Summary judgment on the issue of liability on a Labor Law § 240(1) claim.

Practice point:  The Appellate Division reversed the motion court's denial of plaintiff's summary judgment motion, as his deposition testimony establishes that a proximate cause of his injury was the shifting of unsecured scaffold planks. Therefore, contrary to defendants' contention, plaintiff was not the sole proximate cause of the accident. In addition, defendants' recalcitrant worker defense, predicated on plaintiff's alleged entry into an area of the scaffold that had been cordoned off, is unavailing, as there is no evidence that plaintiff had been instructed on the day of the accident not to enter or use the cordoned-off area.

Student note:  The unsworn accident report relied upon by defendants to show an inconsistency in plaintiff's account of the accident is insufficient to raise an issue of fact. The report is inadmissible hearsay, and defendants provide no excuse for their failure to tender the report in admissible form. The inconsistent statement in plaintiff's hospital record as to how the accident occurred is also insufficient to raise a triable issue of fact, because it is not germane to plaintiff's diagnosis and treatment.

Case:  Kristo v. Board of Educ. of the City of N.Y., NY Slip Op 09358 (1st Dep't 2015)

Monday's issue:  Evidentiary material and motions to dismiss.

Extending time to settle a judgment.

Practice point:  The plaintiffs and the defendants are neighbors and share a common right-of-way.  Years ago the owner subdivided her property into what is now the plaintiffs' property and the defendants' property. A 10-foot-wide strip of land between the parties' properties was not conveyed to either property. The parties do not dispute that they both have the right of ingress and egress over the 10-foot-wide strip of land, but the disagree as to whether the plaintiffs have an easement to use portions of the defendants' property as a driveway.

According to the plaintiffs, the defendants began to restrict access to portions of the common driveway that were on the defendants' property.  The plaintiffs commenced this action seeking a declaration that the defendants' property is subject to an easement in favor of the plaintiffs' property. After a nonjury trial, the Supreme Court issued a decision and order directing the dismissal of the plaintiffs' claims, and directing that a judgment be settled on notice. However, the defendants did not settle the judgment within 60 days, as is required by 22 NYCRR 202.48.

The plaintiffs commenced a second action, seeking essentially the same relief that was denied in this action, and asserting additional causes of action. The defendants moved for summary judgment in the second action dismissing numerous causes of action on the ground that they had been dismissed in this action and were thus barred by the doctrine of res judicata. The Supreme Court denied the motion, partly because no judgment had been entered in this action.

Thereafter, the defendants moved pursuant to CPLR 2004 in this action to extend their time to settle the judgment pursuant to the decision and order. The Supreme Court granted the motion, and a judgment was entered. On this appeal from that judgment, the plaintiffs contend that the Supreme Court erred in extending the defendants' time to settle the judgment, in dismissing their first cause of action as abandoned, and in dismissing their causes of action seeking an easement by prescription or necessity.

The Appellate Division affirmed, finding that, while the defendants' did engage in dilatory behavior, the interests of justice demand that the court not be burdened with the trial of demonstrably meritless causes of action. 

Student note:   It is within the sound discretion of the court to accept a belated order or judgment for settlement.  A court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources.

Case:  Curanovic v. Cordone, NY Slip Op 09398 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:   Summary judgment on the issue of liability on a Labor Law § 240(1) claim.

The death of a party.

Practice point:  The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a).

Student note:  CPLR 1021 is an exception to that principle.  It provides, in pertinent part, that a motion for substitution may be made by the successors or representatives of a party or by any other party within a reasonable time after the party's death. If "timely substitution has not been made, the court, before proceeding further, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent's estate to show cause why the action or appeal should not be dismissed."

Case:  Barnabas v. Boodoo, NY Slip Op 09394 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Extending time to settle a judgment.

Failure to identify the cause of the fall.

Practice point:  In a slip-and-fall case, a plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Student note:  Proximate cause may be established without direct evidence of causation by inference from the circumstances of the accident. However, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action.

Case:  Amico v. Kasneci, NY Slip Op 09393 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  The death of a party.

Constructive notice in a slip and fall action.

Practice point:  The Appellate Division reversed, on the law, and denied defendant's motion for summary judgment in this action resulting from plaintiff's fall on an oil patch in defendant's parking lot.

A defendant who moves for summary judgment in a slip and fall case has the initial burden of making a prima facie showing that it did not create the allegedly hazardous condition that caused the accident, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the accident.  Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice.

Student note:  The owner or possessor of real property has a duty to maintain the property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.

Case:  Bruni v. Macy's Corporate Servs., Inc., NY Slip Op 09238 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Failure to identify the cause of the fall.

A missing witness charge.

Practice point:  Upon a jury verdict in defendants' favor, plaintiff appealed and the Appellate Divison reversed, on the law, and remanded for a new trial.

Plaintiff claims that she sustained a permanent, consequential limitation of her neck and back as a result of a motor vehicle accident. The accident occurred while she was on a trip  with other members of her Jehovah's Witness congregation. Four years before the motor vehicle accident, plaintiff had injured her back when a bookcase fell on her. In connection with the earlier injury, she saw an orthopedist and a physical therapist.

Plaintiff claims that, at trial, the court erred in giving a missing witness charge. The charge was related to her testimony that, in connection with the earlier accident, she saw an orthopedist who referred her to physical therapy. Plaintiff did not call the orthopedist as a witness, nor did she introduce into evidence any of the medical records generated by him or the physical therapist.

The Appellate Division noted that the record does not reflect when defendants asked for a missing witness charge. This presents the possibility that they did not do so until after plaintiff presented her case.  If that were so, plaintiff had no chance to account for the orthopedist's absence, argue that plaintiff did not have the requisite control over him, or attempt to procure his appearance. The Appellate Division determined that, since there is no indication that defendants promptly notified the court when the need for the charge arose, the charge was improperly given.

Student note:  The party seeking a missing witness charge has the burden of promptly notifying the court when the need for the charge arises. The purpose of imposing the burden is, at least in part, to permit the parties to tailor their trial strategy to avoid substantial possibilities of surprise. Once the party requesting the charge meets its initial burden, the party opposing the request can defeat it by demonstrating that the witness was not available or beyond its control, or that the issue about which the witness would have been called to testify is immaterial.

Case:  Herman v. Moore, NY Slip Op 09352 (1st Dept. 2015)

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

Disclosure and social media.

Practice point:  This is a personal injury action in which plaintiff alleges that, while riding one of defendant's horses, the stirrup leather attached to the saddle broke, causing her to lose her balance and fall to the ground. Plaintiff claims that defendant was negligent in failing to prepare the horse for riding, and in maintaining and inspecting the equipment. Plaintiff alleges that the accident resulted in cognitive and physical injuries that have limited her ability to participate in social and recreational activities. At deposition, plaintiff testified that she maintained and posted to a Facebook account prior to the accident, but deactivated the account at some point after.

Defendant sought an order compelling plaintiff to provide an unlimited authorization to obtain records from her Facebook account, including all photographs, status updates, and instant messages. The motion court granted the motion to the extent of directing plaintiff to produce: (a) all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial; (b) all photographs of herself privately posted on Facebook after the accident that do not show nudity or romantic encounters; and (c) authorizations for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages. Plaintiff appealed, and the Appellate Division vacated those portions of the order directing plaintiff to produce photographs of herself posted to Facebook after the accident that she does not intend to introduce at trial and authorizations related to plaintiff's private Facebook messages.

The Appellate Division noted that courts consistently have required a threshold showing before allowing access to a party's private social media information.  The Appellate Division determined that defendant failed to establish entitlement to either plaintiff's private Facebook photographs or information about the times and length of plaintiff's private Facebook messages. The fact that plaintiff had previously used Facebook to post pictures of herself or to send messages is insufficient to warrant discovery of this information.  Further, defendant's speculation that the requested information might be relevant to rebut plaintiff's claims of injury or disability is not a proper basis for requiring access to plaintiff's Facebook account.

Student note:  CPLR 3101(a) provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.  In determining whether the information sought is subject to discovery, the test is one of usefulness and reason.

Case:  Forman v. Henkin, NY Slip Op 09350 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A missing witness charge.

CPLR 205(a) and 306-b.

Practice point:   The Appellate Division affirmed the denial of the 306-b cross-motion to dismiss and the granting of the 205(b) motion for leave to extend time to serve process.  After the dismissal of a previous action without prejudice, the plaintiff commenced the instant action within the applicable limitations period.  The six-month period in CPLR 205(a) is not a limitations period but a tolling provision, which has no application where, as here, the statute of limitations has not expired at the time the second action was commenced.

Student note:   The Appellate Division determined that the Supreme Court did not improvidently exercise its discretion in finding, in effect, that the time for service should be extended in the interest of justice.

Case:  Bonilla v. Tutor Perini Corp., NY Slip 09237 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Disclosure and social media.

Summary judgment in a slip-and-fall action.

Practice point:  The Appellate Division reversed the Supreme Court's sua sponte dismissal of the complaint in this action against the store's owner and the store's lessee. The Appellate Division rejected lessee-defendant's argument that it owed no duty to plaintiff.  As the operator of a place of public assembly, a store lessee has a duty to provide its customers with a safe means of entering and leaving the store.

Student note:  On a summary judgment motion, a defendant must establish prima facie entitlement to judgment as a matter of law before the burden shifts to the party opposing the motion to establish the existence of a material issue of fact

Case:  Taveras v. 1149 Webster Realty Corp, NY Slip Op 09192 (1st Dept. 2015)

Here is the decision.

Monday's issue:  CPLR 205(a) and 306-b.

A police accident report and summary judgment.

Practice point:  The Appellate Division affirmed the denial of plaintiff's summary judgment motion as to liability, finding that plaintiff failed to establish his prima facie entitlement to judgment as a matter of law by eliminating all triable issues of fact.

In support of his motion, plaintiff submitted his own affidavit, in which he alleged that defendant was negligent because he violated Vehicle and Traffic Law § 1128(a), and that plaintiff could not avoid the collision. However, plaintiff also submitted an uncertified police accident report containing defendant's statement that plaintiff sped up to prevent defendant from merging into the lane in which the plaintiff was traveling and, thus, contributed to the accident.

Student note:  In submitting the uncertified police accident report, plaintiff waived any objection to its admissibility.

Case:  Kadashev v. Medina, NY Slip Op 09069 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Summary judgment in a slip-and-fall action.

A plaintiff's negligence and proximate cause.

Practice point:  The Appellate Division affirmed the jury verdict that, while the plaintiff was negligent, her negligence was not a proximate cause of her injury. The Appellate Division found that  the issues were not so inextricably interwoven as to make it logically impossible to find negligence but not proximate cause.

Student note:  The defendant's argument that the jury verdict was inconsistent was not raised before the jury was discharged, and therefore was unpreserved for appellate review.

Case: Blechman v. New York City Tr. Auth., NY Slip Op 09173 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A police accident report and summary judgment.

Limiting the scope of discovery.

Practice point:  The Appellate Division affirmed the motion court's denial of those branches of the plaintiff's motion which were to extend the time to complete discovery and compel the defendants to respond to his discovery demands. The Appellate Division determined that the plaintiff's discovery demands were overly broad and unduly burdensome, and sought a large number of documents that were irrelevant to his remaining causes of action.

Student note:  The Supreme Court has broad discretion to supervise disclosure to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice. Discovery demands that are overly broad, are lacking in specificity, or seek irrelevant documents are improper and will not be allowed.

Case:  Jacobs v. Mostow, NY Slip Op 09067 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A plaintiff's negligence and proximate cause.

Jurisdiction based on a tort committed outside the State causing injury inside the State.

Practice point:  The Appellate Division affirmed dismissal for lack of personal jurisdiction in this action stemming from the sale and deliver of steel from a New York company to two New Jersey corporations.  It determined that the motion court properly rejected plaintiff's assertion of jurisdiction under CPLR 302(a)(3)(ii), for an alleged tort committed without the State causing injury within the State. As to the tort committed without the State, plaintiff points to the alleged fraudulent conveyance of plaintiff's assets to defendant. This fails, however, because the situs of the injury is the location of the original event which caused the injury, not the location where the resulting damages are subsequently felt.  Therefore, the alleged tortious act did not cause]injury within New York, but in New Jersey.

Student note:  The Appellate Division determined that plaintiff has also offered nothing but conclusory allegations that any defendant derives substantial revenue from interstate or international commerce, as required for jurisdiction under CPLR 302(a)(3)(ii).

Case:  Cotia (USA) Ltd. v Lynn Steel Corp., NY Slip Op 09169 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Limiting the scope of discovery.

Darkness falls.

Practice point:  The Appellate Division the denial of defendant's summary judgment motion in this action where plaintiff seeks damages after he was injured when he tripped over the forks of a power jack parked in the 25-foot-wide central walkway between rows of work tables in a commercial warehouse leased by defendant. Plaintiff, a subcontractor of defendant, had been working at one of the tables when a power outage plunged the warehouse into complete darkness, and after about 20 seconds he decided to leave the warehouse. He turned from his table and took a few steps into the central walkway, and tripped over the jack. About 10 seconds later, the power was restored.

Defendant failed to establish prima facie that it maintained the premises in a reasonably safe condition and did not create a dangerous condition that posed a foreseeable risk of injury to individuals expected to be on the premises. Plaintiff testified that the power jacks were usually stored in an area near the front of the building and that he had never seen one unattended in the central walkway. Moreover, the record shows that machinery in the warehouse was operated solely by defendant's employees.

Student note:  The Appellate Division rejected defendant's argument that the power jack was an open and obvious hazard and not inherently dangerous as misplaced. Nor did defendant establish as a matter of law that plaintiff's decision to walk through the dark warehouse was the sole proximate cause of his injury, since, even in the dark, plaintiff could not have tripped over a jack that was not there. Defendant also failed to establish as a matter of law that the power outage was a supervening event that severed the causal connection between any negligence on its part and plaintiff's injury. Finally, defendant made no showing that power outages in the area were a very rare occurrence in the area, and the record demonstrates that the warehouse had a working back-up generator.

Case:  Washington v. Autumn Props. II, LLC, NY Slip Op 08950 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Jurisdiction based on a tort committed outside the State causing injury inside the State.

A rear-end collision.

Practice point:  Mere evidence of a sudden stop, without more, is not enough to raise a triable issue of fact as to whether the operator of the stopped vehicle was partly at fault, so as to defeat a motion for summary judgment. However, while vehicle stops under prevailing traffic conditions are forseeable and must be anticipated by the following driver, where the sudden stop is unexplained by the existing circumstances and conditions, an issue of fact as to liability is raised.

Student note:   A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the accident. Here, an affidavit averring that the vehicle was stopped at a red traffic light for 40-45 seconds when it was struck from behind was sufficient to establish Galuten's prima facie entitlement to judgment as a matter of law.

Case:  Etingof v. Metropolitan Laundry Mach. Sales, Inc., NY Slip Op 08803 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Darkness falls.

Leave to amend a summons and complaint.

Practice point:  The Appellate Division reversed the motion court, finding that it improvidently exercised its discretion in denying plaintiff's cross motion to substitute an identified defendant in the summons and complaint, pursuant to CPLR 305[c], 1024 and 3025. There was no evidence of any prejudice or surprise to the proposed defendant resulting from the substitution, and defendant City of New York stated that it had no substantive objection to plaintiff's cross motion to the extent it sought leave to substitute the identified police officer for a "John/Jane Doe" defendant.

Student note:  Since the limited proposed amendments were clearly described in the moving papers, plaintiff's failure to submit proposed amended pleadings with his original moving papers, pursuant to CPLR 3025[b], was a technical defect, which the court should have overlooked, pursuant to CPLR 2001, particularly after plaintiff provided those documents with his reply.

Case:  Medina v. City of New York, NY Slip Op 08909 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A rear-end collision.

Res judicata.

Practice point:  The Supreme Court determined that this personal injury action was barred by collateral estoppel, and the Appellate Division affirmed, but on a different ground, namely, res judicata.

The Appellate Division found that, in a declaratory judgment action, an order was issued granting the plaintiffs therein leave to enter a default judgment against the appellants, who were named defendants in that action, upon their failure to appear or answer the complaint in that action. The Appellate Division determined that that order is conclusive for res judicata purposes as to any matters actually litigated or that might have been litigated in that action, and that it precludes the appellants from maintaining this action.

Student note:  Res judicata, or claim preclusion, bars successive litigation based upon the same transaction or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action, or in privity with a party who was. The doctrine applies to an order or judgment taken by default which has not been vacated, as well as to issues which were or could have been raised in the prior proceeding.

Case:  Albanez v. Charles, NY Slip Op 08795 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to amend a summons and complaint.

Denial of an award for enhanced earning capacity.

Practice point:  The Appellate Division determined that the court properly exercised its discretion in denying the husband any award of a portion of the wife's enhanced earning capacity stemming from her United States medical license. The husband failed to show that he contributed to the wife's attainment of her license.  Prior to the marriage, the wife completed medical school in China and had a medical license in China. Thus, the only marital property was her US medical license, and while the wife did not work from May 2004 to May 2007, as she studied for the exam, she supported herself with her own savings and financial support from her mother, and paid for the exam review course herself.

Student note:  If the husband were entitled to an award based on the wife's enhanced earning capacity, he would have to establish the value of such enhanced earning capacity through expert testimony.

Case:  Ruo Mei Cai v. Victor Fai Lau, NY Slip Op 08635 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Res judicata.

CPLR 4401 and 4404(a)

Practice point:  The Appellate Division affirmed the denial of the motion, made pursuant to CPLR 4401,  for judgment as a matter of law on the issue of liability, made at the close of the plaintiffs' case and renewed at the close of evidence. A 4401 motion may be granted where the trial court determines that, upon the evidence presented, there is no rational process by which the trier of fact could base a finding in favor of the nonmoving party.  In considering the motion, the court must afford the nonmovant every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant.

Student note:  A 4404(a) motion to set aside a jury verdict as contrary to the weight of the evidence will not be granted unless the jury could not have reached the verdict by any fair interpretation of the evidence.

Case:  Cobenas v. Ginsburg Dev. Cos., LLC, NY Slip Op 08702 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Denial of an award for enhanced earning capacity.

An enforceable contract.

Practice point:  The Appellate Division reversed the motion court and dismissed the complaint in this action to recover damages for an alleged breach of contract.  A binding contract requires mutual assent sufficiently definite to assure that the parties are in agreement with respect to all material terms, and the contract is not enforceable if a court cannot determine what the parties have agreed to. If the agreement is not reasonably certain in its material terms, there is no legally enforceable contract.

Student note:  The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach.

Case:  Carione v. Hickey, 08700 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  CPLR 4401 and 4404(a).

A motion for leave to renew.

Practice point:  The motion court has discretion to grant renewal on facts known to the movant at the time of the original motion on a showing of reasonable justification for not having offered the additional facts in the prior application.  Law office failure may be a reasonable justification.

Student note:  Generally, though, the motion must be made on new facts, not offered in the original application, that would change the prior determination, pursuant to CPLR 2221(e)(2).

Case:  Calle v. Zimmerman, NY Slip Op 08699 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  An enforceable contract.

Partition and sale of an apartment.

Practice point:  The Appellate Division determined that plaintiff is entitled as a matter of law to the partition and sale of the apartment under Real Property Actions and Proceedings Law (RPAPL) § 901. In the record there was support for a finding that the parties are tenants in common, and defendant did not raise an issue of fact contesting the assertion that the apartment's value is maximized by remaining undivided, or that the parties would be prejudiced by dividing it.

The Appellate Division noted that defendant may not invoke the notice provision in RPAPL § 1304, and is not entitled to a court-supervised settlement conference under CPLR 3408, as the definitions of "home loan" and "lender" under the statute have not been met.

Student note:  For the purposes of RPAPL § 901(1), a plaintiff may be in "possession" of the apartment, despite not having lived in it.

Case:  Lane v. Tyson, NY Slip Op 08623 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion for leave to renew.

Construing contracts.

Practice point:  A contract will be construed in accordance with the parties' intent, which is generally discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. A contract is unambiguous if its language has a definite and precise meaning, unattended by the danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion.  A contract is considered ambiguous when, read as a whole, it does not disclose its purpose and the parties' intent, or when specific language is susceptible of two reasonable interpretations.

Whether a contract is ambiguous is an issue of law, and, if a court determines that a contract is ambiguous, it may consider extrinsic evidence in order to determine the parties' intent.

Student note:  The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach.

Case:  Legum v. Russo, NY Slip Op 08149n (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Partition and sale of an apartment.

The Whistleblower Law.

Practice point:  The Appellate Division affirmed dismissal of the retaliation claim, finding that allegations that plaintiff reported an assault and battery by a supervisor fail to state a claim under Labor Law § 740, the Whistleblower Law. Assault and battery by a supervisor is not "an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud," as specified in § 740[2][a].

Student note:  The Appellate Division will not consider a claim asserted for the first time on appeal.

Case:  Diaz v. New York State Catholic Health Plan, Inc., NY Slip Op 08129 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Construing contracts.

Court Holiday.

Summary judgment in a slip-and-fall action.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion in this action where plaintiff alleges that he fell in the boiler room of the building where he worked as a maintenance worker when he attempted to back out of a tight area next to the boiler and his pants got caught on a brace or bracket supporting a pipe. Defendant, the owner of the building, established its entitlement to summary judgment by submitting photographic and testimonial evidence showing that the brace or bracket was not a defective condition, but was open and obvious, and not inherently dangerous. As was shown in the photographs, the condition was plainly observable and did not pose any danger to someone making reasonable use of his or her senses.

Student note:  Although plaintiff did not see the brace or bracket when he was backing up, it was not hidden or obscured from view and thus did not constitute a trap or snare. Contrary to plaintiff's arguments, defendant was not required to present expert testimony to meet its initial burden, and the issue of notice is irrelevant since there was no defective or dangerous condition in the boiler room.

Case:  Acosta v. Gouverneur Ct. L.P., NY Slip Op 08125 (1st Dept. 2015)

Here is the decision.

Friday's issue:  The Whistleblower Law.

Expert witness testimony in a medical malpractice action.

Practice point:  The Appellate Division rejected as without merit defendant's contention that plaintiff's expert was unqualified to give an expert opinion on the standard of care of a general surgeon and an anesthesiologist merely because the expert was a cardiologist. An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable.  Once a medical expert establishes knowledge of the relevant standards of care, the witness need not be a specialist in the particular area at issue to offer an opinion. Any lack of skill or expertise goes to the weight of the opinion as evidence, not its admissibility.

Student note:  In order to establish liability for medical malpractice, a plaintiff must prove that the defendant deviated or departed from accepted community standards of practice and that such departure was a proximate cause of the plaintiff's injuries.  On a motion for summary judgment, a defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In opposition, a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact.

Case:  Leavy v. Merriam, NY Slip Op 08148 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in a slip-and-fall action.

Operating a vehicle with the right-of-way.

Practice point:  An operator of a motor vehicle traveling with the right-of-way has an obligation to keep a proper lookout and to see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles.

Student note:  As there can be more than one proximate cause of an accident, a plaintiff moving for summary judgment on the issue of liability has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault.  Generally, the issue of comparative fault is a jury question.

Case:  Jones v. Pinto, NY Slip Op 08147 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Expert witness testimony in a medical malpractice action.

Evidence of habit in a negligence case.

Practice point:  In a negligence case, a  party may introduce evidence of a habit or routine practice in order to allow the inference of its persistence, and, therefore, negligence on a particular occasion. However, to justify introduction of evidence as to habit or regular usage, there must be a showing that the party expects to prove a sufficient number of instances of the conduct in question.

Student note:  Here, the earliest proffered instance of the purported habit occurred more than two months after the date on which the appellant was injured, and was observed on only seven occasions over the next six weeks. The court, in its discretion, properly precluded the proffered evidence.

Case:  Gucciardi v. New Chopsticks House, Inc., NY Slip Op 08146 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Operating a vehicle with the right-of-way.

An injury resuting from an elevation-related risk.

Practice point:  The Appellate Division affirmed the granting of that branch of defendant's motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). Defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff's injury was not caused by the elevation-related hazards encompassed by the statute. In opposition, plaintiff failed to raise a triable issue of fact as to whether his injury arose from an elevation-related risk contemplated by the statute, rather than from the usual and ordinary dangers of the construction site. The fact that plaintiff was injured while lifting a heavy object does not give rise to liability within the meaning of the statute.

Student note:  The extraordinary protections of § 240(1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity.  The statute was designed to prevent accidents in which a protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.

Case:  Cardenas v. BBM Constr. Corp., NY Slip Op 08142 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Evidence of habit in a negligence case.

A motion to vacate a self-executing preclusion order.

Practice point:  The Appellate Division affirmed the denial of plaintiff's cross motion to vacate the self-executing preclusion order, as plaintiff failed to provide a reasonable excuse for his failure to appear at defendant's five separately scheduled medical examinations, two of which occurred after the issuance of the preclusion order.  Plaintiff's claimed lack of knowledge of the scheduled medical examinations is unreasonable, especially since he failed to indicate any efforts he made to stay in contact with his counsel, despite the fact that there were two court orders directing that he appear for his medical examination. Plaintiff does not deny that he was aware of those orders. His counsel also failed to confirm his assertions that he had no contact with his counsel, or that they mailed medical examination notices to plaintiff's mother's address.

Plaintiff also failed to show that his was a meritorious claim.  He failed to submit an affidavit of merit, and the only evidence he submitted as proof of defendant's liability was a police accident report containing his hearsay statement as to how the accident happened. This is insufficient to demonstrate a meritorious cause of action.

Student note:  The preclusion of any testimony as to plaintiff's medical condition rendered him unable to establish a prima facie case.

Case:  Arzuaga v. Tejada, NY Slip Op 08108 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  An injury resulting from an elevation-related risk.

Vicarious liability in a personal injury claim against a bouncer.

Practice point: When security guards or bounders are hired to maintain order, they may be acting within the scope of their employment when they use physical force on the businesses' patrons.

Student note:  An employer may be vicariously liable for its employees' negligence or intentional tortious conduct, as long as the employee's acts were committed in furtherance of the employer's business.

Case:  Fauntleroy v. EMM Group Holdings LLC, NY Slip Op 08106 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion to vacate a self-executing preclusion order.

A motion for leave to reargue.

Practice point:  No appeal lies from the denial of a motion for leave to reargue.

Student note:  The right of direct appeal of an intermediate order terminates with the entry of judgment in the action.

Case:  Green v. Canada Dry Bottling, NY Slip Op 07949 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Vicarious liability in a personal injury claim against a bouncer.

Additional discovery after filing a note of issue.

Practice point:  The Appellate Division reversed, and denied that branch of the defendant's renewed motion which was to compel the plaintiff to submit to an independent medical examination.

The Appellate Division held that the defendant waived her right to conduct an independent medical examination of the plaintiff by failing to designate a physician to conduct such examination within the time period set forth in the relevant compliance conference order, and by her failure to move to vacate the note of issue within 20 days after service of the note of issue and certificate of readiness, pursuant to 22 NYCRR 202.21[e].

Student note:  The Supreme Court may, in its discretion, permit additional discovery after the filing of a note of issue and certificate of readiness where the movant demonstrates that unusual or unanticipated circumstances developed subsequent to the filing, requiring additional pretrial proceedings to prevent substantial prejudice, pursuant to 22 NYCRR 202.21[d].

Case:  Gianacopoulos v. Corona, NY Slip Op 07948 (2d Dept. 2015)

Here is the decision.

Monday's issue:  A motion for leave to reargue.

Comparative negligence and the seat-belt defense in an auto accident action.

Practice point:  Regardless of an issue of comparative negligence as between the driver of the vehicle in which plaintiff was a passenger and the driver of the other vehicle, plaintiff may seek partial summary judgment against the other vehicle's driver.

Student note:  The assertion of a seat-belt defense goes to the determination of damages, as a potentially mitigating factor, and not to liability.

Case:  Davis v. Turner, NY Slip Op 07922 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Additional discovery after filing a note of issue.

Court holiday.

Interest in an action to recover on a promissory note.

Practice point:  If the note does not contain an interest provision but is payable on demand, then interest accrues from the date of the demand, at the statutory rate for a judgment.  Here, the only record evidence as to a demand for payment by plaintiff under the note is a demand letter dated July 24, 2009, and so that is the date from which the prejudgment interest should be calculated.

Student note:  In an action on a promissory note, CPLR 5001 permits a creditor to recover prejudgment interest from the date on which each payment of principal or interest became due under the terms of the note until the date on which liability is established.

Case:  Gliklad v. Cherney, NY Slip Op 07919 (1st Dept. 2015)

Here is the decision.

Thursday's issue:  Comparative negligence and the seat-belt defense in an auto accident action.

Testimony of a witness who was not identified prior to trial.

Practice point:  The Appellate Division determined that the trial court properly permitted the testimony of a witness whose identity was not disclosed prior to trial. The witness was called to lay the foundation for the admission of a nonparty witness's statement, and he was not the type of witness whose identity was required to be disclosed during discovery, pursuant to CPLR 3101.

Student note:  The witness's testimony was not hearsay.

Case:  Cruz v. City of New York, NY Slip Op 07910 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Interest in an action to recover on a promissory note.

Leave to amend the complaint.

Practice point:  The Appellate Division reversed the motion court and denied so much of plaintiff's motion as sought to amend the complaint to add a cause of action for wrongful death, finding that the proposed amendment was palpably insufficient.

The Appellate Division determined that the record shows that plaintiff's decedent suffered from numerous serious ailments prior to the alleged malpractice, and did not die until nearly two years after the alleged malpractice. There had been a number of other procedures performed by nondefendants, and plaintiff's decedent had been in the care of other nondefendants for those two years.  The conclusory assertion of causation, as stated in plaintiff's counsel's supporting affirmation, was insufficient to establish a causal connection between the decedent's death and the originally alleged malpractice by defendants.

Student note:  A motion seeking leave to amend a complaint to assert a cause of action for wrongful death must be supported by competent medical proof of the causal connection between the alleged malpractice and the original plaintiff's death.

Case:  Imperati v. Lee, NY Slip Op 07907 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Testimony of a witness who was not identified prior to trial.

Contractual indemnification.

Practice point:  The right to contractual indemnification depends upon the specific language of the contract.  A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances.

Student note:  A party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.

Case:  Bleich v. Metropolitan Mgt., LLC, NY Slip Op 07808 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to amend the complaint.

Contractual terms of duration.

Practice point:   A definite term of duration need not be relayed in express terms, and may be implied. In the absence of an express term fixing the contract's duration, a court supply the missing term, so long as a duration may be fairly and reasonably fixed by the surrounding circumstances and the parties' intent.

Student note:  Contracts containing no definite term of duration are terminable at will.

Case:  Bennett v. Atomic Prods. Corp., NY Slip Op 07806 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contractual indemnification.

Calculating interest.

Practice point:  The Appellate Division modified the jury award to plaintiff, vacating the award of interest and remanding for interest to be calculated at the rate of 3%, not 9%, from the date of the liability verdict.

The Appellate Division explained that, although the judgment is against the City, and not the New York City Transit Authority, which is not a party to the action, the Transit Authority is the real party in interest, as it is bound to indemnify the City pursuant to a lease, and will ultimately pay the judgment. Therefore, the interest rate set forth in Public Authorities Law § 1212(6) applies to the judgment. Even though the City did not object to the interest rate when the judgment was proposed for settlement, the 3% interest rate is mandated by statute, and the error should be corrected.

Student note:  Pursuant to Public Authorities Law § 1212(6), the rate of interest on the judgment may be no more than 3% per year.

Case:  Soltero v. City of New York, NY Slip Op 07739 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contractual terms of duration.

Dismissal with another action pending.

Practice point:  The Appellate Division affirmed dismissal of the complaint, pursuant to CPLR 3211(a)(4), as it is undisputed that there was a pending foreclosure action on the same mortgage commenced by plaintiff's predecessor-in-interest.

Student note:  Where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211(a)(4) on the ground that there is another action pending.  The critical element is that both suits arise out of the same subject matter or series of alleged wrongs.

Case:  Aurora Loan Servs., LLC v. Reid, NY Slip Op 07607 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Calculating interest.

Leave to renew and reargue.

Practice point:  Respondent moved to dismiss the appeal on the ground that there is no appeal from an order denying reargument. Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the submission of the appeal, the Appellate Division granted the motion to dismiss the appeal, and the appeal was dismissed.  The Appellate Division found that, while the appeal was of a motion denominated as one for leave to renew and reargue, it was, in actuality, only for leave to reargue, the denial of which is not appealable, pursuant to CPLR 2221[d][2] and [e][2].

Student note:  Regardless of how it was denominated, appellant's motion, was not for leave to renew and reargue, as it did not offer any new facts that had not been offered on her prior motion for summary judgment dismissing the complaint insofar as against her.

Case:  Arch Bay Holdings, LLC-Series 2010C v. Daisy, NY Slip Op 07606 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Dismissal with another action pending.

A contractual forum selection clause contained in a cruise passenger ticket.

Practice point:  In this action to recover damages for personal injuries, defendant appealed the denial of its CPLR 3211 motion.  The Appellate Division reversed the motion court, and dismissed the complaint.

The injured plaintiff allegedly fell while in a defendant-owned boat that was returning her to the cruise ship. Defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(1), (2), and (8), arguing that the court lacked personal and subject matter jurisdiction based on the forum selection and one-year time limitation clauses in the contract of carriage which was printed on plaintiff's ticket.

 The Appellate Division found that defendant's submissions established that the contract of carriage included a clause requiring that any disputes between the parties "shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country."  In addition, the contract provided that an action to recover damages for personal injuries "shall not be maintainable unless filed within one year after the date of the injury." Defendant also established that plaintiff had a reasonable opportunity to review the ticket, and there is no allegation of fraud or overreaching.

Student note:  A contractual forum selection clause contained in a cruise passenger ticket is generally enforceable, as long as it has been reasonably communicated to the passenger and does not violate notions of fundamental fairness. The submission thereof constitutes documentary evidence that may provide a proper basis for dismissal of an action pursuant to CPLR 3211(a)(1).

Case:  Fritsche v Carnival Corp., NY Slip Op 07618 (2d Dept. 2105)

Here is the decision.

Tomorrow's issue:  Leave to renew and reargue.

Summary judgment in an auto accident action.

Practice point:  The Appellate Division affirmed the denial of plaintiff's motion for summary judgment as to liability.  As there can be more than one proximate cause of an accident, a plaintiff has the burden of establishing, as a matter of law, that he or she is free from comparative negligence. Here, in support of its motion, plaintiff submitted a transcript of defendant's deposition testimony which failed to establish that defendant's alleged statutory violation was the sole proximate cause of the accident and that plaintiff's conduct did not contribute to the happening of the accident.

Student note:  In light of plaintiff's failure to meet its prima facie burden, the Appellate Division did not consider the sufficiency of the opposing papers.

Case:  Frey v. Richmond Hill Lumber & Supply, NY Slip 07617 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A contractual forum selection clause contained in a cruise passenger ticket.

An allegation of retaliation in violation of Executive Law § 296(1).

Practice point:   Plaintiff is an Asian-American woman who served as defendant's comptroller. She alleges that defendant terminated her employment in retaliation because she cooperated and provided testimony to a grand jury regarding alleged criminal activity of a city councilperson, and that defendant subsequently hired a less qualified, white male to fill her former position.  Defendant moved pursuant to CPLR 3211(a) to dismiss the complaint, the Supreme Court denied the motion, and the Appellate Division reversed.

The Appellate Division held that the complaint fails to state a cause of action alleging retaliation in violation of Executive Law § 296(1)(e), which makes it unlawful to retaliate against an employee because he or she opposed statutorily forbidden discriminatory practices.  To make a prima facie showing of retaliation under the statute, a claimant must show that (1) the claimant was engaged in protected activity; (2) the claimant's employer was aware that he or she participated in such activity; (3) the claimant suffered an adverse employment action based upon his or her activity; and (4) there was a causal connection between the protected activity and the adverse action.  An employee engages in a protected activity by opposing or complaining about unlawful discrimination.  Here, plaintiff's grand jury testimony was unrelated to opposing or complaining about statutorily prohibited discrimination, and, therefore, was not protected activity within the meaning of the statute.

Student note:  In considering a CPLR 3211(a)(7) motion to dismiss the complaint for failure to state a cause of action, the court must accept the plaintiff's allegations as true; afford the plaintiff the benefit of every possible favorable inference; and determine only whether the facts as alleged fit within any cognizable legal theory.

Case:  Clarson v. City of Long Beach, NY Slip Op 07614 (2d Dept. 2015

Here is the decision.

Tomorrow's issue:  Summary judgment in an auto accident action.

Discovery and medical records in a personal injury action.

Practice point:  The Appellate Division modified the motion court's order denying defendants' motion to compel plaintiff to provide an unrestricted authorization for production of his entire employment file.  The Appellate Division granted the motion to the extent of requiring plaintiff to provide an authorization for any medical records related to the claimed injuries, from one year prior to the accident at issue to the present, and otherwise affirmed.

The Appellate Division explained that, as plaintiff failed to proffer any reason for not complying with the preliminary conference order directing him to provide a written authorization for release of the medical records, defendants' motion should be granted to the extent indicated.  However, the Appellate Division found that the motion court providently exercised its discretion in determining that discovery of other documents that may be contained in plaintiff's employment file, including disciplinary records, is not material and necessary to the defense of the action.

Student note:  By bringing this action to recover for personal injuries allegedly suffered in a motor vehicle accident, plaintiff placed his medical condition in controversy and waived the physician-patient privilege with respect to pertinent medical records.

Case:  Almonte v. Mancuso, NY Slip Op 07593 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  An allegation of retaliation in violation of Executive Law § 296(1).

Summary judgment in a rear-end collision action.

Practice point:  The Appellate Division reversed, and dismissed the complaint, finding that plaintiff demonstrated his entitlement to judgment as a matter of law by submitting evidence showing that his vehicle was stopped when it was rear-ended by defendant. Defendant's contention that plaintiff stopped short is insufficient to rebut the presumption of negligence.

Student note:  A rear-end collision with a stopped or stopping vehicle establishes, prima facie, negligence on the part of the rear vehicle's driver.

Case:  Padilla v. Zulu Servs., Inc., NY Slip Op 07587 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Discovery and medical records in a personal injury action.

A motion to set aside a jury verdict.

Practice point:  The Appellate Division affirmed the Supreme Court's denial of that branch of the motion which was to set aside the jury verdict on the issue of liability and for judgment as a matter of law. The defendants failed to demonstrate that there was no valid line of reasoning and permissible inferences which could lead rational people to the conclusion reached by the jury based on the evidence presented at trial, pursuant to CPLR 4404[a].

The Appellate Division also affirmed denial of that branch of the motion which was to set aside the jury verdict on the issue of liability as contrary to the weight of the evidence. It is for the jury to make determinations as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses. The Appellate Division found that, here, the disputed testimony of the parties presented issues of credibility which were for the jury to resolve.

Student note::  A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence.

Case:  Daniel v. Thomas, NY Slip Op 07467 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in a rear-end collision action.

Constructive discharge, retaliation, and sexual harassment.

Practice point:  The Appellate Division reversed the motion court, and reinstated plaintiff's retaliation claim, with leave to litigate both that cause of action and her claim for sexual harassment under a theory of constructive discharge.

After plaintiff allegedly was sexually assaulted, defendant suspended the offending supervisor, conducted an investigation, found that the offending supervisor had engaged in "inappropriate conduct," and disciplined the supervisor by giving him what, in effect, was a final warning. Defendant then informed plaintiff that the supervisor would be returning to work with plaintiff. When plaintiff asked that she be separated from the supervisor, defendant offered only to transfer her from the evening shift to an early morning shift, which would entail a pay cut and a functional demotion, because there would be no acting supervisor positions available.

Student note:  The Appellate Division determined that plaintiff raised issues of fact as to whether defendant constructively discharged her by deliberately creating working conditions that were so intolerable that a reasonable person would have felt compelled to resign. Plaintiff also raised triable issues of fact as to her retaliation cause of action, since the record shows that she formally complained about the sexual harassment and was constructively discharged within a short time thereafter, permitting an inference of a causal connection between her complaint and the constructive discharge.

Case:  Teran v. JetBlue Airways Corp., NY Slip 07546 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion to set aside a jury verdict.

A bus driver's alleged negligence, and a summary judgment motion.

Practice point:  The Appellate Division affirmed the motion's denial, finding that plaintiff made a prima facie showing of the driver's negligence by relying on the parties' deposition testimony, which showed that plaintiff was riding his bicycle in the middle lane of traffic, and defendant bus driver came up behind him and, without honking or signaling, moved the bus toward the left lane in an attempt to pass the bicycle.  The evidence that defendant driver changed lanes without signaling or leaving a safe distance between vehicles, establishes defendants' negligence, pursuant to Vehicle and Traffic Law § 1122[a], 1128.

Student note:  Defendant driver's testimony that he believed the accident occurred because plaintiff merged toward the left into the bus is speculative and insufficient to raise an issue of fact.

Case:  Velasquez v. MTA Bus Co., NY Slip Op 07536 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Constructive discharge, retaliation, and sexual harassment.

A motion for summary judgment in lieu of complaint, pursuant to CPLR 3213.

Practice point:  Plaintiff commenced this action to recover on a promissory note and personal guaranty by motion. When the motion court denied, plaintiff appealed, and the Appellate Division reversed.

The Appellate Division found that plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting the promissory note, which contained an unequivocal and unconditional obligation to pay, the personal guaranty, and proof of the defendants' failure to make payments on the note according to its terms.  In opposition, defendants failed to raise a triable issue of fact as to a bona fide defense.

Student note:  The motion on an instrument for money only is not defeated by the alleged breach of a related contract absent a showing that the contract and the instrument are intertwined and that the alleged defenses create fact issues. Here, there was a mutual stock sale exchange and purchase agreement, but the Appellate Division found that defendants' evidence failed to establish that the agreement and the promissory note were intertwined, such that a breach of the related agreement might create a defense to payment on the note.

Case:  Chervinsky v. Rezhets, NY Slip Op 07463 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A bus driver's alleged negligence, and a summary judgment motion.

Standing to commence a foreclosure action.

Practice point:  A plaintiff has standing to commence a foreclosure action when it is either the holder or the assignee 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 the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief.  However, on a defendant's motion, the defendant must establish, prima facie, the plaintiff's lack of standing as a matter of law.

Case:  Bank of N.Y. Mellon v. Green, NY Slip Op 07460 (2d Dept. 2015)

Here is the decision.

Monday's issue:  A motion for summary judgment in lieu of complaint, pursuant to CPLR 3213.

A motion for leave to serve an amended bill of particulars.

Practice point:  The Appellate Division affirmed the denial of the motion, noting that plaintiff failed to offer a reasonable excuse for the delay of two years after filing the note of issue.  The excuse of law office failure was offered only in the reply affirmation, and so it was not properly before the motion court. In any event, the Appellate Division held that it was not a reasonable excuse. In addition, plaintiff did not offer admissible evidence that the new injuries were caused by the accident, or that there is a causal connection between the new injuries and the original injuries alleged

Student note:  While leave to amend is given freely in the absence of prejudice or surprise, when leave is sought on the eve of trial it will be granted sparingly. In addition, where, as here, there is an inordinate delay in making the motion and new injuries are alleged, there must a showing of a reasonable excuse for the delay that the the proposed amendment has merit.

Case:  Canals v. Lai, NY Slip Op 07237 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Standing to commence a foreclosure action.

Leave to serve a late notice of claim.

Practice point:  In determining whether the application should be granted, a court shall consider, among other things, "whether the public corporation . . . acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one . . . or within a reasonable time thereafter," as specified in GML § 50-e[5]. The court shall also consider all other relevant facts and circumstances, including whether the delay substantially prejudiced the public corporation's ability to defend on the merits.

Student note:  In determining whether the public corporation was prejudiced by any mistake, omission, irregularity or defect in the notice of claim, the court may look to evidence adduced at a section 50-h hearing, and to such other evidence as is properly before the court.

Case:  Thomas v. New York City Hous. Auth., NY Slip Op 07328 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion for leave to serve an amended bill of particulars.

A premature summary judgment motion.

Practice point:  The Appellate Division modified the motion court's denial to specify that the motion was premature in this action where plaintiff alleged injuries in a fall on a sidewalk adjacent to real property.  Plaintiff sued the owner and the tenant, and, before the owner appeared or submitted a responsive pleading, the tenant moved for summary judgment, arguing that it had no duty to maintain the sidewalk.

In addition to the fact that the motion was made before the issue was joined by the owner, the Appellate Division noted that plaintiff demonstrated that discovery, including a deposition of the owner, may result in disclosure of evidence relevant to the issue of whether the tenant had a duty to maintain the sidewalk. Plaintiff also demonstrated that facts essential to its opposition to the motion were exclusively within the knowledge and control of the tenant and the owner.

Student note:  A motion for summary judgment may be denied as premature where it appears that the facts essential to oppose the motion exist but cannot then be stated, pursuant to CPLR 3212[f]. In opposing, the non-movant must demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.

Case:   Bonilla v. Bangert's Flowers, NY Slip Op 07235 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to serve a late notice of claim.

Court holiday.

The Courts are closed to mark Columbus Day.

Tomorrow's issue:  A premature summary judgment motion.

Sidewalk defets and an abutting landowner's liability.

Practice point:  Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality, and not the abutting landowner.  However, an abutting landowner will be liable to a pedestrian injured by a sidewalk defect where, as the Appellate Division found relevant here, the landowner breached a specific ordinance or statute which obligates the owner to maintain the sidewalk.

Student note:  In order for a statute, ordinance or municipal charter to impose tort liability upon an abutting owner for injuries caused by the owner's negligence, the language thereof must not only charge the landowner with a duty, it must also specifically state that if the landowner breaches that duty he will be liable to anyone who might be injured.

Case:  Bachvarov v. Lawrence Union Free Sch. Dist., NY Slip Op 06996 (2d Dept. 2015)

Here is the decision.

Tuesday's issue:  A premature summary judgment motion.

Agreements to agree.

Practice point:  The Appellate Division affirmed dismissal of the complaint based on a memorandum of understanding that plaintiff argues was a Type II agreement under Federal case law, requiring the parties to negotiate in good faith to finalize a settlement. The memorandum states that the parties have reached an "agreement in principle subject documentation acceptable to the parties and court approval." The Appellate Division noted that, in prior motion practice, plaintiff's counsel had admitted that the memorandum was merely an agreement to agree, and so the Appellate Division held that it was not an enforceable contract.

Student note:  The Appellate Division noted that the Court of Appeals has rejected "the rigid classification into Types" in favor of asking whether the agreement contemplates the negotiation of later agreements as a precondition of a party's performance.

Case: Offit v. Herman, NY Slip Op 07056 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Sidewalk defects and an abutting landowner's liability.

An attorney's account stated claim and a motion to renew.

Practice point:  The Appellate Division affirmed plaintiff-law firm's summary judgment motion. Plaintiff made a prima facie showing of an account stated through, among other things, its submission of an affirmation of its special counsel stating that plaintiff sent each of its 21 invoices to defendants using regular mailing procedures, and that defendants never objected to or returned the invoices. Even if no payments were applied to these invoices, defendants' mere reference to a subsequent settlement agreement noted in the complaint, without more, is conclusory and insufficient to raise a triable issue of fact as to whether they objected to the payments within a reasonable time.

Student note:  The Appellate Division affirmed the denial defendants' motion to renew, since the purportedly new material was available on plaintiff's prior motion and defendants did not offer a reasonable justification for failing to present the material at the time of that motion.

Case:  Zetlin & De Chiara LLP v. Gene Kaufman Architect, P.C., NY Slip Op 07059 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Agreements to agree.

A claim of negligent infliction of emotional distress in a family dispute.

Practice point:  The Appellate Division affirmed dismissal for failure to state a claim in this action where plaintiff alleged that defendant called plaintiff a "criminal" in front of her children, and attempted to coerce her into paying money to settle a family dispute. The Appellate Division found that these allegations do not set forth conduct so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

Student note:  The plaintiff's children's claims for negligent infliction of emotional distress are inadequately pled, as they do not allege that, while in the zone of danger, they observed a family member's death or serious injury.

Case:  Kornicki v. Shur, NY Slip Op 07048 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  An attorney's account stated claim and a motion to renew.

Statute of limitations in a breach of fiduciary duty action.

Practice point:  New York law does not provide a single statute of limitations for breach of fiduciary duty claims.  Instead, the applicable limitations period depends on the substantive remedy that the plaintiff seeks. Where the remedy sought is purely monetary in nature, courts construe the suit as alleging an injury to property, within the meaning of CPLR 214(4), which has a three-year limitations period.  However, if the relief sought is equitable in nature, the six-year limitations period of CPLR 213(1) applies.

Student note:  If a fraud allegation is essential to a breach of fiduciary duty claim, courts have applied a six-year statute of limitations under CPLR 213(8).  However courts will not apply the fraud statute of limitations if the fraud allegation is only incidental to the claim asserted, figuring that, otherwise, a fraud allegation could be used as a means to litigate stale claims.  So, where a fraud allegation is not essential to the pleaded cause of action, except as an answer to an anticipated defense of statute of limitations, courts will look for the reality and essence of the action and not its mere name.

Case:  DiRaimondo v. Calhoun, NY Slip Op 07002 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A claim of negligent infliction of emotional distress in a family dispute.

Summary judgment on liability in a personal injury action.

Practice point:  The Appellate Division reversed the motion court and granted plaintiff's motion in this action for damages for personal injuries sustained when plaintiff was struck by an ambulette.  The Appellate Division found that plaintiff established that she waited for the pedestrian signal to be in her favor prior to entering the crosswalk, and that she exercised due care by looking in both directions  and for any vehicles turning left before she entered the crosswalk. While crossing at a steady normal pace, and having almost completed crossing in the crosswalk, plaintiff was struck by the vehicle operated by the defendant driver, which came from behind plaintiff and failed to yield the right-of-way.  In opposition, defendants failed to raise a triable issue of fact.

Student note:  The Appellate Division also found that, contrary to defendants' contentions, the motion was not premature.  Defendants failed to demonstrate that additional discovery may lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of plaintiff.  The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered by further discovery is an insufficient basis for denying the motion.

Case:  Chou v. Ocean Ambulette Serv., Inc., NY Slip Op 06876 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Statute of limitations in a breach of fiduciary action.

Leave to amend, pursuant to CPLR 3012(b).

Practice point:  A party seeking leave to amend a pleading need not make an evidentiary showing of merit, and leave will be granted unless such insufficiency or lack of merit is clear and free from doubt.

Student note:  Leave to amend or supplement a pleading is to be "freely given," pursuant to the express terms of the statute.  In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit.

Case:  Calamari v. Panos, NY Slip Op 06875 (2d Dept. 2015)

Here is the decision.

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

A school's common law duty to supervise.

Practice point:  A school owes a common-law duty to adequately supervise its students.  However, to impose liability based on inadequate supervision, a plaintiff's injuries must have been foreseeable and proximately related to the absence of adequate supervision.

Student note:  Schools are not insurers of safety because they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another.

Case:  Binani v. City of New York, NY Slip Op 06871 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to amend, pursuant to CPLR 3025(b).

A legal malpractice claim.

Practice point:  The Appellate Division affirmed the granting of summary judgment to the attorney-defendants in this action where the plaintiffs alleged that the attorney-defendants represented them in a real estate venture in which the plaintiff loaned the individual defendant $600,000, and that the plaintiffs sustained damages when the the individual defendant failed to repay the loan. In support of their motion for summary judgment dismissing the complaint, the attorney-defendants established, prima facie, that even if they failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, any such failure was not a proximate cause of the plaintiffs' alleged damages when the individual defendant did not repay the loan.

Student note:  In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence. To prevail on a summary judgment motion, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements.

Case:  Antonelli v. Guastamacchia, NY Slip Op 06870 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A school's common law duty to supervise.

A negligent security claim.

Practice point:  The Appellate Division modified the Supreme Court's order and denied defendant's motion for summary judgment as to plaintiffs' negligence causes of action.  The Appellate Division found that there are triable issues of fact as to whether defendants breached their duty to take minimal security precautions to protect plaintiff's decedent from the criminal acts of third-party intruders and as to whether any such failure was a proximate cause of the attack on her. Viewing the evidence in the light most favorable to plaintiffs, there are questions of fact as to whether the lock on the building's front door, through which the assailant entered, was broken. In addition, evidence of a history of prior crimes, including assaults, in and around the building raises an issue of fact as to whether defendants' alleged negligence was a proximate cause of the attack.

The Appellate Division also found that the court abused its discretion in denying the portion of plaintiffs' cross motion seeking to preclude the deposition testimony of the assailant, who improperly terminated the deposition, thereby depriving plaintiffs of a full and fair opportunity to conduct their cross-examination.

Student note:  It was not improper for the court to address the parties' motions, made before decedent's death, in the order on appeal.  Although the court recalled and vacated its previous order, pursuant to  CPLR 1015), there was no need to renew the motions that were previously made.

Case:  Gonzalez v. 231 Ocean Assoc., NY Slip Op 06868 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A legal malpractice claim.

Labor Law § 200.

Practice point:  To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to supervise or control the methods or materials of a plaintiff's work. Where a plaintiff's injuries arise not from the manner in which the work was performed but from a dangerous condition on the premises, a defendant may be liable under the statute if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition. Where a plaintiff's injures are alleged to have been caused by defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment dismissing causes of action alleging a statutory violation must address the proof applicable to both of the foregoing liability standards.  The movant will prevail only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff's accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard.

Student note:  Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to maintain a safe construction site.

Case:  Bennett v. Hucke, NY Slip Op 06771 (2d Dept. 2015)

Here is the decision.

Monday's issue:  A negligent security claim.

Charging a jury on comparative fault.

Practice point:  In this action for injuries allegedly sustained at the construction site by plaintiff's decedent,  the Appellate Division found that the trial court erred in charging the jury on comparative fault. Although defendants argued that the extensive debris and garbage on the floor could have easily been avoided, the jury's verdict established that defendants were responsible for keeping the area clear.  Moreover, the decedent was not obligated to clear the floor of garbage and there was no clear path that he could use. The charge was not warranted because there was no evidence of culpable conduct on decedent's part.

Student note:  The charge should be given if, based on the evidence presented at trial, there is a valid line of reasoning and permissible inferences from which rational persons can draw a conclusion of the plaintiff's negligence.

Case:  Kutza v. Bovis Lend Lease LMB, Inc., NY Slip Op 06753 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Labor Law  § 200.

Motions to dismiss for failure to state a claim.

Practice point:  On the CPLR 3211(a)(7) motion, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference.  Where evidentiary material is submitted and considered, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as 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 claim will not be dismissed.

Student note:  The court may consider any factual submissions made in opposition to a motion to dismiss in order to remedy pleading defects, pursuant to CPLR 3211[c].

Case:  Barouh v. Law Offs. of Jason L. Abelove, NY Slip Op 06769 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Charging a jury on comparative fault.

Preclusion of testimony as cumulative.

Practice point:  In this worksite injury case, the Appellate Division found that the testimony of plaintiff's wife and his coworker should not have been precluded, as it would have added to the testimony of other witnesses.  The coworker saw plaintiff fall, and his testimony as to the impact to plaintiff's foot could have been highly probative of plaintiff's claim that the continuing pain in his foot was caused by the accident and did not pre-exist it, as defendants argued. Further, the coworker could have testified as to the particular duties carried out by plaintiff as a heavy-construction carpenter, which would have supported plaintiff's position that as a result of his injury he could no longer perform that kind of work. Plaintiff testified about his job duties, but the coworker's status as a disinterested witness would have given his testimony added value to the jury.

The proffered testimony of plaintiff's wife was not likely to be cumulative, notwithstanding her not having asserted a derivative claim. The wife had a unique perspective on her husband's condition before and after the accident, and could have assisted the jury in further understanding the extent of his disability and of his pain and suffering.

Student note:  Testimony is properly precluded as cumulative when it would neither contradict nor add to the testimony of other witnesses.

Case:  Segota v. Tishman Constr. Corp. of N.Y., NY Slip Op 06764 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Motions to dismiss for failure to state a claim.

A client's dissatisfaction with a lawyer's stratetic choice.

Practice point:  The defendant law firm was entitled to summary judgment, as a matter of law, by demonstrating that its recommendation that plaintiffs execute a consent agreement was a reasonable strategic decision.  Defendant also demonstrated that the recommendation was made after extensive discussions with the plaintiffs, who agreed to the course of action.  In opposition, the plaintiffs raised no issue of triable fact that the recommendation was an unreasonable course of action that constituted legal malpractice.

Student note:  As a matter of law, a client's present dissatisfaction with a lawyer's strategic choice, without more, is not actionable.

Case:  Tantleff v. Kestenbaum & Mark, NY Slip Op 06720 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Preclusion of testimony as cumulative.

Setting aside a prenuptial agreement.

Practice point:  The Appellate Division affirmed the motion court's refusal to set aside the agreement, but on different grounds.  The defendant established that the parties' agreement, which is fair on its face, was not the product of fraud, duress, overreaching, or unconscionability. The plaintiff was represented by counsel of her choosing during the negotiation of the agreement.  Moreover, the agreement itself recites that the plaintiff had considered all of the facts and circumstances likely to influence her judgment, and that she entered into the agreement freely, voluntarily, and with full knowledge of its consequences. She was provided with meaningful bargained-for benefits. There is no evidence that the defendant attempted to conceal or misrepresent the nature or extent of his assets.  As the plaintiff entered into the agreement with the assistance and advice of her own attorney, she may not now complain that her interests were not adequately safeguarded.

Student note:  An agreement will not be set aside merely because, in hindsight, some of its provisions are improvident or even one-sided.

Case:  Barnes-Levitan v. Levitan, NY Slip Op 06768 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A client's dissatisfaction with a lawyer's strategic choice.

Contracts and ambiguity.

Practice Point:  The Appellate Division noted that the threshold question of whether a contract is unambiguous, and the subsequent construction and interpretation of an unambiguous contract, are issues of law.  The Appellate Division further noted that, when interpreting a contract, the court should arrive at a construction which will give fair meaning to all of the parties' language in order to reach a practical interpretation of the parties' expressions so that their reasonable expectations will be realized.  Extrinsic and parol evidence of the parties' intent may not be admitted to create ambiguity in a contract that is unambiguous on its face, but such evidence may be considered where a contract is determined to be ambiguous.

Student note:   If the contract's language is susceptible of more than one reasonable interpretation, the contract will be considered ambiguous.

Case:  NRT N.Y., LLC v. Harding, NY Slip Op 06719 (2d Dept. 2015)

Here is the decision.

Monday's issue:   Setting aside a prenuptial agreement.

Standing to bring a legal malpractice claim.

Practice point:  The Appellate Division affirmed the denial of defendant-lawyer's motion for summary  judgment. The defendant was retained to create a trust and fund it with several insurance policies. The plaintiffs allege that the defendant allowed one of the policies to lapse due to nonpayment, and they commenced this legal malpractice action to recover the policy's face value. The defendant moved to dismiss pursuant to CPLR 3211(a), asserting, among other things, that the trustee plaintiffs lack legal standing.

The Appellate Division determined that the motion court correctly found that the trustee plaintiffs stand in a position analogous to that of an estate's personal representative, and, therefore, have the requisite privity, or a relationship sufficiently approaching privity, to maintain the action.

Student note:  Plaintiffs also raised a triable issue of fact as to the applicability of the continuous representation doctrine sufficient to toll the statute of limitations, pursuant to CPLR 203[a] and 214[6].

Case:  Ianiro v. Bachman, NY Slip Op 06709 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contracts and ambiguity.