Sua sponte dismissal.

Practice point:  The sua sponte dismissal of the complaint is not appealable as of right, pursuant to CPLR 5701[a][2].  However, pursuant to 5701[c], the Appellate Division may deem the notice of appeal to be a motion for leave to appeal, and grant the motion.

Case:  All Craft Fabricators, Inc. v. ATC Assoc., Inc., NY Slip Op 06595 (1st Dep't September 26, 2017)

Here is the decision.

Protected materials.

Practice point:  The CPLR establishes three categories of protected materials: (1) privileged matter, absolutely immune from discovery, pursuant to CPLR 3101[b]; (2) an attorney's work product, also absolutely immune, pursuant to CPLR 3101[c]; and (3) trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means, pursuant to CPLR 3101 [d][2].  As to each category, the protection is supported by policy considerations.

Student note:  The burden of establishing a right to protection is on the party asserting it. The protection claimed will be narrowly construed, and its application must be consistent with the purposes underlying the immunity.

Case:  Venture v. Preferred Mut. Ins. Co., NY Slip Op 06594 (1st Dep't September 26, 2017)

Here is the decision.

A claim of negligent misrepresentation.

Practice point:  The  Appellate Division dismissed the claim where defendants demonstrated, prima facie, that there was no fiduciary or special relationship with the plaintiffs in this arm's length transaction.

Student note:  A cause of action alleging negligent misrepresentation requires the 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.

Case:  CSI Group, LLP v. Harper, NY Slip Op 06521 (2d Dep't September 20, 2017)

Here is the decision.

Res ipsa loquitur.

Practice point:  The plaintiff allegedly sustained personal injuries when a portion of the bedroom ceiling fell on her as she was sleeping. The plaintiff commenced this action against the defendant landlord to recover damages for her injuries, asserting a single cause of action premised on theories of negligent failure to maintain the premises in a reasonably safe condition, and the doctrine of res ipsa loquitur.  The defendant established, prima facie, that the doctrine of res ipsa loquitur is inapplicable by submitting evidence demonstrating that the plaintiff had been residing at her apartment for more than one year at the time of the incident, and that the defendant did not have the requisite exclusive control over the allegedly defective condition. In opposition, the plaintiff failed to raise an issue of fact as to the applicability of the doctrine, and so plaintiff cannot rely on res ipsa loquitur at trial.

Student note: The doctrine of res ipsa loquitur is a rule of evidence that permits an inference of negligence to be drawn solely from the happening of an accident where the plaintiff can show that: (1) the event is of the kind that ordinarily does not occur in the absence of someone's negligence; (2) the instrumentality that caused the injury is within the defendant's exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff.

Case:  Correa v. Matsias, NY Slip Op 06520 (2d Dep't September 20, 2017)

Here is the decisiion.

Forum non conveniens.

Practice point:  On a motion  to dismiss the complaint on the ground of forum non conveniens, pursuant to CPLR 327, the movant must demonstrate the relevant private or public interest factors that militate against a New York court's acceptance of the litigation. Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses, the availability of an alternative forum, the situs of the actionable events, and the burden which will be imposed upon the New York courts, with no one single factor controlling.

Student note:  A court's determination of a motion to dismiss on the ground of forum non conveniens will not be disturbed on appeal unless the court failed to properly consider all the relevant factors or improvidently exercised its discretion in deciding the motion.

Case:  Park v. Heather Hyun-Ah Cho, NY Slip Op 06519 (2d Dep't September 20, 2017)

Here is the decision.

Documentary evidence on a motion to dismiss.

Practice point:  An unambiguous contract provision may qualify as documentary evidence within the meaning of CPLR 3211(a).

Student note:  To prevail on a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), a defendant must submit documentary evidence that utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Case:  13 Throop, LLC v. Triumph, the Church of the New Age, NY Slip Op 06516 (2d Dep't September 20, 2017)

Here is the decision.

Insincere promises and fraud.

Practice point:  An insincere promise to perform a contractual obligation is not actionable as fraud.

Student note:  Absent this rule, contract claims would be routinely pleaded in the alternative as fraud, eroding the distinction between the two causes of action.

Case:  Cronos Group Ltd. v. XComIP, LLC, NY Slip Op 06515 (1st Dep't September 19, 2017)

Here is the decision.

A 3211(a) motion.

Practice point:  The court may not treat the motion as one for summary judgment without having given the parties notice that it intends to do so, pursuant to CPLR 3211(c).

Student note: On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the complaint must be construed liberally, the factual allegations must be deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences.  In opposition to the motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve claims that are inartfully pleaded but potentially meritorious.

Case:  Christ the Rock World Restoration Church Intl., Inc. v. Evangelical Christian Credit Union, NY Slip Op 06426 (2d Dep't September 13, 2017)

Here is the decision.

Moving for relief from a conditional order of preclusion.

Practice point:  To obtain relief from a conditional order of preclusion, the defaulting party must demonstrate a reasonable excuse for the failure to produce the requested items and the existence of a potentially meritorious claim or defense.

Student note:  In its discretion, a court may find that law office failure is a reasonable excuse.

Csse:  C.C. v. Vargas, NY Slip Op 06424 (2d Dep't September 13, 2017)

Here is the decision.

Appellate review after a nonjury trial.

Practice point:  In reviewing a determination made after a nonjury trial, the Appellate Division's authority is as broad as that of the trial court, and it 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 and hearing the witnesses.  Where the trial court's findings of fact rest largely on considerations relating to the credibility of witnesses, the Appellate Division owes deference to the trial court's credibility determinations.

Student note:  Pursuant to CPLR 4404(b), after a nonjury trial, a court may, on the motion of a party or its own motion, set aside its decision and make new findings of fact or conclusions of law.

Case:  BNG Props., LLC v. Sanborn, NY Slip Op 06423 (2d Dep't September 13, 2017)

Here is the decision.

Summary judgment in a mortgage foreclosure action.

Practice point:  The moving plaintiff establishes a prima facie case through the production of the mortgage, the unpaid note, and evidence of default.  If the defendant puts standing at issue, the plaintiff must prove its standing in order to be entitled to relief.  A plaintiff has standing if, at the time the action is commenced, it is the holder or assignee of the underlying note.

Student note:  Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.

Case:  Bank of Am., N.A. v. Martinez, NY Slip Op 06422 (2d Dep't September 13, 2017)

Here is the decision.

Determining damages for pain and suffering.

Practice point:  When the interval between the injury and death is relatively short, the elements to be considered include the degree of consciousness, the severity of pain, and the apprehension of impending death,

Case:  Matter of 91st St. Crane Collapse Litig., NY Slip Op 06419 (1st Dep't September 12, 2017)

Here is the decision.

A retaliation claim under Labor Law § 741.

Practice point:  The Appellate Division reversed the motion court's finding that plaintiff's statutory retaliation claim is completely barred by collateral estoppel. The issue of whether defendant hospital terminated plaintiff doctor because she reported inadequate medical care to her supervisors, and later, the Department of Health was not at issue in the prior administrative proceedings and related article 78 proceeding, and was not necessarily decided in the prior proceedings.

In the prior proceedings it was determined that plaintiff had engaged in professional incompetence on three occasions, and that defendant did not fabricate the allegations, but there was no express or implied ruling that defendant terminated her employment on the basis of that incompetence, or whether in terminating her, defendant had impermissibly retaliated against her for whistleblowing.

Student note:  While collaterel estoppel does not otherwise bar litigation of the retaliation claim, plaintiff is precluded from relitigating the three instances of incompetence found in the prior proceedings.

Case:  Mehulic v. New York Downtown Hosp., NY Slip OP 06416 (1st Dep't September 12, 2017)

Here is the decision.

Invoking a forum selection clause against a non-signatory.

Practice point:  Under New York law, a signatory to a contract may invoke a forum selection clause against a non-signatory if the non-signatory is so closely related to one of the signatories that enforcement of the clause is foreseeable.

Student note:  The rationale behind binding closely related entities to the forum selection clause is that it promotes stable and dependable trade relations.

Case:  Universal Inv. Advisory SA v. Bakrie Telecom PTE, Ltd., NY Slip Op 06344 (1st Dep't August 29, 2017)

Here is the decision.

Tomorrow's issue:  A retaliation claim under Labor Law § 741.

Sufficiency of service.

Practice point:  Service was proper where the process server attempted to effect service of the landlord's termination notice at the tenant's residential building during reasonable business hours and non-business hours, on two different days.  As the process server could get no closer to the tenant's apartment than the building's front door, after repeatedly ringing the doorbell to the apartment, he affixed the notice conspicuously to the building's front door and subsequently complied with the mailing requirement.

Case:  Matter of 322 W. 47th St. HDFC v. Loo, NY Slip Op 06403 (1st Dep't September 5, 2017)

Here is the decision.

Tomorrow's issue: Invoking a forum selection clause against a non-signatory.

A multiple dwelling's owner's duty of care.

Practice point:  Pursuant to Multiple Dwelling Law § 78[1], the owner is responsible for exercising reasonable care in keeping the property, including the wiring, in good repair.

Student note:  A property owner has a non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others.

Case:  Daly v. 9 E. 36th LLC, NY Slip Op 06404 (1st Dep't September 5, 2017)

Here is the decision.

Monday's issue: Sufficiency of service.

Moving for summary judgment 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:  Since there can be more than one proximate cause of an accident, it is for the trier of fact to determine the issue of proximate cause.

Case:  Searless v. Karczewski, NY Slip Op 06393 (2d Dep't August 30, 2017)

Here is the decision.

Tomorrow's issue:  A multiple dwelling's owner's duty of care.

Ambiguous contracts.

Practice point  To be found ambiguous, a contract must be susceptible of more than one commercially reasonable interpretation.  Whether there is an ambiguity must be determined by examining the entire contract and considering the parties'  relation and the circumstances under which the contract was executed, with the wording to be considered in the light of the obligation as a whole and the intention of the parties as manifested thereby.

Student note:  In any question of the interpretation of a written contract, the objective is to determine what is the intention of the parties as derived from the language employed.

Case:  Perella Weinberg Partners LLC v. Kramer, NY Slip Op 06341 (1st Dep't August 29, 2017)

Here is the decision.

Tomorrow's issue:  Moving for summary judgment in a negligence action.

A claim for breach of fiduciary duty.

Practice point:  The elements of the cause of action are (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages directly caused by the defendant's misconduct. The claim must be pleaded with particularity under CPLR 3016(b).

Student note:  A fiduciary relationship arises when one is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation. It is grounded in a higher level of trust than normally present in the marketplace between those involved in arm's length business transactions.

Case:  Saul v. Cahan, NY Slip Op 06390 (2d Dep't August 30, 2017)

Here is the decision.

Tomorrow's issue:  Ambiguous contracts.

Court holiday.

                                        Triangle Shirtwaist Factory 1911

Striking a pleading.

Practice point:  The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery is willful and contumacious. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse.

Student note:  The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court.

Case:  Schiller v. Sunharbor Acquisition I, LLC, NY Slip Op 05866 (2d Dep't July 26, 2017)

Here is the decision.

Tuesday's issue:  A claim for breach of fiduciary duty.