Service as jurisdictional.

Practice point:  The plaintiff bears the burden of proving that jurisdiction over the defendant was obtained Here, the plaintiff failed to submit an affidavit of a process server attesting to service of the motion at issue on the defendant pursuant to CPLR 311, as required by the order to show cause. The Appellate Division found that the Supreme Court correctly determined that the plaintiff failed to serve the defendant in the manner directed by the court, and so the plaintiff's motion was properly denied on that ground alone.

Student note:  The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with.

Case: Codrington v. Citimortgage, Inc., NY Slip Op 04460 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Lack of subject matter jurisdiction on a Human Rights Law claim.

The doctrine of res judicata.

:Practice point:  Since the complaint in the prior action was dismissed on the ground that it failed to state a cause of action due to the insufficiency of the allegations, the dismissal was not a dismissal on the merits. Therefore, the doctrine of res judicata does not bar the claims in the instant action.

Student note:  Plain and simple, where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply.

Case: Canzona v. Atanasio, NY Slip Op 04459 (2d Dept. 2014)

Here is the decision.

Monday's issue: Service as jurisdictional.

A motion for sanctions, in the form of dismissal or, in the alternative, disqualification.

Practice point:  Dismissal of a complaint as a sanction is a penalty aimed to punish misconduct by a party to a litigation. However, as with any sanction, dismissal of a complaint must be appropriate to the conduct it aims to punish. As dismissal of a complaint deprives a litigant of a determination on the merits of a claim, it is so severe that it is generally warranted only in the most egregious of circumstances.

While disqualifying counsel is a lesser penalty than dismissal, it carries with it the serious consequence that a party is deprived of the right to be represented by its choice of counsel, warranting a broader inquiry about whether it is an appropriate sanction for the offending conduct. While the right to counsel of choice is not absolute and may be overridden where necessary, it is a valued right and any restrictions must be carefully scrutinized.  Disqualification often turns on whether the conduct complained of results in actual, or a reasonable probability of unauthorized disclosure of confidential information.

Student note:  The Appellate Division expressly rejected the argument that there are circumstances where a counsel's conduct is so egregious that a court should impose the most severe sanctions, even in the absence of actual prejudice.

Case: Roberts v. Corwin, NY Slip Op 04562 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The doctrine of res judicata.

Dismissal of conversion and contract claims.

Practice point:  The Appellate Division affirmed the dismissal of the cause of action alleging conversion of funds, since the plaintiff asserted a mere right to payment and did not allege that the defendants had unauthorized possession or control of specifically identifiable funds that allegedly had been converted.

Also affirmed was the dismissal of the cause of action alleging breach of contract. The plaintiff failed to plead the material terms of the alleged oral loan agreement by which the defendants agreed to repay or reimburse him for his payment of expenditures for the property and boat at issue.

Student note: The essential elements of a breach of contract cause of action are the existence of a contract; the plaintiff's performance pursuant to the contract; the defendant's breach of the contractual obligations; and damages resulting from the breach. The plaintiff's allegation must identify the provisions of the contract that were breached.

Case: Canzona v. Atanasio, NY Slip Op 04458 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A motion for sanctions, in the form of dismissal or, in the alternative, disqualification.

It's raining golf balls.

Practice point:  Plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on the cause of action alleging private nuisance by demonstrating that defendant has operated its golf course in a manner that has failed to sufficiently reduce the number of golf balls landing on the plaintiffs' property, producing a tangible and appreciable injury to the property that renders its enjoyment especially uncomfortable and inconvenient.

Similarly, the plaintiffs' submissions were sufficient to establish their prima facie entitlement with respect to the cause of action alleging trespass. Their submissions demonstrate that golf balls have invaded their property with such frequency and over such a long period of time, without defendant taking steps to sufficiently abate the situation, so as to amount to willfulness.

They also established, prima facie, that defendant breached its duty to exercise reasonable care in the maintenance and use of its property to prevent foreseeable injury that might occur on adjoining property by failing to take precautions in design and location, in the form of play, or in the erection of protective devices as a safeguard against injury to the plaintiffs' property.

Student note:  The elements of a private nuisance cause of action are an interference which is (1) substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act.

The essence of trespass is the invasion of a person's interest in the exclusive possession of land. The invasion of, or intrusion upon, the property interest must at least be the immediate or inevitable consequence of what the defendant willfully does, or which he does so negligently.

Case:  Behar v. Quaker Ridge Golf Club, Inc., NY Slip Op 04456 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal of conversion and contract claims.

No recovery from a fall on a slippery sidewalk.

Practice point:  Defendants made a prima facie showing of entitlement to summary judgment based upon plaintiff's testimony that he fell on a slippery sidewalk, during a period of heavy rain;  defendants' lack of prior notice of a dangerous condition;  and an expert opinion that there was no defect in the area of the fall.

Plaintiff's expert's finding lacked probative force and failed to raise a triable issue of fact as to the existence of a defective or dangerous condition in the absence of any assertion of a violation of a specific, applicable industry standard which contributed to the accident. Plaintiff's conclusory claim that a violation of 6 RCNY § 2-55(a)'s provision, concerning the maximum height for removable railings separating unenclosed sidewalk cafés, contributed to his injuries fails to raise a triable issue of fact. Likewise, plaintiff's claim that the sidewalk's condition violated Administrative Code of City of NY § 19-152(a), is unavailing. He failed to establish a causal relationship between the condition of the concrete patchwork, adjacent to the location of the fall, and the accident, and his claim that granite constituted an "unapproved non-concrete material" is unsupported.

Student note:  The mere fact that a sidewalk is inherently slippery by reason of its smoothness, or becomes more slippery when wet, does not constitute an actionable defect.

Case: Bock v. Loumarita Realty Corp., NY Slip Op 04426 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: It's raining golf balls.

Repair as opposed to routine maintenance under the Labor Law.

Practice point:  Plaintiff is a glazier whose employer directed him to replace cracked glass panels in the skylight of defendant church's steeple. To access the steeple, plaintiff and his coworkers placed an extension ladder belonging to their employer on top of the roof of the church and leaned it up against the steeple. Plaintiff had used the ladder on three prior occasions and found it to be in good condition. As plaintiff climbed the ladder, the bottom kicked out, moving away from the steeple wall. Both the ladder and plaintiff fell approximately 20 feet straight to the roof below, causing plaintiff to sustain injuries.

Plaintiff commenced this action alleging, among other things, that defendant violated Labor Law § 240(1) by failing to provide him with an adequate ladder and by failing to provide any safety harnesses or belts that would have prevented his fall.

The question is whether plaintiff was involved in repair or maintenance work. For statutory purposes,  routine maintenance work does not rise to the level of an enumerated term such as repairing or altering. In distinguishing between what constitutes repair as opposed to routine maintenance, courts will consider such factors as whether the work in question was occasioned by an isolated event as opposed to a recurring condition, whether the object being replaced was a worn-out component in something that was otherwise operable, and whether the device or component that was being fixed or replaced was intended to have a limited life span or to require periodic adjustment or replacement.

Here, plaintiff described the panes as being constructed of "heavy plate glass" with wire running through them and stated that they "do not crack or wear out over time." Plaintiff showed, without contradiction, that these panes were not being replaced as a result of normal wear and tear, as they were not expected to be regularly replaced. In fact, defendant presented no evidence that the panes ever had to be replaced or repaired from the time the steeple had been built. As an experienced glazier with over 30 years of experience, plaintiff was more than competent to state that the replacement of these panes constituted repair work, and was not routine maintenance.

The Appellate Division reversed and found that plaintiff had made out a prima facie case as to liability, and defendant failed to raise a question of fact.

Student note: A plaintiff moving for partial summary judgment must establish that § 240(1) was violated and that the violation was a proximate cause of the injuries. The plaintiff need not demonstrate that the safety devicewas defective or failed to comply with applicable safety regulations, but only that it proved inadequate to shield plaintiff from harm directly flowing from the application of the force of gravity to an object or person. The inexplicable shifting of an unsecured ladder may alone support a § 240(1) claim if a worker is caused to fall due to such shifting. A worker's prima facie entitlement to partial summary judgment on his or her § 240(1) claim may be established by proof that the ladder provided collapsed under the worker while the worker was engaged in an enumerated task.

Case:  Soriano v. St. Mary's Indian Orthodox Church of Rockland, Inc., NY Slip Op 04419 (2d Dept. 2014)

Here is the decision.

Monday's issue: No recovery from a fall on a slippery sidewalk.

Rear-end and chain collision accidents.

Practice point:  When an automobile approaches another automobile from the rear, the driver is bound to maintain a reasonably safe rate of speed and control over the vehicle, and to exercise reasonable care to avoid colliding with the other vehicle. A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision.

Student note: In chain collision accidents, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was struck from behind by the rear vehicle and propelled into the lead vehicle.

Case:  Marcellin v. Passaro, NY Slip Op 04174 (2d Dept. 2014)

Here is the decision. 

Tomorrow's issue: Repair as opposed to routine maintenance under the Labor Law.

A petition for a delayed birth certificate.

Practice point:  The Appellate Division reversed the granting of the petition seeking to direct respondents to create, file and issue a birth certificate for petitioner's deceased grandfather, and dismissed the Article 78 proceeding.

Student note: New York City Health Code (24 RCNY) § 201.11(c) prohibits, among other things, registering or issuing a delayed birth certificate for a deceased person, and so there is no legal authority for granting the petition.

Case:  Kraar v. New York City Dept. of Health, NY Slip Op 04246 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Rear-end and chain collision accidents.

Entering into a contract.

Practice point:  To enter into a contract, a party must clearly and unequivocally accept the offeror's terms. If, instead, the offeree responds by conditioning acceptance on new or modified terms, that response constitutes both a rejection and a counteroffer which extinguishes the initial offer. As the counteroffer extinguishes the original offer, thereafter the offeree cannot unilaterally revive the offer by accepting it.

Student note:  Oral acceptance of a written offer can form a binding contract for the sale of real property.

Case:  Thor Props., LLC v. Willspring Holdings LLC, NY Slip Op 04237 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: A petition for a delayed birth certificate.

Notice and res ipsa in a personal injury action.

Practice point:  Postal worker-plaintiff sued for damages resulting from personal injuries allegedly sustained when the mailbox receptacle unit in defendants' building fell into the wall as she was closing the unit after placing the mail in the individual boxes.

The Appellate Division affirmed the motion court's granting of defendants' motion for summary judgment. Defendants sustained their initial burden of demonstrating that they did not cause, create or have actual or constructive notice of a defect in the mailbox receptacle unit, that the defect was not visible or apparent, and that a reasonable inspection would not have revealed that the box was loose.

Student note:  The Appellate Division found that the doctrine of res ipsa loquitur is inapplicable because defendants did not have exclusive access to the mailbox receptacle unit. It was undisputed that only postal employees, like plaintiff, were given a key.

Case:  Soto v. New Frontiers 2 Hope Hous. Dev. Fund Co., NY Slip Op 04123 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Entering into a contract.

A certification order to file a note of issue, and dismissal.

Practice point:  In a certification order, the Supreme Court directed the plaintiff to file a note of issue within 90 days, and warned that the action would be deemed dismissed without further order of the court if the plaintiff failed to comply with that directive. Counsel for the plaintiff signed the order, acknowledging receipt thereof. Having received a 90-day notice, the plaintiff was required either to serve and file a timely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend the time within which to serve and file a note of issue. The plaintiff did neither, and the Appellate Division found that the the action was properly dismissed pursuant to CPLR 3216.

Student note:  The certification order had the same effect as a valid 90-day notice pursuant to CPLR 3216.

Case:  Dai Mang Kim v. Hwak Yung Kim, NY Slip Op 03972 (2d Dept. 2014)

Here is the decision.

Monday's issue: Notice and res ipsa in a personal injury action.

An alleged § 1983 violation.

Practice point:  An employee of the county police department, plaintiff brought this action to recover damages pursuant to 42 USC § 1983 for the violation of constitutional rights under color of state law.

The Appellate Division reversed the denial of the defendants' motion to dismiss, and found that the defendants demonstrated their entitlement to judgment as a matter of law dismissing the first cause of action, which alleged violations of the plaintiff's rights to equal protection and due process. The plaintiff based her equal protection claim on the "class of one" theory, that is, she alleged that she was subject to adverse employment consequences not because of her membership in an identified class of persons based on categories such as race, sex, and national origin, but simply for arbitrary, vindictive, and malicious reasons. .However, an equal protection claim based on a "class of one" theory cannot be asserted in the public employment context. With respect to the due process claim, the defendants established that the plaintiff was not deprived of a constitutionally protected property right.

Student note: The defendants established their prima facie entitlement to judgment as a matter of law dismissing the plaintiff's First Amendment retaliation claim as the conduct claimed by the plaintiff to have triggered the alleged retaliation, consisting of the filing of a prior lawsuit and the ticketing of the plaintiff's off-duty police coworker for a traffic infraction, did not constitute protected speech.

Case:  Bein v. County of Nassau. NY Slip Op 03967 (2d Dept. 2014)

 Here is the decision.

Tomorrow's issue: A certification order to file a note of issue, and dismissal.

The limitations period as applied to an at-will employee's Article 78 petition.

Practice point: The Appellate Division reversed the dismissal of the terminated employee's petition to annul the agency's action as time-barred.

 In informing petitioner by letter that she was terminated, and advising her of the possibility of review, respondent employed the same language as that used in the article 78 statute of limitations, pursuant to CPLR 217,  to inform petitioner that the result of that review would be "final and binding." The termination letter's language tracked that of paragraph V (G) of Operating Procedure 20-39, which provides that "[t]he reviewer's decision is final and binding, and is not subject to further administrative review."

The Appellate Division found that, notwithstanding the fact that the letter otherwise conveyed the effect typically associated with finality for statute of limitations purposes, there was sufficient ambiguity as to finality such that the petition must be deemed timely.

Student note:  Ordinarily, when an at-will employee's employment is terminated, the four-month statute of limitations applicable in article 78 proceedings, pursuant to CPLR 217, begins to run from the date of the termination, regardless of optional administrative review proceedings. However, where an administrative agency creates ambiguity and the impression of nonfinality, the ambiguity regarding finality is resolved against the agency.

 Case: Matter of Matter of Burch v. New York City Health & Hosps. Corp., NY Slip Op 04060

Here is the decision.

Tomorrow's issue: An alleged § 1983 violation.
 

The Sidewalk Law.

Practice point:  The Administrative Code of the City of New York § 7-210, the so-called Sidewalk Law, shifts tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner. For purposes of the Code, a tree well is not part of the sidewalk, and so the Sidewalk Law does not impose civil liability on property owners for injuries that occur in city-owned tree wells.

Student note: Rules of City of New York Department of Transportation (34 RCNY) § 2-07(b) provides that the owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending 12 inches outward from the perimeter of the hardware, and for ensuring that the hardware is flush with the surrounding street surface, pursuant to 34 RCNY § 2-07[b];[3]. The definition of the term "street" includes the sidewalk.

Case:  Alexander v. City of New York, NY  Slip Op 03964 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The limitations period as applied to an at-will employee's Article 78 petition.

Admissible evidence in opposition to a summary judgment motion.

Practice point:  The Appellate Division found that plaintiff's deposition testimony that he was employed by a nursing home in 1998 when he was arrested, together with his bill of particulars, were sufficient to raise a triable issue of fact as to whether he sustained pecuniary losses resulting from defendants' alleged legal malpractice.

The Appellate Division also found that defendants failed to preserve their argument that plaintiff may not rely upon his deposition testimony since such deposition was taken in an action in which they were not parties and were not represented. In any event, the argument is unavailing, as defendants' absence at the time of the deposition merely renders the deposition transcript hearsay as to them, and hearsay evidence may be considered to defeat a motion for summary judgment, as long as it is not the only evidence submitted in opposition.

Student note:  Plaintiff also submitted his bill of particulars, and factual allegations contained in a verified bill of particulars may be considered in opposition to a motion for summary judgment.

Case:  Fountain v. Ferrara, NY Slip Op 0347 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The Sidewalk Law.

Outstanding discovery and a summary judgment motion.

Practice point:  The Appellate Division determined that the Supreme Court properly denied that branch of the plaintiff's cross motion which was for summary judgment on the complaint since, at the time of the cross motion, court-ordered discovery remained outstanding, pursuant to CPLR 3212[f].

Student note:  CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof."

Case:  Daniels v. City of New York, NY Slip Op 03793 (2d Dept. 2014)

Here is the decision.

Monday's issue: Admissible evidence in opposition to a summary judgment motion.

The application of laches in a real property dispute.

Practice point:  In order for laches to apply to the failure of an owner of real property to assert his or her interest, it must be shown that the plaintiff inexcusably failed to act when he or she knew, or should have known, that there was a problem with the title to the property. So, the application of laches requires the elements sufficient to create an equitable estoppel.

Student note:  Equitable estoppel arises when a property owner stands by without objection while an opposing party asserts an ownership interest in the property and incurs expense in reliance on that belief. The property owner must inexcusably delay in asserting a claim to the property, while knowing that the opposing party has changed its position to its irreversible detriment.  As the effect of delay may be critical to an adverse party, delays of less than one year have been held sufficient to warrant the application of the defense.

Case:  Jean v. Joseph, NY Slip Op 03798 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Outstanding discovery and a summary judgment motion.

The homeowner's exemption under the Labor Law.

Practice point:  The exemption to liability under § 240(1) is available to owners of one and two-family dwellings who contract for but do not direct or control the work. Here, it was undisputed that the defendant's home where the accident occurred is a single-family private residence. The defendant also submitted the parties' deposition testimony and her affidavit establishing, prima facie, that she did not direct or control the method or manner of the work. The defendant's involvement was merely a retention of the limited power of general supervision, and was no more extensive than would be expected of the typical homeowner who hired a contractor to renovate his or her home. The defendant did not lose the protection of the statutory exemption by furnishing the ladder, bleach, and hose.

Student note:  Labor Law § 240(1) imposes a nondelegable duty upon owners and contractors to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute. To recover, the plaintiff must have been engaged in a covered activity, namely, the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.

Case:  DiMaggio v. Cataletto, NY Slip Op 03795 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The application of laches in a real property dispute.

Dismissal of a Labor Law § 240(1) claim.

Practice point:  During construction, concrete stones were delivered on wooden pallets, and, to keep the stones dry, they were covered with a plastic tarp. On the day of the accident, plaintiff was constructing a scaffold near an open area where the pallets were located. As plaintiff walked by one of the pallets, a stone block that was resting on top of it allegedly fell and struck him on the right knee. Plaintiff commenced this action, asserting, among other claims, a Labor Law § 240(1) claim, alleging that the tarp was not properly secured and that, if it had been, plaintiff would not have been injured.

The Appellate Division affirmed the dismissal of the claim, finding that the plastic tarp was not an object that needed to be secured within the meaning of § 240(1). The purpose of the tarp was to keep the stones dry in case of rain, not to protect the workers from an elevation-related risk.

Student note: Section 240(1) does not necessarily apply every time a worker is injured by a falling object.  The question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. The plaintiff must establish that the object fell because of the inadequacy or absence of a safety device of the kind contemplated by the statute. In order for something to be deemed a safety device under the statute, it must have been put in place as to give proper protection for the worker.

Case: Guallpa v. Leon D. DeMatteis Constr. Corp, NY Slip Op 03768 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The homeowner's exemption to liability under the Labor Law.

CPLR 3211(a)(7).

Practice point:  A court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint and, upon considering such affidavits, the facts alleged therein must also be assumed to be true. . Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), 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. Unless it is shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the complaint should not be dismissed.

Student note:  On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, 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.

Case:  Karimov v. Brown Harris Stevens Residential Mgt., LLC, NY Slip Op 03659 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal of a Labor Law § 240(1) claim.