Timely service.

Plaintiff's purported service of the summons and complaint pursuant to CPLR 308(4) was defective, as defendant submitted unrebutted evidence that the place where service was attempted and where the summons and complaint were affixed was not his dwelling place or usual place of abode. Still, dismissal was denied and plaintiff's cross-motion to extend the time to serve was granted.  Service of a summons and complaint must be made within 120 days after the commencement of the action, pursuant to CPLR 306-b). If service is not timely made, the court, upon motion, must dismiss the action without prejudice, or, upon good cause shown or in the interest of justice, extend the time for service.  Here, while the action was timely commenced, the statute of limitations had expired when plaintiff cross-moved for relief, the timely service of process was subsequently found to have been defective, and the defendant had actual notice of the action within 120 days of commencement of the action. In addition, there was no prejudice to defendant attributable to the delay in service.

Case:  Chan v. Zoubarev, NY Slip Op 00402 (2d Dep't January 24, 2018)

Here is the decision.

Personal injury claims against the City for a roadway defect or hazard.

Practice point:  On a motion for summary judgment dismissing the complaint, the City has the initial burden of establishing that, under the Pothole Law, it lacked prior written notice of the defect or hazard.  On a sufficient showing, the burden shifts to the plaintiff to demonstrate that the City affirmatively created the defect at issue through a negligent act. The affirmative negligence exception is limited, however, to the City's work that immediately resulted in a dangerous condition, as opposed to a defect that developed over time.

Case:  Bania v. City of New York, NY Slip Op 00470 (1st Dep't. January 25, 2018)

Here is the decision.

Preliminary injunctions.

Practice point:  To establish the right to a preliminary injunction, a plaintiff must demonstrate (1) the likelihood of ultimate success on the merits; (2) irreparable injury absent the grant of the injunction; and (3) a balance of the equities in the plaintiff's favor, pursuant to CPLR 6301.

Case:  Braunstein v. Hodges, NY Slip Op 00401 (2d Dep't January 24, 2018)

Here is the decision.

Limitation of liability provisions.

New York courts routinely enforce limitation of liability  provisions, especially when they were negotiated by sophisticated parties.  While the contractual provision is an affirmative defense, a court may rule on its enforceability on a motion to dismiss.

Such clauses are unenforceable when the misconduct for which they would grant immunity amounts to intentional wrongdoing. This wrongdoing could be explicit, as when it is fraudulent, malicious or done in bad faith, or it could be implicit, as when it reflects a reckless indifference to the rights of others.

Note that the type of intentional wrongdoing that could render the provision unenforceable must be unrelated to any legitimate economic self-interest. So, a party can intentionally breach a contract to advance a legitimate economic self-interest, and still rely on the contractual limitation provision.

Electron Trading, LLC v Morgan Stanley & Co. LLC, NY Slip Op 00380 (1st Dep't January 23, 2018)

Here is the decision.

Faillure to timely service the complaint.

To avoid dismissal for failing to timely serve a complaint after a demand has been made pursuant to CPLR 3012(b), and to be entitled to an extension of time to serve the complaint under 3012(d), a plaintiff must demonstrate both a reasonable excuse for the delay and a potentially meritorious cause of action.

Here, the plaintiffs failed to demonstrate either that they had a reasonable excuse for the delay in serving their complaint, or that their causes of action were meritorious. Plaintiff's counsel did not offer a reasonable excuse by saying that an unidentified staff member "apparently" filed the complaint without showing it to counsel.  Neither is it a reasonable excuse that the letter memorializing the parties' attorneys' telephone conversation was sent to plaintiffs' counsel's former address, since the attorney never advised the Supreme Court or the defendant of his new address, and there is no requirement that a good faith letter be sent prior to moving to dismiss an action for failure to timely serve.

Plaintiffs did submit an affidavit of merit or other evidence demonstrating that their action was meritorious. The proposed complaint verified by their attorney, who did not have personal knowledge of the facts, was insufficient to demonstrate that the action was potentially meritorious. The uncertified police accident report constituted inadmissible hearsay, and did not contain any admission by the defendant against her interest bearing on how the accident occurred.

Case:  Ganchrow v. Kremer, NY Slip Op 00277 (2d Dep't January 17, 2018)

Here is the decision.

Probable cause as a defense.

Practice point:  The existence of probable cause constitutes a complete defense to a plaintiff's claims for false arrest, false imprisonment, and malicious prosecution, and defeats any claim for the same acts based on a lesser showing of negligence.

Case:  Phin v. City of New York, NY Slip Op 00333

Here is the decision.

Collateral estoppel.

Practice point:  The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling. The party seeking the benefit of preclusion  bears the burden of proving that the identical issue was necessarily decided in the prior matter, and is dispositive of the present action. The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination.

Case:  David v. State of New York, NY Slip Op 00273 (2d Dep't January 17, 208)

Here is the decision.

Proper service.

Practice point:  A process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service.

Case:  Bank of Am., N.A. v. Welga, NY Slip Op 00270 (2d Dep't January 17, 2018)

Here is the decision.

Motions in limine.

Practice point:  An issue of material fact cannot be the basis for granting a motion in limine because it is an inappropriate device for obtaining summary relief.

Case:  Casalini v. Alexander Wolf & Son, NY Slip Op 00246 (1st Dep't January 16, 2018)

Here is the decision.

Service, and time to answer.

Practice point:  Service pursuant to CPLR 308(2) is not complete until 10 days after the filing of the affidavit of service. CPLR 320 provides that when service is made pursuant to CPLR 308(2), the defendant has 30 days from the time service is complete to answer the complaint.

Case:  Watson v. City of New York, NY Slip Op 00245 (1st Dep't January 16, 2018)

Here is the decision.

An action to quiet title.

In order to maintain the cause of action, a plaintiff must allege (1) actual or constructive possession of the property, and (2) a removable cloud on the property, which is an apparent title to the property, such as in a deed or other instrument, that is invalid or inoperative.

Case:  Cudjoe v. Boriskin, NY Slip Op 00117 (2d Dep't January 10, 2017)

Here is the decision.