Suing the Transit Authority.

Practice point:Timely service of a notice of claim is a condition precedent to the commencement of an action sounding in tort against the Transit Authority, pursuant to General Municipal Law § 50-e[1][a]; § 50-i[1][a], and Public Authorities Law § 1212[2]. In determining whether to extend the time to serve, the court will consider whether the public corporation received actual notice of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter; whether the claimant has a reasonable excuse for the failure to serve a timely notice; and whether the delay would substantially prejudice the public corporation in its defense on the merits.

Student note: Here, petitioner failed to demonstrate that the Transit Authority acquired actual knowledge of the essential facts constituting the claim within 90 days after the accident or within a reasonable time thereafter. Even though the petitioner consulted with an attorney and served a notice upon the City of New York approximately one week after the accident, he did not serve a notice upon the Transit Authority or commence this proceeding until more than four months after the consultation. The Transit Authority did not have any knowledge of the petitioner's accident and injury, or the legal theory on which liability was predicated against it prior to being served with papers in the instant proceeding. Furthermore, the petitioner failed to demonstrate a reasonable excuse for his delay. The petitioner's excuse that he only recently came to realize that he may have a claim against the Transit Authority was unacceptable. Finally, the petitioner failed to show that the delay had not deprived the Transit Authority of the opportunity to find witnesses promptly or otherwise conduct a timely and meaningful investigation in this matter.

Case: Abromovitz v. City of New York, NY Slip Op 07108 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Liability for injuries to a special employee.

Leave to amend to increase the ad damnum clause.

Practice point: In applying for to leave to amend the complaint to increase the ad damnum clause, pursuant to CPLR 3025[b], a petitioner is required to submit a physician's affirmation (1) showing a causal connection between her condition and the accident, and (2) specifying the claimed change in her condition, including any injuries that had not been previously considered, or the extent to which the condition had worsened.

Student note: Here, the application was denied because petitioner submitted a physician's affirmation which failed to establish that the increased injuries to her lower back which required surgery were causally related to the subject motor vehicle accident, as it failed to account for the fact that the petitioner had claimed to have injured her lower back in accidents that had occurred both prior and subsequent to the subject motor vehicle accident.

Case: Matter of Sealy v. Morris, NY Slip Op 07116 (2d Dept. 2012).

Here is the decision.

Tomorrow's issue: Suing the Transit Authority.

Liquidated damages provisions.

Practice point: A contract clause is one for liquidated damages if the amount of actual loss is incapable or difficult of precise estimation, and the stipulated amount of damages bears a reasonable proportion to the probable loss. Whether a contractual provision represents a liquidated damages provision is a question of law.

Student  note: Liquidated damages provisions will be upheld only if the amount fixed is a reasonable measure of the probable actual loss in the event of a breach. If the amount fixed is grossly disproportionate to the amount of actual damages, then the liquidated damages provision amounts to a penalty and will not be enforced.

Case: G3-Purves St., LLC v. Thomson Purves, LLC, NY Slip Op 06919 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue:   Leave to amend to increase the ad damnum clause.

Court holiday.

The courts are closed to mark Veterans Day.

To all Veterans, thank you for your service, no matter where or when.

Tomorrow's issue is liquidated damages provisions.

Defense based on documentary evidence.

Practice point: A defendant may move for judgment dismissing a cause of action on the ground that a defense is founded upon documentary evidence, pursuant to CPLR 3211[a][1]. The motion may be granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Student note:  Materials that clearly qualify as documentary evidence include documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable.

Case: Sands Point Partners Private Client Group v. Fidelity Natl. Tit. Ins. Co., NY Slip Op 07097 (2d Dept. 2012).

Here is the decision. 

Tuesday's issue: Liquidated damages provisions.

Collecting attorneys' fees.

Practice point: New York follows the so-called American Rule, which is that an attorney's fee is merely an incident of litigation and is not recoverable absent a specific contractual provision or statutory authority.

Student note: Accordingly, a contractual provision permitting the prevailing party to recover fees that are incidents of litigation will be construed strictly. A promise assuming the obligation to pay fees will not be given effect unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances.

Case: 214 Wall St. Assoc., LLC v. Medical Arts-Huntington Realty, NY Slip Op 07103 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Defense based on documentary evidence.

Vacating a default, and law office failure.

Practice point: To vacate his default in opposing the plaintiffs' motion for summary judgment on the complaint, a defendant is required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1].

Student note: While law office failure can be accepted as a reasonable excuse in the exercise of a court's sound discretion, the movant must submit supporting facts to explain and justify the default, and mere neglect is not accepted as a reasonable excuse.

Case:  Taylor Appraisals v. Prokop, NY Slip Op. 07099 (2d Dept 2012).

Here is the decision. 

Tomorrow’s issue: Collecting attorneys’ fees.

Court holiday.

The courts are closed today because of the elections.

Wednesday's issue: Vacating a default, and law office failure.

Malpractice as opposed to negligence.

Practice point: The distinction between malpractice and ordinary negligence turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons, or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts.

Student note: When the incompetence alleged is of a specialized medical nature, deriving from the physician-patient relationship, and substantially related to medical diagnosis and treatment, the action it gives rise to is by definition one for medical malpractice rather than for simple negligence.

Case: Giordano v. Scherz, NY Slip Op 07087 (2d Dept. 2012).

Here is the decision. 

Wednesday’s issue: Vacating a default and law office failure.

Motion to dismiss for failure to state a cause of action.

Practice point: On the motion, pursuant to CPLR 3211(a)(7), the court must construe the pleading liberally, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Student note: The motion should be granted only when (1) it has been shown that a material fact alleged in the complaint is not a fact at all, and (2) there is no significant dispute regarding it.

Case: Cusso v. Chabau Café Corp., NY Slip Op 07084 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Malpractice as opposed to negligence.

Improper service of an order to show cause.

Practice point: The absence of proper service of an order to show cause is a sufficient and complete excuse for a default on the motion, and deprives the court of jurisdiction to entertain the motion.

Student note: Since the court was deprived of jurisdiction to entertain the plaintiff's motion, the order granting the motion, and the judgment entered upon that order, were nullities and must be vacated.

Case: Crown Waterproofing, Inc. v. Tadco Constr. Corp., NY Slip Op 07083 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Motion to dismiss for failure to state a cause of action.