Waiver of defenses.

Practice point: Because defendant failed to timely raise defenses based on service of process and standing in an answer or pre-answer motion to dismiss, those defenses are waived, pursuant to CPLR 3211[e].

Student note:  In any event, the affidavit of service of the summons and complaint constitutes prima facie evidence of proper service, which defendant failed to rebut with anything more than conclusory denials of receipt.

Case:  U.S. Bank N.A. v. Thomas, NY Slip Op 09241 (1st Dep't December 28, 2017)

Here is the decision.

New Year's, here and now, there and then.

A premises liability action.

A property owner has a duty to keep the property in a reasonably safe condition in view of all the circumstances. In a premises liability case, a defendant property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence.

Case:  Arevalo v. Associated Supermarkets, Inc., NY Slip Op 09109

Here is the decision.

The Court of Claims' jurisdiction.

The Court of Claims has limited jurisdiction to hear actions against the State itself, or actions naming State agencies or officials as defendants, but where the State is the real party in interest, as well as claims against a few other State-related entities as provided by statute.

Case:  Bush v. Stevenson Commons Assoc., LLP,  NY Slip Op 08806 (2d Dep't December 20, 2017)

Here is the decision.

Specific performance on a real estate contract, or return of the down payment.

Practice point:  A purchaser seeking specific performance of a real estate contract must demonstrate that he or she was ready, willing, and able to perform on the contract, regardless of any anticipatory breach by the selle.  An anticipatory breach of the contract excuses the purchaser from tendering performance, but does not excuse the purchaser from the requirement of being ready, willing, and able to perform.

In order to retain the down payment, the seller must have been ready, willing, and able to perform on the law day. There are exceptions to this rule, such as where the purchaser seeks to cancel the contract without giving the seller an opportunity to cure any defects. In order to get a return of the down payment, the purchaser is not required to tender performance and attend a closing if the seller is unable to perform on the law day.

Case:  33 Park Ave. Realty, LLC v. Park Ave. Bldg. & Roofing Supplies, LLC, NY Slip Op 08802 (2d Dep't December 20, 2017)

Here is the decision.

A claim for damages based on lack of informed consent.

Practice point:  To establish a cause of action to recover damages based on lack of informed consent, a plaintiff must prove (1) that the treatment provider failed to inform the plaintiff of reasonably foreseeable risks associated with the treatment, and alternatives thereto; 2) that a reasonably prudent plaintiff in the same position would not have undergone the treatment if he or she had been fully informed; and (3) that the lack of informed consent is a proximate cause of the plaintiff's injury. Where the plaintiffs and the defendant present divergent expert testimony, it is up to the jury to determine the experts' credibility.

Case:  Alessi v. Mucciolo, NY Slip Op 08804 (2d Dep't December 20, 2017)

Here is the decision.

Merry Christmas, here and there, now and then.

Extensions of time.

Practice point:  Pursuant to CPLR 3012(d), a trial court has the discretionary power to extend the time to plead, or to compel acceptance of an untimely pleading on terms that may be just, if there is a showing of a reasonable excuse for the delay. In reviewing a discretionary determination, the question is whether the court providently exercised its discretion.

Case:  Emigrant Bank v. Rosabianca, NY Slip Op 08716 (1st Dep't December 14, 2017)

Here is the decision.

Leave to amend.

Practice point:  A motion for leave to amend a pleading may be made at any time, and leave shall be freely given upon such terms as may be just, pursuant to the express terms of CPLR 3025[b]. Absent prejudice or surprise resulting from a delay in making the motion, leave will be granted unless the proposed amendment is patently without merit or palpably improper. The decision to grant or deny the motion is let to the sound discretion of the trial court, and its determination will not lightly be put aside.

Case:  Cullen v. Torsiello, NY Slip Op 08654 (2d Dep't December 13, 2017)

Here is the decision.

An equitable claim to quiet title.

Practice point:  In order to maintain the claim, a plaintiff must allege actual or constructive possession of the property and the existence of a removable cloud on the property, such as a deed or other instrument, that is invalid or inoperative.

Student note:  A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint based on documentary evidence will be granted only where the evidence utterly refutes plaintiff's factual allegations, thereby establishing conclusively a defense as a matter of law.

Case:  Carbone v. US Bank N.A., NY Slip Op 08653 (2d Dep't December 13, 2017)

Here is the decision.

The storm-in-progress rule.

The Appellate Division affirmed dismissal of the complaint, finding that, pursuant to CPLR 4528, defendants' citation to the climatological data relied upon by their expert meteorologist established, prima facie, entitlement to summary judgment based on the storm-in-progress defense  In opposition, plaintiffs failed to raise a triable issue as to whether it had stopped snowing long enough to have implicated defendants' duty to clear the snow.  Plaintiff's affidavit does not shed light on the snowfall during the relevant period, as Administrative Code of City of NY § 16-123(a) gives landowners a four-hour grace period to clear snow and ice, not including the period between 9:00 p.m. and 7:00 a.m.  While the nonparty witness's observation that it was not snowing at 5:00 p.m. indicates a temporary lull in the storm, it is insufficient to raise a triable issue of fact as to a duty to clear snow and ice.

Case:  Jakubowski v. Axton Owner LLC, NY Slip Op 08724 (1st Dep't December 14, 2017)

Here is the decision.