The business records exception to the hearsay rule.

Practice point:  In order to demonstrate the admissibility of the records, pursuant to CPLR 4518(a), the affiant must attest that he or she is personally familiar with the record-keeping practices and procedures of the party invoking the exception.

Case:  Bank of N.Y. Mellon v. Alli, NY Slip Op 08501 (2d Dep't December 6, 2017)

Here is the decision.

An evevator accident.

The Appellate Division affirmed denial of defendant's summary judgment motion in this action where plaintiff alleges that she was injured when the elevator in a building owned by defendant fell from the 20th to the 11th floor.  While defendant demonstrated a lack of actual or constructive notice of a defect, plaintiff can rely on the doctrine of res ipsa loquitur to prove negligence.

Practice point:  A free-fall or sudden drop of an elevator does not ordinarily happen in the absence of negligence.

Student note:  Plaintiff submitted evidence to support each of the elements of res ipsa loquitur, namely, (1) that the occurrence would not ordinarily occur in the absence of negligence; (2) that the injury was caused by an agent or instrumentality within the exclusive control of defendant; and (3) that no act or negligence on the plaintiff's part contributed to the happening of the event.  The fact that a passenger activated the emergency stop button does not affect defendant's exclusive control of the elevator.

Case:  Colon v. N.Y. City Hous. Auth., NY Slip Op 08463 (1st Dep't December 5, 2017)

Here is the decision.

Service of process.

Practice point:  Pursuant to CPLR 308(2), service is improper where the process server did not mail the supplemental summons to either of the defendants.  Jurisdiction is not acquired pursuant to the statute unless both the delivery and mailing requirements have been strictly complied with.

Student note:  When the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents.

Case:  Joseph v. AACT Fast Collections Servs., Inc., NY Slip Op 08357 (2d Dep't November 29, 2017)

Here is the decision.

A failed motion to vacate.

The Appellate Division affirmed denial of the motion to vacate the default judgment, rejecting the argument based on CPLR 5015(a)(1). Defendant's opinion that he had not been properly served, and, therefore, was free to ignore the suit, a copy of which he received in the mail, was not reasonable.

Practice point:  A defendant's conclusory denials that service did not occur are insufficient to rebut the presumption of service as detailed in the affidavit of service. Neither are they sufficient to warrant a traverse hearing.

Case:  Colebrooke Theat. LLP v. Bibeau, NY Slip Op 08441 (1st Dep't November 30, 2017)

Here is the decision.

Unjust enrichment.

The cause of action requires a  showing that (1) the defendant was enriched, (2) at the expense of the plaintiff, and (3) that it would be inequitable to permit the defendant to retain that which is claimed by the plaintiff. 

Student note:  The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what the plaintiff seeks to recover.

Case:  Demetriades v. Kalpakis, NY Slip Op 08349 (2d Dep't November 29, 2017)

Here is the decision.

A referee's findings.

Practice point:  Where a referee's findings are supported by the record, the court will confirm the referee's report and adopt the recommendation made therein.  On appeal, the referee's credibility determinations are entitled to deference because the referee was able to see and hear the witnesses and observe their demeanor.

Case:  Chambliss v. University Group Med. Assoc., NY Slip Op 08347 (2d Dep't November 29, 2017)

Here is the decision.

The judicial proceedings privilege.

The Appellate Division affirmed dismissal of the defamation action, finding that the allegedly defamatory statements were pertinent to a previous action brought by defendant against plaintiff, and, therefore, absolutely protected. The statement in defendant's complaint alleging that plaintiff fraudulently awarded himself an employment contract was obviously related to the fraud allegations. The statement regarding the authenticity of a power of attorney related to plaintiff's ability to award himself the contract, and so it was pertinent to the allegation that plaintiff engaged in self-dealing.

Student note:  Public policy favors having litigants speak freely in judicial proceedings.

Case:  Peters v. Coutsodontis, NY Slip Op 08308 (1st Dep't November 28, 2017)

Here is the decision.

A vehicle accident and a negligence claim.

The Appellate Division reversed the motion court and reinstated the complaint in this action where the defendant moved for summary judgment, contending that the plaintiff's violation of Vehicle and Traffic Law § 1141 was the sole proximate cause of the accident. In support of the motion, the defendant submitted the parties' deposition testimony. The defendant attested that she never saw the front of the plaintiff's vehicle, and that when she first saw the plaintiff's vehicle, which was "moving like a snail," she saw the middle part of the vehicle directly ahead of her. Viewing the evidence in the light most favorable to the non-movant plaintiff, the defendant failed to establish, prima facie, her freedom from comparative fault and that the plaintiff's alleged violation of the Vehicle and Traffic Law was the sole proximate cause of the accident.

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.

Case:  Aponte v. Vani, NY Slip Op 08252 (2d Dep't November 22, 2017)

Here is the decision.

A dismissed breach of contract claim.

The Appellate Division affirmed dismissal because defendant cannot establish the elements of either breach or damages. Defendant does not allege that the contract required plaintiff to employ any particular security measures, so plaintiff was required only to exercise precautions consistent with industry standards. Plaintiff submitted an affidavit from an experienced industry professional, who opined that the measures it took, namely, keeping the molds in a locked storage room supervised by an on-site employee, were "standard in the industry." The affidavit submitted by defendant in opposition did not set forth any different standard, and, therefore, failed to raise an issue of fact.

Regarding damages, defendant's representative admitted that he was "not aware of any particular instances of sales of jewelry pieces manufactured from the counterfeit models."

Practice point:  Defendant's theory that the jewelry styles corresponding to the counterfeited models failed to meet projected sales is unduly speculative.

Case:  Apogee Handcraft, Inc. v. Verragio, Ltd., NY Slip Op 08178 (1st Dep't November 21, 2017)

Here is the decision. 

Promissory notes and contract law.

Practice point:   Where there is a valid contract, a plaintiff cannot recover in quasi contract for events arising out of the same subject matter.

Student note:  A promissory note is enforceable under the traditional principles of contract law.

Case:  Amrusi v. Nwaukoni, NY Slip Op 07970 (2d Dep't November 16, 2017)

Here is the decision.

A Labor Law claim for work performed out-of-State.

Labor Law, Article 6, which contains the unlawful deductions, notice, and record keeping provisions which plaintiffs claim were violated, does not indicate that the provisions were intended to apply when the work in question is performed outside the state. Article 19, which contains the minimum wage, overtime, and spread of hours provisions identified in the complaint, includes a "Statement of Public Policy," which states, in relevant part: "There are persons employed in some occupations in the state of New York at wages insufficient to provide adequate maintenance for themselves and their families.... Employment of persons at these insufficient rates of pay threatens the health and well-being of the people of this state and injures the overall economy."

As these statutes do not expressly apply on an extraterritorial basis, plaintiffs' claims under these provisions, based on labor performed outside New York, do not state a cause of action under Article 6 or Article 19 of the New York Labor Law.

Practice point:  Under New York Law, no legislation is presumed to be intended to operate outside the territorial jurisdiction of the state enacting it, unless expressly stated otherwise.

Case:  Rodriguez v. KGA Inc., NY Slip Op 07948 (1st Dep't November 14, 2017)

Here is the decision.