Dismissal for failure to prosecute.

Practice point:  The defendant's motion to dismiss the complaint based on the inordinate and prejudicial delay in prosecuting the action should was denied. The court could not dismiss this pre-note of issue action on the ground of a general lack of prosecution since the plaintiff had not received a 90-day demand pursuant to CPLR 3216(b) requiring the plaintiff to serve and file a note of issue.

Student note: CPLR 3216 permits a court to dismiss an action for failure to prosecute only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action.

Case:  Armouth-Levy v. New York City, NY Slip Op 05551 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Summary judgment in a slip and fall case.

Post-deposition errata sheets.

Practice point:  In his post-deposition errata sheet, the injured plaintiff radically changed much of his earlier testimony, with the vague explanation that he had been "nervous" during his deposition. Since the injured plaintiff failed to offer an adequate reason for materially altering the substance of his deposition testimony, the altered testimony could not properly be considered in determining the existence of a triable issue of fact as to whether a defect in, or the inadequacy of, the ladder caused his fall.

Student note:  CPLR 3116(a) provides that a "deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of reasons given by the witness for making them."

Case:  Ashford v. Tannenhauser, NY Slip Op 05508 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Dismissal for failure to prosecute.
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Laches and dismissal.

Practice point:  The doctrine of laches does not provide an alternate basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216(b), and where the case management devices of CPLR 3404 and 22 NYCRR 202.27 are inapplicable.

Student note:  Marking a case off a motion or conference calendar does not dispose of it.

Case:  Arroyo v. Board of Educ. of City of New York, NY Slip Op 05507 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Post-deposition errata sheets.

Searching the record on a summary judgment motion.

Practice point:  A court deciding a motion for summary judgment is empowered to search the record and may, even in the absence of a cross motion, grant summary judgment to a nonmoving party. Such power, however, is not boundless, and the court's search of the record is limited to those causes of action or issues that are the subject of the motion.

Student note:  Moreover, discovery in this matter was not complete at the time the court searched the record. Thus, it was premature for the court to grant summary judgment.

Case:  New Hampshire Ins. Co. v. MF Global, Inc., NY Slip Op 05291 (1st Dept. 2013).

Here is the decision.

Monday's issue: Laches and dismissal.

Aiding and abetting a breach of fiduciary duty, and appeals from denial of a dismissal motion.

Practice point:  Liability for aiding and abetting a breach of fiduciary duty requires establishing the following elements: (1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; and (3) the defendant must knowingly and substantially assist the principal violation.

Student note:  While an appeal taken from a denial of a dismissal motion may be moot when that complaint has been superseded by an amended complaint, that is not the case where the new pleading does not substantively alter the existing causes of action.

Case:  Aetna Life Ins. Co. v. Appalachian Asset Mgt. Corp., NY Slip Op 05506 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Searching the record on a summary judgment motion.

Disorderly conduct as between spouses.

Practice point:  The criminal and family courts have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, as defined by the Penal Law, when committed between spouses, pursuant to Family Ct. Act § 812; CPL 100.07, 530.11[1]. In a family offense proceeding, the petitioner has the burden of establishing, by a fair preponderance of the evidence, that the charged conduct was committed as alleged in the petition, pursuant to Family Ct. Act § 832.

Student note:  The petitioner is required to prove that the spouse's conduct was committed with the intent to cause, or recklessly posed a risk of causing, public inconvenience, annoyance, or alarm.

Case: Matter of Cassie v. Cassie, NY Slip Op 05446 (2d Dept. 2013)

Here is the decision.

Tomorrow's issue: Aiding and abetting a breach of fiduciary duty, and appeals from denial of a dismissal motion.

Restitution of funds.

Practice point:  A party may seek restitution of funds paid pursuant to an order set aside on appeal. The determination whether to award restitution is within the discretion of the trial court.

Student note: CPLR 5015(d) empowers a court that has set aside a judgment or order to restore the parties to the position they were in prior to its rendition, consistent with the court's general equitable powers.

Case: Gaisi v. Gaisi, NY Slip Op 05438 (2d Dept. 2013).
  
Here is the decision.

Tomorrow's issue: Disorderly conduct as between spouses.

Denying a trustee's commission.

Practice point:  Courts have the discretion to take into consideration all of a trustee's misconduct in determining the grant of annual commission, even conduct that occurred after the period applicable to the commission. The Surrogate has broad discretion to deny commission to a trustee if the trustee has engaged in misconduct. In determining if a commission should be denied, misconduct that is not directly related to the commission being sought may be taken into consideration,

Student note:  Trustees can be denied commission where their acts involve bad faith, a complete indifference to their fiduciary obligations, or some other act that constitutes malfeasance or significant misfeasance. The denial of a commission, however, should not be in the nature of an additional penalty. Rather, it should be based on the trustee's failure to properly serve the trust.

Case:  Matter of Gregory Stewart Trust, NY Slip Op 05290 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Restitution of funds.

Notices to admit.

Practice point:  The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. Here, the plaintiff's notice to admit improperly sought the defendant's admission concerning a matter that went to the heart of the controversy.

Student note:  Moreover, the purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial.

Case:  Ramcharran v. New York Airport Servs., LLC, NY Slip Op 05195 (2d Dept. 2013).

Here is the decision.

Monday's issue: Denying a trustee's commission.

Judicial review of administrative determinations.

Practice point:  Judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to whether the determination is supported by substantial evidence. Substantial evidence means more than a mere scintilla of evidence, and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides.

Student note: When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the administrative agency. The courts may not weigh the evidence or reject the choice made by the agency where the evidence is conflicting and there is room for choice.

Case:  Matter of Solano v. City of Mount Vernon, NY Slip Op 05322 (2d Dept. 2013).

Tomorrow's issue: Notices to admit.

Coops, the business judgment rule, and recovering attorneys' fees.

Practice point:  In the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board's determination so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith. The business judgment rule does not apply when a cooperative board acts outside the scope of its authority or violates its own governing documents.

Student note:   Property Law § 234 provides for the reciprocal right of a lessee to recover an attorney's fee when the same benefit is bestowed upon the lessor in the parties' lease.

Case:  Cohan v. Board of Directors of 700 Shore Rd. Waters Edge, Inc., NY Slip Op 05447 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Judicial review of administrative determinations.