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.