Emergeny operations, auto accidents, and statutory privilege.

The Appellate Division affirmed defendants' motion for summary judgment, finding that defendant police officer was operating a police vehicle while performing an emergency operation and did not recklessly disregard the safety of others before the accident happened.

Practice point:  The fact that defendant was mistaken in believing that plaintiff was stopping her vehicle when he passed through the red light does not make his conduct reckless. Defendant testified that, as he approached the intersection, he reduced his speed and looked left and right, and that he was traveling approximately 10 miles above the speed limit when the accident occurred.  Defendant tried to avoid colliding with plaintiff by braking hard and turning the steering wheel to the right upon realizing that plaintiff's vehicle had entered the intersection.

Student note:  The question of whether the police vehicle's lights and siren were activated is immaterial because defendant was not required to activate either of these devices in order to be entitled to the statutory privilege of driving through the red light.

Case:  Lewis v. City of New York, NY Slip Op 07785 (1st Dep't November 9, 2017)

Here is the decision.

CPLR 4401

Practice point: The granting of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party.  In considering the motion, the evidence must be viewed in the light most favorable to the nonmoving party, and the court must afford the nonmoving party every inference which may properly be drawn from the facts presented.

Case:  Canale v. L & M Assoc. of N.Y., Inc., NY Slip Op 07701 (2d Dep't November 8,2017)

Here is the decision.

Statute of limitations as a bar to a malpractice claim.

Practice point:  In seeking to assert the statute of limitations, a moving defendant must demonstrate, prima facie, that the time within which the plaintiff could commence the cause of action has expired. If the movant satisfies its burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable. The continuous representation doctrine may toll the statute.  A prerequisite for the application of the doctrine is that the relationship be continuous with respect to the matter in which the malpractice is alleged.  A general professional relationship involving only routine contact is insufficient.  In addition, the doctrine applies only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.

Case:  Collins Bros. Moving Corp. v. Pierleoni, NY Slip Op 07586 (2d Dep't November 1, 2017)

Here is the decision.

Court holiday.

Accountants as fiduciaries.

Practice point:  Accountants are not fiduciaries as to their clients except where the accountants are directly involved in managing the client's investments.

Case:  Herrmann v.  CohnReznick LLP, NY Slip Op 07688 (1st Dep't November 2, 2017)

Here is the decision. 

Past consideration.

Practice point:  Past consideration is no consideration and cannot support an agreement because the detriment did not induce the promise.  Since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise.

There is an exception where the past consideration is explicitly recited in a writing. To qualify for the exception, the description of the consideration must not be vague or imprecise, and extrinsic evidence may not be used to assist in understanding the consideration.

Student note:  General Obligations Law (GOL) § 5-1105 states,  "A promise in writing and signed by the promisor or by his agent shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed."

Case:  Korff v. Corbett, NY Slip Op 07677 (1st Dep't November 2, 2017)

Here is the decision.

Court holiday.

Entry of judgment.

Practice point:  Pursuant to CPLR 3215(c), if a plaintiff does not enter the judgment within one year after the default, the court will dismiss the complaint as abandoned. While the statutory language is not discretionary, plaintiff's failure may be excused on a showing of reasonable excuse and a potentially meritorious claim.

Student note:  The defendant may waive the right to dismissal by serving an answer or taking any other step that might be viewed as a formal or informal appearance.

Case:  Bank of Am., N.A. v. Rice, NY Slip Op 07581 (2d Dep't November 1, 2017)

Here is the decision.

General Business Law § 349 - Deceptive Acts and Practices Unlawful.

The Appellate Division reversed, and dismissed the claim of a statutory violation, finding that this was a private contract dispute unique to the parties.  Even if defendant engaged in consumer-oriented conduct by posting statements on its website, those statements were not likely to mislead a reasonable consumer.  In addition, if the statements were deceptive, they did not cause plaintiff's injury. Plaintiff's alleged injury was caused by defendant's specific acts and omissions, such as failing to provide constructible drawings, re-designing the apartment's windows and doors without authorization, and failing to coordinate the project.

Case:  Loeb v. Architecture Work, P.C., NY Slip Op 07551 (1st Dep't October 31, 2017)

Here is the decision.

The element of cause in a slip-and-fall action.

Plaintiff allegedly was injured when she slipped and fell in the defendant-restaurant. Plaintiff could not identify the cause of her fall, but stated, at her deposition, that it "could have been grease from the kitchen." The Appellate Division affirmed dismissal.

Practice point:  In a slip-and-fall case, a plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Case:  Cross v. Friendship Rest. Group, LLC, NY Slip Op 07428 (2d Dep't October 25, 2017)

Here is the decision.

An apartment fire.

Practice point: Defendant established entitlement to judgment as a matter of law in this wrongful death action arising from a fire that occurred in an apartment occupied by plaintiff's decedent, and owned and maintained by defendant. Defendant submitted evidence establishing that there was an operable smoke detector in decedent's apartment three months prior to the fire, and that it had not received any complaints about the smoke detector.  In opposition, plaintiff failed to raise a fact question as to whether the smoke detector was inoperable at the time of the fire, or whether defendant had actual or constructive notice that the detector was inoperable.

Case:  Keene v. New York City Housing Authority, NY Slip Op 07536 (1st Dep't October 26, 2017)

Here is the decision.