Vacating a default judgment.

Practice proint:  The defendant was not entitled to vacatur of its default pursuant to CPLR 317. The defendant failed to rebut the plaintiff's evidence that, for a period of more than five years, the defendant failed to file with the Secretary of State the required biennial form that would have apprised the Secretary of its current address, pursuant to Limited Liability Company Law § 301[e]). TheAppellate Division found that the defendants' failure to personally receive copies of the summons and complaint was a result of a deliberate attempt to avoid notice of actions commenced against it.

Student note:  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 default and the existence of a potentially meritorious defense, pursuant to CPLR 5015[a][1].  Here, the defendant contended that it maintained an old address on file with the Secretary of State, and denied receipt of copies of the summons and complaint. However, the Appellate Division held that the defendant's unexplained failure to keep the Secretary of State apprised of its current address over a significant period of time did not constitute a reasonable excuse.

Case:  Cruz v. Keter Residence, LLC, NY Slip Op 01575 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Duties relating to an easement.

Dismissal of a complaint as abandoned.

Practice point:  To avoid dismissal of the complaint as abandoned pursuant to CPLR 3215(c), a plaintiff must offer a reasonable excuse for the delay and must demonstrate that the complaint is meritorious.  Here, plaintiff's excuse of law office failure was vague, conclusory, and unsubstantiated, and so it was insufficient to explain the extended delay in moving to enter a default judgment. The court will not consider additional allegations regarding the law office failure if they are submitted for the first time in the
plaintiff's reply affirmation.

Student note:  CPLR 3215(c), entitled "Default not entered within one year," provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."

Case: GMAC v. Minewiser, NY Slip Op 01581 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Vacating a default judgment.

The denial of a request for a Frye hearing.

Practice point:  The Appellate Division found that the court did not improvidently exercise its discretion in denying plaintiffs' request for a Frye hearing to determine the admissibility of the anticipated testimony of a biomechanical engineer. His lack of medical training did not render him unqualified to render an expert opinion that the force of the motor vehicle accident could not have caused the alleged injuries. In light of his education, background, experience, and areas of specialty, he was able him to testify as to the mechanics of injury.

Student note:  Plaintiffs' challenge to the expert's qualifications and the fact that his opinion conflicted with that of defendant's orthopedic expert go to the weight of the testimony and not its admissibility.

Case:  Vargas v. Sabri, NY Slip Op 01666 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Dismissal of a complaint as abandoned.

Denial of summary judgment on a promissory note.

Practice point:  Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by submitting the note signed by the defendant, along with an affidavit from its account officer, annexed to which was a copy of a business record reflecting the principal amount due, the calculation of interest, and late fees. The account officer stated that the defendant defaulted on the note by failing to pay the principal and interest due as it accrued.

However, in its opposition, the defendant raised a triable issue of fact as to whether the purported signature on the endorsement to the plaintiff was a forgery.

Student note:  Cadlerock Joint Venture, L.P. v Evans-Tracey, NY Slip Op 01568 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: The denial of a request for a Frye hearing.

A trip and fall.

Practice point:  In this action based on plaintiff's trip and fall in the freight elevator hallway of defendants' building, defendants established as a matter of law their entitlement to judgment. They showed that the defect in which plaintiff's boot-heel allegedly became stuck was trivial, and did not constitute a dangerous or defective condition. Their expert inspected the floor area, and described it as "a patched region of concrete" with a height differential of less than one-eighth of an inch that was "free of chipped or damaged areas" and that formed a slight bowl-shaped depression.

In opposition, plaintiff did not come forward with any evidence to show that this shallow, gradual depression, which is generally regarded as trivial, could have been a trap or snare by reason of its location, adverse weather or lighting conditions or other circumstances.

Student note:  Plaintiff's argument that coffee or other liquids from the garbage stored near the accident site may have spilled in the area and caused her to slip is unavailing in view of her own testimony that she sas no debris or liquid in the elevator hallway when she entered the building or at the time of her fall.

Case:  Thomas v. Dever Props., LLC, NY Slip Op 01533 (2d Dept. 2014).

Monday's issue: Denial of summary judgment on a promissory note.

Expert witness information.

 Practice point:  The Appellate Division held that the Supreme Court improvidently exercised its discretion in granting the defendants' motion to preclude the plaintiff's expert from testifying at the retrial.  There was nothing in the record to support a conclusion that the plaintiff's delay in retaining his expert or in serving his expert information was intentional or willful. In addition, any potential prejudice to the defendants was ameliorated by the parties' agreement to a two-month adjournment of the retrial.

Student note:  CPLR 3101(d)(1)(i) does not require a response to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party.

Case:  Burbige v. Siben & Ferber, NY Slip Op 01426 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A trip and fall.

Respondeat superior.

Practice point:  The defendant was not held vicariously liable for the security guard's conduct because the evidence at trial established that he was acting solely for personal motives unrelated to the defendant's business.  In addition, the evidence failed to demonstrate that the defendant could reasonably have foreseen the security guard's conduct.

Student note:  Under the doctrine, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment, so long as the tortious conduct is generally foreseeable and a natural incident of the employment.

Case:  Ali v. State of New York, NY Slip Op 01424 ((2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Expert witness information.

The preclusion of expert testimony, and the appealability of an order effectively granting reargument.

Practice point:  Plaintiff's experts' testimony was precluded as the medical and scientific literature submitted did not support the proffered theory that exposure to gasoline fumes caused plaintiff's birth defects. While the literature shows that some of gasoline's constituent chemicals, and presumably those chemicals' vapors, can cause birth defects, plaintiff failed to show how exposure to those constituent chemicals, constituted as unleaded gasoline vapors, could have caused his injuries.

Student note:  The Appellate Division determined that, as a threshold matter, the order which denied plaintiff's motion to reargue the order precluding the experts' testimony effectively granted reargument, and, upon reargument, adhered to the court's original decision. Accordingly, it was appealable.

Case:  Sean R. v. BMW of N. Am., NY Slip Op 01503 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue:  Respondeat superior.

A Labor Law 240(1) claim.

Practice point:  Plaintiff demonstrated prima facie entitlement to summary judgment as to liability through his testimony that, at the direction of the defendants' site foreman, he used the only ladder on the floor, an open A-frame that was "not too far" from the foreman's toolbox, and that while he was standing on the ladder, it became unstable, wobbled and fell, causing him to fall and sustain injury.

However, summary judgment was denied as, in opposition, defendants raised factual questions as to whether plaintiff was provided an adequate ladder, and, if so, whether he knew it was available and that he was expected to use it, but nevertheless unreasonably chose not to use it, thereby causing his own injury. In his affidavit, the site foreman avers that prior to the accident, he directed plaintiff not to use "a couple of ladders, broken-up and busted-up" that had been placed by the garbage bins. He further averred that "at least two A-frame sturdy ladders" were on the floor, and that he told plaintiff to "sweep the floor until a safe ladder" was available. According to the foreman, upon arriving at the scene of the accident, he observed that plaintiff had used a ladder that the foreman had specifically instructed him not to use.

Case:  Morato-Rodriguez v Riva Constr. Group, Inc., NY Slip Op 01408 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: The preclusion of expert testimony, and the appealability of an order effectively granting reargument.

Compelling discovery from a nonparty.

Practice point:  Whether the motion is directed to a party or a nonparty, the movant must satisfy the threshold requirement that the disclosure sought is material and necessary, pursuant to CPLR 3101[a][1]. Beyond that, when seeking disclosure from a nonparty, the movant must set forth the circumstances or reasons why the disclosure is sought or required, pursuant to CPLR 3101[a][4]. In the case of a nonparty witness, more than mere relevance and materiality is necessary to warrant compulsory disclosure.

Student note: CPLR 3101(a) is liberally construed to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay.

Case: Reid v. Soults, NY Slip Op 01307 (2d Dept. 2014).

Here is the decision. 

Monday's issue:  A Labor Law 240(1) claim.

A handwritten memorandum as an enforceable settlement agreement.

Practice point:  The handwritten memorandum executed following mediation between the parties was a binding and enforceable settlement agreement, and not merely an agreement to agree. The memorandum's plain language expressed the parties' intention to be bound, and established a meeting of the minds regarding the material terms pertaining to the settlement of plaintiff's claim for unpaid deferred compensation.

Student note:  The agreement was not rendered ineffective simply because certain non-material terms were left for future negotiation, or because it stated that the parties would promptly execute formal settlement papers.

Case: Trolman v Trolman, Glaser & Lichtman, P.C., NY Slip Op 01396 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Compelling discovery from a nonparty.