Restoring a case after more than one year.

Practice point:  The Appellate Division determined that the court providently exercised its discretion in granting plaintiff's cross motion to restore the case to the calendar more than one year after it had been marked off.  Plaintiff showed a meritorious cause of action, a reasonable excuse for the delay in seeking to restore the matter to the calendar, an absence of intent to abandon prosecution, and a lack of prejudice to defendant.

Student note:  The Appellate Division noted that defendant did not contest that plaintiff showed a potentially meritorious cause of action based on evidence that he broke his ankle after tripping on a broken sidewalk curb of which the City had prior written notice.

Case:  Ford v. City of New York, NY Slip Op 00007 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Workers' Compensation benefits.

Trivial defects.

Practice point:  A property owner will not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub a toe, or trip. In determining whether a defect is trivial, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect, along with the time, place, and circumstances.

Student note:  There is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable. Photographs that fairly and accurately represent the accident site may be used to establish that a defect is trivial.

Case:  Mazza v. Our Lady of Perpetual Help R.C. Church, NY Slip Op 09657 (2d Dep't 2015)

Here is the decision.

Monday's issue:  Restoring a case after more than one year.

Calculating interest.

Practice point:  The Appellate Division affirmed the denial of former counsel's motion insofar as it sought interest to run from February 28, 2012 to the date of entry of a final judgment against nonparty current counsel.

The Appellate Division held that the Supreme Court properly declined to compute interest under CPLR 5002, as that section allows for interest from the date a verdict is rendered, or a report or decision is made, to the date of entry of a final judgment. Here, there was no verdict, report or decision; rather, by the Supreme court order entered October 18, 2011, former counsel was awarded $50,000 upon its motion for a proportional distribution of the contingency fee in the underlying personal injury action. Supreme Court correctly calculated interest pursuant to CPLR 5003, which provides that "[e]very order directing the payment of money which has been docketed as a judgment shall bear interest from the date of such docketing."

Student note:  Because CPLR 2222 directs that, upon request, "the clerk shall docket as a judgment an order directing the payment of money," the Supreme Court correctly concluded that the Clerk erred by refusing to enter the October 18, 2011 order as a judgment when asked to do so on March 19, 2014, and that interest, therefore, should be calculated from the latter date, pursuant to CPLR 5003.

Case:  Han Soo Lee v. Riverhead Bay Motors, NY Slip Op 09642 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Trivial defects.

Standing in a mortgage foreclosure action.

Practice point:  Where a defendant challenges the plaintiff's standing to maintain the action, the plaintiff must prove standing as part of its prima facie showing of entitlement to judgment as a matter of law.  A plaintiff establishes standing by demonstrating that it is the holder or assignee of the underlying note at the time the action is commenced.

Student note:  A plaintiff in a mortgage foreclosure action establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the defendant's default.

Case:  LNV Corp. v. Francois, NY Slip Op 09655 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Calculating interest.

Handrails and interior stairs.

Practice point:  The Appellate Division affirmed dismissal of the complaint in this action where plaintiff alleges injuries when he fell while ascending a two-step configuration that led from a corridor to restrooms in premises owned or operated by the various defendants.  Plaintiff relied on code provisions that do not require handrails or uniform riser heights on the stairs on which plaintiff fell, as they are not part of an "interior stair," pursuant to Administrative Code of City of NY § 27-232.

In addition, plaintiffs' expert's assertion that safe industry practice required handrails and uniform riser heights on the steps is conclusory, as it was not supported by reference to specific and applicable standards or practices.

Student note:  Given the inapplicability of the code provisions cited, plaintiffs' cross motion to amend or supplement the bill of particulars was denied.

Case:  Hernandez v. Callen, NY Slip Op 09638 (1st Dep't 2015)

Here is the decision.

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

Evidentiary material and motions to dismiss.

Practice point:  Pursuant to CPLR 3211(a)(7), a  court may consider evidentiary material submitted by a defendant in support of a motion to dismiss.  However, the burden never shifts to the nonmovant to rebut a defense asserted by the movant.  A plaintiff will not be penalized for not having made an evidentiary showing in support of the complaint.

Student note:  When evidentiary material is considered, and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether the plaintiff has stated one.  Unless it is shown that a material fact as claimed by the plaintiff is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the motion will be denied.

Case:  E & D Group, LLC v. Vialet, NY Slip Op 09400 (2d Dep't 2015)

Here is the decision.

Tomorrow's issue:  Handrails and interior stairs.

Summary judgment on the issue of liability on a Labor Law § 240(1) claim.

Practice point:  The Appellate Division reversed the motion court's denial of plaintiff's summary judgment motion, as his deposition testimony establishes that a proximate cause of his injury was the shifting of unsecured scaffold planks. Therefore, contrary to defendants' contention, plaintiff was not the sole proximate cause of the accident. In addition, defendants' recalcitrant worker defense, predicated on plaintiff's alleged entry into an area of the scaffold that had been cordoned off, is unavailing, as there is no evidence that plaintiff had been instructed on the day of the accident not to enter or use the cordoned-off area.

Student note:  The unsworn accident report relied upon by defendants to show an inconsistency in plaintiff's account of the accident is insufficient to raise an issue of fact. The report is inadmissible hearsay, and defendants provide no excuse for their failure to tender the report in admissible form. The inconsistent statement in plaintiff's hospital record as to how the accident occurred is also insufficient to raise a triable issue of fact, because it is not germane to plaintiff's diagnosis and treatment.

Case:  Kristo v. Board of Educ. of the City of N.Y., NY Slip Op 09358 (1st Dep't 2015)

Monday's issue:  Evidentiary material and motions to dismiss.

Extending time to settle a judgment.

Practice point:  The plaintiffs and the defendants are neighbors and share a common right-of-way.  Years ago the owner subdivided her property into what is now the plaintiffs' property and the defendants' property. A 10-foot-wide strip of land between the parties' properties was not conveyed to either property. The parties do not dispute that they both have the right of ingress and egress over the 10-foot-wide strip of land, but the disagree as to whether the plaintiffs have an easement to use portions of the defendants' property as a driveway.

According to the plaintiffs, the defendants began to restrict access to portions of the common driveway that were on the defendants' property.  The plaintiffs commenced this action seeking a declaration that the defendants' property is subject to an easement in favor of the plaintiffs' property. After a nonjury trial, the Supreme Court issued a decision and order directing the dismissal of the plaintiffs' claims, and directing that a judgment be settled on notice. However, the defendants did not settle the judgment within 60 days, as is required by 22 NYCRR 202.48.

The plaintiffs commenced a second action, seeking essentially the same relief that was denied in this action, and asserting additional causes of action. The defendants moved for summary judgment in the second action dismissing numerous causes of action on the ground that they had been dismissed in this action and were thus barred by the doctrine of res judicata. The Supreme Court denied the motion, partly because no judgment had been entered in this action.

Thereafter, the defendants moved pursuant to CPLR 2004 in this action to extend their time to settle the judgment pursuant to the decision and order. The Supreme Court granted the motion, and a judgment was entered. On this appeal from that judgment, the plaintiffs contend that the Supreme Court erred in extending the defendants' time to settle the judgment, in dismissing their first cause of action as abandoned, and in dismissing their causes of action seeking an easement by prescription or necessity.

The Appellate Division affirmed, finding that, while the defendants' did engage in dilatory behavior, the interests of justice demand that the court not be burdened with the trial of demonstrably meritless causes of action. 

Student note:   It is within the sound discretion of the court to accept a belated order or judgment for settlement.  A court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources.

Case:  Curanovic v. Cordone, NY Slip Op 09398 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:   Summary judgment on the issue of liability on a Labor Law § 240(1) claim.

The death of a party.

Practice point:  The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a).

Student note:  CPLR 1021 is an exception to that principle.  It provides, in pertinent part, that a motion for substitution may be made by the successors or representatives of a party or by any other party within a reasonable time after the party's death. If "timely substitution has not been made, the court, before proceeding further, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent's estate to show cause why the action or appeal should not be dismissed."

Case:  Barnabas v. Boodoo, NY Slip Op 09394 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Extending time to settle a judgment.

Failure to identify the cause of the fall.

Practice point:  In a slip-and-fall case, a plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Student note:  Proximate cause may be established without direct evidence of causation by inference from the circumstances of the accident. However, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action.

Case:  Amico v. Kasneci, NY Slip Op 09393 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  The death of a party.