offending flier came not from defendant but a franchisee of defendant. Why? To this point there had been no disclosure, and plaintiff's counsel was not required to accept defendant's assertion at face value.
March 3, 2008
CPLR 1015(a) and 1021
The First Department denied defendant's motion to dismiss the complaint for failure to timely substitute a representative for deceased plaintiff, in Peters v. City of New York Health & Hosp. Corp., which was decided on February 26, 2008. By submitting its expert's affidavit of merit and a reasonable explanation for the delay in seeking substitution, decedent's estate showed adequate cause why this medical malpractice action should not have been dismissed for failure to timely move for substitution, pursuant to CPLR 1015[a] and 1021.
New York practice point: Even after a lengthy delay, a motion to substitute a party will be granted absent a defendant's showing of prejudice. There is no prejudice when, as here, the action will likely rely on medical records and other documentary evidence and not on the testimony of eyewitnesses.
The First Department denied defendant's motion to dismiss the complaint for failure to timely substitute a representative for deceased plaintiff, in Peters v. City of New York Health & Hosp. Corp., which was decided on February 26, 2008. By submitting its expert's affidavit of merit and a reasonable explanation for the delay in seeking substitution, decedent's estate showed adequate cause why this medical malpractice action should not have been dismissed for failure to timely move for substitution, pursuant to CPLR 1015[a] and 1021.
New York practice point: Even after a lengthy delay, a motion to substitute a party will be granted absent a defendant's showing of prejudice. There is no prejudice when, as here, the action will likely rely on medical records and other documentary evidence and not on the testimony of eyewitnesses.
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