An untimely cross-motion for summary judgment.

Practice point:  The Appellate determined that the Supreme Court improvidently exercised its discretion in denying as untimely plaintiff's cross-motion for summary judgment. While the motion was made more than 120 days after the note of issue was filed and, therefore, was facially untimely, an untimely motion for summary judgment may be considered by the court where, as here, a timely motion was made on nearly identical grounds. The rationale is that the issues raised by the untimely motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause, pursuant to CPLR 3212 [a], to review the merits of the untimely motion.

Student note:  The court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party.

Case:  Wernicki v. Knipper, NY Slip Op 05324 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A motion to dismiss for failure to prosecute is denied.

Denial of a motion to dismiss on a general release and waiver.

Practice point:  The defendants presented proof, in the form of the general release and the waiver, demonstrating their prima facie entitlement to judgment as a matter of law dismissing the complaint and on their counterclaim for a judgment declaring that the mechanic's liens against their property are null and void. However, in opposition, the plaintiffs submitted proof raising triable issues of fact regarding, among other things, whether the parties' intentions were reflected by the terms of the general release and the waiver.

Student note:  Generally, a valid release that is clear and unambiguous on its face constitutes a complete bar to an action on a claim which is the subject of the release absent fraudulent inducement, fraudulent concealment, misrepresentation, mutual mistake or duress.

Case: Patti Constr. Corp. v 111-16 Atl. Ave. Realty Corp., NY Slip Op 05311 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An untimely cross-motion for summary judgment.

Return of down-payment on contract for sale of real property.

Practice point:  To prevail on the cause of action, the plaintiff must establish that the defendant breached or repudiated the contract and that the plaintiff was ready, willing, and able to perform on the closing date. The rule is that, where the vendor's title is incurably defective, a vendee can recover the money paid on the contract from a defaulting vendor, without a showing of tender or even of willingness and ability to perform, but a tender and demand are required to put the vendor in default where title could be cleared without difficulty in a reasonable time. In that latter situation, the seller is entitled to a reasonable time to make the title good. When the vendor is on notice of the defect prior to the scheduled closing date and does nothing to correct it until after the closing date, the purchaser need not tender performance,  as such tender would be meaningless.

Student note:  Where a seller seeks to hold a purchaser in breach of contract, the seller must establish that he or she  was ready, willing, and able to perform on the time-of-the-essence closing date, and that the purchaser failed to demonstrate a lawful excuse for its failure to close.

Case:  Martocci v. Schneider, NY Slip Op 05308 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Denial of a motion to dismiss on a general release and waiver.

A fall on the ice, out of season but actionable.

Practice point:  Defendant failed to establish that it lacked constructive notice of a large layer of ice which allegedly caused the plaintiff to slip and fall in the defendant's parking lot.  At a hearing held pursuant to General Municipal Law § 50-h, and at her deposition, the plaintiff testified that she had seen the ice condition the evening before the accident when she parked her car in the lot. In support of its motion, the defendant failed to establish that ice was not present when it last inspected or cleaned the area. In addition, the defendant failed to eliminate all triable issues of fact as to whether the large layer of ice upon which the plaintiff allegedly slipped was created by the defendant's snow removal efforts in the days prior to the accident.

Student note:  A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of plaintiff's fall.

Case:  Dhu v. New York City Hous. Auth., NY Slip Op 05300 (2d Dept. 2014) 

Here is the decision.

Monday's issue: Return of down-payment on contract for sale of real property.

The City's Human Rights Law and an allegation of discrimination based on disability.

Practice point:  Here, the defendant met its burden of demonstrating entitlement to judgment as a matter of law by offering evidence that the plaintiff, at the time of his discharge, was not suffering from a disability that would require an accommodation.
In any event, said the Appellate Division, there was a legitimate, nondiscriminatory
reason for his termination of employment. In opposition, the plaintiff failed to raise a
triable issue of fact.

Student note:  The New York City Human Rights Law prohibits an employer from discriminating against an individual who is disabled, pursuant to Administrative Code
of City  of NY § 8-107[15]).

Case:  Caban v. New York Methodist Hosp., NY Slip Op 05292 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A fall on the ice, out of season but actionable.

Defamation and the single publication rule.

Practice point:  Under the rule, the publication of a defamatory statement in a single issue of a newspaper or magazine, although widely circulated and distributed, constitutes one publication, which gives rise to one cause of action, and the statute of limitations runs from the date of that publication.

An exception to the rule has been applied when the following factors are present:  the subsequent publication is intended to and actually reaches a new audience; the second publication is made on an occasion distinct from the initial one; the republished statement has been modified in form or in content; and the defendant has control over the decision to republish. So, repetition of a defamatory statement in a later edition of a book, magazine or newspaper may give rise to a new cause of action.

Student note:  The rule applies to publications on the Internet, and so continuous access to an article posted via hyperlinks to a website is not a republication.

Case:  Martin v. Daily News L.P., NY Slip Op 05369 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The City's Human Rights Law and an allegation of discrimination based on disability.

Sua sponte dismissal undone.

The Appellate Division determined that the Supreme Court erred when, sua sponte,  it directed the dismissal of the complaint and the cancellation of the notice of pendency filed against the subject property for lack of standing. A party's lack of standing does not constitute a jurisdictional defect,
 and does not warrant the court's sua sponte dismissal of a complaint

Student note:  A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal.

Case:  Bank of N.Y. v. Mulligan, NY Slip Op 05291 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Defamation and the single publication rule.

A motion to dismiss pursuant to 3211(a)(7).

Practice point:  In considering the motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action.

If the movant relies on evidence beyond the four corners of the complaint, the motion must be denied absent a showing that there is a material fact as claimed by the pleader is not a fact at all,l and unless there is no significant dispute regarding it.

Student note:  On the motion, the statutory standard is whether the plaintiff has pled a cause of action. Period.

Case:  J. A. Lee Elec., Inc. v City of New York, NY Slip Op 05159 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Sua sponte dismissal undone.

A subpoena to obtain discovery from a non-party.

Practice point:  Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the circumstances or reasons requiring disclosure. The Court of Appeals has recently held that disclosure from a nonparty requires no more than a showing that the requested information is "material and necessary," that is, relevant to the prosecution or defense of an action. However, the subpoenaing party must sufficiently state the circumstances or reasons underlying the subpoena, either on its face or in an accompanying notice.  In moving to quash, the witness must establish either that the discovery sought is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious. On this showing, the subpoenaing party must then establish that the discovery sought is material and necessary to the prosecution or defense of an action.

Student note: CPLR 3101(a) is to be 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:  Ferolito v Arizona Beverages USA, LLC, NY Slip Op 05153 (2d Dept. 2014)

Here is the decision.

Monday's issue: A motion to dismiss pursuant to 3211(a)(7).

Legal malpractice.

Practice point:  A plaintiff must establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused the plaintiff actual and ascertainable damages.

For summary judgment, a defendant must demonstrate that the plaintiff is unable to prove at least one of the essential elements of the cause of action.

Here, the alleged malpractice relates to the sufficiency of the order to show cause and supporting papers prepared by the defendants and submitted on behalf of the plaintiffs in the personal injury action, pursuant to which they moved to vacate their default in the personal injury action. A motion to vacate a default by a plaintiff in appearing for trial requires the demonstration of a reasonable excuse and an affidavit setting forth the merits of the cause of action, pursuant to CPLR 5015.

The defendants established, prima facie, that the plaintiffs had no reasonable excuse for their default in appearing for jury selection in the personal injury action, thereby establishing that the alleged inadequecy of the motion papers that they prepared on the plaintiffs' behalf was not the proximate cause of the plaintiffs' damages. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether they had a reasonable excuse for their default that could have been communicated to the defendants for inclusion in the papers submitted with the motion to vacate.

Student note:  An attorney's conduct and performance in connection with a motion to vacate a default may constitute legal malpractice.

Case:  DiGiacomo v. Langella, NY Slip Op 05150 (2d Dept. 20145)

Here is the decision.

Tomorrow's issue: A subpoena to obtain discovery from a non-party.

Spoilation, the law, and videotape.

Practice point:  One week after plaintiff's slip-and-fall accident on defendants' premises, plaintiff's counsel sent a notice to defendant "to preserve any and all video recordings/surveillance tapes/still photos of any nature that depict the subject slip and fall accident" on the date and time in question. This notice was received by defendants' employee in charge of the recordings. After reviewing the tapes from all of the cameras, the employee preserved an 84-second portion of tape from one camera that depicted plaintiff's accident, starting from one minute preceding her fall. She downloaded this clip onto a CD-ROM and forwarded a copy to defendant's insurance carrier.

The employee testified that defendants' standard procedure regarding surveillance tapes was to send a copy of video footage of any accident to its insurance carrier, and that, after a search of all cameras, the 84-second portion of the one camera tape was found to be the only footage depicting the accident. She further stated that the insurance carrier never told her what to send it regarding an accident and never asked her to send anything more than the short clip of the accident. Additionally, she testified that the computer system in use at that time automatically erased all footage every 21 days due to limited storage capacity. She also stated that the system later broke and was replaced. However, she could not remember when the replacement occurred, and stated that the old system had been discarded.

Six weeks after the first request, counsel expanded his demand to six hours of footage leading up to the accident, for all 32 cameras in the store.

After discovery, defendants moved for summary judgment, arguing that they did not create or have actual notice of the condition that allegedly caused plaintiff to fall. Plaintiff opposed the motion and cross-moved to strike defendants' answer for withholding and destroying relevant video footage, or, in the alternative, for an order directing that the issue of notice be resolved against defendants.

The motion court found that defendants met their prima facie burden to establish that they did not create or have actual notice of the condition upon which plaintiff allegedly fell and that plaintiff failed to raise a triable issue of fact as to constructive notice.

Although not required to do so in light of its ruling on the summary judgment motion, the court addressed plaintiff's cross motion to strike defendants' answer for spoilation of evidence. The court found that the destruction of the original surveillance video was not willful or contumacious or in violation of a court order. The court accepted the employee's explanation regarding the loss of the tape, finding no reason to attribute bad faith to defendants. It also rejected plaintiff's contention that defendants should have preserved six hours of footage from all 32 store cameras.

The Appellate Division found that the motion court properly exercised its discretion in denying plaintiff's motion for spoliation sanctions. Plaintiff's initial demand for preservation of video tapes was limited to those that "depict the subject slip and fall accident that took place on the above referenced date, time and location."  The portion of the tape that was preserved complied with this demand.

The Appellate Division noted that a property owner's receipt of a notice to preserve records triggers certain obligations, but there are limits to the extent of those obligations.While a plaintiff is entitled to inspect tapes to determine whether the area of an accident is depicted and is not compelled to accept defendant's self-serving statement concerning the contents of the destroyed tapes, this does not trigger a defendant's obligation to preserve hours of tapes indefinitely each time an incident occurs on its premises in anticipation of a plaintiff's request for them. That obligation would impose an unreasonable burden on property owners and lessees.

Student note:  On a motion for spoliation sanctions, the movant must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a culpable state of mind, which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party's claim or defense.  In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness. The burden is on the party seeking sanctions to make the requisite showing.

Case:  Duluc v AC&L Food Corp., NY Slip Op 05243 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Legal malpractice.