A missing witness charge.

Practice point:  The charge instructs the jury that it may draw an adverse inference based on a party's failure  to call a witness who normally would be expected to support that party's version of events. The preconditions for the charge, in both criminal and civil trials, are: (1) the witness's knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the control' of the party against whom the charge is sought, so that the witness would be expected to testify in that party's favor; and (4) the witness is available to that party.

Student note:  The use of the missing witness' deposition testimony does not constitute a waiver of the right to request a missing witness charge.

Case:  Alli v. Full Serv. Auto Repair, LLC, NY Slip Op 03308 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Denial of a motion for leave to renew.

Rebutting the presumption of proper service.

Practice point:  Defendant's affidavit denying receipt of process, and his averment that he was at his place of employment in New York County at the time of the alleged service, were sufficient to rebut the presumption of proper service, necessitating a hearing.

Student note:  A process server's affidavit of service establishes, prima facie, that defendant was properly served pursuant to CPLR 308(1). However, where, as here, the presumption is rebutted, a hearing is required.

Case:  American Home Mtge. Servicing, Inc. v. Gbede, NY Slip Op 03309 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: A missing witness charge.

A petition to disqualify an attorney.

Practice point:  The Appellate Division determined that the motion court properly granted the petition, as petitioner demonstrated that the attorney likely would be a witness on a significant fact-issue, within the meaning of Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]. Petitioner-estate alleges, among other things, that respondent withdrew $65,000 from an account he held jointly with the estate's decedent, after he entered into a written agreement, signed on his behalf by the attorney, pursuant to which he agreed to turn over to the estate the funds remaining in the account after he made certain agreed upon payments. Since respondent has asserted as a defense that he was unaware of that agreement, the attorney is a significant witness as to the negotiation of the agreement and whether he had actual or apparent authority to enter into the agreement on respondent's behalf.

Student note:  The Appellate Division noted that the attorney's testimony is likely to be prejudicial to respondent, unless the attorney testifies that he acted without his client's knowledge or authority in entering into the agreement, pursuant to Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[b].

Case:  Matter of Ehrlich v. Wolf, NY Slip Op 03417 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Rebutting the presumption of proper service.

A counterclaim for breach of contract resulting in lost business opportunities.

Practice point:  The Appellate Division ordered dismissal of the counterclaim alleging that plaintiff breached the parties' contract by engaging in certain misconduct at the workplace, resulting in lost business opportunities. In support of his motion, plaintiff submitted defendants' responses to requests to admit and the deposition testimony in which defendants admitted that they could not identify any prospective business that was lost due to plaintiff's misconduct. Therefore, plaintiff demonstrated, prima facie, that the corporation did not sustain damages as a result of any alleged misconduct on his part in the performance of his job.  In opposition, the defendants failed to raise a triable issue of fact with respect to the element of damages.

Student note:  To recover damages for breach of contract, a party must demonstrate, among other things, that damages resulted from the breach.

Case:  Cortes v. 3A N. Park Ave. Rest Corp., NY Slip Op 03120 (2d Dept. 2015)

Here is the decision. 

Tomorrow's issue:  A petition to disqualify an attorney.

A transfer of venue.

Practice point:  In this slip and fall action where plaintiff is a Kentucky resident, the Appellate Division determined that venue was properly transferred to Albany County. The designation of venue in New York County was proper, pursuant to CPLR 503(c), since two of the corporate defendants have their principal places of business within that county. However, the situs of plaintiff's injury provides a basis for a discretionary change of venue, pursuant to CPLR 510 [3], in that, all things being equal, a transitory action should be tried in the county where the cause of action arose.

Student note:  This rule is predicated on the notion of convenience for trial witnesses to be present at trial.

Case:  Wickman v. Pyramid Crossgates Co., NY Slip Op 03235 (1st Dept. 2015)

Here is the decision.

Monday's issue:  A counterclaim for breach of contract resulting in lost business opportunities.

Re-service while a motion to dismiss is pending.

Practice point:  The Appellate Division affirmed the denial of the motion to dismiss the complaint for lack of personal jurisdiction, as plaintiff established that it re-served the appellant during the pendency of the motion. Plaintiff's re-service of the summons and complaint during the pendency of the motion effectively obviated the jurisdictional objection.

Student note:  An affidavit of service constitutes prima facie evidence of proper service of process, pursuant to CPLR 308(2).

Case:  Bank of Am., N.A. v. Valentino, NY Slip Op 03116 (2d Dept. 2015)

Tomorrow's issue:  A transfer of venue.

A claim of a bus driver's negligence.

Practice point:  To prevail on a cause of action alleging that a common carrier's driver was negligent in stopping a bus, a plaintiff must prove that the stop was unusual and violent, rather than merely one of the sort of jerks and jolts commonly experienced in city bus travel. A plaintiff may not satisfy the burden of proof merely by characterizing the stop as unusual and violent. Instead, there must be objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant.

Student note:  In seeking summary judgment dismissing the complaint, however, common carriers have the burden of establishing, prima facie, that the stop was not unusual and violent.

Case:  Alandette v. New York City Tr. Auth., NY Slip Op 03113 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Re-service while a motion to dismiss is pending.

Summary judgment while a stay is pending.

Practice point:  While defendant's motion for summary judgment was pending, plaintiff's counsel moved for permission to withdraw. The motion court granted counsel's application and ordered the case stayed "for 45 days from the date of service of a copy of this order." However, plaintiff was not served with the order, and defendant's motion for summary judgment was heard and granted in plaintiff's absence. The order granting the motion on default directed defendant to settle an order, which was entered.  Plaintiff's new counsel moved to vacate these two orders on the ground that the grant of summary judgment while the action was stayed was a nullity.

The Appellate Division agreed, and reversed the motion court. After his former counsel was granted leave to withdraw, the action was stayed by court order and operation of CPLR 321(c). As plaintiff was never served with the order dismissing his attorney, the 45 day stay never expired.

Student note:  Defendant cannot avoid the stay by arguing that it did not go into effect until served on plaintiff, since the failure to serve the order cannot accrue to defendant's benefit.

Case:  Matos v. City of New York, NY Slip Op 03074 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A claim of bus driver negligence.

A question of service.

Practice point:  Defendant moved, pursuant to CPLR 5015[a][4], to vacate his default and to dismiss the complaint insofar as asserted against him on the ground that he had not been served with copies of the summons and complaint.  The Supreme Court denied the motion, finding that service of process was properly effected under CPLR 308(2).  The Appelate Division reversed, and remitted.

Defendant submitted an affidavit asserting that he had never lived at the address at which the substituted service was allegedly effected, thereby denying that he was served at his "actual . . . dwelling place or usual place of abode," as required by CPLR 308[2]).

In opposition, plaintiff conceded that defendant had resided at multiple residences during the six years prior to the commencement of the action and so its submissions revealed a question of fact with respect to whether the address where service was allegedly effected was defendant's actual dwelling place or usual place of abode.  As the submitted evidence was not dispositive, there should have been a hearing.

Student note:  A process server's affidavit constitutes prima facie evidence of proper service, pursuant to CPLR 308(2)

Case:  Central Mtge. Co. v. Ward, NY Slip Op 02926 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment while a stay is pending.

A Labor Law § 240(1) claim.

Practice point:  Plaintiff established his entitlement to judgment as a matter of law on his Labor Law § 240(1) claim based on his testimony that he was injured when he fell from a height of six stories when two workers standing on the ground holding ropes that were supposed to keep the scaffold he was standing on level, simultaneously loosened the ropes, causing the scaffold to shift from a horizontal to a vertical position. Plaintiff also established that his accident was caused by the lack of a guardrail on the side of the scaffold. Plaintiff was not required to show a specific defect in the safety devices since the evidence plainly established that they did not provide adequate protection from the risk of falling.

In opposition, defendants failed to raise a triable issue of fact. Although they argue that plaintiff was the sole proximate cause of his injuries, they failed to submit any admissible evidence to support their allegation that plaintiff failed to attach his safety harness to the lifeline in the proper manner.

Student note:  Even if there were admissible evidence to that effect, the scaffold fell as a result of the ropes supporting it being loosened, rendering plaintiff's alleged conduct contributory negligence which is not a defense to a Labor Law § 240(1) claim.

Case:  Guaman v 1963 Ryer Realty Corp., NY Slip Op 03039 (1st Dept.)

Here is the decision.

Monday's issue:   A question of service.

Calculating quantum meruit compensation.

Practice point:  The award of quantum meruit compensation under 22 NYCRR 691.10(b) is not limited to a calculation based on the number of hours worked multiplied by a reasonable hourly rate, but can also be calculated as a portion of a contingent fee. In either case, the court must weigh the relevant factors, which include evidence of the time and skill required in that case; the matter's complexity; the attorney's experience, ability, and reputation; the client's benefit from the attorney's services; and the fee usually charged by other attorneys for similar services.

Student note:  An award in quantum meruit should reflect the court's assessment of the qualitative value of the services rendered, made after weighing all relevant factors considered in valuing legal services. While not binding or determinative, the court also should consider any compensation agreement between outgoing and incoming counsel.

Case:  Biagioni v. Narrows MRI & Diagnostic Radiology, P.C., NY Slip Op 02924 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:   A Labor Law § 240(1) claim.

Freezing rainstorm in progress.

Practice point:  The Appellate Division affirmed the dismissal of the complaint, finding that the undisputed fact that plaintiff's slip and fall occurred during a freezing-rainstorm in progress established prima facie that defendants were not negligent in failing to remove the ice on the sidewalk in front of their building on which plaintiff testified that she slipped .

The record also shows that, on the day of the accident, defendants' maintenance staff followed its regular protocol for clearing newly fallen snow and ice from the sidewalk and the building's entrance area at 6 a.m. and again at 7 a.m., before the start of the school day.  While plaintiff contends that in clearing the sidewalk defendants created a hazardous condition or exacerbated a natural hazard created by the storm, she submitted no evidence to support her contention.

Student note:  Plaintiff did not raise a material fact issue by pointing to the inconsistent testimony of a maintenance worker as to whether salt was used on the sidewalk before plaintiff's fall, as plaintiff failed to explain how using or not using salt could have created or exacerbated the naturally occurring ice condition.

Case:  Sevilla v. Calhoun School, Inc., NY Slip Op 03030 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Calculating quantum meruit compensation.

Enforcing a stipulation.

Practice point:  The Appellate Division affirmed the granting of plaintiff's motion to enforce the stipulation, which did not contain any provision requiring plaintiff to make payments on the mortgage or water bill. A court may not imply a term where the circumstances of the contract's formation indicate that, when the contract was made, the parties must have foreseen the contingency at issue and the agreement can be enforced according to its terms. Here, the underlying controversy between the parties involved defendant's claim that plaintiff failed to make mortgage and other payments. When the parties entered into the stipulation, they must have foreseen that contingency..

Plaintiff's motion papers established that defendant failed to respond to an offer to purchase the property and, therefore, established that defendant breached the stipulation.  Defendant failed to show that plaintiff breached the stipulation, and did not proffer sufficient cause to invalidate the agreement, such as fraud, collusion, mistake, or accident.

Student note:  A stipulation of settlement is a contract, enforceable according to its terms. When a court enforces a stipulation of settlement, it must effectuate the parties' intent. As with any contract, where the terms of a stipulation of settlement are unambiguous, the Supreme Court must give effect to the parties' intent based upon the plain meaning of the words used by the parties.

Case:  Bethea v. Thousand, NY Slip Op 02923 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Freezing rainstorm in progress.

Constructive notice of a hazardous lead-paint condition.

Practice point:  Constructive notice of a hazardous lead-based paint condition may be established by proof that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs; (2) knew that the apartment was constructed at a time before lead-based interior paint was banned; (3) was aware that paint was peeling on the premises; (4) knew of the hazards of lead-based paint to young children; and (5) knew that a young child lived in the apartment.

Student note:  Under New York common law, a landowner has a duty to maintain the premises in a reasonably safe condition.   For a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected.

Case:  Greene v. Mullen, NY Slip Op 02729 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Enforcing a stipulation.

Leave to amend the complaint to assert malicious prosecution.

Practice point:  The Appellate Division affirmed the denial of plaintiff's motion to amend the complaint to assert a cause of action alleging malicious prosecution.  As the proposed cause of action failed to plead the required element of interference with person or property, it was palpably insufficient.

Student note:  In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit.

Case:  Galanova v. Safir, NY Slip Op 02723 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Constructive notice of a hazardous lead-paint condition.

The arbitrability of a fee dispute.

Practice point:  The Appellate Division affirmed the Supreme Court's conclusion that the plaintiff could not seek de novo review on the merits of an attorney-client fee dispute that was previously submitted for arbitration. Under the terms of the parties' retainer agreement and the Rules of the Chief Administrator of the Courts, the plaintiff's election to resolve the fee dispute by arbitration is binding upon both attorney and client, and reviewable pursuant to CPLR article 75.  The Appellate Division found nothing in the record to supports the plaintiff's contention that the parties modified the retainer agreement, or elected to proceed to arbitration in a manner that was inconsistent with the retainer agreement or 22 NYCRR Part 136.

Student note:  A challenge to the confirmation of an arbitration award requires a showing that the arbitrators exceeded their power or so imperfectly executed the arbitration that a final and definite award upon the submitted matter was not made, pursuant to CPLR 7511[b][iii].

Case:  Dermigny v. Harper, NY Slip Op 02721 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Lave to amend the complaint to assert malicious prosecution.

A fall at a bus stop, or not?

Practice point:  Plaintiff was injured when, while disembarking from the rear doors of a bus, she stepped onto an allegedly broken and uneven sidewalk causing her to fall. Located approximately 55 feet west of the location where plaintiff fell is a sign designating a bus stop.  The Appellate Division found a triable issue of fact as to whether plaintiff fell within a designated bus stop location, and reinstated the complaint as against the City.

The fact that plaintiff believed she did not fall within the bus stop is immaterial since she has no knowledge regarding what the City has designated to be the location of the bus stop. The motion court's reliance on Section 16-124.1(a)(2) of the Administrative Code as limiting a bus stop to "five feet of the sidewalk and the gutter immediately adjacent to the curb," was misplaced. The regulation pertains to the City's responsibility to remove snow and ice adjacent to bus stops, and does not purport to define "bus stop" for all purposes. In addition, the regulation became effective three years after the incident.

Student note:  A bus stop is not delimited to the roadway where buses operate, but includes the sidewalk where passengers board and disembark.

Case:  Bednark v. City of New York, NY Slip Op 02841 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: The arbitrability of a fee dispute.

Contracts, and tort liability to a third party.

Practice point:  Plaintiff allegedly sustained injuries when he fell through a coal chute cover while exiting his parents' house. Defendant had been hired to perform certain plumbing work in the basement of the house 16 days prior to the accident. Plaintiff alleged defendant's employees failed to properly replace the coal chute cover after removing it to enter the basement.

Defendant moved pursuant to CPLR 3126 to strike the complaint on the ground of spoliation of evidence, and for summary judgment dismissing the complaint on the ground that it owed no duty of care to the plaintiff and that there was no evidence that its employees had improperly replaced the coal chute cover. The Supreme Court granted that branch of the motion which was to strike the complaint on the ground of spoliation of evidence to the extent of precluding plaintiff from offering evidence at trial regarding the condition of the coal chute cover and frame, and also granted that branch of the defendant's motion which was for summary judgment dismissing the complaint. Plaintiff appealed, and the Appellate Division affirmed.

The Appellate Division noted that there are three exceptions to the general rule that a contractual obligation, standing alone, does not give rise to tort liability in favor of a third party. One of the exceptions is relevant here, namely,  that a party who enters into a contract to render services may be liable in tort to a third party where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm. A claim that a contractor exacerbated an existing condition requires some showing that the contractor left the premises in a more dangerous condition than the contractor found them.

Here, defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence that it owed no duty of care to the plaintiff.  In opposition, plaintiff failed to raise a triable issue of fact as to whether defendant, in allegedly failing to exercise reasonable care in the performance of its work, launched a force or instrument of harm. Plaintiff made no showing that defendant left the coal chute in a more dangerous condition than it had found it, and plaintiff testified that after the defendant completed its work, he had walked over the coal chute cover twice a day up until the date of the accident and did not observe anything wrong with it.  Plaintiff's mother similarly testified that she, too, had walked over the coal chute cover, without incident, after the defendant's work was completed. Plaintiff's contention that defendant owed a duty to his parents to warn them about the allegedly deteriorating condition of the coal chute cover is unavailing, as there is nothing to impose a duty of care on a party not in privity of contract with the injured party.

Student note:  In light of the determination with respect to summary judgment, the appellate issue regarding the remaining branch of defendant's motion was rendered academic.

Case:  Berger v. NYCO Plumbing & Heating Corp., NY Slip Op 02716 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A fall at a bus stop, or not?

Summary judgment in a slip and fall action.

Practice point:  The Appellate Division determined that the motion court properly found that defendant made a prima facie showing that there was no dangerous condition in existence when plaintiff slipped and fell, and that it was therefore entitled to summary judgment. In opposition, plaintiff failed to raise a triable issue of fact.

Plaintiff testified that he slipped on the wet ramp minutes after it had stopped raining, and that he did not see any debris, substances, or other defects on the ramp prior to his attempted ascent.  Mere wetness on a walking surface due to rain does not constitute a dangerous condition. Moreover, there is no evidence that defendant created the condition that caused plaintiff's accident, nor does the record show that defendant had constructive notice of a problem with the ramp.

As to constructive notice, plaintiff's expert report merely described the surface of the ramp as "worn, smooth and polished," concluded that "the wet condition . . . would have made the ramp slippery and dangerous." This conclusion, unsupported by any empirical data obtained by scientific analysis, was insufficient to demonstrate an issue of material fact.

Student note:   A defendant moving for summary judgment in a slip and fall action has the initial burden of making a prima facie demonstration that it neither created the dangerous condition,  assuming that the condition existed, nor had actual or constructive notice of its existence.  If a defendant establishes prima facie entitlement to such relief as a matter of law, the burden shifts to the plaintiff to raise a triable issue of fact as to the creation of the defect or notice thereof.

Case:  Ceron v. Yeshiva Univ., NY Slip Op 02680 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contracts, and tort liability to a third party.

A defendant's burden on summary judgment.

Practice point:  While the ultimate burden of proof at trial is on the plaintiff, a defendant seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form. The ultimate burden of proof after trial plays no part in the assessment of whether there are relevant factual issues presented on a motion for summary judgment. A moving defendant does not meet its burden of affirmatively establishing its entitlement to judgment as a matter of law by merely pointing to gaps in the plaintiff's case. Instead, it must affirmatively demonstrate the merit of its claim or defense.

Student note  A motion for summary judgment will not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.

Case:  Collado v. Jiacono, NY Slip Op 02443 (2d Dept. 2015)

Here is the decision.

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

Gravity and Labor Law § 240(1).

Practice point:  The Appellate Division determined that the motion court properly rejected the City's argument that § 240(1) was inapplicable, because the rail that struck plaintiff did not fall from a "physically significant elevation differential." The Appellate Division affirmed the motion court's finding that the pile of rails that were stacked two and one-half to three feet high was not de minimis, given the approximately 1500 pound weight of the rail and the amount of force it was capable of generating, even over the course of a relatively short descent. The harm plaintiff suffered was the direct consequence of the application of the force of gravity to the rail that struck plaintiff.

Student note:  In a claim such as this, the essential element to a conclusion that an object requires securing is that it presents a foreseeable elevation risk in light of the work being undertaken.

Case:  Jordan v. City of New York, NY Slip Op 02565 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A defendant's burden on summary judgment.

The justifiable reliance element of a fraud claim.

Practice point:  The Appellate Division determined that the plaintiff failed to establish the element of justifiable reliance, noting that where the plaintiff has available the means of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation at issue, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations.

Student note:  A viable fraud claim requires a showing of a misrepresentation or omission of material fact which the defendant knew was false; that the misrepresentation was made to induce the plaintiff's reliance; the plaintiff's justifiable reliance on the misrepresentation or material omission; and a resulting injury.

Case:  Cervera v. Bressler, NY Slip Op 02441 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Gravity and Labor Law § 240(1).