The standard for an employment termination that shocks the conscience.

Practice point:  A result is shocking to the court's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in similar situations, and, therefore, a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved.

Case:  Matter of Beatty v. City of New York,, NY Slip 01628 (1st Dep't March 2, 2017)

Here is the decision.

Tomorrow's issue:  Summary judgment in a slip-and-fall action.

A foreclosure settlement conference.

Practice point:  Pursuant to CPLR 3408(f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution. The purpose of the good faith requirement is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort. Compliance with the good faith requirement is measured by the totality of the circumstances and whether the party's conduct demonstrates a meaningful effort to reach a resolution.

Case:  Aurora Loan Servs., LLC v. Diakite, NY Slip Op 01528 (2d Dep't March 1, 2017)

Here is the decision.

Tomorrow's issue: The standard for an employment termination that shocks the conscience.

A landowner's liability.

Practice point:  A landowner has a duty to maintain the premises in a reasonably safe condition. In determining the extent of that duty, the court must take into account circumstances including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that the landowner affirmatively created the condition or had actual or constructive notice of its existence. A defendant is deemed to have had constructive notice of a defect when (1) the defect was visible and apparent, and (2) it existed long enough for the defendant to have discovered and remedied it before the plaintiff was injured.  When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed.  In moving for summary judgment on the ground that the alleged defect was latent, a defendant must establish, prima facie, that the defect was not visible or apparent and would not have been discoverable upon a reasonable inspection, and that he or she did not affirmatively create the defect and did not have actual notice of it.

Case:  Arevalo v. Abitabile, NY Slip Op 01526 (2d Dep't March 2, 2017)

Here is the decision.

Tomorrow's issue:  A foreclosure settlement conference.

Motions to vacate.

Practice point:  The court may grant a motion to vacate a default on grounds of excusable default and a showing of a meritorious defense, if the motion is made within one year after service of the order entered on default, with written notice of its entry, pursuant to CPLR 5015[a][1].

Case:  Marston v. Cole, NY Slip Op 01489 (1st Dep't February 28, 2017)

Here is the decision.

Tomorrow's issue: A landowner's liability.

Guaranties on a note, and counterclaims.

Plaintiff established prima facie its entitlement to summary judgment on defendants' guaranties of a nonparty's obligations under a loan agreement by submitting evidence of the loan agreement, promissory notes, individual guaranties, and the borrower's and defendants' failure to pay. In opposition, defendants failed to raise an issue of fact.

The claims of breach of contract and negligent interference with collateral are not defenses to the borrower's liability under the loan agreement; they are merely counterclaims. The adjudication of these claims will not affect the borrower's liability for repayment of the amounts borrowed before the breach occurred, although it may entitle the borrower to damages. Because the breach of contract and negligent interference with collateral claims are separate from the borrower's unequivocal and unconditional obligation to repay the monies it was loaned, defendants are still liable under the guaranties and promissory notes.

Case:  Capital One Taxi Medallion Fin. v. Corrigan, NY Slip Op 01488 (1st Dep't February 28, 2017)

Here is the decision.

Monday's issue:  Motions to vacate.

An exception to the best evidence rule.

Practice point:  Under an exception to the best evidence rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith.  Once the absence of an original document is excused, all competent secondary evidence is admissible to prove its contents. However, the proponent of the secondary evidence has a heavy burden of establishing, preliminarily to the court's satisfaction, that it is a reliable and accurate portrayal of the original. So, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original before ruling on its admissibility.

Case:  76-82 St. Marks, LLC v. Gluck, NY Slip Op 01329 (2d Dep't February 22, 2017)

Here is the decision.

Tomorrow's issue:  Guaranties on a note, and counterclaims.

The continuous wrong doctrine.

Practice point:  The continuous wrong doctrine is an exception to the general rule that the statute of limitations runs from the time of the breach, even though the damage occurs later.  Typically, the doctrine is invoked where there is a series of continuing wrongs, and it serves to toll the running of a period of limitations to the date of the commission of the last wrongful act.  If applicable, the doctrine saves all claims for recovery of damages, but only to the extent of wrongs committed within the applicable statute of limitations.

The doctrine may be predicated only on continuing unlawful acts, and not on the continuing effects of earlier unlawful conduct. The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs. The doctrine is inapplicable where there is one tortious act alleged, as the cause of action accrues in those cases at the time that the wrongful act first injured plaintiff, and it does not change as a result of continuing consequential damages. In a contract action, the doctrine extends the statute of limitations when the contract imposes a continuing duty on the breaching party. Thus, where a plaintiff asserts a single breach - with damages increasing as the breach continued - the theory does not apply.

Case:  Henry v. Bank of Am., NY Slip Op 01436 (1st Dep't February 23, 2017)

Here is the decision.

Tomorrow's issue:  An exception to the best evidence rule.

A rear-end collision and summary judgment.

The Appellate Division affirmed the granting of plaintiff's summary judgment motion on the issue of liability, finding that plaintiff established that defendant-driver was negligent. Although plaintiff came to a sudden stop and defendants contend that the icy road conditions provide a valid, non-negligent explanation for the accident, a driver must maintain enough distance between himself and cars ahead so as to avoid collisions with stopped vehicles, taking into account weather and road conditions. Defendants' reliance on the emergency doctrine is misplaced, as defendant-driver was aware of inclement weather conditions and should have accounted for them.

Practice point:  A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the rear vehicle's driver, and imposes a duty on the part of the moving vehicle's operator to offer an adequate, nonnegligent explanation for the accident. An argument that the plaintiff stopped suddenly does not rebut the presumption of negligence.

Case:  Matos v. Sanchez, NY Slip Op 01306 (1st Dep't February 21, 2017)

Here is the decision.

Tomorrow's issue:  The continuous wrong doctrine.

An unsigned expert's report.

Practice point:  The motion court properly considered the report, even though it was unsigned, as it was incorporated into the expert's sworn affidavit, thus rendering it appropriate for consideration on defendant's summary judgment motion.

Case:  Pastabar Café Corp. v. 343 E. 8th St. Assoc., LLC, NY Slip Op 01305 (1st Dep't February 21, 2017)

Here is the decision.

Tomorrow's issue:  A rear-end collision and summary judgment.

Dismissal of an age-based discrimination claim.

The Appellate Division affirmed dismissal in this age-based employment discrimination action brought under the New York State and City Human Rights Laws. In moving for summary judgment, defendant submitted video footage, which it believed showed plaintiff and another employee surveying and intending to purloin a customer's computer equipment, as a legitimate, nondiscriminatory reason for terminating plaintiff.  In response to this showing, plaintiff failed to point to any evidence raising an issue of fact as to whether defendant's proffered reason was pretextual, or whether plaintiff's age otherwise played a part in its decision.

Practice point:   The absence of any evidence of age-based discriminatory animus is fatal to plaintiff's claim of hostile work environment.

Case:  Arifi v. Central Moving & Stor. Co., Inc., NY Slip Op 01268 (1st Dep't February 16, 2017)

Here is the decision.

Monday's issue:  An unsigned expert's report.

Notices of claim.

Practice point: A notice of claim must state the time when, the place where and the manner in which the claim arose, pursuant to General Municipal Law § 50-e[2].  Service of the notice within 90 days after accrual of the claim is a condition precedent to the commencement of a tort action against a municipality or a public benefit corporation such as the Transit Authority. The purpose of the statutory notice requirement is to afford the public corporation an opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available.  The statute is not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones. Therefore, a court may, in its discretion, allow a mistake, irregularity, or defect in a notice of claim to be corrected as long as that mistake, irregularity, or defect was made in good faith and the public corporation was not prejudiced thereby.

Case:  Bowers v. City of New York, NY Slip Op 01174 (2d Dep't February 15, 2017)

Here is the decision.

Tomorrow's issue:  Dismissal of an age-based employment discrimination claim.