Proving personal jurisdiction.

Practice point:  In opposing a motion to dismiss pursuant to CPLR 3211(a)(8), on the ground that discovery on the issue of personal jurisdiction is necessary, a plaintiff need not make a prima facie showing of jurisdiction, but must only set forth a sufficient start and show that its position is not frivolous.

Here, plaintiff's president's affidavit established that facts may exist to support the exercise of personal jurisdiction over the defendant, and thus the plaintiff made a sufficient start in showing that further discovery on the issue of personal jurisdiction is warranted. Under those circumstances, the Supreme Court should have exercised its discretion pursuant to CPLR 3211(d) to deny the motion without prejudice to renew upon the completion of such discovery.

Student note:  The jurisdictional issue is likely to be complex. Discovery is desirable and may be essential, and likely will lead to a more accurate judgment than one made solely on the basis of inconclusive preliminary affidavits.

Case:  Expert Sewer & Drain, LLC v. New England Mun. Equip. Co., Inc., NY Slip Op 03298 (2d Dept. 2013). 

Here is the decision. 

Tomorrow's issue: An allegedly defective staircase.

A mistake in a notice of claim.

Practice point:  In this trip and fall action, plaintiff's notice of claim listed the wrong street address (390 Central Park West rather than 360 Central Park West) in describing the location of her fall on a sidewalk, adjacent to Central Park, and across the street from that address. However, plaintiff also annexed a photograph to the notice of claim which depicted the intersection of Central Park West and 96th Street, which is nearly four blocks south of the incorrect address provided in the notice of claim, and the written description of the location in the notice was consistent with the area depicted in the photograph. Moreover, at the statutory hearing held six weeks after the notice was served, and three and a half months after the accident, plaintiff explicitly testified that her accident occurred on the sidewalk just a few car lengths south of the 96th Street intersection, and identified the location in the photograph as also shown. In addition, less than five months after the hearing, plaintiff served the summons and complaint, providing the proper street address. Under these circumstances, the Appellate Division found that the mistake in the notice was not made in bad faith, nor was it intended to mislead or confuse the City, and so it should have been disregarded or plaintiff should have been allowed to correct the notice pursuant to GML § 50-e(6).

Student note:  Municipalities must put forth at least a modicum of effort to investigate a notice of claim and to obtain missing information.  Here, defendant never sent anyone to investigate the scene depicted in the photograph, and did not perform a computerized record search of the incorrect address until more than two years after being apprised of the correct location at the hearing. Although plaintiff served a bill of particulars six months before the computer search with the same typographical error in the address, defendant still made no effort to ascertain which of the two locations was correct. In any event, plaintiff's discovery responses, served less than one week after this computer search, provided additional photographs showing the sidewalk defect at issue, and a building awning with the street number "360" is clearly visible directly across the street in the background. Moreover, defendant engaged in settlement discussions just a few months later, during which the actual accident location was discussed, and did not file the instant motion alleging confusion as to the accident location until nearly a year and a half later - one week after entering into a so-ordered stipulation to provide discovery for the proper location that was explicitly set forth in the order.

Case:  Green v. City of New York, NY Slip Op 03382 (1st Dept. 2013).

Here is the decision.

Monday's issue: Proving personal jurisdiction.

Ambiguous writings.

Practice point:  When a term or clause is ambiguous, the parties may submit extrinsic evidence as an aid in construction, and the resolution of the ambiguity is for the trier of fact.

Student note:  Whether a writing is ambiguous is a question of law to be resolved by the courts. There is ambiguity if the language is written so imperfectly that it is susceptible to more than one reasonable interpretation

Case:  Dobbs v. North Shore Hematology-Oncology Assoc., P.C., NY Slip Op 03295 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  A mistake in a notice of claim.

Homeowner's liability for negligent snow and ice removal.

Practice point:  Since the defendants' property, a two-family house, was owner-occupied and used exclusively for residential purposes, the defendants were exempt from liability imposed pursuant to Administrative Code of the City of New York § 7-210(b) for negligent failure to remove snow and ice from the sidewalk. Thus, the defendants may be held liable for a hazardous snow and ice condition on the sidewalk only if they undertook snow and ice removal efforts that made the naturally occurring condition more hazardous or caused the defect to occur because of a special use.

Student note: Unless one of these factors is present, an abutting owner of a two-family residence may not be held liable for the removal of snow and ice in an incomplete manner.

Case: Rodrigo Texis Cuapio v. Skrodzki, NY Slip Op 03293 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Ambiguous writings.

Motions for an extension of time and reargument.

Practice point: Defendants failed to offer a plausible excuse as to why they failed to secure a sworn statement from plaintiff's foreman although 2½ years had transpired since plaintiff's deposition where defendants learned of the foreman's involvement at the accident site. Accordingly, the court denied defendants a further extension of the time in which to file their summary judgment motion so as to permit them to obtain and incorporate such statement in the motion.

Student note: Since defendants failed to show any new facts which were not previously considered by the court on the original motion, their motion to renew and reargue was actually one for reargument only, the denial of which is nonappealable.

Case: Garcia v. New York Times Co., NY Slip Op 03380 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Homeowner's liability for negligent snow and ice removal.

Defects too trivial to be actionable.

Practice point:  Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable. Here, the photographs submitted by the school district depict a lengthy crack in the pavement which was at least ¾ of an inch deep and approximately 4 inches wide at the specific site of the accident. Given the high-traffic location of the occurrence, the length, depth, width, and irregularity of the defect, and the circumstances of the accident as set forth in witness testimony, the school district failed to meet its prima facie burden of establishing that the defect was trivial and nonactionable as a matter of law.

Student note: In determining whether a defect is trivial, courts must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect, and the time, place, and circumstances of the accident. There is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable.

 Case:  Brenner v. Herricks Union Free Sch. Dist., NY Slip Op 03290 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Motions for an extension of time and reargument.

Affidavits, and hearsay in opposition to summary judgment.

Practice point: Plaintiff alleged that he fell and sustained injuries when the ladder on which he was standing while painting a foyer outside third-party defendant's apartment twisted and then slipped out from underneath him. However, the affidavit of the third-party defendant, who hired plaintiff's employer and was in his apartment at the time of the accident, states that no ladders were being used on the project on the date of the alleged accident. Accordingly, the affidavit raised an issue of fact concerning whether plaintiff's accident occurred as alleged. In addition, defendant submitted medical reports wherein plaintiff was quoted as providing a different description of the accident from that alleged.

Student note: Even if the reports are hearsay, they may be submitted in opposition to plaintiff's motion, and may bar summary judgment when considered in conjunction with other evidence.

Case: Marquez v. 171 Tenants Corp., NY Slip Op 03174 (1st Dept. 2013).

Here is the decision.

Monday's issue: Defects too trivial to be actionable.

Disqualification during litigation.

Practice point: Where a party seeks to disqualify its adversary's counsel during litigation, courts consider when the challenged interests became materially adverse in order to determine if the party could have moved at an earlier time. If the moving party was aware, or should have been aware, of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the representation. What is more, if the moving party knew of the alleged conflict of interest well before making the motion, it may be inferred that the motion was made merely to secure a tactical advantage.

Student note:  The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination. Whether to disqualify an attorney is a matter which lies within the sound discretion of the court.

Case: Hele Asset, LLC v. S.S.E. Realty Assoc., NY Slip Op 03061 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Affidavits, and hearsay in opposition to summary judgment.

Expert testimony and liability in a medical malpractice action.

Practice point: Liability is not supported by an expert offering only conclusory assertions and mere speculation that the condition could have been discovered and successfully treated had the doctors not deviated from the accepted standard of medical practice.

Student note: Failing to investigate an otherwise unindicated disease is not malpractice.

Case: Curry v. Dr. Elena Vezza Physician, P.C., NY Slip Op 03163 (1st Dept. 2013).

 Here is the decision.

Tomorrow's issue: Disqualification during litigation.

Constructive trusts.

Practice point: The ultimate purpose of a constructive trust is to prevent unjust enrichment, and it will be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest.

Student note: The elements of a constructive trust are a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, and unjust enrichment. These requirements, however, are not to be rigidly applied.

Case:  Broderson v. Parsons, NY Slip Op 03050 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Expert testimony in a medical malpractice action.

Amending bills of patriculars, and opposing summary judgment.

Practice point: A party may amend its bill of particulars once as of course before the filing of the note of issue, pursuant to CPLR 3042[b].. Here, when plaintiff served his amended bill of particulars, the court had vacated the original note of issue. A second note of issue had not been filed, and plaintiff had not yet amended his bill of particulars. Therefore, plaintiff properly served his amended bill of particulars without obtaining leave from the court.

Student note:  An affidavit submitted in opposition to a motion for summary judgment does not raise a triable issue of fact where the affidavit can only be considered to have been tailored to avoid the consequences of . . . earlier testimony. A court can infer dishonest intent where there is no supporting evidence for the contradictory affidavit. However, evidence in the record apart from the affidavit itself can raise a triable issue of fact, notwithstanding contradictory deposition testimony.

Case: Fields v. Lambert Houses Redevelopment Corp., NY03027 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Constructive trusts.