Deposition testimony, hearsay, and summary judgment.

Practice point:  Defendant demonstrated his prima facie entitlement to judgment as a matter of law by showing that his car was struck in the rear by plaintiff's decedent's car, and in response, plaintiff failed to provide a nonnegligent explanation, in evidentiary form, for the collision.

The transcripts of the deposition testimony of two police officers who testified in a related action are hearsay as to defendant, since he was not notified about the deposition, nor present for the testimony, pursuant to CPLR 3117[a][3].

Student note:  Hearsay may be used to defeat summary judgment as long as it is not the only evidence submitted in opposition. Here, however, plaintiff submitted no other admissible evidence as to the circumstances of the accident.

Case:  Rugova v. Davis, NY Slip Op 08003 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:  Being true to your school goes both ways.

A deed conveying real property as security.

Practice point:  Real Property Law § 320 provides, in pertinent part, that a "deed conveying real property, which, by any other written instrument, appears to be intended only as a security in the nature of a mortgage, although an absolute conveyance in terms, must be considered a mortgage." In determining whether a deed was intended as security, examination may be made not only of the deed and a written agreement executed at the same time, but also of oral testimony bearing on the intent of the parties and to a consideration of the surrounding circumstances and the parties' acts.

Student note:  A court of equity will treat a deed, absolute in form, as a mortgage, when it is executed as a security for a loan of money. That court looks beyond the terms of the instrument to the real transaction; and when that is shown to be one of security, and not of sale, it will give effect to the parties' actual contract.

Case:  Bouffard v. Befese, LLC, NY Slip Op 07925 (2d Dept. 2013).

Here is the decision.

Monday's issue: Deposition testimony, hearsay, and summary judgment.

CPLR 305(c).

Practice point:  CPLR 305(c) authorizes the court to "allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced."  Where the motion is to cure a misnomer in the description of a party-defendant, it should be granted even after the statute of limitations has run where (1) there is evidence that the correct defendant, misnamed in the original process, was, in fact, properly served, and (2) the correct defendant would not be prejudiced by granting the amendment.

Student note: While CPLR 305(c) may be used to cure a misnomer in the description of a party-defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served.

Case:  Associated Geriatric Info. Network, Inc. v Split Rock Multi-Care Ctr., LLC, NY Slip Op 07922 (2d Dept. 2013)

Here is the decision. 

Tomorrow's issue: A deed conveying real property as security.

Applicability of the emergency doctrine.

Practice point:  Defendants established their entitlement to judgment as a matter of law by demonstrating the applicability of the emergency doctrine in this action where plaintiff was injured when the bus in which she was a passenger stopped suddenly, hurling her forward into the windshield. Defendants submitted evidence showing that, shortly after the bus had started to move after being stopped at a traffic light, a car drove around the bus erratically and at a high rate of speed, cutting the bus off so closely that the car's rear bumper came within an inch of striking the bus' front bumper. Defendant bus driver was forced to stop suddenly in order to avoid colliding with the car.

Student note: Plaintiff's assertion, in her opposition affidavit, that no car cut the bus off at any time prior to the accident was unavailing as it contradicted her deposition testimony.

Case:  Orsos v. Hudson Tr. Corp., NY Slip Op 097839 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: CPLR 305(c).

CPLR 3211(a)(7).

Practice point:  On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.  However, bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true.

Student note: Where evidentiary material is submitted and considered on the motion, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one.  Unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the motion will not be granted.

Case:  Gersher v. Ejamal, NY Slip Op 07447 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Applicability of the emergency doctrine.

"Walk" and "Don't walk."

Practice point:  Pursuant to Vehicle and Traffic Law § 1112, a pedestrian who proceeds across a roadway in the direction of a steady "walk" signal must be given the right of way by traffic.

Student note: A pedestrian who proceeds into a roadway with a "walk" signal, but only partially completes the crossing on the "walk" signal, may proceed to a sidewalk on the flashing or steady "don't walk" signal, pursuant to Vehicle and Traffic Law § 1112[b], [c].

Case:  DiDonna v. Houck, NY Slip Op 97446 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: CPLR 3211(a)(7).

A fall from an unsecured ladder.

Practice point:  The plaintiff established prima facie entitlement to judgment as a matter of law as to liability on the Labor Law § 240 cause of action by establishing that he was injured when he fell from an unsecured ladder that collapsed while he was performing roofing work on the subject construction project. The court found the defendants' contention that summary judgment should have been denied because the plaintiff was the sole witness to his accident unpersuasive, as the plaintiff identified three other witnesses in his response to the defendants' combined discovery demands. In any event, even if the plaintiff had been the sole witness to the accident, summary judgment would not be precluded.

Student note:  The plaintiff satisfied his burden of establishing that he was hired by a contractor and was suffered or permitted to work on the premises, such that he was entitled to the protections of the Labor Law, pursuant to Labor Law § 2[5], [7].

Case: Diaz v. 5-01-5-17 48th Ave., LLC, NY Slip Op 07445 (2d Dept. 2013).

Here is the decision.

Monday's issue: "Walk" and "Don't Walk."

Court holiday.

The courts are closed to mark Thanksgiving Day.

Thanks to all of you for reading New York Law Notes throughout the year, and
best wishes for a safe and happy Thanksgiving.

Tomorrow's issue: A fall from an unsecured ladder.

An out-of-possession landlord's liability.

Practice point:  An out-of-possession landlord is not liable for injuries occurring on the premises unless it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs.

Student note: Reservation of a right of entry for inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition.

Case:  Denermark v. 2587 W. 8th St. Assoc., NY Slip Op 07444 (2d Dept. 2013).

Here is the decision.

Friday's issue: A fall from an unsecured ladder.

A cause of action for an accounting.

Practice point:  While there was no question as to whether the parties shared a confidential relationship as members of a committed family unit, the complaint failed to allege that the fiduciary relationship necessary to obtain an accounting was created by the plaintiff entrusting to the defendant some money or property with respect to which the defendant was bound to reveal her dealings. Therefore, the plaintiff failed to state a cause of action for an accounting, and that cause of action was dismissed.

Student note:  The right to an accounting is premised upon the existence of a confidential or fiduciary relationship and a breach of the duty imposed by that relationship respecting property in which the party seeking the accounting has an interest.

Case:  Dee v. Rakower, NY Slip Op 07443 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: An out-of-possession landlord's liability.

Common-law negligence and Labor Law § 200.

Practice point:  Awareness of unsanitary conditions at the school was insufficient evidence that defendant was on notice of the presence of the fungal pathogen Candida Dubliniensis, the fungus that allegedly caused plaintiff's eye infection. In addition, plaintiff failed to proffer any evidence that the fungus existed at the school at all, other than speculation based on plaintiff's unusual infection.  Finally, there was no evidence that defendant exercised supervision and control over plaintiff's work, so as to impart liability pursuant to Labor Law § 200.

Student note:  A general awareness that a dangerous condition may be present is legally insufficient to charge a defendant with constructive notice.

Case:  Koerner v. City of New York, NY Slip Op 07410 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: A cause of action for an accounting.