A missing witness charge.

Practice point:  The charge instructs the jury that it may draw an adverse inference based on a party's failure  to call a witness who normally would be expected to support that party's version of events. The preconditions for the charge, in both criminal and civil trials, are: (1) the witness's knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the control' of the party against whom the charge is sought, so that the witness would be expected to testify in that party's favor; and (4) the witness is available to that party.

Student note:  The use of the missing witness' deposition testimony does not constitute a waiver of the right to request a missing witness charge.

Case:  Alli v. Full Serv. Auto Repair, LLC, NY Slip Op 03308 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Denial of a motion for leave to renew.

Rebutting the presumption of proper service.

Practice point:  Defendant's affidavit denying receipt of process, and his averment that he was at his place of employment in New York County at the time of the alleged service, were sufficient to rebut the presumption of proper service, necessitating a hearing.

Student note:  A process server's affidavit of service establishes, prima facie, that defendant was properly served pursuant to CPLR 308(1). However, where, as here, the presumption is rebutted, a hearing is required.

Case:  American Home Mtge. Servicing, Inc. v. Gbede, NY Slip Op 03309 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: A missing witness charge.

A petition to disqualify an attorney.

Practice point:  The Appellate Division determined that the motion court properly granted the petition, as petitioner demonstrated that the attorney likely would be a witness on a significant fact-issue, within the meaning of Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]. Petitioner-estate alleges, among other things, that respondent withdrew $65,000 from an account he held jointly with the estate's decedent, after he entered into a written agreement, signed on his behalf by the attorney, pursuant to which he agreed to turn over to the estate the funds remaining in the account after he made certain agreed upon payments. Since respondent has asserted as a defense that he was unaware of that agreement, the attorney is a significant witness as to the negotiation of the agreement and whether he had actual or apparent authority to enter into the agreement on respondent's behalf.

Student note:  The Appellate Division noted that the attorney's testimony is likely to be prejudicial to respondent, unless the attorney testifies that he acted without his client's knowledge or authority in entering into the agreement, pursuant to Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[b].

Case:  Matter of Ehrlich v. Wolf, NY Slip Op 03417 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Rebutting the presumption of proper service.

A counterclaim for breach of contract resulting in lost business opportunities.

Practice point:  The Appellate Division ordered dismissal of the counterclaim alleging that plaintiff breached the parties' contract by engaging in certain misconduct at the workplace, resulting in lost business opportunities. In support of his motion, plaintiff submitted defendants' responses to requests to admit and the deposition testimony in which defendants admitted that they could not identify any prospective business that was lost due to plaintiff's misconduct. Therefore, plaintiff demonstrated, prima facie, that the corporation did not sustain damages as a result of any alleged misconduct on his part in the performance of his job.  In opposition, the defendants failed to raise a triable issue of fact with respect to the element of damages.

Student note:  To recover damages for breach of contract, a party must demonstrate, among other things, that damages resulted from the breach.

Case:  Cortes v. 3A N. Park Ave. Rest Corp., NY Slip Op 03120 (2d Dept. 2015)

Here is the decision. 

Tomorrow's issue:  A petition to disqualify an attorney.

A transfer of venue.

Practice point:  In this slip and fall action where plaintiff is a Kentucky resident, the Appellate Division determined that venue was properly transferred to Albany County. The designation of venue in New York County was proper, pursuant to CPLR 503(c), since two of the corporate defendants have their principal places of business within that county. However, the situs of plaintiff's injury provides a basis for a discretionary change of venue, pursuant to CPLR 510 [3], in that, all things being equal, a transitory action should be tried in the county where the cause of action arose.

Student note:  This rule is predicated on the notion of convenience for trial witnesses to be present at trial.

Case:  Wickman v. Pyramid Crossgates Co., NY Slip Op 03235 (1st Dept. 2015)

Here is the decision.

Monday's issue:  A counterclaim for breach of contract resulting in lost business opportunities.

Re-service while a motion to dismiss is pending.

Practice point:  The Appellate Division affirmed the denial of the motion to dismiss the complaint for lack of personal jurisdiction, as plaintiff established that it re-served the appellant during the pendency of the motion. Plaintiff's re-service of the summons and complaint during the pendency of the motion effectively obviated the jurisdictional objection.

Student note:  An affidavit of service constitutes prima facie evidence of proper service of process, pursuant to CPLR 308(2).

Case:  Bank of Am., N.A. v. Valentino, NY Slip Op 03116 (2d Dept. 2015)

Tomorrow's issue:  A transfer of venue.

A claim of a bus driver's negligence.

Practice point:  To prevail on a cause of action alleging that a common carrier's driver was negligent in stopping a bus, a plaintiff must prove that the stop was unusual and violent, rather than merely one of the sort of jerks and jolts commonly experienced in city bus travel. A plaintiff may not satisfy the burden of proof merely by characterizing the stop as unusual and violent. Instead, there must be objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant.

Student note:  In seeking summary judgment dismissing the complaint, however, common carriers have the burden of establishing, prima facie, that the stop was not unusual and violent.

Case:  Alandette v. New York City Tr. Auth., NY Slip Op 03113 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Re-service while a motion to dismiss is pending.

Summary judgment while a stay is pending.

Practice point:  While defendant's motion for summary judgment was pending, plaintiff's counsel moved for permission to withdraw. The motion court granted counsel's application and ordered the case stayed "for 45 days from the date of service of a copy of this order." However, plaintiff was not served with the order, and defendant's motion for summary judgment was heard and granted in plaintiff's absence. The order granting the motion on default directed defendant to settle an order, which was entered.  Plaintiff's new counsel moved to vacate these two orders on the ground that the grant of summary judgment while the action was stayed was a nullity.

The Appellate Division agreed, and reversed the motion court. After his former counsel was granted leave to withdraw, the action was stayed by court order and operation of CPLR 321(c). As plaintiff was never served with the order dismissing his attorney, the 45 day stay never expired.

Student note:  Defendant cannot avoid the stay by arguing that it did not go into effect until served on plaintiff, since the failure to serve the order cannot accrue to defendant's benefit.

Case:  Matos v. City of New York, NY Slip Op 03074 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A claim of bus driver negligence.

A question of service.

Practice point:  Defendant moved, pursuant to CPLR 5015[a][4], to vacate his default and to dismiss the complaint insofar as asserted against him on the ground that he had not been served with copies of the summons and complaint.  The Supreme Court denied the motion, finding that service of process was properly effected under CPLR 308(2).  The Appelate Division reversed, and remitted.

Defendant submitted an affidavit asserting that he had never lived at the address at which the substituted service was allegedly effected, thereby denying that he was served at his "actual . . . dwelling place or usual place of abode," as required by CPLR 308[2]).

In opposition, plaintiff conceded that defendant had resided at multiple residences during the six years prior to the commencement of the action and so its submissions revealed a question of fact with respect to whether the address where service was allegedly effected was defendant's actual dwelling place or usual place of abode.  As the submitted evidence was not dispositive, there should have been a hearing.

Student note:  A process server's affidavit constitutes prima facie evidence of proper service, pursuant to CPLR 308(2)

Case:  Central Mtge. Co. v. Ward, NY Slip Op 02926 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment while a stay is pending.

A Labor Law § 240(1) claim.

Practice point:  Plaintiff established his entitlement to judgment as a matter of law on his Labor Law § 240(1) claim based on his testimony that he was injured when he fell from a height of six stories when two workers standing on the ground holding ropes that were supposed to keep the scaffold he was standing on level, simultaneously loosened the ropes, causing the scaffold to shift from a horizontal to a vertical position. Plaintiff also established that his accident was caused by the lack of a guardrail on the side of the scaffold. Plaintiff was not required to show a specific defect in the safety devices since the evidence plainly established that they did not provide adequate protection from the risk of falling.

In opposition, defendants failed to raise a triable issue of fact. Although they argue that plaintiff was the sole proximate cause of his injuries, they failed to submit any admissible evidence to support their allegation that plaintiff failed to attach his safety harness to the lifeline in the proper manner.

Student note:  Even if there were admissible evidence to that effect, the scaffold fell as a result of the ropes supporting it being loosened, rendering plaintiff's alleged conduct contributory negligence which is not a defense to a Labor Law § 240(1) claim.

Case:  Guaman v 1963 Ryer Realty Corp., NY Slip Op 03039 (1st Dept.)

Here is the decision.

Monday's issue:   A question of service.

Calculating quantum meruit compensation.

Practice point:  The award of quantum meruit compensation under 22 NYCRR 691.10(b) is not limited to a calculation based on the number of hours worked multiplied by a reasonable hourly rate, but can also be calculated as a portion of a contingent fee. In either case, the court must weigh the relevant factors, which include evidence of the time and skill required in that case; the matter's complexity; the attorney's experience, ability, and reputation; the client's benefit from the attorney's services; and the fee usually charged by other attorneys for similar services.

Student note:  An award in quantum meruit should reflect the court's assessment of the qualitative value of the services rendered, made after weighing all relevant factors considered in valuing legal services. While not binding or determinative, the court also should consider any compensation agreement between outgoing and incoming counsel.

Case:  Biagioni v. Narrows MRI & Diagnostic Radiology, P.C., NY Slip Op 02924 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:   A Labor Law § 240(1) claim.