Summary judgment as to liability in an action involving a pedestrian struck by an automobile.

Practice point:  The plaintiff allegedly was injured when he was struck by a vehicle owned by the defendant-florist. The plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by presenting proof that the injured plaintiff was walking within an unmarked crosswalk and that he looked for approaching traffic before he began to cross.
 

In opposition, the defendants failed to raise a triable issue of fact. A transcript of an alleged telephone conversation that a nonparty witness had with the defendants' insurer, which is not authenticated, certified, or sworn, was inadmissible and insufficient to raise a triable issue of fact. Additionally, the driver-defendant's affidavit did not raise a triable issue of fact as it consisted of unsupported speculation that the injured plaintiff was comparatively negligent.

Student note:  That branch of the plaintiffs' motion which sought summary judgment on the issue of liability was not premature, since the florist-defendants failed to offer an evidentiary basis to show that discovery may lead to relevant evidence and that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff.

Case:  Garcia v. Lenox Hill Florist III, Inc, NY Slip Op 06171 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Issues of fact as to constructive notice.

Property possessor's liability for a third-person's criminal acts.

Practice point:  A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties. Here, the defendants failed to meet their prima facie burden of establishing entitlement to judgment as a matter of law by demonstrating that they took reasonable security measures against foreseeable criminal acts of third parties.

Student note:  A defendant cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case.

Case:  Deinzer v. Middle Country Pub. Lib, NY Slip Op 06169 (2d Dept. 2014)

Here is the decision.

Monday's issue: Summary judgment as to liability in an action involving a pedestrian struck by an automobile.

Summary judgment in a legal malpractice action.

Practice point:  To recover damages for legal malpractice, a plaintiff must prove the existence of an attorney-client relationship. In addition, the plaintiff must establish that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages.

Student note:  To succeed on a motion for summary judgment dismissing the complaint, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice

Case:  Biberaj v. Acocella, NY Slip Op 06165 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Property possessor's liability for a third-person's criminal acts.

Documentary evidence in spport of a CPLR 3211(a)(1) motion.

Practice point:  In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be unambiguous, authentic, and undeniable.  While judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, and contracts qualify as documentary evidence, affidavits, deposition testimony, and letters do not.

Student note:  A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence will be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. The evidence submitted in support of such motion must be documentary or the motion must be denied.

Case:  Attias v. Costiera, NY Slip Op 06163 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Summary judgment in a legal malpractice action.

Denial of a motion to file a late notice of claim.

Practice point:  The Appellate Division affirmed the denial of the motion and the dismissal of this medical malpractice action in which the infant plaintiff sought to recover for injuries he suffered after being born at 27 weeks' gestation. The Appellate Division found that the motion court considered the pertinent statutory factors and properly exercised its discretion in denying plaintiff's motion, pursuant to General Municipal Law § 50-e[5].

The Appellate Division found that the infant plaintiff's mother's excuses that she was unfamiliar with the requirement that she file a notice of claim, and that she was unaware that her son's injuries were caused by defendant's malpractice, are not reasonable. Nor is her attorney's assertion that he waited to make the motion until nearly four years after filing the untimely notice of claim because he needed to receive the medical records from the defendant.

In addition, the medical records demonstrate that the infant plaintiff's condition and prognosis are consistent with his premature birth, and do not suggest any injury attributable to the hospital staff's malpractice. Plaintiff failed to demonstrate that the medical records put defendant on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia, or that he would
subsequently develop other deficits, delays, and disorders.

Student note: As to the relevance of the plaintiff's infancy, the Appellate Division said that it "carries little weight" as there is not connection between that infancy and the delay in moving for leave to file.

Case:  Wally G. v. New York City Health & Hosps. Corp. (Metropolitan Hospital), NY Slip Op 06241 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Documentary evidence in support of a CPLR 3211(a)(1) motion.

An alleged abandonment of a claim for the award of attorney's fees.

Practice point:  22 NYCRR 202.48, "Submission of orders, judgments and decrees for signature," states, in pertinent part, as follows:

:"(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted. "(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown."

Here, the Supreme Court's direction that the defendants submit a proposed order with respect to an award of an attorney's fee did not specify that the order be settled or submitted on notice. Therefore, the plaintiff's contention that the defendants abandoned their claim for an award of the fee by failing to comply with the 60-day rule is unavailing.

Student note: In determining reasonable compensation for an attorney, the court must consider such factors as the time, effort, and skill required; the difficulty of the questions presented; counsel's experience, ability, and reputation; the fee customarily charged in the locality; and the contingency or certainty of compensation.

Case:  47 Thames Realty, LLC v. Robinson, NY Slip Op 06051 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Denial of a motion to file a late notice of claim.

A late motion for leave to amend.

Practice point:  Although the plaintiff delayed in making the motion for leave to amend, mere lateness is not a barrier to the amendment; lateness is only a barrier if it is coupled with significant prejudice to the other side.

Student note:  Leave to amend a pleading is freely given absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit.

Case:  Ciminello v. Sullivan, NY Slip Op 06048 (2d Dept. 2014)

Here is the decision.

Monday's issue: An alleged abandonment of a claim for the award of attorney's fees.

A rear-end collision.

Practice point:  A rear-end collision establishes, prima facie, negligence on the part of the rear vehicle's driver, regardless of whether the lead vehicle was stopped or stopping.. That driver, then, must rebut the inference of negligence by providing a nonnegligent explanation for the collision. A bare allegation that the lead vehicle stopped short is insufficient to rebut the inference.

Student note:  Where the movant has established entitlement to judgment as a matter of law, the burden shifts to the opposing party to provide sufficient evidence to raise a triable issue of fact as to the moving party's comparative fault.

Case:  Billis v Tunjian, NY Slip Op 06044 (2d Dept. 2014)

Here is the decision.

Tomorrow' issue: A late motion for leave to amend.

The enforceability of an on-the-record stipulation.

Practice point:  In this divorce action the Appellate Division affirmed the finding that the parties' on-the-record agreement was too incomplete and indefinite to be enforceable, and was merely a non-binding agreement to agree.  The parties disagreed as to whether the proposal included a waiver of maintenance, and they did not finalize the details of the transfer of a trust. Other material terms were never agreed to, and the agreement was subject to the consummation of future conditions and additional agreements.

Student note: To be enforceable, an open court stipulation must contain all of the material terms and
evince a clear mutual accord between the parties, pursuant to CPLR 2104;

Case:  Cohen v. Cohen, NY Slip Op 06157 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A rear-end collision.

Hearsay evidence in opposing summary judgment.

Practice point: Plaintiff brought this action against her former father-in-law to enforce his guaranty of a settlement agreement in a matrimonial proceeding. The agreement provided, in pertinent part,that plaintiff, who remained an obligor on a mortgage and a line of credit agreement along with her nonparty former husband, had the right to notify the husband or defendant of any uncured default in the monthly payments and demand that the default be cured.

Plaintiff's primary claim is that the husband's repeated late payments on the mortgage and the line of credit had damaged her credit and resulted in receipt of a bank notice indicating that the former marital residence was at risk of foreclosure.

Pertaining to the line of credit account, defendant avers, and the husband states in a letter, that the bank representative informed them that the line of credit payments were current, and advising of the next scheduled payment. Defendant contends that the bank representative's statement was the best and only information he could obtain, as he was not a signatory on the accounts at issue and not allowed to obtain copies of the statements.

The Appellate Division found the argument unavailing, as defendant's affidavit relies only on hearsay evidence that a bank representative had indicated that the line of credit was in good standing. The documentary evidence is to the contrary.

Student note:  A party opposing summary judgment may proffer hearsay evidence, but such proof may not be the sole factual basis for denying summary judgment.

Case: Andron v. Libby, NY Slip Op 06155 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The enforceability of an on-the-record stipulation.

In a mortgage foreclosure action, a challenge to standing, and assignment of the mortgage and the underlying note.

Practice point:  In a mortgage foreclosure matter where the defendant challenges plaintiff's standing, the plaintiff must prove standing to be entitled to relief. The plaintiff has standing where, at the time the action is commenced, it is the holder or assignee of both the subject mortgage and the underlying note. Written assignment of the underlying note or physical delivery of the note prior to the commencement of the action is sufficient to transfer the obligation.

Student note: Once a promissory note is tendered to and accepted by an assignee, the mortgage passes as an incident to the note. However, the assignment of a mortgage without assignment of the underlying debt is a nullity, and no interest is acquired by it.

Case:  HSBC Bank USA, N.A. v. Gilbert, NY Slip Op 05950 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Hearsay evidence in opposing summary judgment.