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.