A motion to vacate a default judgment.

Practice point:  The Appellate Division determined that the Supreme Court improvidently exercised its discretion in granting the motion of the defendant South 4th Street Condos, LLC, to vacate, as against it, a default judgment. Pursuant to CPLR 317, a defendant is entitled to vacatur of a default judgment if it is established that the defendant did not receive personal notice of the summons in time to defend and has a potentially meritorious defense. Here, South 4th established that it did not receive personal notice of the summons in time to defend. However, while there was no evidence that it deliberately attempted to avoid notice, it failed to show a potentially meritorious defense to the plaintiffs' Labor Law § 240 cause of action.

Student note:  The decision to set aside a default in answering is left to the sound discretion of the Supreme Court, and its determination likely will not be disturbed if there is support in the record.

Case:  Dias v. North True Constr. Mgt., LLC, NY Slip Op 03631 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Claims against an individual defendant as an employer, not as a corporate officer.

Slips and falls.

Practice point:  A plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation. Here, the moving defendants established their prima facie entitlement to judgment as a matter of law by submitting, among other things, the plaintiff's and her husband's deposition testimony which demonstrated that the plaintiff could not identify the cause of her fall without resorting to speculation. Although the plaintiff claimed that a bar connected to the bottom step of the bus caused her to trip, she acknowledged that she did not see this bar before her fall, and that she did not know which foot made contact with the bar. She stated that she only assumed that she had tripped on the bar after she regained consciousness and went looking for the source of the fall.

Student note: The settled law is that "[w]here it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a slip and fall accident, any determination by the trier of fact as to causation would be based upon sheer conjecture." Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 435.

Case:  Deputron v. A & J Tours, NY Slip Op 03629 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A motion to vacate a default judgment.

Retaliation and harassment claims.

Practice point:  It is unlawful to retaliate against an employee for having opposed statutorily forbidden discriminatory practices. Here, the defendants demonstrated that the claimant could not make out a prima facie case of retaliation by showing that the employee's complaints to her supervisors did not relate to statutorily forbidden discriminatory practices, and that she, therefore, had not engaged in protected activity. The cause of action alleging harassment was dismissed inasmuch as New York does not recognize a common-law cause of action to recover damages for harassment.

Student note:  To make a prima facie showing of retaliation under Executive Law § 296, a claimant is required to show that (1) the claimant was engaged in protected activity, (2) the claimant's employer was aware that he or she participated in such activity, (3) the claimant suffered an adverse employment action based upon his or her activity, and (4) there was a causal connection between the protected activity and the adverse action. Once this initial showing is made, the burden then shifts to the defendant to present legitimate, independent, and nondiscriminatory reasons to support its actions. Assuming the defendant meets this burden, the claimant would then have the obligation to show that the reasons put forth were merely a pretext.

Case:  Adeniran v. State of New York, NY Slip Op 03441 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Slips and falls.

Memorial Day.

For my generation's midwestern families who bore the cost, one station of their cross likely was a kitchen table at which sit a mother and dad, not because they're hungry though they haven't eaten since early morning, but because it's familiar, where they'd always sat and talked, all of them, going all the way back to when the kids were kids. It's late into the night of the day they got word that a son was killed in service, and they're reading aloud his letters, all of which they'd kept, the frank hand-written "Free," citing now-recognizable place-names they'd never even imagined just six months ago, and almost always closing with the well-intentioned, if unavailing, counsel, "Don't worry."

A valid release.

Practice point:  A valid release constitutes a complete bar to an action on a claim which is the subject of the release. Where the language is clear and unambiguous, the release is binding on the parties unless it is shown that it was procured by fraud, duress, overreaching, illegality or mutual mistake.

Student note:  A release will not be treated lightly because it is a a jural act of high significance without which the settlement of disputes would be rendered all but impossible.

Case:  Allen v. Riese Org., Inc., NY Slip Op 03547 (1st Dept. 2013).

Here is the decision.

Tuesday's issue: Retaliation and harassment claims.

Real estate commissions and bonus contracts with unlicensed persons.

Practice point:  The court determined that the action was not barred by Real Property Law § 442-d, which provides that an unlicensed person may not bring an action to recover a commission for facilitating the sale of real estate. The contract between the parties did not provide for plaintiff, who is not a licensed real estate broker, to receive a commission based on the sale of the property. Rather, it provided that, upon the sale of the property at a specified minimum selling price, plaintiff would be paid a bonus for, among other things, past management services rendered by him. In addition, although plaintiff was motivated to see the property sell above the minimum price, he was not the procuring cause of the real estate transaction. Defendant retained and paid a real estate broker to sell the property.

Student note:  The court also determined that plaintiff's breach of contract claim was not barred by the statute of limitations. The alleged breach for nonpayment under the terms of the contract did not occur until the property was sold, less than six years before the action was commenced (see CPLR § 213).

Case:  Glynos v. Dorizas, NY Slip Op 03414 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: A valid release.

Police officers' statements and a duty of care.

Practice point:  Defendants' motion for summary judgment dismissing the complaint was granted. In the absence of any evidence that defendants assumed an affirmative duty to protect plaintiff from attacks by her husband, defendants do not owe a duty of care to plaintiff. The statements allegedly made by police officers and other employees of defendants - that plaintiff's husband would spend time in jail, and that the police would provide protection of an unspecified nature - were too vague to constitute promises giving rise to a duty of care.

Student note:  The lack of any such duty also warranted the dismissal of the infant plaintiff's claim for negligent infliction of emotional distress.

Case:  Coleson v. City of New York, NY Slip Op 03409 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:  Real estate commissions and bonus contracts with unlicensed persons.

An allegedly defective staircase.

Practice point: Defendant established its entitlement to judgment as a matter of law where plaintiff was injured when he slipped and fell on a worn marble tread as he was going down the stairs in defendant's building. The worn marble tread is not an actionable defective condition, and, other than stating that he slipped, plaintiff was unable to explain the cause of his fall. He expressly said that he did not slip on any dirt or debris that may have been present.

Student note: The fact that defendant's superintendent was aware that the marble step was worn is irrelevant where the alleged defective condition is not actionable. In addition, the opinion of plaintiff's expert that the steps were worn and could cause one to slip is speculative, and plaintiff cited no applicable Building Code violations connecting his injuries to any alleged defective condition.

Case:  Sims v. 3349 Hull Ave. Realty Co., LLC, NY Slip Op 03398 (1st Dept. 2013).

Here is the decision.

 Tomorrow's issue: Police officers' statements and a duty of care.

Proving personal jurisdiction.

Practice point:  In opposing a motion to dismiss pursuant to CPLR 3211(a)(8), on the ground that discovery on the issue of personal jurisdiction is necessary, a plaintiff need not make a prima facie showing of jurisdiction, but must only set forth a sufficient start and show that its position is not frivolous.

Here, plaintiff's president's affidavit established that facts may exist to support the exercise of personal jurisdiction over the defendant, and thus the plaintiff made a sufficient start in showing that further discovery on the issue of personal jurisdiction is warranted. Under those circumstances, the Supreme Court should have exercised its discretion pursuant to CPLR 3211(d) to deny the motion without prejudice to renew upon the completion of such discovery.

Student note:  The jurisdictional issue is likely to be complex. Discovery is desirable and may be essential, and likely will lead to a more accurate judgment than one made solely on the basis of inconclusive preliminary affidavits.

Case:  Expert Sewer & Drain, LLC v. New England Mun. Equip. Co., Inc., NY Slip Op 03298 (2d Dept. 2013). 

Here is the decision. 

Tomorrow's issue: An allegedly defective staircase.

A mistake in a notice of claim.

Practice point:  In this trip and fall action, plaintiff's notice of claim listed the wrong street address (390 Central Park West rather than 360 Central Park West) in describing the location of her fall on a sidewalk, adjacent to Central Park, and across the street from that address. However, plaintiff also annexed a photograph to the notice of claim which depicted the intersection of Central Park West and 96th Street, which is nearly four blocks south of the incorrect address provided in the notice of claim, and the written description of the location in the notice was consistent with the area depicted in the photograph. Moreover, at the statutory hearing held six weeks after the notice was served, and three and a half months after the accident, plaintiff explicitly testified that her accident occurred on the sidewalk just a few car lengths south of the 96th Street intersection, and identified the location in the photograph as also shown. In addition, less than five months after the hearing, plaintiff served the summons and complaint, providing the proper street address. Under these circumstances, the Appellate Division found that the mistake in the notice was not made in bad faith, nor was it intended to mislead or confuse the City, and so it should have been disregarded or plaintiff should have been allowed to correct the notice pursuant to GML § 50-e(6).

Student note:  Municipalities must put forth at least a modicum of effort to investigate a notice of claim and to obtain missing information.  Here, defendant never sent anyone to investigate the scene depicted in the photograph, and did not perform a computerized record search of the incorrect address until more than two years after being apprised of the correct location at the hearing. Although plaintiff served a bill of particulars six months before the computer search with the same typographical error in the address, defendant still made no effort to ascertain which of the two locations was correct. In any event, plaintiff's discovery responses, served less than one week after this computer search, provided additional photographs showing the sidewalk defect at issue, and a building awning with the street number "360" is clearly visible directly across the street in the background. Moreover, defendant engaged in settlement discussions just a few months later, during which the actual accident location was discussed, and did not file the instant motion alleging confusion as to the accident location until nearly a year and a half later - one week after entering into a so-ordered stipulation to provide discovery for the proper location that was explicitly set forth in the order.

Case:  Green v. City of New York, NY Slip Op 03382 (1st Dept. 2013).

Here is the decision.

Monday's issue: Proving personal jurisdiction.

Ambiguous writings.

Practice point:  When a term or clause is ambiguous, the parties may submit extrinsic evidence as an aid in construction, and the resolution of the ambiguity is for the trier of fact.

Student note:  Whether a writing is ambiguous is a question of law to be resolved by the courts. There is ambiguity if the language is written so imperfectly that it is susceptible to more than one reasonable interpretation

Case:  Dobbs v. North Shore Hematology-Oncology Assoc., P.C., NY Slip Op 03295 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  A mistake in a notice of claim.