Post-appeal motions to renew.

Practice point:  A court of original jurisdiction may entertain a motion for leave to renew based on new facts even after an appellate court has affirmed the original order.  However, on a post-appeal motion to renew, the movant bears a heavy burden of showing due diligence in presenting the new evidence to the Supreme Court' in order to imbue the appellate decision with a modicum of certainty.

Student note: A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221[e][2], and must offer reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][3].

Case:  Davi v. Occhino, NY Slip Op 02253 (2d Dept. 2014).

Here is the decision.

Monday's issue: A hearing on proper service of process.

Disqualifying an attorney.

Practice point:  To disqualify an attorney under rule 3.7(a) of  22 NYCRR 1200.0, the Rules of Professional Conduct, the moving party must demonstrate that the testimony of the opposing party's counsel is necessary to the moving party's case, and that such testimony would be prejudicial to the opposing party.

Student note: The Rules of Professional Conduct are not binding authority and provide guidance only.

Case: Cathedral Ct. Assocs., L.P. v Cathedral Props. Corp., NY Slip Op 02252 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Post-appeal motions to renew.

Allegations of improper increased mortgage payments.

Practice point:  The Appellate Division found that plaintiff's allegations of improper increased mortgage payments and improper notices of such increases were contradicted by provisions in the loan documents.  The motion court correctly found that plaintiff had failed to allege that his next mortgage payments of the minimum amount authorized under the loan documents would not have triggered defendants' right to increase his monthly payment obligations; his assertion that he had not triggered such right at the time of the notices begged the question. The loan documents lacked any provision imposing on defendants a duty to modify the notes or negotiate a workout, and, pursuant to the covenant of good faith, such terms cannot be added.

Student note:  The Appellate Division further found that plaintiff's cause of action for violation of General Business Law § 349 was untimely, as it accrued upon defendants' first notice of mortgage payment increases, more than three years before the service of the pleadings in this action, pursuant to CPLR 214.

Case:  Brown v. Deutsche Bank Natl. Trust Co., NY Slip Op 02336 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Disqualifying an attorney.

An untimely appeal.

Practice point:  Defendants' appeal from the motion court's order was untimely since their notice of appeal was filed months after the order was served on them with notice of entry, pursuant to CPLR 5513. Plaintiffs properly served notice of entry upon defendants' former counsel, who was then counsel of record, and counsel, in turn, served defendants with a copy of the order with notice of entry, and filed proof of service, in compliance with the motion court's order.

 Student note:  Defendants' denials of receipt of the certified mail packages, which were returned marked "Refused," is insufficient to rebut the showing of service.

Case: Campion A. Platt Architect, P.C. v. Lenz, NY Slip Op 02332 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: Allegations of improper increased mortgage payments.

A jury's inconsistent verdict.

Practice point:  On appeal, defendant asserted that the jury's answers to the interrogatories were inconsistent and the trial court erred by failing to resubmit the verdict or, alternatively, order a new trial, pursuant to CPLR 4111[c], and the Appellate Division agreed.

As the verdict was inconsistent, pursuant to CPLR 4111(c), the court was obligated to either resubmit the interrogatories to the jury or order a new trial. The trial court improperly speculated as to the jury's thought process in attempting to reconcile the jury's answers with the evidence, based upon a theory that was not part of the jury's findings.

Student note:   Even though the parties focus their arguments on appeal on the issue of whether the verdict was a special or general verdict, the Appellate Division found that such a determination is unnecessary.  While CPLR 4111(c) only considers a new trial when the jury's answers to interrogatories are accompanied by a general verdict and there is an internal inconsistency, there is no reason why a new trial cannot be an available remedy where the jury has rendered a special verdict. In fact, when a verdict is inconsistent and the jury has been discharged, a new trial is the most appropriate remedy.

Case:  Bellinson Law, LLC v Iannucci, NY Slip Op 02219 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: An untimely appeal.

A municipality's liability, and denial of a motion to renew.

Practice point:  Where a municipality has adopted a prior written notice law, it cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies. Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it.

Here, in the bill of particulars, the plaintiff alleged that the City affirmatively created a dangerous condition by the manner in which it piled up snow and ice at the location of the accident. The City established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of a snow mound or icy condition in the area in which the plaintiff fell, and that it did not, merely by plowing the roadway, create a dangerous condition through an affirmative act of negligence.

Student note: The purportedly new facts submitted by the plaintiff on that branch of the motion which was for leave to renew would not have changed the prior determination, and so renewal was denied, pursuant to CPLR 2221[e].

Case:  Moncrieffe v. City of White Plains, NY Slip Op 02017 (2d Dept. 2014).

Here is the decision.

Monday's issue:  A jury's inconsistent verdict.

The common-interest privilege.

Practice point:  A bona fide communication made upon any subject matter in which the communicating party has an interest, or in reference to which that party has a duty, is privileged if made to a person having a corresponding interest or duty.  This privilegre can be overcome by a showing of malice.  The Appellate Division found that the allegations of malice as set forth in the complaint and in the plaintiff's affidavit preclude dismissal for failure to state a cause of action, pursuant to CPLR 3211[a][7].

Student note:  On a 3211(a)(7) motion, a plaintiff has no obligation to show evidentiary facts to support the allegations of malice.

Case:  Colantonio v. Mercy Med. Ctr., NY Slip Op 02009 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A municipality's liability, and denial of a motion to renew.

An out-of-possession landlord's liability for a fall through an open trap door.

Practice point:  The Appellate Division found that the out-of-possession landlord was entitled to summary judgment where the plaintiff fell through an open trap door in the tenant's store. Even though the landlord reserved the right to reenter the leased premises for purposes of inspection and repair, the properly functioning trap door that was left open by someone within the tenant's control did not constitute a significant structural or design defect, and plaintiff failed to show a violation of a specific statutory provision, as required to impose liability upon the out-of-possession landlord.

Student note:  A general non-specific safety provision such as Administrative Code of City of NY § 28-301.1 is insufficient to impose liability on an out-of-possession owner.

Case:  Yuying Qiu v J & J Deli Corp., NY Slip Op 02150 (1st Dept. 2014).

Here is the decision.

Tomorrow's issue: The common-interest privilege.

Vacating a default.

Practice point:  To vacate their default in opposing the plaintiffs' motion for summary judgment on the issue of liability, the defendants were required to demonstrate a reasonable excuse for their default and a potentially meritorious opposition to that motion, pursuant to CPLR 5015[a][1].

Student note: While the decision whether to vacate a default judgment rests within the sound discretion of the trial court, a disposition on the merits is favored.

Case:  Bardes v. Pintado, NY Slip Op 02003 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  An out-of-possession landlord's liability for a fall through an open trap door.

A cause of action for false arrest or imprisonment.

Practice point:  A plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged".

Student note:  Probable cause serves as a legal justification for the arrest, and is an affirmative defense to the claim.

Case:  Fakoya v. City of New York, NY Slip Op01709 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue:  Vacating a default.

Res judicata, and the preclusive effect of summary judgment.

Practice point:  Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding. It operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding.

Student note:  An order granting a summary judgment motion is on the merits and has preclusive effect.

Case:  Cox v. Hubbard, NY Slip Op 01705 (2d Dept. 2014).

 Here is the decision.

Monday's issue:  A cause of action for false arrest or imprisonment.