An attorney's affirmation in support of a motion to dismiss.

Practice point:  The fact that the defendant had submitted only an attorney's affirmation is not fatal to its motion, as the affirmation incorporated by reference deposition testimony which had been submitted by the co-defendant.

Canty v. 133 E. 79th Street, LLC, NY Slip Op 09022 (1st Dep't December 27, 2018)

Here is the decision.

The burdens on a defendant's motion for summary judgment in a medical malpractice action.

Practice point:  The physician-defendant must establish, prima facie, either that there was no departure from the accepted community standards of practice, or that, if there were]such a departure, it was not a proximate cause of the plaintiff's injuries. On this showing, the burden shifts to the plaintiff to rebut the defendant's prima facie showing with evidentiary facts or materials that demonstrate the existence of a triable issue of fact.

Salgado v. North Shore Univ. Hosp., NY Slip Op 08967 (2d Dep't December 26, 2018)

Here is the decision.

Admissibility of electronic records.

Practice point:  Copies of electronic records from the Secretary of State's official government website are admissible despite being uncertified, and the motion court may consider them.

Gibson v. U'SAgain Holdings, LLC, NY Slip Op 09012 (1st Dep't December 27, 2018)

Here is the decision.

New Year's 1971.

A motion to punish a party for civil contempt.

Practice point:  Granting the motion requires a finding that (1) there was a court's lawful order, clearly expressing an unequivocal mandate; (2) the party against whom contempt is sought disobeyed the order; (3) the disobedient party had knowledge of the order and its terms; and (4) the movant was prejudiced by the non-movant's offending conduct.  It is not necessary that the disobedience be deliberate or willful; regardless of motive, the mere act of disobedience is sufficient if it defeats, impairs, impedes, or prejudices the rights or remedies of a party.

Student note:  The motion is addressed to the court's sound discretion, and the movant bears the burden of proving the contempt by clear and convincing evidence.

P.B. #7, LLC v 231 Fourth Ave. Lyceum, LLC, NY Slip Op 08945 (2d Dep't December 26, 2018)

Here is the decision.

Hearsay on a summary judgment motion.

Practice point:  Hearsay, without more, is insufficient to defeat the motion.

Student note:  A declaration against interest is not an exception to the hearsay rule if the declarant was unaware of the adverse nature of the statement.

Nava-Juarez v. Mosholu Fieldston Realty, LLC, NY Slip Op 08744 (1st Dep't December 20, 2018)

Here is the decision.

A claim of aiding and abetting fraud.

Practice point:  The plaintiff must allege the underlying fraud, actual knowledge, and substantial assistance. Actual knowledge may be pled generally.

Student note:  As to alleging the underlying fraud, the elements are the misrepresentation or material omission of a fact which was false and which the defendant knew to be false, made for the purpose of inducing the other party's reliance on it; the other party's justifiable reliance on the misrepresentation or material omission; and injury.

William Doyle Galleries, Inc. v. Stettner, NY Slip Op 08743 (1st Dep't December 20, 2018)

Here is the decision.

CPLR 5015(a).

Practice point:  Pursuant to CPLR 5015(a), a court may vacate a default judgment or order on the grounds of excusable neglect, newly-discovered evidence, an adverse party's fraud, misrepresentation, or other misconduct, or the lack of jurisdiction, or on the reversal, modification, or vacatur of a prior order.

Student note:  The statute's listing is not exhaustive, and a court may vacate its own judgment or order for sufficient reason and in the interests of substantial justice.

Nationstar Mtge., LLC v. Russo, NY Sip Op 08668 (2d Dep't December 19, 2018)

Here is the decision.

A dismissed claim of libel per se.

Practice point:  At issue are the defendant's statements to former colleagues at the law firm which had terminated him. The defendant's statement that the plaintiff, who is the firm's principal, is "really nothing more than a common criminal" is a nonactionable statement of opinion. The statement has an imprecise meaning, and it cannot be proven true or false. In context, no reasonable reader would understand the statement as an accusation that the plaintiff had ever been charged with, or convicted of, a crime.

Caradli v. Slater, NY Slip Op 08544 (1st Dep't December 13, 2018)

Here is the decision.