Motion to vacate a conditional order.

Practice point:  Defendant's motion to vacate the conditional order was denied as its conclusory and unsubstantiated claims of law office failure cannot excuse its default in failing to oppose plaintiff's motion for sanctions.  
 
Alternatively, defendant's failure to timely and fully comply with three court orders directing it to produce certain materials - one of which was a conditional order striking defendant's answer if it did not comply within 30 days - warrants an inference of willful noncompliance. Such an inference is further supported by defendant's failure to explain the numerous discrepancies between its discovery responses and its employee's deposition testimony as to the existence of responsive records. Importantly, defendant never offered any explanation regarding its employee's testimony that highly relevant records had been destroyed by flooding at some unspecified time, but were preserved electronically.

Student note:  The affidavit proffered by defendant regarding the unavailability of documents that were the subject of the court's discovery order was insufficient, as it failed to include any details as to when the search was performed, where the subject records were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, and whether a search was conducted in every location where the records were likely to be found.

Case:  Vasquez v. Lambert Houses Redevelopment Co., NY Slip Op 06439 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Granting relief from an order or judgment.

Proving proper service.

Practice point:  Generally, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service. Here, however, the defendant's sworn statement that he no longer resided at the address recited in the process server's affidavit where service was allegedly effected pursuant to CPLR 308(2), and of a police accident report submitted by him which recited his address as different from that where service was allegedly effected, were sufficient to rebut this presumption of proper service. The defendant was entitled to a hearing on the issue of whether personal jurisdiction was acquired over him before a determination was made on his motion to dismiss.

Student note:  The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff.

Case:  Lazarre v. Davis, NY Slip Op 05990 (2d Dept. 2013)

Here is the decision.

Monday's issue: Motion to vacate a conditional order.

The emergency doctrine.

Practice point:  Here, defendant submitted evidence sufficient to establish that he was faced with a sudden and unforseen occurrence that was not of his own making. Plaintiff testified that he was riding his motorcycle in congested traffic conditions when he was unexpectedly thrown from his motorcycle after hitting a pothole while defendant was driving a minivan behind him. Plaintiff stated that he had been lying in the road for "less than a second" to approximately four seconds when he was hit by the minivan and that the van's two front tires then went onto the sidewalk. Defendant testified that plaintiff's motorcycle was approximately six meters ahead of him when it fell, and that, after he saw the motorcycle fall, he turned his minivan towards the sidewalk to avoid plaintiff. Given the parties' testimony, the court correctly determined that defendant had met his initial burden of establishing his entitlement to summary judgment based on the emergency doctrine  In opposition, plaintiff failed to raise a triable issue as he presented only unsubstantiated assertions and speculation that defendant may have breached a duty of care.

Student note: The motion court providently exercised its discretion in determining that it could consider the emergency doctrine affirmative defense. Although the defense was not pleaded in the answer, the deposition testimony set forth facts that constituted an emergency situation and the facts were well-known to plaintiff.

Case:  Mendez v. City of New York, NY Slip Op 06305 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Proving proper service.

A medical malpractice action, proximate cause, and judgment as a matter of law.

Practice point:  The required elements of proof in a medical malpractice action are a deviation or departure from good and accepted standards of medical practice, and evidence that such departure proximately caused the plaintiff's injuries. Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause. Establishing proximate cause requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant's departure was a substantial factor in causing the plaintiff's injury.

Student note:  A trial court may grant judgment as a matter of law for defendant, pursuant to CPLR 4401, only where it finds that, upon the evidence presented, there is no rational process by which the jury could find in the plaintiff's favor.

Case:  Brown v. Shah,  NY Slip Op 05980 ((2d Dept. 2013).

Here is the decision.

Tomorrow's issue: The emergency doctrine.

Piercing the corporate veil.

Practice point:  A legitimate purpose of incorporating is to limit or eliminate personal liability. However, the corporate form will be disregarded and the corporate veil pierced if necessary to prevent fraud or to achieve equity, and a claim may be asserted against an individual who controls the corporation.

Student note:  Piercing the corporate veil requires a showing that the individual defendant exercised complete dominion and control over the corporation and used such dominion and control to commit a fraud or wrong against the plaintiff which resulted in injury.

Case:  Bonacasa Realty Co., LLC v. Salvatore, NY Slip Op 05979 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A medical malpractice action, proximate cause, and judgment as a matter of law.

Judgment as a matter of law based on admissions, and eyewitnesses and probable cause.

Practice point:  An application for judgment as a matter of law may be made at the close of an opposing party's case, or at any time on the basis of admissions, pursuant to CPLR 4401. The grant of the application prior to the close of the opposing party's case is generally disfavored. However, it may be warranted prior to the presentation of any evidence if the plaintiff has, by some admission or statement of fact, completely compromised his or her case. Here, prior to the presentation of evidence, the plaintiff's counsel made certain admissions and statements of fact which demonstrated, as a matter of law, that the police had probable cause to arrest the plaintiff.

Student note:  Probable cause to believe that a person committed a crime is a complete defense to causes of action alleging false arrest and malicious prosecution. As a general rule, information from an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest. An eyewitness victim of a crime can provide probable cause for the arrest of the assailant despite the fact that the victim-witness' reliability has not been previously established or the information corroborated.

Case:  Okunubi v. City of New York, NY Slip Op 05886 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: :Piercing the corporate veil.

Establishing ownership through adverse possession.

Practice point:  A party seeking to obtain title by adverse possession must prove by clear and convincing evidence that (1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; 4) it was exclusive; and (5) it was continuous for the statutory period of 10 years.

Student note: Where, as here, the adverse possession claim is not founded upon a written instrument, the plaintiffs must establish, in accordance with the law in effect at the time this action was commenced, that the disputed property was either usually cultivated or improved or protected by a substantial inclosure, pursuant to RPAPL former 522.

Case:  Marone v. Kally, NY Slip Op 05882 (2d Dept. 2013).

Here is the decision.

Monday's issue: Judgment as a matter of law based on admissions, and eyewitnesses and probable cause.

Writings as evidence.

Practice point:  A writing is ordinarily not relevant at trial in the absence of evidence to show it was made, signed or adopted by a particular person. A private document offered to prove the existence of a valid contract cannot be admitted into evidence unless its authenticity and genuineness have been properly established.

Student note:  A document's authenticity may be established by submitting the document with a certificate of acknowledgment.

Case:  Fairlane Fin. Corp. v. Greater Metro Agency, Inc., NY Slip Op 05875 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Establishing ownership through adverse possession.

An out-of-possession landlord's liability, and expert opinions.

Practice point:  An out-of-possession landlord's duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct. Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it was an out-of-possession landlord, that it was not contractually obligated to maintain the subject parking lot, that it did not endeavor to maintain the subject parking lot, and that it did not owe the plaintiff a duty by virtue of any applicable statute or regulation.  The expert's opinion, as set forth in the affidavit, was speculative, conclusory, and insufficient to raise a triable issue of fact.

Student note:  The fact that the plaintiff's expert was not disclosed until seven months after the filing of the note of issue, and his affidavit was submitted only in response to the defendant's motion for summary judgment, did not, in and of itself, render the disclosure untimely.

Case:  Castillo v. Wil-Cor Realty Co., Inc., NY Slip Op 05871 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Writings as evidence.

The effect of an executed release.

Practice point:  A valid release completely bars an action on a claim that is the subject of the release. Principles of contract law govern the interpretation of a release; and a release that is complete, clear, and unambiguous on its face will be enforced according to the plain meaning of its terms.

Student note:  As with contracts, the meaning and scope of a release necessarily depends on the controversy being settled and the purpose for which the release was actually given.  A general release will not be construed to cover matters that the parties did not desire or intend to dispose of.

Case:  Burnside 771 LLC v. Amerada Hess Corp., NY Slip Op 05869 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: An out-of-possession landlord's liability, and expert opinions.

Tenure by estoppel.

Practice point:  Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term.  Here, however, the teacher had requested a one-year extension of the probationary period and, on being terminated, could not assert that tenure had been acquired by estoppel.

Student note:  Estoppel is a bar which precludes a party from denying a certain fact or state of facts to the detriment of another party who was entitled to rely on such facts and acted on that reliance.

Case: Chisholm v. Hochman, NY Slip Op 05818 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: The effect of an executed release.