Legal malpractice.

Practice point:  A plaintiff must establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused the plaintiff actual and ascertainable damages.

For summary judgment, a defendant must demonstrate that the plaintiff is unable to prove at least one of the essential elements of the cause of action.

Here, the alleged malpractice relates to the sufficiency of the order to show cause and supporting papers prepared by the defendants and submitted on behalf of the plaintiffs in the personal injury action, pursuant to which they moved to vacate their default in the personal injury action. A motion to vacate a default by a plaintiff in appearing for trial requires the demonstration of a reasonable excuse and an affidavit setting forth the merits of the cause of action, pursuant to CPLR 5015.

The defendants established, prima facie, that the plaintiffs had no reasonable excuse for their default in appearing for jury selection in the personal injury action, thereby establishing that the alleged inadequecy of the motion papers that they prepared on the plaintiffs' behalf was not the proximate cause of the plaintiffs' damages. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether they had a reasonable excuse for their default that could have been communicated to the defendants for inclusion in the papers submitted with the motion to vacate.

Student note:  An attorney's conduct and performance in connection with a motion to vacate a default may constitute legal malpractice.

Case:  DiGiacomo v. Langella, NY Slip Op 05150 (2d Dept. 20145)

Here is the decision.

Tomorrow's issue: A subpoena to obtain discovery from a non-party.

Spoilation, the law, and videotape.

Practice point:  One week after plaintiff's slip-and-fall accident on defendants' premises, plaintiff's counsel sent a notice to defendant "to preserve any and all video recordings/surveillance tapes/still photos of any nature that depict the subject slip and fall accident" on the date and time in question. This notice was received by defendants' employee in charge of the recordings. After reviewing the tapes from all of the cameras, the employee preserved an 84-second portion of tape from one camera that depicted plaintiff's accident, starting from one minute preceding her fall. She downloaded this clip onto a CD-ROM and forwarded a copy to defendant's insurance carrier.

The employee testified that defendants' standard procedure regarding surveillance tapes was to send a copy of video footage of any accident to its insurance carrier, and that, after a search of all cameras, the 84-second portion of the one camera tape was found to be the only footage depicting the accident. She further stated that the insurance carrier never told her what to send it regarding an accident and never asked her to send anything more than the short clip of the accident. Additionally, she testified that the computer system in use at that time automatically erased all footage every 21 days due to limited storage capacity. She also stated that the system later broke and was replaced. However, she could not remember when the replacement occurred, and stated that the old system had been discarded.

Six weeks after the first request, counsel expanded his demand to six hours of footage leading up to the accident, for all 32 cameras in the store.

After discovery, defendants moved for summary judgment, arguing that they did not create or have actual notice of the condition that allegedly caused plaintiff to fall. Plaintiff opposed the motion and cross-moved to strike defendants' answer for withholding and destroying relevant video footage, or, in the alternative, for an order directing that the issue of notice be resolved against defendants.

The motion court found that defendants met their prima facie burden to establish that they did not create or have actual notice of the condition upon which plaintiff allegedly fell and that plaintiff failed to raise a triable issue of fact as to constructive notice.

Although not required to do so in light of its ruling on the summary judgment motion, the court addressed plaintiff's cross motion to strike defendants' answer for spoilation of evidence. The court found that the destruction of the original surveillance video was not willful or contumacious or in violation of a court order. The court accepted the employee's explanation regarding the loss of the tape, finding no reason to attribute bad faith to defendants. It also rejected plaintiff's contention that defendants should have preserved six hours of footage from all 32 store cameras.

The Appellate Division found that the motion court properly exercised its discretion in denying plaintiff's motion for spoliation sanctions. Plaintiff's initial demand for preservation of video tapes was limited to those that "depict the subject slip and fall accident that took place on the above referenced date, time and location."  The portion of the tape that was preserved complied with this demand.

The Appellate Division noted that a property owner's receipt of a notice to preserve records triggers certain obligations, but there are limits to the extent of those obligations.While a plaintiff is entitled to inspect tapes to determine whether the area of an accident is depicted and is not compelled to accept defendant's self-serving statement concerning the contents of the destroyed tapes, this does not trigger a defendant's obligation to preserve hours of tapes indefinitely each time an incident occurs on its premises in anticipation of a plaintiff's request for them. That obligation would impose an unreasonable burden on property owners and lessees.

Student note:  On a motion for spoliation sanctions, the movant must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a culpable state of mind, which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party's claim or defense.  In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness. The burden is on the party seeking sanctions to make the requisite showing.

Case:  Duluc v AC&L Food Corp., NY Slip Op 05243 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Legal malpractice.

Service, and the due diligence requirement of 308(4).

Practice point:  Service of process pursuant to the affix-and-mail provisions of CPLR 308(4) is only permitted where service by personal delivery under CPLR 308(1) or by delivery to a person of suitable age and discretion and a subsequent mailing pursuant to CPLR 308(2) cannot be made with due diligence. Satisfying the due diligence requirement entails a showing that the process server made genuine inquiries about the defendant's whereabouts and place of employmentt. Here, the process server's testimony that he inquired as to the defendant's whereabouts from a neighbor was not credible, as he was unable to provide any description at all of the neighbor, not even the gender. The affidavit of service referred to a "person spoken to," but provided no description, although there were spaces to insert the person's gender, skin color, hair color, approximate age, height, and weight.

Student note:  Where the defendant's only participation in the action is the submission of a motion to vacate a default judgment for lack of personal jurisdiction, the defense of lack of personal jurisdiction is not waived.

Case:  Cadlerock Joint Venture, L.P. v. Kierstedt, NY Slip Op 05147 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Spoilation, the law, and videotape.

CPLR 3216.

Practice point:  After being served with a 90-day demand pursuant to CPLR 3216(b)(3), that plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day period. Here, the plaintiff failed to do either within the 90-day period. Therefore, in order to excuse his default, the plaintiff was required to demonstrate a justifiable excuse for his failure to timely file the note of issue or move to either vacate the demand or extend the 90-day period, as well as a potentially meritorious cause of action. The determination of what constitutes a reasonable excuse lies within the discretion of the motion court.

Student note:  CPLR 3216 is extremely forgiving, in that it does not require, but merely authorizes, the court to dismiss an action based on the plaintiff's unreasonable neglect to proceed.  In fact, depending on the circumstances, a plaintiff is not always required to establish both a justifiable excuse and a potentially meritorious cause of action to avoid such a dismissal.

Case:  Belson v Dix Hills A.C., Inc., NY Slip Op 05144 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Service, and the due diligence requirement of 308(4).

An oral agreement as to an interest in a co-op.

Practice point:  Plaintiff alleges that he and defendant orally agreed that defendant would reside in plaintiff's cooperative apartment, rent-free, but that he would pay the maintenance, assessments, and other related charges. Plaintiff also alleges that the agreement was that defendant would vacate the premises at plaimtiff's request, and that the plaintiff would remain "the true, legal and equitable owner."  Plaintiff further alleges that, for one dollar, he let defendant become a joint tenant and coop shareholder, and had defendant so listed on the share certificate and proprietary lease, as an accommodation to defendant, since the coop board objected to open-ended occupancy by a non-owner.

Defendant denies the agreement, and alleges that he received an interest in the apartment in consideration for the services he performed for plaintiff's medical practice. Defendant moved for summary judgment dismissing the complaint on statutes of frauds and limitations grounds.

In opposition, plaintiff argues that he has partly performed the oral agreement and that, if the agreement is not enforced, injustice will result, namely, defendant's receiving a half-interest in exchange for the one dollar's consideration.

The Appellate Division found issues of fact as to whether plaintiff's performance of the alleged agreement is unequivocally referable to the agreement, including whether plaintiff gave defendant an interest in the apartment in consideration for services that defendant performed for him, and whether the written assignment of the lease was legitimate.

Student note:  With respect to the statute of limitations, there are issues of fact as to whether defendant's possession of the apartment was adverse. As to the trespass cause of action, the applicable statute of limitations does not commence while the trespass is continuous and ongoing.

Case:  Lauersen v. Antonopolous, NY Slip Op 05022 (1st Dept. 2014)

Here is the decision.

Monday's issue:  CPLR 3216.

A motion for leave to serve and file an amended notice of claim is denied.

Practice point:  The Appellate Division found that the Supreme Court improvidently exercised its discretion in granting the plaintiff's cross motion for leave to serve and file an amended notice of claim. The proposed amendments included substantive changes to the facts, adding that the plaintiff was injured after he climbed a ladder to go over a fence, changing the situs of the accident, and identifying the plaintiff as a worker at the site. The proposed amendments to the notice of claim also added a theory of liability under the Labor Law. Such changes are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6). Granting leave would prejudice the defendant by depriving it of the opportunity to promptly and meaningfully investigate the claim.

Student note:  Amendments to notices of claim are appropriate only to correct good-faith and nonprejudicial technical mistakes, defects, or omissions, not substantive changes in the theory of liability.

Case:  Ahmed v. New York City Housing Authority, NY Slip Op 04883 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An oral agreement as to an interest in a co-op.

Struck by a bicycle, and the complaint is dismissed.

Practice point:  The Appellate Division reversed the trial court and dismissed the complaint in in this action where plaintiff was injured when a child, riding a bicycle, struck her from behind as she walked on an interior walkway of defendant's complex. Defendant submitted the testimony of a member of its private security force, who stated that defendant employed five to seven security guards during normal business hours. He stated that people traversed the property, and some "occasionally" rode bicycles, but this happened "rarely." Nevertheless, defendant had a rule against riding bicycles in the area of the incident, and there were a number of signs posting this rule. Defendant also had surveillance cameras on the interior and exterior of the property, and the security officer further stated that when someone was found riding a bicycle, either the bicycle would be confiscated, a summons would be issued, or a warning would be issued.

The Appellate Division found that the defendant had demonstrated that it provided the requisite minimal precautions to protect people from the foreseeable harm of bicycle riders, and there was nothing else that it reasonably could have done.

Student note:  Plaintiff failed to submit opposition to the motion, and the arguments she has set forth in her appellate brief are unpreserved. In any event, the Appellate Division determined that plaintiff's arguments do not present triable issues of fact that would warrant the denial of the defendant's motion.

Case:  DeJesus v. Parkchester S. Condominium Inc., NY Slip Op 05016 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A motion for leave to serve and file an amended notice of claim is denied.

Labor Law § 240(1).

Practice point:  Labor Law § 240(1) imposes on owners a nondelegable duty to protect workers from elevation-related risks at covered work-sites. In order for the statute to apply, the worker must be working on a building or structure and must be performing a covered task, such as altering or demolishing.

Student note:  The injured workers's negligence, if any, does not change the analysis.

Case:  Kharie v. South Shore Record Mgt., Inc., NY Slip Op 04738 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Struck by a bicycle, and the complaint is dismissed.

A claim for punitive damages is denied.

Practice point:  The Appellate Division found that the complaint alleges in conclusory and conjectural fashion that "defendants were grossly, willfully and wantonly negligent and acted with reckless indifference to the health and safety of plaintiff."  Such legal conclusions are insufficient, as the complaint does not allege any facts to demonstrate that the defendant  engaged in conduct which rose to the high level of moral culpability to support a claim for punitive damages.

Student note:  A plaintiff cannot maintain a punitive damages demand on the hope that discovery might provide a basis for it.  However, should discovery reveal facts supporting a claim for punitive damages, the plaintiff could move for leave to replead.

Case:  Barnes v. Hodge, NY Slip Op 04851 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Labor Law § 240(1).

Independence Day.

Qualified privilege.

Practice point:  A qualified privilege extends to any communication made by one person to another upon a subject in which both have an interest. Where a plaintiff can demonstrate that the communication made by the defendant was not made in good faith but was motivated solely by malice, the protection provided by the qualified privilege does not apply.

Student note:  Mere conclusory allegations, or charges based upon surmise, conjecture, and suspicion, are insufficient to defeat the claim of the privilege.

Case:  Bernacchi v. County of Suffolk, NY Slip Op 04725 (2d Dept. 2014)

Here is the decision.

Monday's issue: A claim for punitive damages is denied.