CPLR 203(d) and equitable recoupment on a counterclaim.

Practice point:  Under CPLR 203(d), claims and defenses that arise out of the same transaction as a claim asserted in the complaint are not barred by the statute of limitations, even though an independent action by the defendant might have been time-barred at the time the action was commenced. This provision allows a defendant to assert an otherwise untimely claim which arose out of the same transactions alleged in the complaint, but only as a shield for recoupment purposes, and does not permit the defendant to obtain affirmative relief. Here the Appellate Division found that the defendant's counterclaim alleging legal malpractice relates to the plaintiff's performance under the same retainer agreement pursuant to which the plaintiff would recover, and therefore the counterclaim falls within the permissive ambit of CPLR 203(d).  However, the counterclaim is permitted only to the extent that it seeks to offset any award of legal fees to the plaintiff and not to the extent that it seeks affirmative relief.

Student note:  The Appellate Division affirmed dismissal of the counterclaim alleging breach of contract, as it is duplicative of the counterclaim alleging legal malpractice. This counterclaim is based on the same factual allegations that underlie the malpractice counterclaim and does not allege distinct damages.

Case:  Balanoff v. Doscher, NY Slip Op 04896 (2d Dep't June 22, 2016)

Here is the decision.

Tomorrow's issue:  An ineffective expert affirmation in a medical malpractice action.

An equitable estoppel defense.

Practice point:  The Appellate Division affirmed dismissal of the defamation claim as time-barred.  Plaintiff failed to establish that the doctrine of equitable estoppel bars defendants from asserting a statute of limitations defense to his claims. He contends that defendants' fraud and misrepresentations prevented him from discovering defendants' identity, not that he was lulled into inaction by defendants in order to allow the statute of limitations to lapse. Neither does plaintiff allege a fiduciary relationship between himself and defendants.

Student note:  The Appellate Division noted that, in any event, plaintiff's allegations that he acted diligently in bringing this action are refuted by the two open letters he published. The letters demonstrate that plaintiff had sufficient knowledge to bring an action for more than a year before he commenced this action.

Case:  Bacon v. Nygard, NY Slip Op 05028 (1st Dep't June 23, 2016)

Here is the decision.

Tomorrow's issue:  CPLR 203(d) and equitable recoupment on a counterclaim.

July 4th Weekend

A fall on a wet staircase.

Practice point:  The Appellate Division affirmed denial of defendant's summary judgment motion in this action where plaintiff alleges that, as he was returning to a show at defendant-theater after having gone outside during intermission, he slipped on a wet staircase, causing him to sustain injuries. The evidence submitted by defendant was insufficient to establish prima facie that it lacked constructive notice of the alleged water hazard. Although defendant described its general cleaning routines at the theater, it failed to offer specific evidence as to its activities on the day of the accident, including evidence indicating the last time the staircase was inspected or maintained before plaintiff fell.

Student note:  The Appellate Division noted that, in any event, in opposition, plaintiff raised an issue of fact as to notice of the alleged wet condition and whether defendant had adequate time to remedy the condition, based on his testimony that he told an usher prior to going outside of the theater at intermission that the area was wet, and when he returned 15 minutes later, he slipped and fell in the same area.

Case:  Sada v. August Wilson Theater, NY Slip Op 05024 (1st Dep't June 23, 2016)

Here is the decision.

Tuesday's issue: An equitable estoppel defense.

CPLR 308(4) and the due diligence standard.

Practice point:  Service pursuant to CPLR 308(4), which allows for affixing the summons to the door of the place of business, dwelling place, or usual place of abode, with other prerequisites, may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence.

Student note:  "Due diligence" is not defined in the statutory framework, and the term has been interpreted and applied on a case-by-case basis.

Case:  Amtrust-NP SFR, Venture, LLC v. Emmel, NY Slip Op 04894 (2d Dep't June 23, 2016)

Here is the decision.

Tomorrow's issue:  A fall on a wet staircase.

A fall from a ladder and a Labor Law § 240(1) claim.

Practice point:  The Appellate Division rejected defendants' argument that plaintiff was required to demonstrate that the ladder was defective in order to satisfy his burden as to the Labor Law § 240(1) claim. It is sufficient for purposes of liability under section 240(1) that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent. As there is no evidence that plaintiff was a recalcitrant worker or that he was not engaged in covered activity, it is sufficient for his claim that his injuries were the direct consequence of using a ladder that did not provide adequate protection.

Student note:  It is irrelevant whether plaintiff fell because the ladder wobbled or because he dropped his wrench.  It is clear that the ladder did not prevent plaintiff from falling and there is no dispute that no safety devices, other than the ladder, were provided.

Case:  Hill v. City of New York, NY Slip Op 05019 (1st Dep't June 23, 2016)

Here is the decision.

Tomorrow's issue:  CPLR 308(4) and the due diligence standard.

Denial of a motion to renew.

Practice point:  The Appellate Division affirmed the denial of the motion, noting that movant's supporting papers were properly rejected by the motion court as they were submitted for the first time in the reply papers. In addition, movant offered no justification whatsoever as to why he did not obtain the new evidence in time to submit it in opposition to the original motion, and did not assert that he made any effort, let alone a diligent effort, to obtain this new evidence, which was readily available.

Student note:  Denial of a motion to reargue is not appealable.

Case:  Amtrust-NP SFR Venture, LLC v. Vazquez, NY Slip Op 04871 (1st Dep't June 21, 2016)

Here is the decision.

Tomorrow's issue:  A fall from a ladder and a Labor Law § 240(1) claim.

Res judicata and a judgment of foreclosure and sale.

Practice point:  A judgment of foreclosure and sale is final as to all questions at issue between the parties, and concludes all matters of defense which were or could have been litigated in the foreclosure action.

Student note:  Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party.

Case:  Ciraldo v. JP Morgan Chase Bank, N.A., NY Slip Op. 04686 (2d Dep't June 15, 2016)

Here is the decision.

Tomorrow's issue:  Denial of a motion to renew.

Vacatur of a default judgment denied.

Practice point:  The Appellate Division reversed, and denied the motion to vacate. For one thing, defendants failed to demonstrate a reasonable excuse for their default. Defendants' counsel never substantiated or explained the nature of the "serious family matter" that purportedly caused the default. At most, counsel had an ex parte communication with the motion court about the facts of the action, and, during that communication, may or may not have revealed the facts surrounding the alleged family matter. This ex parte communication is an insufficient basis upon which to vacate a default judgment, especially where, as here, the details of the communication are not known.

Defendants also failed to explain why their counsel's family matter was so serious that it kept him from either interposing an answer or responding to plaintiff's motion for a default judgment.  The record contains no adequate explanation for why the law firm representing defendants failed to communicate with plaintiff's counsel for nearly five months, even to inform counsel that a family emergency prevented defendants from timely responding to the litigation. In addition, two attorneys, only one of whom was affected by a family emergency, were representing defendants, and defendants do not explain why the other attorney representing them could not have taken the necessary steps to advance the litigation.

For another thing, defendants' assertion that they were entitled to a premium payment because they executed and posted a bail bond does not present a meritorious defense to plaintiff's action. Although execution of the bond is a condition precedent for retaining a premium payment, defendants failed to present any documentary evidence that they had actually executed and posted any bond. Neither did defendants present any evidence that the motion court ever conducted an examination of surety.

Student note:  While there is a strong public policy in favor of disposing of cases on their merits, this policy does not relieve a party moving to vacate a default from satisfying the two-pronged test of showing both (1) a reasonable excuse for the default; and (2) a meritorious defense to the action.

Case:  Johnson-Roberts v. Ira Judelson Bail Bonds, NY Slip Op 04785 (1st Dep't June 16, 2016)

Here is the decision.

Monday's issue:  Res judicata and a judgment of foreclosure and sale.

Obtaining a preliminary injunction.

Practice point:  To obtain a preliminary injunction, the moving party must establish, by clear and convincing evidence, the following: (1) a likelihood of success on the merits; (2) irreparable injury absent the injunction; and (3) that the equities balance is in the movant's favor.

Student note:  The decision to grant or deny the injunction lies within the sound discretion of the Supreme Court.

Case:  Chase Home Fin., LLC v. Cartelli, NY Slip Op 04685 (2d Dep't June 15, 2016)

Here is the decision.

Tomorrow's issue: Vacatur of a default judgment denied.

A 3211(a)(7) motion to dismiss.

Practice point:  Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one.  Unless it has been shown that a material fact claimed by the plaintiff is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the complaint should not be dismissed.

Student note:  Affidavits submitted in support of the motion may not be examined for the purpose of determining whether there is evidentiary support of the pleading.

Case:  Anglero v. Hanif, NY Slip Op 04683 (2d Dep't June 15, 2016)

Here is the decision.

Tomorrow's issue:  Obtaining a preliminary injunction.