Expert opinons.

Practice point:  The opinion is without probative value if it is based on purported facts that are flatly contradicted by the evidence of record.

Holmes v. New York City Tr. Auth., NY Slip Op 08069 (1st Dep't November 27, 2018)

Here is the decision

Immunity from service of process.

Practice point:  Nondomiciliaries are immune from civil process when they voluntarily appear in New York to participate in any legal proceeding.

Student note: For immunity to attach, there must be no available means of acquiring jurisdiction over the person other than personal service in New York.

Sandella v. Hill, NY Slip Op 08051 (2d Dep't November 21, 2018)

Here is the decision.

Motions to consolidate.

Practice point:  The motion will be granted where the actions arise from the same transaction, concern the same parties, and involve common questions of law and fact.

Student note:  Consolidation is appropriate where it will avoid unnecessary duplication of trials; save unnecessary costs and expense; and prevent any injustice which would result from divergent decisions based on the same set of facts. The motion, which is left to the sound discretion of the trial court, should be granted absent a showing of prejudice to the non-movant, pursuant to CPLR 602(a).

Rhoe v. Reid, NY Slip Op 08049 (2d Dep't November 21, 2018)

Here is the decision.

Transfer of title to a motor vehicle.

Practice point:  The title is transferred when the parties intend the transfer to occur.

Bunn v. City of New York, NY Slip Op 07936 (1st Dep't November 20, 2018)

Here is the decision.

A dismissed fraud claim.

Practice point:  The claim will be dismissed as duplicative of the contract claim if it does not allege that the defendant breached a duty other than the contractual duty, but merely restates the contract claim in terms of fraud and misrepresentation.

FJ Vulis, LLC v. Val, NY Slip Op 07835 (1st Dep't November 15, 2018)

Here is the decision.

General Municipal Law § 50-e.

Practice point:  Where malpractice is apparent from an independent review of the medical records, those records constitute actual notice of the pertinent facts of the claim.

Student note:  Pursuant to the statute, a party seeking to sue a public corporation must serve a notice of claim on the prospective defendant within ninety days after the claim arises.

Ballantine v. Pine Plains Hose Co., Inc., NY Slip Op 07697 (2d Dep't November 14, 2018)

Here is the decision.

Court holiday.

Preemptions by federal law.

Practice point:  Federal law preempts State claims that require the interpretation of a collective bargaining agreement.

Student note:  When the Appellate Division affirms on preemption grounds, it need not reach any of the other issues raised in the parties' briefs.

Matter of McLane v. AT&T, Inc., NY Slip Op 07686 (1st Dep't November 13, 2018)

Here is the decision.

Insufficient allegations of fraud.

Practice point:  Allegations pled on information and belief are not sufficient to establish the necessary quantum of proof to sustain a claim of fraud.

Weinberg v. Kaminsky, NY Slip Op 07652 (1st Dep't November 13, 2018)

Here is the decision.

Vacating an arbitral award.

Practice point:  The arbitrator's errors of fact or law are insufficient to vacate the award.

Student note:  CPLR 7511 provides four grounds for vacating an award, one of which is the exceeding of the arbitrator's power. This requires a showing that the award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

Matter of NRT N.Y. LLC v. Spell, NY Slip Op 07664 (1st Dep't November 13, 2018)

Here is the decision.

Disclosure of mental health records.

Practice point:  Plaintiff put his mental condition at issue by seeking to recover damages for emotional distress. Pursuant to CPLR 3101(a), he must provide defendants with an unlimited authorization for all mental health records for treatment in connection with the injuries he alleges in the complaint.

Rosen v. MHM Realty LLC, NY Slip Op 07549 (1st Dep't November 8, 2018)

Here is the decision.

Discovery and the timing of a summary judgment motion.

Practice point:  There should be a reasonable opportunity to conduct discovery prior to the determination of a summary judgment motion, pursuant to CPLR 3212(f), where further discovery might lead to relevant evidence.

Haxhijaj v. Ferrer, NY Slip Op 07416 (2d Dep't November 7, 2018)

Here is the decision.

An affirmative defense of improper service.

Practice point:  After serving an answer asserting the affirmative defense, a defendant must move for judgment within 60 days, pursuant to CPLR 3211(e).

Student note:  Service of an amended answer does not reset the 60-day period.

Bulkan v. Stepp's Towing Serv., Inc., NY Slip Op 07406 (2d Dep't November 7, 2018)

Here is the decision.

An unenforceable fees provision.

Practice point:  A contractual provision which provides that the tenant must pay attorneys' fees if it commences an action against the landlord based on the landlord's default is unconscionable and unenforceable as a penalty.

Student note:  Parties to a lease may contract for reasonable attorneys' fees provided that they are not in the nature of penalty or forfeiture. Whether a fees provision is an unenforceable penalty is a question of law. A finding of unconscionability requires a showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.

Matter of Krodel v. Amalgamated Dwellings Inc., NY Slip Op 07531 (1st Dep't November 8, 2018)

Here is the decision.

MACV.

                      

Normandy.

In Flanders Fields.

Dismissal of a Dram Shop Act claim.

The defendant was granted summary judgment dismissing plaintiff's cause of action brought under the Dram Shop Act, codified at General Obligations Law § 11-101. A witness testified that the plaintiff's assailant did not appear visibly intoxicated when the defendant served him two drinks. This evidence is enough to make out a prima facie showing that the assailant was not visibly intoxicated at the time he was served alcohol, since it is clear from the record that he was not served from that time until he attacked the plaintiff.  In opposition, the plaintiff failed to raise a triable issue of fact.

Ricaurte v. Inwood Beer Garden & Bistro Inc., NY Slip Op 07242 (1st Dep't November 9, 2018)

Here is the decision.

The doctrine of equitable estoppel.

The doctrine does not toll the limitations statute if the plaintiff had timely knowledge sufficient to put it under a duty to make inquiry and ascertain all the relevant facts prior to the expiration of the applicable limitations period.

Brean Murray, Carret & Co. v. Morrison & Foerster LLP, NY Slip Op 07238 (1st Dep't October 30, 2018)

Here is the decision.

A premature motion for summary judgment.

Pursuant to CPLR 3212[f], the motion will be denied as premature on a demonstration that facts essential to opposing the motion may lie within the movant's exclusive knowledge or control.

Marabyan v. 511 W. 179 Realty Corp., NY Slip Op 07237 (1st Dep't October 30, 2018)

Here is the decision.

Court holiday.

A § 1983 claim for deliberate indifference to medical needs.

Where the defendant-hospital contracted with the City to provide medical care to persons incarcerated at the City's detention facility, it is considered a municipality for purposes of a 42 USC § 1983 analysis. A municipal defendant is subject to statutory liability for deliberate indifference to medical needs only where the alleged injury results from the execution of an unconstitutional policy or practice.

Smith v. St. Barnabas Hosp., NY Slip Op 07189 (1st Dep't October 25, 2018)

Here is the decision.

A settling municpality-defendant.

Pursuant to CPLR 5003-a(b), a settling municipality-defendant must pay all sums due to the plaintiff within ninety days of the plaintiff's tender of the settlement documents. Pursuant to 5003-a(e), if the municipality does not make timely payment, the plaintiff is entitled to a judgment in the amount set forth in the release, together with costs and lawful disbursements, and interest on the amount set forth in the release from the date of the tender of the release and stipulation of discontinuance.

Howell v. City of New York, NY Slip Op 07178 (1st Dep't October 25, 2018)

Here is the decision.

Moving for a default judgment.

The movant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear. In opposition, the defendant must demonstrate a reasonable excuse for the delay and a potentially meritorious defense to the action. The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court. Similarly, to extend the time to answer the complaint and to compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense, pursuant to CPLR 3012[d).

Aurora Loan Servs., LLC v. Movtady, NY Slip Op 07085 (2d Dep't October 24, 2018)

Here is the decision.