Defective service and dismissal

Practice point:  The Appellate Division affirmed dismissal on the basis that no personal jurisdiction was acquired over respondents. Petitioner failed to comply with CPLR 311(a)(1)'s requirement hat the process server tender process directly to an authorized corporate representative, rather than an unauthorized person who later hands the process to an officer or other qualified representative.

Petitioner also failed to properly effectuate service of process by mail. Although he mailed the summons and petition to respondents, he did not include two copies of a "statement of service by mail" and an "acknowledgement of receipt" as required by CPLR 312-a.

Student note:  The Appellate Division noted that petitioner's status as a pro se litigant does not excuse the defective service, and the fact that respondents received actual notice does not confer jurisdiction upon the court.

Here is the decision.

Tomorrow's issue: The motion court is limited to the issues on the motion before it.

Summary judgment on breach of contract and account stated.

Practice point:  The plaintiff made a prima facie showing of entitlement to judgment as a matter of law on its breach of contract claiim by tendering sufficient evidence that there was an agreement, which the defendant accepted by his use of a certain credit card issued by the plaintiff and payments made thereon, and which was breached by the defendant when he failed to make the required payments.

The plaintiff also established prima facie entitlement to judgment as a matter of law on its account stated claim by tendering sufficient evidence that it generated account statements for the defendant in the regular course of business;  that it mailed those statements to the defendant on a monthly basis; and that the defendant accepted and retained these statements for a reasonable period of time without objection, and made partial payments on them.

Student note:  The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment.

Case:  Citibank (South Dakota), N.A. v. Keskin, NY Slip Op 06553 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Defective service and dismissal.

An account stated claim to recover legal fees, and a malpractice counterclaim.

Practice point:  Defendant is trustee of a family trust, the beneficiaries of which retained plaintiff-firm to handle intellectual property matters. The Appellate Division found that, contrary to the motion court's ruling, there was a valid fee agreement between plaintiff and the Trust. The better practice would have been to send the engagement letter to the trustee, rather than only to the beneficiaries. However, the record, including email exchanges between the trustee and plaintiff, shows that the trustee was well aware of and approved of the beneficiaries' authority to act on the Trust's behalf with regard to plaintiff's retainer and representation. It is irrelevant that the original engagement letter was not signed by the client, pursuant to 22 NYCRR 1215.1[a].

The Appellate Division also found that defendant's timely written objection to one invoice creates triable issues of fact as to the amount due under that invoice only. Defendant's oral and undocumented objections to the remaining bills do not suffice to create triable issues as to the remaining amount owed. What is more, the Trust made partial payments to plaintiff throughout plaintiff's representation.

Student note:  As to the counterclaim, the Appellate Division found that, even if plaintiff's failure to complete a chain-of-title report or to resolve the underlying intellectual property disputes before withdrawing, amounts to negligence, the Trust failed to demonstrate causation. The Trust failed to show how it would have successfully opposed the underlying trademark cancellation proceeding, or would otherwise have protected its intellectual property rights, but for plaintiff's omissions.

In addition, the resulting inability to efficiently market the trademarks is too speculative to constitute the actual ascertainable damages required to support the counterclaim.

Case:  Fross, Zelnick, Lehrman & Zissu, P.C. v. Geer, NY Slip Op 06547 (1st Dept. 2014)

Here is the decision.

Monday's issue: Summary judgment on breach of contract and account stated.

The Labor Law § 740(7) election of remedies provision in a retaliation action.

Practice point:  The plaintiffs alleged retaliation pursuant to Labor Law § 740 in a prior action against the defendants. The claim asserted here, pursuant to Administrative Code of the City of New York § 8-107, arises out of and relates to the same underlying claim of retaliation as asserted in the prior action. Therefore, the Appellate Division found it to be barred by the Labor Law § 740(7) election of remedies provision. The Appellate Division noted that the waiver may not be avoided by amending the complaint to withdraw the section 740 claim.

Student note:  Labor Law § 740(7) provides that "the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law." The waiver applies to causes of action arising out of or relating to the same underlying claim of retaliation.

Case: Charite v Duane Reade, Inc., NY Slip Op 06292 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: An account stated claim to recover legal fees, and a malpractice counterclaim.

CPLR 3012(b)

Practice point:  The Appellate Division affirmed the dismissal for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b).  The plaintiff was no longer acting in a pro se capacity when the defendants uploaded the notice of appearance and demand to the NYSCEF system. The plaintiff's purported reasonable excuse that the failure to serve the complaint was a "technical glitch" of the NYSCEF system is unavailing. The defendants' notice of appearance and demand remained in the e-filing system for over one year, during which time the plaintiff was represented by counsel, before the plaintiff served a proposed complaint on them. The Appellate Division determined that this is not a mere technical glitch, but law office failure, which has been held not to constitute a reasonable excuse under CPLR 3012(b).

Student note:  To avoid dismissal of the action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action.

Case:  Carducci v. Russell, NY Slip Op 06290 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The Labor Law § 740(7) election of remedies provision in a retaliation action.

Issues of fact as to constructive notice.

Practice point:  The Appellate Division reversed the motion court's granting of defendants' summary judgment motion in this personal injury action, finding triable issues of fact as to whether defendants had constructive notice of the defective condition of the window which allegedly fell on plaintiff's hands. Defendants were aware of problems with the building's windows staying in an upright position, based on the replacement of balances on a number of plaintiff's own windows, including the window in question, and on many others throughout the building.

Student note:  The Appellate Division expressly rejected defendants' argument that they were not required to conduct periodic tests of the window balances. Once they knew that an appreciable number of the windows in the building required attention, they had an obligation to inspect all of them.

Case:  Hermina v. 2050 Valentine Ave., LLC, NY Slip Op 06367 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: CPLR 3012(b)

Summary judgment as to liability in an action involving a pedestrian struck by an automobile.

Practice point:  The plaintiff allegedly was injured when he was struck by a vehicle owned by the defendant-florist. The plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by presenting proof that the injured plaintiff was walking within an unmarked crosswalk and that he looked for approaching traffic before he began to cross.
 

In opposition, the defendants failed to raise a triable issue of fact. A transcript of an alleged telephone conversation that a nonparty witness had with the defendants' insurer, which is not authenticated, certified, or sworn, was inadmissible and insufficient to raise a triable issue of fact. Additionally, the driver-defendant's affidavit did not raise a triable issue of fact as it consisted of unsupported speculation that the injured plaintiff was comparatively negligent.

Student note:  That branch of the plaintiffs' motion which sought summary judgment on the issue of liability was not premature, since the florist-defendants failed to offer an evidentiary basis to show that discovery may lead to relevant evidence and that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff.

Case:  Garcia v. Lenox Hill Florist III, Inc, NY Slip Op 06171 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Issues of fact as to constructive notice.

Property possessor's liability for a third-person's criminal acts.

Practice point:  A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties. Here, the defendants failed to meet their prima facie burden of establishing entitlement to judgment as a matter of law by demonstrating that they took reasonable security measures against foreseeable criminal acts of third parties.

Student note:  A defendant cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case.

Case:  Deinzer v. Middle Country Pub. Lib, NY Slip Op 06169 (2d Dept. 2014)

Here is the decision.

Monday's issue: Summary judgment as to liability in an action involving a pedestrian struck by an automobile.

Summary judgment in a legal malpractice action.

Practice point:  To recover damages for legal malpractice, a plaintiff must prove the existence of an attorney-client relationship. In addition, the plaintiff must establish that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages.

Student note:  To succeed on a motion for summary judgment dismissing the complaint, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice

Case:  Biberaj v. Acocella, NY Slip Op 06165 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Property possessor's liability for a third-person's criminal acts.

Documentary evidence in spport of a CPLR 3211(a)(1) motion.

Practice point:  In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be unambiguous, authentic, and undeniable.  While judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, and contracts qualify as documentary evidence, affidavits, deposition testimony, and letters do not.

Student note:  A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence will be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. The evidence submitted in support of such motion must be documentary or the motion must be denied.

Case:  Attias v. Costiera, NY Slip Op 06163 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Summary judgment in a legal malpractice action.

Denial of a motion to file a late notice of claim.

Practice point:  The Appellate Division affirmed the denial of the motion and the dismissal of this medical malpractice action in which the infant plaintiff sought to recover for injuries he suffered after being born at 27 weeks' gestation. The Appellate Division found that the motion court considered the pertinent statutory factors and properly exercised its discretion in denying plaintiff's motion, pursuant to General Municipal Law § 50-e[5].

The Appellate Division found that the infant plaintiff's mother's excuses that she was unfamiliar with the requirement that she file a notice of claim, and that she was unaware that her son's injuries were caused by defendant's malpractice, are not reasonable. Nor is her attorney's assertion that he waited to make the motion until nearly four years after filing the untimely notice of claim because he needed to receive the medical records from the defendant.

In addition, the medical records demonstrate that the infant plaintiff's condition and prognosis are consistent with his premature birth, and do not suggest any injury attributable to the hospital staff's malpractice. Plaintiff failed to demonstrate that the medical records put defendant on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia, or that he would
subsequently develop other deficits, delays, and disorders.

Student note: As to the relevance of the plaintiff's infancy, the Appellate Division said that it "carries little weight" as there is not connection between that infancy and the delay in moving for leave to file.

Case:  Wally G. v. New York City Health & Hosps. Corp. (Metropolitan Hospital), NY Slip Op 06241 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Documentary evidence in support of a CPLR 3211(a)(1) motion.