Dismissal based on the belated disclosure of a videotape.

Practice point:  The Appellate Division reversed the Supreme Court and reinstated the complaint in this action where plaintiff allegedly tripped and fell on wires laid across the floor at a banquet hall leased and operated by defendant.

At her deposition, plaintiff testified that a video was shot of the party. During discovery, when defendants requested production of any photographs taken at the time of the alleged accident, plaintiff responded that she did not have any. At trial, during cross-examination, plaintiff testified that, on the previous day, she had searched her home and found a video of the party. Plaintiff gave the video to her attorney around noon that day but the attorney did not notify the court and defendants until nearly 4:00 p.m., during plaintiff's cross-examination.

The Appellate Division found that, under these circumstances, the court abused its discretion in dismissing the complaint due to plaintiff's belated disclosure of the video. While CPLR 3101(i) requires, upon demand, disclosure of "any films, photographs, video tapes or audio tapes," there is insufficient evidence of willful or contumacious conduct on plaintiff's part, or of prejudice to defendant, so as to warrant the dismissal of the complaint in the midst of the jury trial.

There was no court order directing plaintiff to produce the video, and defendant's discovery demands only requested that plaintiff produce photographs.  Plaintiff did not seek to introduce the edited video, which did not show her fall, at trial. In fact, she was willing to consent to its preclusion, the striking of her testimony concerning its existence, and a curative instruction, even though she believed the video to be favorable to her because it showed a cord across the floor and one of defendant's principals standing in the vicinity.

Student note:  Prior to trial, the parties entered into a high-low agreement as to damages. As the dismissal was reversed, the agreement will be enforced at trial.

Case:  Cox v. Grand Slam Banquet Hall, NY Slip Op 05897 (1st Dep't August 25, 2016)

Here is the decision.

Tomorrow's issue:  A fall from an elevated display platform.

Aggrieved parties and the right to appeal.

Practice point:  The order was not based on defendant's default but on the merits, after consideration of the parties' arguments. Therefore, defendant is an aggrieved party and may appeal the motion court's determination.

Student note:  CPLR 5511 limits the right to appeal to aggrieved parties.

Case:  Abushihadeh v. Bravo, NY Slip Op 05843 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Dismissal based on the belated disclosure of a videotape.

Alleged ineffective assistance of counsel.

Practice point:  In a civil litigation, an attorney's errors or omissions are binding on the client, and, in the absence of extraordinary circumstances, the court will not entertain a claim of ineffective assistance of counsel.

Case:  HBJOBaron Assoc. v. Leahing, NY Slip Op 05793 (2d Dep't August 17, 2016)

Here is the decision.

Monday's issue:  Aggrieved parties and the right to appeal.

Company policy manuals as enforceable obligations.

Practice point:  Provisions in company policy manuals that can be amended or withdrawn unilaterally do not constitute enforceable obligations owing from an employer to its employees, absent a showing of the employer's regular practice of providing the benefits now claimed, the employee's knowledge of the practice, and the employee's reliance upon the practice as evidenced by accepting or continuing employment as a result thereof.

Case:  Cohen v. National Grid USA, NY Slip Op 05786 (2d Dep't August 17, 2016)

Here is the decision.

Tomorrow's issue:  Alleged ineffective assistance of counsel.

Waiving the issue of standing in a mortgage foreclosure action.

Practice point:  When the homeowner did not raise the affirmative defense of standing in his answer or in a pre-answer motion to dismiss the complaint, he waived the issue. Where the defendant in a mortgage foreclosure action waives the issue of standing, the plaintiff need not establish its standing in order to demonstrate its prima facie entitlement to judgment as a matter of law.

Student note:  Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default.

Case:  Bank of N.Y. Trust Co., N.A. v. Chiejina, NY Slip Op 05784 (2d Dep't August 17, 2016)

Here is the decision.

Tomorrow's issue:  Company policy manuals as enforceable obligations.

Vacating a default pursuant to CPLR 5015.

Practice point:  CPLR 5015(a)(1) requires a movant seeking to vacate a default to move within one year of entry of the default and to show both a reasonable excuse for the default and a meritorious defense.  Here, the Appellate Division found that law office failure was a reasonable excuse, noting that, at oral argument, the movant conceded that, in this e-filed case, their office failed to regularly check its email and, as a result, was unaware of the motion court's order that gave rise to the default.  This excuse was sufficiently particularized, and there is no evidence of wilful or contumacious conduct.

Additionally, movant demonstrated a meritorious defense. Petitioner was a probationary employee who was arrested and charged with DWI while still on probationary status. His commercial driver's license, a requirement for a sanitation worker, was suspended and then revoked as a result. Several disciplinary complaints were filed as a result of this incident, and he was subsequently terminated.

Student note:  A probationary employee may be discharged without a hearing or a statement of reasons, in the absence of a demonstration that the termination was made in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law.

Case:  Matter of Rivera v. New York City Dept. of Sanitation, NY Slip Op 05837 (1st Dep't August 18, 2016)

Tomorrow's issue:  Waiving the issue of standing in a mortgage foreclosure action.

Non-employers, joint employers, and employment discrimination claims.

Practice point:  In determining whether an ostensible non employer is actually a joint employer for purposes of employment discrimination claims under the State and City Human Rights Laws,  Federal District courts in New York have applied the "immediate control" test.  Under the test, there is a joint employer relationship where there is sufficient evidence that the defendant had immediate control over the other company's employees, especially the defendant's control in setting the terms and conditions of the employee's work.

Student note:  In applying the test, relevant factors include commonality of hiring, firing, discipline, pay, insurance, records, and supervision,  The most important factor is the extent of the employer's right to control the means and manner of the worker's performance.

Case:  Brankov v. Hazzard, NY Slip Op 05778 (1st Dep't August 11, 2016)

Here is the decision.

Tomorrow's issue:  Vacating a default pursuant to CPLR 5015.

CPLR 3126 and discovery violations.

Practice point:  The drastic remedy of striking a pleading pursuant to CPLR 3126 will not be imposed unless the failure to comply with discovery demands or orders is willful and contumacious. Similarly, precluding a party from presenting evidence requires a showing of willful and contumacious conduct. Such conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply over an extended period of time.

Student note:  The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of the motion court.

Case:  Cioffi v. S.M. Foods, Inc., NY Slip Op 05741 (2d Dep't August 10, 2016)

Here is the decision.

Monday's issue: Non-employers, joint employers, and employment discrimination claims.

Statue of limitations on an alleged violation of Rule 105 of Regulation M of the Securities Exchange Act.

Practice point:  A breach of fiduciary duty claim based on an alleged violation of Rule 105 of Regulation M of the Securities Exchange Act of 1934 is subject to a three-year rather than a six-year statute of limitations.

Student note:  The issue of the statute of limitations may be considered for the first time on appeal because it does not depend on a matter outside the record.

Case:  Beach v. Touradji Capital Mgt., LP, NY Slip Op 05757 (1st Dep't August 11, 2016)

Here is the decision.

Tomorrow's issue: CPLR 3126 and discovery violations.

Oral agreements and indefiniteness.

Practice point:  An oral agreement may be enforceable as long as the terms are clear and definite and the conduct of the parties evinces mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. However, not all terms of a contract need be fixed with absolute certainty, and courts will not apply the doctrine of indefiniteness to defeat the reasonable expectations of the parties in entering into the contract.

Student note:  Where there may exist an objective method for supplying the missing terms needed to calculate the alleged compensation owed to a plaintiff, a claimed oral agreement is not, as a matter of law, unenforceable for indefiniteness.

Case:  Kramer v. Greene, NY Slip Op 05776 (1st Dep't August 11, 2016)

Here is the decision.

Tomorrow's issue: Statue of limitations on an alleged violation of Rule 105 of Regulation M of the Securities Exchange Act.

A chain collision accident.

Practice point:  In a chain collision accident, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle.

Student note:  A driver shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway, pursuant to Vehicle and Traffic Law § 1129 [a]. So, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision.

Case:  Chuk Hwa Shin v. Correale, NY Slip Op 05749 (2d Dep't August 10, 2016)

Tomorrow's issue:  Oral agreements and indefiniteness.