CPLR 308(4) and the due diligence standard.

Practice point:  Service pursuant to CPLR 308(4), which allows for affixing the summons to the door of the place of business, dwelling place, or usual place of abode, with other prerequisites, may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence.

Student note:  "Due diligence" is not defined in the statutory framework, and the term has been interpreted and applied on a case-by-case basis.

Case:  Amtrust-NP SFR, Venture, LLC v. Emmel, NY Slip Op 04894 (2d Dep't June 23, 2016)

Here is the decision.

Tomorrow's issue:  A fall on a wet staircase.

A fall from a ladder and a Labor Law § 240(1) claim.

Practice point:  The Appellate Division rejected defendants' argument that plaintiff was required to demonstrate that the ladder was defective in order to satisfy his burden as to the Labor Law § 240(1) claim. It is sufficient for purposes of liability under section 240(1) that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent. As there is no evidence that plaintiff was a recalcitrant worker or that he was not engaged in covered activity, it is sufficient for his claim that his injuries were the direct consequence of using a ladder that did not provide adequate protection.

Student note:  It is irrelevant whether plaintiff fell because the ladder wobbled or because he dropped his wrench.  It is clear that the ladder did not prevent plaintiff from falling and there is no dispute that no safety devices, other than the ladder, were provided.

Case:  Hill v. City of New York, NY Slip Op 05019 (1st Dep't June 23, 2016)

Here is the decision.

Tomorrow's issue:  CPLR 308(4) and the due diligence standard.

Denial of a motion to renew.

Practice point:  The Appellate Division affirmed the denial of the motion, noting that movant's supporting papers were properly rejected by the motion court as they were submitted for the first time in the reply papers. In addition, movant offered no justification whatsoever as to why he did not obtain the new evidence in time to submit it in opposition to the original motion, and did not assert that he made any effort, let alone a diligent effort, to obtain this new evidence, which was readily available.

Student note:  Denial of a motion to reargue is not appealable.

Case:  Amtrust-NP SFR Venture, LLC v. Vazquez, NY Slip Op 04871 (1st Dep't June 21, 2016)

Here is the decision.

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

Res judicata and a judgment of foreclosure and sale.

Practice point:  A judgment of foreclosure and sale is final as to all questions at issue between the parties, and concludes all matters of defense which were or could have been litigated in the foreclosure action.

Student note:  Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party.

Case:  Ciraldo v. JP Morgan Chase Bank, N.A., NY Slip Op. 04686 (2d Dep't June 15, 2016)

Here is the decision.

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

Vacatur of a default judgment denied.

Practice point:  The Appellate Division reversed, and denied the motion to vacate. For one thing, defendants failed to demonstrate a reasonable excuse for their default. Defendants' counsel never substantiated or explained the nature of the "serious family matter" that purportedly caused the default. At most, counsel had an ex parte communication with the motion court about the facts of the action, and, during that communication, may or may not have revealed the facts surrounding the alleged family matter. This ex parte communication is an insufficient basis upon which to vacate a default judgment, especially where, as here, the details of the communication are not known.

Defendants also failed to explain why their counsel's family matter was so serious that it kept him from either interposing an answer or responding to plaintiff's motion for a default judgment.  The record contains no adequate explanation for why the law firm representing defendants failed to communicate with plaintiff's counsel for nearly five months, even to inform counsel that a family emergency prevented defendants from timely responding to the litigation. In addition, two attorneys, only one of whom was affected by a family emergency, were representing defendants, and defendants do not explain why the other attorney representing them could not have taken the necessary steps to advance the litigation.

For another thing, defendants' assertion that they were entitled to a premium payment because they executed and posted a bail bond does not present a meritorious defense to plaintiff's action. Although execution of the bond is a condition precedent for retaining a premium payment, defendants failed to present any documentary evidence that they had actually executed and posted any bond. Neither did defendants present any evidence that the motion court ever conducted an examination of surety.

Student note:  While there is a strong public policy in favor of disposing of cases on their merits, this policy does not relieve a party moving to vacate a default from satisfying the two-pronged test of showing both (1) a reasonable excuse for the default; and (2) a meritorious defense to the action.

Case:  Johnson-Roberts v. Ira Judelson Bail Bonds, NY Slip Op 04785 (1st Dep't June 16, 2016)

Here is the decision.

Monday's issue:  Res judicata and a judgment of foreclosure and sale.

Obtaining a preliminary injunction.

Practice point:  To obtain a preliminary injunction, the moving party must establish, by clear and convincing evidence, the following: (1) a likelihood of success on the merits; (2) irreparable injury absent the injunction; and (3) that the equities balance is in the movant's favor.

Student note:  The decision to grant or deny the injunction lies within the sound discretion of the Supreme Court.

Case:  Chase Home Fin., LLC v. Cartelli, NY Slip Op 04685 (2d Dep't June 15, 2016)

Here is the decision.

Tomorrow's issue: Vacatur of a default judgment denied.

A 3211(a)(7) motion to dismiss.

Practice point:  Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one.  Unless it has been shown that a material fact claimed by the plaintiff is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the complaint should not be dismissed.

Student note:  Affidavits submitted in support of the motion may not be examined for the purpose of determining whether there is evidentiary support of the pleading.

Case:  Anglero v. Hanif, NY Slip Op 04683 (2d Dep't June 15, 2016)

Here is the decision.

Tomorrow's issue:  Obtaining a preliminary injunction.

Dismissal of a complaint, and denial of a cross-motion for spoilation sanctions.

Practice point:  The Appellate Division affirmed dismissal where defendant satisfied its initial burden on summary judgment by establishing, prima facie, that any alleged defect in the stairway at issue and/or in its premises lighting was not a proximate cause of plaintiff's accident, and plaintiff failed to raise a triable issue of fact relating his accident and injuries to either.

The Appellate Division also found that court properly denied the cross motion for spoliation sanctions. Plaintiff failed to specify a particular defect that caused him to fall, and even if defendant should have maintained its video footage of the subject staircase, plaintiff cannot establish that the failure to preserve it left him without appropriate means to present a claim with incisive evidence, as is required for the imposition of sanctions.

Student note:  The court properly declined to consider the errata sheet even though it was timely served, because plaintiff made changes to his testimony without explaining why he was making them, as required by CPLR 3116(a).

Case:  Cataudella v. 17 John St. Assoc., LLC, NY Slip Op 04784 (1st Dep't June 16, 2016)

Here is the decision.

Tomorrow's issue: A 3211(a)(7) motion to dismiss.

A motion to change venue.

Practice point:  The Appellate Division reversed the denial of the motion to change and the granting of the cross-motion to retain venue, and ordered that the matter be remanded for a hearing to resolve the factual issues raised in the motions.

The Appellate Division found that the denial of defendants' motion to change venue from Bronx County to Westchester County without a hearing was an improvident exercise of discretion. Once a movant establishes in a venue motion that the plaintiff's residence was other than that claimed in the complaint, the plaintiff opposing a motion for a change of venue must establish through documentary evidence his claimed residence. Here, substantial documentary evidence produced in discovery and submitted by defendants on their motion indicated that on the date of the accident plaintiff resided in Westchester County. These documents include hospital records from the time of plaintiff's accident, the incident report from the day of the accident, plaintiff's employment records, tax records and forms from the Internal Revenue Service, pharmacy records, Department of Motor Vehicle records, and automobile insurance records, all of which indicate that his address is in New Rochelle, Westchester County. In response, plaintiff's assertion that he resides at the Bronx residence that he co-owns with his fiancée, while buttressed by the affidavits of his fiancée and a neighbor, was not supported by any objective documentation. The only document plaintiff provided, which he describes as a water bill, is merely an undated commercial solicitation sent to him as a listed homeowner.

Student note:  Although a person may have more than one residence, for venue purposes, there must be evidence that the plaintiff actually resided at the claimed residence at the time the action was commenced. An ownership interest in property does not alone demonstrate residence at that property.

Case:  Crovato v. H&M Hennes & Mauritz, L.P., NY Slip Op 04660 (1st Dep't June 14, 2016)

Here is the decision.

Tomorrow's issue:  Dismissal of a complaint, and denial of a cross-motion for spoilation sanctions.

Discovery and the production of eletronic documents.

Practice point:  The Appellate Division determined that it was not an improvident exercise of the Supreme Court's discretion to deny that branch of the appellants' motion which was to compel the production of electronic documents in a different format than that in which the documents were previously produced.

Student note: It is well settled that a party is not entitled to unlimited, uncontrolled, unfettered disclosure, and the supervision of discovery is left to the trial court's broad discretion.

Case:  Aalco Transp. & Stor., Inc. v. DeGuara, NY Slip Op 04368 (2d Dep't June 8, 2016)

Here is the decision.

Monday's issue:  A motion to change venue

Vacating a default judgment.

Practice point:  The Appellate Division reversed the denial of defendant's motion to vacate a default judgment against him, finding that the suspension of defendant's counsel during the pendency of this action resulted in an automatic stay of the proceedings against defendant until thirty days after notice to appoint another attorney was served upon him, or until the court granted leave to resume proceedings, pursuant to CPLR 321[c].  Because there was no compliance with the leave or notice requirements of CPLR 321(c), and defendant did not retain new counsel until February 2014, the automatic stay was in place when the November 22, 2013 judgment was entered based upon defendant's default. Accordingly, the judgment must be vacated.

Student note:  Defendant's failure to invoke CPLR 321(c) until submission of his reply papers on his motion does not result in a waiver of his argument.  Neither was he required to submit an affidavit of merit.

Case:  Duandre Corp. v. Golden Krust Caribbean Bakery & Grill, NY Slip Op 04461 (1st Dep't June 9, 2016)

Here is the decision.

Tomorrow's issue: Discovery and the production of electronic documents.

An owner's liability for a fall in a lessee's bar.

Practice point:  The Appellate Division affirmed dismissal of the complaint as against the owner which established prima facie that it was not responsible for repairing the leak in the window that the lessee claims was the source of the pool of water in which plaintiff allegedly slipped. The lease provides that the owner is responsible only for structural repairs, the definition of which does not include windows. Nor did the lessee identify any significant structural or design defect that was contrary to a specific statutory safety provision.

Student note:  As the owner owed no duty to plaintiff to repair the window, whether it had actual or constructive notice of the leak is immaterial.

Case:  Syrko v. Jertom Inc., NY Slip Op 04448 (1st Dep't June 9, 2016)

Here is the decision.

Tomorrow's issue:  Vacating a default judgment.

Vacatur of an arbitration award pursuant to CPLR 7511.

Practice point:  In this contract action between the seller of a business and the broker, the seller moved to vacate the arbitration award and the broker cross-moved to confirm the award.  The Appellate Division determined that the seller failed to establish its entitlement to vacatur, pursuant to CPLR 7511(b)(1)(i), (ii), or (iii), on the ground of partiality, misconduct, or irrationality.

The arbitrator should have disclosed to the parties that he had been the arbitrator in a prior unrelated proceeding in which the broker was a party. Although the seller's attorney learned of the prior arbitration from the brokers' attorney a week after the hearing, the seller continued to actively participate in the arbitration process without raising any objections to the arbitrator. Under these circumstances, the seller waived any claims related to the alleged partiality of the arbitrator. In any event, the seller failed to establish that the prior arbitration had any effect upon the arbitrator's ability to be neutral in the instant matter. The seller also failed to demonstrate that the arbitrator committed misconduct, or that the arbitration award was irrational.

Student note:  CPLR 7511(b)(1)(i) and (ii) provide that an arbitration award shall be vacated upon the motion of a party if the court finds that the rights of that party were prejudiced by misconduct in procuring the award or partiality of an arbitrator appointed as a neutral.  In addition, an arbitration award may be vacated pursuant to CPLR 7511(b)(1)(iii) where an arbitrator exceeds his or her power, which includes only those narrow circumstances in which the award violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power. Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact.

Case:  A & L Vil. Mkt., Inc. v. 344 Vil., Inc., NY Slip Op 04368 (2d Dep't June 8, 2016)

Here is the decision.

Tomorrow's issue:  An owner's liability for a fall in a lessee's bar.

An ineffective employment agreement and post-termination commissions.

Practice point:  The Appellate Division affirmed dismissal, finding that plaintiff's breach of contract claim, which alleged that the corporate defendant breached the parties' employment agreement by failing to pay her certain compensation and benefits upon the termination of her employment in 2013, was correctly dismissed. The employment agreement expired in December 2007, and it unambiguously provided that any extension of the agreement needed to be in writing. Because there was no writing extending the agreement, her breach of contract claim fails as a matter of law.

Plaintiff's unjust enrichment claim seeking post-termination commissions fails because, on the expiration of her employment agreement, plaintiff became an at-will employee, and at-will employees are not entitled to post-termination commissions.

Plaintiff's claims for promissory estoppel, fraud, and negligent misrepresentation fail, since, in the absence of a signed employment agreement, she could not have reasonably relied upon defendants' alleged oral representations regarding the terms of her employment.

Student note:  The Appellate Division rejected plaintiff's assertion that the motion court should have allowed her to conduct further discovery under CPLR 3211(d) so that she could obtain documents confirming that her employment was renewed after the expiration of her employment agreement. As any renewal had to be in writing, and plaintiff alleged in her complaint that the parties did not execute any further written amendments to the employment terms after the agreement expired, there was no basis for further discovery.

Case:  Holahan v. 488 Performance Group, Inc., NY Slip Op 04311 (1st Dep't June 2, 2016)

Here is the decision.

Tomorrow's issue:  Vacatur of an arbitration award pursuant to CPLR 7511.

A fatally flawed motion for summary judgment in lieu of complaint.

Practice point:  The plaintiffs commenced this action to recover on a promissory note by motion for summary judgment in lieu of complaint pursuant to CPLR 3213. However, they made the motion returnable on a date prior to the expiration of the time within which the defendant had to appear in the action, which was a fatal jurisdictional defect.  The Appellate Division determined that the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the action.

Student note:   The Appellate Division will not consider an appellant's contentions that are raised for the first time on appeal.

Case:  Bhanti v. Jha, NY Slip Op 04166 (2d Dep't June 1, 2016)

Here is the decision. 

Monday's issue:  An ineffective employment agreement and post-termination commissions.

The homeowner exemption from liability under the Labor Law.

Practice point:  The Appellate Division reversed, and directed dismissal in the action where plaintiff's decedent died after falling to the ground while working on the roof of a house owned by defendants. The sole issue at trial was whether defendants' house was a one- or two-family dwelling subject to the homeowner exemption from liability under Labor Law §§ 240(1) and 241(6). The Appellate Division found that the evidence established, as a matter of law, that the house was, at most, a two-family dwelling, and that, adcordingly, defendants are entitled to judgment in their favor.

The applicability of the homeowner exemption is determined by a site and purpose test, which hinges upon the site and the purpose of the work and which must be employed on the basis of the homeowners' intentions at the time of the injury. Here, the evidence established that, at the time of the accident, defendants' house was a two-family residential home with a basement apartment, where a family friend lived, and three upper floors, which defendants shared with an adult child and two grandchildren. Defendants did not receive any rental income. That three families, two of which are related, lived in the home is insufficient to raise an issue of fact as to whether the home was a three-family dwelling. Nor do the notices of property value from the New York City Department of Finance raise an issue as to whether defendants intended to use the home as a three-family dwelling, particularly given uncontradicted testimony regarding the use and layout of the home.

Student note:  It is of no consequence that plaintiff refers to the top floor of the home as an "apartment."  She points to no evidence that it contained anything other than two bedrooms, which were occupied by defendants' grandchildren.

Case:  Del Carnen Diaz v. Bocheciamp, NY Slip Op 04305 (1st Dep't June 2, 2016)

Here is the decision.

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

An appeal dismissed.

Practice point:  The Appellate Division dismissed the appeal from an order which, following a summary jury trial, denied plaintiff's motion for a mistrial and dismissed the case. Plaintiff's posttrial motion, although framed as a motion for a mistrial based on an inconsistent verdict, in essence sought to set aside the jury's verdict as against the weight of the evidence, and is therefore prohibited by the summary jury trial rules, which the parties agreed to follow.

Student note:  Those same rules prohibit appeals.

Case:  Rodriguez v. Baranek, NY Slip Op 04303 (1st Dep't June 2, 2016)

Here is the decision.

Tomorrow's issue:  The homeowner exemption from liability under the Labor Law.

An injury at the gym.

Practice point:  The Appellate Division affirmed the dismissal of the complaint in this action where plaintiff was injured while weightlifting at Equinox with an Equinox personal trainer. Equinox submitted evidence showing that plaintiff was an experienced weightlifter, that he understood the techniques involved and the inherent risks in the sport from publications, and from his personal training sessions, that he knew and appreciated the 230 to 240 pounds of weight the personal trainer had set up on his barbell for a single, bench press to close out the training session, and that he elected to attempt the bench press when the trainer encouraged him following plaintiff's brief questioning of the amount of weight. Such evidence established that plaintiff appreciated the risks, including the weight to be lifted, and that he voluntarily assumed the common and inherent risks associated with the sport.

Student note:  Plaintiff's testimony that the personal trainer engaged in conversations with plaintiff and two other trainers at the time plaintiff questioned his ability to lift the weight is insufficient, absent speculative assumptions, to raise a factual issue as to whether the conversations continued during the actual attempted lift.

Case:  Butt v. Equinox 63rd St., Inc., NY Slip Op 04121 (1st Dep't May 31, 2016)

Here is the decision.

Tomorrow's issue:  An appeal dismissed.

CPLR 1411 and assumption of the risk.

Practice point:  The Appellate Division affirmed the denial of a motion to dismiss the complaint in this action for breach of contract, conversion, and fraud. The plaintiff and the defendant are estranged spouses, and the plaintiff sued for damages after the defendant allegedly terminated a joint annuity contract. The plaintiff alleges that the defendant unilaterally exercised the cash value option of the contract, withdrawing all of the funds without his knowledge or consent and leaving him with tax liabilities.

The defendant moved for summary judgment contending that the plaintiff, by agreeing to enter into the joint annuity contract, necessarily assumed the risk of pecuniary injury. However, the doctrine of primary assumption of the risk is a defense to tort recovery involving certain types of athletic or recreational activities, and is inapplicable here.

Student note:  The defense of assumption of risk was abolished in 1975 with the adoption of CPLR 1411. The Court of Appeals has explained that a limited vestige of the doctrine -- called primary assumption of the risk -- survived the adoption of the statute.

Case:  Ballow v. Lincoln Fin. Corp., NY Slip Op 04009 (2d Dep't May 25, 2016)

Tomorrow's issue:  An injury at the gym.

A summary judgment motion denied as untimely.

Practice point:  The Appellate Division reversed, and denied the motion as it was submitted more than 50 days after the expiration of the deadline imposed by the preliminary conference order, and there was no showing of good cause for the late filing, pursuant to CPLR 3212(a).

Student note:  The fact that the action was reassigned to another Justice's part after the preliminary conference order was entered does not require a different result. There was no subsequent order directing a different time-limit or indicating that the time-limits of the new part's rules would supersede the preliminary conference order.

Case:  Waxman v. Hallen Constr. Co., Inc., NY Slip Op 04097 (1st Dep't May 26, 2016)

Here is the decision.

Monday's issue:  CPLR 1411 and assumption of the risk.

A fall at the public library.

Practice point:  The Appellate Division affirmed the granting of the City's motion to dismiss the complaint in this action where plaintiff alleges that he was injured when he tripped and fell at a branch of the New York Public Library. The City is not responsible for injuries resulting from allegedly negligent maintenance of a library building.

Student note:  In light of the dismissal of the complaint as against the City, plaintiff's discovery motion became moot.

Case:  Yon v. City of New York, NY Slip Op 04001 (1st Dep't May 24, 2016)

Here is the decision.

Tomorrow's issue:  A summary judgment motion denied as untimely.

The meaning and extent of coverage of a release.

Practice point:  The Appellate Division affirmed the denial of defendant-physician's motion to dismiss on the grounds that a general release executed by plaintiffs bars plaintiffs' action against him.

The release provides, in pertinent part, that, in exchange for defendant-hospital's payment to plaintiffs of $25,000, plaintiffs released the hospital, its insurer, and their "agents, servants, employees, [and] staff," from "all . . . actions, causes and causes of action . . . which against the [hospital] the plaintiffs ever had." The Appellate Division found that, even if defendant-physician were a member of defendant-hospital's staff, the release is expressly limited only to causes of action that plaintiffs had against defendant-hospital, and does not release any other tortfeasors not expressly named therein from liability for causes of action asserted against them, pursuant to General Obligations Law § 15-108[a]. 

Student note:  The meaning and extent of coverage of a release necessarily depend, as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given.  A release may not be read to cover matters which the parties did not desire or intend to dispose of.

Case:  Linn v. New York Downtown Hosp., NY Slip Op 03992 (1st Dep't May 24, 2016)

Here is the decision.

Tomorrow's issue: A fall at the public library.