Workers Compensation as an exclusive remedy.

Practice point:  Plaintiff is a bus matron employed by a non-party, and she is seeking compensation for injuries that she sustained in an accident that occurred while she was working on a bus registered to the first corporate defendant and driven by the individual defendant. Defendants failed to make a prima facie showing that plaintiff was a "special employee" of the first corporate defendant, so that her claims would be barred by the exclusive remedy provisions of Workers' Compensation Law §§ 11 and 29(6).  They did not demonstrate that the first corporate defendant assumed exclusive control over plaintiff's work. In fact, their own witnesses testified that bus matrons were supervised by employees of another company, not by employees of the first corporate defendant. Defendants offered no evidence to support a finding that the second corporate defendant, allegedly liable as the school bus owner, pursuant to Vehicle and Traffic Law § 388, was entitled to rely on the exclusivity bar of the Workers' Compensation Law.

Case:  Mohammed v. Kierzowski, NY Slip Op 07525 (1st Dep't October 26, 2017)

Here is the decision.

The return of an engagement ring.

Practice point: The Appellate Division reversed and ordered a new trial, finding that the Supreme Court erred in granting the defendant's motion, made pursuant to CPLR 4401 at the the close of evidene, for judgment as a matter of law dismissing the cause of action for the return of the ring. Viewing the evidence in the light most favorable to the plaintiff, and resolving credibility issues in his favor, there was a rational process by which the trier of fact could find that, when  neither party was under an impediment to marry, the plaintiff gave the defendant the ring in contemplation of a marriage which did not occur. As such, the cause of action for the return of the engagement ring should not have been dismissed.

Case:  Bierman v. Limoncelli, NY Slip Op 07426 (2d Dep't October 25, 2017)

Here is the decision.

Law office failure as an excuse for default.

Practice point:  A party asserting law office failure must provide a detailed and credible explanation of the default.  Conclusory and unsubstantiated allegations of law office failure are not sufficient.

Student note:  Pursuant to CPLR 5015(a), in order to vacate its default in appearing at a call of the compliance conference calendar, the plaintiff had to demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action.

Case:  555 Prospect Assoc., LLC v. Greenwich Design & Dev. Group Corp.,  NY Slip Op 07423 (2d Dep't October 24, 2017)

Here is the decision.

A claim based on exposure to lead-based paint.

Practice point:  The Appellate Division affirmed denial of defendant's motion for summary judgment in this action seeking damages for injuries resulting from exposure to lead-based paint.  The record establishes that the building was constructed prior to 1960; that defendant knew that a child younger than six years of age lived in the apartment; and defendant had actual notice of a positive lead test that it failed to remediate and that resulted in a letter alerting it to the fact that the condition had not been addressed.  Defendant's expert's conclusion that the positive test was too remote in time to be reliable does not create a triable issue of fact.

Case:  Jocelyn C. v. Soundview Apts. Realty, LLC, NY Slip Op 07388 (1st Dep't October 24, 2017)

Here is the decision.

A duplicative claim of a breach of fiduciary duty.

Practice point:  Under New York law, conduct amounting to breach of a contractual obligation may also constitute the breach of a fiduciary duty which is independent of the contract.  Professionals, such as investment advisors, owe fiduciary duties to their clients, and may be subject to tort liability, as it is policy, not the parties' contract, that gives rise to the duty. Here, the breach of fiduciary duty claim is duplicative of the breach of contract claim, since the plaintiff is suing the defendant not as a professional advisor, but as a managing member of the investment firm, a relationship that is controlled by the firm's operating agreement.

Case:  Panattoni Dev. Co., Inc. v. Scout Fund 1-A, LP, NY Slip Op 07334 (1st Dep't October 19, 2017)

Here is the decision.

Default judgments in matrimonial actions.

Practice point:  While there is a liberal policy with respect to vacating defaults in matrimonial actions, the defendant still must demonstrate a reasonable excuse for the default and the existence of a potentially meritorious defense, pursuant to CPLR 5015(a)(1).  The motion must be made within one year after service of a copy of the judgment or order with written notice of its entry.

Case:  Dankenbrink v. Dankenbrink, NY Slip Op 07237 (2d Dep't October 18, 2017)

Here is the decision.

An insufficient § 1983 claim.

Practice point:   Neither the state nor its officials, acting in their official capacities, are "persons" within the meaning of the statute.

Case:  Stoner v. Atlantic Realty Apts., LLC, NY Slip Op 07329 (1st Dep't October 19, 2017)

Here is the decision. 

An enforceable personal guaranty.

Practice point:  While a personal guaranty must be in writing, it does not have to be notarized to make it legally binding on the parties.  Typographical errors do not render the guaranty unenforceable.  Where the only alleged mistake is in the reduction of the agreement to a writing, it is a scrivener's error, and, no matter how the error occurred, it may be corrected without reformation of the agreement.

Student note:  In the absence of a claim for reformation, the court may, as a matter of interpretation, carry out the parties' intentions by transposing, rejecting, or supplying words to make the meaning of the contract more clear.

Case:  82-90 Broadway Realty Corp. v. New York Supermarket, Inc., NY Slip Op 07233 (2d Dep't October 18, 2017)

Here is the decision.

A residential owner's liability for a sidewalk fall.

Practice point:  There is an exemption from personal iability for failure to maintain the sidewalk if the  property is a "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes," pursuant to Administrative Code of the City of New York § 7-210[b].

While the statute does not expressly contain a primary residence requirement,  the term "owner occupied" generally is used to mean that the owner regularly occupies the property as a residence.  The legislative history shows that the exemption recognizes the inappropriateness of exposing small-property owners in residence, with limited resources, to exclusive liability regarding sidewalk maintenance and repair.

Student note:  The statute is to be strictly construed as creating liability in derogation of the common law.

Case:  Kalajian v. 320 E. 50th St. Realty Co., NY Slip Op 07225 (1st Dep't October 17, 2017)

Here is the decision.

CPLR 3126 and precluding evidence.

Practice point:  Before a court invokes the drastic remedy of precluding evidence, there must be a clear showing that the party's failure to comply with discovery demands or court-ordered discovery was willful and contumacious. Willful and contumacious 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 with court-ordered discovery over an extended period of time.

Student note:  The nature and degree of a penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court.

Case:  Candela v. Kantor, NY Slip Op 07106 (2d Dep't October 11, 2017)

Here is the decision.

A motion for leave to renew.

Practice point:  The motion must be bsed on facts that were not offered on the prior motion and that would change the prior determination, pursuant to CPLR 2221[e][2].  Pursuant to [e][3], the movant movant must demonstrte a reasonable justification for not having presented these facts on the prior motion.

Student note:  While it may be within the court's discretion to grant leave to renew based on facts known to the moving party at the time of the prior motion, the motion is not a second chance given to parties who have not exercised due diligence in making their first factual presentation.

Case:  Byun Sik Chu v. Kerrigan, NY Slip Op 07105 (2d Dep't October 11, 2017)

Here is the decision.

A sufficiently pled gender discrimination claim.

Practice point:  The plaintiff sufficiently pled the necessary elements of the claim by alleging that another employee said that she was "inadequate" before he had ever observed her work and when all he knew about her was that she was a woman, and that, thereafter, he continually harassed and insulted her. The inference of gender-based discrimination is supported by the allegation that the plaintiff, after her termination, was almost immediately replaced by a male, as well as by the allegation that she was told that her crane was being taken out of operation, when the crane continued to be used, but with a male operator.

Case:  Schindler v. Plaza Constr., LLC, NY Slip Op 07182 (1st Dep't October 12, 2017)

Here is the decision. 

Leave to amend a pleading.

Practice point:  Pursuant to CPLR 3025(b), leave to amend a pleading will be granted when there is no significant prejudice or surprise to the opposing party, and where the evidence submitted in support of the motion for leave demonstrates that the proposed amendment may have merit.

Student note:  The movant must submit the proposed amendment, and, in order to deny the motion, the amendment's insufficiency must be clear and free from doubt.

Case:  Assevero v. Hamilton & Church Props., LLC, NY Slip Op 07103 (2d Dep't October 11, 2017)

Here is the decision.

General jurisdiction.

Practice point:  New York courts may not exercise general jurisdiction against a defendant, either under the United States Constitution or CPLR 301, unless the defendant is domiciled in New York, or in the exceptional case where the individual's New York contacts  are so extensive as to support general jurisdiction, notwithstanding domicile elsewhere.  The purchase of an apartment in New York does not establish that the individual is domiciled in New York.  New York business activities undertaken on behalf of a corporate entity are not a basis for general jurisdiction.

Case:  IMAX Corp. v. Essel Group, NY Slip Op 07091 (1st Dep't October 10, 2017)

Here is the decision.

A motion to dismiss the complaint as time-barred.

Practice point:  On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5), on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute was tolled or otherwise inapplicable, or whether the action was commenced within the limitations period.

Student note:  In considering the motion, the court must take the allegations in the complaint as true, and resolve any inferences in favor of the plaintiff.

Case:  Cataldo v. Herrmann, NY Slip Op 06920 (2d Dep't October 4, 2017)

Here is the decision.

A dismissed claim of negligence and wrongful death.

Practice point:  The Appellate Division reversed the motion court's denial of summary judgment, and dismissed the claim against defendant hospital. The decedent, plaintiff's husband and a hospital employee, became intoxicated at a holiday party organized by hospital workers. The party was not sanctioned by the hospital, and was not held on hospital property. The hospital employees attended the party on their own time.  The decedent's coworkers contacted the plaintiff, herself a hospital employee, and then helped the decedent into the plaintiff's car.  The plaintiff drove home and left the decedent in the car, parked in their driveway, to sleep off his condition. An hour later, the plaintiff checked on the decedent, and found him, unresponsive, on the floor of the back seat. The autopsy report lists the cause of the death as alcohol intoxication and positional asphyxia.

The Appellate Division determined that the hospital employees, in assisting the decedent and placing him in his wife's care, did not assume a duty, and nothing they did put the decedent in a worse or different position of danger. Any opinions rendered about medical attention being unnecessary were nonactionable gratuitous commentary. In addition, placing the decedent into the car was not the proximate cause of his death, but merely furnished the occasion for its happening.

Case: Gillern v. Mahoney, NY Slip Op 06979 (1st Dep't October 5, 2017)

Here is the decision.

Court holiday.

Settling an order.

Practice point:  Pursuant to 22 NYCRR 202.48[a], "[p]roposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted."

Student note:  Pursuant to 202.48[b], "[f]ailure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown."

Case:  HSBC Bank USA, N.A. v. Yonkus, NY Slip Op 06921 (2d Dep't October 4, 2017)

Here is the decision.

A challenge to a co-op board's action.

Practice point:  A shareholder's challenge to a co-op board's action is made in the form of an article 78 proceeding.

Case:  Musey v. 425 E. 86 Apts. Corp., NY Slip Op 06880 (1st Dep't October 3, 2017)

Here is the decision.

A motion to file a late notice of claim.

Practice point:  In an action to recover damages for personal injuries resulting from a slip-and-fall, the Appellate Division reversed, and denied the plaintiff's motion, made pursuant to General Municipal Law § 50-e(5), for leave to serve a late notice of claim against nonparty New York City Housing Authority.  The Appellate Division found that the plaintiff failed to provide a reasonable excuse for his failure to timely serve the notice.  His saying that he first discovered the identity of the owner of the walkway at the § 50-h hearing is an unacceptable excuse, as it indicates a lack of due diligence in investigating the matter.  Even if the plaintiff had made an excusable error in identifying the public corporation upon which he was required to serve the notice, he did not proffer any explanation for the additional seven-month delay between the time that he discovered the error and the filing of his application for leave to serve a late notice.

Student note:  In determining whether a petitioner should be granted leave to serve a late notice of claim against a public housing authority, the court will consider, as key factors, whether the petitioner had a reasonable excuse for the delay in serving the notice; whether the public housing authority acquired actual knowledge of the essential facts of the claim within the statutory 90-day period or within a reasonable time thereafter; whether the petitioner made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the public housing authority will be substantially prejudiced by the delay in its defense on the merits, pursuant to General Municipal Law § 50-e[5] and Public Housing Law § 157[2].

Case:  Kelly v. City of New York, NY Slip Op 06640 (2d Dep't September 27, 2017)

Here is the decision.

A default judgment in a foreclosure action.

Practice point:  The Appellate Division affirmed the judgment of foreclosure and sale, finding that the defendant failed to show a reasonable excuse for his default and a potentially meritorious defense.  As the summons expressly warned that failure to respond could result in a default judgment and the loss of the defendant's home, it is not a reasonable excuse for him to assert that he had been "led to believe," by parties whom he did not name,  that he did not have to answer the complaint because he had submitted a loan modification application.

Student note:  Since the defendant failed to proffer a reasonable excuse for the default, the Appellate Division did not reach the issue of whether the defendant had demonstrated a potentially meritorious defense.

Case:  Wells Fargo Bank, N.A. v. Javier, NY Slip Op 06711 (1st Dep't September 26, 2017)

Here is the decision.

Preliminary injunctions.

Practice point:  To establish the right to a preliminary injunction, a plaintiff must prove by clear and convincing evidence (1) the likelihood of ultimate success on the merits; (2) irreparable injury absent the granting of the injunction; and (3) a balance of the equities in the plaintiff's favor, pursuant to CPLR 6301.

Student note:  The purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties.

Case:  19 Patchen, LLC v. Rodriguez, NY Slip Op 06636 (2d Dep't September 27, 2017)

Here is the decision.