A cause of action for defamation.

The elements of the cause of action are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se.  The complaint must set forth the particular words allegedly constituting defamation, pursuant to CPLR 3016[a], and it must also allege the time, place, and manner of the false statement and specify to whom it was made.  (see Dillon v City of New York, 261 AD2d at 38).

There is a one-year statute of limitations that accrues when the allegedly defamatory statements are originally uttered, pursuant to CPLR 215[3].

Case:  Arvanitakis v. Lester, NY Slip Op 08191 (2d Dep't December 7, 2016)

Here is the decision.

Tomorrow's issue:  An award for unpaid legal fees.

A municipality's liability for allegedly defective road conditions.

A municipality that has adopted a prior written notice law is not iable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies. The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality.

The municipality's actual or constructive notice of the allegedly defective condition does not satisfy the prior written notice requirement.

Case:  Dutka v. Odierno, NY Slip Op 08196 (2d Dep't December 7, 2016)

Here is the decision.

Tomorrow's issue:  A cause of action for defamation.

The storm in progress rule.

Under the rule, a property owner is not responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.  If the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and the rule will not be applied.

A property owner who clears a sidewalk during a storm in progress must act with reasonable care and may be liable if its efforts create a hazardous condition or exacerbate a natural hazard created by the storm.  The failure of a defendant to remove all of the snow and ice, without more, does not establish that the defendant increased the risk of harm.

Case:  Aronov v. St. Vincent's Hous. Dev. Fund Co., Inc., NY Slip Op 08190 (2d Dep't December 7, 2016)

Here is the decision.

Tomorrow's issue:  A municipality's liability for allegedly defective road conditions.

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.