Due diligence in the service of process.

Practice point:  Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence.  As the statute does not define "due diligence," it has been interpreted and applied on a case-by-case basis. The due diligence requirement may be met with a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times.

Here, the process server's affidvit constituted prima facie evidence of proper service pursuant to CPLR 308(4), as the process server made three attempts to serve the defendant at his home at different times and on different days, including a Saturday.  Since there was no indication that the defendant worked Saturdays or that his workplace was readily ascertainable, the plaintiff was not required to attempt to serve the defendant at his workplace.

Student note:  The defendant's bare and unsubstantiated denial of receipt was insufficient to rebut the presumption of proper service, and a hearing on the issue of service was not required.

Case:  Deutsche Bank Natl. Trust Co. v. White, NY Slip Op 06542 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Stating an employment discrimination claim.

Authorizations to release medical records, and notes of issue.

Practice point:  The Appellate Division determined that the Supreme Court properly granted those branches of the defendant's motion which were to compel him to sign authorizations for the release of certain medical records, to compel him to appear for a deposition, and to vacate the note of issue. The Supreme Court correctly compelled the plaintiff to sign the authorizations since he placed his medical condition at issue. The Supreme Court also correctly compelled the plaintiff to appear for a deposition, as the defendant demonstrated that the deposition was reasonably calculated to result in the disclosure of facts necessary to defend the action.  Since the defendant moved to vacate the note of issue within the time prescribed for doing so pursuant to 22 NYCRR 202.21(e), and demonstrated that discovery was not complete in that the deposition of the plaintiff had not occurred, medical authorizations still had not been provided, and the action was not ready for trial, the note of issue was properly vacated.

Student note:  The Appellate Division also found that the Supreme Court properly enjoined the plaintiff from submitting any further motions or cross motions without leave of the court, based on his abuse of the judicial process.

Case:   Breytman v Olinville Realty, LLC, NY Slip Op 06538 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Due diligence in the service of process.

Duty to mitigate.

Practice point:  The duty to mitigate damages arising from a breach of contract is a duty that arises from common law and, therefore, need not be expressly bargained for in a contract to be enforceable. Assuming liability, the defendant may  limit damages, if any, if the plaintiff failed to make reasonable exertions to minimize the injury.

Student note:  On a summary judgment motion, when the movant fails to meet its prima facie burden, the motion will be denied without consideration of the sufficiency of the opposing papers.

Case:  Mack-Cali Realty, L.P. v. Everfoam Insulation Sys., Inc., NY Slip Op 06348 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Authorizations to release medical records, and notes of issue.

Court holiday.

The courts are closed to mark Columbus Day.

Tomorrow's issue:  Duty to mitigate.

An improper Noseworthy instruction.

Practice point:  The Appellate Division found that the trial court deprived the defendant of a fair trial by issuing a supplemental jury instruction pursuant to Noseworthy v. City of New York (298 NY 76). The Noseworthy doctrine had no application to the facts of this case because the infant's inability to testify about the events surrounding his birth was not the result of memory loss stemming from the defendant's alleged negligence. In addition, Noseworthy does not apply because the defendant's knowledge as to the cause of the infant's injuries was no greater than the mother's, and the mother testified extensively about the circumstances surrounding her labor and delivery, and testified about the infant's injuries.

Student note:  Properly applied, a Noseworthy instruction relaxes the plaintiff's burden of proof.

Case:  Nunez v. New York City Health & Hosps. Corp. (Elmhurst Hosp. Ctr.), NY Slip Op 06350 (2d Dept. 2013).

Here is the decision.

Tuesday's issue:  Duty to mitigate.

Respondeat superior.

Practice point:  Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment. An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment.

Student note:  An employer, however, cannot be held vicariously liable for its employee's alleged tortious conduct if the employee was acting solely for personal motives unrelated to the furtherance of the employer's business at the time of the incident. Similarly, the employer is not vicariously liable where the employee's tortious conduct could not have been reasonably expected by the employer.

Case:  Gui Ying Shi v. McDonald's Corp., NY Slip Op 06347 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: An improper Noseworthy instruction.

Service, and a motion to extend time.

Practice point:  Where, as here, the statute of limitations expired between the time that the action was commenced and the time that the copy of the summons and complaint was served, that branch of the plaintiff's motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint, nunc pro tunc, was granted in the interest of justice. The copy of the summons and complaint was served only 3 days after the 120-day time period of CPLR 306-b had expired, the plaintiff promptly sought relief after receiving the answer, and there was no demonstrable prejudice to the defendant attributable to the delay in service.

Student note:  Service of one copy of a summons and complaint upon an officer of a corporation constitutes service upon the corporation itself as well as upon the individual officer, where, as here, there was simultaneous compliance with CPLR 311(a)(1) and CPLR 308(1).

Case:  Fernandez v. Morales Bros. Realty, Inc., NY Slip Op 06345 (2d Dept. 2013).

 Here is the decision.

Tomorrow's issue: Respondeat superior.

Granting relief from an order or judgment.

Practice point:  Pursuant to CPLR 5015(a), a court may relieve a party from an order or judgment, but only on an interested person's motion and with such notice as the court may direct. Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based. However, a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment.

Student note:  While a court may grant relief, pursuant to a general prayer contained in the notice of motion or order to show cause, other than that specifically asked for, to such extent as is warranted by the facts plainly appearing in both sides' papers, it may do so only if the relief granted is not dramatically unlike the relief sought, and if the proof offered supports it and the court is satisfied that no one has been prejudiced by the formal omission to demand it specifically.

Case:  Carter v. Johnson, NY Slip Op 06333 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Service, and a motion to extend time.

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.