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.