Dismissal pursuant to CPLR 3216.

Practice point:  CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as a basis for a motion to dismiss the action.

Student note  As CPLR 3216 is a legislative creation and not part of a court's inherent power, a court may not dismiss an action for want of prosecution where the plaintiff was not served with the requisite 90-day demand pursuant to CPLR 3216(b).

Case:  Diemer v. Eben Ezer Med. Assoc., NY Slip Op 058323 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Standing in a mortgage foreclosure action.

The service requirements of a foreclosure action.

Practice point:. RPAPL 1304[1] requires that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type."  The statute sets forth the requirements for the content of the notice, and further provides that the notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower, pursuant to RPAPL 1304[2].

Student note:  Proper service of the RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action.

Case:  Deutsche Bank Natl. Trust Co. v. Quinn, NY Slip Op 05829 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal pursuant to CPLR 3216.

Sanctions for spoilation of evidence.

Practice point:  The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence, and it may mpose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation.

Here, the Appellate Division determined that the Supreme Court providently exercised its discretion in striking the defendant's answers and thereupon awarding the plaintiffs summary judgment on the issue of liability pursuant to CPLR 3126. The record demonstrates that the defendant disposed of the grate involved in the accident after having received a written demand from one of the infant plaintiff's attorneys that the grate be preserved for inspection by the plaintiffs and their experts. Moreover, the plaintiffs demonstrated that they were unduly prejudiced by the defendant's conduct in disposing of the grate.

Student note:  Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, that party may be sanctioned under CPLR 3126.

Case:  Biniachvili v. Yeshivat Shaare Torah, Inc., NY Slip 05826 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The service requirements of a foreclosure action.

A worker's fall from a ladder.

Practice point:  The mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided. There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries.

Student note:  Labor Law § 240(1) imposes upon owners and general contractors, including their agents, a nondelegable duty to provide safety devices necessary to protect workers from the risks inherent in elevated work-sites.

Case: Karanikolas v. Elias Taverna, LLC, NY Slip Op 05774 (2d Dept. 2014)

Here is the decision.

Monday's issue: Sanctions for spoilation of evidence.

A landowner's duty to warn.

Practice point:  A property owner must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all the attendant circumstances. Encompassed within this duty is the concomitant duty to warn those lawfully on the premises of potentially dangerous conditions that are not readily observable.

Student note: Landowners who have or should have reason to expect that persons will find it necessary to encounter the danger, owe a duty of reasonable care to either warn such persons of the danger or to take other reasonable steps to protect them from it.

Case: Fernandez v. Rutman, NY Slip Op 05769 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A worker's fall from a ladder.

Dismissal for neglect to proceed.

Practice point:  Where a party unreasonably neglects to proceed in an action or otherwise delays in prosecuting the action, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or on a motion, may dismiss the party's pleading on terms, pursuant to CPLR 3216[a]. . Before doing so, the court or the party seeking such relief must serve a written demand to resume prosecution and to serve and file a note of issue within 90 days of receipt of such demand, and further advise that failure to do so may result in dismissal of the action, pursuant to CPLR 3216[b][3]..

Student note:  Pursuant to 22 NYCRR 202.21(a) and (b), an action will not be deemed ready for trial or inquest unless a note of issue is first filed, accompanied by a certificate of readiness stating that there are no outstanding requests for discovery and the case is ready.

Case:  Dutchess Truck Repair, Inc. v. Boyce, NY Slip Op 05768 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A landowner's duty to warn.

The statute of frauds and a subscribed memorandum.

Practice point:  To satisfy the statute of frauds, a memorandum, subscribed by the party to be charged, must designate the parties, identify and describe the subject matter, and state all of the essential terms of a complete agreement. A writing is not a sufficient memorandum unless the parties' full intention can be ascertained from it alone, without recourse to parol evidence.

Student note:  The statutorily required writing need not be contained in one single document, but may be furnished by piecing together related writings.

Case:  Dahan v. Weiss, NY Slip Op 05767 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Dismissal for neglect to proceed.

An action for fraud, breach of fiduciary duty, and negligence.

Practice point:  The Appellate Division affirmed the dismissal of the causes of action to recover damages for fraud, breach of fiduciary duty, and negligence pursuant to CPLR 3211(a)(1). The defendants' documentary evidence included forms signed by or on behalf of the plaintiffs that contained specific disclaimer provisions, pursuant to which the plaintiffs expressly acknowledged that the defendants were not authorized to provide tax advice, and that they would not rely on any such advice provided. These forms conclusively established the defendants' defense to the claims.

Student note:  A motion to dismiss a complaint based on documentary evidence, pursuant to CPLR 3211(a)(1), may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law.

Case:  Air & Power Transmission, Inc. v. Weingast, NY Slip Op 05757 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  The statute of frauds and a subscribed memorandum.

A managing agent's duty of care.

Practice point:  A duty of care on the part of a managing agent may arise where there is a comprehensive and exclusive management agreement between the agent and the owner that displaces the owner's duty to safely maintain the premises.  Here, the Appellate Division determined that, in moving for summary judgment, the defendants failed to submit a copy of the written management agreement. Consequently, they failed to establish, prima facie, that the managing agent owed no duty of care to the plaintiff.

Student note:  As a general rule, liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control, or special use of that property.

Case:  Calabro v. Harbour at Blue Point Home Owners Assn., Inc., NY  05620 (2d Dept. 2014)

Here is the decision.

Monday's issue: An action for fraud, breach of fiduciary duty, and negligence.

Emergency vehicles and the reckless disregard standard of care.

Practice point:  The reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § [*2]1104 (b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.

Student note:  A driver is negligent when an accident occurs because the driver failed to see that which through the proper use of his or her senses the driver should have seen.

Case:  Benn v. New York Presbyt. Hosp., NY Slip Op 05615 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A managing agent's duty of care.

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.