Reassignment to another Part and summary judgment.

Practice point:  The controlling preliminary conference order directed that summary judgment motions were to be submitted within 120 days of the filing of the note of issue. The matter then was reassigned to another Part, whose rules provide for a 60-day time limit. However, that did not eliminate the provision of the preliminary conference order, in the absence of a further order or directive explicitly providing for a reduced time limit, or some other direction that the time limits of the new Part's rules would supersede the preliminary conference order.

Student note:  CPLR 3212(a) provides that unless the court sets another date, a motion for summary judgment must be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.

Case:  Freire-Crespo v. 345 Park Ave. L.P., NY Slip Op 08106(1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Notice in a slip and fall action.

The heightened pleading standard for fraud.

Practice point:  The Appellate Division affirmed dismissal of the fraud claim, as plaintiff did not satisfy the heightened pleading standard under CPLR § 3016(b). Plaintiff failed to identify any allegedly false representations that defendant made with the intent to induce plaintiff's investment.

Student note:  The Appellate Division found that the fraudulent inducement claim duplicates the breach of contract claim because plaintiff has not alleged any representation that is collateral to the contract. A fraud-based claim is duplicative of breach of a contract claim when the only fraud alleged is that the defendant was not sincere when it promised to perform under the contract.

Case:  MMCT, LLC v. JTR Coll. Point, LLC, NY Slip Op 08103 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Reassignment to another Part and summary judgment.

Tree wells, ownership, and liability.

Practice point:  Administrative Code of the City of New York § 7-210, which became effective on September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner.  However, a tree well is not part of the sidewalk for purposes of that Code section.

Student note:  Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land.

Case:  Avezbakiyev v. Champion Commons, LLC, NY Slip Op 07966 (2d Dept. 2014)

Here is the decision.

Monday's issue: The heightened pleading standard for fraud.

Court holiday.

The courts are closed to mark Thanksgiving Day.

Tomorrow's issue:  Tree wells, ownership, and liability.

Medical malpractice, summary judgment, and a battle of the experts.

Practice point:  Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such conflicting expert opinions will raise credibility issues which can only be resolved by a jury.

Student note:  However, a plaintiff's expert's affidavit that is conclusory or speculative is insufficient to raise a triable issue of fact in opposition to a defendant's prima facie showing of entitlement to judgment as a matter of law in a medical malpractice action.

Case:  Barrocales v. New York Methodist Hosp., NY Slip Op 07606 (2d Dept. 2014)

Here is the decision.

Friday's issue: Tree wells, ownership, and liability.

A fall on the ice.

Practice point:  The Appellate Division reversed and dismissed the complaint in this action where plaintiff allegedly slipped and fell on an icy condition on defendant's property. Defendant's supervisor of grounds testified that he and his crew had shoveled snow, removed ice, and salted and sanded the parking lot after a snow fall the day before the accident, and that any icy condition was addressed. This evidence showed that defendant did not have actual or constructive notice of the icy condition.

In opposition, plaintiff presented no evidence that defendant created the condition, that it was readily apparent, or that it was present for a sufficiently long period of time so that defendant had an opportunity to remedy the alleged hazard. Nor did plaintiff describe with any specificity the alleged condition that caused him to fall, from which it might be inferred, without speculation, that it was visible and apparent, particularly in view of the testimony of the supervisor of grounds that he had cleared the area and no snow or ice remained.

Student note:  While the issue was not addressed by the motion court, the Appellate Division found no triable issue as to whether the lighting in the parking lot contributed to plaintiff's fall. The record shows that defendant's supervisor of grounds inspected the exterior lights several days prior to plaintiff's fall and found them to be functioning properly, and plaintiff did not submit any contradictory evidence.

Case:  Vidal v. City of New York, NY Slip Op 07591 (1st Dept 2014)

Here is the decision.

Tomorrow's issue:  Medical malpractice, summary judgment, and a battle of the experts.

CPLR 3103(a) and an infant plaintiff's deposition.

Practice point:  The Appellate Division determined that the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' cross motion which was for a protective order pursuant to CPLR 3103(a) preventing the infant plaintiff from being deposed. Contrary to the plaintiffs' contention, the court did not err in determining that the infant plaintiff is competent to testify without conducting a preliminary examination.

Student note:  The Appellate Division agreed with the Supreme Court's determination that, in light of the infant plaintiff's fragile condition, the parties must work with their experts to put in place guidelines so as to lessen the stress and trauma on the infant plaintiff during the deposition.

Case:  Serrano v. Lutheran Social Servs. of Metro. N.Y., Inc., NY Slip Op 07491 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A fall on the ice.

CPLR 205(a).

Practice point:  CPLR 205(a) provides that when an action is dismissed on grounds other than voluntary discontinuance, lack of personal jurisdiction, neglect to prosecute, or a final judgment on the merits, the plaintiff may bring a new action within six months of the dismissal, even though the action would otherwise be barred by the statute of limitations.

Student note:  The six-month period runs from the date of termination of the earlier action, which in this case was the entry of the order.

Case:  Ross v. Jamaica Hosp. Med. Ctr., NY Slip Op 07490 (2d Dept. 2014)

Here is the decision.

Monday's issue: CPLR 3103(a) and an infant plaintiff's deposition.

A counterclaim to recover unpaid rent.

Practice point:  The Appellate Division determined that the Supreme Court properly denied that branch of the defendants' cross motion which was for summary judgment on their counterclaim to recover unpaid rent. Before a tenant may withhold rent, the tenant must prove actual or constructive eviction. To demonstrate constructive eviction a tenant must vacate the premises. Here, the defendants' submissions failed to demonstrate, prima facie, that the plaintiff remained in possession of the leased premises and thus, was not constructively evicted.

Student note:   A commercial tenant's obligation to pay rent is not suspended if the tenant remains in possession of the leased premises, even if the landlord fails to provide essential services.

Case:  Prakhin v. Fulton Towers Realty Corp., NY Slip Op 07487 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  CPLR 205(a)

Damages for a hot water burn.

Practice point:  The Appellate Division reversed, and dismissed the third-party complaint in this action for personal injuries allegedly sustained by plaintiff when she was burned by hot water while showering in the bathroom of an apartment  where third-party defendant was superintendent. Third-party defendant met its initial burden of demonstrating that it did not create or have actual or constructive notice of the alleged dangerous condition. Although third-party defendant acknowledges acting to address complaints of no heat or hot water on the upper floors of the building within two weeks of the incident which resulted in plaintiff's injuries, the undisputed evidence establishes that the domestic hot water supply system and the heating system for the building were separate, and that adjustments made by third-party defendant to the heating system would have had no effect on the domestic hot water supply system.

Student note:  Third-party plaintiff failed to present evidence that any action taken by third-party defendant caused excessively hot water. Third-party plaintiff's expert expressly stated that he did not evaluate the heating system, which was different from the domestic hot water supply system. Although he opined that leaving the domestic hot water supply system in the hands of an inexperienced person, such as third-party defendant, was dangerous and negligent, no evidence was presented that any action by third-party defendant proximately caused plaintiff's injuries or that third-party defendant was responsible for repairs to the domestic hot water supply system.

Case:  Duff v. 646 Tenth Ave., LLC, NY Slip Op 07589 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A counterclaim to recover unpaid rent.

Driving a vehicle without the owner's permission.

Practice point: For summary judgment on its defense that the vehicle was used without its permission, the defendant must present substantial evidence that the vehicle was used without its permission. The owner's uncontradicted testimony that the vehicle was operated without permission does not, by itself, overcome the presumption of permissive use. The question of consent is ordinarily one for the jury.


Student note:  Vehicle and Traffic Law § 388 creates a strong presumption that the driver is operating it with the owner's consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner's express or implied permission.

Case: Han v. BJ Laura & Son, Inc., NY Slip Op 07480 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Damages for a hot water burn.