A cause of action for defamation.

Practice point:  The Appellate Division found that plaintiff, an attorney, could not prevail on his claim to recover damages for defamation, and granted the motion to set aside the jury verdict. The cause of action was based on allegations that the wife-defendant told her husband-defendant that plaintiff threatened her and their children, and that the defendants told third parties about the threat.

The Appellate Division stated that because the defendants are spouses, the communications between them do not constitute publication. Therefore, even if the wife's statement were a substantial factor in causing plaintiff to lose legal work, that statement is not actionable. In addition, plaintiff failed to prove that, as a result of defendants' statements, he suffered special harm, namely, the loss of something having economic or pecuniary value.

Student note:  Pursuant to CPLR 4401 or 4404, a motion for judgment as a matter of law may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the jury's conclusion, and no rational process by which the jury could find in favor of the nonmoving party.  In considering the motion, the court must afford the nonmovant every inference which may properly be drawn from the facts presented, and the facts themselves must be considered in a light most favorable to the nonmovant.

Case:  Gaccione v. Scarpinato, NY Slip Op 01640 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Statute of frauds and quantum meruit.

Motions to dismiss for failure to prosecute.

Practice point:  The Appellate Division reversed and denied the individual defendant's motion, finding that plaintiff's failure to file a note of issue within 90 days of the CPLR 3216 demand was the result of defendant's non-compliance with the notices to take its employee's deposition and for an inspection of its premises.

Student note:  The corporate defendant's cross motion to dismiss was denied, as it did not serve its own 90-day notice.

Case:  Walker v. Gibbons, NY Slip Op 01590 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A cause of action for defamation.

The doctrine of spoilation.

Practice point:  Under the common-law doctrine, a party may be sanctioned where it negligently loses or intentionally destroys key evidence.  The party seeking sanctions must demonstrate that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to prove its claim or defense.  The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence.  It may impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation.

Student note:   The Appellate Division will substitute its judgment for that of the Supreme Court only if that court's discretion was improvidently exercised.

Case:  Doviak v. Finkelstein & Partners, LLP, NY Slip Op 01636 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Motions to dismiss for failure to prosecute.

A claim of professional negligence and the "reasonable person" standard of liability.

Practice point:  In order to determine whether there is  liability, a jury must compare the defendant's conduct to that of a reasonable person under similar circumstances.  Where the case consists exclusively of facts whose significance could be readily understood by laypersons, the jurors are expected to apply their ordinary judgment and practical experience in order to determine what a reasonably prudent person would have done under the particular circumstances of the case, and whether the defendant deviated from that standard of care.

However, New York recognizes a subtle distinction between this general "reasonable person" standard and the standard to be applied when a defendant with special training or experience in a trade or profession acted in that capacity.  A person who undertakes to render services in the practice of a profession or trade will be held to the level of skill and care used by others in the community who practice the same profession or trade.  A claim of professional negligence requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury.

The degree of skill and care that must be exercised may be established through evidence of the general customs and practices of others who are in the same business or trade as that of the alleged tortfeasor.  This may be established by presenting the testimony of an expert who has demonstrated knowledge of the relevant standards of care in the trade or profession at issue.  Such expert testimony is admissible not only to explain highly technical medical or surgical questions, but also to clarify a wide range of issues calling for the application of accepted professional standards.

Student note:  In tort cases, a threshold question is whether the alleged tortfeasor owed a duty of care to the injured party, and the existence and scope of the duty is a question of law. 

Case:  Abrams v. Bute, NY Slip Op 01627 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  The doctrine of spoilation.

Civil liability resulting from the operation of an emergency vehicle.

Practice point:  The manner in which a police officer operated his or her vehicle in responding to an emergency may form the basis of civil liability to an injured third party if the officer acted in reckless disregard for the safety of others.

Student note:  The 'reckless disregard' standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.

Case:  Foster v. Suffolk County Police Dept., NY Slip Op 01639 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: A claim of professional negligence and the "reasonable person" standard of liability.

Failure to establish negligent misrepresentation, and a claim of ineffective assistance of counsel.

Practice point:  The Appellate Division affirmed the granting of defendant's CPLR 4401 motion for judgment as a matter of law made at the close of plaintiff's case, as, upon the evidence presented, there was no rational process by which the trier of fact could make a finding in favor of plaintiff. A cause of action alleging negligent misrepresentation requires a plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information.  Here, plaintiff failed to establish the second two elements of her cause of action.

Student note:  The Appellate Division rejected plaintiff's contention that she was deprived of the effective assistance of counsel at trial.  In the context of civil litigation, a claim of ineffective assistance of counsel will not be entertained absent extraordinary circumstances, and, here,  plaintiff failed to establish the existence of any extraordinary circumstances to warrant entertaining such a claim.

Case:  Nugent v. Diocese of Rockville Ctr., NY Slip Op 01473 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Civil liability resulting from the operation of an emergency vehicle.

A third-party contractor's negligence and summary judgment.

Practice point:  The Appellate Division reversed, and granted plaintiff's cross motion for partial summary judgment on the issue of liability in this action where he was injured when a television monitor and its bracket fell on him from the wall to which they had been mounted. Plaintiff submitted evidence, including the deposition testimony of defendant's employees, the affidavit of a construction expert, and the instruction manual for installation of the monitor bracket, showing that defendant negligently installed the bracket. In opposition, defendant failed to raise a triable issue of fact.  Specifically, it did not proffer an expert who contradicted plaintiff's expert, and, instead, offered only unsupported speculation that was insufficient to rebut plaintiff's showing.

Student note:  Defendant's status as a third-party contractor does not protect it where, as here, it launched a force or instrument of harm.

Case:  Jean-Francois v. Port Auth. of N.Y. & N.J., NY Slip Op 01558 (1st Dep't 2016)

Here is the decision.

Monday's issue:  Failure to establish negligent misrepresentation, and a claim of ineffective assistance of counsel.

Thrown from a horse, and a loss on summary judgment.

Practice point:  The Appellate Division reversed, and granted defendants' motion for summary judgment in this action where plaintiff was injured when she was thrown from a horse during a recreational ride at the stable operated by defendant equestrian center. The risk of a horse acting in an unintended manner resulting in the rider being thrown is a risk inherent in the sport of horseback riding, and there is no evidence that defendant stable was reckless. Neither is there evidence of concealed or unreasonably increased risks.

The Appellate Division found that defendant New York City, which owned and operated the park in which plaintiff rode, is also entitled to dismissal, as the bridle path had no defects contributing to the accident.

Student note:   Plaintiff's expert's opinion was conclusory, since it did not rely on any rules, regulations, laws or industry standards, and therefore, it fails to raise a triable issue of fact. Plaintiff's theory that defendant New York City owed her a duty based upon the licensing agreement it issued to the stable is unavailing since the City had no involvement with the operation of the stable, and the agreement contained no provision that would make plaintiff a third-party beneficiary of it.

Case:  Blumenthal v. Bronx Equestrian Ctr., Inc., NY Slip Op 01545 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A third-party contractor's negligence and summary judgment.

Motions to renew and to dismiss for failure to timely serve a complaint.

Practice point:  The Appellate Division affirmed the granting of that branch of plaintiff's motion which was for leave to renew his opposition to the motion to dismiss for failure to timely serve the complaint, finding that plaintiff's excuse of law office failure was reasonable under the circumstances.

The Appellate Division also found that, upon renewal, and considering all the circumstances of this case, the CPLR 3012(b) motion was properly denied..Plaintiff proffered a reasonable excuse for his delay in serving the complaint after being served with a notice of appearance and demand for a complaint, and established that he had a potentially meritorious cause of action.

Student note:  While a motion for leave to renew generally must be based on newly-discovered facts, the requirement is a flexible one, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion. What is considered a reasonable justification is within the Supreme Court's discretion, and  law office failure can be accepted as a reasonable excuse..

Case:  Castor v. Cuevas, NY Slip Op 01456 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Thrown from a horse, and a loss on summary judgment.

An insured's delay in giving notice.

Practice point:  Where an insurance policy requires that notice of an occurrence be given "as soon as practicable," notice must be given within a reasonable time in view of all of the circumstances. However, circumstances may exist that will excuse or explain the insured's delay in giving notice, such as a reasonable belief in nonliability.  It is the insured's burden to demonstrate the reasonableness of the excuse.

Student note:  In general, whether there existed a good faith belief that the injured party would not seek to hold the insured liable, and whether that belief was reasonable, are questions of fact for the fact-finder. Summary judgment may be granted in favor of the insurer only if the evidence, construing all inferences in favor of the insured, establishes as a matter of law that the insured's belief in nonliability was unreasonable or in bad faith.

Case:  Aspen Ins. UK Ltd. v. Nieto, NY Slip Op 01449 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Motions to renew and to dismiss for failure to timely serve a complaint.

The sufficiency of a notice of claim.

Practice point:  The Appellate Division affirmed the denial of defendants' motion to dismiss and the granting of plaintiff's cross motion for leave to amend the notice of claim. The Appellate Division found that the motion court properly determined that the original notice of claim, together with the photographs provided by plaintiff showing broken cement barriers strewn over the sidewalk and roadway at the accident location, sufficiently set forth the location and manner of his accident to satisfy the requirements of General Municipal Law § 50-e(2), since they provided information sufficient to enable the city to investigate the claim.

Student note:  The amended notice of claim, clarifying the location and manner of the alleged accident, was properly permitted pursuant to General Municipal Law § 50-e(6), since the City did not show any prejudice, or assert that plaintiff acted in bad faith.

Case:  Weiss v. City of New York, NY Slip Op 01267 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  An insured's delay in giving notice.