A fall on the stairs, and summary judgment denied.

Practice point:  Defendant failed to eliminate triable issues of fact as to whether it had constructive notice of the allegedly dangerous condition for a sufficient length of time before the accident to have permitted it to discover and remedy it.  In support of its motion, defendant submitted a transcript of plaintiff's deposition testimony, in which she stated, in response to a question asking her to identify the cause of the fall, that the subject stairs were shaky and the carpet was loose. So, contrary to defendant's contention, plaintiff sufficiently identified the cause of the fall. In addition, plaintiff testified that the stairs had been shaky for years and that she complained about the stairs to her supervisor two or three years before the accident.

Student note:  Although defendant also submitted transcripts of the superintendent's and porter's deposition testimony indicating that they never noticed any dangerous condition, this simply raised a question of credibility which may not be resolved on a motion for summary judgment.

Case:  Beharovic v. 18 E. 41st St. Partners, Inc., NY Slip Op 08946 (2d Dept. 2014)

Here is the decision.

 Friday's issue: Defendant's summary judgment motion in a legal malpractice action.

A slip-and-fall on water in the lobby.

Practice point:  In affirming the dismissal of the complaint, the Appellate Division noted that the defendants were not required to cover all of the floor with mats or continuously mop up all moisture resulting from the tracked-in rain.

Student note:  A general awareness that water might be tracked into a building when it rains is insufficient to impute to the defendants constructive notice of the particular dangerous condition.

Case:  Aguila v. Fox Hills Partners, LLC, NY Slip Op 08945 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A fall on the stairs, and summary judgment denied.

Dismissal of Labor Law claims.

Practice Point:  The Appellate Division reversed, and dismissed the complaint in its entirety, in this action where plaintiff was injured when he stepped into a hole on the flatbed trailer on which he was working.

Defendants demonstrated their prima facie entitlement to summary judgment dismissing the § 200 claims, as the uncontroverted evidence shows that defendants neither supervised or controlled plaintiffs' work, and that they had no actual or constructive notice of the hole in the flatbed trailer.

As for the § 240(1) claim, as plaintiff was working on a flatbed trailer, he was not exposed to any gravity-related risk arising from his work.  In fact, there is nothing in the record as to the manner of safety device that should have been provided to plaintiff.

While plaintiffs submitted in their pleadings and bills of particulars at least a dozen specific Industrial Code violations in support of their § 241(6) claim, only two were contested on appeal, and so the remainder are deemed abandoned and dismissed.

Plaintiffs allege a violation of Industrial Code § 23-1.7(b)(1)(i), which pertains to hazardous openings. However, that regulation has been construed to apply to openings that persons can fall through in their entirety. The hole at issue here does not meet this definition.

Industrial Code § 23-9.2(a) pertains to power-operated equipment. However, the flatbed trailer at issue here is not a piece of power operated equipment, and its attachment to a truck does not transform it into such.

Student note: As a result of the dismissal of the complaint in the entirety, plaintiff's spouse has no derivative claims.

Case:  Brown v. New York-Presbyterian HealthCare Sys., Inc., NY Slip Op 08912 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A slip-and-fall on water in the lobby.

Snow, ice, and a homeowner's liability.

Practice point:  Owners of owner-occupied single-family homes are exempt from liability imposed pursuant to section 7-210(b) of the Administrative Code of the City of New York for negligent failure to remove snow and ice from the abutting public sidewalk. However, they can be held liable where they, or someone on their behalf, undertook snow and ice removal efforts which made the natural conditions more hazardous.

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

Case:  Arashkovitch v. City of New York, NY Slip Op 08793 (2d Dept. 2014)

 Here is the decision.

Monday's issue: Dismissal of Labor Law claims.

Court holiday.

The courts are closed to mark Christmas Day.

Tomorrow's issue: Snow, ice, and a homeowner's liability.

Summary judgment in a personal injury action.

Practice point:  To prevail on the motion on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but also that he or she was free from comparative fault.

Student note:  The movant bears the initial burden of establishing prima facie entitlement to such relief, tendering sufficient evidence to eliminate any material issues of fact from the case.

Case:  Anjum v. Bailey, NY Slip Op 08792 (2d Dept. 2014)

Here is the decision.

Friday's issue:  Snow, ice, and a homeowner's liability.

A time-barred claim and equitable estoppel.

Practice point:  The Appellate Division determined that plaintiffs' claims for conversion and tortious interference with contract against the individual defendant, relating to unpaid producer royalties allegedly due to plaintiffs since 1992, were properly dismissed as time-barred. Plaintiffs cannot argue that defendant should be equitably estopped from raising the statute of limitations defense since the issue was not raised before the motion court. In any event, the argument is unavailing because plaintiffs rely on the same acts that form the basis of their underlying claims.

Student note:  For equitable estoppel to apply, plaintiffs must establish that defendants' subsequent and specific actions somehow kept them from timely bringing suit.

Case:  Stroud Prods. & Enters., Inc v. BMG Music, NY Slip Op 08778 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Summary judgment in a personal injury action.

New York's application of res judicata.

Practice point:  New York has adopted the transactional analysis approach in deciding the application of the doctrine of res judicata. Under this analysis, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.

Student note:  It is not always clear whether particular claims are part of the same transaction for res judicata purposes. New York uses a pragmatic' test to make this determination, analyzing whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage. One linchpin of res judicata is an identity of parties actually litigating successive actions against each other, and the doctrine applies only when a claim between the parties has been previously brought to a final conclusion.

Case:  Specialized Realty Servs., LLC v. Maikisch, NY Slip Op 08627 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A time-barred claim and equitable estoppel.

A claim for common-law negligence.

Practice point:  Even when negligence and injury are both properly found, the negligent party may be held liable only where the alleged negligence is a proximate cause of the injury.  Generally it is for the jury to determine the issue of causation. However, on a motion for summary judgment, the court will decide, as a matter of law, whether a prima facie case of negligence has been established.

Student note: The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty constituted a proximate cause of the injury.

Case:  Roberson v. Wyckoff Hgts. Med. Ctr., NY S.lip Op 08622 (2d Dept. 2014)

Here is the decision.

Monday's issue: New York's application of res judicata.

A physician's motion to dismiss a medical malpractice claim.

Practice point:  The physician-defendant's bare allegations which do not refute the specific factual allegations in the bill of particulars are insufficient to establish entitlement to judgment as a matter of law.

Student note:  A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no deviation or departure or that any alleged deviation or departure was not a proximate cause of the plaintiff's injuries.

Case: Reiss v. Sayegh, NY Slip Op 08619 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A claim for common-law negligence.

A collision with an unmarked police car.

Practice point:  The Appellate Division affirmed the granting of the municipal defendant's motion for summary judgment in this action involving a collision between an unmarked police vehicle and a taxi.

The police vehicle was an authorized emergency vehicle performing an emergency operation, namely, pursuing a traffic violator, and its operator was authorized to proceed through the red light, once it slowed down, pursuant to Vehicle and Traffic Law §§ 101, 114-b), and 1104 [a],[b][2]. In order to hold the municipal defendants liable, a plaintiff must demonstrate that the officer driving the police vehicle acted with reckless disregard for the safety of others, which requires a showing that he has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome.

Here, the officer's uncontroverted testimony was that he came to a complete stop prior to entering the intersection. The fact that he looked in the direction of, but did not see, the approaching taxi did not render his conduct reckless.

Student note:  Issues of fact as to whether the police lights were on or whether the siren was activated do not require a different result. A police vehicle performing an emergency operation is not required to activate either of these devices, in order to be entitled to the statutory privilege of passing through a red light, pursuant to Vehicle and Traffic Law § 1104[c].

Case:  Flynn v. Sambuca Taxi, LLC, NY Slip Op 08723 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A physician's motion to dismiss a medical malpractice claim.

A rear-end collision and a negligence claim.

Practice point:  One of several nonnegligent explanations for a rear-end collision may be a sudden stop of the lead vehicle.  However, vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the following driver, who is under a duty to maintain a safe distance between the following car and the car ahead.

Student note:  A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rear vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision.

Case:  Le Grand v. Silberstein, NY Slip Op 08608 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A collision with an unmarked police car.

A school bus company's liability for a fight on the bus.

 Practice point:  The bus defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they had no notice of any violent propensities or disciplinary problems on the part of the assailant.  The assailant's act of punching the infant plaintiff was sudden and unforeseeable, and any lack of supervision was not a proximate cause of the infant's alleged injuries.

Student note:  Like a school, a school bus company has a duty to adequately supervise children in its care, and to exercise the same degree of care toward them as would a reasonably prudent parent under similar circumstances. However, schools and school bus companies are not insurers of their students' safety. For liability to attach, they must have notice of the specific dangerous conduct so as to render the injury foreseeable, as well as a reasonable opportunity to prevent it.

Case:  Braun v. Longwood Jr. High School, NY Slip Op 08595 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A rear-end collision and a negligence claim.

Dismissal of a complaint alleging discrimination under the State and City Human Rights Laws.

Practice point:  Plaintiff failed to establish a prima facie case of discrimination under either the State or City Human Rights Laws because he failed to allege that defendants, who rejected plaintiff's screenplay submissions, were actually aware of his race. Instead, the complaint merely alleges that plaintiff sent defendants a link to a social networking site that contained his photograph, and that his photo was also available on the internet. In fact, the complaint itself suggests that defendants did not reject his screenplay submissions because of his race, but because defendants reviewed such submissions only when they were referred by a movie industry insider, and plaintiff did not know such an insider. The complaint also fails to allege discrimination under a disparate impact theory because it fails to allege any facts showing that defendants' insider-referral policy falls more harshly on black screenwriter applicants than other groups.

Student note:  Plaintiff does not adequately allege that he sought employment with defendants, as is required to support a State or City claim for unlawful discriminatory practices in employment by employers, and discrimination in an employment agency's referrals to an employer, pursuant to Executive Law §§ 296[1][a], [b] and Administrative Code §§ 8-107[1][a], [b].

Case:  Samuels v. William Morris Agency, NY Slip Op 08562 (1st Dept. 2014)

Here is the decision.

Monday's issue:  A school bus company's liability for a fight on the bus.

A motion to strike the testimony of defendant's expert.

Practice point:  The Appellate Division affirmed the denial of plaintiff's cross motion to strike the testimony of defendant's expert concerning the cause of the decedent's death. Upon receipt of defendant's 3101(d) statement expert disclosure statement, plaintiff's only objection was that the expert's qualifications failed to include the dates of his residency, which deficiency defendant then cured. Plaintiff neither rejected the document nor made any objection to the lack of specificity regarding the cause of death.

The Appellate Division determined that, having failed to timely object to the lack of specificity in defendant's expert disclosure statement regarding the cause of the decedent's death, plaintiff was not justified in assuming that the defense expert's testimony would comport with the conclusion reached by the autopsy report. The Appellate Division further determined that  plaintiff cannot now be heard to complain that defendant's expert improperly espoused some other theory of causation for which there was support in the evidence.

There was, however, a dissent.

Student note:  CPLR 3101(d)(1) requires reasonably detailed expert disclosure of the substance of the facts and opinions on which each expert is expected to testify in order to provide the plaintiff with the defendant's theories of the case in advance of trial.

Case:  Rivera v. Montefiore Med. Ctr., NY Slip Op 08469 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal of a complaint alleging discrimination under the State and City Human Rights Laws.

The denial of defendant's summary judgment motion in a Labor Law § 200 action.

Practice point:  Where, as here, a plaintiff contends that an accident occurred because of a dangerous condition at the work-site, an owner moving to dismiss Labor Law § 200 and common-law negligence claims has the initial burden of making a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of it. Defendant failed to meet that burden and the Appellate Division affirmed the motion's denial

Student note:  The failure to make a prima showing requires the motion's denial, regardless of the sufficiency of the opposition papers.

Case:  Costa v. Sterling Equip., Inc., NY Slip Op 08391 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A motion to strike the testimony of defendant's expert.

Reviewing a Court of Claims determination in a slip-and-fall action.

Practice point:  The Appellate Division affirmed the Court's determination that claimant failed to establish that the State created, or had actual or constructive notice of, the icy condition on a walkway at the state facility where claimant fell. The State had no more than a general awareness that icy conditions had developed on the hospital grounds, which was insufficient to constitute notice of the specific condition that caused the fall.

Student note:  In reviewing a determination made after a nonjury trial, the power of the Appellate Division is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts. In a close case, the Appellate Division will bear in mind that the trial judge had the advantage of seeing the witnesses.

Case:  Atkins v. State of New York, NY Slip Op 08387 (2d Dept. 2014)

 Here is the decision.

Tomorrow's issue:  The denial of defendant's summary judgment motion in a Labor Law § 200 action.

A Labor Law § 240(1) claim.

Practice point:  Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1).

Student note:  Labor Law § 240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks.

Case:  Garcia v. Market Assoc., NY Slip Op 08400 (2d Dept. 2014)

Here is the decision.

Monday's issue: Dismissal of a complaint alleging discrimination under the State and City Human Rights Laws.

Setting aside a jury verdict.

Practice point:  The Appellate Division affirmed plaintiff's motion, pursuant to CPLR 4404, to set aside the verdict as contrary to the weight of the evidence, and for a new trial. The Appellate Division determined that a fair interpretation of the evidence does not support the jury's finding that the defendant was not negligent. The defendant testified that, when she was stopped at the intersection, her view to her left, the direction from which the injured plaintiff was coming, was obstructed, and yet she proceeded. The fact that the defendant proceeded into the intersection without having a clear view of the traffic and without yielding the right-of-way after a stop sign demonstrated that she violated Vehicle and Traffic Law §§ 1142(a) and 1172(a). The jury could not properly disregard these violations, as they constitute negligence as a matter of law.

Student note: A jury verdict will not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence. It is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses.

Case:  Zhubrak v. Petro, NY Slip Op 08332 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Reviewing a Court of Claims determination in a slip-and-fall action.

A training injury where plaintiff had signed a release.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss this action where plaintiff allegedly sustained injuries while engaged in a personal training program, under a trainer's supervision and instruction, at a one-on-one training facility owned and operated by defendant. Plaintiff alleges that the personal trainer negligently instructed and supervised him in the lifting of an excessive amount of weight.

Plaintiff had executed a release wherein he acknowledged that there were "inherent risks in participating in a program of strenuous exercise" and released defendant from "all claims . . . which [plaintiff]...may have against [defendant] . . . for all injuries . . . which may occur in connection with my participation in the program."

However, the Appellate Division found that the language of the release does not reflect a clear and unequivocal intent to limit liability for negligence. While the release warned of the risks inherent in undergoing a strenuous exercise program, it does not exempt defendant from liability for injury which may result from its failure to use due care in its training methods.

Student note:  General Obligations Law § 5-326 does not bar enforcement of this release, as defendant's facility is an instructional, and not a recreational, one.

Case:  Kim v. Harry Hanson, Inc., NY Slip Op 08229 (1st Dept. 2014)

Here is the decision.

Monday's issue: Setting aside a jury verdict.

A CPLR 4404(a) motion.

Practice point:  The motion here raises issues of errors in the trial court's charge and verdict sheet. In its instructions, the trial court must state the law relevant to the particular facts in issue. A set of instructions that confuses or incompletely conveys the appropriate legal principles to be applied in a case requires a new trial.

Student note: In considering such a motion, the court will decide whether substantial justice has been done, and must look to common sense, experience, and sense of fairness in deciding the motion.

Case:  Ali v. City of New York, NY Slip Op 08310 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A training injury where plaintiff had signed a release.

Notice in a slip and fall action

Practice point:  In support of its motion to dismiss, defendant submitted a transcript of the injured plaintiff's deposition testimony and argued that she was unable to identify the cause of her fall. However, at deposition, the injured plaintiff, with the aid of accident scene photographs, identified the uneven portion of the sidewalk abutting the liquor storefront that caused her to trip and fall. So, the Appellate Division determined that defendant failed to make a prima facie showing that the sidewalk was not in a hazardous condition and that the injured plaintiff's fall was not proximately caused by its negligence in failing to remedy the defect.

As defendant did not establish its entitlement to judgment as a matter of law, there was no need to review the sufficiency of the plaintiffs' opposition papers.

Student note:  A plaintiff's inability to identify the cause of his or her fall is fatal to the cause of action.

Case: Alayev v. Juster Assoc., LLC, NY Slip Op 08309 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A CPLR 4404(a) motion.

Reassignment to another Part and summary judgment.

Practice point:  The controlling preliminary conference order directed that summary judgment motions were to be submitted within 120 days of the filing of the note of issue. The matter then was reassigned to another Part, whose rules provide for a 60-day time limit. However, that did not eliminate the provision of the preliminary conference order, in the absence of a further order or directive explicitly providing for a reduced time limit, or some other direction that the time limits of the new Part's rules would supersede the preliminary conference order.

Student note:  CPLR 3212(a) provides that unless the court sets another date, a motion for summary judgment must be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.

Case:  Freire-Crespo v. 345 Park Ave. L.P., NY Slip Op 08106(1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Notice in a slip and fall action.

The heightened pleading standard for fraud.

Practice point:  The Appellate Division affirmed dismissal of the fraud claim, as plaintiff did not satisfy the heightened pleading standard under CPLR § 3016(b). Plaintiff failed to identify any allegedly false representations that defendant made with the intent to induce plaintiff's investment.

Student note:  The Appellate Division found that the fraudulent inducement claim duplicates the breach of contract claim because plaintiff has not alleged any representation that is collateral to the contract. A fraud-based claim is duplicative of breach of a contract claim when the only fraud alleged is that the defendant was not sincere when it promised to perform under the contract.

Case:  MMCT, LLC v. JTR Coll. Point, LLC, NY Slip Op 08103 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Reassignment to another Part and summary judgment.

Tree wells, ownership, and liability.

Practice point:  Administrative Code of the City of New York § 7-210, which became effective on September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner.  However, a tree well is not part of the sidewalk for purposes of that Code section.

Student note:  Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land.

Case:  Avezbakiyev v. Champion Commons, LLC, NY Slip Op 07966 (2d Dept. 2014)

Here is the decision.

Monday's issue: The heightened pleading standard for fraud.

Court holiday.

The courts are closed to mark Thanksgiving Day.

Tomorrow's issue:  Tree wells, ownership, and liability.

Medical malpractice, summary judgment, and a battle of the experts.

Practice point:  Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such conflicting expert opinions will raise credibility issues which can only be resolved by a jury.

Student note:  However, a plaintiff's expert's affidavit that is conclusory or speculative is insufficient to raise a triable issue of fact in opposition to a defendant's prima facie showing of entitlement to judgment as a matter of law in a medical malpractice action.

Case:  Barrocales v. New York Methodist Hosp., NY Slip Op 07606 (2d Dept. 2014)

Here is the decision.

Friday's issue: Tree wells, ownership, and liability.

A fall on the ice.

Practice point:  The Appellate Division reversed and dismissed the complaint in this action where plaintiff allegedly slipped and fell on an icy condition on defendant's property. Defendant's supervisor of grounds testified that he and his crew had shoveled snow, removed ice, and salted and sanded the parking lot after a snow fall the day before the accident, and that any icy condition was addressed. This evidence showed that defendant did not have actual or constructive notice of the icy condition.

In opposition, plaintiff presented no evidence that defendant created the condition, that it was readily apparent, or that it was present for a sufficiently long period of time so that defendant had an opportunity to remedy the alleged hazard. Nor did plaintiff describe with any specificity the alleged condition that caused him to fall, from which it might be inferred, without speculation, that it was visible and apparent, particularly in view of the testimony of the supervisor of grounds that he had cleared the area and no snow or ice remained.

Student note:  While the issue was not addressed by the motion court, the Appellate Division found no triable issue as to whether the lighting in the parking lot contributed to plaintiff's fall. The record shows that defendant's supervisor of grounds inspected the exterior lights several days prior to plaintiff's fall and found them to be functioning properly, and plaintiff did not submit any contradictory evidence.

Case:  Vidal v. City of New York, NY Slip Op 07591 (1st Dept 2014)

Here is the decision.

Tomorrow's issue:  Medical malpractice, summary judgment, and a battle of the experts.

CPLR 3103(a) and an infant plaintiff's deposition.

Practice point:  The Appellate Division determined that the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' cross motion which was for a protective order pursuant to CPLR 3103(a) preventing the infant plaintiff from being deposed. Contrary to the plaintiffs' contention, the court did not err in determining that the infant plaintiff is competent to testify without conducting a preliminary examination.

Student note:  The Appellate Division agreed with the Supreme Court's determination that, in light of the infant plaintiff's fragile condition, the parties must work with their experts to put in place guidelines so as to lessen the stress and trauma on the infant plaintiff during the deposition.

Case:  Serrano v. Lutheran Social Servs. of Metro. N.Y., Inc., NY Slip Op 07491 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A fall on the ice.

CPLR 205(a).

Practice point:  CPLR 205(a) provides that when an action is dismissed on grounds other than voluntary discontinuance, lack of personal jurisdiction, neglect to prosecute, or a final judgment on the merits, the plaintiff may bring a new action within six months of the dismissal, even though the action would otherwise be barred by the statute of limitations.

Student note:  The six-month period runs from the date of termination of the earlier action, which in this case was the entry of the order.

Case:  Ross v. Jamaica Hosp. Med. Ctr., NY Slip Op 07490 (2d Dept. 2014)

Here is the decision.

Monday's issue: CPLR 3103(a) and an infant plaintiff's deposition.

A counterclaim to recover unpaid rent.

Practice point:  The Appellate Division determined that the Supreme Court properly denied that branch of the defendants' cross motion which was for summary judgment on their counterclaim to recover unpaid rent. Before a tenant may withhold rent, the tenant must prove actual or constructive eviction. To demonstrate constructive eviction a tenant must vacate the premises. Here, the defendants' submissions failed to demonstrate, prima facie, that the plaintiff remained in possession of the leased premises and thus, was not constructively evicted.

Student note:   A commercial tenant's obligation to pay rent is not suspended if the tenant remains in possession of the leased premises, even if the landlord fails to provide essential services.

Case:  Prakhin v. Fulton Towers Realty Corp., NY Slip Op 07487 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  CPLR 205(a)

Damages for a hot water burn.

Practice point:  The Appellate Division reversed, and dismissed the third-party complaint in this action for personal injuries allegedly sustained by plaintiff when she was burned by hot water while showering in the bathroom of an apartment  where third-party defendant was superintendent. Third-party defendant met its initial burden of demonstrating that it did not create or have actual or constructive notice of the alleged dangerous condition. Although third-party defendant acknowledges acting to address complaints of no heat or hot water on the upper floors of the building within two weeks of the incident which resulted in plaintiff's injuries, the undisputed evidence establishes that the domestic hot water supply system and the heating system for the building were separate, and that adjustments made by third-party defendant to the heating system would have had no effect on the domestic hot water supply system.

Student note:  Third-party plaintiff failed to present evidence that any action taken by third-party defendant caused excessively hot water. Third-party plaintiff's expert expressly stated that he did not evaluate the heating system, which was different from the domestic hot water supply system. Although he opined that leaving the domestic hot water supply system in the hands of an inexperienced person, such as third-party defendant, was dangerous and negligent, no evidence was presented that any action by third-party defendant proximately caused plaintiff's injuries or that third-party defendant was responsible for repairs to the domestic hot water supply system.

Case:  Duff v. 646 Tenth Ave., LLC, NY Slip Op 07589 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A counterclaim to recover unpaid rent.

Driving a vehicle without the owner's permission.

Practice point: For summary judgment on its defense that the vehicle was used without its permission, the defendant must present substantial evidence that the vehicle was used without its permission. The owner's uncontradicted testimony that the vehicle was operated without permission does not, by itself, overcome the presumption of permissive use. The question of consent is ordinarily one for the jury.


Student note:  Vehicle and Traffic Law § 388 creates a strong presumption that the driver is operating it with the owner's consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner's express or implied permission.

Case: Han v. BJ Laura & Son, Inc., NY Slip Op 07480 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Damages for a hot water burn.

An inaccurate notice of claim.

Practice point:  The plaintiff allegedly was injured when the vehicle she was driving struck a raised sewer cap. While the plaintiff's notice of claim, complaint, and bill of particulars alleged that the accident occurred on Narrows Road North at the intersection of Targee Street, an amended bill of particulars alleged that the accident occurred on Narrows Road North between Rhine Avenue and Targee Street. The Appellate Division affirmed the denial of the defendants' motion to dismiss the complaint on the ground that the notice of claim did not accurately describe the location of the accident. The defendants failed to establish that they were prejudiced by any inaccuracy in the description of the location of the accident in the notice of claim.

Student note:  Pursuant to General Municipal Law § 50-e(6), the Supreme Court had the discretion to allow the plaintiff to correct a mistake or supply an omission in the notice of claim at any time, and at any stage of the action.

Case:  Miller v. City of New York, NY Slip Op 07479 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Driving a vehicle without the owner's permission.

Striking a pleading.

Practice point:  The plaintiffs served a response to the defendant's notice for discovery and inspection, and answers to interrogatories, as they were directed to do by court order. Thereafter, they produced further documents, as set forth in a stipulation. The Appellate Division determined that, while the defendant was clearly dissatisfied with the responses to his demands, there was no showing of a pattern of willful failure to respond to discovery demands or comply with disclosure orders, so as to justify dismissing the complaint and striking the reply to counterclaims.

Student note:  The determination whether to strike a pleading lies within the sound discretion of the trial court, pursuant to CPLR 3126[3]. It is a drastic remedy that is not appropriate absent a clear showing that the failure to comply with discovery demands was willful or contumacious.

Case:  Holand v. Cascino, NY Slip Op 07474 (2d Dept. 2014)

Here is the decision.

Monday's issue:  An inaccurate notice of claim.

Statutes of limitations for false arrest, false imprisonment, and intentional infliction of emotional distress.

Practice point: Causes of action based on false arrest and false imprisonment accrue upon release from confinement and are governed by a one-year statute of limitations, pursuant to CPLR 215[3]. The one-year statute for intentional infliction of emotional distress begins to run on the date of injury.

Student note:  Plaintiff was not entitled to a toll of the statute of limitations based on equitable estoppel as he did not allege, either in his complaint or in opposition to the defendant's motion to dismiss, any misleading conduct on the part of the defendant upon which plaintiff could have reasonably relied to delay his commencing the action.

Case:  Bellissimo v. Mitchell, NY Slip Op 07464 (2d Dept. 2014)

Here is the decision. 

Tomorrow's issue: Striking a pleading.

Submitting interrogatories to the jury.

Practice point: In this dental malpractice action, the plaintiff-appellant contends that the court erred in denying her request that the jury be given an interrogatory asking whether there had been a departure in the preoperative planning itself, and in the performance of the surgery, rather than just in his failure to communicate the change in plan. The Appellate Division agreed, and reversed.

While the trial court has broad discretion in deciding whether to submit interrogatories to the jury, pursuant to CPLR 4111[c], where there is sufficient evidence to support a plaintiff's cause of action pursuant to a particular theory of negligence, it is error to deny a request by the plaintiff to submit an interrogatory to the jury regarding that theory.

Student note: Where a court improperly limits a verdict sheet in this manner, a new trial is warranted, and the Appellate Division ordered one here.

Case:  Abato v. Beller, NY Slip Op 07460 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Statutes of limitations for false arrest, false imprisonment, and intentional infliction of emotional distress.

Court holiday.

The courts are closed to mark Veterans Day.

Tomorrow's issue:  Submitting interrogatories to a jury.

Striking a pleading for a discovery violation.

Practice point:  The Appellate Division determined that the motion court providently exercised its discretion in conditionally granting plaintiff's CPLR 3126 motion to strike the appellant's answer and third-party complaint unless she appeared for a deposition on a specified date.  The appellant repeatedly failed to comply with the discovery orders, including the failure to provide supplemental responses to certain interrogatories and to appear for a deposition. At the time that the court ordered that the parties' depositions be conducted on a specified date, two prior court-ordered deadlines had passed, and the case was almost five years old. Moreover, the appellant's excuse for failing to appear on the specified date, even though her counsel had confirmed her appearance prior to that date, was not reasonable. Furthermore, the motion court only conditionally granted that branch of the plaintiff's motion which was to strike the appellant's pleadings, and provided the appellant an additional date to appear for a deposition.

Student note:  The striking of a party's pleading is a drastic remedy only warranted where there has been a clear showing that the failure to comply with court-ordered discovery was willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time.

Case:  Gutman v. Cabrera, NY Slip Op 07328 (2d Dept. 2014)

Here is the decision.

Wednesday's issue:  Submitting interrogatories to a jury.

An injured firefighter's right of action.

Practice point:  General Municipal Law § 205-a[1] provides a right of action for firefighters who are injured "as a result of any neglect, omission, willful or culpable negligence" of the defendant "in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments."

Student note:  While the plaintiff is not required to prove such notice as would be required under a common-law theory of negligence, the statute still requires a showing that the violation was the result of the defendant's neglect, omission, willful or culpable negligence.

Case:  Desthers v. Espinal, NY Slip Op 07323 (2d Dept. 2014)

Here is the decision.

Monday's issue: Striking a pleading for a discovery violation.

Right-of-way, negligence, and summary judgment.

 Practice point:  A driver traveling with the right-of-way may be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident. However, a driver with the right-of-way who has only seconds to react to a vehicle that has failed to yield is not comparatively negligent for failing to avoid the collision.

Student note:  Even where there is evidence that another driver involved in the accident was negligent as a matter of law due to a violation of the Vehicle and Traffic Law, the proponent of a summary judgment motion has the burden of establishing, as a matter of law, freedom from comparative negligence.

Case:  Desio v. Cerebral Palsy Transp., Inc., NY Slip Op 07322 (2d Dept. 2014)

Here is the decision.

 Tomorrow's issue: An injured firefighter's right of action.

Motion to vacate based on newly-discovered evidence.

Practice point:  The Appellate Division affirmed the denial of the motion to vacate on the ground of newly-discovered evidence, pursuant to CPLR 5015[a][2]. The alleged transfer of the subject mortgage, which purportedly occurred after the entry of the judgment of foreclosure and sale, is not newly-discovered evidence within the meaning of the statute.

Student note:  The court properly denied defendant's motion to renew, as he failed to offer a reasonable justification for not presenting the alleged new facts on his prior motions, pursuant to CPLR 2221[e][3].

Case:  Tribeca Lending Corp. v. Bartlett, NY Slip Op 07429 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Right-of-way, negligence, and summary judgment..

Court holiday.

The courts are closed for Election Day.

Tomorrow's issue:  Motion to vacate based on newly-discovered evidence.

Evidentiary materials submitted on a motion to dismiss, and dismissal on the merits.

Practice point: Where evidentiary material is submitted and considered on a 3211(a)(7) motion, and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. The motion will be denied unless it is demonstrated that what the plaintiff claims is a fact is not a fact at all, and unless there is no significant dispute regarding it.

In deciding the motion, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Student note:  A dismissal for lack of standing is not a dismissal on the merits for res judicata purposes, and neither is the striking of a complaint for noncomplance with a discovery order.

Case:  Caliguri v. JPMorgan Chase Bank, N.A., NY Slip Op 073129 (2d Dept. 2014)

Here is the decision.

Wednesday's issue: Motion to vacate based on newly-discovered evidence.

Employer's liability for an alleged assault by a security guard.

Practice point: Plaintiff seeks recovery for personal injuries allegedly sustained when, after being caught shoplifting, he was assaulted by a security guard. Plaintiff claimed that defendant's employees were directly negligent in failing to protect him from the security guard, who was armed with a baseball bat, and that defendant is vicariously liable for its employees' negligence.

The Appellate affirmed the motion court's dismissal of the complaint, as there is no indication that the alleged assault by the security guard, who had no history of violence, was foreseeable. Therefore, the employer's duty to protect was not triggered.

Student note:  Absent a duty and an opportunity to protect, there can be no liability for negligence.

Case:  Randolph v. Rite Aid of N.Y., Inc., NY Slip Op 07307 (1st Dept. 2014)

Monday's issue:  Evidentiary materials submitted on a motion to dismiss, and dismissal on the merits.

Vacating a default in a matrimonial action.

Practice point:  The Appellate Division determined that the motion court improvidently exercised its discretion in denying defendant's motion to vacate his default in appearing at an inquest and, in effect, to restore the action to the trial calendar, pursuant to CPLR 5015(a)(1). Although a party seeking to vacate a default must establish a reasonable excuse for the default and a potentially meritorious cause of action or defense, New York courts have adopted a liberal policy toward vacating defaults in matrimonial actions.

Student note:  In matrimonial actions, New York's interest in the marital res and allied issues, such as child support and custody, favors dispositions on the merits.

Case:  Anekwe v. Okoroafor, NY Slip Op 07114 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Employer's liability for an alleged assault by a security guard.

Submissions outside the pleadings on a 3211(a)(7) motion.

Practice point:  The Appellate Division determined that the motion court improperly considered affidavits and deposition testimony submitted by defendant in deciding its CPLR 3211(a)(7) motion to dismiss the complaint.  The Appellate Division noted that defendant's submissions regarding "special employment" did not negate the elements of plaintiff's complaint, which asserts common law negligence. In fact, in their opposition, plaintiffs argued that since they had not yet had discovery, a motion for summary judgment was premature, and they asked the motion court decline to treat defendant's motion as a motion for summary judgment.

Student note:  CPLR 3211(a)(7) limits the court to an examination of the pleadings to determine whether they state a cause of action.

Case:  Lee v. Dow Jones & Co., Inc., NY Slip Op 07247 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Vacating a default in a matrimonial action.

Denial of summary judgment in an action resulting from a motor vehicle accident.

Practice point:  The Appellate Division reversed the motion court and denied the motion for summary judgment as to defendant's liability in the underlying motor vehicle accident. As plaintiff, in support of the motion, submitted and relied on the certified police accident report containing the eyewitness's statement, he cannot now complain that defendants' reliance on favorable aspects of the statement to defeat summary judgment is improper.

Student note:  Any inconsistencies between the statements made to the police after the accident and the affidavits submitted in support of plaintiff's motion raise issues of fact as to whether defendant driver violated Vehicle and Traffic Law § 1141, and whether plaintiff's excessive speed or other negligence contributed to the accident, thereby precluding an award of summary judgment.

Case:  Espinal v. Volunteers of America-Greater N.Y., Inc., NY Slip Op 07260 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Submissions outside the pleadings on a 3211(a)(7) motion.

Dismissal of a Labor Law 241(6) claim.

Practice point:  The Appellate Division determined that the motion court should have granted those branches of defendants' cross motion which were for summary judgment dismissing, insofar as asserted against them, the cause of action pursuant to Labor Law § 241(6) to the extent that it was predicated on alleged violations of 12 NYCRR 23-2.1(a)(1) and (b). As the accident did not involve the obstruction of a "passageway, walkway, stairway or other thoroughfare" by a material pile, 12 NYCRR 23-2.1(a)(1) was not applicable.

Student note:  The general duty imposed by 12 NYCRR 23-2.1(b) does not set forth a directive sufficiently specific to support a 241(6) cause of action.

Case:  Ginter v. Flushing Terrace, LLC, NY Slip Op 06941 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Denial of summary judgment in an action resulting from a motor vehicle accident.

Denial of a motio to dismiss for inconvenient forum.

Practice point:  The Appellate Division determined that the motion court properly exercised its discretion in finding that New York was a proper forum and that defendant failed to meet his burden to dismiss the action on inconvenient forum grounds.  The Appellate Division found that the motion court considered the appropriate factors, namely, that the dispute concerns real property in New York and the actions and transactions that gave rise to the claim occurred in New York; the mortgage payments on the properties and rent collected from the properties go to a New York bank; there is no alternative forum in which to litigate this claim because South Korea does not recognize constructive trusts; and defendant has demonstrated his availability to this forum by prior business activities here.

Student note:  As this is not a matrimonial action, it is not barred by the parties' matrimonial action in South Korea.

Case: Kang v. Kim, NY Slip Op 07074 (1st Dept. 2014)

Here is the decision.

Monday's issue:  Dismissal of a Labor Law 241(6) claim.

Summary judgment for medical residents acting under the direction of the attending physicians.

Practice point:  In their motion for summary judgment, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting deposition testimony, hospital records, and the affirmation of their medical expert establishing that at all times they acted under the direction and supervision of the attending physicians, and that they lacked the authority to independently order tests and medication. Their physically examining plaintiff and participating in her diagnosis and discharge from care did not demonstrate the exercise of independent medical judgment. In addition, the defendants demonstrated that the diagnosis and treatment plan implemented and continued under the supervision of the attending physicians did not include orders so clearly contraindicated by normal practice that ordinary prudence required inquiry into the correctness of those orders.

Student note:  The Appellate Division determined that the motion court properly rejected the redacted and unsigned affirmation of the plaintiff's medical expert where the plaintiff offered no explanation for the failure to identify the expert by name or the failure to offer an unredacted affirmation for in camera review. Therefore, that affidavit was insufficient to raise a triable issue of fact as to the defendants' alleged malpractice.

Case:  France v. Packy, NY Slip Op 06939 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Denial of a motion to dismiss for inconvenient forum.

A premature summary judgment motion.

Practice point:  The plaintiff sued for injuries allegedly sustained when she tripped and fell as a result of an alleged defect on a curb near a catch basin/sewer in the defendant-Town. The Town moved for summary judgment dismissing the complaint on the ground that it did not own the roadway and, therefore, had no duty to maintain the curb. In opposition, the plaintiff contended that Highway Law § 12(5) imposes a duty upon a town to maintain curbs on state-owned highways that have been widened by the town, and to the Town's motion was premature inasmuch as the Town failed to provide disclosure as to whether it had widened the subject roadway.

The Appellate Division determined that, in opposing the motion, the plaintiff demonstrated that the Town failed to disclose whether it widened the subject roadway at the location of the occurrence, a fact exclusively within the knowledge and control of the Town. Therefore, the Supreme Court should have denied as premature the Town's motion, with leave to renew upon the completion of discovery.

Student note:  A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant, pursuant to CPLR 3212[f].

Case:  Buto v. Town of Smithtown, NY Slip Op 06934 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Summary judgment for medical residents acting under the direction of the attending physicians.

Dismissal of a conversion claim.

Practice point:  The Appellate Division affirmed dismissal on the alternative ground that the allegations in the complaint were inadequate to state a cause of action to recover damages for conversion, pursuant to CPLR 3211[a][7].  In pleading conversion, the plaintiff must allege legal ownership or an immediate right of possession to specifically identifiable funds and that the defendant exercised an unauthorized dominion over such funds to the exclusion of the plaintiff's rights.The mere right to payment cannot be the basis for the claim since the essence of a conversion cause of action is the unauthorized dominion over the thing in question.

Student note:  To make a claim for conversion, tangible personal property or specific money must be involved.

Case:  Barker v. Amorini, NY Slip Op 06931 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A premature summary judgment motion.

Summary judgment in a snow or ice case.

Practice point:  In this action for injuries allegedly sustained in plaintiff's sidewalk fall, the Appellate Division reversed the motion court's granting summary judgment to the City, and reinstated the complaint. Plaintiff testified at deposition that the area where she fell was "dirty" with "snow layers on top of layers," which she later clarified to mean "slushy ice" that was "clean, like slippery, flat" and had a little snow on top of it. In opposition to the City's motion, plaintiff submitted an affidavit in which she explained that she fell on a patch of snow and ice that was about two feet wide by three feet long, and that the patch of snow and ice was "one (1) inch thick, flat, hard, and dirty, as if it had existed for several days."

The Appellate Division determined that this deposition testimony and affidavit, taken together, cannot reasonably be construed as being inconsistent or feigned. Inconsistencies, if any, as to how plaintiff described the patch of snow and ice on which she slipped simply create a triable issue of fact. In addition, the Appellate Division cited precedent for the proposition that, contrary to the City's argument, snow and ice left on a sidewalk after a storm can constitute an "unusual and dangerous condition."

Student note: Once there is a period of inactivity after the storm ceases, it is a question of fact as to whether any delay in commencing the cleanup was reasonable. Here, it is for the jury to decide whether the ice on which plaintiff slipped was formed four days before the accident, as plaintiff contends, and whether that four-day gap was a sufficient period of time for the City to remedy the condition.

Case:  Rodriguez v. Woods, NY Slip Op 06887 (1st Dept. 2014) 

Here is the decision. 

Tomorrow's issue:  Dismissal of a conversion claim.

Summary judgment in a medical malpractice action.

Practice point:  To establish the physician's liability for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries. Accordingly, a physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure, or that any departure was not a proximate cause of the plaintiff's injuries. If the defendant-physician makes the requisite showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but only as to the elements on which the defendant met the prima facie burden.

Student note: Summary judgment is not appropriate where the parties adduce conflicting medical expert opinions, as they necessarily raise credibility issues which can only be resolved by a jury.

Case : Berthen v. Bania, NY Slip Op 06789 (2d Dept. 2014)

Here is the decision.

Monday's issue:  Summary judgment in a snow or ice case.

A shareholder may not recover individually for wrongs against the corporation.

Practice point:  The defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that all of the plaintiff's losses arose from his status as a shareholder of a nonparty corporation. A shareholder, even in a closely-held corporation, may not recover in his or her individual capacity for wrongs against the corporation. The evidence established, prima facie, that the moving defendants were not liable to the plaintiff for any of the relief sought, and that the plaintiff's claims should have been brought on behalf of the nonparty corporation in a derivative action.

 Student note:  The appeals from the two intermediate orders were dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action. The issues raised on the appeals from those orders were brought up for review and were considered on the appeal from the judgment, pursuant to CPLR 5501[a][1].

Case:  Barbaro v,  Spinelli, NY Slip Op 06786 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Summary judgment in a medical malpractice action.

An allegedly loose handrail, and defnedant's summary judgment motion is denied.

Practice point:  The Appellate Division reversed the motion court's granting defendant's motion to dismiss. Plaintiff was allegedly injured when she fell down a flight of stairs in defendant's apartment building. She alleges that the accident was caused by a loose handrail that she was holding while descending the stairs. The handrail's looseness was confirmed by the deposition testimony of defendant's superintendent who checked it shortly after plaintiff was injured. Defendant failed to satisfy its initial burden of establishing a lack of notice of the defect inasmuch as it offered no testimony as to when the admittedly loose handrail was last inspected or repaired.

Student note:  The Appellate Division expressly rejected plaintiff's alternative theory that the allegedly worn marble tread on the stairway constituted an actionable defective condition.

Case:  DiPini v. 381 E. 160 Equities LLC, NY Slip Op 06868 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A shareholder may not recover individually for wrongs against the corporation

Lien law, unjust enrichment, and quantum meruit.

Practice point:  Lien Law § 11 provides that within 5 days before or 30 days after filing the notice of lien, a lienor "shall" serve a copy of such notice upon the owner, as relevant here, at the owner's "last known place of residence." Here, the plaintiff's affidavit of service of the mechanic's lien demonstrates that the plaintiff failed to serve the notice in compliance with Lien Law § 11, as the notice was not sent to the defendants' last known place of residence. As strict compliance with the statutory requirements is mandated, the Appellate Division determined that the Supreme Court should have granted that branch of the defendants' motion which was pursuant to Lien Law § 11 to dismiss the sixth cause of action, which was to foreclose a mechanic's lien.

Student note:  Where, as here, there is a dispute as to whether there is a contract, the plaintiff may allege causes of action to recover for unjust enrichment and in quantum meruit as alternatives to a cause of action alleging breach of contract, pursuant to CPLR 3014.

Case:  Thompson Bros. Pile Corp. v Rosenblum, NY Slip Op 06577 (2d Dept. 2014)

Here is the decision.

Tomrorrow's issue: An allegedly loose handrail, and defendant's summary judgment motion is denied.

Court holiday.

The courts are closed to mark Columbus Day.

Tomorrow's issue:  Lien law, unjust enrichment, and quantum meruit.

Motion to vacate raising a jurisdictional objection and, alternatively, seeking a discretionary vacatur.

Practice point:  When a defendant seeking to vacate a default judgment raises both a jurisdictional objection, pursuant to CPLR 5015(a)(4),  and, alternatively, seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), the court must resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur.  Here, the process server's affidavit constituted prima facie evidence of proper service, pursuant to CPLR 308(4) . In her affidavit in support of her motion, the defendant did not deny that she was served with process and did not swear to specific facts to rebut the process server's affidavit.

The defendant was not entitled to relief pursuant to CPLR 5015(a)(1), as she failed to set forth any reasonable excuse for her default, since the only excuse proffered was that she had no recollection of being served with process.

Student note:  As to the jurisdictional question, since the defendant did not rebut the process server's affidavit, a hearing was not necessary.  As to the discretionary vacatur, in the absence of a reasonable excuse, it is unnecessary to determine whether the defendant demonstrated a potentially meritorious defense.

Case:  Servpro Indus., Inc. v. Anghel, NY Slip Op 06572 (2d Dept. 2014)

Here is the decision.

Tuesday's issue: Lien law, unjust enrichment, and quantum meruit.

Denial of a petition to file a late notice of claim.

Practice point:  The Appellate Division reversed the motion court, and denied the petition for leave to file a late notice of claim and dismissed the complaint. Even if the mistaken identification of the municipal agency were an excusable error, the petitioner failed to proffer any excuse for the additional delay of more than seven months between the time that he discovered the error and the filing of his petition. In addition, the City did not acquire timely, actual knowledge of the essential facts constituting the petitioner's claim. The petitioner contends that the City acquired such knowledge by virtue of a police accident report made by a police officer at the accident scene. However, for a report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation. Here, the report did not provide the City with actual notice of the essential facts constituting the petitioner's claim that the City was negligent in the happening of the subject accident, or that the petitioner sustained any injuries as a result of the City's alleged negligence. Finally, the petitioner failed to rebut the City's assertion that the overall 10-month delay in commencing the proceeding deprived it of the opportunity to find witnesses promptly, or otherwise conduct a timely and meaningful investigation.

Student note:  In determining whether to grant leave to serve a late notice of claim, the court must consider whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter; (2) the claimant made an excusable error concerning the identity of the public corporation; (3) the delay would substantially prejudice the public corporation in its defense; and (4) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, pursuant to General Municipal Law § 50-e[5].

Case:  Kuterman v. City of New York, NY Slip Op 06560 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Motion to vacate raising a jurisdictional objection and, alternatively, seeking a discretionary vacatur.

The motion court is limited to the issues on the motion before it.

Practice point:  The only noticed application before the Supreme Court was the plaintiff's order to show cause seeking a finding that the defendants had violated an earlier court injunction and holding the defendants in civil contempt. The Appellate Division determined that, as there was no motion by any party seeking a determination of whether the easement encroachments were necessary, or, alternatively, de minimis, the motion court was without jurisdiction to award the plaintiff what was, in effect, dispositive relief consisting of an easement by necessity and a finding that there were de minimis encroachments, pursuant to CPLR 2214.

Student note:  Generally a court is limited to the  issues or defenses that are the subject of the motion before it. See Dunham v. Hilco Constr. Co., 89 NY2d 425, 429.

Case:  DiDonato v. Dyckman, NY Slip Op 06556 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Denial of a petition to file a late notice of claim.

Defective service and dismissal

Practice point:  The Appellate Division affirmed dismissal on the basis that no personal jurisdiction was acquired over respondents. Petitioner failed to comply with CPLR 311(a)(1)'s requirement hat the process server tender process directly to an authorized corporate representative, rather than an unauthorized person who later hands the process to an officer or other qualified representative.

Petitioner also failed to properly effectuate service of process by mail. Although he mailed the summons and petition to respondents, he did not include two copies of a "statement of service by mail" and an "acknowledgement of receipt" as required by CPLR 312-a.

Student note:  The Appellate Division noted that petitioner's status as a pro se litigant does not excuse the defective service, and the fact that respondents received actual notice does not confer jurisdiction upon the court.

Here is the decision.

Tomorrow's issue: The motion court is limited to the issues on the motion before it.

Summary judgment on breach of contract and account stated.

Practice point:  The plaintiff made a prima facie showing of entitlement to judgment as a matter of law on its breach of contract claiim by tendering sufficient evidence that there was an agreement, which the defendant accepted by his use of a certain credit card issued by the plaintiff and payments made thereon, and which was breached by the defendant when he failed to make the required payments.

The plaintiff also established prima facie entitlement to judgment as a matter of law on its account stated claim by tendering sufficient evidence that it generated account statements for the defendant in the regular course of business;  that it mailed those statements to the defendant on a monthly basis; and that the defendant accepted and retained these statements for a reasonable period of time without objection, and made partial payments on them.

Student note:  The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment.

Case:  Citibank (South Dakota), N.A. v. Keskin, NY Slip Op 06553 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Defective service and dismissal.

An account stated claim to recover legal fees, and a malpractice counterclaim.

Practice point:  Defendant is trustee of a family trust, the beneficiaries of which retained plaintiff-firm to handle intellectual property matters. The Appellate Division found that, contrary to the motion court's ruling, there was a valid fee agreement between plaintiff and the Trust. The better practice would have been to send the engagement letter to the trustee, rather than only to the beneficiaries. However, the record, including email exchanges between the trustee and plaintiff, shows that the trustee was well aware of and approved of the beneficiaries' authority to act on the Trust's behalf with regard to plaintiff's retainer and representation. It is irrelevant that the original engagement letter was not signed by the client, pursuant to 22 NYCRR 1215.1[a].

The Appellate Division also found that defendant's timely written objection to one invoice creates triable issues of fact as to the amount due under that invoice only. Defendant's oral and undocumented objections to the remaining bills do not suffice to create triable issues as to the remaining amount owed. What is more, the Trust made partial payments to plaintiff throughout plaintiff's representation.

Student note:  As to the counterclaim, the Appellate Division found that, even if plaintiff's failure to complete a chain-of-title report or to resolve the underlying intellectual property disputes before withdrawing, amounts to negligence, the Trust failed to demonstrate causation. The Trust failed to show how it would have successfully opposed the underlying trademark cancellation proceeding, or would otherwise have protected its intellectual property rights, but for plaintiff's omissions.

In addition, the resulting inability to efficiently market the trademarks is too speculative to constitute the actual ascertainable damages required to support the counterclaim.

Case:  Fross, Zelnick, Lehrman & Zissu, P.C. v. Geer, NY Slip Op 06547 (1st Dept. 2014)

Here is the decision.

Monday's issue: Summary judgment on breach of contract and account stated.

The Labor Law § 740(7) election of remedies provision in a retaliation action.

Practice point:  The plaintiffs alleged retaliation pursuant to Labor Law § 740 in a prior action against the defendants. The claim asserted here, pursuant to Administrative Code of the City of New York § 8-107, arises out of and relates to the same underlying claim of retaliation as asserted in the prior action. Therefore, the Appellate Division found it to be barred by the Labor Law § 740(7) election of remedies provision. The Appellate Division noted that the waiver may not be avoided by amending the complaint to withdraw the section 740 claim.

Student note:  Labor Law § 740(7) provides that "the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law." The waiver applies to causes of action arising out of or relating to the same underlying claim of retaliation.

Case: Charite v Duane Reade, Inc., NY Slip Op 06292 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An account stated claim to recover legal fees, and a malpractice counterclaim.

CPLR 3012(b)

Practice point:  The Appellate Division affirmed the dismissal for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b).  The plaintiff was no longer acting in a pro se capacity when the defendants uploaded the notice of appearance and demand to the NYSCEF system. The plaintiff's purported reasonable excuse that the failure to serve the complaint was a "technical glitch" of the NYSCEF system is unavailing. The defendants' notice of appearance and demand remained in the e-filing system for over one year, during which time the plaintiff was represented by counsel, before the plaintiff served a proposed complaint on them. The Appellate Division determined that this is not a mere technical glitch, but law office failure, which has been held not to constitute a reasonable excuse under CPLR 3012(b).

Student note:  To avoid dismissal of the action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action.

Case:  Carducci v. Russell, NY Slip Op 06290 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The Labor Law § 740(7) election of remedies provision in a retaliation action.

Issues of fact as to constructive notice.

Practice point:  The Appellate Division reversed the motion court's granting of defendants' summary judgment motion in this personal injury action, finding triable issues of fact as to whether defendants had constructive notice of the defective condition of the window which allegedly fell on plaintiff's hands. Defendants were aware of problems with the building's windows staying in an upright position, based on the replacement of balances on a number of plaintiff's own windows, including the window in question, and on many others throughout the building.

Student note:  The Appellate Division expressly rejected defendants' argument that they were not required to conduct periodic tests of the window balances. Once they knew that an appreciable number of the windows in the building required attention, they had an obligation to inspect all of them.

Case:  Hermina v. 2050 Valentine Ave., LLC, NY Slip Op 06367 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: CPLR 3012(b)

Summary judgment as to liability in an action involving a pedestrian struck by an automobile.

Practice point:  The plaintiff allegedly was injured when he was struck by a vehicle owned by the defendant-florist. The plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by presenting proof that the injured plaintiff was walking within an unmarked crosswalk and that he looked for approaching traffic before he began to cross.
 

In opposition, the defendants failed to raise a triable issue of fact. A transcript of an alleged telephone conversation that a nonparty witness had with the defendants' insurer, which is not authenticated, certified, or sworn, was inadmissible and insufficient to raise a triable issue of fact. Additionally, the driver-defendant's affidavit did not raise a triable issue of fact as it consisted of unsupported speculation that the injured plaintiff was comparatively negligent.

Student note:  That branch of the plaintiffs' motion which sought summary judgment on the issue of liability was not premature, since the florist-defendants failed to offer an evidentiary basis to show that discovery may lead to relevant evidence and that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff.

Case:  Garcia v. Lenox Hill Florist III, Inc, NY Slip Op 06171 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Issues of fact as to constructive notice.

Property possessor's liability for a third-person's criminal acts.

Practice point:  A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties. Here, the defendants failed to meet their prima facie burden of establishing entitlement to judgment as a matter of law by demonstrating that they took reasonable security measures against foreseeable criminal acts of third parties.

Student note:  A defendant cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case.

Case:  Deinzer v. Middle Country Pub. Lib, NY Slip Op 06169 (2d Dept. 2014)

Here is the decision.

Monday's issue: Summary judgment as to liability in an action involving a pedestrian struck by an automobile.

Summary judgment in a legal malpractice action.

Practice point:  To recover damages for legal malpractice, a plaintiff must prove the existence of an attorney-client relationship. In addition, the plaintiff must establish that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages.

Student note:  To succeed on a motion for summary judgment dismissing the complaint, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice

Case:  Biberaj v. Acocella, NY Slip Op 06165 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Property possessor's liability for a third-person's criminal acts.

Documentary evidence in spport of a CPLR 3211(a)(1) motion.

Practice point:  In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be unambiguous, authentic, and undeniable.  While judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, and contracts qualify as documentary evidence, affidavits, deposition testimony, and letters do not.

Student note:  A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence will be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. The evidence submitted in support of such motion must be documentary or the motion must be denied.

Case:  Attias v. Costiera, NY Slip Op 06163 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Summary judgment in a legal malpractice action.

Denial of a motion to file a late notice of claim.

Practice point:  The Appellate Division affirmed the denial of the motion and the dismissal of this medical malpractice action in which the infant plaintiff sought to recover for injuries he suffered after being born at 27 weeks' gestation. The Appellate Division found that the motion court considered the pertinent statutory factors and properly exercised its discretion in denying plaintiff's motion, pursuant to General Municipal Law § 50-e[5].

The Appellate Division found that the infant plaintiff's mother's excuses that she was unfamiliar with the requirement that she file a notice of claim, and that she was unaware that her son's injuries were caused by defendant's malpractice, are not reasonable. Nor is her attorney's assertion that he waited to make the motion until nearly four years after filing the untimely notice of claim because he needed to receive the medical records from the defendant.

In addition, the medical records demonstrate that the infant plaintiff's condition and prognosis are consistent with his premature birth, and do not suggest any injury attributable to the hospital staff's malpractice. Plaintiff failed to demonstrate that the medical records put defendant on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia, or that he would
subsequently develop other deficits, delays, and disorders.

Student note: As to the relevance of the plaintiff's infancy, the Appellate Division said that it "carries little weight" as there is not connection between that infancy and the delay in moving for leave to file.

Case:  Wally G. v. New York City Health & Hosps. Corp. (Metropolitan Hospital), NY Slip Op 06241 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Documentary evidence in support of a CPLR 3211(a)(1) motion.

An alleged abandonment of a claim for the award of attorney's fees.

Practice point:  22 NYCRR 202.48, "Submission of orders, judgments and decrees for signature," states, in pertinent part, as follows:

:"(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted. "(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown."

Here, the Supreme Court's direction that the defendants submit a proposed order with respect to an award of an attorney's fee did not specify that the order be settled or submitted on notice. Therefore, the plaintiff's contention that the defendants abandoned their claim for an award of the fee by failing to comply with the 60-day rule is unavailing.

Student note: In determining reasonable compensation for an attorney, the court must consider such factors as the time, effort, and skill required; the difficulty of the questions presented; counsel's experience, ability, and reputation; the fee customarily charged in the locality; and the contingency or certainty of compensation.

Case:  47 Thames Realty, LLC v. Robinson, NY Slip Op 06051 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Denial of a motion to file a late notice of claim.

A late motion for leave to amend.

Practice point:  Although the plaintiff delayed in making the motion for leave to amend, mere lateness is not a barrier to the amendment; lateness is only a barrier if it is coupled with significant prejudice to the other side.

Student note:  Leave to amend a pleading is freely given absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit.

Case:  Ciminello v. Sullivan, NY Slip Op 06048 (2d Dept. 2014)

Here is the decision.

Monday's issue: An alleged abandonment of a claim for the award of attorney's fees.

A rear-end collision.

Practice point:  A rear-end collision establishes, prima facie, negligence on the part of the rear vehicle's driver, regardless of whether the lead vehicle was stopped or stopping.. That driver, then, must rebut the inference of negligence by providing a nonnegligent explanation for the collision. A bare allegation that the lead vehicle stopped short is insufficient to rebut the inference.

Student note:  Where the movant has established entitlement to judgment as a matter of law, the burden shifts to the opposing party to provide sufficient evidence to raise a triable issue of fact as to the moving party's comparative fault.

Case:  Billis v Tunjian, NY Slip Op 06044 (2d Dept. 2014)

Here is the decision.

Tomorrow' issue: A late motion for leave to amend.

The enforceability of an on-the-record stipulation.

Practice point:  In this divorce action the Appellate Division affirmed the finding that the parties' on-the-record agreement was too incomplete and indefinite to be enforceable, and was merely a non-binding agreement to agree.  The parties disagreed as to whether the proposal included a waiver of maintenance, and they did not finalize the details of the transfer of a trust. Other material terms were never agreed to, and the agreement was subject to the consummation of future conditions and additional agreements.

Student note: To be enforceable, an open court stipulation must contain all of the material terms and
evince a clear mutual accord between the parties, pursuant to CPLR 2104;

Case:  Cohen v. Cohen, NY Slip Op 06157 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A rear-end collision.

Hearsay evidence in opposing summary judgment.

Practice point: Plaintiff brought this action against her former father-in-law to enforce his guaranty of a settlement agreement in a matrimonial proceeding. The agreement provided, in pertinent part,that plaintiff, who remained an obligor on a mortgage and a line of credit agreement along with her nonparty former husband, had the right to notify the husband or defendant of any uncured default in the monthly payments and demand that the default be cured.

Plaintiff's primary claim is that the husband's repeated late payments on the mortgage and the line of credit had damaged her credit and resulted in receipt of a bank notice indicating that the former marital residence was at risk of foreclosure.

Pertaining to the line of credit account, defendant avers, and the husband states in a letter, that the bank representative informed them that the line of credit payments were current, and advising of the next scheduled payment. Defendant contends that the bank representative's statement was the best and only information he could obtain, as he was not a signatory on the accounts at issue and not allowed to obtain copies of the statements.

The Appellate Division found the argument unavailing, as defendant's affidavit relies only on hearsay evidence that a bank representative had indicated that the line of credit was in good standing. The documentary evidence is to the contrary.

Student note:  A party opposing summary judgment may proffer hearsay evidence, but such proof may not be the sole factual basis for denying summary judgment.

Case: Andron v. Libby, NY Slip Op 06155 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The enforceability of an on-the-record stipulation.

In a mortgage foreclosure action, a challenge to standing, and assignment of the mortgage and the underlying note.

Practice point:  In a mortgage foreclosure matter where the defendant challenges plaintiff's standing, the plaintiff must prove standing to be entitled to relief. The plaintiff has standing where, at the time the action is commenced, it is the holder or assignee of both the subject mortgage and the underlying note. Written assignment of the underlying note or physical delivery of the note prior to the commencement of the action is sufficient to transfer the obligation.

Student note: Once a promissory note is tendered to and accepted by an assignee, the mortgage passes as an incident to the note. However, the assignment of a mortgage without assignment of the underlying debt is a nullity, and no interest is acquired by it.

Case:  HSBC Bank USA, N.A. v. Gilbert, NY Slip Op 05950 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Hearsay evidence in opposing summary judgment.

Time limits on renewal of a judgment lien.

Practice point:  CPLR 5014(1) allows an action on a money judgment between the original parties when ten years have elapsed since the judgment was first docketed. So, an action for a renewal judgment is not time-barred if it is commenced more than ten years after the original judgment was docketed. Here, though, instead of commencing a new action, pursuant to CPLR 5014, the plaintiff moved in the original action to renew the judgment lien. As the plaintiff's did not commence a new action, as required by CPLR 5014, the Appellate Division affirmed the Supreme Court's denial of that branch of the motion which was to renew the judgment lien.

Student note:  Since a money judgment is viable for 20 years, but a lien on real property is only effective for 10 years, pursuant to CPLR 211[b] and 5203[a]), the Legislature enacted CPLR 5014 to allow a judgment creditor to renew the lien by commencing an action for a renewal judgment.

Case:  Guerra v. Crescent St. Corp., NY Slip Op 05948 (2d Dept. 2014)

Here is the decision.

Monday's issue: In a mortgage foreclosure action, a challenge to standing, and assignment of the mortgage and the underlying note.