A cause of action barred by the statute of limitations.

Practice point:  In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether it actually commenced the action within the applicable limitations period.

Student note:  To make a prima facie showing, the defendant must establish, among other things, when the plaintiff's cause of action accrued.

Case:  Matteawan on Main, Inc. v. City of Beacon, NY Slip Op 05680 (2d Dept. 2013). 

Here is the decision.

Tomorrow's issue: Checks paid on forged signatures.

Disclosure of written accident reports.

Practice point:  CPLR 3101(g) provides, in relevant part, that "there shall be full disclosure of any written report of an accident prepared in the regular course of business operations of any person, firm, corporation, association or other public or private entity." Pursuant to this statutory provision, accident reports prepared in the regular course of business operations or practices are discoverable, even if made solely for the purpose of litigation.

Student note:  The burden of demonstrating that a written report of an accident is immune from disclosure is on the party opposing discovery.

Case:  Jacaroso v. Keyspan Energy Corp., NY Slip Op 05677 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A cause of action barred by the statute of limitations.

Conditional language in a purported admission.

Practice point:  The plaintiff moved for summary judgment on the claim of an assault by an alleged City police officer, submitting a certificate of disposition from the Supreme Court indicating that the alleged officer had been convicted of assault in the third degree and reckless endangerment in the second degree in connection with the assault at issue. The plaintiff contended that the City's tenth affirmative defense constituted an admission that the alleged officer had been acting within the scope of his employment. The Appellate Division held that the Supreme Court erred in granting the motion.  The affirmative defense, in pertinent part, stated that, "such acts as were committed . . . in the scope of employment were justified." In light of the conditional nature of this language, and the City's denials that the alleged officer had been acting within the scope of his employment, the City's affirmative defense did not constitute an admission.  

Student note:  A plaintiff may not deem those allegations set forth in an answer that are favorable to him or her to be admissions, while refusing to be bound by those allegations that are unfavorable.

Case:  Hollinden v. City of New York, NY Slip Op 05676 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Disclosure of written accident reports.

Court holiday.

The courts are closed to mark Labor Day.

Tomorrow's issue:  Conditional language in a purported admission.

Applying for leave to serve a late notice of claim.

Practice point:  General Municipal Law § 50-e(7) provides, in pertinent part, that "[w]here the application is for leave to serve a late notice of claim, it shall be accompanied by a copy of the proposed notice of claim." Here, no proposed notice of claim was submitted with the cross motion. This was sufficient justification by itself to deny the cross motion.

Student note:  In any event, the plaintiffs did not demonstrate a reasonable excuse for their failure to serve a timely notice of claim upon the Fire Department. The plaintiffs' unsubstantiated claim of law office failure by their former attorney does not constitute a reasonable excuse for the failure to serve a timely notice of claim.

Case:  Grasso v. Nassau County, NY Slip Op 05674 (2d Dept. 2013).

Here is the decision.

Tuesday's issue: Conditional language in a purported admission.

Assignments.

Practice point:  Under New York law, claims are generally assignable. No special form or language is necessary to effect an assignment as long as the language shows the intention of the owner of a right to transfer it.

Student note:  Contrary to the defendant's contention, it was not necessary for the plaintiff to enter into a liquidating agreement with the assignor, as the amended complaint sufficiently alleges facts which, if proven, would establish that the assignor had viable claims for contractual and common-law indemnification against the defendant in the absence of such an agreement.

Case:  Constructamax, Inc. v. Dodge Chamberlin Luzine Weber, Assoc.Architects, LLP, NY Slip Op 05671 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Applying for leave to serve a late notice of claim.

Unsealing court records.

Practice point:  New York courts are reluctant to allow the sealing of court records even where both sides to the litigation have asked that the records be sealed. The presumption of the benefit of public access to court proceedings takes precedence, and sealing of court papers is permitted only to serve compelling objectives, such as when the need for secrecy outweighs the public's right to access. Here, the Supreme Court did not specify the grounds for sealing the record, and it did not issue a finding of good cause. Accordingly, the Appellate Division directed that the record be unsealed.

Student note:  22 NYCRR 216.1(a), states, in pertinent part, that "a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof."

Case:  Matter of Holmes v. Winter, NY Slip Op 05666 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:  Assignments.

Motions to consolidate or for a joint trial.

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

Student note:  Here, given the plaintiff's allegations that injuries that he sustained in the automobile accident were exacerbated by the work-related accident, in the interest of justice and judicial economy, and to avoid inconsistent verdicts, the two actions should be tried jointly.

Case: Cieza v. 20th Ave. Realty, Inc., NY Slip Op 05610 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Unsealing court records.

Default judgments and law office failure.

Practice point:  To successfully oppose a motion for leave to enter a default judgment based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its delay and the existence of a potentially meritorious defense. In its discretion, the court may accept law office failure as an excuse, pursuant to CPLR 2005. The claim of law office failure must be supported by  a detailed and credible explanation of the default or defaults at issue. Law office failure should not be excused where allegations of law office failure are conclusory and unsubstantiated.

Student note:  The Appellate Division determined that the Supreme Court properly exercised its discretion in deeming the defendant's answer, which was annexed to its opposition papers to the plaintiff's motion, to be served, even in the absence of a formal notice of cross motion seeking leave to serve a late answer.

Case: Blake v. United States of America, NY Slip Op 05609 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Motions to consolidate or for a joint trial.

Punitive and compensatory damages.

Practice point:  The court granted that branch of the defendants' cross motion which was for summary judgment dismissing the plaintiff's claim for punitive damages. In opposition to the defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether the defendants' alleged conduct was so gross, wanton, or willful, or of such high moral culpability, as to warrant an award of punitive damages.
   The court also granted that branch of the defendants' cross motion which was for an award of costs and attorney's fees pursuant to CPLR 8303-a(c). The plaintiff's claim for punitive damages was asserted only to harass the defendants, and an award of costs and attorney's fees is warranted.

Student note:   As the complaint only seeks $3,500 in compensatory damages, the Supreme Court, in its discretion, may remove the action to a lower court pursuant to CPLR 325(d).

Case:  Baxter v. Javier, NY Slip Op 05605 (2d Dept. 2013).

Here is the decision.

Monday's issue: Default judgments and law office failure.

Conveyance of a property by deed.

Practice point:  Real Property Law § 240(3) provides that "[e]very instrument creating [or] transferring . . . real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law." Where a deed admits more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances.

Student note:  Courts may, as a matter of interpretation, carry out the intention of a contract by transposing, rejecting, or supplying words to make the meaning of the contract more clear. However, such an approach is appropriate only in those limited instances where some absurdity has been identified or the contract would otherwise be unenforceable, either in whole or in part.

Case:  Al's Atl., Inc. v. Shatma, LLC, NY Slip 05604 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Punitive and compensatory damages.