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.