Struck in the crosswalk, and a motion to renew.

Practice point:  Plaintiff established entitlement to judgment on liability as a matter of law by submitting evidence demonstrating that she was crossing the street, within the crosswalk, with a "walk" sign in her favor, when defendants' vehicle, which was making a left turn, struck her. The affidavits from the nonparty eyewitnesses and the police report confirm plaintiff's version of the accident.

Defendants failed to raise a triable issue of fact as to comparative negligence. Plaintiff averred that she looked both ways before entering the intersection and continued to look for traffic as she crossed the street, and that she could not have avoided the accident because she only noticed defendants' vehicle, which was moving quickly, a "split second" prior to being struck. Contrary to the assertion of defendant driver, the position of plaintiff's body after impact is not probative as to whether she was walking in the cross-walk prior to being struck.

Student note:  Plaintiff's motion was considered one for renewal, since she submitted a properly notarized affidavit of a nonparty witness, thereby correcting an error in the original papers. The court has discretion to relax the requirement that a motion to renew be based on newly discovered evidence or evidence not previously available, and to grant such a motion in the interest of justice, absent prejudice to the opposing party resulting from any delay.

Case:  Hines v. New York City Tr. Auth., NY Slip Op 08527 (1st Dept. 2013).

Here is the decision.

Thursday's issue: Liability for an independent contractor's negligence.

Discovery sanctions.

Practice point:  As a sanction against a party who refuses to obey an order for disclosure or wilfully fails to disclose information which should have been disclosed, a court may issue an order, among other things, prohibiting the disobedient party from producing in evidence designated things or items of testimony or striking out pleadings, pursuant to CPLR 3126[2], [3].

Student note:  However, a court may invoke the drastic remedy of striking a pleading only upon a clear showing that the failure to comply with court-ordered discovery was willful and contumacious.

Case:  Holloway v. Station Bar Corp., NY Slip Op 08408 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Struck in the crosswalk, and a motion to renew.

A common-law tort action against a municipality.

Practice point: The court granted the defendants' motion to dismiss based on his failure to allege in the notice of claim the date or time when his claim against the defendants arose. The plaintiff's failure to so allege with sufficient particularity frustrated the defendants' ability to conduct a meaningful investigation into his claim and to assess its merits.

Student note:  Compliance with the notice of claim requirements set forth in General Municipal Law § 50-e(2) is a condition precedent to the commencement of a common-law tort action against a municipality.

Case:  Forster v. City of New York, NY Slip Op 08406 (2d Dept. 2013).

Here is the decision.

Monday's issue: Discovery sanctions.

Workers' Comp.

Practice point:  Workers' Compensation Law §§ 11 and 29(6), which protects employers against lawsuits brought by injured workers, extends to entities which are alter egos of the entity which employs the plaintiff.  A defendant moving for summary judgment under this theory may establish itself, prima facie, as the employer's alter ego by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity.

Student note:  A parent corporation may be deemed to be an employer of an employee of a subsidiary corporation for Workers' Compensation purposes if the subsidiary functions as the alter ego of the parent. However, a mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other.

Case:  Batts v. IBEX Constr., LLC, NY Slip Op 08394 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A common-law tort action against a municipality.

Merry Christmas.

The courts are closed to mark Christmas Day.

 

 Tomorrow's issue:  Workers' Comp.

An application for a continuance.

Practice point:  It is an improvident exercise of discretion to deny a continuance where the application is properly made, is not made for the purpose of delay, the evidence is material, and the need for a continuance did not result from the failure to exercise due diligence.

Student note:  An application for a continuance or adjournment is addressed to the sound discretion of the trial court, and the grant or denial thereof will be upheld on appellate review if the trial court providently exercised its discretion.

Case:  Black v. St. Luke's Cornwall Hosp., NY Slip Op 08223 (2d Dept. 2013).

Here is the decision.

Thursday's issue: Workers' Comp.

Apportioning responsibility for marital debt.

Practice point:  Generally, expenses incurred prior to the commencement of an action for a divorce are marital debt to be equally shared by the parties upon an offer of proof that they represent marital expenses.

Student note:  Equitable distribution does not necessarily mean equal distribution, and the court may consider the entirety of the marital estate in apportioning responsibility for marital debt.

Case:  Augustin v. Bullen, NY Slip Op 08221 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: An application for a continuance.

Lights out.

Practice point:   Absent a hazardous condition or other circumstance giving rise to an obligation to provide exterior lighting for a particular area, landowners are generally not required to illuminate their property during all hours of darkness.

Student note:  A landowner has a duty to maintain his or her premises in a reasonably safe condition to prevent foreseeable injuries. The scope of such duty is determined in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.

Case:  Assefa v. Bam, NY Slip Op 08220 (2d Dept. 2013).

Here is the decision.

Monday's issue: Apportioning responsibility for marital debt.

Turn it down.

Practice point:  The Appellate Division found substantial evidence in the record to support the determination that the petitioner violated the New York City Noise Control Code (Administrative Code § 24-231[a][2]) by allowing music from his store to reach an audible level inside the upstairs apartment of 50-51 decibels (dB), exceeding the 45 dB permissible limit in a frequency of 100 hertz (Hz).

The court found that it was irrelevant that the inspector used the one-third octave noise meter for the first time at this inspection site as he testified that he had previously received two days of training in its use and knew how it worked, and that it worked similarly to other noise meters. That the investigator was directed to contact his supervisor after taking the readings, rather than issue a violation immediately, does not render the measurements inherently suspect.

The court found no merit to the argument that the inspector deviated from standard procedure by testing the noise level at 100 Hz, a frequency not on the preprinted form as the form notably leaves room for an additional reading at another frequency. Petitioner's contention that the inspector should have taken lengthier readings of the ambient sound level when the music was off because the meter might have recorded a higher decibel level over time, was considered and properly rejected by the Administrative Law Judge. The inspector stated that a longer reading could have shown a higher level, but that his three readings taken within one minute were consistent at 43 dB. In any event, a reading of 43 dB is a full two decibels lower than the maximum ambient level allowed of 45 dB.

Student note:  Because there is in the whole record substantial evidence for the Administrative Law Judge's determination that petitioner violated the Noise Code, judicial review is at an end.

Case:  Matter of Zabari v. New York City Dept. of Envtl. Protection, NY Slip Op 08201 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Lights out.

A claim of false arrest and malicious prosecution.

Practice point:  Probable cause to believe that a person committed a crime is a complete defense to claims of false arrest and malicious prosecution.

Student note: The existence or absence of probable cause becomes a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn surrounding the arrest.

Case:  McDonald v. Town of Greenburgh, NY Slip Op 08054 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Turn it down.

A claim of disability-based employment discrimination.

Practice point:  Plaintiff's claims of disability-based employment discrimination were dismissed for failure to point to evidence raising an inference of discriminatory animus.  Remarks by hospital to the effect that she had "brought her situation upon herself" and that she should "take her assets elsewhere" were not of themselves derogatory or indicative of discriminatory animus. Neither does plaintiff's testimony that unidentified persons laughed at her behind her back raise an issue of fact as to such animus.

Student note:  Stray remarks in the worplace, even if made by a decision maker, do not, in and of themselves, constitute evidence of discrimination.

Case:  Serdans v. New York & Presbyt. Hosp., NY Slip Op 08133 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: A claim of false arrest and malicious prosecution.

A school's liability for a gym-class injury.

Practice point:   The infant plaintiff's affidavit was sufficient to raise a triable issue of fact in opposition to the school's motion for summary judgment. At her deposition and in her affidavit, the infant plaintiff stated that on the day of the accident, she was experiencing "pain and instability" in her ankle, and that she made complaints concerning this condition to the teacher who was supervising the gym class. The infant plaintiff further averred that, despite her complaints, the teacher insisted that she continue to participate in the gym exercises and that, as a result, she thereafter fell and sustained injuries.

Student note:   Schools have a duty to adequately supervise children in their charge, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. Although it is not an insurer of children's safety, a school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent.

Case:  Anastasiya M. v.  New York City Bd. of Educ., NY Slip Op 08053 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A claim of disability-based employment discrimination.

An untimely summary judgment motion.

Practice point:  Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, defendant was required to make his motion for summary judgment no later than 60 days after the filing of the note of issue, unless he obtained leave of the court on good cause shown. Here, defendant moved for summary judgment 67 days after the note of issue was filed and failed to demonstrate, in his moving papers, good cause for not filing the motion before the expiration of the 60-day deadline.

Student note:  The Appellate Division will not consider the "good cause" arguments raised for the first time in defendant's reply papers.

Case:  Goldin v. New York & Presbyt. Hosp., NY Slip Op 08047 (2d Dept. 2013).

Here is the decision.

Monday's issue: A school's liability for a gym-class injury.

An untimely notice of claim.

Practice point:  Petitioner's contention that he failed to timely file the notice because he was unaware of the extent of his injuries is unavailing as the record shows that he stopped working the day of the injury and subsequently filed a claim for Workers' Compensation. Even accepting petitioner's assertion that he did not know that he required surgery until May, he failed to explain why he waited until August to serve the notice. In addition, petitioner did not demonstrate that the agency acquired actual notice of the essential facts within 90 days after the claim arose or a reasonable time thereafter. The report prepared shortly after the accident did not give the agency actual knowledge of the facts constituting the claim alleging liability under the Labor Law as it fails to connect the incident to any claim against the agency.  It merely states that petitioner was injured while lifting plywood at the school, and makes no mention of petitioner's present allegations that the scaffolding and the flooring were not properly secured;  he was not equipped with proper safety devices; and on-site personnel were inadequately trained.

Student note:   Ignorance of the requirements of General Municipal Law § 50-e is not a reasonable excuse for failure to timely file a notice.

Case:  Mehra v. City of New York, NY Slip Op 08019 (1st  Dept. 2013)

Here is the decision.

Tomorrow's issue: An untimely summary judgment motion.

Premature dismissal of common-law negligence and Labor Law claims.

Practice point:  The court found that plaintiff's common law negligence and Labor Law claims were prematurely dismissed before depositions were taken. The contractual provisions requiring defendant to supervise and control the work, although not in themselves sufficient to justify holding the defendant liable for the alleged inadequacy of the ladder in question, do furnish cause to believe that further discovery may lead to evidence that the defendant's employees exercised actual supervision or control over the worksite, so as to implicate the claims. Defendant's submission of affidavits broadly disclaiming any supervisory control over plaintiff's work were insufficient to establish defendant's entitlement to judgment as a matter of law.

Student note:   The court also found that conflicting affidavits raise an issue of fact as to whether a bailment was created by defendant's loan of the allegedly defective ladder to plaintiff.  Such a bailment could give rise to liability for common-law negligence if the defendant provided plaintiff with dangerous equipment even if its defect was evident.

Case:  Rodriguez v. Coalition for Father Duffy, LLC, NY Slip Op 08007 (2d Dept. 2013)

 Here is the decision.

Tomorrow's issue: An untimely notice of claim.

Being true to your school goes both ways.

Practice point:  There is an implied contract between a school and its students such that if a student complies with the terms prescribed by the school, he or she will obtain the degree which he or she sought. The essence of the contract is that an academic institution must act in good faith in its dealings with its students. The parties' rights and obligations, as specified in the school's bulletins, circulars and regulations made available to students, become a part of the contract.

Student note: A cause of action based solely on the school's academic and administrative decision must be commenced in an Article 78 proceeding.

Case:  Clogher v. New York Medical Coll., NY Slip Op 08043 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Premature dismissal of common-law negligence and Labor Law claims.

Deposition testimony, hearsay, and summary judgment.

Practice point:  Defendant demonstrated his prima facie entitlement to judgment as a matter of law by showing that his car was struck in the rear by plaintiff's decedent's car, and in response, plaintiff failed to provide a nonnegligent explanation, in evidentiary form, for the collision.

The transcripts of the deposition testimony of two police officers who testified in a related action are hearsay as to defendant, since he was not notified about the deposition, nor present for the testimony, pursuant to CPLR 3117[a][3].

Student note:  Hearsay may be used to defeat summary judgment as long as it is not the only evidence submitted in opposition. Here, however, plaintiff submitted no other admissible evidence as to the circumstances of the accident.

Case:  Rugova v. Davis, NY Slip Op 08003 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:  Being true to your school goes both ways.

A deed conveying real property as security.

Practice point:  Real Property Law § 320 provides, in pertinent part, that a "deed conveying real property, which, by any other written instrument, appears to be intended only as a security in the nature of a mortgage, although an absolute conveyance in terms, must be considered a mortgage." In determining whether a deed was intended as security, examination may be made not only of the deed and a written agreement executed at the same time, but also of oral testimony bearing on the intent of the parties and to a consideration of the surrounding circumstances and the parties' acts.

Student note:  A court of equity will treat a deed, absolute in form, as a mortgage, when it is executed as a security for a loan of money. That court looks beyond the terms of the instrument to the real transaction; and when that is shown to be one of security, and not of sale, it will give effect to the parties' actual contract.

Case:  Bouffard v. Befese, LLC, NY Slip Op 07925 (2d Dept. 2013).

Here is the decision.

Monday's issue: Deposition testimony, hearsay, and summary judgment.

CPLR 305(c).

Practice point:  CPLR 305(c) authorizes the court to "allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced."  Where the motion is to cure a misnomer in the description of a party-defendant, it should be granted even after the statute of limitations has run where (1) there is evidence that the correct defendant, misnamed in the original process, was, in fact, properly served, and (2) the correct defendant would not be prejudiced by granting the amendment.

Student note: While CPLR 305(c) may be used to cure a misnomer in the description of a party-defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served.

Case:  Associated Geriatric Info. Network, Inc. v Split Rock Multi-Care Ctr., LLC, NY Slip Op 07922 (2d Dept. 2013)

Here is the decision. 

Tomorrow's issue: A deed conveying real property as security.

Applicability of the emergency doctrine.

Practice point:  Defendants established their entitlement to judgment as a matter of law by demonstrating the applicability of the emergency doctrine in this action where plaintiff was injured when the bus in which she was a passenger stopped suddenly, hurling her forward into the windshield. Defendants submitted evidence showing that, shortly after the bus had started to move after being stopped at a traffic light, a car drove around the bus erratically and at a high rate of speed, cutting the bus off so closely that the car's rear bumper came within an inch of striking the bus' front bumper. Defendant bus driver was forced to stop suddenly in order to avoid colliding with the car.

Student note: Plaintiff's assertion, in her opposition affidavit, that no car cut the bus off at any time prior to the accident was unavailing as it contradicted her deposition testimony.

Case:  Orsos v. Hudson Tr. Corp., NY Slip Op 097839 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: CPLR 305(c).

CPLR 3211(a)(7).

Practice point:  On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.  However, bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true.

Student note: Where evidentiary material is submitted and considered on the motion, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one.  Unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the motion will not be granted.

Case:  Gersher v. Ejamal, NY Slip Op 07447 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Applicability of the emergency doctrine.

"Walk" and "Don't walk."

Practice point:  Pursuant to Vehicle and Traffic Law § 1112, a pedestrian who proceeds across a roadway in the direction of a steady "walk" signal must be given the right of way by traffic.

Student note: A pedestrian who proceeds into a roadway with a "walk" signal, but only partially completes the crossing on the "walk" signal, may proceed to a sidewalk on the flashing or steady "don't walk" signal, pursuant to Vehicle and Traffic Law § 1112[b], [c].

Case:  DiDonna v. Houck, NY Slip Op 97446 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: CPLR 3211(a)(7).

A fall from an unsecured ladder.

Practice point:  The plaintiff established prima facie entitlement to judgment as a matter of law as to liability on the Labor Law § 240 cause of action by establishing that he was injured when he fell from an unsecured ladder that collapsed while he was performing roofing work on the subject construction project. The court found the defendants' contention that summary judgment should have been denied because the plaintiff was the sole witness to his accident unpersuasive, as the plaintiff identified three other witnesses in his response to the defendants' combined discovery demands. In any event, even if the plaintiff had been the sole witness to the accident, summary judgment would not be precluded.

Student note:  The plaintiff satisfied his burden of establishing that he was hired by a contractor and was suffered or permitted to work on the premises, such that he was entitled to the protections of the Labor Law, pursuant to Labor Law § 2[5], [7].

Case: Diaz v. 5-01-5-17 48th Ave., LLC, NY Slip Op 07445 (2d Dept. 2013).

Here is the decision.

Monday's issue: "Walk" and "Don't Walk."

Court holiday.

The courts are closed to mark Thanksgiving Day.

Thanks to all of you for reading New York Law Notes throughout the year, and
best wishes for a safe and happy Thanksgiving.

Tomorrow's issue: A fall from an unsecured ladder.

An out-of-possession landlord's liability.

Practice point:  An out-of-possession landlord is not liable for injuries occurring on the premises unless it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs.

Student note: Reservation of a right of entry for inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition.

Case:  Denermark v. 2587 W. 8th St. Assoc., NY Slip Op 07444 (2d Dept. 2013).

Here is the decision.

Friday's issue: A fall from an unsecured ladder.

A cause of action for an accounting.

Practice point:  While there was no question as to whether the parties shared a confidential relationship as members of a committed family unit, the complaint failed to allege that the fiduciary relationship necessary to obtain an accounting was created by the plaintiff entrusting to the defendant some money or property with respect to which the defendant was bound to reveal her dealings. Therefore, the plaintiff failed to state a cause of action for an accounting, and that cause of action was dismissed.

Student note:  The right to an accounting is premised upon the existence of a confidential or fiduciary relationship and a breach of the duty imposed by that relationship respecting property in which the party seeking the accounting has an interest.

Case:  Dee v. Rakower, NY Slip Op 07443 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: An out-of-possession landlord's liability.

Common-law negligence and Labor Law § 200.

Practice point:  Awareness of unsanitary conditions at the school was insufficient evidence that defendant was on notice of the presence of the fungal pathogen Candida Dubliniensis, the fungus that allegedly caused plaintiff's eye infection. In addition, plaintiff failed to proffer any evidence that the fungus existed at the school at all, other than speculation based on plaintiff's unusual infection.  Finally, there was no evidence that defendant exercised supervision and control over plaintiff's work, so as to impart liability pursuant to Labor Law § 200.

Student note:  A general awareness that a dangerous condition may be present is legally insufficient to charge a defendant with constructive notice.

Case:  Koerner v. City of New York, NY Slip Op 07410 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: A cause of action for an accounting.

Negligent infliction of emotional distress, and prima facie tort.

Practice point:  This action for negligent infliction of emotional distress arose from defendant newspaper's publication of an article reporting on the death of a three-year old girl who was allegedly beaten by her father.  The article attributed certain statements regarding the child's appearance the day before her death to plaintiff, who was a neighbor. Plaintiff denies making the statements and commenced this action claiming that following the article's publication, a street gang, to which the father and his brother belonged, began to harass and threaten her, causing her to fear for her safety and to change her residence on several occasions.

The complaint failed to state a cause of action as it fails to allege conduct that is extreme and outrageous Plaintiff fails to allege that defendants' conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."

Plaintiff similarly failed to properly plead a claim for prima facie tort as the complaint fails to allege that defendants' sole motive in publishing the article was disinterested malevolence, and fails to allege special damages. The complaint merely alleges that plaintiff suffered damages in an amount exceeding the monetary jurisdictional limits of the lower courts which would otherwise have jurisdiction, without specifying or detailing her loss. Although plaintiff's affidavit in opposition stated that she incurred moving expenses in excess of  $15,000, the court held that such a round figure, without itemization, must be considered to represent general damages.

Student note:  Plaintiff was not accorded an opportunity to discover if defendants had knowledge and an intent to injure her, as this addresses only one of the elements of a claim for prima facie tort and cannot cure the defects in the complaint.

Case:  Phillips v. New York Daily News, NY Slip Op 07269 (1st Dept. 2013).

Here is the decision.

Monday's issue: Common-law negligence and Labor Law § 200.

The storm in progress rule.

Practice point:  Under the rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.  A person responsible for maintaining property is not under a duty to remove ice and snow until a reasonable time after the cessation of the storm.

Student note: However, once a property owner elects to engage in snow removal activities, the owner must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm.

Case:  Wei Wen Xie v. Ye Jlang Yong, NY Slip Op 07167 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Negligent infliction of emotional distress, and prima facie tort.

Prior written notice laws.

Practice point:  A municipality that has adopted a prior written notice law cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies.

Student note:  There are recognized exceptions to the prior written notice requirement where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it.

Case:  Keating v. Town of Oyster Bay, NY Slip Op 07157 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  The storm in progress rule.

An auto accident at an intersection.

Practice point:  The defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that the injured plaintiff proceeded into the intersection without yielding the right of way, in violation of Vehicle and Traffic Law § 1142(a). The evidence submitted by the defendant demonstrated, prima facie, that the sole proximate cause of the accident was the injured plaintiff's failure to properly observe and yield to cross traffic before proceeding into the intersection.  In opposition, the plaintiffs failed to raise a triable issue of fact with respect to the defendant's alleged comparative fault.

Student note:  The plaintiffs' contention that the defendant violated Vehicle and Traffic Law § 1140 was unavailing, as this section does not apply to intersections, such as the subject intersection, that are controlled by stop signs, pursuant to Vehicle and Traffic Law § 1140[c]. Their argument that the defendant violated Vehicle and Traffic Law § 1180 is speculative, as there was no evidence that the defendant was traveling at a speed greater than was reasonable and prudent under the conditions, and without regard to the actual and potential hazards then existing.

Case:  Galvis v. Ravilla, NY Slip Op 07153 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Prior written notice laws.

An untimely note of issue.

Practice point:  After having failed to comply with the 90-day demand, the plaintiff's unsubstantiated assertion that she entered into an arbitration agreement with the defendant was insufficient to excuse the delay in serving and filing the note of issue. In addition, even though the parties engaged in negotiations regarding arbitration, the plaintiff failed to demonstrate that she was actively engaged in these negotiations for any significant amount of time prior to the default date, or during the ensuing one-year period between the default date and the motion to dismiss. Finally, the conclusory allegations contained in the verified complaint were insufficient to demonstrate that the plaintiff had a potentially meritorious cause of action.

Student note:  The defendant served the plaintiff with a 90-day demand pursuant to CPLR 3216, and so the plaintiff was required to serve and file a timely note of issue or to move, before the default date, either to vacate the demand or for an extension of time, pursuant to CPLR 2004. The plaintiff did neither. To avoid dismissal of the action, the plaintiff was required to show a justifiable excuse for the delay and a potentially meritorious cause of action, pursuant to CPLR 3216[e].

Case:  Abdul v. Lopez, NY Slip Op 07141 (2d Dept. 2013).

Here is the decision.

Monday's issue: An auto accident at an intersection.

A claim sounding in medical malpractice, negligence, and lack of informed consent.

Practice point:  The causes of action were dismissed, as plaintiff failed to submit evidence to rebut defendants' prima facie showing that they did not deviate from the accepted standard of care in their treatment of the decedent during her 20-day admission at defendant Manhattanville. His expert assumed that the decedent had a C. difficile infection throughout her admission and that the infection worsened during her stay. He failed to support these conclusions by referring to specific entries in the records, and, as to two negative stool sample tests, he speculated that they had been handled poorly.  Plaintiff's expert's claims that the decedent suffered from dehydration and was not properly nourished were conclusory and failed to controvert defendants' expert's evidence to the contrary. Moreover, the expert failed to causally relate the decedent's injuries to defendants' alleged departures from the standard of care.

Student note:  Plaintiff's expert's opinion as to the lack of informed consent was predicated on his unsupported assumption as to the duration of the C. difficile infection and relied on alternative "potential" treatments that were experimental, without addressing whether the decedent would have been a candidate for any of them. Moreover, the expert did not opine that the lack of informed consent was a proximate cause of the decedent's injuries. The opinion was therefore insufficient to raise an inference that a reasonably prudent person in the decedent's circumstances, having been appropriately informed of the risks and alternatives, would have elected an alternate course of treatment, and that the lack of informed consent was the proximate cause of the decedent's injuries, pursuant to Public Health Law § 2805-d[1], [3].

Case:  Denis v. Manhattanville Rehabilitation & Health Care Ctr., LLC, NY Slip Op 07253 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: An untimely note of issue.

Pleading fraud.

Practice point:  The complaint must allege a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.

Student note:  A claim rooted in fraud must be pleaded with the requisite particularity, pursuant to CPLR 3016(b).

Case:  FNF Touring LLC v. Transformer Am. Corp., NY Slip 07248 (1st Dept. 2013). 

Here is the decision.

Tomorrow's issue: A claim sounding in medical malpractice, negligence, and lack of informed consent.

Derivative actions and pre-suit demands.

Practice point:  The motion to dismiss was granted after plaintiff failed to allege that a pre-suit demand would have been futile. A shareholder may not institute a derivative action unless the complaint sets forth with particularity the shareholder's efforts to secure the initiation of that action by the board of directors, or sets forth sufficient and particular reasons for not making such efforts, pursuant to Business Corporation Law § 626[c]. A pre-suit demand is similarly required in a derivative action involving a limited liability company.

Student note:  A plaintiff is unable to bring a derivative action when the interests at issue are personal to it, not corporate.

Case:  Najjar Group, LLC v. West 56th Hotel LLC, NY Slip Op 07123 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:  Pleading fraud.

Court holiday.

The courts are closed to mark Veterans Day.

Thank you, Veterans of all ages, of whatever service or stripe, whenever or wherever you served, and in whatever capacity.

Tomorrow's issue: Derivative actions and pre-suit demands.

A Labor Law § 240[1] claim.

Practice point:  The statute imposes a non-delegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks, and liability will attach where a violation of that duty proximately caused injuries. Conversely, where a plaintiff's own actions are the sole proximate cause of the accident or injury, there is no liability under the statute. Where there is an adequate safety device readily available, and for no good reason plaintiff chooses not to use it, the statute does not apply.

Student note:  The site safety consultant cannot be liable for the accident under plaintiff's theories because it was a subcontractor with no supervisory authority over plaintiff or his work.

Case:  Barreto v. Metropolitan Transp. Auth., NY Slip Op 07118 (1st Dept. 2013).

Here is the decision.

Tuesday's issue: Derivative actions and pre-suit demands.

Statute of limitations.

Practice point:  The Appellate Division determined that, contrary to the defendants' contentions, the complaint, in substance, alleged a negligence cause of action; it did not allege the intentional tort of assault and battery. As such, the complaint was not time-barred, as it was governed by the three-year statute of limitations applicable to negligence, pursuant to CPLR 214[5], not the one-year statute of limitations applicable to assault and battery, pursuant to CPLR 215[3]. 

Student note: In classifying a cause of action for statute of limitations purposes, the controlling consideration is not the form in which the cause of action is stated, but its substance.

Case:  Faiella v. Tysens Park Apts., LLC, NY Slip Op 07008 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A Labor Law § 240[1] claim.

A fall from a catwalk.

Practice point:  The defendants established their prima facie entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, who had no recollection of the accident and could only state that just prior thereto, he heard a "sound . . . like the wood giving out from underneath me." Based on this testimony, a jury would have to speculate as to the cause of the accident. In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, his employer's deposition testimony was insufficient to raise a triable issue of fact on causation. The testimony regarding a conversation he had with the plaintiff at the hospital following the accident about what caused him to fall was vague and, in any event, hearsay.  The deposition testimony regarding a conversation he had with a maintenance person employed by the church about what the plaintiff told him caused the accident also constituted hearsay. Finally, although, in opposition to the defendants' motion, the plaintiff's expert offered his opinion regarding dangerous conditions that caused the plaintiff's accident, such as the lack of handrails, there was no evidence to connect these alleged dangerous conditions to the plaintiff's fall.

Student note:   A defendant can establish its prima facie entitlement to judgment as a matter of law by showing that the plaintiff cannot identify the cause of the accident.  A plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the injuries would be based on speculation.

Case:  Antelope v. Saint Aidan's Church, Inc., NY Slip Op 07003 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Statute of limitations.

Court holiday.

The courts are closed for election day.

Tomorrow's issue: A fall from a catwalk.

Discovery sanctions.

Practice point:  To invoke the drastic remedy of preclusion, the court must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious. The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse.

Student note: Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed. The nature and degree of the penalty is a matter generally left to the court's discretion

Case:  Aha Sales, Inc. v. Creative Bath Prods., Inc., NY Slip Op 07001 (2d Dept. 2013).

Here is the decision.

Wednesday's issue: A fall from a catwalk.

Labor Law § 241[6].

Practice point:  The statute imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed.  To state a cause of action, a plaintiff must allege that the property owners violated a regulation that sets forth a specific standard of conduct, and not simply a recitation of common-law safety principles.

Student note:  Since this section imposes a nondelegable duty on owners, a plaintiff need not show that a defendant exercised supervision or control over the worksite in order to establish a right of recovery.

Case:  Gonzalez v. Perkan Concrete Corp., NY Slip Op 06835 (2d Dept. 2013).

Here is the decision.

Monday's issue: Discovery sanctions.

Property owners, notice, and summary judgment.

Practice point:  A defendant property owner who moves for summary judgment in a premises liability case has the initial burden of making a prima facie showing that he or she neither created the hazardous condition nor had actual or constructive notice of its existence.

Student note:  A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a length of time sufficient to afford the defendant a reasonable opportunity to discover and remedy it.

Case:  Gebert v. Catalano, NY Slip Op 06833 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Labor Law § 241[6].

Objections to an invoice as a defense to an account stated claim.

Practice point:  The court found that defendants raised an issue of fact whether they objected to the March 5, 2008 invoice that is the sole basis of the account stated cause of action.  In correspondence throughout early March 2008, including a letter dated March 6, defendants refer to "the amount allegedly owed," and, from plaintiff's responding correspondence, it appears that plaintiff understood that language as a challenge to the validity of the invoice.

Student note:  In light of the strong policy of resolving disputes on the merits, and in the absence of a claim of prejudice by plaintiff, the court considered defendants' opposition to plaintiff's motion,  despite the fact that it was served five or six hours after the time to which the parties stipulated.

Case:  Hoffinger Stern & Ross, LLP v. Neuman, NY Slip Op 06936 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Property owners, notice, and summary judgment.

Forum non conveniens.

Practice point:  The doctrine permits a court to stay or dismiss an action when, although it may have jurisdiction over a claim, the court determines that, in the interest of substantial justice, the action should be heard in another forum, pursuant to CPLR 327[a].  On a motion to dismiss based on forum non conveniens, the defendant bears the burden to demonstrate relevant private or public interest factors which militate against accepting the litigation.

Student note:  On such a motion, the court will weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system.  No single factor is dispositive.

Case:  Boyle v. Starwood Hotels, NY Slip Op 06830 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Objections to an invoice as a defense to an account stated claim.

Dissolved corporations, assignees, and standing.

Practice point:  With limited exceptions, a dissolved corporation may not bring suit in the courts of the State of New York. Here, the plaintiff was suing as an assignee of a dissolved corporation, and there was nothing in the record to indicate that the loan transaction at issue was related to the winding up of the corporation's affairs (see Business Corporation Law § 1005[a][1]. Neither was there anything in the record to suggest that either the de facto corporation doctrine or the corporation by estoppel doctrine applied.

Student note: Because an assignee stands in the shoes of the assignor, the plaintiff, as assignee, would similarly lack capacity to sue.

Case:  Weiss v. Markel, NY Slip Op 06676 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Forum non conveniens.

A fall on the sidewalk.

Practice point:  Plaintiff sought damages for injuries sustained when he tripped and fell on a sidewalk located in front of the premises owned by defendant.  While walking on the sidewalk, plaintiff's right foot got caught on a round metal screw or other object that was protruding from the sidewalk. The metal object or screw appeared to have been placed in the concrete as part of the construction of the sidewalk and was never removed. According to plaintiff, he saw the metal object after he fell, and had never seen it before, although he had passed the location at least one hundred times before the accident.

Defendant established its entitlement to judgment as a matter of law. The record presented failed to establish that the claimed defect was actionable. Defendant established that the the metal screw or other object was just five-eighths of an inch in diameter and protruded only about three-sixteenths of an inch above the surface. This minor height differential alone is insufficient to establish the existence of a dangerous or defective condition.

Defendant also demonstrated that it did not have notice of any defect by submitting testimony from its maintenance personnel who stated that they cleaned the sidewalk every morning and had never noticed the metal object until after the accident. Defendant also showed that there was no record of complaints about the condition of the sidewalk

Student note: Plaintiff did not come forward with any evidence to show that this trivial defect could have been a trap or snare by reason of its location, adverse weather or lighting conditions or other circumstances. His expert's report was insufficient to raise such an issue since the expert visited the site more than two years after the accident, and, by that time, the condition had been corrected. Thus, the expert's opinion was speculative, conclusory and not based on foundational facts, such as the exact measurements of the defect at the time of the accident.

Case:  Hutchinson v. Sherridan Hill House Corp., NY Slip Op 06822 (1st Dept. 2013).

Here is the decision.

Monday's issue:  Dissolved corporations, assignees, and standing.

Successive motions for summary judgment.

Practice point:  The general rule is that successive motions for summary judgment will not be entertained in the absence of a showing of newly discovered evidence or other sufficient cause. Although newly discovered evidence may consist of deposition testimony which was not elicited until after the date of a prior order denying an earlier motion for summary judgment, such evidence is not considered newly discovered simply because it was not submitted on the previous motion. Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means.

Student note:  Successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment.

Case:  Vinar v. Litman, NY Slip Op 06675 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A fall on the sidewalk.

.

Judicial estoppel.

Practice point:  A party who assumed a certain position in a prior proceeding and secured a ruling in his or her favor is estopped from advancing a contrary position in another action simply because his or her interests have changed.

Student note:  Sometimes referred to as estoppel against inconsistent positions, the doctrine rests upon the principle that a litigant should not be permitted to lead a court to find a fact one way, and then contend in another judicial proceeding that the same fact should be found otherwise.

Case:  Becerril v. City of New York Dept. of Health & Mental Hygiene, NY Slip Op06783 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Successive motions for summary judgment.

Correcting a notice of claim.

Practice point: Plaintiff's decedent was allegedly injured when she tripped and fell after stepping into a 20-foot-long depressed area in the street, which was about 25 to 30 feet from a subway exit in Union Square Park. The notice of claim mistakenly described the location of a subway exit as between 16th and 17th Streets on Union Square East, rather than Union Square West. However, at the statutory hearing held approximately eight months after the accident, plaintiff correctly stated that the accident occurred in the location shown in a photograph of a Union Square subway exit with no canopy, amid a farmer's market, by a 16th Street sign. Plaintiff also submitted information obtained from the Internet showing that the other two subway exits in Union Square Park are covered by canopies and are located well south of 16th Street.

Under these circumstances, plaintiff was allowed to correct the notice of claim pursuant to General Municipal Law § 50-e(6), since the mistake was not made in bad faith and defendant was not prejudiced by the defective notice.

Student note:  Defendant failed to meet its burden of showing prejudice, because the record does not indicate that it sent anyone to investigate the scene of the accident either before or after the correct location had become apparent.

Case:  Ciarvino v. City of New York, NY Slip Op 06775 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Judicial estoppel.

Drinking parties.

Practice point:  A defendant may be liable for injuries caused by an intoxicated guest that
occurred on the defendant's property, or in an area under the defendant's control, where the defendant had the opportunity to control the intoxicated guest and was reasonably aware of the need for such control.  Here, the fraternity-defendant established its prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action insofar as asserted against it by showing that the plaintiff's injuries occurred in an area not under its control and, thus, that it had no duty to supervise or control the assailant-defendant's conduct in that area.

Student note:  Liability under General Obligations Law § 11-100 may be imposed only on a person who knowingly causes intoxication by furnishing alcohol to, or assisting in the procurement of alcohol for, persons known or reasonably believed to be underage.

Case:  Holiday v. Poffenbarger, NY Slip Op 06658 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Correcting a notice of claim.

Stating an employment discrimination claim.

Practice point:  The defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging employment discrimination on the ground of disability by showing legitimate, independent, and nondiscriminatory reasons for its employment decision. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the reasons stated for his discharge from employment were pretextual. Specifically, the plaintiff failed to raise a triable issue of fact as to whether there remained a full-time, light-duty position available after the defendant's relocation to a larger facility.

Student note: To state a prima facie case of employment discrimination due to a disability under Executive Law § 296, a plaintiff must show that he or she suffers from a disability and that the disability engendered the behavior for which he or she was discriminated against in the terms, conditions, or privileges of his or her employment. If the plaintiff succeeds in establishing a prima facie case, the burden of proof shifts to the employer to demonstrate that the disability prevented the employee from performing the duties of the job in a reasonable manner or that the employer's action was motivated by legitimate nondiscriminatory reasons. If the employer establishes that it had valid nondiscriminatory reasons for its action, the burden shifts back to the plaintiff to raise a triable issue of fact as to whether the stated reasons were pretextual.

Case:  Kulaya v. Dunbar Armored, Inc., NY Slip Op 06549 (2d Dept. 2013).

Here is the decision.

Monday's issue: Drinking parties.

Due diligence in the service of process.

Practice point:  Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence.  As the statute does not define "due diligence," it has been interpreted and applied on a case-by-case basis. The due diligence requirement may be met with a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times.

Here, the process server's affidvit constituted prima facie evidence of proper service pursuant to CPLR 308(4), as the process server made three attempts to serve the defendant at his home at different times and on different days, including a Saturday.  Since there was no indication that the defendant worked Saturdays or that his workplace was readily ascertainable, the plaintiff was not required to attempt to serve the defendant at his workplace.

Student note:  The defendant's bare and unsubstantiated denial of receipt was insufficient to rebut the presumption of proper service, and a hearing on the issue of service was not required.

Case:  Deutsche Bank Natl. Trust Co. v. White, NY Slip Op 06542 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Stating an employment discrimination claim.

Authorizations to release medical records, and notes of issue.

Practice point:  The Appellate Division determined that the Supreme Court properly granted those branches of the defendant's motion which were to compel him to sign authorizations for the release of certain medical records, to compel him to appear for a deposition, and to vacate the note of issue. The Supreme Court correctly compelled the plaintiff to sign the authorizations since he placed his medical condition at issue. The Supreme Court also correctly compelled the plaintiff to appear for a deposition, as the defendant demonstrated that the deposition was reasonably calculated to result in the disclosure of facts necessary to defend the action.  Since the defendant moved to vacate the note of issue within the time prescribed for doing so pursuant to 22 NYCRR 202.21(e), and demonstrated that discovery was not complete in that the deposition of the plaintiff had not occurred, medical authorizations still had not been provided, and the action was not ready for trial, the note of issue was properly vacated.

Student note:  The Appellate Division also found that the Supreme Court properly enjoined the plaintiff from submitting any further motions or cross motions without leave of the court, based on his abuse of the judicial process.

Case:   Breytman v Olinville Realty, LLC, NY Slip Op 06538 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Due diligence in the service of process.

Duty to mitigate.

Practice point:  The duty to mitigate damages arising from a breach of contract is a duty that arises from common law and, therefore, need not be expressly bargained for in a contract to be enforceable. Assuming liability, the defendant may  limit damages, if any, if the plaintiff failed to make reasonable exertions to minimize the injury.

Student note:  On a summary judgment motion, when the movant fails to meet its prima facie burden, the motion will be denied without consideration of the sufficiency of the opposing papers.

Case:  Mack-Cali Realty, L.P. v. Everfoam Insulation Sys., Inc., NY Slip Op 06348 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Authorizations to release medical records, and notes of issue.

Court holiday.

The courts are closed to mark Columbus Day.

Tomorrow's issue:  Duty to mitigate.

An improper Noseworthy instruction.

Practice point:  The Appellate Division found that the trial court deprived the defendant of a fair trial by issuing a supplemental jury instruction pursuant to Noseworthy v. City of New York (298 NY 76). The Noseworthy doctrine had no application to the facts of this case because the infant's inability to testify about the events surrounding his birth was not the result of memory loss stemming from the defendant's alleged negligence. In addition, Noseworthy does not apply because the defendant's knowledge as to the cause of the infant's injuries was no greater than the mother's, and the mother testified extensively about the circumstances surrounding her labor and delivery, and testified about the infant's injuries.

Student note:  Properly applied, a Noseworthy instruction relaxes the plaintiff's burden of proof.

Case:  Nunez v. New York City Health & Hosps. Corp. (Elmhurst Hosp. Ctr.), NY Slip Op 06350 (2d Dept. 2013).

Here is the decision.

Tuesday's issue:  Duty to mitigate.

Respondeat superior.

Practice point:  Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment. An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment.

Student note:  An employer, however, cannot be held vicariously liable for its employee's alleged tortious conduct if the employee was acting solely for personal motives unrelated to the furtherance of the employer's business at the time of the incident. Similarly, the employer is not vicariously liable where the employee's tortious conduct could not have been reasonably expected by the employer.

Case:  Gui Ying Shi v. McDonald's Corp., NY Slip Op 06347 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: An improper Noseworthy instruction.

Service, and a motion to extend time.

Practice point:  Where, as here, the statute of limitations expired between the time that the action was commenced and the time that the copy of the summons and complaint was served, that branch of the plaintiff's motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint, nunc pro tunc, was granted in the interest of justice. The copy of the summons and complaint was served only 3 days after the 120-day time period of CPLR 306-b had expired, the plaintiff promptly sought relief after receiving the answer, and there was no demonstrable prejudice to the defendant attributable to the delay in service.

Student note:  Service of one copy of a summons and complaint upon an officer of a corporation constitutes service upon the corporation itself as well as upon the individual officer, where, as here, there was simultaneous compliance with CPLR 311(a)(1) and CPLR 308(1).

Case:  Fernandez v. Morales Bros. Realty, Inc., NY Slip Op 06345 (2d Dept. 2013).

 Here is the decision.

Tomorrow's issue: Respondeat superior.

Granting relief from an order or judgment.

Practice point:  Pursuant to CPLR 5015(a), a court may relieve a party from an order or judgment, but only on an interested person's motion and with such notice as the court may direct. Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based. However, a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment.

Student note:  While a court may grant relief, pursuant to a general prayer contained in the notice of motion or order to show cause, other than that specifically asked for, to such extent as is warranted by the facts plainly appearing in both sides' papers, it may do so only if the relief granted is not dramatically unlike the relief sought, and if the proof offered supports it and the court is satisfied that no one has been prejudiced by the formal omission to demand it specifically.

Case:  Carter v. Johnson, NY Slip Op 06333 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Service, and a motion to extend time.

Motion to vacate a conditional order.

Practice point:  Defendant's motion to vacate the conditional order was denied as its conclusory and unsubstantiated claims of law office failure cannot excuse its default in failing to oppose plaintiff's motion for sanctions.  
 
Alternatively, defendant's failure to timely and fully comply with three court orders directing it to produce certain materials - one of which was a conditional order striking defendant's answer if it did not comply within 30 days - warrants an inference of willful noncompliance. Such an inference is further supported by defendant's failure to explain the numerous discrepancies between its discovery responses and its employee's deposition testimony as to the existence of responsive records. Importantly, defendant never offered any explanation regarding its employee's testimony that highly relevant records had been destroyed by flooding at some unspecified time, but were preserved electronically.

Student note:  The affidavit proffered by defendant regarding the unavailability of documents that were the subject of the court's discovery order was insufficient, as it failed to include any details as to when the search was performed, where the subject records were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, and whether a search was conducted in every location where the records were likely to be found.

Case:  Vasquez v. Lambert Houses Redevelopment Co., NY Slip Op 06439 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Granting relief from an order or judgment.

Proving proper service.

Practice point:  Generally, 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. Here, however, the defendant's sworn statement that he no longer resided at the address recited in the process server's affidavit where service was allegedly effected pursuant to CPLR 308(2), and of a police accident report submitted by him which recited his address as different from that where service was allegedly effected, were sufficient to rebut this presumption of proper service. The defendant was entitled to a hearing on the issue of whether personal jurisdiction was acquired over him before a determination was made on his motion to dismiss.

Student note:  The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff.

Case:  Lazarre v. Davis, NY Slip Op 05990 (2d Dept. 2013)

Here is the decision.

Monday's issue: Motion to vacate a conditional order.

The emergency doctrine.

Practice point:  Here, defendant submitted evidence sufficient to establish that he was faced with a sudden and unforseen occurrence that was not of his own making. Plaintiff testified that he was riding his motorcycle in congested traffic conditions when he was unexpectedly thrown from his motorcycle after hitting a pothole while defendant was driving a minivan behind him. Plaintiff stated that he had been lying in the road for "less than a second" to approximately four seconds when he was hit by the minivan and that the van's two front tires then went onto the sidewalk. Defendant testified that plaintiff's motorcycle was approximately six meters ahead of him when it fell, and that, after he saw the motorcycle fall, he turned his minivan towards the sidewalk to avoid plaintiff. Given the parties' testimony, the court correctly determined that defendant had met his initial burden of establishing his entitlement to summary judgment based on the emergency doctrine  In opposition, plaintiff failed to raise a triable issue as he presented only unsubstantiated assertions and speculation that defendant may have breached a duty of care.

Student note: The motion court providently exercised its discretion in determining that it could consider the emergency doctrine affirmative defense. Although the defense was not pleaded in the answer, the deposition testimony set forth facts that constituted an emergency situation and the facts were well-known to plaintiff.

Case:  Mendez v. City of New York, NY Slip Op 06305 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Proving proper service.

A medical malpractice action, proximate cause, and judgment as a matter of law.

Practice point:  The required elements of proof in a medical malpractice action are a deviation or departure from good and accepted standards of medical practice, and evidence that such departure proximately caused the plaintiff's injuries. Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause. Establishing proximate cause requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant's departure was a substantial factor in causing the plaintiff's injury.

Student note:  A trial court may grant judgment as a matter of law for defendant, pursuant to CPLR 4401, only where it finds that, upon the evidence presented, there is no rational process by which the jury could find in the plaintiff's favor.

Case:  Brown v. Shah,  NY Slip Op 05980 ((2d Dept. 2013).

Here is the decision.

Tomorrow's issue: The emergency doctrine.

Piercing the corporate veil.

Practice point:  A legitimate purpose of incorporating is to limit or eliminate personal liability. However, the corporate form will be disregarded and the corporate veil pierced if necessary to prevent fraud or to achieve equity, and a claim may be asserted against an individual who controls the corporation.

Student note:  Piercing the corporate veil requires a showing that the individual defendant exercised complete dominion and control over the corporation and used such dominion and control to commit a fraud or wrong against the plaintiff which resulted in injury.

Case:  Bonacasa Realty Co., LLC v. Salvatore, NY Slip Op 05979 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A medical malpractice action, proximate cause, and judgment as a matter of law.

Judgment as a matter of law based on admissions, and eyewitnesses and probable cause.

Practice point:  An application for judgment as a matter of law may be made at the close of an opposing party's case, or at any time on the basis of admissions, pursuant to CPLR 4401. The grant of the application prior to the close of the opposing party's case is generally disfavored. However, it may be warranted prior to the presentation of any evidence if the plaintiff has, by some admission or statement of fact, completely compromised his or her case. Here, prior to the presentation of evidence, the plaintiff's counsel made certain admissions and statements of fact which demonstrated, as a matter of law, that the police had probable cause to arrest the plaintiff.

Student note:  Probable cause to believe that a person committed a crime is a complete defense to causes of action alleging false arrest and malicious prosecution. As a general rule, information from an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest. An eyewitness victim of a crime can provide probable cause for the arrest of the assailant despite the fact that the victim-witness' reliability has not been previously established or the information corroborated.

Case:  Okunubi v. City of New York, NY Slip Op 05886 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: :Piercing the corporate veil.

Establishing ownership through adverse possession.

Practice point:  A party seeking to obtain title by adverse possession must prove by clear and convincing evidence that (1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; 4) it was exclusive; and (5) it was continuous for the statutory period of 10 years.

Student note: Where, as here, the adverse possession claim is not founded upon a written instrument, the plaintiffs must establish, in accordance with the law in effect at the time this action was commenced, that the disputed property was either usually cultivated or improved or protected by a substantial inclosure, pursuant to RPAPL former 522.

Case:  Marone v. Kally, NY Slip Op 05882 (2d Dept. 2013).

Here is the decision.

Monday's issue: Judgment as a matter of law based on admissions, and eyewitnesses and probable cause.

Writings as evidence.

Practice point:  A writing is ordinarily not relevant at trial in the absence of evidence to show it was made, signed or adopted by a particular person. A private document offered to prove the existence of a valid contract cannot be admitted into evidence unless its authenticity and genuineness have been properly established.

Student note:  A document's authenticity may be established by submitting the document with a certificate of acknowledgment.

Case:  Fairlane Fin. Corp. v. Greater Metro Agency, Inc., NY Slip Op 05875 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Establishing ownership through adverse possession.

An out-of-possession landlord's liability, and expert opinions.

Practice point:  An out-of-possession landlord's duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct. Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it was an out-of-possession landlord, that it was not contractually obligated to maintain the subject parking lot, that it did not endeavor to maintain the subject parking lot, and that it did not owe the plaintiff a duty by virtue of any applicable statute or regulation.  The expert's opinion, as set forth in the affidavit, was speculative, conclusory, and insufficient to raise a triable issue of fact.

Student note:  The fact that the plaintiff's expert was not disclosed until seven months after the filing of the note of issue, and his affidavit was submitted only in response to the defendant's motion for summary judgment, did not, in and of itself, render the disclosure untimely.

Case:  Castillo v. Wil-Cor Realty Co., Inc., NY Slip Op 05871 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Writings as evidence.

The effect of an executed release.

Practice point:  A valid release completely bars an action on a claim that is the subject of the release. Principles of contract law govern the interpretation of a release; and a release that is complete, clear, and unambiguous on its face will be enforced according to the plain meaning of its terms.

Student note:  As with contracts, the meaning and scope of a release necessarily depends on the controversy being settled and the purpose for which the release was actually given.  A general release will not be construed to cover matters that the parties did not desire or intend to dispose of.

Case:  Burnside 771 LLC v. Amerada Hess Corp., NY Slip Op 05869 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: An out-of-possession landlord's liability, and expert opinions.

Tenure by estoppel.

Practice point:  Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term.  Here, however, the teacher had requested a one-year extension of the probationary period and, on being terminated, could not assert that tenure had been acquired by estoppel.

Student note:  Estoppel is a bar which precludes a party from denying a certain fact or state of facts to the detriment of another party who was entitled to rely on such facts and acted on that reliance.

Case: Chisholm v. Hochman, NY Slip Op 05818 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: The effect of an executed release.

A dog bite and the professional judgment rule.

Practice point:  The plaintiff commenced this action alleging negligence after he was bitten by a dog employed by the canine unit of the defendant's police department. The plaintiff was a school custodian who was at the scene of the incident because the police needed him to to open certain doors in order to conduct a search.

In denying summary judgment, the court noted that the professional judgment rule insulates a municipality from liability for its employees' performance of their duties where the conduct involves the exercise of professional judgment, such as electing one among many acceptable methods of carrying out tasks or making tactical decisions.  However, the immunity does not extend to situations where an employee-police officer violates acceptable police practice.  The court found a question of fact as to whether the dog-handler's conduct was consistent with acceptable police practice.

Student note:  In the absence of a prima facie showing, summary judgment was denied regardless of the sufficiency of the plaintiff's opposing papers.

Case:  Newsome v. County of Suffolk, NY Slip Op 05805 (2d Dept. 2013).

Here is the decision.

Monday's issue:  Tenure by estoppel

A premises liability claim.

Practice point:  To demonstrate prima facie entitlement to judgment as a matter of law in a premises liability case, a defendant must establish that it did not create the condition that allegedly caused the fall or have actual or constructive notice of that condition. For constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it.

Here, the defendants established, prima facie, that they did not create or have actual or constructive notice of the alleged hazardous condition, as the condition of the screws, which were hidden from view, could not have been discerned by reasonable inspection. In opposition, the plaintiff failed to raise a triable issue of fact. The photographs of the accident site, which did not depict the broken screws, and the affidavit of the plaintiff's expert, who never inspected the staircase, were insufficient to defeat summary judgment.

Student note:  Constructive notice will not be imputed where a defect is latent and would not be discoverable upon reasonable inspection

Case:  Hoffman v. Brown, NY Slip Op 05798 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A dog bite and the professional judgment rule.