A summary judgment motion denied as untimely.

Practice point:  The Appellate Division affirmed the motion court's denial, as defendant filed its motion after the deadline set forth in the preliminary conference order. That deadline is controlling, given that there is no subsequent order or directive explicitly providing otherwise. In addition, defendant failed to provide good cause for the delay in moving for summary judgment.

Student note:  The Appellate Division noted that the action's conversion to e-filing approximately two months before the order does not warrant a different result.

Case:  Winfield v. Monticello Senior Hous. Assoc., NY Slip Op 00873 (1st Dept. 2016)

Here is the decision.

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

Court holiday.

Tomorrow's issue:  A summary judgment motion denied as untimely.

Court holiday.

Tuesday's issue:  A summary judgment motion denied as untimely.

Sidewalk defects and an abutting landowner's liability.

Practice point:  The Appellate Division reversed, and granted defendant's summary judgment motion in this action where plaintiff allegedly tripped and fell on a sidewalk abutting premises owned by defendant.

An abutting landowner will be liable to a pedestrian injured by a sidewalk defect where the landowner created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk. Here, defendant established, prima facie, that her property was covered by the exemption for owner-occupied residential property set forth in section 2-710(b) of the Administrative Code of the City of New York, and that she had no statutory duty to maintain the sidewalk.

Student note:  Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality, and not the abutting landowner.

Case:  Ippolito v. Innamorato, NY Slip Op 00648 (2d Dept. 2016)

Here is the decision.

Tuesday's issue:  A summary judgment motion denied as untimely.

Expert opinion testimony in a chiropractic malpractice action.

Practice point:  Physicians offering opinions in medical, dental, podiatric, chiropractic, or other specialty malpractice actions must establish their credentials in order for their expert opinions to be considered by courts. They do so by being specialists in the field that is the subject of the action, or if not specialists in the same field, then by possessing the requisite skill, training, education, knowledge, or experience from which it can be assumed that the opinion rendered is reliable. 

Student note:  As with medical malpractice actions, chiropractic malpractice actions require proof that the defendant chiropractor deviated or departed from the accepted community standards of chiropractic practice, and that such deviation or departure was a proximate cause of the plaintiff's injuries.

Case:  Bongiovanni v. Cavagnuolo, NY Slip Op 00638 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue: Sidewalk defects and an abutting landowner's liability.

A legal malpractice claim based on violation of a contract's non-disparagement provision.

Practice point:  The Appellate Division affirmed denial of defendant's motion to dismiss the complaint in this action where plaintiff alleges that he would not have lost his contractual right to certain deferred compensation if his attorneys had not acted negligently in speaking to newspaper, in violation of the non-disparagement provision of the contract. The Appellate Division found that these allegations state a cause of action for legal malpractice, and that defendant's documentary evidence fails to establish a defense as a matter of law.  As the motion court found, neither the arbitration award nor the subsequent opinions submitted by defendants unequivocally contradict plaintiff's claim that, but for defendants' alleged negligent conduct, he would not have lost his contractual benefit.

Student note:  It does not matter whether the arbitration decision was reached on the merits or under a procedural bar to considering the deferred compensation issue in the arbitration.

Case:  Barr v. Liddle & Robinson, LLP, NY Slip Op 00744 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Expert opinion testimony in a chiropractic malpractice action.

A lessee/sublessor's liability.

Practice point:  The Appellate Division reversed, and reinstated the complaint in this action which plaintiff commenced after he allegedly was injured when he slipped and fell on premises that had been leased by defendant, and then subleased to another corporate entity.  Defendant failed to establish, prima facie, that the nonparty sublessee assumed the exclusive obligation to maintain the premises, and that defendant, as lessee/sublessor, had no duty to maintain the premises.  Since defendant failed to meet its initial burden as the movant, it was not necessary to review the sufficiency of plaintiff's opposition papers.

Student note:  An out-of-possession landlord may be liable for injuries occurring on the premises if it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs.  However, where the premises have been leased and subleased and the subtenant assumes the exclusive obligation to maintain the premises, both the out-of-possession landlord and the out-of-possession lessee/sublessor will be free from liability for injuries to a third party caused by the negligence of the subtenant in possession.

Case:  Iturrino v. Brisbane S. Setauket, LLC, NY Slip Op 00480 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  A legal malpractice claim based on violation of a contract's non-disparagement provision.

Dismissal of a fraud claim.

Practice point:  Pursuant to CPLR 3016(b), where a cause of action is based upon fraud or aiding and abetting fraud, the circumstances constituting the wrong must be stated in detail.  The Appellate Division affirmed dismissal of the claim here, as the causes of action alleging fraud contained only bare and conclusory allegations, without any supporting detail.  Absent that detail, they failed to satisfy the statutory requirements.

Student note:   A cause of action to recover damages for fraud requires allegations of: (1) a false representation of fact, (2) knowledge of the falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) damages.

Case:  Doukas v. Ballard, NY Slip Op 00474 (2d Dept. 2016)

Here is the decision.

Monday's issue:  A lessee/sublessor's liability.

A double-parked vehicle, negligence, and proximate cause.

Practie point:  The Appellate Division reversed the motion court, and denied plaintiff's motion for partial summary judgment on the issue of liability in this action where plaintiff's vehicle was double-parked, in violation of 34 RCNY 4-08(f)(1), when it was struck by defendants' vehicle as that vehicle attempted to pass plaintiff's car. Plaintiff failed to show that his own negligence in double-parking his car in the traveling lane was not a proximate cause of the accident.

Student note:  The Appellate Division rejected, as a matter of law, plaintiff's assertion that the fact that his vehicle was double-parked merely furnished the occasion for the accident.

Case:  Brito v. RDJ Express Transp., NY Slip Op 00594 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  Dismissal of a fraud claim.

CPLR 3408 and negotiating in good faith.

Practice point:  CPLR 3408 is a remedial statute, enacted in response to the 2008 mortgage crisis, which requires that the parties enter into and conduct negotiations in good faith. In this mortgage foreclosure action, the Appellate Division affirmed the denial of defendant's motion to dismiss  as a sanction for plaintiff's alleged failure to negotiate in good faith. The Appellate Division determined that the documentation defendant submitted in support of her motion did not establish that plaintiff failed to negotiate in good faith by refusing to accept defendant's proposal of a lump sum payment of in full satisfaction of the outstanding loan balance.

Student note:  The issue of whether a party failed to negotiate in good faith' within the meaning of CPLR 3408(f) will be determined by considering whether the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution.

Case:  Deutsche Bank Natl. Trust Co. v. Twersky, NY Slip Op 00473 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  A double-parked vehicle, negligence, and proximate cause.

Premature summary judgment motions.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion even though it was made before defendant produced a witness  for deposition.  Defendant established prima facie that plaintiff's slip and fall on ice was not due to any negligence on its part by submitting a departmental director's affidavit stating that defendant operated a bus route with a stop at the subject location but did not "own, manage, maintain, operate, or control any bus stops."  Plaintiff failed to make a showing that discovery might lead to relevant evidence supporting her claim that defendant owned or was responsible for removing snow and ice from the accident location.

Plaintiff could not argue that defendant breached a common carrier's duty to provide a safe means of ingress, because plaintiff did not plead this theory of liability in her notices of claim.

Case:  Cruz v. City of New York, NY Slip Op 00586 (1st Dept. 2016)

Here is the decision.

Tomorrow's issue:  CPLR 3408 and negotiating in good faith.