Perfecting an appeal by the appendix method.

Practice point:  The appeal was dismissed because the appellant failed to provide the Appellate Division with an appendix containing copies of the pleadings, the motion papers, and all of the affidavits and exhibits necessary to review the order appealed from.

Student note:  Pursuant to CPLR 5528[a][5] and 22 NYCRR 670.10-b[c][1], an appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits.

Case: Daniels v. Donohue, NY Slip Op 02049 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  A successful motion for leave to amend.

An account stated.

Practice point:  To establish its prima facie entitlement to judgment as a matter of law to recover on an account stated, a plaintiff must show that the defendant received the plaintiff's account statements for payment and retained these statements for a reasonable period of time without objection.

In the case of existing indebtedness, the agreement may be implied as well as express. An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account.

Student note:  An account stated is an agreement between the parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due.

Case:  Cach, LLC v. Aspir, NY Slip Op 02046 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Perfecting an appeal by the appendix method.

Leave to amend an answer.

Practice point:  The Appellate Division modified the order denying defendant's summary motion to dismiss in this action to recover damages for medical malpractice and lack of informed consent, granting leave to amend the answer to include the affirmative defense of discharge in bankruptcy.  The defense is neither patently insufficient nor palpably devoid of merit, and there would be little or no prejudice resulting from any delay in granting leave to amend.

Student note: Even when a defense is waived under CPLR 3211(e), it can be interposed in an answer amended by leave of court pursuant to CPLR 3025(b), as long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay, and is not palpably insufficient or patently devoid of merit.

Case:   Dixon v. Chang, NY Slip Op 01797 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  An account stated.

Theories of liability and supplemental bills of particular in a medical malpractice action.

Practice point:  Defendants made a prima facie showing, via expert opinion, that they did not depart from good and accepted medical practice in allowing plaintiff-mother to continue her pregnancy to term and inducing delivery in the 41st week, and that there was no causal connection between any alleged departure and the plaintiff-infant's condition. However, in opposing defendants' summary judgment motion, plaintiffs raised triable issues of fact, and the Appellate Division affirmed denial of defendants' motion. Plaintiffs did not assert a new theory of liability in their opposition papers. Plaintiffs' expert asserted only that the departures from good and accepted medical practice may have occurred as far back as the mother's 37th week of pregnancy, when she started showing signs of gestational hypertension, and while she was already under defendants' care.

Student note:  Although the initial bill of particulars stated the dates of the alleged malpractice]incorrectly, the supplemental bill made clear that the allegations related to the treatment of the mother before delivery.  In addition, the expert disclosure also clarified the dates in issue.

Case:  Destiny H. v. Bronx Lebanon Hosp., NY Slip Op 02033 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Leave to amend an answer.

An attorney's charging lien.

Practice point:  The attorney fulfilled an obligation under the retainer agreement to obtain a judgment on the plaintiff's behalf, and the judgment included a specific award of attorneys' fees and expenses. The Supreme Court determined that those fees were reasonable based upon the amount of time the attorney spent on the case, and the Appellate Division found no basis to vacate the attorney's charging lien against the award of attorneys' fees and expenses specified in the judgment.

However, the Appellate Division found that the plaintiff submitted evidence in support of its contention that it thereafter discharged the attorney for cause, owing to his delay and recalcitrance in seeking enforcement of the judgment. The attorney failed to adduce evidence to raise a triable issue of fact to rebut the plaintiff's claim. Therefore, the Appellate Division determined that the Supreme Court should have granted that branch of the plaintiff's motion which was to vacate a charging lien pursuant to Judiciary Law § 475 for any sums recovered from the defendants in excess of the fees originally awarded.

Student note: A client has an absolute right, at any time, to terminate the attorney-client relationship by discharging the attorney, with or without cause. If an attorney's representation terminates on mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains the right to enforce the statutory lien. If the discharge is for cause, the attorney has no right to compensation, notwithstanding a specific retainer agreement. If there are conflicting claims as to whether an outgoing attorney was discharged with or without cause, there must be a hearing to resolve the dispute.

Case:  CPMI, Inc. v. Kolaj, NY Slip Op 01795 (2d Dep't 2016)

Here is the decision.

Monday's issue: Theories of liability and supplemental bills of particulars in a medical malpractice action.

A court's sua sponte dismissal of a claim.

Practice point:  The Appellate Division reversed and remitted, before a different judge, finding that the Supreme Court erred in, sua sponte, directing the dismissal of the plaintiff's complaint and discharge of the notice of pendency against the property at issue for lack of standing. The Appellate Division said that the Supreme Court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint and discharge of the notice of pendency. Since the defendants did not answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing. In any event, lack of standing is not a jurisdictional defect and does not warrant a court's sua sponte dismissal of a complaint.

Student note:  A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances warrant dismissal.

Case:  Consumer Solutions, LLC v. Charles, NY Slip Op 01794 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  An attorney's charging lien.

Absolute privilege as to statements made in a judicial proceeding.

Practice point:  The Appellate Division affirmed the granting of the motion to dismiss the complaint which alleges that the defendant, who was counsel for the executor in a probate proceeding, made allegedly defamatory statements in an affirmation in support of a motion to compel a continued examination pursuant to Surrogate's Court Procedure Act § 1404. The statements concerned the very subject of the probate proceeding, namely, the contested last will. Therefore, the statements were absolutely privileged as a matter of law, and cannot be the basis for a defamation action.

Student note:  An absolute privilege is accorded statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court, provided that the statements are n some way pertinent to the issue in the proceeding . The pertinency standard is extremely liberal and extends to anything that may possibly or even plausibly be relevant.  The privilege attaches to all statements made in or out of court,  regardless of the motive for which they were made.

Case:  Brady v. Gaudelli, NY Slip 01793 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  A court's sua sponte dismissal of a claim.

A fall from a ladder and a Labor Law § 240(1) cause of action.

Practice point:  The Appellate Division affirmed that plaintiff made a prima facie showing of entitlement to summary judgment as to liability by submitting his own testimony that the ladder on which he was standing to perform his work wobbled, and that both he and the ladder fell to the ground as he descended it to figure out why it had wobbled.

Student note:  Plaintiff was not required to offer proof that the ladder was defective.

Case:  Ocana v. Quasar Realty Partners L.P., NY Slip Op 01902 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Absolute privilege as to statements made in a judicial proceeding.

Statute of frauds and quantum meruit.

Practice point:  The statute of frauds does not bar an oral agreement that is terminable at will and, therefore, could possibly be performed within one year.

Student note:  A quantum meruit claim will not be dismissed in the absence of a determination that there was an express contract governing plaintiff's compensation.

Case:  Naughton v. West Side Advisors, LLC, NY Slip Op 01900 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A fall from a ladder and a  Labor Law § 240(1) cause of action.

A cause of action for defamation.

Practice point:  The Appellate Division found that plaintiff, an attorney, could not prevail on his claim to recover damages for defamation, and granted the motion to set aside the jury verdict. The cause of action was based on allegations that the wife-defendant told her husband-defendant that plaintiff threatened her and their children, and that the defendants told third parties about the threat.

The Appellate Division stated that because the defendants are spouses, the communications between them do not constitute publication. Therefore, even if the wife's statement were a substantial factor in causing plaintiff to lose legal work, that statement is not actionable. In addition, plaintiff failed to prove that, as a result of defendants' statements, he suffered special harm, namely, the loss of something having economic or pecuniary value.

Student note:  Pursuant to CPLR 4401 or 4404, a motion for judgment as a matter of law may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the jury's conclusion, and no rational process by which the jury could find in favor of the nonmoving party.  In considering the motion, the court must afford the nonmovant every inference which may properly be drawn from the facts presented, and the facts themselves must be considered in a light most favorable to the nonmovant.

Case:  Gaccione v. Scarpinato, NY Slip Op 01640 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Statute of frauds and quantum meruit.

Motions to dismiss for failure to prosecute.

Practice point:  The Appellate Division reversed and denied the individual defendant's motion, finding that plaintiff's failure to file a note of issue within 90 days of the CPLR 3216 demand was the result of defendant's non-compliance with the notices to take its employee's deposition and for an inspection of its premises.

Student note:  The corporate defendant's cross motion to dismiss was denied, as it did not serve its own 90-day notice.

Case:  Walker v. Gibbons, NY Slip Op 01590 (1st Dep't 2016)

Here is the decision.

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

The doctrine of spoilation.

Practice point:  Under the common-law doctrine, a party may be sanctioned where it negligently loses or intentionally destroys key evidence.  The party seeking sanctions must demonstrate that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to prove its claim or defense.  The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence.  It may impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation.

Student note:   The Appellate Division will substitute its judgment for that of the Supreme Court only if that court's discretion was improvidently exercised.

Case:  Doviak v. Finkelstein & Partners, LLP, NY Slip Op 01636 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Motions to dismiss for failure to prosecute.

A claim of professional negligence and the "reasonable person" standard of liability.

Practice point:  In order to determine whether there is  liability, a jury must compare the defendant's conduct to that of a reasonable person under similar circumstances.  Where the case consists exclusively of facts whose significance could be readily understood by laypersons, the jurors are expected to apply their ordinary judgment and practical experience in order to determine what a reasonably prudent person would have done under the particular circumstances of the case, and whether the defendant deviated from that standard of care.

However, New York recognizes a subtle distinction between this general "reasonable person" standard and the standard to be applied when a defendant with special training or experience in a trade or profession acted in that capacity.  A person who undertakes to render services in the practice of a profession or trade will be held to the level of skill and care used by others in the community who practice the same profession or trade.  A claim of professional negligence requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury.

The degree of skill and care that must be exercised may be established through evidence of the general customs and practices of others who are in the same business or trade as that of the alleged tortfeasor.  This may be established by presenting the testimony of an expert who has demonstrated knowledge of the relevant standards of care in the trade or profession at issue.  Such expert testimony is admissible not only to explain highly technical medical or surgical questions, but also to clarify a wide range of issues calling for the application of accepted professional standards.

Student note:  In tort cases, a threshold question is whether the alleged tortfeasor owed a duty of care to the injured party, and the existence and scope of the duty is a question of law. 

Case:  Abrams v. Bute, NY Slip Op 01627 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  The doctrine of spoilation.

Civil liability resulting from the operation of an emergency vehicle.

Practice point:  The manner in which a police officer operated his or her vehicle in responding to an emergency may form the basis of civil liability to an injured third party if the officer acted in reckless disregard for the safety of others.

Student note:  The 'reckless disregard' standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.

Case:  Foster v. Suffolk County Police Dept., NY Slip Op 01639 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: A claim of professional negligence and the "reasonable person" standard of liability.

Failure to establish negligent misrepresentation, and a claim of ineffective assistance of counsel.

Practice point:  The Appellate Division affirmed the granting of defendant's CPLR 4401 motion for judgment as a matter of law made at the close of plaintiff's case, as, upon the evidence presented, there was no rational process by which the trier of fact could make a finding in favor of plaintiff. A cause of action alleging negligent misrepresentation requires a plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information.  Here, plaintiff failed to establish the second two elements of her cause of action.

Student note:  The Appellate Division rejected plaintiff's contention that she was deprived of the effective assistance of counsel at trial.  In the context of civil litigation, a claim of ineffective assistance of counsel will not be entertained absent extraordinary circumstances, and, here,  plaintiff failed to establish the existence of any extraordinary circumstances to warrant entertaining such a claim.

Case:  Nugent v. Diocese of Rockville Ctr., NY Slip Op 01473 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Civil liability resulting from the operation of an emergency vehicle.

A third-party contractor's negligence and summary judgment.

Practice point:  The Appellate Division reversed, and granted plaintiff's cross motion for partial summary judgment on the issue of liability in this action where he was injured when a television monitor and its bracket fell on him from the wall to which they had been mounted. Plaintiff submitted evidence, including the deposition testimony of defendant's employees, the affidavit of a construction expert, and the instruction manual for installation of the monitor bracket, showing that defendant negligently installed the bracket. In opposition, defendant failed to raise a triable issue of fact.  Specifically, it did not proffer an expert who contradicted plaintiff's expert, and, instead, offered only unsupported speculation that was insufficient to rebut plaintiff's showing.

Student note:  Defendant's status as a third-party contractor does not protect it where, as here, it launched a force or instrument of harm.

Case:  Jean-Francois v. Port Auth. of N.Y. & N.J., NY Slip Op 01558 (1st Dep't 2016)

Here is the decision.

Monday's issue:  Failure to establish negligent misrepresentation, and a claim of ineffective assistance of counsel.

Thrown from a horse, and a loss on summary judgment.

Practice point:  The Appellate Division reversed, and granted defendants' motion for summary judgment in this action where plaintiff was injured when she was thrown from a horse during a recreational ride at the stable operated by defendant equestrian center. The risk of a horse acting in an unintended manner resulting in the rider being thrown is a risk inherent in the sport of horseback riding, and there is no evidence that defendant stable was reckless. Neither is there evidence of concealed or unreasonably increased risks.

The Appellate Division found that defendant New York City, which owned and operated the park in which plaintiff rode, is also entitled to dismissal, as the bridle path had no defects contributing to the accident.

Student note:   Plaintiff's expert's opinion was conclusory, since it did not rely on any rules, regulations, laws or industry standards, and therefore, it fails to raise a triable issue of fact. Plaintiff's theory that defendant New York City owed her a duty based upon the licensing agreement it issued to the stable is unavailing since the City had no involvement with the operation of the stable, and the agreement contained no provision that would make plaintiff a third-party beneficiary of it.

Case:  Blumenthal v. Bronx Equestrian Ctr., Inc., NY Slip Op 01545 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  A third-party contractor's negligence and summary judgment.

Motions to renew and to dismiss for failure to timely serve a complaint.

Practice point:  The Appellate Division affirmed the granting of that branch of plaintiff's motion which was for leave to renew his opposition to the motion to dismiss for failure to timely serve the complaint, finding that plaintiff's excuse of law office failure was reasonable under the circumstances.

The Appellate Division also found that, upon renewal, and considering all the circumstances of this case, the CPLR 3012(b) motion was properly denied..Plaintiff proffered a reasonable excuse for his delay in serving the complaint after being served with a notice of appearance and demand for a complaint, and established that he had a potentially meritorious cause of action.

Student note:  While a motion for leave to renew generally must be based on newly-discovered facts, the requirement is a flexible one, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion. What is considered a reasonable justification is within the Supreme Court's discretion, and  law office failure can be accepted as a reasonable excuse..

Case:  Castor v. Cuevas, NY Slip Op 01456 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Thrown from a horse, and a loss on summary judgment.

An insured's delay in giving notice.

Practice point:  Where an insurance policy requires that notice of an occurrence be given "as soon as practicable," notice must be given within a reasonable time in view of all of the circumstances. However, circumstances may exist that will excuse or explain the insured's delay in giving notice, such as a reasonable belief in nonliability.  It is the insured's burden to demonstrate the reasonableness of the excuse.

Student note:  In general, whether there existed a good faith belief that the injured party would not seek to hold the insured liable, and whether that belief was reasonable, are questions of fact for the fact-finder. Summary judgment may be granted in favor of the insurer only if the evidence, construing all inferences in favor of the insured, establishes as a matter of law that the insured's belief in nonliability was unreasonable or in bad faith.

Case:  Aspen Ins. UK Ltd. v. Nieto, NY Slip Op 01449 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Motions to renew and to dismiss for failure to timely serve a complaint.

The sufficiency of a notice of claim.

Practice point:  The Appellate Division affirmed the denial of defendants' motion to dismiss and the granting of plaintiff's cross motion for leave to amend the notice of claim. The Appellate Division found that the motion court properly determined that the original notice of claim, together with the photographs provided by plaintiff showing broken cement barriers strewn over the sidewalk and roadway at the accident location, sufficiently set forth the location and manner of his accident to satisfy the requirements of General Municipal Law § 50-e(2), since they provided information sufficient to enable the city to investigate the claim.

Student note:  The amended notice of claim, clarifying the location and manner of the alleged accident, was properly permitted pursuant to General Municipal Law § 50-e(6), since the City did not show any prejudice, or assert that plaintiff acted in bad faith.

Case:  Weiss v. City of New York, NY Slip Op 01267 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  An insured's delay in giving notice.

Liability under Labor Law § 200 for injuries arising from the manner in which work is performed,

Practice point:  To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have the authority to exercise supervision and control over the work.  For statutory purposes, a defendant has the authority to supervise or control the work when the defendant bears the responsibility for the manner in which the work is performed.  Mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under the statute.

Student note:  If the challenged means and methods of the work are those of a subcontractor, and the owner or contractor exercises no supervisory control over the work, no liability attaches under Labor Law § 200 or the common law.

Case:  Hernandez v. Pappco Holding Co., Ltd., NY Slip Op 01295 (2d Dep't 2016)

Here is the decision.

Monday's issue:  The sufficiency of a notice of claim.

Out-of-possession landlords.

Practice point:  The Appellate Division affirmed denial of defendants' motion to dismiss the complaint as to them in this action for personal injuries allegedly sustained by plaintiff when she was caused to fall in the bathroom of her apartment due to tiles falling off the wall.  The Appellate Division found that defendants failed to make a prima facie showing that they were out-of-possession landlords who ceded possession and control to the co-defendant, as they leased individual apartments to the co-defendant pursuant to individual leases; the lease to plaintiff's unit limited the repair obligations that were the co-defendant's responsibility and prohibited it from making any alterations; and defendants employed a live-in superintendent in the building.

Student note:  In any event, defendants' contention that they are out-of-possession landlords with no duty to repair the allegedly dangerous condition is unpreserved since it is raised for the first time on appeal.

Case:  Rios v. 1146 Ogden LLC, NY Slip Op 01420 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Labor Law § 200 and liability for injuries arising from the manner in which the work is performed.

Schools, negligent supervision, and punitive damages.

Practice point:  The Appellate Division reversed, and dismissed the claims of negligent supervision and punitive damages in this action for damages allegedly sustained when plaintiff was assaulted in a school hallway by a fellow student's family members.

The school district established its prima facie entitlement to judgment as a matter of law by demonstrating that it had no actual or constructive knowledge or notice of any dangerous conduct on the part of the fellow student's family, and that the attack on plaintiff was thus not reasonably foreseeable. Plaintiff failed to raise a triable issue of fact.

Student note:  New York does not recognize a separate cause of action for punitive damages, and, in any event, punitive damages are not available against the school district because it is a public corporation.

Case:  Dixon v. William Floyd Union Free Sch. Dist., NY Slip Op 01289 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Out-of-possession landlords.

Motions for leave to renew.

Practice point:  The motion must be based upon new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221[e][2], and it must contain reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][3]. 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:  The Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion.

Case:  Central Mtge. Co. v. Resheff, NY Slip Op 01283 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Schools, negligent supervision, and punitive damages.