Suspension of snow removal servces for failure to pay maintenance fees.

The plaintiff alleges that while he was working for nonparty UPS and delivering a package to the home of the defendant Sorrentino, he was injured when he slipped and fell on snow and ice in defendant's driveway. At the time of the accident, Sorrentino lived in a gated community governed by the defendant Stone Hill.  Prior to the time of the accident, Stone Hill had suspended Sorrentino's snow removal services for the property, as a result of the nonpayment of maintenance fees to Stone Hill. The plaintiff subsequently commenced this action against Sorrentino and Stone Hill to recover damages for personal injuries. Stone Hill moved for summary judgment dismissing the complaint insofar as asserted against it and Sorrentino's cross claim. The Supreme Court granted the motion, and the Appellate Division reversed.

Stone Hill failed to demonstrate, prima facie, that Sorrentino's nonpayment of the maintenance fees relieved it of its duty to perform snow removal services on the property on the date of the accident, as was its responsibility under the "Declaration of Covenants, Restrictions, Easements, Charges and Liens," which governed the relationship between Sorrentino, as a property owner, and Stone Hill.

Student note:  Since Stone Hill failed to establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff or Sorrentino to raise a triable issue of fact.

Case:  Coons v. Sorrentino, NY Slip Op 08501 (2d Dep't December 21, 2016)

Here is the decision.

Tuesday's issue:  The presumption of proper service.

A defendant's summary judgment motion in a trip-and-fall action.

Practice point:  The movant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that (1) it neither created the hazardous condition that allegedly caused the plaintiff's injuries, nor had actual or constructive notice of that condition for a sufficient length of time to discover and remedy it, or (2) plaintiff cannot identify the cause of the accident. Here, the defendants failed to establish that the plaintiff was unaware of the location of his fall or what caused him to fall. In support of their motion, the defendants submitted a transcript of the plaintiff's deposition. In that deposition, the plaintiff clearly identified, through photographs, the location of his fall and the condition that allegedly caused it. Any conflicts between the plaintiff's original deposition and the errata sheets raised issues of credibility inappropriate for resolution on summary judgment.

Student note:  As the defendants' failed to meet their prima facie burden, their motion will be denied, regardless of the sufficiency of the plaintiff's papers in opposition.

Case:  Belton v. Gemstone HQ Realty Assoc., LLC, NY Slip Op 08491 (2d Dep't December 21, 2016)

Here is the decision.

Tomorrow's issue:  Suspension of snow removal services for failure to pay maintenance fees.

CPLR 3212(f).

Practice point:  The statute permits a court to deny a motion for summary judgment where it appears that the facts essential to oppose the motion exist but cannot then be stated. This is especially so where the opposing party has not had a reasonable opportunity for disclosure.

Case:  Brielmeier v. Leal, NY Slip Op 08344 (2d Dep't December 14, 2016)

Here is the decision.

Tomorrow's issue: A defendant's summary judgment motion in a trip-and-fall action.

Termination of an action within the meaning of CPLR 203(e), and punitive damages.

CPLR 203(e), in pertinent part, states that "[w]here a defendant has served an answer containing a defense or counterclaim and the action is terminated . . . by dismissal . . . , the time which elapsed between the commencement and termination of the action is not a part of the time within which an action must be commenced to recover upon the claim in the defense or counterclaim."

For statutory purposes, a prior action terminates when a nondiscretionary appeal, or an appeal taken as of right, is exhausted.

A demand for punitive damages will be struck where the action involves a private dispute, and plaintiff has not demonstrated that defendants' conduct was aimed at the public generally.

Case: Britt v. Nestor, NY Slip Op 08437 (1st Dep't December 15, 2017)

Here is the decision.

Tomorrow's issue:  CPLR 3212(f).

Court holiday.

Wheel stops and liabiity.

While a landowner has a duty to maintain its premises in a reasonably safe manner, there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous. As a matter of law, a clearly visible wheel stop or concrete parking lot divider presents no unreasonable risk of harm,

Case:  Bogaty v. Bluestone Realty NY, Inc., NY Slip Op 08343 (2d Dep't December 14, 2916)

Here is the decision.

Tuesday's issue:  Termination of an action within the meaning of CPLR 203(e), and punitive damages.

A request for an adjournment of the return date and for an extension of time to file an opposition

The granting of an adjournment for any purpose rests within the sound discretion of the Supreme Court, and its determination will not be disturbed absent an improvident exercise of that discretion. In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors. It is not an improvident exercise of discretion to deny an adjournment where the need for such a request is based on the movant's failure to exercise due diligence. In addition, while a court has the discretion to grant an extension of time to file opposition papers, it must be upon a showing of good cause, pursuant to CPLR 2004, and the delinquent party must offer a valid excuse for the delay.

Here, the Supreme Court did not improvidently exercise its discretion in denying plaintiffs' request for the adjournment and extension.  They made no showing of good cause because they did not offer a valid excuse for the extension, and the record reflected that the need for an adjournment resulted from a lack of due diligence on their part.

Case:  Adotey v. British Airways, PLC, NY Slip Op 08341 (2d Dep't December 14, 2016)

Here is the decision.

Tomorrow's issue:  Wheel stops and liability.

The relaton back doctrine.

The Appellate Division reversed the motion court and dismissed the complaint in this action stemming from a personal injury action that settled.  After the statute of limitations had elapsed, pursuant to CPLR 214(5), plaintiff filed this action.

Plaintiff's reliance on the relation back doctrine to render this independent action timely is unavailing, since he is not seeking to amend a pleading in a timely-commenced action, pursuant to CPLR 203[f].

Plaintiff would have the complaint relate back to the date of a complaint filed against him in a prior action or, alternatively, to the date of his answer in that prior action, which did not itself assert any counterclaims.  There is no authority supporting such an expansion of the relation back doctrine.

Case:  Davis v. Sanseverino, NY Slip Op 08321 (1st Dep't December 13, 2016)

Here is the decision.

Tomorrow's issue:  A request for an adjournment of the return date and for an extension of time to file an opposition.

A property owner's liability under Labor Law § 240(1).

In determining an owner's statutory liability, the issue of whether plaintiff was employed by some other entity is of no import, as long as it is undisputed that plaintiff, on the day of the accident, was allowed to work on the premises. The owner is liable for a statutory breach even if the owner did not supervise or control the work being performed, and despite the fact that the injured person injured was an independent contractor engaged to do the work.

Case:  Vera v. Low Income Mktg. Corp., NY Slip Op 08318 (1st Dep't December 13, 2016)

Here is the decision.

Tomorrow's issue:  The relation back doctrine.

Dismissal of claims pursuant to CPLR 3215(c).

Practice point:  The defendant did not waive the right to seek dismissal pursuant to CPLR 3215(c) by moving to vacate the default and for leave to serve a late answer. A defendant may waive the right to seek a dismissal by serving an answer or taking any other steps that may be seen as a formal or informal appearance. However, a CPLR 3012(c) motion for leave to serve an untimely answer does not constitute either a formal appearance, pursuant to CPLR 320, or an informal appearance, pursuant to CPLR 3012(d).

Case:  HSBC Bank USA, N.A. v. Grella, NY Slip Op 08199 (2d Dep't December 7, 2016)

Here is the decision.

Tomorrow's issue:  A property owner's liability under Labor Law § 240(1).

Plaintiff's standing in a note action.

Once defendant made plaintiff's standing an issue, it was plaintiff's burden to establish standing by showing physical possession of the note prior to commencement of the action. Plaintiff attached the note, which was annexed to the certificate of merit, to its complaint. While the averments in the certificate of merit were insufficient to establish delivery and possession, the fact that the note was in plaintiff's possession at the time of commencement, as evidenced by its attachment to the complaint, was sufficient.

Case:  Deutsche Bank Natl. Trust Co. v. Umeh, NY Slip Op 08305 (1st Dep't December 8, 2016)

Here is the decision.

Monday's issue:  Dismissal of claims pursuant to CPLR 3215(c).

An award for unpaid legal fees.

The addition of prejudgment interest to plaintiff's award for unpaid legal fees under quantum meruit was mandatory, pursuant to CPLR 5001. As plaintiff was required to move to withdraw, it was required to continue to zealously represent defendants until the court granted its motion, pursuant to Rule 1.16[d], [e], and so the award should consider any value for plaintiff's work from the time it moved by order to show cause to withdraw. This is particularly true here, where plaintiff sought, but was denied, an adjournment of the trial date, and the court took six months to grant the application.

Case:  Davidoff Hutcher & Citron LLP v. Smirnov, NY Slip Op 08296 (1st Dep't Deember 8, 2016)

Here is the decision.

Tomorrow's issue: Plaintiff's standing in a note action.

A cause of action for defamation.

The elements of the cause of action are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se.  The complaint must set forth the particular words allegedly constituting defamation, pursuant to CPLR 3016[a], and it must also allege the time, place, and manner of the false statement and specify to whom it was made.  (see Dillon v City of New York, 261 AD2d at 38).

There is a one-year statute of limitations that accrues when the allegedly defamatory statements are originally uttered, pursuant to CPLR 215[3].

Case:  Arvanitakis v. Lester, NY Slip Op 08191 (2d Dep't December 7, 2016)

Here is the decision.

Tomorrow's issue:  An award for unpaid legal fees.

A municipality's liability for allegedly defective road conditions.

A municipality that has adopted a prior written notice law is not iable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies. The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality.

The municipality's actual or constructive notice of the allegedly defective condition does not satisfy the prior written notice requirement.

Case:  Dutka v. Odierno, NY Slip Op 08196 (2d Dep't December 7, 2016)

Here is the decision.

Tomorrow's issue:  A cause of action for defamation.

The storm in progress rule.

Under the rule, a property owner is not responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.  If the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and the rule will not be applied.

A property owner who clears a sidewalk during a storm in progress must act with reasonable care and may be liable if its efforts create a hazardous condition or exacerbate a natural hazard created by the storm.  The failure of a defendant to remove all of the snow and ice, without more, does not establish that the defendant increased the risk of harm.

Case:  Aronov v. St. Vincent's Hous. Dev. Fund Co., Inc., NY Slip Op 08190 (2d Dep't December 7, 2016)

Here is the decision.

Tomorrow's issue:  A municipality's liability for allegedly defective road conditions.

Interposing a defense waived under CPLR 3211(e).

Practice point:  Defenses waived under CPLR 3211(e) can be interposed in an answer amended by leave of the court pursuant to CPLR 3025(b). In the absence of prejudice or surprise resulting directly from the delay in seeking leave, these applications will be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. A determination whether to grant  leave is within the Supreme Court's broad discretion, and the exercise of that discretion likely will not be disturbed on appeal.  In exercising its discretion, the court will consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated and whether the movant has offered a reasonable excuse for the delay.

Case:  Civil Serv. Empls. Assn. v. County of Nassau, NY Slip Op 08038 (2d Dep't November 30, 2016)

Here is the decision.

Monday's issue:  The storm in progress rule.

A forensic examination of a computer system.

The Appellate Division affirmed the denial of the motion to appoint an expert to conduct a forensic examination of plaintiff's computer system.  A court may order discovery of electronically stored information where the party seeking the discovery makes a showing that includes that the files sought can actually be obtained by the methods suggested. Here, though, defendants do not seek any particular document, but, instead, an examination of plaintiff's drives to determine whether any documents exist that have not been exchanged or obtained from third parties. Although defendants had also previously sought to determine when particular invoices were created, plaintiff has admitted that they were all created together, outside of its accounting program, and backdated, mooting that basis for forensic examination of plaintiff's system.

Case:  Shop Architects, P.C. v 25th St. Art Partners LLC, NY Slip Op 08121 (1st Dep't December 1, 2016)

Here is the decision.

Tomorrow's issue:  Interposing a defense waived under CPLR 3211(e).

Denial of a motion to join actions.

The Appellate Division affirmed denial of the motion to join three unrelated actions for trial: a motor vehicle negligence action, a premise liability action, and a medical malpractice action. When Supreme Court decided the motion, the motor vehicle negligence action was ready for trial, while the other two actions were still in discovery. Where actions are at completely different procedural postures with one ready for trial and the other in discovery, denial of a joint trial is appropriate, as it would unduly delay the resolution of the older action.

In addition, the cases involve different facts, witnesses, claims, injuries, and defendants. As such, individual issues predominate so as to preclude the direction of a joint trial.

Case:  Gillard v. Reid, NY Slip Op 08120 (1st Dep't December 1, 2016)

Here is the decision.

Tomorrow's issue:  A forensic examination of a computer system.

The preclusive effect of res judicata.

Practice point:  The doctrine of res judicata precludes a party from relitigating a claim that has been finally adjudicated on the merits. Although, generally, an order granting a motion pursuant to CPLR 3211(a)(7) is not a determination on the merits, such a determination has preclusive effect as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint.

Case:  Blake v. City of New York, NY Slip Op 08036 (2d Dep't November 30, 2016)

Here is the decision.

Tomorrow's issue:  Denial of a motion to join actions.

A motion for leave to renew.

The motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination," and must contain reasonable justification for the failure to present such facts on the prior motion.  It is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation. While law office failure can be accepted as a reasonable excuse in the exercise of the court's sound discretion, the movant must submit supporting facts to explain and justify the failure, and mere neglect is not accepted as a reasonable excuse.

Case:  Assevero v. Rihan, NY Slip Op 08032 (2d Dep't November 30, 2016)

Here is the decision.

Tomorrow's issue:  The preclusive effect of res judicata.

Ladders and the Labor Law.

Plaintiff established his entitlement to partial summary judgment on his Labor Law § 240(1) claim through witnesses' testimony that the ladder from which he was descending suddenly kicked out to the left, resulting in his fall. Contrary to the motion court's finding, plaintiff was not required to demonstrate that the ladder was defective in order to satisfy his prima facie burden.

In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident. Plaintiff was not responsible for setting up the ladder, and there was no testimony establishing the existence of any other readily available, adequate safety devices at the work site. In addition, given the undisputed testimony that the ladder kicked out because it was unsecured, the testimony that plaintiff unsafely descended from the ladder by carrying pipe fittings in his arms established, at most, contributory negligence, a defense inapplicable to a § 240(1) claim.

Case:  Fletcher v. Brookfield Props., NY Slip Op 08105 (1st Dep't December 1, 2016)

Here is the decision.

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

Judicial review of an agency's determination.

Practice point:  Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence. Substantial evidence is more than seeming or imaginary, and it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt. The standard demands only that a given inference is reasonable and plausible, not necessarily the most probable.

Case:  Matter of Clan Fitz, Inc. v. New York State Liq. Auth., NY Slip Op 07952 (2d Dep't November 23, 2016

Here is the decision.

Tomorrow's issue: Ladders and the Labor Law.

The penalty for non-compliance with discovery orders.

The Appellate Division affirmed the order which denied plaintiff's motion to strike the answer and ordered defendant to appear for deposition within 30 days or be precluded from testifying.

Practice point:  It is within the trial court's discretion to determine the appropriate penalty for noncompliance with discovery orders, and the sanction will remain undisturbed unless there has been a clear abuse of discretion.

Case:  Devlin v. Desamours, NY Slip Op 07841 (1st Dep't November 22, 2016)

Here is the decision.

Tomorrow's issue: Judicial review of an agency's determination.

A time-barred medical malpractice claim.

The Appellate Division affirmed the granting of defendants' motions for summary judgment dismissing the complaint in this action where plaintiff had presented to defendant, who noted that plaintiff's vision in his right eye was 20/400," or legally blind in that eye. Thereafter, plaintiff presented to defendant approximately once a year for an examination and a prescription for contact lenses. On each occasion, defendant noted the continued existence of nerve pallor and optic neuropathy. Plaintiff saw a neuro-ophthalmologist, who diagnosed him with a meningioma which, he stated, had caused right eye blindness. Plaintiff contends that defendant's failure to diagnose the condition sooner, or to refer him to an ophthalmologist or a neuro-ophthalmologist, constituted malpractice.

Practice point: Supreme Court properly dismissed plaintiff's action on the ground that his claims were barred by the applicable three-year statute of limitations, pursuant to CPLR 214[6]. The continuous treatment doctrine does not operate to toll the statute of limitations because defendant was not engaged in treatment of plaintiff's optic neuropathy, but performed only routine or diagnostic examinations, which, even when conducted repeatedly over a period of time, are not a course of treatment. The measurement of plaintiff's nerve pallor annually did not itself amount to continuous treatment, or reflect any agreement to monitor the condition, but was part of the routine examination.

There was one visit within the statute of limitations, but there is no contention that the failure to diagnose or refer plaintiff on that date proximately caused any further loss of vision or prevented a better outcome.

Case:  Flaherty v. Kantrowich, NY Slip Op 07837 (1st Dep't November 22, 2016)

Here is the decision.

Tomorrow's issue:  The penalty for non-compliance with discovery orders.

Opposing a motion to dismiss for lack of personal jurisdiction.

Practice point:  In opposition to a motion pursuant to CPLR 3211(a)(8) to dismiss a complaint for lack of personal jurisdiction, a plaintiff need only make a prima facie showing that the defendant is subject to the court's jurisdiction of the court. If it appears that facts essential to justify opposition to the motion exist but cannot then be stated, the court may postpone resolution of the issue of personal jurisdiction, pursuant to CPLR 3211[d].

Case:  Chen v. Guo Liang Lu, NY Slip Op 07290 (2d Dep't November 9, 2016)

Here is the decision.

Tomorrow's issue:  A time-barred medical malpractice claim.

Dismissal based on another pending action.

Practice point:  Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same. The court providently exercised its discretion in refusing to dismiss the complaint here. While this action relates to the same properties as the prior, pending action, the plaintiff's allegations here relate to different wrongs, including wrongs of a different nature and wrongs committed at different times, and different damages.

Case:  Brestin v. LaBianca, NY Slip Op 07286 (2d Dep't November 9, 2016)

Here is the decision.

Monday's issue: Opposing a motion to dismiss for lack of personal jurisdiction.

Court holiday.

The assignment of a client's recovery of litigation proceeds.

Practice point: W here attorneys are on notice of an assignment of their client's recovery of litigation proceeds and they disburse such proceeds in disregard of the assignment, they may be held liable to the assignees.

Case:  Swift Funding, LLC v. Isacc, NY Slip Op 07406 (1st Dep't) November 10, 2016

Here is the decision.

Friday's issue: Dismissal based on another pending action.

Hearsay and summary judgment.

Practice point:  Hearsay evidence is admissible to defeat a motion for summary judgment provided that it is not the only evidence.

Case:  Blanc-Kousassi v. Carrington, NY Slip Op 07404 (1st Dep't November 10, 2016)

Here is the decision.

Tomorrow's issue:  The assignment of a client's recovery of litigation proceeds .

A non-jury trial for fraud based on a service agreement.

Practice point:  The Supreme Court correctly found for the defendant, as the plaintiff did not prove by clear and convincing evidence that when the defendant signed the new service agreement, it had no intention of carrying it out.  The only evidence presented by the plaintiff in support of its contention that the defendant never intended to perform pursuant to the new service agreement was that the defendant terminated the agreement before service began, which alone was insufficient for the plaintiff to meet its burden. The plaintiff's lawyer's testimony that the defendant never intended to perform under the new service agreement was pure speculation.

Case: Best Metro. Towel & Linen Supply Co., Inc. v. Estiatorio, NY Slip Op 07285 (2d Dep't November 9, 2016)

Here is the decision.

Tomorrow's issue: Hearsay and summary judgment.

A motion to vacate a default based on lack of personal jurisdiction.

Practice point:  The Appellate Division determined that the Supreme Court properly denied the motion to vacate the default pursuant to CPLR 5015(a)(4) for lack of personal jurisdiction due to failure to serve process. Defendant's bare and unsubstantiated denial of service was insufficient to rebut the presumption of proper service established by the duly executed affidavit of service of the plaintiff's process server, or even to require a hearing.

Case:  Bank of N.Y. v. Krausz, NY Slip Op 07285 (2d Dep't November 9, 2016)

Here is the decision.

Monday's issue: A non-jury trial for fraud based on a service agreement.

Resolving contractual ambiguity.

Practice point:  When parties set down their agreement in a clear, complete document, it will be enforced according to its express terms. Extrinsic evidence may not be considered unless the document itself is ambiguous. Whether a writing is ambiguous is a question of law to be resolved by the courts. There is ambiguity if the document was written so imperfectly that it is susceptible to more than one reasonable interpretation. When a term or clause is ambiguous, the parties may submit extrinsic evidence as an aid in construction, and the resolution of the ambiguity is for the trier of fact.

Case:  Arnell Constr. Corp. v. New York City Sch. Constr. Auth., NY Slip Op 07282 (2d Dep't November 9, 2016)

Here is the decisiion.

Tomorrow's issue: A motion to vacate a default based on lack of personal jurisdiction.

A motion to dismiss a claim for sexual orientation-based discrimination in violation of the New York City Human Rights Law.

Practice point:  The Appellate Division modified the order granting the City's motion to dismiss pursuant to CPLR 3211(a)(7), reinstating plaintiff's claims relating to facially timely allegations, as well as his claim relating to the alleged ongoing policy of preventing him from searching inmates.

The Appellate Division found that plaintiff, a correction officer and captain during the relevant time periods, has adequately alleged a claim for sexual orientation-based discrimination in violation of the New York City Human Rights Law. Plaintiff's allegations that he is an openly gay man and was qualified for the positions of correction officer and captain meet the first two elements of his discrimination claim. Plaintiff's allegations that he was written up, twice suspended, and ultimately demoted meet the third element of disadvantageous treatment. Defendant's argument that plaintiff has not alleged that he was treated worse than similarly situated captains - as opposed to correction officers - is unavailing. Suspension and demotion are, prima facie, adverse employment actions. Defendant's argument is, effectively, that those actions were warranted by plaintiff's conduct while a captain, but this argument goes more properly to the second leg of the McDonnell Douglas burden-shifting framework, namely, rebuttal of a prima facie claim of employment discrimination by showing a legitimate, nondiscriminatory reason for the adverse action. It is misplaced at this early procedural stage.

Case:  James v. City of New York, NY Slip Op 07400 (1st Dep't November 10, 2016)

Here is the decision.

Tomorrow's issue: Resolving contractual ambiguity.

A motion to vacate an arbitration award.

Practice point:  The Appellate Division affirmed the denial of the petition seeking to vacate an arbitration award terminating petitioner's employment and dismissing the article 75 proceeding brought pursuant to CPLR article 75.

 The award is not subject to a heightened level of judicial scrutiny, as it was held pursuant to a voluntarily-entered collective bargaining agreement.  Petitioner failed to demonstrate that the award should be vacated under the applicable standard of review at CPLR 7511[b][1]. Under that standard, courts are not permitted to review an arbitrator's findings of fact, including credibility determinations.

Case:  Matter of Noel v. Bianco, NY Slip Op 07398 (1st Dep't November 10, 2016)

Here is the decision.

Tomorrow's issue:  A motion to dismiss a claim for sexual orientation-based discrimination in violation of the New York City Human Rights Law.

Summary judgment on account stated and quantum meruit claims.

Practice point:  The Appellate Division affirmed denial of plaintiff's motion for partial summary judgment dismissing defendant's counterclaims for account stated and quantum meruit.

Plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law, as it submitted no evidence, testimonial or otherwise, that it did not receive the invoices at issue. In addition, there are issues of fact as to whether plaintiff's protests regarding defendant's work, including the commencement of this action, related to any such invoice or were made in a reasonable time.  On the quantum meruit claim, there are issues of fact regarding whether defendant had agreed to adopt the contract of its predecessor and whether defendant performed any services not covered by that contract.

Student note:  As plaintiff did not meet its burden, the court did not address the discovery concerns raised by defendant as a basis for denial of the motion.

Case:  GPI Entertainment, LLC v. Aviv Façade Solutions, NY Slip Op 07121 (1st Dep't November 1, 2016)

Here is the decision.

Tomorrow's issue:  A motion to vacate an arbitration award.

Court holiday.

He jests at scars that never felt a wound.
                             Romeo and Juliet, Act II, Scene II

Appellate review of a nonjury trial.

Practice point:  In reviewing a determination rendered after a nonjury trial, the Appellate Division's power is as broad as that of the trial court, and the Appellate Division may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial court had the advantage of seeing the witnesses and hearing the testimony.

Case:  Bryant v. Broadcast Music, Inc., NY Slip Op 06996 (2d Dep't October 26 2016)

Here is the deision.

Monday's issue:  Summary judgment on account stated and quantum meruit claim.

Summary judgment in a rear-ended vehicle accident.

Practice point:  The motion court denied plaintiffs' motion for partial summary judgment on the issue of liability, with leave to renew upon completion of all parties' depositions, and the Appellate Division reversed. Plaintiffs established entitlement to judgment as a matter of law by submitting evidence showing that they were injured when defendants' vehicle hit their stopped vehicle from behind as they waited at a red light.  Defendants did not provide a non-negligent explanation for why their vehicle rear-ended plaintiffs' vehicle. They did not demonstrate the need for plaintiffs' depositions, since any information as to why their car rear-ended plaintiffs' vehicle reasonably is within defendants' own knowledge.

Case:  Castaneda v. DO&CO N.Y. Catering, Inc., NY Slip Op 07118 (1st Dep't November 1, 2016)

Here is the decision.

Tomorrow's issue: Appellate review of a nonjury trial.

Court holiday.

Tomorrow's issue:  Summary judgment and discovery in a rear-ended vehicle accident.

Denial of a cross-motion to strike the answer.

Practice point:  The Appellate Division affirmed the denial of the motion in this medical malpractice action, as plaintiffs failed to demonstrate that the allegedly spoliated X-ray was ever taken.  Even if there were an X-ray, plaintiffs failed to establish that it represented a key piece of evidence, especially considering defendants' expert's opinion that it would not have yielded any useful diagnostic information.

Case:  Liburd v. St. Joseph's Med. Ctr., NY Slip Op 07117 (1st Dep't November 1, 2016)

Here is the decision.

Wednesday's issue: Summary judgment and discovery in a rear-ended vehicle accident.

Summary judgment in a trip-and-fall action.

Practice point:  A defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the fall. 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.

Case:  Baldasano v. Long Is. Univ., NY Slip Op 06995 (2d Dep't October 26, 2016)

Here is the decision.

Monday's issue:  Denial of a cross-motion to strike the answer.

Moving for a discretionary change of venue.

Practice point:  Pursuant to CPLR 510(3), the movant must demonstrate that the change will promote the convenience of material witnesses and the ends of justice. The movant must set forth (1) the names, addresses, and occupations of the prospective witnesses; (2) the facts to which the witnesses will testify at trial, so that the court may judge whether the proposed evidence is necessary and material; (3) a statement that the witnesses are willing to testify; and (4) a statement that, absent the change, the witnesses would be greatly inconvenienced.

Case:  Ambroise v. United Parcel Serv. of Am., Inc., NY Slip Op 06993 (2d Dep't October 26, 2016)

Here is the decision.

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

The first-to-file rule in a legal malpractice action.

Practice point:  The Appellate Division found that the motion court improvidently exercised its discretion in declining to dismiss the claim for a declaratory judgment against defendant since there is another action pending between the parties for the same cause of action. Defendant's choice of a Federal forum for its earlier-filed legal malpractice action is entitled to comity.  Plaintiff's use of a declaratory judgment action to determine the viability of its defense, or the existence of merit, suggests forum shopping, and does not warrant a deviation from the first-to-file rule.

Case:  Wachtell, Lipton, Rosen & Katz v. CVR Energy, Inc., NY Slip Op 07091 (1st Dep't October 27, 2016)

Here is the decision.

Tomorrow's issue:  Moving for a discretionary change of venue.

Labor Law §§ 240(1) and 241(6).

Practice point:  The Appellate Division affirmed dismissal of the § 240(1) cause of action in which plaintiff alleged that he was injured while riding in one of the building's elevators.  The passenger elevator was not a safety device for protecting a construction worker from a risk posed by elevation as contemplated by the statute. However, the Appellate Division reversed dismissal of the § 241(6) claim to the extent that it was predicated on violations of Industrial Code (12 NYCRR) § 23-1.7(e). While there were no facts alleged to support a claim that plaintiff was injured as the result of a slipping hazard, plaintiff's complaint, as supplemented by his affidavit in opposition to defendant's motion, sufficiently alleged that debris was one of the causes of his fall.

Case:  Smith v. Extell W. 45th St. LLC, NY Slip Op 07089 (1st Dep't October 27, 2016)

Here is the decision.

Tomorrow's issue:  The first-to-file rule in a legal malpractice action.

A defective roadway condition.

Practice point:  The Appellate Division affirmed dismissal of the complaint alleging that a defective roadway condition caused plaintiff's bicycle accident. Plaintiff's submission of an inspection report was insufficient to show that the City had issued written acknowledgment of the defect within the meaning of Administrative Code § 7-201(c)(2), since the report identifies a defect at a different location. Awareness of one defect in the area does not constitute notice of a different particular defect which caused the accident. In addition, it was speculative for plaintiff's expert to assume that, because no permits had been issued, the City must have created the roadway defect.

Case:  Ragolia v. City of New York, NY Slip Op 06950 (1st Dep't October 25, 2016)

Here is the decision.

Tomorrow's issue:  Labor Law §§ 240(1) and  241(6).

Disqualification of an attorney as an advocate-witness.

Practice point:  The Appellate Division affirmed the disqualification where the attorney was likely to be called as a witness on significant issues of fact regarding his conduct with respect to the money that he is holding in escrow.

Student note:  Pursuant to 22 NYCRR 1200.0) rule 3.7, an attorney shall not act as an advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact. The rule is intended to provide guidance, but is not binding authority, in deciding a motion to disqualify.

Case:  Bajohr v. Berg, NY Slip Op 06797 (2d Dep't October 19, 2016)

Here is the decision.

Monday's issue: A defective roadway condition.

Vacatur in the interest of substantial justice.

Practice point:  The Appellate Division affirmed that, even though the default was unexplained, the motion court providently exercised its discretion in granting vacatur in the interest of substantial justice. The relief was justified by defendants' payment of substantially all of the amount due just two months after the order and judgment they sought to vacate. In addition, plaintiffs do not claim prejudice.

Case:  Marbru Assoc. v. White, NY Slip Op 06864 (1st Dep't October 20, 2016)

Here is the decision.

Tomorrow's issue: Disqualification of an attorney as an advocate-witness.

Service of a notice of claim by regular mail.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss for failure to serve a proper notice of claim. The notice was served by regular mail on the Transit Authority within 90 days after the claim arose, and the Transit Authority requested a 50-h hearing.  While service was noncompliant with statutory provisions, the notice was valid because it was served within the statutory period and the public corporation demanded an examination of the claimant.

Case:  Lapsley-Cockett v. Metropolitan Tr. Auth., NY Slip Op 06861 (1st Dep't October 20, 2016)

Here is the decision.

Tomorrow's issue:  Vacatur in the interest of substantial justice.

Jurisdiction over foreign corporations.

Practice point:  Pursuant to CPLR 301, the corporation is amenable to suit in New York courts if it has engaged in such a continuous and systematic course of doing business here that a finding of its presence in New York is warranted.  The exercise of jurisdiction over a foreign corporation on the basis of state law must comport with the due process requirement that the corporation's affiliations with New York are so constant and pervasive as to render it essentially at home here.

CPLR 302(a)(1) grants New York courts jurisdiction over nondomiciliaries when the action arises out of the nondomiciliaries' transaction of any business in New York.  In deciding jurisdiction under the statute, the court will determine (1) whether the defendant transacted business in New York and, if so, (2) whether the cause of action asserted arose from that transaction. In order to satisfy the second prong, there must be an articulable nexus or a substantial relationship between the defendant's New York activity and the alleged cause of action.

Case:  Fernandez v. DaimlerChrysler, A.G., NY Slip Op 06679 (2d Dep't October 12, 2016)

Here is the decision.

Tomorrow's issue:  Service of a notice of claim by regular mail.

An elevator company's duty of care.

Practice point:  If the company agrees to maintain the elevator in safe operating condition, it may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition that it should have found. In addition, a party who enters into a contract to render services may be said to have assumed a duty of care, and, where the contracting party has entirely displaced the other party's duty of safe maintenance, may be liable in tort to third persons.

Case:  Fajardo v. Mainco El. & Elec. Corp., NY Slip Op 06678 (2d Dep't October 12, 2016)

Here is the decision.

Tomorrow's issue: Jurisdiction over foreign corporations.

The correct standard on a summary judgment motion.

Practice point:  The Appellate Division affirmed that the motion court had applied the correct standard in denying defendant's motion, as defendant merely pointed to perceived gaps in plaintiff's proof, rather than submitting evidence showing why plaintiff's claims fail.

Case:  Ricci v. A.O. Smith Water Prods. Co., NY Slip Op 06741 (1st Dep't October 13, 2016)

Here is the decision.

Monday's issue:  An elevator company's duty of care.

An untimely summary judgment motion.

Practice point:  The Appellate Division reversed the granting of defendants' motion for summary judgment dismissing plaintiff's cause of action for third-party promissory estoppel. The motion court's rules required dispositive motions to be filed within 60 days of the filing of a note of issue. Defendant filed the motion papers nine days after the time to do so had expired, rendering the motion untimely, pursuant to CPLR 3212[a].

Case:  Cullity v. Posner, NY Slip Op 06738 (1st Dep't October 13, 2016)

Here is the decision.

Tomorrow's issue:  The correct standard on a summary judgment motion.

A promise to answer for another's debt.

Practice point:  The Appellate Division reversed the motion court and dismissed the complaint in this action to recover on a personal guaranty. A promise to answer for another's debt must be in writing and signed by the party to be charged, pursuant to General Obligations Law § 5-701[a][2].  Here, as the authenticity of defendant's signature was disputed and plaintiff sought to establish its authenticity through lay witness testimony, plaintiff was required to demonstrate that the witness personally observed the execution of the guaranty, or was so familiar with defendant's signature that he could readily recognize the signature as authentic. Plaintiff offered no such evidence, and did not establish that the signature was notarized or accompanied by a certificate of acknowledgment, pursuant to CPLR 4538.

Case:  A. F. Supply Corp. v. Perfect Lock & Sec., Inc., NY Slip Op 06672 (2d Dep't October 12, 2016)

Here is the decision.

Tomorrow's issue:  An untimely summary judgment motion.

Dismissal of a claim based on a fall on the stairs.

Practice point:  The Appellate Division affirmed the granting of defendants' motion for summary judgment dismissing the complaint. Defendants established prima facie that they did not cause or create the defect in the stairs that allegedly caused plaintiff to fall, and that they had no actual or constructive notice of any defect. They submitted evidence that the stairs were built in 1927 and had never been worked on thereafter, that there were no earlier reported incidents or complaints, and that no violations or citations had been issued with respect to the condition of the stairs. They also submitted their testimony that they used the stairs regularly, that no one had ever before fallen on the stairs, and that immediately after the accident they could find no defect.

In opposition, plaintiffs failed to raise an issue of fact. As to the issue of notice, the motion court was not required to consider their unsworn witness statement since the statement was the only evidence submitted on that issue. In any event, the unsworn statement is not probative of whether defendants had notice of the alleged defect.

Plaintiffs' expert's affidavit is not evidence that the stairs were out of compliance with commonly accepted safety standards or practices, as the expert did not refer to any specific safety standards or practices. Neither did the expert say that the absence of a handrail or the differential in the dimensions of the risers and treads made the stairs inherently dangerous.

Case:  Lovell v. Thompson, NY Slip Op 06736 (1st Dep't October 13, 2016)

Here is the decision.

Tomorrow's issue:  A promise to answer for another's debt.

Dismissal of a Labor Law § 240(1) claim,

Practice point:  The Appellate Division reversed the denial of defendant's motion for summary judgment and the granting plaintiffs' cross motion for partial summary judgment on liability, and dismissed the complaint. Plaintiff was struck by a pipe while it was being flushed clean with a highly pressurized mixture of air, water, and a rubber rabbit device. The movement of this mixture through the pipe failed to bring the mechanism of plaintiff's injury within the ambit of the statute because it did not involve the direct consequence of the application of the force of gravity to an object. The mixture in the pipe did not move through the exercise of the force of gravity, but, instead, was intentionally propelled through the pipe through the use of high pressure.

Case:  Joseph v. City of New York, NY Slip Op 06649 (1st Dep't October 11, 2016)

Here is the decision.

Tomorrow's issue:  Dismissal of a claim based on a fall on the stairs.

A shareholders's right to inspect the books and records.

Practice point:  In New York, shareholders have both statutory and common-law rights to inspect a corporation's books and records, so long as the shareholders seek the inspection in good faith and for a valid purpose.  A shareholder's concerns about board mismanagement and excessive expenditures and wasteful dissipation of corporate assets are, on their face, a proper purpose, even if the inspection ultimately establishes that the board had engaged in no wrongdoing.  Because the common-law right of inspection is broader than the statutory right, petitioners are entitled to inspect books and records beyond the specific materials delineated in Business Corporation Law § 624 (b) and (e).

Case:  Matter of Pokoik v. 575 Realties, Inc., NY Slip Op 06648 (1st Dep't October 11, 2016)

Here is the decision.

Monday's issue:  Dismissal of a Labor Law § 240(1) claim,

A stipulation of settlement in a divorce action.

Practice point:  A stipulation of settlement which is incorporated but not merged into a judgment of divorce retains the character of an independent contract and survives as a basis for suit.  When the terms of such a stipulation are clear and unambiguous, the general rule is that the intent of the parties is to be found within the four corners of the agreement, and not from extrinsic evidence,

Student note:  Whether an agreement is ambiguous is a question of law for the courts.

Case:  Leibowitz v. Leibowitz, NY Slip Op 06475 (2d Dep't October 5, 2016)

Here is the decision.

Tomorrow's issue: A shareholder's right to inspect the books and records.

Real Property Law and enforcing restrictive covenants.

Practice point:  Pursuant to RPAPL 1951(1),  the covenant will not be enforced if, at the time enforceability of the restriction is brought into question, it seems that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability.

Student note:  The party seeking relief from the covenant bears the burden of proof.

Case:  Blue Is. Dev., LLC v. Town of Hempstead, NY Slip Op 06465 (2d Dep't October 5, 2016)

Here is the decision.

Tomorrow's issue:  A stipulation of settlement in a divorce action.

A posttrial motion to set aside the verdict.

Practice point:  The Order granting plaintiff's posttrial motion to set aside the verdict was reversed, on the law and the facts, the jury verdict was reinstated, and the complaint was dismissed.

Plaintiff had presented to defendant-dentists, and then, two years later, a tumor was discovered in the lower left side of plaintiff's mouth. Plaintiff alleges that the tumor should have been detected on the bitewing x-ray taken at defendants' office two years earlier.

At trial, the jury was presented with conflicting evidence as to whether there were sufficient grounds to investigate and take further x-rays. It was further asked to determine the credibility of the defense expert, who plaintiff's trial counsel asserted lied about the issues in the case. The jury's verdict implicitly rejected that contention, and resolved the conflicting testimony in defendants' favor.  In the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict, with particular deference given to jury verdicts in favor of defendants in tort cases.

Student note:  The verdict was based on a fair interpretation of the evidence and should not have been disturbed.

Case:  Cordero v. Young, NY Slip Op 06543 (1st Dep't October 6, 2016)

Here is the decision.

Tomorrow's issue:  Real Property Law and enforcing restrictive covenants.

Court holiday.

Tomorrow's issue:  A posttrial motion to set aside the verdict.

Wheel stops and the risk of harm.

Practice point:  While a property owner has a duty to maintain its premises in a reasonably safe manner for its patrons, there is no duty to protect or warn against an open and obvious condition which is not inherently dangerous.  A wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm.

Case:  Lacerra v. CVS Pharmacy, NY Slip Op 06474 (2d Dep't October 5 2016)

Here is the decision.

Tuesday's issue: A posttrial motion to set aside the verdict.

A trivial defect is nonactionable.

Practice point:  The height differential between the marble step and the bull-nosing on which plaintiff caught her heel, causing her to fall, was one-eighth to one-quarter of an inch. This defect, as a matter of law, did not constitute a trap or nuisance, nor were the intrinsic characteristics or the surrounding circumstances such that they magnified the danger posed by this otherwise insignificant defect. So, this defect was trivial as a matter of law, and, as a result, nonactionable.

Case:  Atkinson v. Key Real Estate Assoc., LLC, NY Slip Op 06160 (1st Dep't September 27, 2016)

Here is the decision.

Tomorrow's issue:  Wheel stops and the risk of harm.

Prima facie tort.

Practice point:  The elements of a cause of action alleging prima facie tort are: (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or a series of acts which would otherwise be lawful. To make out a claim sounding in prima facie tort, a plaintiff must have suffered specific and measurable loss, which requires an allegation of special damages, that is, the loss of something having economic or pecuniary value.

Student note:  Prima facie tort provides a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy. It does not to provide a catch-all alternative for every cause of action which cannot stand on its own.

Case:  Berland v.. Chi, NY Slip Op 06188 (2d Dep't September 28, 2016)

Here is the decision.

Tomorrow's issue: A trivial defect is nonactionable.

A claim for injuries allegedly sustained while conducting a repair work estimate.

Practice point:  The Appellate Division reversed the order dismissing the complaint in this action where plaintiff had gone to defendant's property to prepare an estimate to repair the back porch. While plaintiff was standing on the porch, it collapsed and plaintiff was injured.

Student note:  Since the defendant failed to establish prima facie entitlement to judgment as a matter of law, it is not necessary for the court to review the sufficiency of plaintiff's opposition papers.

Case:  Arcabascio v. Bentivegna, NY Slip Op 06187 (2d Dep't September 28, 2016)

Here is the decision.

Tomorrow's issue: Prima facie tort.

Summary judgment on a legal malpractice claim.

Practice point:  The Appellate Division affirmed denial of defendant law firm's motion to dismiss. The bank made a prima facie showing that the law firm departed from the standard of care in connection with the closing of a residential real estate mortgage loan to plaintiff by failing to advise that the property lacked a certificate of occupancy, failing to advise of the risk of funding the loan under these circumstances, and failing to confirm that plaintiff contributed 3% of her own funds toward closing, a condition of the loan. The law firm, which did not submit an expert's opinion in opposition, failed to raise a triable issue.

Student note:  The motion court properly considered the affidavit of the bank's legal expert concerning the duty of care an attorney owes to a mortgage-lender client.  The bank's closer, who was responsible for ensuring that the closing documents were in order, clearly had knowledge of the facts, and, therefore, was qualified to submit an affidavit in support of the bank's summary judgment motion, pursuant to CPLR 3212[b]. The closer's lack of knowledge concerning the underwriting process is irrelevant to the claim.

Case:  Benitez v. United Homes of N.Y., LLC, NY Slip Op 06153 (1st Dep't September 27, 2016)

Here is the decision.

Tomorrow's issue: A claim for injuries allegedly sustained while conducting a repair work estimate.

A dismissed retaliation claim.

Practice point:  The Appellate Division affirmed the dismissal of plaintiff's retaliation claim under federal and state civil rights law and under the New York City Human Rights Law, finding that the amended complaint failed to provide a basis for a reasonable jury to conclude that the job offer that was extended to plaintiff was rescinded because of his inquiry to the Equal Employment Opportunity Commission. There is no dispute that the job offer was re-confirmed, even after defendant City employees were aware of the inquiry.

There also is no dispute that plaintiff failed to complete the routine paperwork stating that such a failure might result in his not being appointed to the position that was offered. Plaintiff failed to allege facts sufficient to demonstrate a causal connection between the adverse employment action and his EEOC inquiry, or that the stated reason for rescinding the job offer was a pretext for impermissible retaliation.

Student note:  The Appellate Division noted that, while the order appealed from did not expressly address plaintiff's retaliation claim, it unambiguously granted defendants' motion to dismiss in its entirety.  CPLR 2219(a) provides the court with broad leeway as to the form of an order, and the parties addressed the claim in their motion papers.

Case:  Ruderman v. City of New York, NY Slip Op 06148 (1st Dep't September 27, 2016)

Here is the decision.

Monday's issue:  Summary judgment on a legal malpractice clai

Failure to state a cause of action for fraudulent inducement and fraud.

Practice point:  A complaint fails to state a cause of action for fraudulent inducement and fraud to the extent that it relies on representations that are non-actionable statements of either intent or belief.

Case:  GSO Coastline Credit Partners LP v. Global A&T Electronics Ltd., NY Slip Op 06143 (1st Dep't September 27, 2016)

Here is the decision.

Tomorrow's issue:  A dismissed retaliation claim.

An action on an account stated.

Practice point:  An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and the balance owing. The agreement is implied where a defendant retains bills without objection within a reasonable period of time, or makes partial payment on the account.

Case:  Clean Earth of N. Jersey, Inc. v. Northcoast Maintenance Corp., NY Slip 06056 (2d Dep't September 21, 2016)

Here is the decision.

Tomorrow's issue:  Failure to state a cause of action for fraudulent inducement and fraud.

Claims sounding in punitive damages and attorneys' fees.

Practice point:  Whilea plaintiff may pray for relief in the form of punitive damages, the claim may not be pled as a separate cause of action. Similarly, while a plaintiff, if successful, may be entitled to attorneys' fees under the City's Human Rights Law, a claim for attorneys' fees may not be maintained as a separate cause of action.

Case:  La Porta v. Alacra, Inc., NY Slip Op 06113 (1st Dep't September 22, 2016)

Here is the decision.

Tomorrow's issue: An action on an account stated.

Judicial estoppel in a matrimonial action.

Practice point:  Sometimes called the doctrine of inconsistent positions, judidical estoppel precludes a party who assumed a certain position in a prior legal proceeding and who secured a favorable judgment from assuming a contrary position in another action simply because that party's interests have changed.

The doctrine is applicable in matrimonial actions, but in this case the Appellate Division held that the defendant was not judicially estopped from seeking an award of maintenance, as the parties were still married at the time the bankruptcy petitions were filed, and the defendant was not required to list any possible future rights to maintenance payments in the bankruptcy petitions, which were filed years before the judgment of divorce was issued.

Case:  Canzona v. Canzona, NY Slip Op 06055 (2d Dep't September 21, 2016)

Here is the decision.

Tomorrow's issue:  Claims sounding in punitive damages and attorneys' fees.

Labor Law liability for a fall from a scaffold or ladder.

Practice point:  Liability under § 240(1) depends upon whether the injury resulted from the failure to use, or the inadequacy of, a device within the purview of the statute. So, there can be no liability under § 240(1) when there is no violation and the worker's actions are the sole proximate cause of the accident.

Case:  Albino v. 221-223 W. 82 Owners Corp., NY Slip Op 05953 (1st Dep't September 8, 2016)

Here is the decision.

Monday's issue:  Judicial estoppel in a matrimonial action.

A defendant files for summary judgment before plaintiff commences discovery.

Practice point:  Plaintiff's failure to commence discovery during the ten months between defendant's answer and defendant's motion to dismiss, without more, does not warrant granting the motion, pursuant to CPLR 3212(f), where the existing record does not negate plaintiff's theory of liability.

Case:  Gomez v. Kozot Realty Corp., NY Slip Op 06046 (1st Dep't September 15, 2016)

Tomorrow's issue: Labor Law liability for a fall from a scaffold or ladder.

Denial of defendant's summary judgment motion.

Practice point:  The Appellate Division reversed, and denied the motion to dismiss.  In support of their motion, defendants submitted, among other things, transcripts of the deposition testimony of both  plaintiff and defendant-driver. In those transcripts, the parties gave differing accounts of how the accident occurred, and there were issues of fact and credibility that could not be resolved on the motion. Given these issues, defendants failed to establish their prima facie entitlement to judgment as a matter of law.

Student note:  Since defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, the motion is denied without consideration of the sufficiency of plaintiff's opposition papers.

Case:  Chimbo v. Bolivar, NY Slip Op 05969 (2d Dep't September 14, 2016)

Here is the decision.

Tomorrow's issue:  A defendant files for summary judgment before plaintiff commences discovery.

A claim of retaliation under the State and City Human Rights Laws.

Practice Point:  The Appellate Division found that plaintiff stated the cause of action where he alleges that he was passed over for promotion because of his accent. The Appellate Division noted that plaintiff's accent is inextricably bound to his national origin. In addition, plaintiff alleges that defendants subjected him to excessive scrutiny as a result of his persistent applications for promotion, and that this led directly to his suspension and termination.

Case:  St. Jean Jeudy v. City of New York, NY Slip Op 06045 (1st Dep't September 15, 2016)

Here is the decision.

Tomorrow's issue:  Denial of defendant's summary judgment motion.

Liability for negligent renovation of a party wall.

Practice point:  A property owner may be liable where, during renovation, the party wall is altered to the detriment of the adjoining property owner.  Where it is alleged that the damage was to the structural aspect of the wall, the property owner could be liable for weakening the wall, regardless of any care in performing the work. In addition, the property owner causing the alterations may be liable for trespass where the wall is penetrated.

Case:  Ehrenberg v. Regier, NY Slip Op 05938 (1st Dep't September 1, 2016)

Here is the decision.

Tomorrow's issue:  A claim of retaliation under the State and City Human Rights Laws.

The doctrine of laches.

Practice point:  Laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party.  Prejudice may be demonstrated by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay.

Case:  Diecidue v. Russo, NY Slip Op 05907 (2d Dep't August 31, 2016)

Here is the decision.

Monday's issue:  Liability for negligent renovation of a party wall.

A late notice of claim is deemed timely served.

Practice point:  The Appellate Division determined that the Supreme Court providently exercised its discretion in granting the petition and deeming the late notice of claim to be timely served, pursuant to General Municipal Law § 50-e[5]. The petitioner demonstrated a reasonable excuse for the delay in serving a notice of claim, namely, her physical incapacity and her attorney's investigation into the claim.  In addition, the petitioner adequately demonstrated that the defendant would not be substantially prejudiced by the delay.

Case:  Matter of Pazienza v. Westchester County Health Care Corp., NY Slip Op 05863 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  The doctrine of laches.

Judicial review under the New York Human Rights Law.

Practice point:  Under the statute, the scope of judicial review is extremely narrow and is confined to the consideration of whether the New York State Division of Human Rights' determination is supported by substantial evidence in the record.  Substantial evidence is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.  While it is more than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence, or evidence beyond a reasonable doubt.

Student note:  A court may not weigh the evidence or reject agency's determination where the evidence is conflicting and there is room for choice.

Case:  Matter of Briggs v. New York State Div. of Human Rights, NY Slip Op 05860 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  A late notice of claim is deemed timely served.

Legal malpractice.

Practice point:  To recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. In order to establish causation, a plaintiff must show that, but for the lawyer's negligence, he or she would have prevailed in the underlying action or would not have incurred any damages.

Student note:  In order 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:   Silverman v. Potruch & Daab, LLC, NY Slip Op 05857 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Judicial review under the New York Human Rights Law.

A 306-b motion to extend the time to serve.

Practice point:  The Appellate Division affirmed the granting of that branch of plaintiffs' cross motion, pursuant to CPLR 306-b and in the interest of justice, to extend the time to serve defendant. While the action was timely commenced, the statute of limitations had run when plaintiffs cross-moved for relief.  Plaintiffs re-served defendant within a reasonable time after learning that defendant was challenging service as defective, and defendant had actual notice of the action within 120 days of its commencement.

Case:  Rivera v. Rodriguez, NY Slip Op 05855 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Legal malpractice.

Liability for an independent contractor's negligent acts.

Practice point:  A party who retains an independent contractor, as distinguished from an employee or servant, is not liable for the independent contractor's negligent acts.  There are exceptions to this general rule, one of which is applicable where the party is under a duty to keep the premises safe. In that instance, as the legal duty is non-delegable, the party is vicariously liable for the the independent contractor's fault. 

Case:  Pesante v. Vertical Indus. Dev. Corp., NY Slip Op 05854 (2d Dep't August 24, 2016)

Here is the decision.

Monday's issue:  A 306-b motion to extend the time to serve.

A defendant-movant's burden in a negligence action.

Practice point:  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.

Student note:  There can be more than one proximate cause of an accident, and, generally, it is for the trier of fact to determine the issue of proximate cause.

Case:  Hurst v. Belomme, NY Slip Op 05849 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Liability for an independent contractor's negligent acts.

Reformation of a contract.

Practice point:  A party seeking reformation by reason of mistake must establish, with clear and convincing evidence, that the contract was executed under mutual mistake or a unilateral mistake induced by the other party's fraudulent misrepresentation. In a case of mutual mistake, the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement.

Student note:  Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but to restate the intended terms of an agreement when the writing that memorializes that agreement is at odds with the parties' intent.

Case:  Gunther v. Vilceus, NY Slip Op 05847 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  A defendant-movant's burden in a negligence action.

Establishing standing in a mortgage foreclosure action.

Practice point:  A plaintiff establishes its standing by demonstrating that, when the action is commenced, it is either the holder or assignee of the underlying note.  Either a written assignment or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt.

Student note:  Where a defendant raises the issue of standing, a plaintiff must prove its standing in order to be entitled to relief.

Case:  Deutsche Bank Natl. Trust Co. v. Cunningham, NY Slip Op 05845 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Reformation of a contract.

Court holiday.

An alleged breach of a construction contract.

Practice point:  A construction contract is breached, and the resulting cause of action accrues, upon substantial completion of the work, even if some work is completed at a later date.

Case:  W&W Steel, LLC v. Port Auth. of N.Y. & N.J., NY Slip Op 05900 (1st Dep't August 25, 2016)

Here is the decision.

Tuesday's issue:  Establishing standing in a mortgage foreclosure action.

Setting aside a foreclosure sale.

Practice point:   In the exercise of its equitable powers, a court may aside the sale where there is evidence of fraud, collusion, mistake, or misconduct that casts suspicion on the fairness of the sale.  Evidence of a unilateral mistake at the sale, without more, is not a basis to invalidate the sale if it was otherwise lawfully conducted.

Student note:  RPAPL 231(6), recites, in pertinent part, that a court, within one year after a foreclosure sale, "may set the sale aside for failure to comply with the provisions of this section as to the notice, time or manner of such sale if a substantial right of a party was prejudiced by the defect."

Case:  Clinton Hill Holding 1, LLC v. Kathy & Tania, Inc., NY Slip Op 05844 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  An alleged breach of a construction contract.

A fall from an elevated display platform.

Practice point:  The Appellate Division reversed the motion court and dismissed the complaint in this action where plaintiff alleges that she was injured when she fell off an elevated display platform in defendants' store. Defendants submitted evidence demonstrating that the platform and steps leading to the platform were not dangerous conditions, as photographs showed that the steps of the platform were clearly demarcated with thick black lines which contrasted with the light color of the floorboards. The evidence also established that the steps were lighted and free of debris.

In addition, plaintiff testified that she turned and stepped without looking down because she was looking for a sales associate, and that the steps played no part in her fall.

Student note:  Defendants met their initial burden of showing that they neither created a dangerous condition at the platform and steps, nor had actual or constructive notice of such a condition.

Case:  Pinkham v. West Elm, NY Slip Op 05899 (1st Dep't August 25, 2016)

Here is the decision.

Tomorrow's issue:  Setting aside a foreclosure sale.

Dismissal based on the belated disclosure of a videotape.

Practice point:  The Appellate Division reversed the Supreme Court and reinstated the complaint in this action where plaintiff allegedly tripped and fell on wires laid across the floor at a banquet hall leased and operated by defendant.

At her deposition, plaintiff testified that a video was shot of the party. During discovery, when defendants requested production of any photographs taken at the time of the alleged accident, plaintiff responded that she did not have any. At trial, during cross-examination, plaintiff testified that, on the previous day, she had searched her home and found a video of the party. Plaintiff gave the video to her attorney around noon that day but the attorney did not notify the court and defendants until nearly 4:00 p.m., during plaintiff's cross-examination.

The Appellate Division found that, under these circumstances, the court abused its discretion in dismissing the complaint due to plaintiff's belated disclosure of the video. While CPLR 3101(i) requires, upon demand, disclosure of "any films, photographs, video tapes or audio tapes," there is insufficient evidence of willful or contumacious conduct on plaintiff's part, or of prejudice to defendant, so as to warrant the dismissal of the complaint in the midst of the jury trial.

There was no court order directing plaintiff to produce the video, and defendant's discovery demands only requested that plaintiff produce photographs.  Plaintiff did not seek to introduce the edited video, which did not show her fall, at trial. In fact, she was willing to consent to its preclusion, the striking of her testimony concerning its existence, and a curative instruction, even though she believed the video to be favorable to her because it showed a cord across the floor and one of defendant's principals standing in the vicinity.

Student note:  Prior to trial, the parties entered into a high-low agreement as to damages. As the dismissal was reversed, the agreement will be enforced at trial.

Case:  Cox v. Grand Slam Banquet Hall, NY Slip Op 05897 (1st Dep't August 25, 2016)

Here is the decision.

Tomorrow's issue:  A fall from an elevated display platform.

Aggrieved parties and the right to appeal.

Practice point:  The order was not based on defendant's default but on the merits, after consideration of the parties' arguments. Therefore, defendant is an aggrieved party and may appeal the motion court's determination.

Student note:  CPLR 5511 limits the right to appeal to aggrieved parties.

Case:  Abushihadeh v. Bravo, NY Slip Op 05843 (2d Dep't August 24, 2016)

Here is the decision.

Tomorrow's issue:  Dismissal based on the belated disclosure of a videotape.

Alleged ineffective assistance of counsel.

Practice point:  In a civil litigation, an attorney's errors or omissions are binding on the client, and, in the absence of extraordinary circumstances, the court will not entertain a claim of ineffective assistance of counsel.

Case:  HBJOBaron Assoc. v. Leahing, NY Slip Op 05793 (2d Dep't August 17, 2016)

Here is the decision.

Monday's issue:  Aggrieved parties and the right to appeal.

Company policy manuals as enforceable obligations.

Practice point:  Provisions in company policy manuals that can be amended or withdrawn unilaterally do not constitute enforceable obligations owing from an employer to its employees, absent a showing of the employer's regular practice of providing the benefits now claimed, the employee's knowledge of the practice, and the employee's reliance upon the practice as evidenced by accepting or continuing employment as a result thereof.

Case:  Cohen v. National Grid USA, NY Slip Op 05786 (2d Dep't August 17, 2016)

Here is the decision.

Tomorrow's issue:  Alleged ineffective assistance of counsel.

Waiving the issue of standing in a mortgage foreclosure action.

Practice point:  When the homeowner did not raise the affirmative defense of standing in his answer or in a pre-answer motion to dismiss the complaint, he waived the issue. Where the defendant in a mortgage foreclosure action waives the issue of standing, the plaintiff need not establish its standing in order to demonstrate its prima facie entitlement to judgment as a matter of law.

Student note:  Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default.

Case:  Bank of N.Y. Trust Co., N.A. v. Chiejina, NY Slip Op 05784 (2d Dep't August 17, 2016)

Here is the decision.

Tomorrow's issue:  Company policy manuals as enforceable obligations.

Vacating a default pursuant to CPLR 5015.

Practice point:  CPLR 5015(a)(1) requires a movant seeking to vacate a default to move within one year of entry of the default and to show both a reasonable excuse for the default and a meritorious defense.  Here, the Appellate Division found that law office failure was a reasonable excuse, noting that, at oral argument, the movant conceded that, in this e-filed case, their office failed to regularly check its email and, as a result, was unaware of the motion court's order that gave rise to the default.  This excuse was sufficiently particularized, and there is no evidence of wilful or contumacious conduct.

Additionally, movant demonstrated a meritorious defense. Petitioner was a probationary employee who was arrested and charged with DWI while still on probationary status. His commercial driver's license, a requirement for a sanitation worker, was suspended and then revoked as a result. Several disciplinary complaints were filed as a result of this incident, and he was subsequently terminated.

Student note:  A probationary employee may be discharged without a hearing or a statement of reasons, in the absence of a demonstration that the termination was made in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law.

Case:  Matter of Rivera v. New York City Dept. of Sanitation, NY Slip Op 05837 (1st Dep't August 18, 2016)

Tomorrow's issue:  Waiving the issue of standing in a mortgage foreclosure action.

Non-employers, joint employers, and employment discrimination claims.

Practice point:  In determining whether an ostensible non employer is actually a joint employer for purposes of employment discrimination claims under the State and City Human Rights Laws,  Federal District courts in New York have applied the "immediate control" test.  Under the test, there is a joint employer relationship where there is sufficient evidence that the defendant had immediate control over the other company's employees, especially the defendant's control in setting the terms and conditions of the employee's work.

Student note:  In applying the test, relevant factors include commonality of hiring, firing, discipline, pay, insurance, records, and supervision,  The most important factor is the extent of the employer's right to control the means and manner of the worker's performance.

Case:  Brankov v. Hazzard, NY Slip Op 05778 (1st Dep't August 11, 2016)

Here is the decision.

Tomorrow's issue:  Vacating a default pursuant to CPLR 5015.

CPLR 3126 and discovery violations.

Practice point:  The drastic remedy of striking a pleading pursuant to CPLR 3126 will not be imposed unless the failure to comply with discovery demands or orders is willful and contumacious. Similarly, precluding a party from presenting evidence requires a showing of willful and contumacious conduct. Such conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply over an extended period of time.

Student note:  The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of the motion court.

Case:  Cioffi v. S.M. Foods, Inc., NY Slip Op 05741 (2d Dep't August 10, 2016)

Here is the decision.

Monday's issue: Non-employers, joint employers, and employment discrimination claims.

Statue of limitations on an alleged violation of Rule 105 of Regulation M of the Securities Exchange Act.

Practice point:  A breach of fiduciary duty claim based on an alleged violation of Rule 105 of Regulation M of the Securities Exchange Act of 1934 is subject to a three-year rather than a six-year statute of limitations.

Student note:  The issue of the statute of limitations may be considered for the first time on appeal because it does not depend on a matter outside the record.

Case:  Beach v. Touradji Capital Mgt., LP, NY Slip Op 05757 (1st Dep't August 11, 2016)

Here is the decision.

Tomorrow's issue: CPLR 3126 and discovery violations.

Oral agreements and indefiniteness.

Practice point:  An oral agreement may be enforceable as long as the terms are clear and definite and the conduct of the parties evinces mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. However, not all terms of a contract need be fixed with absolute certainty, and courts will not apply the doctrine of indefiniteness to defeat the reasonable expectations of the parties in entering into the contract.

Student note:  Where there may exist an objective method for supplying the missing terms needed to calculate the alleged compensation owed to a plaintiff, a claimed oral agreement is not, as a matter of law, unenforceable for indefiniteness.

Case:  Kramer v. Greene, NY Slip Op 05776 (1st Dep't August 11, 2016)

Here is the decision.

Tomorrow's issue: Statue of limitations on an alleged violation of Rule 105 of Regulation M of the Securities Exchange Act.

A chain collision accident.

Practice point:  In a chain collision accident, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle.

Student note:  A driver shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway, pursuant to Vehicle and Traffic Law § 1129 [a]. So, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision.

Case:  Chuk Hwa Shin v. Correale, NY Slip Op 05749 (2d Dep't August 10, 2016)

Tomorrow's issue:  Oral agreements and indefiniteness.

Assumption of the risk in a zip-line accident.

Practice point:  The Appellate Division reversed the granting of the motion to dismiss, noting that if plaintiff had merely lost his grip and fallen off the seat while riding the zip line, he would be barred from recovery because that is an inherent risk of zip-lining. However, plaintiff's claim is not that he fell victim to such a common hazard. Rather, it is that the zip line was negligently constructed by defendant and that he had no way of knowing that. A person cannot be said to have assumed the risk of being injured by faulty equipment when he was unaware that the equipment was faulty.

Student note:  A participant in an athletic or recreational activity assumes known risks and relieves a defendant of any duty to safeguard him or her from those risks.  However, a participant only 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. Whether a plaintiff was aware of the risk is key to determining if he or she assumed it, and this can only be assessed against the background of the skill and experience of the particular plaintiff. In addition, sporting participants will not be deemed to have assumed concealed or unreasonably increased risks.

Case:  Zelkowitz v. Country Group, Inc., NY Slip Op 05732 (1st Dep't August 4, 2016)

Here is the decision.

Tomorrow's issue:  A chain collision accident.

A post-appeal motion for leave to renew.

Practice point:  On a post-appeal motion for leave to renew, the movant bears a heavy burden of showing due diligence in presenting the new evidence to the Supreme Court.  The motion is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

Student note:  Pursuant to CPLR 2221(e)(2), a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination . . . and . . . shall contain reasonable justification for the failure to present such facts on the prior motion."

Case:  Priant v. New York City Tr. Auth., NY Slip Op 05707 (2d Dep't August 3, 2016)

Here is the decision.

Monday's issue:  Assumption of the risk in a zip-line accident.

Traffic lights and municipal liability.

Practice point:  The installation of a traffic control signal, where it had not previously existed, is a discretionary governmental function that does not give rise to state liability. However, liability is imposed where there is a failure properly to maintain an already established traffic ligh, and where that failure was a proximate cause of the accident.

Student note:  The state has a non-delegable duty to maintain the roadway in safe condition.

Case:  Chang v. City of New York, NY Slip Op 05728 (1st Dep't August 4, 2016)

Here is the decision.

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

Venue in an action involving a domestic corporation.

Practice point:  The venue of an action is proper in the county in which any of the parties resided at the time of commencement. The sole residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation, despite its maintenance of an office or facility in another county.

Student note:  To prevail on a motion pursuant to CPLR 510(1) to change venue, a defendant must show that the plaintiff's choice of venue is improper, and also that the defendant's choice of venue is proper.

Case:  Kidd v. 22-11 Realty, LLC, NY Slip Op 05705 (2d Dep't August 3, 2016)

Here is the decision.

Tomorrow's issue:  Traffic lights and municipal liability.