Moving for a change of venue.

Practice point:  To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff's choice of venue is improper and that defendant's choice of venue is proper. To succeed on his motion here, the defendant was obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in the county that the plaintiff designated. Only if the defendant made such a showing was the plaintiff required to establish, in opposition, via documentary evidence, that the venue he had selected was proper.

The only evidence that the defendant submitted with respect to the issue of the plaintiff's residence was the police accident report on the accident. This evidence merely showed that, at the time the accident occurred, the plaintiff had a residence in Texas. This evidence did not demonstrate that the plaintiff did not maintain a residence in Kings County when the action was commenced, two months after the accident. Therefore, the defendant failed to meet his initial burden.

Student note:   A plaintiff may choose venue based solely on a defendant's address, as set forth in a police accident report.  However, that report, standing alone, is not enough to demonstrate that, on the date that an action is commenced, a plaintiff does not reside in the county where he or she elects to place venue.

Case:  Chehab v. Roitman, NY Slip Op 05939 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Emails, affidavits, and documentary evidence.

Court holiday.

Triangle Shirtwaist Factory

The courts are closed to mark Labor Day.

Tomorrow's issue:  Moving for a change of venue.








                                                                                                                         

Commencing a tort action against a municipality.

Practice point:  In order to commence a tort action against a municipality, General Municipal Law § 50-e(1)(a) requires a claimant to serve a notice of claim upon that municipality within 90 days after the date that the claim arose. General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time to serve a notice of claim. Whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter is seen as a factor which should be accorded great weight in determining whether or not to grant leave to serve a late notice of claim.  In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves.

Student note:  Other factors a court must consider in determining whether to grant leave to serve a late notice of claim are: (1) whether the claimant was an infant or mentally or physically incapacitated; (2) whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim; and (3) whether the delay would substantially prejudice the public corporation in maintaining its defense (see General Municipal Law § 50-e[5].

Case:  Kellman v. Hauppauge Union Free School Dist., NY Slip Op 05844 (2d Dept. 2014)

Here is the decision..

Tuesday's issue: Moving for a change of venue.

Standing in a mortgage foreclosure action.

Practice point:  In a mortgage foreclosure action, a plaintiff has standing where it is the holder or assignee of both the subject mortgage and 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.

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:  Federal Natl. Mtge. Assn. v. Cappelli, NY Slip Op 05836 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Commencing a tort action against a municipality.

Dismissal pursuant to CPLR 3216.

Practice point:  CPLR 3216 permits a court to dismiss an action for want of prosecution 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 a basis for a motion to dismiss the action.

Student note  As CPLR 3216 is a legislative creation and not part of a court's inherent power, a court may not dismiss an action for want of prosecution where the plaintiff was not served with the requisite 90-day demand pursuant to CPLR 3216(b).

Case:  Diemer v. Eben Ezer Med. Assoc., NY Slip Op 058323 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Standing in a mortgage foreclosure action.

The service requirements of a foreclosure action.

Practice point:. RPAPL 1304[1] requires that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type."  The statute sets forth the requirements for the content of the notice, and further provides that the notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower, pursuant to RPAPL 1304[2].

Student note:  Proper service of the RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action.

Case:  Deutsche Bank Natl. Trust Co. v. Quinn, NY Slip Op 05829 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal pursuant to CPLR 3216.

Sanctions for spoilation of evidence.

Practice point:  The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence, and it may mpose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation.

Here, the Appellate Division determined that the Supreme Court providently exercised its discretion in striking the defendant's answers and thereupon awarding the plaintiffs summary judgment on the issue of liability pursuant to CPLR 3126. The record demonstrates that the defendant disposed of the grate involved in the accident after having received a written demand from one of the infant plaintiff's attorneys that the grate be preserved for inspection by the plaintiffs and their experts. Moreover, the plaintiffs demonstrated that they were unduly prejudiced by the defendant's conduct in disposing of the grate.

Student note:  Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, that party may be sanctioned under CPLR 3126.

Case:  Biniachvili v. Yeshivat Shaare Torah, Inc., NY Slip 05826 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The service requirements of a foreclosure action.

A worker's fall from a ladder.

Practice point:  The mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided. There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries.

Student note:  Labor Law § 240(1) imposes upon owners and general contractors, including their agents, a nondelegable duty to provide safety devices necessary to protect workers from the risks inherent in elevated work-sites.

Case: Karanikolas v. Elias Taverna, LLC, NY Slip Op 05774 (2d Dept. 2014)

Here is the decision.

Monday's issue: Sanctions for spoilation of evidence.

A landowner's duty to warn.

Practice point:  A property owner must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all the attendant circumstances. Encompassed within this duty is the concomitant duty to warn those lawfully on the premises of potentially dangerous conditions that are not readily observable.

Student note: Landowners who have or should have reason to expect that persons will find it necessary to encounter the danger, owe a duty of reasonable care to either warn such persons of the danger or to take other reasonable steps to protect them from it.

Case: Fernandez v. Rutman, NY Slip Op 05769 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A worker's fall from a ladder.

Dismissal for neglect to proceed.

Practice point:  Where a party unreasonably neglects to proceed in an action or otherwise delays in prosecuting the action, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or on a motion, may dismiss the party's pleading on terms, pursuant to CPLR 3216[a]. . Before doing so, the court or the party seeking such relief must serve a written demand to resume prosecution and to serve and file a note of issue within 90 days of receipt of such demand, and further advise that failure to do so may result in dismissal of the action, pursuant to CPLR 3216[b][3]..

Student note:  Pursuant to 22 NYCRR 202.21(a) and (b), an action will not be deemed ready for trial or inquest unless a note of issue is first filed, accompanied by a certificate of readiness stating that there are no outstanding requests for discovery and the case is ready.

Case:  Dutchess Truck Repair, Inc. v. Boyce, NY Slip Op 05768 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A landowner's duty to warn.

The statute of frauds and a subscribed memorandum.

Practice point:  To satisfy the statute of frauds, a memorandum, subscribed by the party to be charged, must designate the parties, identify and describe the subject matter, and state all of the essential terms of a complete agreement. A writing is not a sufficient memorandum unless the parties' full intention can be ascertained from it alone, without recourse to parol evidence.

Student note:  The statutorily required writing need not be contained in one single document, but may be furnished by piecing together related writings.

Case:  Dahan v. Weiss, NY Slip Op 05767 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Dismissal for neglect to proceed.