Failure to negotiate in good faith and exemplary damages.

Practice point:  Although the Supreme Court had authority to impose sanctions if it determines, after a hearing, that the plaintiff failed to negotiate in good faith in a mandatory foreclosure settlement conference, it did not have authority to include such a provision in the judgment in the absence of any application for that relief.  In addition, the court's imposition of exemplary damages, and the effective use of those exemplary damages to award a reduction of the principal balance of the subject mortgage, was done without notice to the plaintiff that the court was contemplating such a sanction, and deprived the plaintiff of its right to due process.

Student note:  CPLR 3408 does not require the plaintiff to make the exact offer desired by the defendant, and the plaintiff's failure to make that offer cannot be construed as a lack of good faith.

 Case:  Bank of Am. v. Lucido, NY Slip Op 00956 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: The effect of affidavits of service.

Noncompliance with a court-ordered deadline.

Practice point:  Here, it was uncontroverted that defendant's motion was not timely under the schedule set by the preliminary conference order. The Appellate Division determined that it does not matter whether a motion for summary judgment has been made more than 120 days after the filing of the note of issue or after the expiration of a shorter time limit set by a court order or stipulation. Whatever the source of the deadline with which a party fails to comply, the lateness may not be excused without a showing of good cause within the meaning of CPLR 3212(a), a showing of something more than mere law office failure. Defendant's excuse that its counsel inadvertently overlook the ordered date is a perfunctory claim of law office failure, and the motion was denied.

Student note:  The Court of Appeals has repeatedly held that court-ordered time frames are requirements to be taken seriously by the parties. See, e.g., Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74 (2010).

Case: Quinones v. Joan & Sanford I. Weill Med. Coll., NY Slip Op 00882 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Failure to negotiate in good faith and exemplary damages.

Court holiday.

The courts are closed to mark Presidents' Day.

Tomorrow's issue: Noncompliance with a court-ordered deadline.

Service of a claim on the Attorney General.

Practice point:  Court of Claims Act § 11(a)(i) provides that a copy of the claim shall be served personally or by certified mail, return receipt requested, upon the attorney general. The requirements are jurisdictional and must be strictly construed. Here, the claim was improperly served upon the defendant by regular mail and so the court lacked jurisdiction over the defendant.

Student note: In addition, the Court of Claims properly declined to correct or disregard the defect in service pursuant to CPLR 2001. Even though the attorney general received the claim, service by regular mail was more than a mere technical infirmity as this method of service introduced a greater possibility of failed delivery.

Case:  Brown v. State of New York, NY Slip Op 00627 (2d Dept. 2014).

Here is the decision.

Tuesday's issue: Noncompliance with a court-ordered deadline.

The issue of standing in an action to foreclose a mortgage.

Practice point:   A plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.

Student note: Where, as here, standing is put into issue by a defendant, the plaintiff must prove its standing in order to be entitled to relief.

Case:  Aurora Loan Servs., LLC v. Taylor, NY Slip Op 00625 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Service of a claim on the Attorney General.

Court holiday.

The courts are closed to mark Lincoln's Birthday.

Tomorrow's issue:  The issue of standing in an action to foreclose a mortgage.

A landowner's liability.

Practice point:  Where a landowner has actual knowledge of a recurrent dangerous condition in a specific area, it may be charged with constructive notice of each specific recurrence of it.

Student note:  A landowner has a general duty to maintain its property in a reasonably safe condition in view of the circumstances, including the likelihood of injury to others, the seriousness of the possible injury, and the burden of avoiding the risk.

Case:  Agosto v. City of New Rochelle, NY Slip Op 00623 (2d Dept. 2014).

Here is the decision.

Thursday's issue: The issue of standing in an action to foreclose a mortgage.

A declaratory judgment claim involving a Delaware LLC.

Practice point:  The Appellate Division reversed the order denying defendant's motion to dismiss, or alternatively for summary judgment, as to the cause of action for a declaration that defendant is required to sell his LLC shares to plaintiffs.

The parties' rights as members of a Delaware LLC are defined by the operating agreement which does not indicate that plaintiffs could compel the sale of defendant's membership interests. Plaintiffs rely on a section of the agreement which allows them to compel the sale of the membership interest upon the termination of the employment of "an employee other than a manager." However, it is undisputed that defendant was a managerial employee at the time of his termination, and so, under the agreement's plain language, the section is inapplicable. Moreover, plaintiffs' reading would divest the phrase "other than a manager" of any effect, a result that is contrary to Delaware which favors the interpretation that gives effect to all terms of contract.

Student note:  Where, as here, the declaratory judgment claim is resolved on the merits, the proper course is to issue a declaration in defendant's favor, not a dismissal.

Case:  LCM Holdings GP, LLC v. Imbert, NY Slip Op 00595 (1st Dept. 2014).

Here is the decision. 

Tomorrow's issue: A landowner's liability.

A civilian's liability for false arrest and malicious prosecution.

Practice point:  A civilian defendant who merely furnishes information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution.

Student note:  In addition, where, as here, the plaintiff was indicted by the grand jury, there is a presumption of probable cause vis-a-vis the malicious prosecution cause of action.

Case: Johnson v. Follett Higher Educ. Group, Inc., NY Slip Op 00483 (2d Dept.2014).

Here is the decision.

Monday's issue: A declaratory judgment claim involving a Delaware LLC.

Deceptive business acts and practices.

Practice point:  A private action under General Business Law § 349 must be predicated on a deceptive act or practice that is consumer-oriented. Whether a representation or an omission, the test is whether the allegedly deceptive act or practice is likely to mislead a reasonable consumer acting reasonably under the circumstances.

Student note: In addition to showing that the conduct was consumer-oriented, a prima facie case requires a showing that the defendant is engaging in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof.

Case:  David v. #1 Mktg. Serv., Inc., NY Slip Op 00477 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A civilian's liability for false arrest and malicious prosecution.

A late notice of claim.

Practice point:  In affirming the denial of the petition for leave to file a late notice of claim, the Appellate Division found that petitioners failed to explain their delay in filing the notice, pursuant to General Municipal Law § 50-e[1][a]; [5]. While they claim that the injured petitioner's incapacity prevented him from obtaining counsel from the date of the incident, in June, until his surgery in September, they do not explain the two-month delay in filing the notice after they obtained counsel in October, or the delay until the next February in seeking leave to file an untimely notice.

In addition, petitioners failed to show that respondents acquired actual knowledge of the essential facts constituting their claim, pursuant to General Municipal Law § 50-e[5]. While, respondents' internal reports and records contained the exact details of the incident, there are no factual allegations in the contemporaneous written statements of the injured petitioner's coworkers or even in petitioner's own written statement that would constitute a claim of negligence on respondents' part.  So,petitioners cannot rely on  respondents records to rebut the inference of prejudice resulting from petitioners' eight-month delay in serving the notice.

Student note: The Appellate Division also found that petitioners' cause of action is without merit. They failed to allege facts that would establish that respondents had a special duty to the injured petitioner to protect him from an assault.

Case:  McGinness v. City of New York, NY Slip Op 00572 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Deceptive business acts and practices.