A 306-b motion to extend the time to serve.

Practice point:  The Appellate Division affirmed the granting of that branch of plaintiffs' cross motion, pursuant to CPLR 306-b and in the interest of justice, to extend the time to serve defendant. While the action was timely commenced, the statute of limitations had run when plaintiffs cross-moved for relief.  Plaintiffs re-served defendant within a reasonable time after learning that defendant was challenging service as defective, and defendant had actual notice of the action within 120 days of its commencement.

Case:  Rivera v. Rodriguez, NY Slip Op 05855 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Legal malpractice.

Liability for an independent contractor's negligent acts.

Practice point:  A party who retains an independent contractor, as distinguished from an employee or servant, is not liable for the independent contractor's negligent acts.  There are exceptions to this general rule, one of which is applicable where the party is under a duty to keep the premises safe. In that instance, as the legal duty is non-delegable, the party is vicariously liable for the the independent contractor's fault. 

Case:  Pesante v. Vertical Indus. Dev. Corp., NY Slip Op 05854 (2d Dep't August 24, 2016)

Here is the decision.

Monday's issue:  A 306-b motion to extend the time to serve.

A defendant-movant's burden in a negligence action.

Practice point:  A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the accident.

Student note:  There can be more than one proximate cause of an accident, and, generally, it is for the trier of fact to determine the issue of proximate cause.

Case:  Hurst v. Belomme, NY Slip Op 05849 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Liability for an independent contractor's negligent acts.

Reformation of a contract.

Practice point:  A party seeking reformation by reason of mistake must establish, with clear and convincing evidence, that the contract was executed under mutual mistake or a unilateral mistake induced by the other party's fraudulent misrepresentation. In a case of mutual mistake, the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement.

Student note:  Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but to restate the intended terms of an agreement when the writing that memorializes that agreement is at odds with the parties' intent.

Case:  Gunther v. Vilceus, NY Slip Op 05847 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  A defendant-movant's burden in a negligence action.

Establishing standing in a mortgage foreclosure action.

Practice point:  A plaintiff establishes its standing by demonstrating that, when the action is commenced, it is either the holder or assignee of the underlying note.  Either a written assignment or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt.

Student note:  Where a defendant raises the issue of standing, a plaintiff must prove its standing in order to be entitled to relief.

Case:  Deutsche Bank Natl. Trust Co. v. Cunningham, NY Slip Op 05845 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Reformation of a contract.

Court holiday.

An alleged breach of a construction contract.

Practice point:  A construction contract is breached, and the resulting cause of action accrues, upon substantial completion of the work, even if some work is completed at a later date.

Case:  W&W Steel, LLC v. Port Auth. of N.Y. & N.J., NY Slip Op 05900 (1st Dep't August 25, 2016)

Here is the decision.

Tuesday's issue:  Establishing standing in a mortgage foreclosure action.

Setting aside a foreclosure sale.

Practice point:   In the exercise of its equitable powers, a court may aside the sale where there is evidence of fraud, collusion, mistake, or misconduct that casts suspicion on the fairness of the sale.  Evidence of a unilateral mistake at the sale, without more, is not a basis to invalidate the sale if it was otherwise lawfully conducted.

Student note:  RPAPL 231(6), recites, in pertinent part, that a court, within one year after a foreclosure sale, "may set the sale aside for failure to comply with the provisions of this section as to the notice, time or manner of such sale if a substantial right of a party was prejudiced by the defect."

Case:  Clinton Hill Holding 1, LLC v. Kathy & Tania, Inc., NY Slip Op 05844 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  An alleged breach of a construction contract.

A fall from an elevated display platform.

Practice point:  The Appellate Division reversed the motion court and dismissed the complaint in this action where plaintiff alleges that she was injured when she fell off an elevated display platform in defendants' store. Defendants submitted evidence demonstrating that the platform and steps leading to the platform were not dangerous conditions, as photographs showed that the steps of the platform were clearly demarcated with thick black lines which contrasted with the light color of the floorboards. The evidence also established that the steps were lighted and free of debris.

In addition, plaintiff testified that she turned and stepped without looking down because she was looking for a sales associate, and that the steps played no part in her fall.

Student note:  Defendants met their initial burden of showing that they neither created a dangerous condition at the platform and steps, nor had actual or constructive notice of such a condition.

Case:  Pinkham v. West Elm, NY Slip Op 05899 (1st Dep't August 25, 2016)

Here is the decision.

Tomorrow's issue:  Setting aside a foreclosure sale.

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.