Service on New York City Health & Hospitals Corp.

Practice point:  Plaintiff's notice of claim named HHC, but Plaintiff filed the notice with the New York City Comptroller. Service on the Comptroller does not constitute service on HHC.  For purposes of service of a notice of claim, the City and HHC are separate entities.

Student note:  As plaintiff failed to serve a notice of claim, or move for leave to serve a late notice, for more than a year and 90 days after accrual of the claim, the Appellate Division affirmed the dismissal of the claim as to HHC.

Case:  Smith v. Das, NY Slip Op 01885 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Claims for fraud and negligent misrepresentation.

Taxi medallions and claims sounding in breach of contract and unjust enrichment.

Practice point:  The Appellate Division affirmed dismissal of the complaint which alleged that the plaintiff entered into an oral contract with the defendant to lease a medallion for $666 per week, and that the defendant breached the contract by later "extracting" fees from the plaintiff of $852 per week and imposing a 5% charge for all credit card transactions.

The Appellate Division determined that, as the plaintiff paid the allegedly excessive fees, the plaintiff was describing an oral modification, not a breach, of the original contract, which was fully performed. Accordingly, the plaintiff failed to state a cause of action sounding in breach of contract.

The Appellate Division noted that, where the contract's existence is in dispute, a plaintiff may allege a cause of action to recover for unjust enrichment as an alternative to a cause of action alleging breach of contract, pursuant to CPLR 3014. Here, though, the plaintiff's allegations establish that there was a contract, which was fully performed, and full performance of the contract cannot constitute unjust enrichment.

The Appellate Division determined that the causes of action alleging violations of the Rules of the City of New York Taxi and Limousine Commission were properly dismissed, as a private civil right of action may not be implied from that regulatory scheme.

Student note:  The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract; the plaintiff's performance pursuant to the contract; the defendant's breach of its contractual obligations; and damages resulting from the breach.

Case:  El-Nahal v. FA Mgt., Inc., NY Slip Op 01778 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Service on New York City Health & Hospitals Corp.

An improper wrestling move, and the resulting claim of negligent supervision.

Practice point:  While participating in a wrestling match sponsored by the defendant the plaintiff's child allegedly sustained injuries when his opponent performed "an illegal or unreasonably dangerous wrestling move." Seeing the alleged illegal move, the referee, who himself was an experienced high school wrestler, disqualified the opponent.

The plaintiff alleges that the defendant was negligent in failing to provide an adequately trained or certified referee to supervise the wrestling match. The Appellate Division determined that the defendant established its prima facie entitlement to judgment as a matter of law with evidence, including a transcript of the deposition testimony of the plaintiff's child and a videotape of the wrestling match, demonstrating that the allegedly illegal wrestling move occurred in so short a span of time that even the most intense supervision could not have prevented it. As the plaintiff failed to raise a triable issue of fact, the Appellate Division reversed, and dismissed the complaint.

Student note:  Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not the proximate cause of the injury, and the court will grant summary judgment to a defendant charged with a breach of the duty of reasonable supervision.

Case:  Cvijenovich v. Beacon Kids Wrestling Club, NY Slip Op 01777 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Taxi medallions and claims sounding in breach of contract and unjust enrichment.

The relation-back doctrine, and leave to amend.

Practice point:  The Appellate Division affirmed and determined that the proposed cause of action to recover damages for wrongful termination of employment, which was otherwise time-barred, did not relate back to the original complaint, pursuant to CPLR 203[f]. The relation-back doctrine lets a plaintiff interpose a claim or cause of action, which would otherwise be time-barred, where the allegations of the original complaint gave notice of the transactions or occurrences to be proven, and the cause of action would have been timely interposed if asserted in the original complaint.

The doctrine does not apply where, as here, causes of action sought to be added are based on events that occurred after the filing of the initial pleading, rather than upon the transactions giving rise to the causes of action in the initial pleading. In this  action, the original complaint could not have provided notice that the plaintiff's employment was terminated, since as the termination occurred subsequent to the commencement of the instant action. The fact that the defendants had actual notice of the termination was insufficient to invoke the relation-back doctrine, as the requisite notice must be provided in the original pleading itself.

Student note:  Leave to amend a pleading, pursuant to CPLR 3025[b], will be granted if the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.

Case:  Cooper v. Sleepy's LLC, NY Slip Op 01776 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  An improper wrestling move, and the resulting claim of negligent supervision.

Improper service and dismissal for lack of jurisdiction.

Practice point:  The Appellate Division affirmed the dismissal as to defendant rehabilitation facility, pursuant to CPLR 3211(a)(8).  Jurisdiction over the defendant was not obtained by delivery of the summons and complaint to the Secretary of State, because the summons and complaint misstated the defendant's name. Jurisdiction was not obtained by the alleged delivery of the summons and complaint to an employee at the facility's security desk because it is a limited liability company, and its four individual members are the only persons authorized to accept service on its behalf, pursuant to CPLR 311-a.

Student note:  The Appellate Division determined that the motion court properly considered the motion, even though the Defendant allegedly failed to properly serve its motion papers. The plaintiff requested and obtained two adjournments of the motion return date, and thereafter submitted an affirmation in opposition which addressed the merits of the motion, and was accompanied by evidentiary submissions. Under these circumstances, the plaintiff was not prejudiced by the allegedly improper service of the motion papers, and waived his objection.

Case:  Ciafone v. Queens Ctr. for Rehabilitation & Residential Healthcare, NY Slip Op 01774 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: The relation-back doctrine, and leave to amend.

Granting an extension of time, pursuant to CPLR 2204.

Practice point:  The Appellate Division affirmed the denial of that branch of the plaintiff's motion which was, in effect, to extend the time in which to conduct his deposition, since the plaintiff's own failure to comply with discovery demands hampered the defendant's ability to conduct the deposition. In addition, the plaintiff failed to show good cause for the past delay and that the defendant would not be prejudiced by the delay.

Student note:  In exercising its discretion to grant an extension of time pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the motion's opponent.

Case:  Blay v. Frost, NY Slip Op 01771 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Improper service and dismissal for lack of jurisdiction.

Commencing a foreclosure action.

Practice point:  In order to commence a foreclosure action, a plaintiff must have a legal or equitable interest in the mortgage.  If the defendant puts standing into issue, a plaintiff must prove its standing.

The Appellate Division determined that the appellant did not waive the issue of standing.  Although the appellant's answer did not raise standing as a separate defense, a fair reading of the pleading reveals that it contained language which denied that the plaintiff was the owner and holder of the note and mortgage being foreclosed.  Under such circumstances, the appellant was not required to expressly plead lack of standing as a defense, pursuant to CPLR 3211[e].

Student note:  In a mortgage foreclosure action, a plaintiff establishes standing by demonstrating that, at the time the action is commenced, it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note.

Case:  Bank of Am., N.A. v. Paulsen, NY Slip Op 01597 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Granting an extension of time, pursuant to CPLR 2204.

Medical malpractice, summary judgment, expert opinions, and motions to renew and reargue.

Practice point:  Typically, a qualified expert's opinion that plaintiff's injuries were caused by a deviation from relevant standards would preclude a grant of summary judgment. However, where the expert's ultimate assertions are speculative or without evidentiary foundation, the opinion is of no probative force and is insufficient to withstand summary judgment.

Applying the test in Frye v United States, New York courts permit expert testimony based on scientific principles, procedures or theories only after they have gained general acceptance in the relevant scientific field.  The burden of proving general acceptance is on the proponent of the disputed expert testimony.

Here, the Appellate Division affirmed the motion court's finding that plaintiff failed to submit evidence sufficient to raise a triable issue of fact that his experts' opinions were generally accepted in the medical community.  Although plaintiff submitted numerous articles in medical literature concerning adverse reactions to Lipitor and Azithromycin, none of the articles linked atrioventricular (AV) heart block to the drugs prescribed by defendant. Biological plausibility and convergence in time between the administration of the drugs and the AV heart block diagnosis are insufficient, where no scientific evidence of causation was provided.   The Appellate Division noted that observational studies or case reports are not generally accepted in the scientific community on questions of causation.

Student note:  The motion to renew was denied because plaintiff failed to submit new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221 [e][2]. The additional case reports did not raise an issue concerning the general acceptance of plaintiff's experts' causation theory in the medical community. Denial of the motion to reargue is not appealable.

Case:  Pullman v. Silverman, NY Slip Op 01707 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Commencing a foreclosure action.

A defendant's establishing a lack of constructive notice in a slip and fall case.

Practice point:  To constitute constructive notice, a dangerous condition must be visible and apparent and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it. To meet its burden on the issue of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.  Merely referring to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice.

Student note:  In a slip-and-fall case, a defendant moving for summary judgment has the initial burden of making a prima facie showing that it did not create the condition on which the plaintiff slipped, and did not have actual or constructive notice of that condition.

Case:  Arcabascio v. We're Assoc., Inc., NY Slip Op 01595 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Medical malpractice, summary judgment, expert opinions, and motions to renew and reargue.

Police failure to record information regarding a driver involved in a traffic accident.

Practice point:  Plaintiff alleges that, after she was struck by an automobile, the responding officers failed to record the identity of the owner and/or operator of the vehicle that struck plaintiff.

The Appellate Division determined that the City is entitled to summary judgment because the investigation of the accident at issue here is a governmental function, and so the City is not liable for failing to properly investigate the incident unless there existed a special duty to plaintiff, in contrast to a general duty owed to the public.

Here, plaintiff cannot establish a special relationship through defendants' violation of a statutory duty, because none of the cited sections of the Vehicle and Traffic Law authorize a private right of action, nor were they otherwise enacted for the benefit of a particular class of persons as opposed to the public at large

 Student note:  While the statute imposes criminal liability if the vehicle's operator does not identify himself or herself, there is no statutory provision for governmental tort liability.

Case:  Bouet v. City of New York, NY Slip Op 01567 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A defendant's establishing a lack of constructive notice in a slip and fall case.

Easement by prescription and declaratory judgment.

Practice point:  The Appellate Division determined that the defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence establishing that the plaintiffs' claim is based on their possession and occupancy of the property, and therefore is inconsistent with an easement by prescription. 

Student note:  To the extent that this is a declaratory judgment action, it was remitted for the entry of a judgment declaring that the plaintiffs do not have a prescriptive easement over the property.

Case:  Kostovetsky v. Rockaway Hunting Club, NY Slip Op 01421 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Police failure to record information regarding a driver involved in a traffic accident.