Timely service.

Plaintiff's purported service of the summons and complaint pursuant to CPLR 308(4) was defective, as defendant submitted unrebutted evidence that the place where service was attempted and where the summons and complaint were affixed was not his dwelling place or usual place of abode. Still, dismissal was denied and plaintiff's cross-motion to extend the time to serve was granted.  Service of a summons and complaint must be made within 120 days after the commencement of the action, pursuant to CPLR 306-b). If service is not timely made, the court, upon motion, must dismiss the action without prejudice, or, upon good cause shown or in the interest of justice, extend the time for service.  Here, while the action was timely commenced, the statute of limitations had expired when plaintiff cross-moved for relief, the timely service of process was subsequently found to have been defective, and the defendant had actual notice of the action within 120 days of commencement of the action. In addition, there was no prejudice to defendant attributable to the delay in service.

Case:  Chan v. Zoubarev, NY Slip Op 00402 (2d Dep't January 24, 2018)

Here is the decision.

Personal injury claims against the City for a roadway defect or hazard.

Practice point:  On a motion for summary judgment dismissing the complaint, the City has the initial burden of establishing that, under the Pothole Law, it lacked prior written notice of the defect or hazard.  On a sufficient showing, the burden shifts to the plaintiff to demonstrate that the City affirmatively created the defect at issue through a negligent act. The affirmative negligence exception is limited, however, to the City's work that immediately resulted in a dangerous condition, as opposed to a defect that developed over time.

Case:  Bania v. City of New York, NY Slip Op 00470 (1st Dep't. January 25, 2018)

Here is the decision.

Preliminary injunctions.

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

Case:  Braunstein v. Hodges, NY Slip Op 00401 (2d Dep't January 24, 2018)

Here is the decision.

Limitation of liability provisions.

New York courts routinely enforce limitation of liability  provisions, especially when they were negotiated by sophisticated parties.  While the contractual provision is an affirmative defense, a court may rule on its enforceability on a motion to dismiss.

Such clauses are unenforceable when the misconduct for which they would grant immunity amounts to intentional wrongdoing. This wrongdoing could be explicit, as when it is fraudulent, malicious or done in bad faith, or it could be implicit, as when it reflects a reckless indifference to the rights of others.

Note that the type of intentional wrongdoing that could render the provision unenforceable must be unrelated to any legitimate economic self-interest. So, a party can intentionally breach a contract to advance a legitimate economic self-interest, and still rely on the contractual limitation provision.

Electron Trading, LLC v Morgan Stanley & Co. LLC, NY Slip Op 00380 (1st Dep't January 23, 2018)

Here is the decision.

Faillure to timely service the complaint.

To avoid dismissal for failing to timely serve a complaint after a demand has been made pursuant to CPLR 3012(b), and to be entitled to an extension of time to serve the complaint under 3012(d), a plaintiff must demonstrate both a reasonable excuse for the delay and a potentially meritorious cause of action.

Here, the plaintiffs failed to demonstrate either that they had a reasonable excuse for the delay in serving their complaint, or that their causes of action were meritorious. Plaintiff's counsel did not offer a reasonable excuse by saying that an unidentified staff member "apparently" filed the complaint without showing it to counsel.  Neither is it a reasonable excuse that the letter memorializing the parties' attorneys' telephone conversation was sent to plaintiffs' counsel's former address, since the attorney never advised the Supreme Court or the defendant of his new address, and there is no requirement that a good faith letter be sent prior to moving to dismiss an action for failure to timely serve.

Plaintiffs did submit an affidavit of merit or other evidence demonstrating that their action was meritorious. The proposed complaint verified by their attorney, who did not have personal knowledge of the facts, was insufficient to demonstrate that the action was potentially meritorious. The uncertified police accident report constituted inadmissible hearsay, and did not contain any admission by the defendant against her interest bearing on how the accident occurred.

Case:  Ganchrow v. Kremer, NY Slip Op 00277 (2d Dep't January 17, 2018)

Here is the decision.

Probable cause as a defense.

Practice point:  The existence of probable cause constitutes a complete defense to a plaintiff's claims for false arrest, false imprisonment, and malicious prosecution, and defeats any claim for the same acts based on a lesser showing of negligence.

Case:  Phin v. City of New York, NY Slip Op 00333

Here is the decision.

Collateral estoppel.

Practice point:  The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling. The party seeking the benefit of preclusion  bears the burden of proving that the identical issue was necessarily decided in the prior matter, and is dispositive of the present action. The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination.

Case:  David v. State of New York, NY Slip Op 00273 (2d Dep't January 17, 208)

Here is the decision.

Proper service.

Practice point:  A process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service.

Case:  Bank of Am., N.A. v. Welga, NY Slip Op 00270 (2d Dep't January 17, 2018)

Here is the decision.

Motions in limine.

Practice point:  An issue of material fact cannot be the basis for granting a motion in limine because it is an inappropriate device for obtaining summary relief.

Case:  Casalini v. Alexander Wolf & Son, NY Slip Op 00246 (1st Dep't January 16, 2018)

Here is the decision.

Service, and time to answer.

Practice point:  Service pursuant to CPLR 308(2) is not complete until 10 days after the filing of the affidavit of service. CPLR 320 provides that when service is made pursuant to CPLR 308(2), the defendant has 30 days from the time service is complete to answer the complaint.

Case:  Watson v. City of New York, NY Slip Op 00245 (1st Dep't January 16, 2018)

Here is the decision.

An action to quiet title.

In order to maintain the cause of action, a plaintiff must allege (1) actual or constructive possession of the property, and (2) a removable cloud on the property, which is an apparent title to the property, such as in a deed or other instrument, that is invalid or inoperative.

Case:  Cudjoe v. Boriskin, NY Slip Op 00117 (2d Dep't January 10, 2017)

Here is the decision.

Appeals as of right.

Practice point:  No appeal lies as of right from an order that does not decide a motion made on notice, pursuant to CPLR 5701[a][2].

Case:  American Home Mtge. Servicing, Inc. v. Kaplan, NY Slip Op 00125 (2d Dep't January 10 2018)

Here is the decision.

An insufficient legal malpractice claim.

The conclusory allegation that, but for defendants' negligence, plaintiff would have successfully opposed the summary judgment motion and defended the underlying action is insufficient to support the claim, because the evidentiary material reveals that plaintiff had no viable defense.

Case:  Ladera Partners, LLC v. Goldberg, Scudieri & Lindenberg, P.C., NY Slip Op 00104 (1st Dep't January 9, 2018)

Here is the decision.

Police accident reports.

Practice point:  A party's statements memorialized in a police accident report may constitute admissions, and, on a summary judgment motion, conflicting statements containing a different version of the facts present only a feigned issue of fact.

Case:  Colon v. Vals Ocean Pac. Sea Food, Inc., NY Slip Op 00097 (1st Dep't January 9, 2018)

Here is the decision.

Labor Law claims.

The Appellate Division determined that the motion court correctly dismissed the § 241(6) claim. Plaintiff fell when a chain caught his foot, and not because of a slippery condition or foreign substance.  Therefore, Industrial Code § 23-1.7(d) is not implicated.  In addition, plaintiff fell from a tractor trailer, and not in a passageway, and so § 23-1.7(e)(1) does not apply. Finally, the metal bars welded to the trailer's body for use as a ladder or stairway are not a single ladder within the meaning of § 23-1.21(c).

The Appellate Division found that the motion court should not have granted, sue sponte, summary judgment to  plaintiff on the § 240(1) claim.  While plaintiff was injured while engaged in an enumerated activity, there are questions of fact as to whether plaintiff was the sole proximate cause of the accident.

Case:  Cross v. Noble Ellenburg Windpark, LLC, NY Slip Op 00092 (1st Dep't January 9, 2018)

Here is the decision.

Tenants in common and duty of care.

Practice point:  Tenants in common have a quasi-trust or fiduciary relationship with regard to the property they commonly hold.

Case:  Pichler v. Jackson, NY Slip Op 00077 (1st Dep't January 4, 2018)

Here is the decision.

Res ipsa loquitur.

Practice point:  In this action for damages resulting from an accident involving a misleveled elevator, the applicability of the doctrine of res ipsa loquitur is not overcome by evidence that the elevator was regularly inspected and maintained.

Case: Dzidowska v. Related Cos., LP, NY Slip Op 00074 (1st Dep't January 4, 2018)

Here is the decision.

Statute of limitations.

Practice point:  The plaintiff's filing of the motion to amend and annexed proposed amended pleadings tolls the applicable statute of limitations.

Case:  Abreau v. Casey, NY Slip Op 00067 (1st Dep't January 4, 2018)

Here is the decision.

The defendant's burden on a summary judgment motion.

Practice point:  A defendant who merely points to perceived gaps in the plaintiff's proof does not establish entitlement to summary judgment.

Case:  Hairston v. Liberty Behavioral Mgt. Corp., NY Slip Op 00004 (1st Dep't January 2, 2018)

Here is the decision.

A vehicular accident and negligence.

Practice point:  Crossing a double yellow line into the opposing traffic lane, in violation of Vehicle and Traffic Law § 1126(a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver's own making.

Student note:  A driver is not required to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic.

Case: Browne v. Logan Bus Co., Inc., NY Slip Op 09111 (2d Dep't December 27, 2017)

Here is the decision.

Denial of a motion to renew.

The Appellate Division affirmed the denial of the motion since it was not based on new facts that would change the prior determination, as required by CPLR 2221[e].  The purportedly new facts concerning the failure to timely file a satisfaction of judgment pursuant to a prior stipulation were wholly unrelated to the court's prior determination that the stipulation was not the product of duress. In addition, the movant, under the guise of renewal, improperly advances a new legal theory - breach of the stipulation - rather than the basis of the original motion, which was the stipulation's invalidity.

Case:  Atlas v. Smily, NY Slip Op 09248 (1st Dep't December 28. 2017)

Here is the decision.

Waiver of defenses.

Practice point: Because defendant failed to timely raise defenses based on service of process and standing in an answer or pre-answer motion to dismiss, those defenses are waived, pursuant to CPLR 3211[e].

Student note:  In any event, the affidavit of service of the summons and complaint constitutes prima facie evidence of proper service, which defendant failed to rebut with anything more than conclusory denials of receipt.

Case:  U.S. Bank N.A. v. Thomas, NY Slip Op 09241 (1st Dep't December 28, 2017)

Here is the decision.

New Year's, here and now, there and then.