Service of a petition to vacate an arbitration award.

Practice point: Petitioner failed to show that the petition was served on a person authorized to receive service of process pursuant to CPLR 311(a)(1). The petitioner relied on a provision of the parties' franchise agreement which concerns only service of a notice required by the agreement, not service of process required by the CPLR.

Student note: In addition, commencement of the proceeding was untimely, since the purported service occurred more than 90 days after the award was received.

Case: Cere v. Subway Intl. BV, NY Slip Op 04384 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Stating a cause of action sounding in legal malpractice.

Sanctions for discovery violations.

Practice point: The general rule is that a court must impose a sanction commensurate with the particular disobedience it is designed to punish. Before a court invokes the drastic remedy of striking a pleading, or even of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious.

Student note: The nature and degree of a penalty to be imposed under CPLR 3126 is addressed to the court's discretion, and the statute permits courts to fashion such orders as are just.

Case: Zakhidov v. Boulevard Tenants Corp., NY Slip Op 04334 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Service of a petition to vacate an arbitration award.

Motions for leave to renew.

Practice point: The motion, pursuant to CPLR 2221(e), may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion, but the movant must offer a reasonable justification for the failure to present such facts on the original motion.

Student note:  Law office failure can be accepted as a reasonable excuse in the exercise of the court's discretion.

Case: Gordon v. Boyd, NY Slip Op 04320 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Sanctions for discovery violations.

Prima facie torts.

Practice point: The requisite elements for the cause of action include (1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, (4) by an act or series of acts which are otherwise legal.

Student note: Additionally, central to a cause of action alleging prima facie tort is that the plaintiff's intent was motivated solely by malice or disinterested malevolence.

Case: Diorio v. Ossining Union Free School Dist., NY Slip Op 04314 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motions for leave to renew.

Labor Law claims for falling at the construction site.

Practice point: Plaintiff-stonemason alleged that he was injured when he tripped over a small stone while carrying a 100-pound stone across an open, grassy area. The small stone was either created during the delivery of the stones to the worksite, or when the larger stones were sized by plaintiff and his coworkers.

The § 240(1) cause of action was dismissed because the record established that the impetus for the heavy stone's fall was plaintiff's tripping on ground-level, rather than the direct consequence of gravity.

Student note: Plaintiff did not have a viable § 241(6) claim. The Industrial Code provisions relied upon, 12 NYCRR 23-1.7(d) and 12 NYCRR 23-2.1(a)(1), were inapplicable since the accident occurred in an open, grassy area, rather than a passageway or walkway. Moreover, the small stone on which plaintiff allegedly fell was an unavoidable and inherent result of the work being performed at the site.

Case: Ghany v. BC Tile Contrs., Inc., NY Slip Op 04211 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Prima facie torts.

The quality assurance privilege.

Practice point: The privilege, set forth in Education Law § 6527(3), shields from disclosure certain records and reports generated by a hospital in performing either a medical malpractice or quality assurance review. The statute confers confidentiality on three categories of documents: records relating to the performance of medical review and quality assurance functions; records reflecting participation in a medical and dental malpractice prevention program; and reports required by the New York State Department of Health, pursuant to Public Health Law § 2805-l (Education Law § 6527[3]).

Student note: The party seeking to invoke the privilege has the burden of demonstrating that the document sought was prepared in accordance with a relevant statute.

Case: Daly v. Brunswick Nursing Home, Inc., NY Slip Op 04124 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Labor Law claims for falling at the construction site.

Motions to dismiss.

Practice point: A party may move to dismiss a defense on the ground that a defense is not stated or has no merit, pursuant to CPLR 3211[b].

Student note: In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference. If there is any doubt as to the availability of a defense, it should not be dismissed.

Case: Chestnut Realty Corp. v. Kaminski, NY Slip Op 04121 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: The quality assurance privilege.

Appealing a determination of fact.

Practice point: The Supreme Court determined that the defendant's disclaimer of coverage was untimely, and the defendant appealed from so much of the order as made that determination. The appeal was dismissed because findings of fact and conclusions of law are not independently appealable.

Student note: To the extent that the defendant raises an argument on appeal regarding its motion for leave to amend its answer, that motion was not addressed by the Supreme Court, and, thus, remains pending and undecided.

Case: Baez v. First Liberty Ins. Corp., NY Slip Op 04118 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motions to dismiss.

'Falling object' liability.

Practice point: Liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured. Liability may be imposed where an object or material that fell, causing injury, was a load that required securing for the purposes of the undertaking at the time it fell.

Student note: The applicability of the statute in a falling object case does not depend upon whether the object has hit the worker. The relevant inquiry is whether the harm flows directly from the application of the force of gravity to the object.

Case: Andresky v. Wenger Constr. Co., Inc., NY Slip Op 04116 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Appealing a determination of fact.

Orders of dismissal.

Practice point: Plaintiff's motion to vacate the order of dismissal should have been granted since, whether the dismissal was pursuant to CPLR 3216(b)(3) or CPLR 3126, it did not comply with statutory requirements. The case was marked dismissed after plaintiff failed to comply with a status conference order directing him to serve and file a note of issue within seven days. That order did not comply with the requirements of CPLR 3216(b), in that plaintiff was not given 90 days to file a note of issue, and the order did not contain a statement that a default  in complying with the demand will serve as a basis for a motion for dismissal as for unreasonably neglecting to proceed. Since there was no motion pursuant to CPLR 3216(b)(3), or notice to plaintiff, the case could not be dismissed for failure to prosecute.

Student note: The status conference order is not appealable as of right because it is not an order which determined a motion made upon notice.

Case: Armstrong v. B.R. Fries & Assoc., Inc., NY Slip Op 04071 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: ‘Falling object’ liability.

The 90-day notice.

Practice point: Having received a 90-day notice, the plaintiff was required either to serve and file a timely note of issue or move, before the default date, for an extension of time pursuant to CPLR 2004. The plaintiff did neither. To avoid dismissal of the action, the plaintiff was required to show a justifiable excuse for the delay and a potentially meritorious cause of action, pursuant to CPLR 3216[e].

Student note: Plaintiff’s showing of a potentially meritorious cause of action requires an affidavit by one with personal knowledge of the facts.

Case: Colon v. Papatolis, NY Slip Op 03975 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Orders of dismissal.