A request for an adjournment of the return date and for an extension of time to file an opposition

The granting of an adjournment for any purpose rests within the sound discretion of the Supreme Court, and its determination will not be disturbed absent an improvident exercise of that discretion. In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors. It is not an improvident exercise of discretion to deny an adjournment where the need for such a request is based on the movant's failure to exercise due diligence. In addition, while a court has the discretion to grant an extension of time to file opposition papers, it must be upon a showing of good cause, pursuant to CPLR 2004, and the delinquent party must offer a valid excuse for the delay.

Here, the Supreme Court did not improvidently exercise its discretion in denying plaintiffs' request for the adjournment and extension.  They made no showing of good cause because they did not offer a valid excuse for the extension, and the record reflected that the need for an adjournment resulted from a lack of due diligence on their part.

Case:  Adotey v. British Airways, PLC, NY Slip Op 08341 (2d Dep't December 14, 2016)

Here is the decision.

Tomorrow's issue:  Wheel stops and liability.

The relaton back doctrine.

The Appellate Division reversed the motion court and dismissed the complaint in this action stemming from a personal injury action that settled.  After the statute of limitations had elapsed, pursuant to CPLR 214(5), plaintiff filed this action.

Plaintiff's reliance on the relation back doctrine to render this independent action timely is unavailing, since he is not seeking to amend a pleading in a timely-commenced action, pursuant to CPLR 203[f].

Plaintiff would have the complaint relate back to the date of a complaint filed against him in a prior action or, alternatively, to the date of his answer in that prior action, which did not itself assert any counterclaims.  There is no authority supporting such an expansion of the relation back doctrine.

Case:  Davis v. Sanseverino, NY Slip Op 08321 (1st Dep't December 13, 2016)

Here is the decision.

Tomorrow's issue:  A request for an adjournment of the return date and for an extension of time to file an opposition.

A property owner's liability under Labor Law § 240(1).

In determining an owner's statutory liability, the issue of whether plaintiff was employed by some other entity is of no import, as long as it is undisputed that plaintiff, on the day of the accident, was allowed to work on the premises. The owner is liable for a statutory breach even if the owner did not supervise or control the work being performed, and despite the fact that the injured person injured was an independent contractor engaged to do the work.

Case:  Vera v. Low Income Mktg. Corp., NY Slip Op 08318 (1st Dep't December 13, 2016)

Here is the decision.

Tomorrow's issue:  The relation back doctrine.

Dismissal of claims pursuant to CPLR 3215(c).

Practice point:  The defendant did not waive the right to seek dismissal pursuant to CPLR 3215(c) by moving to vacate the default and for leave to serve a late answer. A defendant may waive the right to seek a dismissal by serving an answer or taking any other steps that may be seen as a formal or informal appearance. However, a CPLR 3012(c) motion for leave to serve an untimely answer does not constitute either a formal appearance, pursuant to CPLR 320, or an informal appearance, pursuant to CPLR 3012(d).

Case:  HSBC Bank USA, N.A. v. Grella, NY Slip Op 08199 (2d Dep't December 7, 2016)

Here is the decision.

Tomorrow's issue:  A property owner's liability under Labor Law § 240(1).

Plaintiff's standing in a note action.

Once defendant made plaintiff's standing an issue, it was plaintiff's burden to establish standing by showing physical possession of the note prior to commencement of the action. Plaintiff attached the note, which was annexed to the certificate of merit, to its complaint. While the averments in the certificate of merit were insufficient to establish delivery and possession, the fact that the note was in plaintiff's possession at the time of commencement, as evidenced by its attachment to the complaint, was sufficient.

Case:  Deutsche Bank Natl. Trust Co. v. Umeh, NY Slip Op 08305 (1st Dep't December 8, 2016)

Here is the decision.

Monday's issue:  Dismissal of claims pursuant to CPLR 3215(c).

An award for unpaid legal fees.

The addition of prejudgment interest to plaintiff's award for unpaid legal fees under quantum meruit was mandatory, pursuant to CPLR 5001. As plaintiff was required to move to withdraw, it was required to continue to zealously represent defendants until the court granted its motion, pursuant to Rule 1.16[d], [e], and so the award should consider any value for plaintiff's work from the time it moved by order to show cause to withdraw. This is particularly true here, where plaintiff sought, but was denied, an adjournment of the trial date, and the court took six months to grant the application.

Case:  Davidoff Hutcher & Citron LLP v. Smirnov, NY Slip Op 08296 (1st Dep't Deember 8, 2016)

Here is the decision.

Tomorrow's issue: Plaintiff's standing in a note action.

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).