A motion to vacate based on defective service.

Practice point:  The Appellate Division determined that the Supreme Court erred in denying, without a hearing, that branch of the defendants' motion which was pursuant to CPLR 317 to vacate so much of the order as granted that branch of the plaintiff's motion which was pursuant to CPLR 3215 for leave to enter a default judgment against one of the defendants. That defendant demonstrated that it was not served with copies of the summons and complaint by personal delivery; did not personally receive notice of the summons in time to defend the action; and had a potentially meritorious defense.

Student note:  The Supreme Court determined that the defendant deliberately attempted to avoid notice of the summons, based upon the fact that the New York Secretary of State mailed a copy of the summons and complaint by certified mail, in time for it to defend the action, and that this mailing was returned as unclaimed. However, the Supreme Court should not have made this determination without conducting a hearing as to whether the defendant received notice of the dispatch or delivery of the certified mail from the Secretary of State.

Case:  Avila v. Distinctive Dev. Co., LLC, NY Slip Op05613 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Emergency vehicles and the reckless disregard standard of care.

Waiving the right to arbitrate.

Practice point:  A party may waive its right to arbitrate by participating in litigation. The mere act of pursuing litigation does not waive the right, but, rather, the party must engage in protracted litigation that results in prejudice to the opposing party.  The prejudice may either be substantive,  or it may involve excessive delay or costs caused by the moving party's pursuit of litigation prior to seeking arbitration.  A party may be substantively prejudiced when the other party is attempting to relitigate an issue through arbitration, has participated in substantial motion practice, or seeks arbitration after engaging in discovery that is unavailable in arbitration.

Student note:  In determining what constitutes protracted litigation for the purposes of waiver, the court should consider three factors: (1) the amount of time between the commencement of the action and the request for arbitration; (2) the amount of litigation thus far; and (3) proof of prejudice to the opposing party.

Case:  Cusimano v. Schnurr, NY Slip Op 05702 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A motion to vacate based on defective service.

An auto accident, and summary judgment as to liability denied.

Practice point:  To establish prima facie entitlement to judgment as a matter of law on the issue of liability, a plaintiff must demonstrate that the defendant was negligent and that the plaintiff was free of comparative fault. Here, in support of her motion, plaintiff submitted, among other things, the transcript of defendant's deposition, in which he stated that he remained in the far left traffic lane at all times prior to the collision, and that he felt the bump of the plaintiff's vehicle when it crossed over into his lane.

The Appellate Division determined that the motion court had properly concluded that plaintiff failed to eliminate a triable issue of fact as to how the accident occurred and who was at fault. The Appellate Division noted that, contrary to plaintiff's assertions, defendant's deposition testimony was not internally inconsistent on the material facts, was not inconsistent with his previously prepared accident report, and did not constitute an attempt to create a feigned issue of fact.

 Student note: In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party.

Case: Valentin v. Parisio, NY Slip Op 05423 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Waiving the right to arbitrate.

Injured while lifting a bag of, well, coins.

Practice point:  The plaintiff allegedly was injured while lifting a bag of coins as part of his assigned duties as an armored car service's courier for an armored car service.  The plaintiff commenced this action against the owner of the bank where the incident occurred, alleging that the defendant and its employees created a dangerous and defective condition by allowing the bag of coins to be overfilled.

The defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the subject bag of coins was not over an accepted or contractually agreed upon weight at the time of the alleged incident, and that the plaintiff's injury resulted from a risk inherent in his assigned work as a courier for the service.

Student note:  In addition, the defendant demonstrated that the plaintiff elected to lift the bag with only one hand. Where, as here, a worker confronts the ordinary and obvious hazards of the employment, and has the time and other resources, perhaps a co-worker who might assist, to enable the work to be done safely, he may not hold others responsible if he chooses to perform the job so incautiously as to be injured.

Case:  Sepulveda-Vega v. Suffolk Bancorp., NY Slip Op 05419 (2d Dept. 2014)

Here is the decision.

Monday's issue:  An auto accident, and summary judgement as to liability denied.

An oral contract and taxi medallions.

Practice point:  The parties are taxi drivers who allegedly purchased two New York City taxicab medallions, the titles to which were subsequently memorialized in two deeds of transfer, with the plaintiff holding title to one medallion, and the defendant holding title to the other. Over time, various transfers of money were made between the parties, including one transfer from the plaintiff to the defendant in the sum of $158,375, allegedly to facilitate the defendant's purchase of the medallion to which he had title. The plaintiff alleges that the parties orally agreed that he was loaning this sum to the defendant at the interest rate of 6.25%, and that the defendant was obligated to repay this amount "whenever he can." The defendant asserts that the parties never made such an agreement. The plaintiff commenced this action to recover the amount due on the oral loan agreement, and after a nonjury trial, the Supreme Court concluded that the plaintiff was entitled to the principal sum of $158,375.

The Appellate Division affirmed, noting that, as the defendant concedes, the loan agreement at issue could have been performed within one year of the making thereof, pursuant to General Obligations Law § 5-701[a][1].. Therefore, the statute of frauds does not apply to this agreement, and enforcement of the agreement is not barred by virtue of it not having been memorialized in writing.

Student note:  The Appellate Division also considered that the Supreme Court's determination in favor of the plaintiff was based upon factual conclusions arrived at by weighing the evidence presented by both parties, and was not against the weight of the evidence or contrary to law.

Case:  Saha v. Padder, NY Slip Op 05418 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Injured while lifting a bag of, well, coins.

Bad weather, a bad fall, and a bad result for the injured plaintiff.

Practice point:  A property owner is not obligated to provide a constant remedy to the problem of water being tracked into a building during inclement weather, and has no obligation to cover all of its floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation.

Here, both the owner and the tenant established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them. They each presented evidence that they had not created the alleged defective condition, and the owner also presented evidence that it had neither actual nor constructive notice of the alleged defective condition, namely., the alleged presence of water on the vestibule floor of the subject building. In opposition, the plaintiff failed to raise a triable issue of fact.

Student note:  A tenant ordinarily owes no duty of care with respect to a dangerous condition in the building's common areas.

Case:  Paduano v. 686 Forest Ave., LLC, NY Slip Op 05415 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An oral contract and taxi medallions.

Motion to amend the complaint is granted.

Practice point:  The Appellate Division reversed the motion court's denial of plaintiff's motion pursuant to CPLR 3025(b) for leave to serve a second amended complaint to add a cause of action to recover damages for negligence per se and a claim for punitive damages. Defendants did not allege that the proposed amendment would result in any prejudice or surprise. Indeed, plaintiff's motion was made prior to the filing of the note of issue, and was predicated on information supplied by defendants during disclosure.  Further, the proposed amendment was not palpably insufficient or patently devoid of merit.  Finally, the motion court erred in prematurely determining that the proposed amendment "would invite the jury to speculate."  The rule is that if the opposing party wishes to test the merits of the proposed added cause of action, that party may later move for summary judgment upon a proper showing.

Student note:  An evidentiary showing of merit is not required under CPLR 3025(b).  Instead, the court need only determine whether the proposed amendment is palpably insufficient' to state a cause of action or defense, or is patently devoid of merit. The court may not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt.

Case:  Favia v. Harley-Davidson Motor Co., Inc., NY Slip Op 05408 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Bad weather,  a bad fall, and a bad result for the injured plaintiff.

A medical malpractice action based on a psychiatric consultation.

Practice point:  The plaintiff had gone by ambulance to the hospital complaining of feeling overwhelmed by stress. An emergency room physician concluded that plaintiff's symptoms were consistent with depression, and ordered several tests and a psychiatric consultation. After some of the test results came back, the emergency room physician telephoned defendant-psychiatrist for the consultation. The emergency room physician advised him that she anticipated that plaintiff would be medically cleared, and asked defendant to confirm her initial assessment that plaintiff was not suicidal or a risk to others and, thus, would not require involuntary admission. Defendant reviewed the plaintiff's chart, looking for any indication that he had suicidal or homicidal ideation. Then, after performing his evaluation, defendant concluded that plaintiff was not a danger to himself or others and would not require involuntary admission. Defendant offered plaintiff a referral for outpatient psychiatric treatment for depression. As defendant was gathering information regarding the outpatient referral, plaintiff and his partner left the hospital before being formally discharged by the emergency room physician, who was still waiting for medical test results and overseeing treatment. Plaintiff became unresponsive in the cab ride home and returned to the emergency room about 45 minutes later. He was reexamined and, after a neurological consultation, it was determined that he had suffered a stroke.

Plaintiff sued, among others, defendant-psychiatrist, against whom he alleged a departure from acceptable medical practices by not performing a neurological examination and thereby ruling out a neurological etiology for his symptoms; by not developing a list of differential diagnoses; and by not referring plaintiff for further diagnostic studies to work up neurological problems. The Supreme Court denied defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.

The Appellate Division reversed, finding that defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that his duty of care as a consulting psychiatrist did not extend to the departures alleged by the plaintiff.  Where, as here, plaintiff was being actively treated by an emergency room physician for any medical causes of his symptoms, and exhibited no clear signs of neurological problems at the time, defendant had no duty beyond properly performing an evaluation to determine whether plaintiff was a danger to himself or others and would require involuntary admission for depression. The Appellate Division found that, in opposition, the plaintiff failed to raise a triable issue of fact.

Student note:  A physician's general duty of care to the patient may be limited to those medical functions undertaken by the physician and relied on by the patient.

Case:  Chin v. Long Is. Coll. Hosp., NY Slip Op 05406 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Motion to amend the complaint is granted.

An injured firefighter's suit sounding in negligence.

Practice point:  General Municipal Law § 205-a establishes the right of an injured firefighter to recover against any party whose negligence in failing to comply with governmental requirements results directly or indirectly in the firefighter's injury. While recovery does not require proof of such notice as would be necessary to a cause of action alleging common-law negligence, the plaintiff still must establish that the circumstances surrounding the violation indicate that it was a result of neglect, omission, or willful or culpable negligence on the defendant's part. Here, defendant established, prima facie, that the alleged violations were not the result of neglect, omission, or willful or culpable negligence on his part, and, in opposition, plaintiffs failed to raise a triable issue of fact.

Student note:  General Obligations Law § 11-106 largely abolished the former so-called "firefighter's rule" by allowing firefighters to assert causes of action sounding in negligence for injuries suffered while in the line of duty against entities other than municipal employers and fellow workers.

Case:  Cassidy v. Korik, NY Slip Op 05405 (2d Dept. 2014)

Here is the decision.

Monday's issue:  A medical malpractice action based on a psychiatric consultation.

A motion to dismiss for failure to prosecute is denied.

Practice point:  On receipt of plaintiffs' 90-day notice, defendants did not file a note of issue within 90 days.. However, plaintiffs refused certain requests to schedule a continued deposition of the injured defendant, and, after the notice was served, both parties demonstrated an intent to proceed with discovery. Further, there is no evidence that plaintiffs were prejudiced by the minimal delay involved in this case, nor is there a pattern of persistent neglect and delay in prosecuting the action. Neither is there any indication of an intent to abandon the action. Under these circumstances, the Appellate Division affirmed the Supreme Court's exercise of its discretion in excusing defendants' failure to meet the deadline for filing the note of issue.

Student note:  CPLR 3216 is extremely forgiving in that it does not require, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed. While the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a meritorious cause of action, such a dual showing is not strictly necessary to avoid dismissal.

Case:  Altman v. Donnenfeld, NY Slip Op 05402 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An injured firefighter's suit sounding in negligence.

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.