Summary judgment in a mortgage foreclosure action.

Practice point:  The moving plaintiff establishes a prima facie case through the production of the mortgage, the unpaid note, and evidence of default.  If the defendant puts standing at issue, the plaintiff must prove its standing in order to be entitled to relief.  A plaintiff has standing if, at the time the action is commenced, it is the holder or assignee of the underlying note.

Student note:  Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.

Case:  Bank of Am., N.A. v. Martinez, NY Slip Op 06422 (2d Dep't September 13, 2017)

Here is the decision.

Determining damages for pain and suffering.

Practice point:  When the interval between the injury and death is relatively short, the elements to be considered include the degree of consciousness, the severity of pain, and the apprehension of impending death,

Case:  Matter of 91st St. Crane Collapse Litig., NY Slip Op 06419 (1st Dep't September 12, 2017)

Here is the decision.

A retaliation claim under Labor Law § 741.

Practice point:  The Appellate Division reversed the motion court's finding that plaintiff's statutory retaliation claim is completely barred by collateral estoppel. The issue of whether defendant hospital terminated plaintiff doctor because she reported inadequate medical care to her supervisors, and later, the Department of Health was not at issue in the prior administrative proceedings and related article 78 proceeding, and was not necessarily decided in the prior proceedings.

In the prior proceedings it was determined that plaintiff had engaged in professional incompetence on three occasions, and that defendant did not fabricate the allegations, but there was no express or implied ruling that defendant terminated her employment on the basis of that incompetence, or whether in terminating her, defendant had impermissibly retaliated against her for whistleblowing.

Student note:  While collaterel estoppel does not otherwise bar litigation of the retaliation claim, plaintiff is precluded from relitigating the three instances of incompetence found in the prior proceedings.

Case:  Mehulic v. New York Downtown Hosp., NY Slip OP 06416 (1st Dep't September 12, 2017)

Here is the decision.

Invoking a forum selection clause against a non-signatory.

Practice point:  Under New York law, a signatory to a contract may invoke a forum selection clause against a non-signatory if the non-signatory is so closely related to one of the signatories that enforcement of the clause is foreseeable.

Student note:  The rationale behind binding closely related entities to the forum selection clause is that it promotes stable and dependable trade relations.

Case:  Universal Inv. Advisory SA v. Bakrie Telecom PTE, Ltd., NY Slip Op 06344 (1st Dep't August 29, 2017)

Here is the decision.

Tomorrow's issue:  A retaliation claim under Labor Law § 741.

Sufficiency of service.

Practice point:  Service was proper where the process server attempted to effect service of the landlord's termination notice at the tenant's residential building during reasonable business hours and non-business hours, on two different days.  As the process server could get no closer to the tenant's apartment than the building's front door, after repeatedly ringing the doorbell to the apartment, he affixed the notice conspicuously to the building's front door and subsequently complied with the mailing requirement.

Case:  Matter of 322 W. 47th St. HDFC v. Loo, NY Slip Op 06403 (1st Dep't September 5, 2017)

Here is the decision.

Tomorrow's issue: Invoking a forum selection clause against a non-signatory.

A multiple dwelling's owner's duty of care.

Practice point:  Pursuant to Multiple Dwelling Law § 78[1], the owner is responsible for exercising reasonable care in keeping the property, including the wiring, in good repair.

Student note:  A property owner has a non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others.

Case:  Daly v. 9 E. 36th LLC, NY Slip Op 06404 (1st Dep't September 5, 2017)

Here is the decision.

Monday's issue: Sufficiency of service.

Moving for summary judgment in a negligence action.

Practice point:  A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the accident.

Student note:  Since there can be more than one proximate cause of an accident, it is for the trier of fact to determine the issue of proximate cause.

Case:  Searless v. Karczewski, NY Slip Op 06393 (2d Dep't August 30, 2017)

Here is the decision.

Tomorrow's issue:  A multiple dwelling's owner's duty of care.

Ambiguous contracts.

Practice point  To be found ambiguous, a contract must be susceptible of more than one commercially reasonable interpretation.  Whether there is an ambiguity must be determined by examining the entire contract and considering the parties'  relation and the circumstances under which the contract was executed, with the wording to be considered in the light of the obligation as a whole and the intention of the parties as manifested thereby.

Student note:  In any question of the interpretation of a written contract, the objective is to determine what is the intention of the parties as derived from the language employed.

Case:  Perella Weinberg Partners LLC v. Kramer, NY Slip Op 06341 (1st Dep't August 29, 2017)

Here is the decision.

Tomorrow's issue:  Moving for summary judgment in a negligence action.

A claim for breach of fiduciary duty.

Practice point:  The elements of the cause of action are (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages directly caused by the defendant's misconduct. The claim must be pleaded with particularity under CPLR 3016(b).

Student note:  A fiduciary relationship arises when one is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation. It is grounded in a higher level of trust than normally present in the marketplace between those involved in arm's length business transactions.

Case:  Saul v. Cahan, NY Slip Op 06390 (2d Dep't August 30, 2017)

Here is the decision.

Tomorrow's issue:  Ambiguous contracts.

Court holiday.

                                        Triangle Shirtwaist Factory 1911

Striking a pleading.

Practice point:  The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery is willful and contumacious. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse.

Student note:  The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court.

Case:  Schiller v. Sunharbor Acquisition I, LLC, NY Slip Op 05866 (2d Dep't July 26, 2017)

Here is the decision.

Tuesday's issue:  A claim for breach of fiduciary duty.