Changing venue.

Practice point: A demand to change venue based on the designation of an improper county, pursuant to CPLR 510[1], must be served with the answer or before the answer is served, pursuant to CPLR 511[a].

 Student note: If the motion is made after the answer is served, its disposition is left to the Court’s discretion.

Case: Carobert v. Baldor Elec. Co., NY Slip Op 00449 (2d Dept. 2013).

Here is the decision.

Monday’s issue: Agency and Labor Law.

Emotional distress without physical harm, and motions to dismiss.

Practice point: New York courts have been reluctant to recognize claims grounded in negligence when the damages are solely emotional. While in some cases a cause of action sounding in negligence may lie solely to recover damages for emotional injuries in the absence of physical harm, no New York case has recognized a theory of recovery so broad as the plaintiff asserted here. Essentially, the plaintiff contended that she is entitled to recover damages for emotional distress, because, as a result of the defendant's alleged negligent failure to inform her that the she was pregnant, she feared that her unborn child might be harmed. No such claim is recognized under New York, and the complaint was dismissed for failure to state a cause of action.

Student note: A court deciding a  CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action must accept the allegations in the complaint as true and accord the plaintiff every possible favorable inference from them. The motion must be granted when the allegations and inferences do not fit within any cognizable legal theory.

Case: Nadal v. Jaramillo, NY Slip Op 00314 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Changing venue.

Making time of the essence.

Practice point:  A letter from the plaintiff-buyer’s attorney to the defendant-seller’s attorney advised that the buyer was prepared to close "on any date . . . within the next ten days," and that the buyer would make himself available "at any time and location so designated by you." The letter also asked the seller’s attorney to contact the buyer’s attorney within the next ten days to schedule a closing date. Contrary to the plaintiff's contention, the letter was held to be nothing more than a mere demand that the defendant fix a closing date. It was inadequate to make time of the essence because it did not clearly and distinctly set a new date and time for closing, and it did not inform the defendant that he would be considered in default if he did not perform by a given date.

Student note: Since there was never a time of the essence closing, nor even a future scheduled closing date, it could not be concluded that the seller willfully defaulted or was unable to tender performance.

Case: Latora v. Ferreira, NY Slip Op 00309 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Emotional distress without physical harm, and motions to dismiss.

At-will employment and fraudulent inducement.

Practice point: A plaintiff who is offered only at-will employment cannot establish reasonable reliance on a prospective employer's representations, which is an element necessary to the recovery of damages under a theory of fraudulent inducement.

Student note: The at-will employment doctrine bars the cause of action even where the circumstances pertain to a plaintiff's acceptance of an offer of a position rather than termination.

Case: Guido v. Orange Regional Med. Ctr., NY Slip Op 00305 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Making time of the essence.

Discovery.

Practice point:  Sanctions were inappropriate because plaintiff waived his right to challenge deficiencies in defendant's responses to discovery orders by filing a note of issue and certificate of readiness representing that all discovery had been completed and that there were no outstanding discovery requests.

Student note: In any event, denial of the motion to strike would not have constituted an abuse of discretion, given that the defendant ultimately complied with the order to produce its employee a month after the court-ordered deadline, and the defendant’s conduct during pre-note of issue discovery proceedings did not amount to willful and contumacious behavior. The court properly considered the defendant’s opposition papers, given that plaintiff did not show prejudice by the late service, and had, in fact, submitted reply and supplemental reply affirmations.

Case: Marte v. City of New York, NY Slip Op 00387 (1st Dept. 2013).

Here is the decsion.

Tomorrow’s issue: At-will employment and fraudulent inducement.

Falls on snow or ice.

Practice point: A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it.

Student note: A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected. To meet its initial burden on the issue of lack of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.

Case: Feola v. City of New York, NY Slip Op 00304 (2d Dept. 2013).

Here is the decision.

Monday’s issue: Discovery.

Piercing the corporate veil.

Practice point: One of the primary legitimate purposes of incorporating is to limit or eliminate the personal liability of corporate principals.. Nevertheless, equity will intervene to pierce the corporate veil and permit the assertion of claims against the individuals who control the corporation in order to avoid fraud or injustice.Piercing the corporate veil requires a showing that the individual defendants exercised complete dominion and control over the corporation and used such dominion and control to commit a fraud or wrong against the plaintiff which resulted in injury.

Student note: The mere claim that the corporation was completely dominated by the defendants, or conclusory assertions that the corporation acted as their alter ego, without more, will not suffice to support the equitable relief of piercing the corporate veil.

Case: Flushing Plaza Assoc. #2 v. Albert, NY Slip Op 00177 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Falls on snow or ice.

Process servers' affidavits.

Practice point: The process server's affidavit of service constituted prima facie evidence of proper service pursuant to CPLR 308(2). In support of his motion to dismiss, the defendant offered an affidavit denying service, but he failed to swear to specific facts to rebut the statements in the process server's affidavit. As such, no hearing was necessary to determine whether service was proper.

Student note: In any event, defendant’s motion was premature as it was made within the initial 120-day period provided for service in CPLR 306-b.. Since the plaintiff had the absolute statutory right to effect valid service at any point within the 120-day period following the filing of the summons and complaint, dismissal of the complaint prior to the expiration of that period would have been improper.

Case: Bank of N.Y. v. Scura, NY Slip Op 00166 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Piercing the corporate veil.

Summary judgment as to liability denied.

Practice point: Plaintiffs failed to make a prima facie showing of entitlement to partial summary judgment as a matter of law. The non-prosecution agreement entered into between the New York County District Attorney's Office (NYDA) and defendants-Bovis, following NYDA's criminal investigation of the 2007 fire at the Deutsche Building in lower Manhattan, was correctly deemed inadmissible as proof of liability. The agreement explicitly provided that Bovis had not admitted liability; that the factual statements contained in the agreement were relevant only for the purposes of the compromise between the NYDA and Bovis; and that Bovis could contradict and/or contest any factual statement in the agreement in a subsequent action or proceeding to which the NYDA was not a party.

Student note:Judicial estoppel, and even informal judicial estoppel, cannot be applied here. Bovis was not a party to any legal proceeding when it entered into the non-prosecution agreement, and the agreement and related documents amount to a pre-indictment settlement agreement that was neither judicially endorsed nor approved.

Case: Borst v. Bovis Lend Lease LMB, Inc., NY Slip Op 00265 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Process servers’ affidavits.

Worker's fall from a ladder.

Practice point: In evaluating a claim under Labor Law § 240(1), the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. It is well settled that failure to properly secure a ladder to insure that it remains steady and erect while being used constitutes a statutory violation. Plaintiff's testimony that the ladder he was using was both unsteady as he was ascending it and too short to enable him to reach the window he was cleaning establishes prima facie that defendants failed to provide him with an adequate safety device under Labor Law § 240(1) and that their failure proximately caused his injuries.

Student note: To rebut plaintiff's prima facie case, defendants asserted that plaintiff was negligent because he was on top of the ladder. However, because plaintiff established that no adequate safety device was provided, his own negligence, if any, is of no consequence.

Case: Cuentas v. Sephora USA, Inc., NY Slip Op 00257 (1st Dept. 2013).

Here is the decision. 

Tomorrow’s issue: Summary judgment as to liability denied.

Declaratory judgments, and motions to dismiss.

Practice point: Pursuant to CPLR 3001, the Supreme Court may render a declaratory judgment as to the rights and other legal relations of the parties to a justiciable controversy. The demand for relief in the complaint shall specify the rights and other legal relations on which a declaration is requested, pursuant to CPLR 3017[b]. A motion to dismiss the complaint in an action for a declaratory judgment presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration.

Student note: Where the cause of action is sufficient to invoke the court's power to render a declaratory judgment, a motion to dismiss should be denied.

Case: DiGiorgio v. 1109-1113 Manhattan Ave. Partners, LLC, NY Slip Op 00172 (2d Dept. 2013).

Here is the decision.

Monday’s issue: A worker’s fall from a ladder.