A motion for leave to serve an amended notice of claim.

Practice point:  The Appellate Division found that the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion for leave to serve an amended notice of claim, and reversed.  The Appellate Division found nothing in the record to suggest that the plaintiff acted in bad faith or attempted to change the location of her fall, as she gave a consistent description of the location of her fall in her notice of claim, in her testimony at the General Municipal Law § 50-h hearing held pursuant to,  and in her complaint. When the plaintiff served the defendant with a notice of claim, she attached a photograph of the accident-site. When she moved for leave to amend, she attached additional photographs which depicted the same intersection viewed from different angles. If there were any inconsistency between the original description of the location of the plaintiff's fall and the description provided in the amended notice of claim, it did not prejudice the defendant.

Student note:  A notice of claim must state the time when, the place where and the manner in which the claim arose.  Its purpose is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available. The statutory requirements are met when the notice describes the accident with sufficient particularity so as to enable the defendant to conduct a proper investigation thereof and to assess the claim's merits. A court may, in its discretion, allow a mistake, irregularity, or defect in the notice to be corrected as long as that mistake, irregularity, or defect was made in good faith and the public corporation was not prejudiced thereby.

Case: Avery v. New York City Tr. Auth., NY Slip Op 02770 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  A livery cab, an accident, and summary judgment.

Sanctions for destruction of evidence.

Practice point:  A party's willful and prejudicial destruction of evidence warrants the sanction of striking its pleadings.  Where a party disposes of evidence without moving for a protective order, a negative inference may be drawn that the destruction was willful. Willfulness may also be inferred from a party's repeated failure to comply with discovery directives.

Student note:  The Appellate Divison has upheld the striking of pleadings where the destruction of critical evidence occurs through ordinary negligence.

Case:  Chan v. Cheung, NY Slip Op 02731 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A motion for leave to serve an amended notice of claim.

Appliction of the relation-back doctrine.

Practice point:  There are three conditions that a plaintiff must satisfy before claims against one defendant may relate back to claims asserted against another: (1) both claims must arise out of the same conduct, transaction, or occurrence; (2) the new party must be united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new party either knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well.

Student note:  To establish the requisite unity of interest, the plaintiff had to show that their interest in the subject matter of the action is such that the defendants stand or fall together, and that a judgment against one would similarly affect the other.  If the relationship between the defendants is such that one may have a defense not available to the other, they are not united in interest. In addition, interests are united only where one defendant is vicariously liable for the acts of the other.

Case:  Berkeley v. 89th Jamaica Realty Co., L.P., NY Slip Op 02640 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Sanctions for destruction of evidence.

Application of the storm in progress rule.

Practice point:  Under the rule, a property owner is not responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence including the affidavit of a meteorologist, certified climatological data, and the affidavit of a licensed engineer. That evidence demonstrated that the roof of the shed partially collapsed due to the weight of the accumulated snow, and that it was snowing at the time of the occurrence and, therefore, that so the storm in progress rule applies. The burden then shifted to the plaintiff to raise a triable issue of fact as to whether the precipitation from the storm in progress was not the cause of the accident. The plaintiff failed to sustain this burden, and the Appellate Division affirmed the granting of the defendants' motion for summary judgment dismissing the complaint.

Student note:  A lull in the storm does not impose a duty to remove the accumulation of snow or ice before the storm ceases in its entirety.

Case:  Baker v. St. Christopher's Inn, Inc., NY Slip Op 02600 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Application of the relation-back doctrine.

Leave to amend denied.

Practice point:  The Appellate Division affirmed, finding that the IAS court did not abuse its discretion in denying plaintiff leave to amend to add claims of injuries to her left foot. While plaintiff was aware of the injury to her left foot for more than three years, she inexplicably delayed in seeking her expert's opinion on the issue of causation, and then further delayed in filing the instant motion. As the evidence ultimately relied upon by plaintiff's expert was developed in 2009 and 2011, well before plaintiff filed her note of issue in 2012, the motion was untimely.

Student note:  The decision to permit an amendment to a pleading or bill of particulars, especially on the eve of trial, is committed to the sound discretion of the IAS court.

Case:  Reuling v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 02707 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Application of the storm in progress rule.

CPLR 7511 and arbitration awards.

Practice point:  The Appellate Division rejected the petitioner's contention that the arbitrator exceeded his authority, and affirmed the arbitrator's award.  An arbitrator exceeds his or her authority only if the arbitrator gives a completely irrational construction to the provisions in dispute. Here, the Appellate Division determined that it was not irrational for the arbitrator to find that the broad arbitration clause of the subject personal management agreement, which contained a carve-out for the "collection of any past due monies," pertained only to disputes that were delinquent but not genuinely disputed, and that the determination of amounts owing could be determined by the arbitrator.

Nor was the arbitrator's determination in disregard of the law or so abusive of his discretion as to constitute misconduct. Petitioners were not denied a fair hearing because the arbitrator accepted respondent's position on commissions as expressed in her affidavit, which was supported by the documentary evidence submitted in response to petitioner's extensive interrogatories. There was no need for a deposition to determine respondent's credibility; the arbitrator had the opportunity to make that assessment at the arbitration hearing.

Student note:  The standard for vacating an arbitration award under CPLR 7511 is clear and convincing evidence.

Case:  Matter of Greenky v. Aytes, NY Slip Op 02714 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Leave to amend denied.

An attorney's withdrawal.

Practice point:  The Appellate Division reversed the motion court, finding that it improvidently exercised its discretion in denying the unopposed renewed motion for leave to withdraw as plaintiffs' counsel. The attorney established that plaintiffs were in substantial arrears in the payment of legal fees, and failed to cooperate in their representation.  In addition, plaintiffs did not oppose the motion for leave to withdraw as their counsel.

Student note:  An attorney may be permitted to withdraw from employment where a client refuses to pay reasonable legal fees, pursuant to Rules of Professional Conduct 1.16[c][5].  In addition, an attorney may withdraw from representing a client if the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively, pursuant to Rules of Professional Conduct 1.16[c][7].

Case:  Aragona v. Shaibani, NY Slip Op 02598 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  CPLR 7511 and arbitration awards.

Expert testimony and jury delibertions.

Practice point:  The jury is entitled to resolve in plaintiff's favor the conflict between the parties' expert witness testimony.  While defendant's expert reached a different conclusion as to causation, the jury is free to accord more weight to the testimony of plaintiff's expert.

Student note: The jury's resolution of the conflicting expert testimony is not a basis for an appellate court's disturbing the verdict.

Case:  Douayi v. Carissimi, NY Slip Op 02563 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  An attorney's withdrawal.

The death of a party.

Practice point:  The death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a legal representative for the decedent, pursuant to CPLR 1015(a).  Any determination rendered without the necessary substitution will be deemed a nullity.

Student note:  The death of a party terminates the authority of that person's attorney to act on that person's behalf.

Case:  Aurora Bank FSB v. Albright, NY Slip Op 02307 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Expert testimony and jury deliberations.

Summary judgment in a slip-and-fall action.

Practice point:  The defendant's maintenance employee testified at his deposition about his regular cleaning routine for the building, but he had no independent recollection of having cleaned the floor on the date of the plaintiff's accident.  There was no deposition testimony describing the condition, including whether the maintenance employee had seen water on the floor.  Since the defendant did not submit evidence regarding any specific inspection or cleaning of the area on the date of the accident, the defendant failed to establish that it did not have constructive notice of the alleged dangerous condition.  In addition, the defendant's submissions did not eliminate all triable issues of fact as to whether it created the alleged dangerous condition.  Therefore, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, and the Appellate Division affirmed the denial of the defendant's motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers.

Student note:  A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.  To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall. Mere reference to general cleaning practices, without evidence of any specific cleaning or inspection of the area, does not establish lack of constructive notice.

Case:  Ansari v. MB Hamptons, LLC, NY Slip Op 02305 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  The death of a party.

A motion to dismiss, and amending a bill of particulars.

Practice point:  The Appellate Division affirmed the motion to dismiss, as photographic evidence proves, and plaintiff acknowledges, that the compressor that was allegedly involved in plaintiff's accident was not at the job site on the day alleged. Plaintiff was not entitled to amend the bill of particulars on the eve of trial, after approximately seven years of litigation, since the photographs serving as the basis for the amendment were not newly available to plaintiff. Moreover, the proposed amendment, including changing the date of the accident, would have resulted in prejudice to defendants  

Student note:  Leave to amend pleadings, including a bill of particulars, will be freely given, absent prejudice or surprise. However, when the amendment is sought at or on the eve of trial, judicial discretion in allowing the amendment should be discreet, circumspect, prudent, and cautious.

Case:  Garguilo v. Port Auth. of N.Y. & N.J., NY Slip Op 02534 (1st Dep't 2016) 

Here is the decision.

Tomorrow's issue:  Summary judgment in a slip-and-fall action.