Applying for leave to serve a late notice of claim.

Practice point:  General Municipal Law § 50-e(7) provides, in pertinent part, that "[w]here the application is for leave to serve a late notice of claim, it shall be accompanied by a copy of the proposed notice of claim." Here, no proposed notice of claim was submitted with the cross motion. This was sufficient justification by itself to deny the cross motion.

Student note:  In any event, the plaintiffs did not demonstrate a reasonable excuse for their failure to serve a timely notice of claim upon the Fire Department. The plaintiffs' unsubstantiated claim of law office failure by their former attorney does not constitute a reasonable excuse for the failure to serve a timely notice of claim.

Case:  Grasso v. Nassau County, NY Slip Op 05674 (2d Dept. 2013).

Here is the decision.

Tuesday's issue: Conditional language in a purported admission.

Assignments.

Practice point:  Under New York law, claims are generally assignable. No special form or language is necessary to effect an assignment as long as the language shows the intention of the owner of a right to transfer it.

Student note:  Contrary to the defendant's contention, it was not necessary for the plaintiff to enter into a liquidating agreement with the assignor, as the amended complaint sufficiently alleges facts which, if proven, would establish that the assignor had viable claims for contractual and common-law indemnification against the defendant in the absence of such an agreement.

Case:  Constructamax, Inc. v. Dodge Chamberlin Luzine Weber, Assoc.Architects, LLP, NY Slip Op 05671 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Applying for leave to serve a late notice of claim.

Unsealing court records.

Practice point:  New York courts are reluctant to allow the sealing of court records even where both sides to the litigation have asked that the records be sealed. The presumption of the benefit of public access to court proceedings takes precedence, and sealing of court papers is permitted only to serve compelling objectives, such as when the need for secrecy outweighs the public's right to access. Here, the Supreme Court did not specify the grounds for sealing the record, and it did not issue a finding of good cause. Accordingly, the Appellate Division directed that the record be unsealed.

Student note:  22 NYCRR 216.1(a), states, in pertinent part, that "a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof."

Case:  Matter of Holmes v. Winter, NY Slip Op 05666 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:  Assignments.

Motions to consolidate or for a joint trial.

Practice point:  Where common questions of law or fact exist, a motion to consolidate or for a joint trial pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion.

Student note:  Here, given the plaintiff's allegations that injuries that he sustained in the automobile accident were exacerbated by the work-related accident, in the interest of justice and judicial economy, and to avoid inconsistent verdicts, the two actions should be tried jointly.

Case: Cieza v. 20th Ave. Realty, Inc., NY Slip Op 05610 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Unsealing court records.

Default judgments and law office failure.

Practice point:  To successfully oppose a motion for leave to enter a default judgment based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its delay and the existence of a potentially meritorious defense. In its discretion, the court may accept law office failure as an excuse, pursuant to CPLR 2005. The claim of law office failure must be supported by  a detailed and credible explanation of the default or defaults at issue. Law office failure should not be excused where allegations of law office failure are conclusory and unsubstantiated.

Student note:  The Appellate Division determined that the Supreme Court properly exercised its discretion in deeming the defendant's answer, which was annexed to its opposition papers to the plaintiff's motion, to be served, even in the absence of a formal notice of cross motion seeking leave to serve a late answer.

Case: Blake v. United States of America, NY Slip Op 05609 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Motions to consolidate or for a joint trial.

Punitive and compensatory damages.

Practice point:  The court granted that branch of the defendants' cross motion which was for summary judgment dismissing the plaintiff's claim for punitive damages. In opposition to the defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether the defendants' alleged conduct was so gross, wanton, or willful, or of such high moral culpability, as to warrant an award of punitive damages.
   The court also granted that branch of the defendants' cross motion which was for an award of costs and attorney's fees pursuant to CPLR 8303-a(c). The plaintiff's claim for punitive damages was asserted only to harass the defendants, and an award of costs and attorney's fees is warranted.

Student note:   As the complaint only seeks $3,500 in compensatory damages, the Supreme Court, in its discretion, may remove the action to a lower court pursuant to CPLR 325(d).

Case:  Baxter v. Javier, NY Slip Op 05605 (2d Dept. 2013).

Here is the decision.

Monday's issue: Default judgments and law office failure.

Conveyance of a property by deed.

Practice point:  Real Property Law § 240(3) provides that "[e]very instrument creating [or] transferring . . . real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law." Where a deed admits more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances.

Student note:  Courts may, as a matter of interpretation, carry out the intention of a contract by transposing, rejecting, or supplying words to make the meaning of the contract more clear. However, such an approach is appropriate only in those limited instances where some absurdity has been identified or the contract would otherwise be unenforceable, either in whole or in part.

Case:  Al's Atl., Inc. v. Shatma, LLC, NY Slip 05604 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Punitive and compensatory damages.

The first-in-time rule.

Practice point:  New York courts generally follow the rule, which provides that the court which has first taken jurisdiction is the one in which the matter should be determined, and it is a violation of the rules of comity to interfere.

Student note:  When considering whether to dismiss a later-filed action, courts will determine whether there is a sufficient identity of parties. In fact, substantial, not complete, identity of parties is all that is required to invoke CPLR 3211(a)(4). Where, as here, a plaintiff seeks the same damages for the same alleged injuries relating to the same transaction from close corporate affiliates, a court may properly make a finding that parties have substantially similar identities sufficient to invoke the rule.

Case:  Syncora Guar. Inc. v. J.P. Morgan Sec., LLC, NY Slip Op 05602 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Conveyance of a property by deed.

Motion for summary judgment in lieu of a complaint.

Practice point:  On a CPLR 3213 motion, a plaintiff may supplement its papers in response to a defendant's arguments in order to establish its entitlement to summary judgment in lieu of a complaint. Nothing that can be cured merely by adding papers should result in a denial of the motion, unless it is a denial with leave to renew on proper papers, pursuant to Siegel. Mere omissions from the affidavits that can be rectified by filing and serving additional affidavits should be cured by a continuance or adjournment in order for the additional affidavits to be served and filed.

Student note: If the motion is denied, the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise.

Case:  Sea Trade Mar. Corp. v. Coutsodontis, NY Slip Op 05599 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: The first-in-time rule.

An accountant's negligent misrepresentations.

Practice point:  Accountants may be held liable for negligent misrepresentations made to third parties with whom they have no contractual relationship, but who have relied to their detriment on inaccurate financial statements prepared by the accountant. In order to establish such liability, the relationship between the accountant and the party must be found to approach privity, through a showing that the following prerequisites are satisfied: (1) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes, (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants' understanding of that party or parties' reliance.

Student note:   Here, the Appellate Division found that allegations supporting the cause of action to recover damages for negligent misrepresentation did  not satisfy the third prong. Viewing the complaint in the light most favorable to the plaintiff, as amplified by the evidence submitted by the plaintiff in opposition to the defendant's motion, the complaint failed to allege some conduct by the defendant linking it to the plaintiff which evinced the defendant's understanding of the plaintiff's reliance. Accordingly, the Supreme Court should have granted that branch of the defendant's motion to dismiss.

Case:  Signature Bank v. Holtz Rubenstein Reminick, LLP, NY Slip Op 05564(2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Motion for summary judgment in lieu of a complaint.

Leave to enter a default judgment.

Practice point:  On a motion for leave to enter a default judgment pursuant to CPLR 3215, a plaintiff is required to file proof of: (1) service of a copy or copies of the summons and the complaint, (2) the facts constituting the claim, and (3) the defendant's default. To demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine that a viable cause of action exists. CPLR 3215(f) expressly provides that a plaintiff may satisfy this requirement by submitting the verified complaint. To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense.

Student note: If, as was the case here, the defendant is a domestic corporation and was originally served with the summons and complaint by personal delivery to the Secretary of State, pursuant to Business Corporation Law § 306[b]), a plaintiff is also required to serve the defendant a second time, by first-class mail at its last known address, pursuant to CPLR 3215[g][4][i].

Case:  Fried v. Jacob Holding, Inc., NY Slip Op 05555 (2d Dept. 2013).

Here is the decision.

Monday 's issue: An accountant's negligent misrepresentations.

Summary judgment in a slip and fall case.

Practice point:  A defendant who moves for summary judgment in a slip-and-fall or trip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it.  In order to meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff's fall.

Student note:  A movant cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case. If the defendant fails to meet its prima facie burden, the court need not consider the sufficiency of the plaintiff's opposition papers.

Case:  Campbell v. New York City Tr. Auth., NY Slip Op 05553 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Leave to enter a default judgment.

Dismissal for failure to prosecute.

Practice point:  The defendant's motion to dismiss the complaint based on the inordinate and prejudicial delay in prosecuting the action should was denied. The court could not dismiss this pre-note of issue action on the ground of a general lack of prosecution since the plaintiff had not received a 90-day demand pursuant to CPLR 3216(b) requiring the plaintiff to serve and file a note of issue.

Student note: CPLR 3216 permits a court to dismiss an action for failure to prosecute only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action.

Case:  Armouth-Levy v. New York City, NY Slip Op 05551 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Summary judgment in a slip and fall case.

Post-deposition errata sheets.

Practice point:  In his post-deposition errata sheet, the injured plaintiff radically changed much of his earlier testimony, with the vague explanation that he had been "nervous" during his deposition. Since the injured plaintiff failed to offer an adequate reason for materially altering the substance of his deposition testimony, the altered testimony could not properly be considered in determining the existence of a triable issue of fact as to whether a defect in, or the inadequacy of, the ladder caused his fall.

Student note:  CPLR 3116(a) provides that a "deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of reasons given by the witness for making them."

Case:  Ashford v. Tannenhauser, NY Slip Op 05508 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Dismissal for failure to prosecute.
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Laches and dismissal.

Practice point:  The doctrine of laches does not provide an alternate basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216(b), and where the case management devices of CPLR 3404 and 22 NYCRR 202.27 are inapplicable.

Student note:  Marking a case off a motion or conference calendar does not dispose of it.

Case:  Arroyo v. Board of Educ. of City of New York, NY Slip Op 05507 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Post-deposition errata sheets.

Searching the record on a summary judgment motion.

Practice point:  A court deciding a motion for summary judgment is empowered to search the record and may, even in the absence of a cross motion, grant summary judgment to a nonmoving party. Such power, however, is not boundless, and the court's search of the record is limited to those causes of action or issues that are the subject of the motion.

Student note:  Moreover, discovery in this matter was not complete at the time the court searched the record. Thus, it was premature for the court to grant summary judgment.

Case:  New Hampshire Ins. Co. v. MF Global, Inc., NY Slip Op 05291 (1st Dept. 2013).

Here is the decision.

Monday's issue: Laches and dismissal.

Aiding and abetting a breach of fiduciary duty, and appeals from denial of a dismissal motion.

Practice point:  Liability for aiding and abetting a breach of fiduciary duty requires establishing the following elements: (1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; and (3) the defendant must knowingly and substantially assist the principal violation.

Student note:  While an appeal taken from a denial of a dismissal motion may be moot when that complaint has been superseded by an amended complaint, that is not the case where the new pleading does not substantively alter the existing causes of action.

Case:  Aetna Life Ins. Co. v. Appalachian Asset Mgt. Corp., NY Slip Op 05506 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Searching the record on a summary judgment motion.

Disorderly conduct as between spouses.

Practice point:  The criminal and family courts have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, as defined by the Penal Law, when committed between spouses, pursuant to Family Ct. Act § 812; CPL 100.07, 530.11[1]. In a family offense proceeding, the petitioner has the burden of establishing, by a fair preponderance of the evidence, that the charged conduct was committed as alleged in the petition, pursuant to Family Ct. Act § 832.

Student note:  The petitioner is required to prove that the spouse's conduct was committed with the intent to cause, or recklessly posed a risk of causing, public inconvenience, annoyance, or alarm.

Case: Matter of Cassie v. Cassie, NY Slip Op 05446 (2d Dept. 2013)

Here is the decision.

Tomorrow's issue: Aiding and abetting a breach of fiduciary duty, and appeals from denial of a dismissal motion.

Restitution of funds.

Practice point:  A party may seek restitution of funds paid pursuant to an order set aside on appeal. The determination whether to award restitution is within the discretion of the trial court.

Student note: CPLR 5015(d) empowers a court that has set aside a judgment or order to restore the parties to the position they were in prior to its rendition, consistent with the court's general equitable powers.

Case: Gaisi v. Gaisi, NY Slip Op 05438 (2d Dept. 2013).
  
Here is the decision.

Tomorrow's issue: Disorderly conduct as between spouses.

Denying a trustee's commission.

Practice point:  Courts have the discretion to take into consideration all of a trustee's misconduct in determining the grant of annual commission, even conduct that occurred after the period applicable to the commission. The Surrogate has broad discretion to deny commission to a trustee if the trustee has engaged in misconduct. In determining if a commission should be denied, misconduct that is not directly related to the commission being sought may be taken into consideration,

Student note:  Trustees can be denied commission where their acts involve bad faith, a complete indifference to their fiduciary obligations, or some other act that constitutes malfeasance or significant misfeasance. The denial of a commission, however, should not be in the nature of an additional penalty. Rather, it should be based on the trustee's failure to properly serve the trust.

Case:  Matter of Gregory Stewart Trust, NY Slip Op 05290 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Restitution of funds.

Notices to admit.

Practice point:  The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. Here, the plaintiff's notice to admit improperly sought the defendant's admission concerning a matter that went to the heart of the controversy.

Student note:  Moreover, the purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial.

Case:  Ramcharran v. New York Airport Servs., LLC, NY Slip Op 05195 (2d Dept. 2013).

Here is the decision.

Monday's issue: Denying a trustee's commission.

Judicial review of administrative determinations.

Practice point:  Judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to whether the determination is supported by substantial evidence. Substantial evidence means more than a mere scintilla of evidence, and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides.

Student note: When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the administrative agency. The courts may not weigh the evidence or reject the choice made by the agency where the evidence is conflicting and there is room for choice.

Case:  Matter of Solano v. City of Mount Vernon, NY Slip Op 05322 (2d Dept. 2013).

Tomorrow's issue: Notices to admit.