Vacating defaults, and law office failure.

Practice point: A defendant seeking to vacate a default in appearing or answering must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action, pursuant to CPLR 5015[a][1]. While the defendants may have proffered a reasonable excuse for the initial two-month delay in retaining their current attorney, the subsequently retained attorney failed to proffer a reasonable excuse for the further four-month delay in moving to vacate the default and for leave to serve a late answer, pursuant to CPLR 2214.

Student note: Although the Supreme Court has the discretion to accept law office failure as a reasonable excuse, see CPLR 2005, the excuse must be supported by detailed allegations of fact explaining the failure.

Case:  CEO Bus. Brokers, Inc. v. Alqabili, NY Slip Op 02708 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A fall from a scaffold.

Jury misconduct and a mistrial.

Practice point: Immediately after receiving the verdict in this personal injury action, an off-the-record discussion with the jury revealed that they had consulted an online dictionary to define the term "substantial." The Appellate Division determined that, regardless of whether the jury was discharged, the trial court properly engaged in an inquiry regarding external influences on the jury. Further, the court properly determined that the jury's act of consulting an outside dictionary on a term critical to its decision constitutes misconduct warranting a mistrial, especially since the foreperson indicated that the jury was "confused" about the term "substantial" and the court was unable to give curative instructions.

Student note: However, because the jury's misconduct related only to the issue of liability, and there is no evidence that it affected the jury's determination on damages, the Appellate Division reinstated the verdict on damages.

Case: Olshantesky v. New York City Tr. Auth., NY Slip Op 02685 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Vacating defaults, and law office failure.

Elevation-related hazards at the work-site, and safety devices.

Practice point: An owner or its agent is liable under Labor Law § 240(1) if the plaintiff was injured while engaged in an activity covered by the statute and was exposed to an elevation-related hazard for which no safety device was provided or the device provided was inadequate. The statute requires owners and their agents to provide workers with adequate safety devices when they engage in activities such as repairing or altering a building.

Student note: The purpose of the statute is to protect workers by placing the ultimate responsibility for work-site safety on the owner, and Labor Law § 240(1) imposes strict liability on the owner for a breach of the statutory duty which has proximately caused injury.

Case: Vasquez v. Cohen Bros. Realty Corp., NY Slip Op 02682 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Jury misconduct and a mistrial.

Relief from an order or judgment.

Practice point: CPLR 5015(a)(3) permits a court to relieve a party from an order or judgment on the ground of fraud, misrepresentation, or other misconduct of an adverse party.

Student note: While there is no specific time limit within which to move under this provision, the motion must be made within a reasonable time.

Case: Empire State Conglomerates v. Mahbur, NY Slip Op 02537 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Elevation-related hazards at the work-site, and safety devices.

Meeting of the minds.

Practice point: Plaintiff failed to meet its burden of showing that there was a meeting of the minds as to the terms of a joint venture, or even that a joint venture was contemplated. Indeed, the record is filled with lengthy, handwritten, sometimes illegible documents by someone who had no authority to bind plaintiff to any contract. Moreover, the documents were written from his prison cell and thus had to be based only on his recall, as he was not allowed to give or receive documents from visitors. The record contains multiple versions of what plaintiff asserts to be the alleged joint venture agreement (also handwritten), yet not one of these documents is signed by both parties. The various versions of the agreements are oddly numbered, sometimes missing pages, and missing clauses plaintiff asserts were both material and agreed upon. Further, the testimony of plaintiff's witnesses, who were all self-interested and sometimes gave patently unbelievable testimony, did not tend to cure the deficiencies in the documentary evidence.

Student note: The same failures that prevent plaintiff from showing an express contract prevent it from showing an implied contract.

Case:  Gold Coast Advantage, Ltd. v. Trivedi, NY Slip Op 02651 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Relief from an order or judgment.

Workers' Compensation and special employers.

Practice point: The protection against lawsuits brought by injured workers which is afforded to employers by Workers' Compensation Law §§ 11 and 29(6) extends to special employers.Thus, an injured person who elects to receive Workers' Compensation benefits from the general employer is barred from maintaining a personal injury action against the special employer. The exclusivity provisions of the Workers' Compensation Law also extend to entities which are alter egos of the injured worker's employer.

Student note: A special employee is one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer.

Case: Abreu v. Wel-Made Enters., Inc., NY Slip Op 02524 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Meeting of the minds.

Motion to dismiss a legal malpractice claim.

Practice point: Defendants' motion to dismiss was not untimely since the parties had stipulated, both orally and in writing, to extend defendants' time to respond to the complaint, and defendants had served and
filed their motion to dismiss by the stipulated date.

Student note: On the merits, defendants were entitled to dismissal on res judicata grounds. The Workers' Compensation Board's award of legal fees to defendants, imposed as a lien against the ultimate award of compensation to plaintiff, pursuant to Workers' Compensation Law § 24, precludes plaintiff's claim that defendants represented him negligently, a claim that could have been raised in opposition to defendants' fee application.

Case: Bob v. Cohen, NY Slip Op 02499 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Workers' Compensation and special employers.

Accord and satisfaction.

Practice point: Here, there were a number of factual disputes as to which accounts would form the basis of decedent's commissions, the amount due on those accounts and whether the final yearly tally contained amounts constituting gifts. The motion court properly found that there was no evidence of an accord and satisfaction for commissions payable during the year 2002 based upon the conflicting claims for that year. Although the checks issued by defendant to decedent for commissions bore the notation "settlement," the doctrine requires a clear manifestation of intent by the parties that the payment was made, and accepted, in full satisfaction of the claim.

Student note: Accord and satisfaction requires the existence of an actual dispute, manifested by a specific demand by the alleged creditor and an express, good-faith disagreement with that demand by the debtor.

Case: Rosenthal v. Quadriga Art, Inc., NY Slip Op 02475 (1st Dept. 2013).

Here is the decision.

Monday's issue: Motion to dismiss a legal malpractice claim.

Medical malpractice, negligence, and nursing homes.

Practice point: In this medical malpractice and negligence action, defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting, among other things, their expert affirmation and medical records. The medical records supported defendants' expert's opinion that decedent's chronic skin ulcers, gangrene and above-the-knee amputations, were the unavoidable result of his preexisting, chronic conditions, as well as other risk factors.

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff submitted the conclusory and speculative affirmation of an unnamed expert who failed to identify specific departures made by the nursing home, when other actions should have been taken by the nursing home and by whom, and how the results would have been different had those actions been taken.  The court found these failures especially troublesome, given plaintiff's expert's concession that decedent's preexisting conditions placed him at an increased risk for the conditions at issue.

Student note: In addition, the expert failed to address the evidence supporting vascular involvement and failed to establish that the nursing home's negligence, and not the natural progress of decedent's diseases and conditions, was a substantial factor in producing the injury.

Case: Negron v. St. Barnabas Nursing Home, NY Slip Op 02468 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Accord and satisfaction.

Legal malpractice.

Practice point: A client is not barred from a legal malpractice action where there is a signed settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel.

Student note: For a claim for legal malpractice to be successful, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney's negligence.

Case: Angeles v. Aronsky, NY Slip Op 02454 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:Medical malpractice, negligence, and nursing homes.

Statute of frauds.

Practice point: A party's admission of the existence and essential terms of an oral agreement is sufficient to take the agreement out of the statute of frauds.

Student note: However, if the parties dispute the very terms and conditions of the alleged oral agreement, the statute of frauds applies.

Case: Camhi v. Tedesco Realty, LLC, NY Slip Op 02368 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Legal malpractice.

Motions for renewal and reargument.

Practice point: The motion for renewal and reargument presented neither new facts nor a change in the law and was therefore a motion for reargument only, pursuant to CPLR 2221[e][2].

Student note:. An order that denies a motion for reargument is not appealable.

Case: D&A Constr., Inc. v. New York City Hous. Auth., NY Slip Op 02341 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Statute of frauds.

Discovery and striking a pleading.

Practice point: Defense counsel asserted that he could not produce the individual defendant for deposition because he could not secure his cooperation or locate him. The defendants failed to substantiate a reasonable excuse for the individual defendant's failure to appear for a court-ordered deposition. In addition, the defendants failed to demonstrate a reasonable excuse for the corporate defendant's failure to appear at a court-ordered deposition. Accordingly, the Supreme Court providently exercised its discretion in issuing a conditional order requiring the defendants to appear for depositions within a specified time or face the sanction of striking their answer.

When the defendants failed to appear for their court-ordered depositions within the specified time, the conditional order became absolute.To be relieved of the order's striking their answer, the defendants were required to demonstrate a reasonable excuse for their failure to appear for depositions and a potentially meritorious defense.The defendants failed to demonstrate either, and their answer was properly stricken. As a result of having their answer stricken, the defendants were deemed to admit all traversable allegations in the complaint, including the basic allegation of liability. Accordingly, the Supreme Court properly granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability.

Student note: A court may issue an order striking out pleadings or rendering a judgment by default as a sanction against a party who refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed, pursuant to CPLR 3126[3]. While actions should be resolved on the merits when possible, a court may strike an answer upon a clear showing that the failure to comply with a disclosure order was the result of willful and contumacious conduct.

Case: Almonte v. Pichardo, NY Slip Op 02209 (2d Dept. 2013).

Here is the decision.

Monday's issue: Motions for renewal and reargument.

Slip and fall, and precluding a theory of liability.

Practice point:  Plaintiff alleged that she was injured when she slipped and fell on a wet foliage condition located on defendant's grounds. Defendant made a prima facie showing of entitlement to summary judgment as to this open and obvious condition, which was not inherently dangerous. Defendant's meteorologist stated that the wind was sufficient to create the foliage condition and that light rain, two hours earlier, accounted for the wetness of the leaves. Moreover, defendant's grounds' supervisor stated that the grounds crew took reasonable efforts to remove fallen foliage from the development's extensive property, by patrolling the grounds daily. Under the circumstances, defendant established that it met its duty to maintain its property in a reasonably safe condition.

Student note: Plaintiff's theory of liability that the slippery condition was caused by insufficient drainage for the sprinkler system was raised for the first time in opposition to the motion. The theory was precluded since it was not set forth in the notice of claim.

Case: Verdejo v. New York City Hous. Auth., NY Slip Op 02323 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Discovery and striking a pleading.

The inadmissibility of hearsay hospital notes.

Practice point: The Appellate Division determined that it was harmful error for the trial court to admit into evidence the hearsay hospital notes of the orthopedic surgeon who examined plaintiff after her accident. According to the doctor's notes, plaintiff stated that she slipped and fell on wet ground and complained of severe right ankle pain. However, at trial the doctor testified that he only assumed that the statement came from plaintiff. Moreover, the doctor admitted that he did not recognize plaintiff and had no independent recollection of the case. In addition, his original history notes were discarded, and he was unsure from whence he received the information.

Student note: Generally, admissions not germane to the treatment or diagnosis of a plaintiff's injuries are not admissible under the business records exception to the hearsay rule. A hearsay entry in a hospital record as to the cause of an injury may be admissible, even if not germane to diagnosis, if the entry is inconsistent with a position taken at trial. However, there must be evidence that connects the party to the entry.

Case: Grant v. New York City Transit Authority, NY Slip Op 02318 (1st Dept. 2013).

 Here is the decision.

Tomorrow's issue: Slip and fall, and precluding a theory of liablity.

Vacating a default.

Practice point:  In deciding a motion to vacate a default, the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. A general assertion that the default was occasioned by the defendant's insurance broker or liability carrier is insufficient. Here, the defendant's unsubstantiated claims that he believed that his insurance broker had forwarded the summons and complaint to his insurer and that his insurer was providing a defense are unreasonable given that the defendant was served with the plaintiff's motion for leave to enter a default judgment.

Student note: The defendant's claim that he did not receive the plaintiff's motion for leave to enter a default judgment, the default order, and other papers related to this action because the address to which they were mailed did not contain his unit number was improperly raised for the first time on appeal and therefore was not properly before the Appellate Division.

Case: Spitzer v. Landau, NY Slip Op 02067 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:The inadmissibility of hearsay hospital notes.

Defaults and damages.

Practice point:  A defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff's conclusion as to damages.

Student note: Where an entry of a default judgment against a defendant is made after an application to the court, the defendant is entitled to a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages.

Case: Rawlings v. Gillert, NY Slip Op 02063 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Vacating a default.

Motions to dismiss.

Practice point: A motion to dismiss, pursuant to CPLR 3211(a)(1), may be granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Student note: When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering the motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Whether a plaintiff can ultimately establish its allegations is not part of the calculus.

Case: Faith Assembly v. Titledge of N.Y. Abstract, LLC, NY Slip Op 02046 (2d Dept. 2013).

Here is the decision.

Monday's issue: Defaults and damages.

Pain and suffering, and expert witnesses.

Practice point: A claim to recover damages for conscious pain and suffering requires proof that the injured party experienced some level of cognitive awareness following the injury. Mere conjecture, surmise or speculation is not enough to sustain a claim for such damages.

Student note: A jury is not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination. Rather, a jury is at liberty to reject an expert's opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion.
Determinations regarding the credibility of expert witnesses are entitled to great weight on appeal, as the jury had the opportunity to observe and hear the experts.

Case: Curry v. Hudson Val. Hosp. Ctr., NY Slip Op 02043 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:Motions to dismiss.

Judgments as a matter of law CPLR 4401

Practice point: The Appellate Division's decision and order in a prior appeal, determining that questions of fact existed precluding summary judgment in the plaintiff's favor, did not decide that there necessarily would be established an issue of fact at the trial which would have to be determined by a jury. So, the Appellate Division's determination on the summary judgment motion did not preclude the plaintiff from seeking judgment as a matter of law upon the close of evidence at trial, and did not require the automatic denial of such a motion.

Student note: To succeed on a motion for judgment as a matter of law pursuant to CPLR 4401, a party has the burden of showing that there is no rational process by which the jury could find in favor of the opposing party and against him or her.

Case:  Coates v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., NY Slip Op 02041 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Pain and suffering, and expert witnesses.

Curing a defective complaint.

Practice point:  In a prior appeal in this action, the Appellate Division held that plaintiffs could not rely on the relation-back provisions in CPLR 203(f) to cure their defective initial complaint, based on their failure to comply with the subject agreements' condition precedent to commencing an action, since the doctrine is dependent upon the existence of a valid preexisting action. However, on this appeal, the Appellate Division found that the savings clause of CPLR 205(a) does not bar plaintiffs' action, since the statute was created to serve in those cases in which the prior action was defective and so had to be dismissed.

Student note: The dismissal of the prior action for plaintiffs' failure to comply with a condition precedent was not a judgment on the merits, and plaintiff commenced a new action within the six-month period required by CPLR 205(a).

Case: Southern Wine & Spirits of Am., Inc. v. Impact Envtl. Eng'g, PLLC, NY Slip Op 02146 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Judgments as a matter of law CPLR 4401

Validity of service.

Practice point: It is the plaintiff's burden to prove, by a preponderance of the evidence, that jurisdiction over the defendant was obtained by proper service of process. A process server's affidavit ordinarily constitutes a prima facie showing of proper service.

Student note: Where the defendant submits a sworn denial which specifically refutes the process server's affidavit, the prima facie showing is rebutted and the plaintiff must establish jurisdiction, by a preponderance of the evidence, at a hearing.

Case: Aurora Loan Servs., LLC v. Gaines, NY Slip Op 02034 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Curing a defective complaint.