Interposing a defense waived under CPLR 3211(e).

Practice point:  Defenses waived under CPLR 3211(e) can be interposed in an answer amended by leave of the court pursuant to CPLR 3025(b). In the absence of prejudice or surprise resulting directly from the delay in seeking leave, these applications will be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. A determination whether to grant  leave is within the Supreme Court's broad discretion, and the exercise of that discretion likely will not be disturbed on appeal.  In exercising its discretion, the court will consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated and whether the movant has offered a reasonable excuse for the delay.

Case:  Civil Serv. Empls. Assn. v. County of Nassau, NY Slip Op 08038 (2d Dep't November 30, 2016)

Here is the decision.

Monday's issue:  The storm in progress rule.

A forensic examination of a computer system.

The Appellate Division affirmed the denial of the motion to appoint an expert to conduct a forensic examination of plaintiff's computer system.  A court may order discovery of electronically stored information where the party seeking the discovery makes a showing that includes that the files sought can actually be obtained by the methods suggested. Here, though, defendants do not seek any particular document, but, instead, an examination of plaintiff's drives to determine whether any documents exist that have not been exchanged or obtained from third parties. Although defendants had also previously sought to determine when particular invoices were created, plaintiff has admitted that they were all created together, outside of its accounting program, and backdated, mooting that basis for forensic examination of plaintiff's system.

Case:  Shop Architects, P.C. v 25th St. Art Partners LLC, NY Slip Op 08121 (1st Dep't December 1, 2016)

Here is the decision.

Tomorrow's issue:  Interposing a defense waived under CPLR 3211(e).

Denial of a motion to join actions.

The Appellate Division affirmed denial of the motion to join three unrelated actions for trial: a motor vehicle negligence action, a premise liability action, and a medical malpractice action. When Supreme Court decided the motion, the motor vehicle negligence action was ready for trial, while the other two actions were still in discovery. Where actions are at completely different procedural postures with one ready for trial and the other in discovery, denial of a joint trial is appropriate, as it would unduly delay the resolution of the older action.

In addition, the cases involve different facts, witnesses, claims, injuries, and defendants. As such, individual issues predominate so as to preclude the direction of a joint trial.

Case:  Gillard v. Reid, NY Slip Op 08120 (1st Dep't December 1, 2016)

Here is the decision.

Tomorrow's issue:  A forensic examination of a computer system.

The preclusive effect of res judicata.

Practice point:  The doctrine of res judicata precludes a party from relitigating a claim that has been finally adjudicated on the merits. Although, generally, an order granting a motion pursuant to CPLR 3211(a)(7) is not a determination on the merits, such a determination has preclusive effect as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint.

Case:  Blake v. City of New York, NY Slip Op 08036 (2d Dep't November 30, 2016)

Here is the decision.

Tomorrow's issue:  Denial of a motion to join actions.

A motion for leave to renew.

The motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination," and must contain reasonable justification for the failure to present such facts on the prior motion.  It is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation. While law office failure can be accepted as a reasonable excuse in the exercise of the court's sound discretion, the movant must submit supporting facts to explain and justify the failure, and mere neglect is not accepted as a reasonable excuse.

Case:  Assevero v. Rihan, NY Slip Op 08032 (2d Dep't November 30, 2016)

Here is the decision.

Tomorrow's issue:  The preclusive effect of res judicata.

Ladders and the Labor Law.

Plaintiff established his entitlement to partial summary judgment on his Labor Law § 240(1) claim through witnesses' testimony that the ladder from which he was descending suddenly kicked out to the left, resulting in his fall. Contrary to the motion court's finding, plaintiff was not required to demonstrate that the ladder was defective in order to satisfy his prima facie burden.

In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident. Plaintiff was not responsible for setting up the ladder, and there was no testimony establishing the existence of any other readily available, adequate safety devices at the work site. In addition, given the undisputed testimony that the ladder kicked out because it was unsecured, the testimony that plaintiff unsafely descended from the ladder by carrying pipe fittings in his arms established, at most, contributory negligence, a defense inapplicable to a § 240(1) claim.

Case:  Fletcher v. Brookfield Props., NY Slip Op 08105 (1st Dep't December 1, 2016)

Here is the decision.

Monday's issue: A motion for leave to renew.

Judicial review of an agency's determination.

Practice point:  Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence. Substantial evidence is more than seeming or imaginary, and it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt. The standard demands only that a given inference is reasonable and plausible, not necessarily the most probable.

Case:  Matter of Clan Fitz, Inc. v. New York State Liq. Auth., NY Slip Op 07952 (2d Dep't November 23, 2016

Here is the decision.

Tomorrow's issue: Ladders and the Labor Law.

The penalty for non-compliance with discovery orders.

The Appellate Division affirmed the order which denied plaintiff's motion to strike the answer and ordered defendant to appear for deposition within 30 days or be precluded from testifying.

Practice point:  It is within the trial court's discretion to determine the appropriate penalty for noncompliance with discovery orders, and the sanction will remain undisturbed unless there has been a clear abuse of discretion.

Case:  Devlin v. Desamours, NY Slip Op 07841 (1st Dep't November 22, 2016)

Here is the decision.

Tomorrow's issue: Judicial review of an agency's determination.

A time-barred medical malpractice claim.

The Appellate Division affirmed the granting of defendants' motions for summary judgment dismissing the complaint in this action where plaintiff had presented to defendant, who noted that plaintiff's vision in his right eye was 20/400," or legally blind in that eye. Thereafter, plaintiff presented to defendant approximately once a year for an examination and a prescription for contact lenses. On each occasion, defendant noted the continued existence of nerve pallor and optic neuropathy. Plaintiff saw a neuro-ophthalmologist, who diagnosed him with a meningioma which, he stated, had caused right eye blindness. Plaintiff contends that defendant's failure to diagnose the condition sooner, or to refer him to an ophthalmologist or a neuro-ophthalmologist, constituted malpractice.

Practice point: Supreme Court properly dismissed plaintiff's action on the ground that his claims were barred by the applicable three-year statute of limitations, pursuant to CPLR 214[6]. The continuous treatment doctrine does not operate to toll the statute of limitations because defendant was not engaged in treatment of plaintiff's optic neuropathy, but performed only routine or diagnostic examinations, which, even when conducted repeatedly over a period of time, are not a course of treatment. The measurement of plaintiff's nerve pallor annually did not itself amount to continuous treatment, or reflect any agreement to monitor the condition, but was part of the routine examination.

There was one visit within the statute of limitations, but there is no contention that the failure to diagnose or refer plaintiff on that date proximately caused any further loss of vision or prevented a better outcome.

Case:  Flaherty v. Kantrowich, NY Slip Op 07837 (1st Dep't November 22, 2016)

Here is the decision.

Tomorrow's issue:  The penalty for non-compliance with discovery orders.

Opposing a motion to dismiss for lack of personal jurisdiction.

Practice point:  In opposition to a motion pursuant to CPLR 3211(a)(8) to dismiss a complaint for lack of personal jurisdiction, a plaintiff need only make a prima facie showing that the defendant is subject to the court's jurisdiction of the court. If it appears that facts essential to justify opposition to the motion exist but cannot then be stated, the court may postpone resolution of the issue of personal jurisdiction, pursuant to CPLR 3211[d].

Case:  Chen v. Guo Liang Lu, NY Slip Op 07290 (2d Dep't November 9, 2016)

Here is the decision.

Tomorrow's issue:  A time-barred medical malpractice claim.

Dismissal based on another pending action.

Practice point:  Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same. The court providently exercised its discretion in refusing to dismiss the complaint here. While this action relates to the same properties as the prior, pending action, the plaintiff's allegations here relate to different wrongs, including wrongs of a different nature and wrongs committed at different times, and different damages.

Case:  Brestin v. LaBianca, NY Slip Op 07286 (2d Dep't November 9, 2016)

Here is the decision.

Monday's issue: Opposing a motion to dismiss for lack of personal jurisdiction.