A motion to strike an answer.

In an action to recover damages for personal injuries and wrongful death, the Appellate Division found that, in the absence of evidence that the defendant willfully and contumaciously failed to appear for deposition, the Supreme Court improvidently exercised its discretion in conditionally striking her answer.  Under the circumstances, the appropriate remedy was to preclude defendant from offering any testimony at trial unless she appeared for a deposition at least 30 days before the trial.

Case:  Brodsky v. Amber Ct. Assisted Living, LLC, NY Slip Op 00955 (2d Dep't February 8, 2017)

Here is the decision.

Tomorrow's issue:  Compiling the appellate record.

Liability under Labor Law § 241(6).

Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers. In order to recover damages on a cause of action alleging a statutory violation, a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards, and must demonstrate that the injuries were proximately caused by the violation of an Industrial Code provision that is applicable under the circumstances of the case. Contributory and comparative negligence are valid defenses to a Labor Law § 241(6) claim.

Practice point:  A party is not entitled to recovery under Labor Law § 241(6) based on a violation of 12 NYCRR 23-1.7(e) (1) where the object he or she tripped over was an integral part of the construction.

Case:  Aragona v. State of New York, NY Slip Op 00954 (2d Dep't February 8, 2017)

Here is the decision.

Tomorrow's issue:  A motion to strike an answer.

Court holiday.

Announcement of Candidacy for the Illinois Legislature March 1832

Fellow-Citizens: I presume you all know who I am. I am humble Abraham Lincoln. I have been solicited by many friends to become a candidate for the Legislature. My politics are short and sweet, like the old woman's dance. I am in favor of a national bank. I am in favor of the internal improvement system, and a high protective tariff. These are my sentiments and political principles. If elected, I shall be thankful; if not it will be all the same.

Note:  In a field of thirteen candidates, of whom the top four were elected, he finished eighth. In his home district of New Salem, of 300 votes cast, he received 277.

__________________________________________

Tomorrow's issue: Liability under Labor Law § 241(6).

Appealing a sua sponte order.

Practice point:  There is no right to appeal from a sua sponte order. Neither is there a right to appeal from a judgment based on a sua sponte order.

Case:  Livathinos v. Vaughan, NY Slip Op 00920 (1st Dep't February 7, 2017)

Here is the decision.

Tuesday's issue:   Liability under Labor Law § 241(6).

An expert's affidavit in a medical malpractice action.

The Appellate affirmed dismissal, finding that the motion court properly determined that defendants made a prima facie showing that plaintiff's decedent did not sustain an intraventricular hemorrhage as a result of a fall at the hospital. In opposition, plaintiff failed to raise a triable issue of fact, as her expert never addressed the assertion by defendants' expert that there was no radiological evidence of trauma.

Practice point:  Plaintiff's expert omitted facts regarding the rise in decedent's blood pressure just before her fall, thus failing to base his opinion on all relevant record evidence; this deficiency renders the opinion insufficient.  While plaintiff's expert posited that trauma to the front or lateral aspect of the head could cause the bleeding observed, the expert failed to adduce any evidence as to what, if any, portion of decedent's head was actually struck. Accordingly, the opinion is too speculative to raise an issue of fact. Moreover, plaintiff's expert's conclusion that the location of the bleed suggested head trauma was based on hindsight reasoning — that is, the expert used the injury itself as a basis to assume that certain conditions must have existed at the time of the injury. This reasoning is insufficient to defeat summary judgment.

Case:  Montilla v. St. Luke's-Roosevelt Hosp., NY Slip Op 00717 (1st Dep't February 2, 2017)

Here is the decision.

Tomorrow's issue:   Appealing a sua sponte order.

Liability for injuries arising from a defective sidewalk, and city-owned tree wells.

Practice point:  Effective September 14 2003, Administrative Code of the City of New York § 7-210 shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner, absent certain exceptions. A tree well does not fall within the applicable Administrative Code definition of "sidewalk" and, thus, section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells.

Case:  Antonyuk v. Brightwater Towers Condo Homeowners' Assn., Inc., NY Slip Op 00619 (2d Dep't February 1, 2017)

Here is the decision.

Tomorrow's issue:  An expert's affidavit in a medical malpractice action.

Vacating a default judgment.

Practice point:  Pursuant to CPLR 5015 (a), a court may vacate a default judgment for excusable neglect; newly-discovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order.  However, CPLR 5015(a) does not provide an exhaustive list as to when a default judgment may be vacated, and a court may vacate its own judgment for sufficient reason and in the interests of substantial justice.

Case:  40 BP, LLC v. Katatikarn, NY Slip Op 00618 (2d Dep't February 1, 2017)

Here is the decision.

Tomorrow's issue:  Liability for injuries arising from a defective sidewalk, and city-owned tree wells.

Discovery sanctions.

The Appellate Division reversed the Supreme Court's Order which marked as withdrawn plaintiff's motion to strike the answer, denied an extension of time for discovery, marked the case off the calendar, and permitted either party, after discovery, to restore the matter to the trial ready calendar by notice of motion application only, and remanded the action.

While a court has broad discretion to supervise disclosure, the Appellate Division found that there was no basis for striking this case from the calendar as a sanction for the parties' failure to timely complete discovery.  Dismissal of a pre-note of issue case may be predicated on CPLR 3216 and Uniform Rules for Trial Courts (22 NYCRR 202.27), neither of which applies here.

Trial courts must fashion discovery orders consistent with their obligation to bring discovery to an end as quickly as possible. Marking a case off or striking a case during the discovery phase does not further that obligation because it only encourages inaction by the parties and counsel in completing discovery. Ultimately, marking a case off during discovery leads to unnecessary motion practice, loss of valuable time for discovery, and a waste of judicial resources.

Case:  Stewart v. Makhani, NY Slip Op 00577 (1st Dep't January 31, 2017)

Tomorrow's issue:  Vacating a default judgment.

Declaratory judgments.

Practice point:  A declaratory judgment is intended to declare the respective parties' legal rights based on a given set of facts, not to declare findings of fact. It is intended to serve a practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations.  It requires a justiciable controversy, in which the plaintiff has an interest sufficient to constitute standing to maintain the action. In addition, the controversy must involve actual prejudice to the plaintiff, not hypothetical, contingent, or remote prejudice.

Case:  Touro Coll. v. Novus Univ. Corp., NY Slip Op 00546 (1st Dep't January 26, 2017)

Here is the decision.

Monday's issue: Discovery sanctions.

Resolving the issue of probable cause as a matter of law.

The Appellate Division affirmed the motion court's finding that there was an issue of fact regarding probable cause for plaintiff's search, seizure, and arrest, precluding summary judgment on the federal claims of false arrest, false imprisonment, and illegal search and seizure. The indictment is some evidence that the arresting officer had probable cause to arrest plaintiff. However, the evidence was suppressed, the indictment was dismissed, and the testimony conflicts as to what the officer observed in the moments preceding his interaction with and subsequent arrest of plaintiff.

Case:  Burgos-Lugo v. City of New York, NY Slip Op 00534 (1st Dep't January 26, 2017)

Here is the decision.

Tomorrow's issue:  Declaratory judgments.

A CPLR 5015(a)(3) motion to vacate a judgment of foreclosure and sale.

The Appellate Division affirmed the order denying defendant's motion to vacate the judgment that was entered upon its failure to answer the complaint, and for leave to serve a late answer, finding that the motion was not made within a reasonable time after entry of the judgment.  In any event, defendant failed to demonstrate a reasonable excuse for the default, which is required when a CPLR 5015(a)(3) motion alleges intrinsic fraud, that is, that the allegations in the complaint are false, rather than extrinsic fraud, which is a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter. Defendant failed to demonstrate some device, trick, or deceit that led it to believe that it need not defend the suit. Finally, despite the defendant's allegations of improper practices by plaintiff's agents in unrelated matters, it failed to meet its burden of establishing fraud, misrepresentation, or other misconduct on the part of the plaintiff in this matter that could warrant vacatur of the default judgment.

Case:  LaSalle Bank N.A. v. Oberstein, NY Slip Op 00462 (2d Dep't January 25, 2018)

Here is the decision.

Tomorrow's issue:  Resolving the issue of probable cause as a matter of law.