Commencing a tort action against a municipality.

Practice point:  In order to commence a tort action against a municipality, General Municipal Law § 50-e(1)(a) requires a claimant to serve a notice of claim upon that municipality within 90 days after the date that the claim arose. General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time to serve a notice of claim. Whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter is seen as a factor which should be accorded great weight in determining whether or not to grant leave to serve a late notice of claim.  In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves.

Student note:  Other factors a court must consider in determining whether to grant leave to serve a late notice of claim are: (1) whether the claimant was an infant or mentally or physically incapacitated; (2) whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim; and (3) whether the delay would substantially prejudice the public corporation in maintaining its defense (see General Municipal Law § 50-e[5].

Case:  Kellman v. Hauppauge Union Free School Dist., NY Slip Op 05844 (2d Dept. 2014)

Here is the decision..

Tuesday's issue: Moving for a change of venue.

Standing in a mortgage foreclosure action.

Practice point:  In a mortgage foreclosure action, a plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation.

Student note:  Where, as here, standing is put into issue by a defendant, the plaintiff must prove its standing in order to be entitled to relief.

Case:  Federal Natl. Mtge. Assn. v. Cappelli, NY Slip Op 05836 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Commencing a tort action against a municipality.

Dismissal pursuant to CPLR 3216.

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

Student note  As CPLR 3216 is a legislative creation and not part of a court's inherent power, a court may not dismiss an action for want of prosecution where the plaintiff was not served with the requisite 90-day demand pursuant to CPLR 3216(b).

Case:  Diemer v. Eben Ezer Med. Assoc., NY Slip Op 058323 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Standing in a mortgage foreclosure action.

The service requirements of a foreclosure action.

Practice point:. RPAPL 1304[1] requires that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type."  The statute sets forth the requirements for the content of the notice, and further provides that the notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower, pursuant to RPAPL 1304[2].

Student note:  Proper service of the RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action.

Case:  Deutsche Bank Natl. Trust Co. v. Quinn, NY Slip Op 05829 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal pursuant to CPLR 3216.

Sanctions for spoilation of evidence.

Practice point:  The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence, and it may mpose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation.

Here, the Appellate Division determined that the Supreme Court providently exercised its discretion in striking the defendant's answers and thereupon awarding the plaintiffs summary judgment on the issue of liability pursuant to CPLR 3126. The record demonstrates that the defendant disposed of the grate involved in the accident after having received a written demand from one of the infant plaintiff's attorneys that the grate be preserved for inspection by the plaintiffs and their experts. Moreover, the plaintiffs demonstrated that they were unduly prejudiced by the defendant's conduct in disposing of the grate.

Student note:  Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, that party may be sanctioned under CPLR 3126.

Case:  Biniachvili v. Yeshivat Shaare Torah, Inc., NY Slip 05826 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The service requirements of a foreclosure action.

A worker's fall from a ladder.

Practice point:  The mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided. There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries.

Student note:  Labor Law § 240(1) imposes upon owners and general contractors, including their agents, a nondelegable duty to provide safety devices necessary to protect workers from the risks inherent in elevated work-sites.

Case: Karanikolas v. Elias Taverna, LLC, NY Slip Op 05774 (2d Dept. 2014)

Here is the decision.

Monday's issue: Sanctions for spoilation of evidence.

A landowner's duty to warn.

Practice point:  A property owner must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all the attendant circumstances. Encompassed within this duty is the concomitant duty to warn those lawfully on the premises of potentially dangerous conditions that are not readily observable.

Student note: Landowners who have or should have reason to expect that persons will find it necessary to encounter the danger, owe a duty of reasonable care to either warn such persons of the danger or to take other reasonable steps to protect them from it.

Case: Fernandez v. Rutman, NY Slip Op 05769 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A worker's fall from a ladder.

Dismissal for neglect to proceed.

Practice point:  Where a party unreasonably neglects to proceed in an action or otherwise delays in prosecuting the action, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or on a motion, may dismiss the party's pleading on terms, pursuant to CPLR 3216[a]. . Before doing so, the court or the party seeking such relief must serve a written demand to resume prosecution and to serve and file a note of issue within 90 days of receipt of such demand, and further advise that failure to do so may result in dismissal of the action, pursuant to CPLR 3216[b][3]..

Student note:  Pursuant to 22 NYCRR 202.21(a) and (b), an action will not be deemed ready for trial or inquest unless a note of issue is first filed, accompanied by a certificate of readiness stating that there are no outstanding requests for discovery and the case is ready.

Case:  Dutchess Truck Repair, Inc. v. Boyce, NY Slip Op 05768 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A landowner's duty to warn.

The statute of frauds and a subscribed memorandum.

Practice point:  To satisfy the statute of frauds, a memorandum, subscribed by the party to be charged, must designate the parties, identify and describe the subject matter, and state all of the essential terms of a complete agreement. A writing is not a sufficient memorandum unless the parties' full intention can be ascertained from it alone, without recourse to parol evidence.

Student note:  The statutorily required writing need not be contained in one single document, but may be furnished by piecing together related writings.

Case:  Dahan v. Weiss, NY Slip Op 05767 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Dismissal for neglect to proceed.

An action for fraud, breach of fiduciary duty, and negligence.

Practice point:  The Appellate Division affirmed the dismissal of the causes of action to recover damages for fraud, breach of fiduciary duty, and negligence pursuant to CPLR 3211(a)(1). The defendants' documentary evidence included forms signed by or on behalf of the plaintiffs that contained specific disclaimer provisions, pursuant to which the plaintiffs expressly acknowledged that the defendants were not authorized to provide tax advice, and that they would not rely on any such advice provided. These forms conclusively established the defendants' defense to the claims.

Student note:  A motion to dismiss a complaint based on documentary evidence, pursuant to CPLR 3211(a)(1), may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law.

Case:  Air & Power Transmission, Inc. v. Weingast, NY Slip Op 05757 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  The statute of frauds and a subscribed memorandum.

A managing agent's duty of care.

Practice point:  A duty of care on the part of a managing agent may arise where there is a comprehensive and exclusive management agreement between the agent and the owner that displaces the owner's duty to safely maintain the premises.  Here, the Appellate Division determined that, in moving for summary judgment, the defendants failed to submit a copy of the written management agreement. Consequently, they failed to establish, prima facie, that the managing agent owed no duty of care to the plaintiff.

Student note:  As a general rule, liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control, or special use of that property.

Case:  Calabro v. Harbour at Blue Point Home Owners Assn., Inc., NY  05620 (2d Dept. 2014)

Here is the decision.

Monday's issue: An action for fraud, breach of fiduciary duty, and negligence.

Emergency vehicles and the reckless disregard standard of care.

Practice point:  The reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § [*2]1104 (b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.

Student note:  A driver is negligent when an accident occurs because the driver failed to see that which through the proper use of his or her senses the driver should have seen.

Case:  Benn v. New York Presbyt. Hosp., NY Slip Op 05615 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A managing agent's duty of care.

A motion to vacate based on defective service.

Practice point:  The Appellate Division determined that the Supreme Court erred in denying, without a hearing, that branch of the defendants' motion which was pursuant to CPLR 317 to vacate so much of the order as granted that branch of the plaintiff's motion which was pursuant to CPLR 3215 for leave to enter a default judgment against one of the defendants. That defendant demonstrated that it was not served with copies of the summons and complaint by personal delivery; did not personally receive notice of the summons in time to defend the action; and had a potentially meritorious defense.

Student note:  The Supreme Court determined that the defendant deliberately attempted to avoid notice of the summons, based upon the fact that the New York Secretary of State mailed a copy of the summons and complaint by certified mail, in time for it to defend the action, and that this mailing was returned as unclaimed. However, the Supreme Court should not have made this determination without conducting a hearing as to whether the defendant received notice of the dispatch or delivery of the certified mail from the Secretary of State.

Case:  Avila v. Distinctive Dev. Co., LLC, NY Slip Op05613 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Emergency vehicles and the reckless disregard standard of care.

Waiving the right to arbitrate.

Practice point:  A party may waive its right to arbitrate by participating in litigation. The mere act of pursuing litigation does not waive the right, but, rather, the party must engage in protracted litigation that results in prejudice to the opposing party.  The prejudice may either be substantive,  or it may involve excessive delay or costs caused by the moving party's pursuit of litigation prior to seeking arbitration.  A party may be substantively prejudiced when the other party is attempting to relitigate an issue through arbitration, has participated in substantial motion practice, or seeks arbitration after engaging in discovery that is unavailable in arbitration.

Student note:  In determining what constitutes protracted litigation for the purposes of waiver, the court should consider three factors: (1) the amount of time between the commencement of the action and the request for arbitration; (2) the amount of litigation thus far; and (3) proof of prejudice to the opposing party.

Case:  Cusimano v. Schnurr, NY Slip Op 05702 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A motion to vacate based on defective service.

An auto accident, and summary judgment as to liability denied.

Practice point:  To establish prima facie entitlement to judgment as a matter of law on the issue of liability, a plaintiff must demonstrate that the defendant was negligent and that the plaintiff was free of comparative fault. Here, in support of her motion, plaintiff submitted, among other things, the transcript of defendant's deposition, in which he stated that he remained in the far left traffic lane at all times prior to the collision, and that he felt the bump of the plaintiff's vehicle when it crossed over into his lane.

The Appellate Division determined that the motion court had properly concluded that plaintiff failed to eliminate a triable issue of fact as to how the accident occurred and who was at fault. The Appellate Division noted that, contrary to plaintiff's assertions, defendant's deposition testimony was not internally inconsistent on the material facts, was not inconsistent with his previously prepared accident report, and did not constitute an attempt to create a feigned issue of fact.

 Student note: In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party.

Case: Valentin v. Parisio, NY Slip Op 05423 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Waiving the right to arbitrate.

Injured while lifting a bag of, well, coins.

Practice point:  The plaintiff allegedly was injured while lifting a bag of coins as part of his assigned duties as an armored car service's courier for an armored car service.  The plaintiff commenced this action against the owner of the bank where the incident occurred, alleging that the defendant and its employees created a dangerous and defective condition by allowing the bag of coins to be overfilled.

The defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the subject bag of coins was not over an accepted or contractually agreed upon weight at the time of the alleged incident, and that the plaintiff's injury resulted from a risk inherent in his assigned work as a courier for the service.

Student note:  In addition, the defendant demonstrated that the plaintiff elected to lift the bag with only one hand. Where, as here, a worker confronts the ordinary and obvious hazards of the employment, and has the time and other resources, perhaps a co-worker who might assist, to enable the work to be done safely, he may not hold others responsible if he chooses to perform the job so incautiously as to be injured.

Case:  Sepulveda-Vega v. Suffolk Bancorp., NY Slip Op 05419 (2d Dept. 2014)

Here is the decision.

Monday's issue:  An auto accident, and summary judgement as to liability denied.

An oral contract and taxi medallions.

Practice point:  The parties are taxi drivers who allegedly purchased two New York City taxicab medallions, the titles to which were subsequently memorialized in two deeds of transfer, with the plaintiff holding title to one medallion, and the defendant holding title to the other. Over time, various transfers of money were made between the parties, including one transfer from the plaintiff to the defendant in the sum of $158,375, allegedly to facilitate the defendant's purchase of the medallion to which he had title. The plaintiff alleges that the parties orally agreed that he was loaning this sum to the defendant at the interest rate of 6.25%, and that the defendant was obligated to repay this amount "whenever he can." The defendant asserts that the parties never made such an agreement. The plaintiff commenced this action to recover the amount due on the oral loan agreement, and after a nonjury trial, the Supreme Court concluded that the plaintiff was entitled to the principal sum of $158,375.

The Appellate Division affirmed, noting that, as the defendant concedes, the loan agreement at issue could have been performed within one year of the making thereof, pursuant to General Obligations Law § 5-701[a][1].. Therefore, the statute of frauds does not apply to this agreement, and enforcement of the agreement is not barred by virtue of it not having been memorialized in writing.

Student note:  The Appellate Division also considered that the Supreme Court's determination in favor of the plaintiff was based upon factual conclusions arrived at by weighing the evidence presented by both parties, and was not against the weight of the evidence or contrary to law.

Case:  Saha v. Padder, NY Slip Op 05418 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Injured while lifting a bag of, well, coins.

Bad weather, a bad fall, and a bad result for the injured plaintiff.

Practice point:  A property owner is not obligated to provide a constant remedy to the problem of water being tracked into a building during inclement weather, and has no obligation to cover all of its floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation.

Here, both the owner and the tenant established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them. They each presented evidence that they had not created the alleged defective condition, and the owner also presented evidence that it had neither actual nor constructive notice of the alleged defective condition, namely., the alleged presence of water on the vestibule floor of the subject building. In opposition, the plaintiff failed to raise a triable issue of fact.

Student note:  A tenant ordinarily owes no duty of care with respect to a dangerous condition in the building's common areas.

Case:  Paduano v. 686 Forest Ave., LLC, NY Slip Op 05415 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An oral contract and taxi medallions.

Motion to amend the complaint is granted.

Practice point:  The Appellate Division reversed the motion court's denial of plaintiff's motion pursuant to CPLR 3025(b) for leave to serve a second amended complaint to add a cause of action to recover damages for negligence per se and a claim for punitive damages. Defendants did not allege that the proposed amendment would result in any prejudice or surprise. Indeed, plaintiff's motion was made prior to the filing of the note of issue, and was predicated on information supplied by defendants during disclosure.  Further, the proposed amendment was not palpably insufficient or patently devoid of merit.  Finally, the motion court erred in prematurely determining that the proposed amendment "would invite the jury to speculate."  The rule is that if the opposing party wishes to test the merits of the proposed added cause of action, that party may later move for summary judgment upon a proper showing.

Student note:  An evidentiary showing of merit is not required under CPLR 3025(b).  Instead, the court need only determine whether the proposed amendment is palpably insufficient' to state a cause of action or defense, or is patently devoid of merit. The court may not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt.

Case:  Favia v. Harley-Davidson Motor Co., Inc., NY Slip Op 05408 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Bad weather,  a bad fall, and a bad result for the injured plaintiff.

A medical malpractice action based on a psychiatric consultation.

Practice point:  The plaintiff had gone by ambulance to the hospital complaining of feeling overwhelmed by stress. An emergency room physician concluded that plaintiff's symptoms were consistent with depression, and ordered several tests and a psychiatric consultation. After some of the test results came back, the emergency room physician telephoned defendant-psychiatrist for the consultation. The emergency room physician advised him that she anticipated that plaintiff would be medically cleared, and asked defendant to confirm her initial assessment that plaintiff was not suicidal or a risk to others and, thus, would not require involuntary admission. Defendant reviewed the plaintiff's chart, looking for any indication that he had suicidal or homicidal ideation. Then, after performing his evaluation, defendant concluded that plaintiff was not a danger to himself or others and would not require involuntary admission. Defendant offered plaintiff a referral for outpatient psychiatric treatment for depression. As defendant was gathering information regarding the outpatient referral, plaintiff and his partner left the hospital before being formally discharged by the emergency room physician, who was still waiting for medical test results and overseeing treatment. Plaintiff became unresponsive in the cab ride home and returned to the emergency room about 45 minutes later. He was reexamined and, after a neurological consultation, it was determined that he had suffered a stroke.

Plaintiff sued, among others, defendant-psychiatrist, against whom he alleged a departure from acceptable medical practices by not performing a neurological examination and thereby ruling out a neurological etiology for his symptoms; by not developing a list of differential diagnoses; and by not referring plaintiff for further diagnostic studies to work up neurological problems. The Supreme Court denied defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.

The Appellate Division reversed, finding that defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that his duty of care as a consulting psychiatrist did not extend to the departures alleged by the plaintiff.  Where, as here, plaintiff was being actively treated by an emergency room physician for any medical causes of his symptoms, and exhibited no clear signs of neurological problems at the time, defendant had no duty beyond properly performing an evaluation to determine whether plaintiff was a danger to himself or others and would require involuntary admission for depression. The Appellate Division found that, in opposition, the plaintiff failed to raise a triable issue of fact.

Student note:  A physician's general duty of care to the patient may be limited to those medical functions undertaken by the physician and relied on by the patient.

Case:  Chin v. Long Is. Coll. Hosp., NY Slip Op 05406 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Motion to amend the complaint is granted.

An injured firefighter's suit sounding in negligence.

Practice point:  General Municipal Law § 205-a establishes the right of an injured firefighter to recover against any party whose negligence in failing to comply with governmental requirements results directly or indirectly in the firefighter's injury. While recovery does not require proof of such notice as would be necessary to a cause of action alleging common-law negligence, the plaintiff still must establish that the circumstances surrounding the violation indicate that it was a result of neglect, omission, or willful or culpable negligence on the defendant's part. Here, defendant established, prima facie, that the alleged violations were not the result of neglect, omission, or willful or culpable negligence on his part, and, in opposition, plaintiffs failed to raise a triable issue of fact.

Student note:  General Obligations Law § 11-106 largely abolished the former so-called "firefighter's rule" by allowing firefighters to assert causes of action sounding in negligence for injuries suffered while in the line of duty against entities other than municipal employers and fellow workers.

Case:  Cassidy v. Korik, NY Slip Op 05405 (2d Dept. 2014)

Here is the decision.

Monday's issue:  A medical malpractice action based on a psychiatric consultation.