Avoiding dismissal for failure to proceed.

Practice point: CPLR 3216 does not require, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on an unreasonable neglect to proceed. Although the statute prohibits the Supreme Court from dismissing a complaint based on failure to prosecute whenever a plaintiff has shown a justifiable excuse for the delay and the existence of a potentially meritorious cause of action, such a dual showing is not strictly necessary in order for a plaintiff to escape dismissal.

Student note: Plaintiff’s failure to meet the deadline for filing the note of issue was excused  because there was only a three-day delay in filing, and the excuse of law office failure was reasonable. In addition, the defendants did not claim any prejudice, and there was no evidence of a pattern of persistent neglect and delay in prosecuting the action or of any intent to abandon the action.

Case: Gordon v. Ratner, NY Slip Op 05497 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Disclosing a cause of action as an asset in a bankruptcy proceeding.

Correcting a mistake in assembling a pleading.

Practice point: The Supreme Court properly considered the defendant’s motion for summary judgment on the merits. In his initial moving papers, rather than annexing his answer as an exhibit, he inadvertently annexed the answer of one of the codefendants. This problem was rectified in the reply affirmation of his counsel, who annexed a copy of the correct pleading as an exhibit.

Student note: While CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced. Here, no substantial right of the plaintiff was prejudiced by the corrective inclusion of a copy of  the defendant’s answer with his reply affirmation, and the Supreme Court properly exercised its discretion to consider the motion in its merits.

Case:  Avalon Gardens Rehabilitation & Health Care Ctr., LLC v. Morsello, NY Slip Op 05485 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Avoiding dismissal for failure to proceed.

Newly-discovered evidence.

Practice point: Pursuant to CPLR 4404(b), after a trial not triable as of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision and issue a new decision based newly-discovered evidence. Pursuant to CPLR 5015(a), the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of, among other things, newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404.

Student note: In order for such relief under CPLR 4404(b) or 5015(a)(2), the movant must show that it could not have previously discovered the evidence, and the new evidence must be in admissible form.

Case: Da Silva v. Savo, NY Slip Op 05383 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Correcting a mistake in assembling a pleading.

An account stated.

Practice point: There was no prima facie showing of entitlement to judgment as a matter of law because the plaintiff did not submit sufficient evidence to establish that the defendant retained the account statements without objecting to them within a reasonable period of time. While an employee who reviewed the plaintiff's records stated by affidavit that the credit card statements were mailed to the defendant on a monthly basis, she failed to aver that the defendant retained these statements for a reasonable period of time without objecting to them. The plaintiff also submitted three checks as evidence of partial payments on the account statements. Two of these checks, however, were for payment of the full amount owed on the account at the time and predated the disputed charges. The third check, in the sum of $300, only reflected a small proportion of the debt owed at the time, approximately $19,000, and, by itself, did not create an inference of assent.

Student note: An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due. The agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account.

Case: Citibank v. Brown-Serulovic, NY Slip Op 05381 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Newly-discovered evidence.

Motion for a joint trial.

Practice point: Where common questions of law or fact exist, the motion, pursuant to CPLR 602(a), should be granted absent a showing of prejudice to a substantial right of the party opposing the motion.

Student note: Mere delay is not a sufficient basis to justify the denial of the motion.

Case: Alzio v. Feldman, NY Slip Op 05378 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: An account stated.

Defamation.

Practice point: There is no cause of action relying on statements contained in affidavits submitted in opposition to plaintiffs' preliminary injunction motion, because those statements are protected by both the judicial proceedings and fair report privileges.

Student note: It is not a fatal defect that the an allegation does not specify which of the defendants made the statements.

Case: Fletcher v. Dakota, Inc., NY Slip Op 05338 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motion for a joint trial.

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.