CPLR 3103(a) and an infant plaintiff's deposition.

Practice point:  The Appellate Division determined that the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' cross motion which was for a protective order pursuant to CPLR 3103(a) preventing the infant plaintiff from being deposed. Contrary to the plaintiffs' contention, the court did not err in determining that the infant plaintiff is competent to testify without conducting a preliminary examination.

Student note:  The Appellate Division agreed with the Supreme Court's determination that, in light of the infant plaintiff's fragile condition, the parties must work with their experts to put in place guidelines so as to lessen the stress and trauma on the infant plaintiff during the deposition.

Case:  Serrano v. Lutheran Social Servs. of Metro. N.Y., Inc., NY Slip Op 07491 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A fall on the ice.

CPLR 205(a).

Practice point:  CPLR 205(a) provides that when an action is dismissed on grounds other than voluntary discontinuance, lack of personal jurisdiction, neglect to prosecute, or a final judgment on the merits, the plaintiff may bring a new action within six months of the dismissal, even though the action would otherwise be barred by the statute of limitations.

Student note:  The six-month period runs from the date of termination of the earlier action, which in this case was the entry of the order.

Case:  Ross v. Jamaica Hosp. Med. Ctr., NY Slip Op 07490 (2d Dept. 2014)

Here is the decision.

Monday's issue: CPLR 3103(a) and an infant plaintiff's deposition.

A counterclaim to recover unpaid rent.

Practice point:  The Appellate Division determined that the Supreme Court properly denied that branch of the defendants' cross motion which was for summary judgment on their counterclaim to recover unpaid rent. Before a tenant may withhold rent, the tenant must prove actual or constructive eviction. To demonstrate constructive eviction a tenant must vacate the premises. Here, the defendants' submissions failed to demonstrate, prima facie, that the plaintiff remained in possession of the leased premises and thus, was not constructively evicted.

Student note:   A commercial tenant's obligation to pay rent is not suspended if the tenant remains in possession of the leased premises, even if the landlord fails to provide essential services.

Case:  Prakhin v. Fulton Towers Realty Corp., NY Slip Op 07487 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  CPLR 205(a)

Damages for a hot water burn.

Practice point:  The Appellate Division reversed, and dismissed the third-party complaint in this action for personal injuries allegedly sustained by plaintiff when she was burned by hot water while showering in the bathroom of an apartment  where third-party defendant was superintendent. Third-party defendant met its initial burden of demonstrating that it did not create or have actual or constructive notice of the alleged dangerous condition. Although third-party defendant acknowledges acting to address complaints of no heat or hot water on the upper floors of the building within two weeks of the incident which resulted in plaintiff's injuries, the undisputed evidence establishes that the domestic hot water supply system and the heating system for the building were separate, and that adjustments made by third-party defendant to the heating system would have had no effect on the domestic hot water supply system.

Student note:  Third-party plaintiff failed to present evidence that any action taken by third-party defendant caused excessively hot water. Third-party plaintiff's expert expressly stated that he did not evaluate the heating system, which was different from the domestic hot water supply system. Although he opined that leaving the domestic hot water supply system in the hands of an inexperienced person, such as third-party defendant, was dangerous and negligent, no evidence was presented that any action by third-party defendant proximately caused plaintiff's injuries or that third-party defendant was responsible for repairs to the domestic hot water supply system.

Case:  Duff v. 646 Tenth Ave., LLC, NY Slip Op 07589 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A counterclaim to recover unpaid rent.

Driving a vehicle without the owner's permission.

Practice point: For summary judgment on its defense that the vehicle was used without its permission, the defendant must present substantial evidence that the vehicle was used without its permission. The owner's uncontradicted testimony that the vehicle was operated without permission does not, by itself, overcome the presumption of permissive use. The question of consent is ordinarily one for the jury.


Student note:  Vehicle and Traffic Law § 388 creates a strong presumption that the driver is operating it with the owner's consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner's express or implied permission.

Case: Han v. BJ Laura & Son, Inc., NY Slip Op 07480 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Damages for a hot water burn.

An inaccurate notice of claim.

Practice point:  The plaintiff allegedly was injured when the vehicle she was driving struck a raised sewer cap. While the plaintiff's notice of claim, complaint, and bill of particulars alleged that the accident occurred on Narrows Road North at the intersection of Targee Street, an amended bill of particulars alleged that the accident occurred on Narrows Road North between Rhine Avenue and Targee Street. The Appellate Division affirmed the denial of the defendants' motion to dismiss the complaint on the ground that the notice of claim did not accurately describe the location of the accident. The defendants failed to establish that they were prejudiced by any inaccuracy in the description of the location of the accident in the notice of claim.

Student note:  Pursuant to General Municipal Law § 50-e(6), the Supreme Court had the discretion to allow the plaintiff to correct a mistake or supply an omission in the notice of claim at any time, and at any stage of the action.

Case:  Miller v. City of New York, NY Slip Op 07479 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Driving a vehicle without the owner's permission.

Striking a pleading.

Practice point:  The plaintiffs served a response to the defendant's notice for discovery and inspection, and answers to interrogatories, as they were directed to do by court order. Thereafter, they produced further documents, as set forth in a stipulation. The Appellate Division determined that, while the defendant was clearly dissatisfied with the responses to his demands, there was no showing of a pattern of willful failure to respond to discovery demands or comply with disclosure orders, so as to justify dismissing the complaint and striking the reply to counterclaims.

Student note:  The determination whether to strike a pleading lies within the sound discretion of the trial court, pursuant to CPLR 3126[3]. It is a drastic remedy that is not appropriate absent a clear showing that the failure to comply with discovery demands was willful or contumacious.

Case:  Holand v. Cascino, NY Slip Op 07474 (2d Dept. 2014)

Here is the decision.

Monday's issue:  An inaccurate notice of claim.

Statutes of limitations for false arrest, false imprisonment, and intentional infliction of emotional distress.

Practice point: Causes of action based on false arrest and false imprisonment accrue upon release from confinement and are governed by a one-year statute of limitations, pursuant to CPLR 215[3]. The one-year statute for intentional infliction of emotional distress begins to run on the date of injury.

Student note:  Plaintiff was not entitled to a toll of the statute of limitations based on equitable estoppel as he did not allege, either in his complaint or in opposition to the defendant's motion to dismiss, any misleading conduct on the part of the defendant upon which plaintiff could have reasonably relied to delay his commencing the action.

Case:  Bellissimo v. Mitchell, NY Slip Op 07464 (2d Dept. 2014)

Here is the decision. 

Tomorrow's issue: Striking a pleading.

Submitting interrogatories to the jury.

Practice point: In this dental malpractice action, the plaintiff-appellant contends that the court erred in denying her request that the jury be given an interrogatory asking whether there had been a departure in the preoperative planning itself, and in the performance of the surgery, rather than just in his failure to communicate the change in plan. The Appellate Division agreed, and reversed.

While the trial court has broad discretion in deciding whether to submit interrogatories to the jury, pursuant to CPLR 4111[c], where there is sufficient evidence to support a plaintiff's cause of action pursuant to a particular theory of negligence, it is error to deny a request by the plaintiff to submit an interrogatory to the jury regarding that theory.

Student note: Where a court improperly limits a verdict sheet in this manner, a new trial is warranted, and the Appellate Division ordered one here.

Case:  Abato v. Beller, NY Slip Op 07460 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Statutes of limitations for false arrest, false imprisonment, and intentional infliction of emotional distress.

Court holiday.

The courts are closed to mark Veterans Day.

Tomorrow's issue:  Submitting interrogatories to a jury.

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.