Resoving a fact issue on a motion for a preliminary injunction.

Practice point:  The Appellate Division modified the motion court's denial of plaintiff's motion for a preliminary injunction, and vacated so much of the order as deemed defendant the owner of the premises and directed entry of a money judgment for use and occupancy. The Appellate Division determined that, in deciding the motion, the court erred in resolving a factual issue.

Student note:  Before a court may treat a motion addressed to the pleadings as a summary judgment motion, it must give notice to the parties.

Case:  Solomon-Cox v. Expert Bldrs. 26, Inc., NY Slip Op 01044 (1st Dept. 2016)

Here is the decision.

Monday's issue:  A petition to annul an agency's termination of employment.

Res ipsa, and summary judgment denied.

Practice point:  The Appellate Division affirmed denial of defendant's summary judgment motion in this action for damages after plaintiff allegedly was injured by a falling picture frame as she was entering a room inside office space leased by defendant.

Plaintiff pled that defendant was liable under a theory of common-law negligence and the doctrine of res ipsa loquitur.  Defendant failed to make the requisite showing of its entitlement to judgment as a matter of law, as the evidence submitted in support of the motion failed to establish, prima facie, that defendant lacked exclusive control over the picture frame.  Defendant also failed to establish that it was entitled to summary judgment on the ground that the picture frame, as it was positioned on the date of the accident, did not constitute a dangerous condition, or that defendant did not create a dangerous condition.

Student note:  As defendant failed to establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to plaintiff to raise a triable issue of fact.

Case: Assil v. Camba, Inc., NY Slip Op 00914 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Resolving a fact issue on a motion for a preliminary injunction.

Standing in a mortgage foreclosure action.

Practice point:  By submitting evidence that the note was in its possession and the mortgage had been assigned to it prior to the commencement of the action, the plaintiff made a showing sufficient to deny that branch of the defendants' 3211(a)(3) motion to dismiss for lack of standing.

Student note:  A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note. The plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the action. On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law. To defeat the motion, a plaintiff must submit evidence which raises a question of fact as to its standing.

Case:  Arch Bay Holdings, LLC-Series 2010B v. Smith, NY Slip Op 00913 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue: Res ipsa, and summary judgment denied.

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.