Judicial estoppel.

Practice point:  A party who assumed a certain position in a prior proceeding and secured a ruling in his or her favor is estopped from advancing a contrary position in another action simply because his or her interests have changed.

Student note:  Sometimes referred to as estoppel against inconsistent positions, the doctrine rests upon the principle that a litigant should not be permitted to lead a court to find a fact one way, and then contend in another judicial proceeding that the same fact should be found otherwise.

Case:  Becerril v. City of New York Dept. of Health & Mental Hygiene, NY Slip Op06783 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Successive motions for summary judgment.

Correcting a notice of claim.

Practice point: Plaintiff's decedent was allegedly injured when she tripped and fell after stepping into a 20-foot-long depressed area in the street, which was about 25 to 30 feet from a subway exit in Union Square Park. The notice of claim mistakenly described the location of a subway exit as between 16th and 17th Streets on Union Square East, rather than Union Square West. However, at the statutory hearing held approximately eight months after the accident, plaintiff correctly stated that the accident occurred in the location shown in a photograph of a Union Square subway exit with no canopy, amid a farmer's market, by a 16th Street sign. Plaintiff also submitted information obtained from the Internet showing that the other two subway exits in Union Square Park are covered by canopies and are located well south of 16th Street.

Under these circumstances, plaintiff was allowed to correct the notice of claim pursuant to General Municipal Law § 50-e(6), since the mistake was not made in bad faith and defendant was not prejudiced by the defective notice.

Student note:  Defendant failed to meet its burden of showing prejudice, because the record does not indicate that it sent anyone to investigate the scene of the accident either before or after the correct location had become apparent.

Case:  Ciarvino v. City of New York, NY Slip Op 06775 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Judicial estoppel.

Drinking parties.

Practice point:  A defendant may be liable for injuries caused by an intoxicated guest that
occurred on the defendant's property, or in an area under the defendant's control, where the defendant had the opportunity to control the intoxicated guest and was reasonably aware of the need for such control.  Here, the fraternity-defendant established its prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action insofar as asserted against it by showing that the plaintiff's injuries occurred in an area not under its control and, thus, that it had no duty to supervise or control the assailant-defendant's conduct in that area.

Student note:  Liability under General Obligations Law § 11-100 may be imposed only on a person who knowingly causes intoxication by furnishing alcohol to, or assisting in the procurement of alcohol for, persons known or reasonably believed to be underage.

Case:  Holiday v. Poffenbarger, NY Slip Op 06658 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Correcting a notice of claim.

Stating an employment discrimination claim.

Practice point:  The defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging employment discrimination on the ground of disability by showing legitimate, independent, and nondiscriminatory reasons for its employment decision. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the reasons stated for his discharge from employment were pretextual. Specifically, the plaintiff failed to raise a triable issue of fact as to whether there remained a full-time, light-duty position available after the defendant's relocation to a larger facility.

Student note: To state a prima facie case of employment discrimination due to a disability under Executive Law § 296, a plaintiff must show that he or she suffers from a disability and that the disability engendered the behavior for which he or she was discriminated against in the terms, conditions, or privileges of his or her employment. If the plaintiff succeeds in establishing a prima facie case, the burden of proof shifts to the employer to demonstrate that the disability prevented the employee from performing the duties of the job in a reasonable manner or that the employer's action was motivated by legitimate nondiscriminatory reasons. If the employer establishes that it had valid nondiscriminatory reasons for its action, the burden shifts back to the plaintiff to raise a triable issue of fact as to whether the stated reasons were pretextual.

Case:  Kulaya v. Dunbar Armored, Inc., NY Slip Op 06549 (2d Dept. 2013).

Here is the decision.

Monday's issue: Drinking parties.

Due diligence in the service of process.

Practice point:  Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence.  As the statute does not define "due diligence," it has been interpreted and applied on a case-by-case basis. The due diligence requirement may be met with a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times.

Here, the process server's affidvit constituted prima facie evidence of proper service pursuant to CPLR 308(4), as the process server made three attempts to serve the defendant at his home at different times and on different days, including a Saturday.  Since there was no indication that the defendant worked Saturdays or that his workplace was readily ascertainable, the plaintiff was not required to attempt to serve the defendant at his workplace.

Student note:  The defendant's bare and unsubstantiated denial of receipt was insufficient to rebut the presumption of proper service, and a hearing on the issue of service was not required.

Case:  Deutsche Bank Natl. Trust Co. v. White, NY Slip Op 06542 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Stating an employment discrimination claim.

Authorizations to release medical records, and notes of issue.

Practice point:  The Appellate Division determined that the Supreme Court properly granted those branches of the defendant's motion which were to compel him to sign authorizations for the release of certain medical records, to compel him to appear for a deposition, and to vacate the note of issue. The Supreme Court correctly compelled the plaintiff to sign the authorizations since he placed his medical condition at issue. The Supreme Court also correctly compelled the plaintiff to appear for a deposition, as the defendant demonstrated that the deposition was reasonably calculated to result in the disclosure of facts necessary to defend the action.  Since the defendant moved to vacate the note of issue within the time prescribed for doing so pursuant to 22 NYCRR 202.21(e), and demonstrated that discovery was not complete in that the deposition of the plaintiff had not occurred, medical authorizations still had not been provided, and the action was not ready for trial, the note of issue was properly vacated.

Student note:  The Appellate Division also found that the Supreme Court properly enjoined the plaintiff from submitting any further motions or cross motions without leave of the court, based on his abuse of the judicial process.

Case:   Breytman v Olinville Realty, LLC, NY Slip Op 06538 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Due diligence in the service of process.

Duty to mitigate.

Practice point:  The duty to mitigate damages arising from a breach of contract is a duty that arises from common law and, therefore, need not be expressly bargained for in a contract to be enforceable. Assuming liability, the defendant may  limit damages, if any, if the plaintiff failed to make reasonable exertions to minimize the injury.

Student note:  On a summary judgment motion, when the movant fails to meet its prima facie burden, the motion will be denied without consideration of the sufficiency of the opposing papers.

Case:  Mack-Cali Realty, L.P. v. Everfoam Insulation Sys., Inc., NY Slip Op 06348 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Authorizations to release medical records, and notes of issue.

Court holiday.

The courts are closed to mark Columbus Day.

Tomorrow's issue:  Duty to mitigate.

An improper Noseworthy instruction.

Practice point:  The Appellate Division found that the trial court deprived the defendant of a fair trial by issuing a supplemental jury instruction pursuant to Noseworthy v. City of New York (298 NY 76). The Noseworthy doctrine had no application to the facts of this case because the infant's inability to testify about the events surrounding his birth was not the result of memory loss stemming from the defendant's alleged negligence. In addition, Noseworthy does not apply because the defendant's knowledge as to the cause of the infant's injuries was no greater than the mother's, and the mother testified extensively about the circumstances surrounding her labor and delivery, and testified about the infant's injuries.

Student note:  Properly applied, a Noseworthy instruction relaxes the plaintiff's burden of proof.

Case:  Nunez v. New York City Health & Hosps. Corp. (Elmhurst Hosp. Ctr.), NY Slip Op 06350 (2d Dept. 2013).

Here is the decision.

Tuesday's issue:  Duty to mitigate.

Respondeat superior.

Practice point:  Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment. An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment.

Student note:  An employer, however, cannot be held vicariously liable for its employee's alleged tortious conduct if the employee was acting solely for personal motives unrelated to the furtherance of the employer's business at the time of the incident. Similarly, the employer is not vicariously liable where the employee's tortious conduct could not have been reasonably expected by the employer.

Case:  Gui Ying Shi v. McDonald's Corp., NY Slip Op 06347 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: An improper Noseworthy instruction.

Service, and a motion to extend time.

Practice point:  Where, as here, the statute of limitations expired between the time that the action was commenced and the time that the copy of the summons and complaint was served, that branch of the plaintiff's motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint, nunc pro tunc, was granted in the interest of justice. The copy of the summons and complaint was served only 3 days after the 120-day time period of CPLR 306-b had expired, the plaintiff promptly sought relief after receiving the answer, and there was no demonstrable prejudice to the defendant attributable to the delay in service.

Student note:  Service of one copy of a summons and complaint upon an officer of a corporation constitutes service upon the corporation itself as well as upon the individual officer, where, as here, there was simultaneous compliance with CPLR 311(a)(1) and CPLR 308(1).

Case:  Fernandez v. Morales Bros. Realty, Inc., NY Slip Op 06345 (2d Dept. 2013).

 Here is the decision.

Tomorrow's issue: Respondeat superior.