Lack of personal jurisdiction, and forum non conveniens.

Practice point: Defendant did not waive this affirmative defense by moving for summary judgment dismissing the complaint on the merits, given that defendant had previously raised the jurisdictional defense.

Student note: The promissory note at issue contained a clause selecting New York as the forum, barring defendant's forum non conveniens motion.

Case: Gliklad v. Cherney,  NY Slip Op 05333 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Defamation.

Extending the time for service of a summons and complaint.

Practice point: A motion pursuant to CPLR 306-b to extend the time may be granted upon good cause shown, or in the interest of justice.

Student note: The court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the potentially meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant.

Case: Moundrakis v. Dellis, NY Slip Op 05152 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Lack of personal jurisdiction, and forum non conveniens.

Workers' Compensation and special employers.

Practice point: When an employee elects to receive Workers' Compensation benefits from his or her general employer, a special employer is shielded from any action at law commenced by the employee.

Student note: A special employee is one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome with a clear demonstration of the general employer’s surrender of control by the general employer and the special employer’s assumption of control. Principal factors in determining whether a special relationship exists include the right to control, the method of payment, the furnishing of equipment, the right to discharge, and the relative nature of the work. An especially important factor is who controls the manner, details, and ultimate result of the employee's work.

Case: Digirolomo v. Goldstein, NY Slip Op 05134 (2d Dept. 2012).
 
Here is the decision.

Monday’s issue: Extending the time for service of a summons and complaint.

Leave to file a late notice of claim, and the continuous treatment doctrine.

Practice point: The court denied plaintiff’s motion for leave to extend their time to file a notice of claim against New York City Health & Hospitals Corporation, as the application was made beyond the time limit for the commencement of the action, namely, one year and 90 days, pursuant to Municipal General Law § 50-e[5].

Student note: Plaintiff did not establish that the June 16, 2011 visit was part of a continuous course of treatment, for purposes of tolling the statute of limitations, as there was no contemplation of further treatment at the May 2010 visit, no appointments were scheduled for monitoring, and plaintiff made no interim complaints concerning the condition.

Case: Diaz-Mazariegos v. New York City Health and Hosps. Corp., NY Slip Op 05082 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue:Workers’ Compensation and special employers.

Court holiday.

The Courts are closed to mark the holiday.

On this July Fourth, a special word of thanks to Veterans who served anywhere, at any time.

Tomorrow’s issue: Leave to file a late notice of claim, and the continuous treatment doctrine.

Worker's fall from a ladder.

Practice point: Plaintiff testified that while cleaning the top shelves of a closet, in an apartment that was undergoing a gut renovation, the A-frame ladder on which she was standing tipped over, and she fell to the ground with the ladder falling on top of her. The court found that plaintiff had made out a prima facie case of liability, and dismissal of the Labor Law 240(1) cause of action was improper. 

Student note: The court, however, denied summary judgment to plaintiff. The manner of the happening of the accident is within plaintiff’s exclusive knowledge, and the only evidence submitted in support of defendants' liability is plaintiff's account. Defendants should have the opportunity to subject plaintiff's testimony to cross-examination to explore whether she misused the ladder and was the sole proximate cause of the accident, and to have her credibility determined at trial.

Case: Grant v. Steve Mark, Inc., NY Slip Op 05075 (1st Dept. 2012).

Here is the decision.

 Thursday’s issue: Leave to file a late notice of claim, and the continuous treatment doctrine.

Dismissal for failure to appear at a calendar call.

Practice point: The Supreme Court, sua sponte, improperly dismissed the action pursuant to 22 NYCRR 202.27 on the ground that the plaintiffs failed “to proceed as directed by the court” when they did not appear on a scheduled court date. The plaintiffs demonstrated that they did not have notice of the trial calendar call of the action through the uncontroverted affidavit of their attorney, which stated that counsel did not receive any notice for a court appearance. Without notice of the court appearance, the default was a nullity, as was the remedy imposed by the Supreme Court as a consequence of the default.

Student note: In this situation, vacatur was required as a matter of law and due process, and no showing of a potentially meritorious cause of action was required.

Case: Pavlou v. Associates Food Stores, Inc., NY Slip Op 04982 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Worker’s fall from a ladder.

Law of the case, and equitable affirmative defenses.

Practice point: Where issues have been raised and determined in a prior appeal, or if those issues could have been raised, their reconsideration is barred by the doctrine of law of the case, pursuant to  CPLR 5501[a]. The doctrine applies only to legal determinations that were necessarily resolved on the merits in the prior decision, and to the same questions presented in the same case.

Student note: On a claim to recover damages for unjust enrichment, equitable affirmative defenses could be properly asserted since the action is not one exclusively at law.

Case: Moran Enters., Inc. v. Hurst, NY Slip Op 04980 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Dismissal for failure to appear at a calendar call.

Common law indemnification.

Practice point: The key element of the cause of action is not a duty running from the indemnitor to the injured party, but a separate duty owed the indemnitee by the indemnitor.

Student note: Indemnity may be based on an express contract, but more commonly the indemnity obligation is implied, based on the law's notion of what is fair and proper as between the parties.

Case: Lovino, Inc. v. Lavallee Law Offs., NY Slip Op 04977 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Law of the case, and equitable affirmative defenses.

Motion to dismiss a legal malpractice claim.

Practice point: The motion, pursuant to CPLR 3211(a)(1), may be granted only if the movant’s documentary evidence utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law. Here, the defendants submitted a retainer agreement stating that there was "no assurance or guarantee of the outcome," and also that the agreement "does not include representation for . . . legal services after the Judgment of Trial Court . . . [or] [t]he Appeal of any decisions of the Trial Court." In opposing, the plaintiff’s affidavit detailed how the defendants failed to pursue a motion for leave to reargue or other application to modify a decision in the underlying action, submitted deficient or inappropriate proposed findings of fact and conclusions of law, and failed to adequately address various necessary issues during the trial. The court found that the retainer agreement was insufficient documentary evidence to dispose of those allegations.

Student note: A court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and upon considering such an affidavit, the facts alleged therein must also be assumed to be true.

Case: Harris v. Barbera, NY Slip Op 04973 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Common law indemnification

Experts' affidavits and amending bills of particulars.

Practice point: The court declined to consider the affidavit of the plaintiff's expert, since the plaintiff failed to identify the expert in pretrial disclosure, and served the affidavit, which was elicited solely to oppose the motion for summary judgment, after filing a note of issue and certificate of readiness attesting to the completion of discovery.

Student note: The court denied that branch of the plaintiff's cross motion which was for leave to amend her bill of particulars. The plaintiff failed to set forth any excuse for her delay in seeking to amend her bill of particulars, which was for more than two years after the note of issue was filed.

Case: Ames v. Kamco Supply Corp., NY Slip Op 04960 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion to dismiss a legal malpractice claim.