Service, and the due diligence requirement of 308(4).

Practice point:  Service of process pursuant to the affix-and-mail provisions of CPLR 308(4) is only permitted where service by personal delivery under CPLR 308(1) or by delivery to a person of suitable age and discretion and a subsequent mailing pursuant to CPLR 308(2) cannot be made with due diligence. Satisfying the due diligence requirement entails a showing that the process server made genuine inquiries about the defendant's whereabouts and place of employmentt. Here, the process server's testimony that he inquired as to the defendant's whereabouts from a neighbor was not credible, as he was unable to provide any description at all of the neighbor, not even the gender. The affidavit of service referred to a "person spoken to," but provided no description, although there were spaces to insert the person's gender, skin color, hair color, approximate age, height, and weight.

Student note:  Where the defendant's only participation in the action is the submission of a motion to vacate a default judgment for lack of personal jurisdiction, the defense of lack of personal jurisdiction is not waived.

Case:  Cadlerock Joint Venture, L.P. v. Kierstedt, NY Slip Op 05147 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Spoilation, the law, and videotape.

CPLR 3216.

Practice point:  After being served with a 90-day demand pursuant to CPLR 3216(b)(3), that plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day period. Here, the plaintiff failed to do either within the 90-day period. Therefore, in order to excuse his default, the plaintiff was required to demonstrate a justifiable excuse for his failure to timely file the note of issue or move to either vacate the demand or extend the 90-day period, as well as a potentially meritorious cause of action. The determination of what constitutes a reasonable excuse lies within the discretion of the motion court.

Student note:  CPLR 3216 is extremely forgiving, in that it does not require, but merely authorizes, the court to dismiss an action based on the plaintiff's unreasonable neglect to proceed.  In fact, depending on the circumstances, a plaintiff is not always required to establish both a justifiable excuse and a potentially meritorious cause of action to avoid such a dismissal.

Case:  Belson v Dix Hills A.C., Inc., NY Slip Op 05144 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Service, and the due diligence requirement of 308(4).

An oral agreement as to an interest in a co-op.

Practice point:  Plaintiff alleges that he and defendant orally agreed that defendant would reside in plaintiff's cooperative apartment, rent-free, but that he would pay the maintenance, assessments, and other related charges. Plaintiff also alleges that the agreement was that defendant would vacate the premises at plaimtiff's request, and that the plaintiff would remain "the true, legal and equitable owner."  Plaintiff further alleges that, for one dollar, he let defendant become a joint tenant and coop shareholder, and had defendant so listed on the share certificate and proprietary lease, as an accommodation to defendant, since the coop board objected to open-ended occupancy by a non-owner.

Defendant denies the agreement, and alleges that he received an interest in the apartment in consideration for the services he performed for plaintiff's medical practice. Defendant moved for summary judgment dismissing the complaint on statutes of frauds and limitations grounds.

In opposition, plaintiff argues that he has partly performed the oral agreement and that, if the agreement is not enforced, injustice will result, namely, defendant's receiving a half-interest in exchange for the one dollar's consideration.

The Appellate Division found issues of fact as to whether plaintiff's performance of the alleged agreement is unequivocally referable to the agreement, including whether plaintiff gave defendant an interest in the apartment in consideration for services that defendant performed for him, and whether the written assignment of the lease was legitimate.

Student note:  With respect to the statute of limitations, there are issues of fact as to whether defendant's possession of the apartment was adverse. As to the trespass cause of action, the applicable statute of limitations does not commence while the trespass is continuous and ongoing.

Case:  Lauersen v. Antonopolous, NY Slip Op 05022 (1st Dept. 2014)

Here is the decision.

Monday's issue:  CPLR 3216.

A motion for leave to serve and file an amended notice of claim is denied.

Practice point:  The Appellate Division found that the Supreme Court improvidently exercised its discretion in granting the plaintiff's cross motion for leave to serve and file an amended notice of claim. The proposed amendments included substantive changes to the facts, adding that the plaintiff was injured after he climbed a ladder to go over a fence, changing the situs of the accident, and identifying the plaintiff as a worker at the site. The proposed amendments to the notice of claim also added a theory of liability under the Labor Law. Such changes are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6). Granting leave would prejudice the defendant by depriving it of the opportunity to promptly and meaningfully investigate the claim.

Student note:  Amendments to notices of claim are appropriate only to correct good-faith and nonprejudicial technical mistakes, defects, or omissions, not substantive changes in the theory of liability.

Case:  Ahmed v. New York City Housing Authority, NY Slip Op 04883 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An oral agreement as to an interest in a co-op.

Struck by a bicycle, and the complaint is dismissed.

Practice point:  The Appellate Division reversed the trial court and dismissed the complaint in in this action where plaintiff was injured when a child, riding a bicycle, struck her from behind as she walked on an interior walkway of defendant's complex. Defendant submitted the testimony of a member of its private security force, who stated that defendant employed five to seven security guards during normal business hours. He stated that people traversed the property, and some "occasionally" rode bicycles, but this happened "rarely." Nevertheless, defendant had a rule against riding bicycles in the area of the incident, and there were a number of signs posting this rule. Defendant also had surveillance cameras on the interior and exterior of the property, and the security officer further stated that when someone was found riding a bicycle, either the bicycle would be confiscated, a summons would be issued, or a warning would be issued.

The Appellate Division found that the defendant had demonstrated that it provided the requisite minimal precautions to protect people from the foreseeable harm of bicycle riders, and there was nothing else that it reasonably could have done.

Student note:  Plaintiff failed to submit opposition to the motion, and the arguments she has set forth in her appellate brief are unpreserved. In any event, the Appellate Division determined that plaintiff's arguments do not present triable issues of fact that would warrant the denial of the defendant's motion.

Case:  DeJesus v. Parkchester S. Condominium Inc., NY Slip Op 05016 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A motion for leave to serve and file an amended notice of claim is denied.

Labor Law § 240(1).

Practice point:  Labor Law § 240(1) imposes on owners a nondelegable duty to protect workers from elevation-related risks at covered work-sites. In order for the statute to apply, the worker must be working on a building or structure and must be performing a covered task, such as altering or demolishing.

Student note:  The injured workers's negligence, if any, does not change the analysis.

Case:  Kharie v. South Shore Record Mgt., Inc., NY Slip Op 04738 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Struck by a bicycle, and the complaint is dismissed.

A claim for punitive damages is denied.

Practice point:  The Appellate Division found that the complaint alleges in conclusory and conjectural fashion that "defendants were grossly, willfully and wantonly negligent and acted with reckless indifference to the health and safety of plaintiff."  Such legal conclusions are insufficient, as the complaint does not allege any facts to demonstrate that the defendant  engaged in conduct which rose to the high level of moral culpability to support a claim for punitive damages.

Student note:  A plaintiff cannot maintain a punitive damages demand on the hope that discovery might provide a basis for it.  However, should discovery reveal facts supporting a claim for punitive damages, the plaintiff could move for leave to replead.

Case:  Barnes v. Hodge, NY Slip Op 04851 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Labor Law § 240(1).

Independence Day.

Qualified privilege.

Practice point:  A qualified privilege extends to any communication made by one person to another upon a subject in which both have an interest. Where a plaintiff can demonstrate that the communication made by the defendant was not made in good faith but was motivated solely by malice, the protection provided by the qualified privilege does not apply.

Student note:  Mere conclusory allegations, or charges based upon surmise, conjecture, and suspicion, are insufficient to defeat the claim of the privilege.

Case:  Bernacchi v. County of Suffolk, NY Slip Op 04725 (2d Dept. 2014)

Here is the decision.

Monday's issue: A claim for punitive damages is denied.

The traverse hearing officer's determination is reversed.

 Practice point:  Defendants' witness at the traverse hearing worked in an office at which plaintiff's law firm had previously served process without challenge. This was known to the process server, who was a lawyer at the firm. A substantial responsibility held by defendants' witness was to accept service of subpoenas served on defendants. The process server testified that he handed the summons and complaint to defendants' witness after having asked several people in defendants' office where he should go to serve the papers, and having been directed towards the area where her cubicle was located. Defendants' witness could not recall  whether she ever had an encounter with the process server, and neither did she deny it.

The Appellate Division determined that, viewed objectively, these circumstances compel the conclusion that service on defendants was calculated to give fair notice of the claims against them. The Appellate Division noted that the hearing court did not appear to base its conclusion on any credibility determinations. Instead, it found that both defendants' witness and the process server were inexperienced with service of process, leading to their mutual confusion. The Appellate Division found this to be an insufficient basis to dismiss the complaint, and it was reinstated.

 Student note:  In evaluating whether service is to be sustained, the circumstances of the particular case must be weighed. In addition, CPLR 311, pursuant to which plaintiff purported to make service, is to be liberally construed in determining whether service was made on a corporation by delivering the summons to one of the persons delineated in the statute.

Case:  Wells v. Continuum Health Partners, Inc., NY Slip Op 04850 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Qualified privilege.

Lack of subject matter jurisdiction in a Human Rights Law claim.

Practice point:  The Appellate Division determined that, because the alleged conduct occurred while plaintiff was physically situated outside of New York, none of her concrete allegations of harassing behavior or other discriminatory conduct had the impact  plaintiff in New York required to support claims under the State and City Human Rights Laws. Plaintiff's Human Rights Law claims were dismissed for lack of subject matter jurisdiction, since the statutes do not apply to the conduct at issue, pursuant to CPLR 3211[a][2]

Student note:  The Appellate Division rejected plaintiff's argument that, because she filed New York State nonresident income tax returns and paid income taxes here, she is entitled to the protections, benefits and values of New York government, including the State and City Human Rights Laws. Whether New York courts have subject matter jurisdiction over a nonresident plaintiff's claims under those statutes turns primarily on her physical location at the time of the alleged discriminatory acts, and not on her taxpayer status.

Case:  Benham v. eCommission Solutions, LLC, NY Slip Op 04695 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The traverse hearing officer's determination is reversed.