An auto accident, summary judgment, and comparative negligence.

Practice point:  There can be more than one proximate cause of an accident, and both drivers have a duty to exercise reasonable care under the circumstances to avoid an accident. As a result, even where there is evidence that another driver involved in the accident was negligent as a matter of law, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law. So, a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident.

Student note: A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law.

Case:  Adobea v. Junel, NY Slip Op 01143 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A motion for voluntary discontinuance.

Disclosure of privileged medical records.

Practice point:  The Appellate Division found that the Supreme Court properly denied the plaintiffs' motion for a protective order relating to the disclosure of medical records outside the period of time covered by the  pregnancy. at issue in this medical malpractice action. The plaintiff waived her physician-patient privilege, pursuant to CPLR 4504[a], when, without asserting the privilege, she answered certain questions at a hearing conducted pursuant General Municipal Law § 50-h and when she voluntarily provided certain information to medical personnel.

Student note:  The privilege does not attach to information constituting mere facts and incidents of a plaintiff's medical history.

Case:  Knowles v. Saint Joseph's Med. Ctr., NY Slip Op 00968 (2d Dept. 2014).

Here is the decision.

Monday's issue: An auto accident, summary judgment, and comparative negligence.

The effect of affidavits of service.

Practice point:  Here, the affidavit of service indicating that the respondent was served pursuant to CPLR 308(2) by delivery of the papers to a person of suitable age and discretion was insufficient to establish, prima facie, that the respondent was validly served pursuant to that section. However, a second affidavit of service constituted prima facie evidence of proper service of the summons and complaint pursuant to CPLR 308(1), and of proper service of the notice required by Real Property Actions and Proceedings Law § 1303. The respondent's bare and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the proof of proper service set forth in the affidavit..

Student note:  Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the affidavit.

Case:  Deutsche Bank Natl. Trust Co. v. Quinones, NY Slip Op 00959 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Disclosure of privileged medical records.

Failure to negotiate in good faith and exemplary damages.

Practice point:  Although the Supreme Court had authority to impose sanctions if it determines, after a hearing, that the plaintiff failed to negotiate in good faith in a mandatory foreclosure settlement conference, it did not have authority to include such a provision in the judgment in the absence of any application for that relief.  In addition, the court's imposition of exemplary damages, and the effective use of those exemplary damages to award a reduction of the principal balance of the subject mortgage, was done without notice to the plaintiff that the court was contemplating such a sanction, and deprived the plaintiff of its right to due process.

Student note:  CPLR 3408 does not require the plaintiff to make the exact offer desired by the defendant, and the plaintiff's failure to make that offer cannot be construed as a lack of good faith.

 Case:  Bank of Am. v. Lucido, NY Slip Op 00956 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: The effect of affidavits of service.

Noncompliance with a court-ordered deadline.

Practice point:  Here, it was uncontroverted that defendant's motion was not timely under the schedule set by the preliminary conference order. The Appellate Division determined that it does not matter whether a motion for summary judgment has been made more than 120 days after the filing of the note of issue or after the expiration of a shorter time limit set by a court order or stipulation. Whatever the source of the deadline with which a party fails to comply, the lateness may not be excused without a showing of good cause within the meaning of CPLR 3212(a), a showing of something more than mere law office failure. Defendant's excuse that its counsel inadvertently overlook the ordered date is a perfunctory claim of law office failure, and the motion was denied.

Student note:  The Court of Appeals has repeatedly held that court-ordered time frames are requirements to be taken seriously by the parties. See, e.g., Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74 (2010).

Case: Quinones v. Joan & Sanford I. Weill Med. Coll., NY Slip Op 00882 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Failure to negotiate in good faith and exemplary damages.

Court holiday.

The courts are closed to mark Presidents' Day.

Tomorrow's issue: Noncompliance with a court-ordered deadline.

Service of a claim on the Attorney General.

Practice point:  Court of Claims Act § 11(a)(i) provides that a copy of the claim shall be served personally or by certified mail, return receipt requested, upon the attorney general. The requirements are jurisdictional and must be strictly construed. Here, the claim was improperly served upon the defendant by regular mail and so the court lacked jurisdiction over the defendant.

Student note: In addition, the Court of Claims properly declined to correct or disregard the defect in service pursuant to CPLR 2001. Even though the attorney general received the claim, service by regular mail was more than a mere technical infirmity as this method of service introduced a greater possibility of failed delivery.

Case:  Brown v. State of New York, NY Slip Op 00627 (2d Dept. 2014).

Here is the decision.

Tuesday's issue: Noncompliance with a court-ordered deadline.

The issue of standing in an action to foreclose a mortgage.

Practice point:   A plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.

Student note: Where, as here, standing is put into issue by a defendant, the plaintiff must prove its standing in order to be entitled to relief.

Case:  Aurora Loan Servs., LLC v. Taylor, NY Slip Op 00625 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Service of a claim on the Attorney General.

Court holiday.

The courts are closed to mark Lincoln's Birthday.

Tomorrow's issue:  The issue of standing in an action to foreclose a mortgage.

A landowner's liability.

Practice point:  Where a landowner has actual knowledge of a recurrent dangerous condition in a specific area, it may be charged with constructive notice of each specific recurrence of it.

Student note:  A landowner has a general duty to maintain its property in a reasonably safe condition in view of the circumstances, including the likelihood of injury to others, the seriousness of the possible injury, and the burden of avoiding the risk.

Case:  Agosto v. City of New Rochelle, NY Slip Op 00623 (2d Dept. 2014).

Here is the decision.

Thursday's issue: The issue of standing in an action to foreclose a mortgage.

A declaratory judgment claim involving a Delaware LLC.

Practice point:  The Appellate Division reversed the order denying defendant's motion to dismiss, or alternatively for summary judgment, as to the cause of action for a declaration that defendant is required to sell his LLC shares to plaintiffs.

The parties' rights as members of a Delaware LLC are defined by the operating agreement which does not indicate that plaintiffs could compel the sale of defendant's membership interests. Plaintiffs rely on a section of the agreement which allows them to compel the sale of the membership interest upon the termination of the employment of "an employee other than a manager." However, it is undisputed that defendant was a managerial employee at the time of his termination, and so, under the agreement's plain language, the section is inapplicable. Moreover, plaintiffs' reading would divest the phrase "other than a manager" of any effect, a result that is contrary to Delaware which favors the interpretation that gives effect to all terms of contract.

Student note:  Where, as here, the declaratory judgment claim is resolved on the merits, the proper course is to issue a declaration in defendant's favor, not a dismissal.

Case:  LCM Holdings GP, LLC v. Imbert, NY Slip Op 00595 (1st Dept. 2014).

Here is the decision. 

Tomorrow's issue: A landowner's liability.