Process servers' affidavits.

Practice point: The process server's affidavit of service constituted prima facie evidence of proper service pursuant to CPLR 308(2). In support of his motion to dismiss, the defendant offered an affidavit denying service, but he failed to swear to specific facts to rebut the statements in the process server's affidavit. As such, no hearing was necessary to determine whether service was proper.

Student note: In any event, defendant’s motion was premature as it was made within the initial 120-day period provided for service in CPLR 306-b.. Since the plaintiff had the absolute statutory right to effect valid service at any point within the 120-day period following the filing of the summons and complaint, dismissal of the complaint prior to the expiration of that period would have been improper.

Case: Bank of N.Y. v. Scura, NY Slip Op 00166 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Piercing the corporate veil.

Summary judgment as to liability denied.

Practice point: Plaintiffs failed to make a prima facie showing of entitlement to partial summary judgment as a matter of law. The non-prosecution agreement entered into between the New York County District Attorney's Office (NYDA) and defendants-Bovis, following NYDA's criminal investigation of the 2007 fire at the Deutsche Building in lower Manhattan, was correctly deemed inadmissible as proof of liability. The agreement explicitly provided that Bovis had not admitted liability; that the factual statements contained in the agreement were relevant only for the purposes of the compromise between the NYDA and Bovis; and that Bovis could contradict and/or contest any factual statement in the agreement in a subsequent action or proceeding to which the NYDA was not a party.

Student note:Judicial estoppel, and even informal judicial estoppel, cannot be applied here. Bovis was not a party to any legal proceeding when it entered into the non-prosecution agreement, and the agreement and related documents amount to a pre-indictment settlement agreement that was neither judicially endorsed nor approved.

Case: Borst v. Bovis Lend Lease LMB, Inc., NY Slip Op 00265 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Process servers’ affidavits.

Worker's fall from a ladder.

Practice point: In evaluating a claim under Labor Law § 240(1), the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. It is well settled that failure to properly secure a ladder to insure that it remains steady and erect while being used constitutes a statutory violation. Plaintiff's testimony that the ladder he was using was both unsteady as he was ascending it and too short to enable him to reach the window he was cleaning establishes prima facie that defendants failed to provide him with an adequate safety device under Labor Law § 240(1) and that their failure proximately caused his injuries.

Student note: To rebut plaintiff's prima facie case, defendants asserted that plaintiff was negligent because he was on top of the ladder. However, because plaintiff established that no adequate safety device was provided, his own negligence, if any, is of no consequence.

Case: Cuentas v. Sephora USA, Inc., NY Slip Op 00257 (1st Dept. 2013).

Here is the decision. 

Tomorrow’s issue: Summary judgment as to liability denied.

Declaratory judgments, and motions to dismiss.

Practice point: Pursuant to CPLR 3001, the Supreme Court may render a declaratory judgment as to the rights and other legal relations of the parties to a justiciable controversy. The demand for relief in the complaint shall specify the rights and other legal relations on which a declaration is requested, pursuant to CPLR 3017[b]. A motion to dismiss the complaint in an action for a declaratory judgment presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration.

Student note: Where the cause of action is sufficient to invoke the court's power to render a declaratory judgment, a motion to dismiss should be denied.

Case: DiGiorgio v. 1109-1113 Manhattan Ave. Partners, LLC, NY Slip Op 00172 (2d Dept. 2013).

Here is the decision.

Monday’s issue: A worker’s fall from a ladder.

Notices of claim.

Practice point: Timely and proper service of a notice of claim which, among other things, sufficiently identifies the claimant, states the nature of the claim, and describes the time when, the place where and the manner in which the claim arose, is a condition precedent to the commencement of a common-law tort action against a municipality, pursuant to General Municipal Law § 50-e[2].

Student note:The test of the notice's sufficiency is whether it includes information sufficient to enable the city to investigate the claim. Although General Municipal Law § 50-e(6) permits correction of good faith, nonprejudicial, technical mistakes, defects or omissions, it does not authorize substantive changes in the theory of liability.

Case: Tully v. City of Glen Cove, NY Slip Op 00076 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Declaratory judgments and motions to dismiss.

Spoilation.

Practice point: Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading.

Student note: Recognizing that striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct, courts will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness. Precluding a party from presenting evidence at trial is also a drastic sanction which generally requires a showing that a party's lack of cooperation with discovery was willful, deliberate, or contumacious. Less severe sanctions for spoliation of evidence are appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her defense or case.

Case: Jennings v. Orange Regional Med. Ctr., NY Slip Op 00064 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Notices of claim.

Slips and falls.

Practice point: A plaintiff's inability to identify the cause of the fall is fatal to the action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Student note: Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a slip and fall accident, any determination by the trier of fact as to causation would be based upon sheer conjecture.

Case: Dennis v. Lakhani, NY Slip Op 00061 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Spoilation.

Court holiday.

The courts are closed today.

Tomorrow's issue: Slips and falls.

An account stated.

Practice point: 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.  An 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.

Student note: Here, the affidavit of the plaintiff's project manager stated that, when the defendant was contacted about payment, she stated that she never authorized the plaintiff to do work in her home and did not intend to pay the plaintiff. In addition, the plaintiff's project manager averred that "not even a single payment was ever received," even though the defendant had been billed for the plaintiff's services. These submissions were insufficient to establish, as a matter of law, that the defendant retained the subject invoices for an unreasonable period of time without objecting to them, or that she made partial payment on the invoices.

Case: Branch Servs., Inc. v. Cooper, NY Slip Op 00058 (2d Dept. 2013).

Here is the decision.

Tuesday’s issue: Slips and falls.

Appellate practice.

Practice point: It is the obligation of the appellant to assemble a proper record on appeal. An appellant's record must contain all of the relevant papers that were before the Supreme Court, pursuant to CPLR 5526.

Student note: Here, the record on appeal was inadequate. The appellants failed to include the order to show cause by which they moved to vacate the subject foreign judgment and any of the other related papers, including affirmations in support of and in opposition to the motion. These omissions rendered meaningful appellate review of the Supreme Court's determination virtually impossible.

Case: Barretti v. Solucorp Indus., Ltd.., NY Slip Op 00054 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: An account stated.

Pushed around at a rock concert.

Practice point: Defendants met their initial burden of showing that they provided adequate security measures at Ozzfest 2006, an outdoor concert held on Randall's Island. They submitted evidence showing that meetings were held with the NYPD to assess the security plans proposed, and that they ultimately provided 215 personnel to secure the concert, the attendance of which was about 10,000 to 12,000, and that such security would have been sufficient for a crowd of 30,000. Plaintiffs offered no evidence, expert or otherwise, to show that such security was inadequate,

Student note: Contrary to plaintiff's contention, the court found no evidence in the record to show that the unidentified person who shoved plaintiff was actually engaged in dangerous moshing or slam dancing, and plaintiff himself testified that he was unsure whether his injury was due to an intentional push or someone simply bumping into him. In any event, that unidentified nonparty caused plaintiff's fall, and under the circumstances here, defendants will not be liable for such unforeseen conduct.

Case: Marrero v. City of New York, 00015 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Appellate practice.