Denial of a motio to dismiss for inconvenient forum.

Practice point:  The Appellate Division determined that the motion court properly exercised its discretion in finding that New York was a proper forum and that defendant failed to meet his burden to dismiss the action on inconvenient forum grounds.  The Appellate Division found that the motion court considered the appropriate factors, namely, that the dispute concerns real property in New York and the actions and transactions that gave rise to the claim occurred in New York; the mortgage payments on the properties and rent collected from the properties go to a New York bank; there is no alternative forum in which to litigate this claim because South Korea does not recognize constructive trusts; and defendant has demonstrated his availability to this forum by prior business activities here.

Student note:  As this is not a matrimonial action, it is not barred by the parties' matrimonial action in South Korea.

Case: Kang v. Kim, NY Slip Op 07074 (1st Dept. 2014)

Here is the decision.

Monday's issue:  Dismissal of a Labor Law 241(6) claim.

Summary judgment for medical residents acting under the direction of the attending physicians.

Practice point:  In their motion for summary judgment, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting deposition testimony, hospital records, and the affirmation of their medical expert establishing that at all times they acted under the direction and supervision of the attending physicians, and that they lacked the authority to independently order tests and medication. Their physically examining plaintiff and participating in her diagnosis and discharge from care did not demonstrate the exercise of independent medical judgment. In addition, the defendants demonstrated that the diagnosis and treatment plan implemented and continued under the supervision of the attending physicians did not include orders so clearly contraindicated by normal practice that ordinary prudence required inquiry into the correctness of those orders.

Student note:  The Appellate Division determined that the motion court properly rejected the redacted and unsigned affirmation of the plaintiff's medical expert where the plaintiff offered no explanation for the failure to identify the expert by name or the failure to offer an unredacted affirmation for in camera review. Therefore, that affidavit was insufficient to raise a triable issue of fact as to the defendants' alleged malpractice.

Case:  France v. Packy, NY Slip Op 06939 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Denial of a motion to dismiss for inconvenient forum.

A premature summary judgment motion.

Practice point:  The plaintiff sued for injuries allegedly sustained when she tripped and fell as a result of an alleged defect on a curb near a catch basin/sewer in the defendant-Town. The Town moved for summary judgment dismissing the complaint on the ground that it did not own the roadway and, therefore, had no duty to maintain the curb. In opposition, the plaintiff contended that Highway Law § 12(5) imposes a duty upon a town to maintain curbs on state-owned highways that have been widened by the town, and to the Town's motion was premature inasmuch as the Town failed to provide disclosure as to whether it had widened the subject roadway.

The Appellate Division determined that, in opposing the motion, the plaintiff demonstrated that the Town failed to disclose whether it widened the subject roadway at the location of the occurrence, a fact exclusively within the knowledge and control of the Town. Therefore, the Supreme Court should have denied as premature the Town's motion, with leave to renew upon the completion of discovery.

Student note:  A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant, pursuant to CPLR 3212[f].

Case:  Buto v. Town of Smithtown, NY Slip Op 06934 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Summary judgment for medical residents acting under the direction of the attending physicians.

Dismissal of a conversion claim.

Practice point:  The Appellate Division affirmed dismissal on the alternative ground that the allegations in the complaint were inadequate to state a cause of action to recover damages for conversion, pursuant to CPLR 3211[a][7].  In pleading conversion, the plaintiff must allege legal ownership or an immediate right of possession to specifically identifiable funds and that the defendant exercised an unauthorized dominion over such funds to the exclusion of the plaintiff's rights.The mere right to payment cannot be the basis for the claim since the essence of a conversion cause of action is the unauthorized dominion over the thing in question.

Student note:  To make a claim for conversion, tangible personal property or specific money must be involved.

Case:  Barker v. Amorini, NY Slip Op 06931 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A premature summary judgment motion.

Summary judgment in a snow or ice case.

Practice point:  In this action for injuries allegedly sustained in plaintiff's sidewalk fall, the Appellate Division reversed the motion court's granting summary judgment to the City, and reinstated the complaint. Plaintiff testified at deposition that the area where she fell was "dirty" with "snow layers on top of layers," which she later clarified to mean "slushy ice" that was "clean, like slippery, flat" and had a little snow on top of it. In opposition to the City's motion, plaintiff submitted an affidavit in which she explained that she fell on a patch of snow and ice that was about two feet wide by three feet long, and that the patch of snow and ice was "one (1) inch thick, flat, hard, and dirty, as if it had existed for several days."

The Appellate Division determined that this deposition testimony and affidavit, taken together, cannot reasonably be construed as being inconsistent or feigned. Inconsistencies, if any, as to how plaintiff described the patch of snow and ice on which she slipped simply create a triable issue of fact. In addition, the Appellate Division cited precedent for the proposition that, contrary to the City's argument, snow and ice left on a sidewalk after a storm can constitute an "unusual and dangerous condition."

Student note: Once there is a period of inactivity after the storm ceases, it is a question of fact as to whether any delay in commencing the cleanup was reasonable. Here, it is for the jury to decide whether the ice on which plaintiff slipped was formed four days before the accident, as plaintiff contends, and whether that four-day gap was a sufficient period of time for the City to remedy the condition.

Case:  Rodriguez v. Woods, NY Slip Op 06887 (1st Dept. 2014) 

Here is the decision. 

Tomorrow's issue:  Dismissal of a conversion claim.

Summary judgment in a medical malpractice action.

Practice point:  To establish the physician's liability for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries. Accordingly, a physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure, or that any departure was not a proximate cause of the plaintiff's injuries. If the defendant-physician makes the requisite showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but only as to the elements on which the defendant met the prima facie burden.

Student note: Summary judgment is not appropriate where the parties adduce conflicting medical expert opinions, as they necessarily raise credibility issues which can only be resolved by a jury.

Case : Berthen v. Bania, NY Slip Op 06789 (2d Dept. 2014)

Here is the decision.

Monday's issue:  Summary judgment in a snow or ice case.

A shareholder may not recover individually for wrongs against the corporation.

Practice point:  The defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that all of the plaintiff's losses arose from his status as a shareholder of a nonparty corporation. A shareholder, even in a closely-held corporation, may not recover in his or her individual capacity for wrongs against the corporation. The evidence established, prima facie, that the moving defendants were not liable to the plaintiff for any of the relief sought, and that the plaintiff's claims should have been brought on behalf of the nonparty corporation in a derivative action.

 Student note:  The appeals from the two intermediate orders were dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action. The issues raised on the appeals from those orders were brought up for review and were considered on the appeal from the judgment, pursuant to CPLR 5501[a][1].

Case:  Barbaro v,  Spinelli, NY Slip Op 06786 (2d Dept. 2014)

Here is the decision.

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

An allegedly loose handrail, and defnedant's summary judgment motion is denied.

Practice point:  The Appellate Division reversed the motion court's granting defendant's motion to dismiss. Plaintiff was allegedly injured when she fell down a flight of stairs in defendant's apartment building. She alleges that the accident was caused by a loose handrail that she was holding while descending the stairs. The handrail's looseness was confirmed by the deposition testimony of defendant's superintendent who checked it shortly after plaintiff was injured. Defendant failed to satisfy its initial burden of establishing a lack of notice of the defect inasmuch as it offered no testimony as to when the admittedly loose handrail was last inspected or repaired.

Student note:  The Appellate Division expressly rejected plaintiff's alternative theory that the allegedly worn marble tread on the stairway constituted an actionable defective condition.

Case:  DiPini v. 381 E. 160 Equities LLC, NY Slip Op 06868 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A shareholder may not recover individually for wrongs against the corporation

Lien law, unjust enrichment, and quantum meruit.

Practice point:  Lien Law § 11 provides that within 5 days before or 30 days after filing the notice of lien, a lienor "shall" serve a copy of such notice upon the owner, as relevant here, at the owner's "last known place of residence." Here, the plaintiff's affidavit of service of the mechanic's lien demonstrates that the plaintiff failed to serve the notice in compliance with Lien Law § 11, as the notice was not sent to the defendants' last known place of residence. As strict compliance with the statutory requirements is mandated, the Appellate Division determined that the Supreme Court should have granted that branch of the defendants' motion which was pursuant to Lien Law § 11 to dismiss the sixth cause of action, which was to foreclose a mechanic's lien.

Student note:  Where, as here, there is a dispute as to whether there is a contract, the plaintiff may allege causes of action to recover for unjust enrichment and in quantum meruit as alternatives to a cause of action alleging breach of contract, pursuant to CPLR 3014.

Case:  Thompson Bros. Pile Corp. v Rosenblum, NY Slip Op 06577 (2d Dept. 2014)

Here is the decision.

Tomrorrow's issue: An allegedly loose handrail, and defendant's summary judgment motion is denied.

Court holiday.

The courts are closed to mark Columbus Day.

Tomorrow's issue:  Lien law, unjust enrichment, and quantum meruit.

Motion to vacate raising a jurisdictional objection and, alternatively, seeking a discretionary vacatur.

Practice point:  When a defendant seeking to vacate a default judgment raises both a jurisdictional objection, pursuant to CPLR 5015(a)(4),  and, alternatively, seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), the court must resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur.  Here, the process server's affidavit constituted prima facie evidence of proper service, pursuant to CPLR 308(4) . In her affidavit in support of her motion, the defendant did not deny that she was served with process and did not swear to specific facts to rebut the process server's affidavit.

The defendant was not entitled to relief pursuant to CPLR 5015(a)(1), as she failed to set forth any reasonable excuse for her default, since the only excuse proffered was that she had no recollection of being served with process.

Student note:  As to the jurisdictional question, since the defendant did not rebut the process server's affidavit, a hearing was not necessary.  As to the discretionary vacatur, in the absence of a reasonable excuse, it is unnecessary to determine whether the defendant demonstrated a potentially meritorious defense.

Case:  Servpro Indus., Inc. v. Anghel, NY Slip Op 06572 (2d Dept. 2014)

Here is the decision.

Tuesday's issue: Lien law, unjust enrichment, and quantum meruit.