Striking a pleading for a discovery violation.

Practice point:  The Appellate Division determined that the motion court providently exercised its discretion in conditionally granting plaintiff's CPLR 3126 motion to strike the appellant's answer and third-party complaint unless she appeared for a deposition on a specified date.  The appellant repeatedly failed to comply with the discovery orders, including the failure to provide supplemental responses to certain interrogatories and to appear for a deposition. At the time that the court ordered that the parties' depositions be conducted on a specified date, two prior court-ordered deadlines had passed, and the case was almost five years old. Moreover, the appellant's excuse for failing to appear on the specified date, even though her counsel had confirmed her appearance prior to that date, was not reasonable. Furthermore, the motion court only conditionally granted that branch of the plaintiff's motion which was to strike the appellant's pleadings, and provided the appellant an additional date to appear for a deposition.

Student note:  The striking of a party's pleading is a drastic remedy only warranted where there has been a clear showing that the failure to comply with court-ordered discovery was willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time.

Case:  Gutman v. Cabrera, NY Slip Op 07328 (2d Dept. 2014)

Here is the decision.

Wednesday's issue:  Submitting interrogatories to a jury.

An injured firefighter's right of action.

Practice point:  General Municipal Law § 205-a[1] provides a right of action for firefighters who are injured "as a result of any neglect, omission, willful or culpable negligence" of the defendant "in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments."

Student note:  While the plaintiff is not required to prove such notice as would be required under a common-law theory of negligence, the statute still requires a showing that the violation was the result of the defendant's neglect, omission, willful or culpable negligence.

Case:  Desthers v. Espinal, NY Slip Op 07323 (2d Dept. 2014)

Here is the decision.

Monday's issue: Striking a pleading for a discovery violation.

Right-of-way, negligence, and summary judgment.

 Practice point:  A driver traveling with the right-of-way may be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident. However, a driver with the right-of-way who has only seconds to react to a vehicle that has failed to yield is not comparatively negligent for failing to avoid the collision.

Student note:  Even where there is evidence that another driver involved in the accident was negligent as a matter of law due to a violation of the Vehicle and Traffic Law, the proponent of a summary judgment motion has the burden of establishing, as a matter of law, freedom from comparative negligence.

Case:  Desio v. Cerebral Palsy Transp., Inc., NY Slip Op 07322 (2d Dept. 2014)

Here is the decision.

 Tomorrow's issue: An injured firefighter's right of action.

Motion to vacate based on newly-discovered evidence.

Practice point:  The Appellate Division affirmed the denial of the motion to vacate on the ground of newly-discovered evidence, pursuant to CPLR 5015[a][2]. The alleged transfer of the subject mortgage, which purportedly occurred after the entry of the judgment of foreclosure and sale, is not newly-discovered evidence within the meaning of the statute.

Student note:  The court properly denied defendant's motion to renew, as he failed to offer a reasonable justification for not presenting the alleged new facts on his prior motions, pursuant to CPLR 2221[e][3].

Case:  Tribeca Lending Corp. v. Bartlett, NY Slip Op 07429 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Right-of-way, negligence, and summary judgment..

Court holiday.

The courts are closed for Election Day.

Tomorrow's issue:  Motion to vacate based on newly-discovered evidence.

Evidentiary materials submitted on a motion to dismiss, and dismissal on the merits.

Practice point: Where evidentiary material is submitted and considered on a 3211(a)(7) motion, and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one. The motion will be denied unless it is demonstrated that what the plaintiff claims is a fact is not a fact at all, and unless there is no significant dispute regarding it.

In deciding the motion, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

Student note:  A dismissal for lack of standing is not a dismissal on the merits for res judicata purposes, and neither is the striking of a complaint for noncomplance with a discovery order.

Case:  Caliguri v. JPMorgan Chase Bank, N.A., NY Slip Op 073129 (2d Dept. 2014)

Here is the decision.

Wednesday's issue: Motion to vacate based on newly-discovered evidence.

Employer's liability for an alleged assault by a security guard.

Practice point: Plaintiff seeks recovery for personal injuries allegedly sustained when, after being caught shoplifting, he was assaulted by a security guard. Plaintiff claimed that defendant's employees were directly negligent in failing to protect him from the security guard, who was armed with a baseball bat, and that defendant is vicariously liable for its employees' negligence.

The Appellate affirmed the motion court's dismissal of the complaint, as there is no indication that the alleged assault by the security guard, who had no history of violence, was foreseeable. Therefore, the employer's duty to protect was not triggered.

Student note:  Absent a duty and an opportunity to protect, there can be no liability for negligence.

Case:  Randolph v. Rite Aid of N.Y., Inc., NY Slip Op 07307 (1st Dept. 2014)

Monday's issue:  Evidentiary materials submitted on a motion to dismiss, and dismissal on the merits.

Vacating a default in a matrimonial action.

Practice point:  The Appellate Division determined that the motion court improvidently exercised its discretion in denying defendant's motion to vacate his default in appearing at an inquest and, in effect, to restore the action to the trial calendar, pursuant to CPLR 5015(a)(1). Although a party seeking to vacate a default must establish a reasonable excuse for the default and a potentially meritorious cause of action or defense, New York courts have adopted a liberal policy toward vacating defaults in matrimonial actions.

Student note:  In matrimonial actions, New York's interest in the marital res and allied issues, such as child support and custody, favors dispositions on the merits.

Case:  Anekwe v. Okoroafor, NY Slip Op 07114 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Employer's liability for an alleged assault by a security guard.

Submissions outside the pleadings on a 3211(a)(7) motion.

Practice point:  The Appellate Division determined that the motion court improperly considered affidavits and deposition testimony submitted by defendant in deciding its CPLR 3211(a)(7) motion to dismiss the complaint.  The Appellate Division noted that defendant's submissions regarding "special employment" did not negate the elements of plaintiff's complaint, which asserts common law negligence. In fact, in their opposition, plaintiffs argued that since they had not yet had discovery, a motion for summary judgment was premature, and they asked the motion court decline to treat defendant's motion as a motion for summary judgment.

Student note:  CPLR 3211(a)(7) limits the court to an examination of the pleadings to determine whether they state a cause of action.

Case:  Lee v. Dow Jones & Co., Inc., NY Slip Op 07247 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Vacating a default in a matrimonial action.

Denial of summary judgment in an action resulting from a motor vehicle accident.

Practice point:  The Appellate Division reversed the motion court and denied the motion for summary judgment as to defendant's liability in the underlying motor vehicle accident. As plaintiff, in support of the motion, submitted and relied on the certified police accident report containing the eyewitness's statement, he cannot now complain that defendants' reliance on favorable aspects of the statement to defeat summary judgment is improper.

Student note:  Any inconsistencies between the statements made to the police after the accident and the affidavits submitted in support of plaintiff's motion raise issues of fact as to whether defendant driver violated Vehicle and Traffic Law § 1141, and whether plaintiff's excessive speed or other negligence contributed to the accident, thereby precluding an award of summary judgment.

Case:  Espinal v. Volunteers of America-Greater N.Y., Inc., NY Slip Op 07260 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Submissions outside the pleadings on a 3211(a)(7) motion.

Dismissal of a Labor Law 241(6) claim.

Practice point:  The Appellate Division determined that the motion court should have granted those branches of defendants' cross motion which were for summary judgment dismissing, insofar as asserted against them, the cause of action pursuant to Labor Law § 241(6) to the extent that it was predicated on alleged violations of 12 NYCRR 23-2.1(a)(1) and (b). As the accident did not involve the obstruction of a "passageway, walkway, stairway or other thoroughfare" by a material pile, 12 NYCRR 23-2.1(a)(1) was not applicable.

Student note:  The general duty imposed by 12 NYCRR 23-2.1(b) does not set forth a directive sufficiently specific to support a 241(6) cause of action.

Case:  Ginter v. Flushing Terrace, LLC, NY Slip Op 06941 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Denial of summary judgment in an action resulting from a motor vehicle accident.