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.

Documents in the electronic record in a medical malpractice action.

Practice point:  The Appellate Division affirmed the Supreme Court's determination that the moving defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law. The defendants' medical experts did not examine the plaintiff's decedent but relied on medical reports and medical records that were not annexed to the motion. Although the defendants contend that they provided the Supreme Court with a CD-R containing the medical records relied upon by their experts, there is no evidence that the CD-R provided to the court properly contained the certified medical records, or was even readable by the court, pursuant to CPLR 2214[c]. Moreover, even if a readable CD-R were submitted on an earlier motion, the court is not be compelled, absent a rule providing otherwise, to locate previously submitted documents in the electronic record in considering subsequent motions.

Student note:  A physician moving for summary judgment dismissing a malpractice complaint must establish, prima facie, either that there was no departure from accept standards of practice, or that any alleged departure was not a proximate cause of the plaintiff's injuries. The burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact only upon the defendant's meeting the initial burden, and only as to the elements on which the defendant met the prima facie burden.

Case:  Garrison v. Quirk, NY Slip Op 05947 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Time limits on renewal of a judgment lien.

Residence and domicile, as they relate to venue.

Practice point:  Pursuant to CPLR 503(a), "the place of trial shall be in the county in which one of the parties resided when it was commenced." For venue purposes, a residence is where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency.  While residence means living in a particular place, domicile means living in that locality with intent to make it a fixed and permanent home..

Student note: In the context of determining proper venue, a party may have more than one residence. 

Case:  Deas v. Ahmed, NY Slip Op 05945 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Documents in the electronic record in a medical malpractice action.

Class certification.

Practice point:  As a prerequisite to class certification, the class representative must demonstrate that he or she will fairly and adequately protect the class' nterests, pursuant to CPLR 901[4]. The class representative acts as principal to the other class members, and owes them a fiduciary duty to vigorously protect their interests. That responsibility includes the duty to secure the class members' rights, as well as to oppose the adverse interests asserted by others. The three factors in determining adequacy of representation are potential conflicts of interest between the representative and the class members; personal characteristics of the proposed class representative, such as familiarity with the lawsuit and individual financial resources; and the quality of the class counsel.

Student note:  Pursuant to CPLR 902, A class action may be maintained in New York only after the five prerequisites of CPLR 901(a) have been satisfied. The actual certification is discretionary with the trial court.

Case:  Cooper v. Sleepy's, LLC, NY Slip Op 05942 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Residence and domicile, as they relate to venue.

The plainitff's identifying the cause of the fall.

Practice point:  Here, the defendants failed to establish, prima facie, that the plaintiff could not identify the cause of her fall. In support of the motion and cross motion, the defendants relied on the transcript of the plaintiff's testimony at the General Municipal Law § 50-h hearing.  However, the transcript failed to eliminate triable issues of fact as to plaintiff's establishing the cause, as she testified that there was ice at the place where she fell.

Student note: In a slip and fall action, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the fall. If a plaintiff is unable to identify the cause of a fall, any finding of negligence would be based on impermissible speculation. That does not mean that a plaintiff must have personal knowledge of the cause of the fall, but only that a plaintiff's inability to establish the cause -- by some admissible proof -- is fatal to a cause of action based on negligence.

Case:  Cipriano v. City of New York, NY Slip Op 05940 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Class certification.

Whistleblower suits and notices of claim.

Practice point:  A party bringing a whistleblower claim, and seeking both legal and equitable remedies, must file a notice of claim pursuant to General Municipal Law §§ 50-e, 50-i, even though the Whistleblower Statute is not a tort statute and technically does not fall within the categories described in General Municipal Law § 50-i.  However, a plaintiff whose claim falls under the jurisdiction of General Municipal Law § 50-e, or other narrow statutory notice requirements, may pursue an equitable claim, including one for reinstatement, absent the notice of claim.

Student note: The Whistleblower Law forbids retaliatory personnel action by public employers against their employees who disclose to a governmental body information regarding violations of regulations that would present a specific danger to public health or safety, or about what the employee believes to be an improper governmental action, pursuant to Civil Service Law § 75-b[1][d]; [2][a]. A whistleblower claim may seek both monetary damages and equitable relief, including an injunction to restrain continued violation of the law; reinstatement to the same or equivalent position as before, with full fringe benefits and seniority rights; compensation for lost wages, benefits and other remuneration; and reasonable costs, disbursements and attorney's fees, pursuant to Civil Service Law § 75-b[3][c], referencing Labor Law § 740[5].

Case:  Rose v New York City Health & Hosps. Corp., NY Slip Op 06013 (1st Dept. 2014)

Here is the decision.

Monday's issue: The plaintiff's identifying the cause of the fall.

Attorney-defendants' alleged participation in a fraudulent corporate scheme.

Practice point:  Plaintiffs allege that the attorney-defendants, who were retained as the attorneys for the allegedly fraudulent corporation, were complicit in the fraudulent scheme by drafting documents and a shareholder agreement designed to give plaintiffs the impression that the corporation was legitimate, and by dealing directly with plaintiffs in reviewing the documents and giving them "accompanying legal advice and counsel."

The Appellate Division determined that, as against the attorney-defendants, the causes of action sounding in constructive fraud and negligent misrepresentation causes of action were deficient, as they failed to to allege the requisite fiduciary or special relationship between plaintiffs and defendants. The Appellate Division noted that the attorneys for a corporation represent the corporate entity, not the shareholders, and here the parties did not expressly agree otherwise. Plaintiffs' subjective belief did not create an attorney-client relationship or a close relationship approaching privity that imposed on defendants a duty to impart correct information.

Student note:  To the extent that the causes of action, as pleaded, could be fairly interpreted as including liability for aiding and abetting fraud, they are still deficient because they fail to allege that the attorney-defendants had actual knowledge of the fraud and provided substantial assistance in its commission. The allegation that the attorneys "knew or should have known" of the fraud is conclusory, and alleges mere constructive knowledge. The allegations that the attorneys prepared merger documents and a shareholder agreement are allegations of ordinary professional activity, not substantial assistance.

Case: Gregor v. Rossi, NY Slip Op 06012 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Whistleblower suits and notices of claim.

Emails, affidavits, and documentary evidence.

Practice point::  A cause of action may be dismissed pursuant to CPLR 3211(a)(1) only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law, and definitely disposing of the plaintiff's claim.

Student note:  In a proper case, email correspondence can suffice as documentary evidence for purposes of CPLR 3211(a)(1).  However, factual affidavits are not documentary evidence within the meaning of the statute.

Case:  Art & Fashion Group Corp. v. Cyclops Prod., Inc., NY Slip Op 06008 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Attorney-defendants' alleged participation in a fraudulent corporate scheme.

Moving for a change of venue.

Practice point:  To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff's choice of venue is improper and that defendant's choice of venue is proper. To succeed on his motion here, the defendant was obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in the county that the plaintiff designated. Only if the defendant made such a showing was the plaintiff required to establish, in opposition, via documentary evidence, that the venue he had selected was proper.

The only evidence that the defendant submitted with respect to the issue of the plaintiff's residence was the police accident report on the accident. This evidence merely showed that, at the time the accident occurred, the plaintiff had a residence in Texas. This evidence did not demonstrate that the plaintiff did not maintain a residence in Kings County when the action was commenced, two months after the accident. Therefore, the defendant failed to meet his initial burden.

Student note:   A plaintiff may choose venue based solely on a defendant's address, as set forth in a police accident report.  However, that report, standing alone, is not enough to demonstrate that, on the date that an action is commenced, a plaintiff does not reside in the county where he or she elects to place venue.

Case:  Chehab v. Roitman, NY Slip Op 05939 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Emails, affidavits, and documentary evidence.

Court holiday.

Triangle Shirtwaist Factory

The courts are closed to mark Labor Day.

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