A late notice of claim is deemed timely served.

Practice point:  The Appellate Division determined that the Supreme Court providently exercised its discretion in granting the petition and deeming the late notice of claim to be timely served, pursuant to General Municipal Law § 50-e[5]. The petitioner demonstrated a reasonable excuse for the delay in serving a notice of claim, namely, her physical incapacity and her attorney's investigation into the claim.  In addition, the petitioner adequately demonstrated that the defendant would not be substantially prejudiced by the delay.

Case:  Matter of Pazienza v. Westchester County Health Care Corp., NY Slip Op 05863 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  The doctrine of laches.

Judicial review under the New York Human Rights Law.

Practice point:  Under the statute, the scope of judicial review is extremely narrow and is confined to the consideration of whether the New York State Division of Human Rights' determination is supported by substantial evidence in the record.  Substantial evidence is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.  While it is more than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence, or evidence beyond a reasonable doubt.

Student note:  A court may not weigh the evidence or reject agency's determination where the evidence is conflicting and there is room for choice.

Case:  Matter of Briggs v. New York State Div. of Human Rights, NY Slip Op 05860 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  A late notice of claim is deemed timely served.

Legal malpractice.

Practice point:  To recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. In order to establish causation, a plaintiff must show that, but for the lawyer's negligence, he or she would have prevailed in the underlying action or would not have incurred any damages.

Student note:  In order to prevail on a summary judgment motion, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements.

Case:   Silverman v. Potruch & Daab, LLC, NY Slip Op 05857 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Judicial review under the New York Human Rights Law.

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.