Summary judgment in a personal injury action.

Practice point:  The Appellate Division reversed the motion court and determined that plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that, before entering the crosswalk and while crossing the street, he looked both ways for oncoming vehicles and that, with the pedestrian control and traffic control devices in his favor, defendant failed to yield the right-of-way. Plaintiff's evidence demonstrated that defendant violated Vehicle and Traffic Law § 1111(a)(1) and that plaintiff was not at comparative fault in the happening of the accident.  In opposition, the defendants submitted an affidavit which contradicted earlier deposition testimony, and merely raised what appear to be feigned issues of fact designed to avoid the consequences of the earlier testimony. Thus, the affidavit failed to raise a triable issue of fact and was insufficient to defeat plaintiff's motion.

 Student note:  In a personal injury action, to prevail on a motion for summary judgment on liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault, as there can be more than one proximate cause of an accident. Where a plaintiff has established prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff's comparative fault.

Case:  Zhu v. Natale, NY Slip Op 06586 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  At-will employment, termination, and fraudulent inducement claims.

Leave to extend the time to serve process.

Practice point:  The Appellate Division reversed the motion court and denied that branch of plaintiff's motion for leave to extend the time within which to serve the summons and complaint.

Plaintiff's supporting affidavits failed to establish that she exercised reasonably diligent efforts in attempting to effect proper service of process upon the appellant and, thus, she failed to show good cause, as required by CPLR 306-b.  In addition, plaintiff failed to establish her entitlement to the extension in the interest of justice as she failed to demonstrate a potentially meritorious medical malpractice cause of action. Neither did plaintiff rebut defendant's assertion that he did not have notice of the action until nearly 11 months after the expiration of the statute of limitations, and the concomitant inference that he was substantially prejudiced by plaintiff's lengthy delay in seeking leave to extend time.

Student note:  Pursuant to the statute's terms, granting the motion requires a showing that there is good cause, or a determination that it is in the interest of justice.

Case:  Wilbyfont v. New York Presbyt. Hosp., NY Slip Op 06585 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Summary judgment in a personal injury action.

CPLR 3215 and a motion for a default judgment.

Practice point:  The Appellate Division reversed the motion court and granted plaintiff's motion for leave to enter a judgment on the issue of liability upon defendant's failure to appear or answer the complaint.

Plaintiff, in support of the motion, demonstrated entitlement to judgment on the issue of liability by submitting proof of service of the summons and complaint, the facts constituting the claim, and defendant's default in answering or appearing.

In opposing, defendant failed to demonstrate a potentially meritorious defense.  Defendant submitted a proposed answer which was verified only by its attorney, and an affirmation from an attorney who did not have personal knowledge of the facts.

Student note:  To demonstrate entitlement to relief under CPLR 3215(a), plaintiff must submit proof of service of the summons and complaint, the facts constituting the claim demonstrating a viable cause of action, and the defendants' default in answering or appearing, pursuant to CPLR 3215[f]. To defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense.

Case:  Vidal v. 452 Wyckoff Corp., NY Slip Op 06583 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to extend the time to serve process.

A golf-cart injury and assumption of risk.

Practice point:  The Appellate Division reversed the motion court and dismissed the complaint in this action arising from plaintiff's injury when she was thrown from a golf-car in which she was a passenger.  The Appellate Division found that plaintiff knowingly and voluntarily rode in the cart during a golf tournament in which plaintiff was assigned to monitor a par-three hole for any player who got a hole-in-one. While plaintiff contends that she did not know that the operator was an unlicensed driver, she knew that he was a minor yet made no attempt to determine whether he had a license or whether he should be operating a golf cart.

The Appellate Division stated that the fact that plaintiff was not actively performing her duties of monitoring the hole at the time of her injury does not render the doctrine inapplicable, as it applies to any facet of the activity inherent in it. The salient point is that the accident involved a sporting or recreational activity that occurred in a designated athletic or recreational venue.

Student note:  A plaintiff who voluntarily participates in a sporting or recreational event generally is held to have consented to those commonly-appreciated risks that are inherent in, and arise out of, participation in the sport.  It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which the injury occurred, so long as the plaintiff is aware of the potential for injury of the mechanism from which the injury results. Note that a nonparticipant may also be subject to a defense based on the doctrine of assumed risk.

Case:  Valverde v. Great Expectations, LLC, NY Slip Op 06561 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  CPLR 3215 and a motion for a default judgment.

A motion for summary judgment in lieu of complaint.

Practice point:  The Appellate Division determined that the Supreme Court properly granted the plaintiff's motion for summary judgment in lieu of complaint. The plaintiff made a prima facie showing of its entitlement to summary judgment pursuant to CPLR 3213 by submitting the two subject contracts, each of which contained the defendant's unconditional promise to pay a sum certain, and evidence demonstrating the defendant's failure to make the payments called for by their terms.  The Appellate Division found that, contrary to the defendant's contention, in opposition to the plaintiff's motion, he failed to raise a triable issue of fact as to any circumstances that would alter his unconditional obligation to pay the amounts due.

Student note:  Pursuant to CPLR 3213, a party may commence an action by motion for summary judgment in lieu of complaint when the action is based upon an instrument for the payment of money only or upon any judgment.  An instrument is considered to be for the payment of money only if it contains an unconditional promise to pay a sum certain over a stated period of time.  A document comes within the ambit of CPLR 3213 if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms.  However, the instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document.  While a defendant can defeat the motion by offering evidentiary proof sufficient to raise a triable issue of fact, averments merely stating conclusions, of fact or of law, are insufficient.

Case:  Sisters of Holy Child Jesus at Old Westbury, Inc. v. Pallotta, NY Slip Op 06504(2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A golf-cart injury and assumption of risk.

Dismissal of a legal malpractice claim.

Practice point:  The Appellate Division affirmed dismissal, finding that the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.  The defendants' evidentiary submissions demonstrated that the notice of claim and the pleadings prepared by them in the underlying personal injury action adequately set forth the theory of negligence allegedly omitted, and that the settlement of the underlying action was not effectively compelled by any mistakes on their part.  In opposition, the plaintiffs' submissions, including an expert's conclusory affirmation, failed to raise a triable issue of fact. The plaintiffs' reliance upon the same evidence in support of their cross motion for summary judgment on the issue of liability was similarly insufficient to establish a prima facie case of legal malpractice.

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. The claim may remain viable, despite settlement of the underlying action, if the settlement was effectively compelled by counsel's mistakes.

To succeed on a motion for summary judgment dismissing the complaint in a legal malpractice action, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of the cause of action.

Case:  Feldman v. Finkelstein & Partners, LLP, NY Slip Op 06491 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion for summary judgment in lieu of complaint.

Plaintiff's motion for summary judgment on the issue of liability.

Practice point:  To prevail on the motion, a plaintiff is required to submit evidence in admissible form establishing, prima facie, that the defendant was negligent and that the plaintiff was free from comparative fault.  Here, plaintiff submitted his attorney's affirmation, a copy of the pleadings, and his own affidavit, which consisted of a conclusory one-paragraph description of the accident. The Appellate Division affirmed the Supreme Court's finding that plaintiff did not establish his prima facie entitlement to judgment as a matter of law, as his affidavit did not sufficiently demonstrate how the accident occurred and failed to eliminate triable issues as to which party or parties were at fault.

Student note:  As plaintiff failed to meet his initial burden, the motion was denied without regard to the sufficiency of defendants' opposition papers.

Case:  Derieux v. Apollo N.Y. City Ambulette, Inc., NY Slip Op 06490 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Dismissal of a legal malpractice claim.

CPLR 317 and an alleged failure to have received process.

Practice point:   The Appellate Division reversed the motion court and found that defendant, who was properly served pursuant to CPLR 308(4), failed to make the requisite showing that she did not receive the summons and complaint in time to defend the action.

Student note:  Pursuant to CPLR 317, a defendant who is served other than by personal delivery may defend the action based on the court's finding that defendant did not personally receive the summons in time and has a meritorious defense.

Case:  Citimortgage v. Financhiaro, NY Slip Op 06489 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Plaintiff's motion for summary judgment on the issue of liability.

A failed motion to vacate a default.

Practice point:  The Appellate Division affirmed the denial of the motion, noting that a defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer as timely must show both a reasonable excuse for the default and the existence of a potentially meritorious defense. 

Here, the Appellate Division found that defendant failed to establish a reasonable excuse for the default.  The bare and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the prima facie proof of proper service set forth in the affidavit of service of the plaintiff's process server.  In addition, the conclusory, undetailed, and uncorroborated allegation of law office failure did not constitute a reasonable excuse. 

Student note:  As defendant failed to demonstrate a reasonable excuse, it was unnecessary for the Appellate Division to consider whether she sufficiently demonstrated the existence of a potentially meritorious defense.

Case:  Aurora Loan Servs., LLC v. Lucero, NY Slip Op 06487 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  CPLR 317 and an alleged failure to have received process.

Deciding whether a statement is of and concerning the plaintiff in a defamation action.

Practice point:  In a defamation action, whether a plaintiff has demonstrated that a particular statement names or so identifies him so that the statement can be said to be of and concerning that plaintiff may be decided as a matter of law and need not be determined by a jury.

The Appellate Division held that where, as here, the statement does not name the plaintiffs at all and contains nothing that would cause a reader to think defendant was referring to them, the statement is not of and concerning the plaintiffs.

Student note:  Similarly, where an allegedly defamatory statement is directed at a company, it does not implicate the company's suppliers, partners, vendors or affiliated enterprises, even if they sustain injury as a result.

Case:  Three Amigos SJL Rest., Inc. v. CBS News Inc., NY Slip Op 06409 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A failed motion to vacate a default.

Setting aside the jury's verdict in a medical malpractice action.

Practice point:  The Appellate Division affirmed the granting of plaintiff's motion to set aside the jury's verdict to the extent of ordering a new trial on one of plaintiff's theories of liability.

The Appellate Division found that the verdict regarding the timing of plaintiff's MRI was at odds with any fair interpretation of the evidence, requiring a new trial on his theory that defendant departed from good and accepted standards of neurosurgical care by failing to immediately obtain an MRI. Defendant failed to explain how waiting nearly 24 hours to examine plaintiff fell within the relevant standard of care. Upon his examination, defendant determined that plaintiff needed a transfer to a better equipped facility. Notably, defendant conceded that plaintiff needed an MRI "right away, that day," although he offered reasons for the delay. However, there were no MRI technicians available to perform scans on weekends, and he took no steps to either call a technician in or have an MRI performed elsewhere until the following day.

Student note:  The jury's finding that defendant did not deviate from the standard of care by delaying surgery does not estop plaintiff, at a second trial, from pursuing the theory that defendant failed to timely obtain an MRI.  Plaintiff's theory, premised on the timing of the MRI, is independent from his theory regarding the timing of the surgery.  To the extent that the questions could result in an inconsistent verdict, defendant failed to object to the wording of the special verdict sheet.

Case:  Tom v. Holtzman, NY Slip Op 06477 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Deciding whether a statement is of and concerning the plaintiff in a defamation action.

Disclosure.

Practice point: "There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof," pursuant to CPLR 3101[a]).  The words "material and necessary" must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.  However, discovery is not unlimited, and the supervision of discovery is generally left to the broad discretion of the trial court.

Student note:  Absent an improvident exercise of the trial court's discretion, its determination will not be disturbed by the Appellate Division.

Case:  Gould v. Decolator, NY Slip Op 06416 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Setting aside the jury's verdict in a medical malpractice action.

Contracts and tort liability in favor of a third party.

Practice point:  A contractual obligation, standing alone, does not give rise to tort liability in favor of a third party, excapt (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely.

Student note:  Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party.

Case:  Cioffi v. Raritan Bldg. Servs. Corp., NY Slip Op 06411 (2d dept. 2015)

Here is the decision.

Tomorrow's issue:  Disclosure.

A motion to change venue.

Practice point:  The Appellate Division reversed, and granted defendant's motion, pursuant to CPLR 501, 510, and 511, to change the venue of the action from Kings County to Nassau County.

Plaintiff failed to show that enforcement of the forum selection clause would be unreasonable, unjust, or in contravention public policy, or that the inclusion of the forum selection clause in the agreement was the result of fraud or overreaching.  Moreover, the plaintiff did not demonstrate that a trial in Nassau County would be so gravely difficult that, for all practical purposes, he would be deprived of his day in court.

Student note:  A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court.

Case:  Casale v. Sheepshead Nursing & Rehabilitation Ctr., NY Slip Op 06410 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contracts and tort liability in favor of a third party.

Collateral estoppel as a bar to a convicted defendant's relitigating liability in a civil action.

Practice point:  Where a criminal conviction is based upon facts identical to those in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from relitigating the issue of liability.  The party seeking the benefit of estoppel must prove that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action.  The party against whom preclusion is sought must demonstrate the absence of a full and fair opportunity to contest the prior determination.

Student note:  The doctrine applies whether the conviction results from a plea or a trial.

Case:  Hartman v. Milbel Enters., Inc., NY Slip Op 06314 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion to change venue.

Taking a depositon by remote electronic means.

Practice point:  The Appellate Division determined that the motion court improvidently exercised its discretion in denying that branch of plaintiff's cross motion, which was made pursuant to CPLR 3103(a), for a protective order directing that his deposition be conducted by remote electronic means. The Appellate Division found that, in light of the evidence that the plaintiff's applications for a visa to return to the United States had been denied, and the evidence establishing that he presently was ineligible to be admitted to the United States, plaintiff demonstrated that traveling from China to the United States for his deposition or independent medical examination would cause undue hardship.

Student note:  Generally, the deposition of a party should take place within the county where the action is pending, pursuant to CPLR 3110[1]).  There is an exception to this rule if the party demonstrates that examination in that county would cause undue hardship.

Case:  Feng Wang v. A & W Travel, Inc., NY Slip Op 06312 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Collateral estoppel as a bar to a convicted defendant's relitigating liability in a civil action.

A quantum meruit claim is denied.

Practice point:  The Appellate Division reversed the motion court and denied that branch of plaintiff's motion which was for summary judgment on the cause of action seeking to recover damages against the defendant bank based on quantum meruit.

Plaintiff construction company entered into a construction contract with the individual defendant who was principal of the defendant owner of a commercial building. Pursuant to the contract, plaintiff was to furnish all material and perform all work necessary to renovate the owner's building for a price of $4,200,000. In order to pay for the work, the owner obtained a construction loan from the bank, which was secured by a mortgage on the property. Pursuant to the agreement between the bank and the owner, the bank disbursed money from the loan directly to plaintiff in installments on proof of completion of certain stages of work, but kept 10% of all such funds to be disbursed to plaintiff when the project was complete.  Under the loan agreement, in the event of the owner's default, the bank was entitled to keep all undisbursed funds from the loan.big

The owner defaulted and the bank commenced an action to foreclose on the property. The project was not completed, and plaintiff commenced this action against the owner and the bank asserting, among other things, a claim sounding in quantum meruit. The owner did not appear in the action.

The Appellate Division determined that plaintiff failed to establish its entitlement to judgment as a matter of law, as it failed to submit any evidence of the value of any services it may have performed which were accepted by the bank.  Plaintiff does not dispute that the sum of $416,566.50 represents the amount it was owed for work it performed pursuant to its contract with the owner and prior to any default by the owner, and it does not dispute that it previously received the other 90% of the payment owed for those services.  Plaintiff's evidence that the bank retained the sum of $416,566.50, pursuant to the loan agreement between the bank and the owner, for work performed by the plaintiff prior to the owner's default, is not evidence of the value of any services accepted by the bank. Moreover, the remaining 10% of funds that were to be disbursed to plaintiff pursuant to the loan agreement when the project was complete are also not evidence of the reasonable value of services rendered which were accepted by the bank.

The bank established its prima facie entitlement to judgment as a matter of law dismissing the claim as against it through the submission of the construction contract between plaintiff and the owner, which specifically outlined the contractor's work on the project.  In opposition, plaintiff failed to raise a triable issue of fact.

Student note:  A plaintiff seeking to recover on a cause of action sounding in quantum meruit must demonstrate (1) the performance of services in good faith; (2) the acceptance of the services by the person to whom they are rendered; (3) an expectation of compensation therefor; and (4) the reasonable value of the services allegedly rendered.

Case:  Crown Constr. Bldrs. & Project Mgrs. Corp. v. Chavez, NY Slip Op 06310 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Taking a deposition by remote electronic means.

An assault by an intoxicated individual, and leave to amend.

Practice point:   To establish prima facie entitlement to judgment as a matter of law dismissing a complaint alleging an assault by an intoxicated individual, a defendant must establish either that it did not serve alcohol to the plaintiff's assailant while he or she was visibly intoxicated, or that its sale of alcohol to the assailant had no reasonable or practical connection to the assault.

Here, the Appellate Division determined that defendants failed to meet their burden, and affirmed the denial of defendants' motion.  Plaintiff alleges that he was assaulted by an intoxicated patron at approximately 1:30 a.m. at a bar owned by defendants. In support of their motion, defendants submitted a copy of plaintiff's deposition testimony in which he testified that his assailant was at the bar when he arrived around midnight or 12:30 a.m., and that, upon his arrival, his assailant had a glass in his hand and was visibly intoxicated.

Defendants also submitted the deposition testimony of the defendant who tended bar that night.  He testified that plaintiff's assailant was already in the bar when he started tending bar at 8 p.m., and that he eventually stopped serving the assailant hours later because the assailant was visibly intoxicated.

Student note:  The Appellate Division also affirmed the granting of plaintiff's cross motion for leave to amend the complaint to add a cause of action alleging a violation of the Dram Shop Act, codified at General Obligations Law § 11-101. The proposed amendment was neither palpably insufficient nor patently devoid of merit, pursuant to CPLR 3025[b].  In addition, there will be no undue prejudice or surprise to the defendants by virtue of the amendment.

Case:  Covert v. Wisla Corp., NY Slip Op 06308 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A quantum meruit claim is denied.

Denial of motiom for summary judgment, with leave to renew.

Practice point:  Plaintiff moved for summary judgment on the issue of liability approximately two months after joinder of issue and prior to the exchange of any discovery.  The Appellate Division affirmed the denial of the motion, with leave to renew after depositions of the parties.

Student note:  A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment, and the opposing party is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated, pursuant to CPLR 3212[f].

Case:  Brea v. Salvatore, NY Slip 06305 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  An assault by an intoxicated individual, and leave to amend.

A CPLR 1018 motion to substitute a nonparty as plaintiff, and to amend the caption accordingly.

Practice point:  The Appellate Division affirmation the granting of the motion based on plaintiff's submission of evidence that the note at issue was in Nationstar's possession, that the mortgage was assigned to Nationstar after the action was commenced, and that, therefore, Nationstar is the real plaintiff in interest.

Student note:  The determination to substitute or join a party pursuant to CPLR 1018 is within the discretion of the trial court.

Case:  Aurora Loan Servs., LLC v. Lopa, NY Slip Op 06303 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Denial of motion for summary judgment, with leave to renew.

Doctrine of primary assumption of risk.

Practice point:  Pursuant to the doctrine, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.  This includes risks associated with the construction of the playing surface and any open and obvious condition on it. However, participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.

Student note:  Awareness of risk is not to be determined in a vacuum, but, rather, is to be assessed against the background of the skill and experience of the particular plaintiff.

Case:  Brown v. Roosevelt Union Free School Dist., NY Slip Op 06204 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A CPLR 1018 motion to substitute a nonparty as plaintiff, and to amend the caption accordingly.