Easement by prescription and declaratory judgment.

Practice point:  The Appellate Division determined that the defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence establishing that the plaintiffs' claim is based on their possession and occupancy of the property, and therefore is inconsistent with an easement by prescription. 

Student note:  To the extent that this is a declaratory judgment action, it was remitted for the entry of a judgment declaring that the plaintiffs do not have a prescriptive easement over the property.

Case:  Kostovetsky v. Rockaway Hunting Club, NY Slip Op 01421 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Police failure to record information regarding a driver involved in a traffic accident.

A common tenancy in unequal shares.

Practice point:  The Appellate Division affirmed that plaintiff, as administrator of her husband's estate, was entitled to judgment in an amount equal to his property interest and the appointed referee's award of that value.

The Appellate Division determined that the court properly considered defendant's undisputed testimony that she alone contributed all of the funds utilized to purchase and maintain the property, and that she had resided in the home since its purchase. Defendant further testified that her son, plaintiff's husband, never resided in the home and that his name was put on the deed solely for defendant's convenience.

Student note:  The presumption that tenants-in-common share equally in their common tenancy may be rebutted by facts showing that they hold the tenancy in unequal shares. A court acting in equity may take into account the amounts invested in the property by the respective tenants in determining the shares to which they are entitled.

Case:  Ampratwum v. Appiah, NY Slip Op 01533 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Easement by prescription and declaratory judgment.

A dismissed counterclaim for tortious interference with prospective economic relations.

Practice point:  The Appellate Division affirmed the dismissal of the counterclaim for tortious interference with prospective economic relations. The claim requires a showing that the interference was accomplished with malicious intent or by wrongful means. 'Wrongful means' includes physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure.

Student note:  Where the interfering conduct is a civil suit, it must be shown that the suit was frivolous.

Case:  Arnon Ltd (IOM) v. Beierwaltes, NY Slip Op 01156 (1st Dept. 2015)

Here is the decision.

Monday's issue:  A common tenancy in unequal shares.

Attorney work product.

Practice point:  The Appellate Division found that, contrary to the plaintiff's contention, she did not meet her burden of establishing that the audio recording of an interview she conducted with the defendant prior to the commencement of the instant action constituted attorney work product. Among other things, the plaintiff failed to show that the recording contained elements of opinion, analysis, theory, or strategy.

The Appellate Division rejected the plaintiff's alternative argument that the recording constitutes trial preparation material, which is subject to a conditional privilege under CPLR 3101(d)(2).  The conclusory assertions set forth in the supporting affidavit are insufficient to meet the burden of establishing, with specificity, that the recording was prepared exclusively in anticipation of litigation.

Student note:  Pursuant to CPLR 3102(c), attorney work product, which is absolutely privileged, is generally limited to materials prepared by an attorney, while acting as an attorney, which contain the attorney's legal analysis, conclusions, theory, or strategy. The mere fact that a narrative witness statement is transcribed by an attorney does not make the statement work product.

Case:  Geffner v Mercy Med. Ctr., NY Slip Op 01411 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A dismissed counterclaim for tortious interference with prospective economic relations.

Summary judgment on an attorney's account stated claim.

Practice point:  The Appellate Division reversed, and granted plaintiff-attorney's motion. Plaintiff made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it entered into a retainer agreement with defendant and that defendant did not object to the invoices that were sent pursuant to that agreement.

Although defendant claims he signed the retainer agreement only in his capacity as agent and principal for nonparty LLCs, the agreement is addressed to defendant individually, and he signed it individually, not on behalf of the LLCs. Therefore, he is liable for the legal fees.

In addition, defendant did not timely object to the invoices. The parties' agreement provided that "[f]ailure to object to any bill within thirty days from the mailing shall be deemed an acknowledgment of the amount owed ...." Plaintiff sent defendant regular invoices, and defendant did not make any objections until plaintiff's commencement of a prior action. Such belated protest is insufficient to defeat summary judgment. The Appellate Division noted that the only evidence of a protest is defendant's affidavit, asserting, without any details, that he advised plaintiff that its invoices were incorrect. This is insufficient to raise a triable issue of fact.

Student note: A plaintiff does not have to establish the reasonableness of its legal services in an action for an account stated, as plaintiff's failure to object to the invoices is construed as acquiescence as to their correctness.

Case:  Mintz & Gold LLP v. Daibes, NY Slip Op 01388 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Attorney work product.

A plaintiff's inability to identify the cause of the fall.

Practice point:  The Appellate Division affirmed the dismissal of this slip and fall action. The defendant established its prima facie entitlement to judgment as a matter of law through the plaintiff's deposition testimony, which demonstrated that the plaintiff could not identify the cause of his fall without resorting to speculation.  In opposition, the plaintiff failed to raise a triable issue of fact.

Student note:  A plaintiff's inability to identify the cause of the fall is fatal to a claim of negligence in a slip-and-fall case because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Case:  Calciano v Tarragon Corp., NY Slip Op 01234 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment on an attorney's account stated claim.

Liability for a fall on a public sidewalk.

Practice point:  Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality, and not the abutting landowner. However, an abutting landowner will be liable to a pedestrian injured by a defect in a sidewalk where the landowner created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk.

Student note:  Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner.  However, this liability shifting provision does not apply to "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes."

Case:  Bisono v. Quinn, NY Slip Op 01230 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A plaintiff's inability to identify the cause of the fall.

Perfecting an appeal by appendix.

Practice point:  The appeal was dismissed because the appendix did not contain critical exhibits and material excerpts from transcripts of testimony. These omissions made it impossible for the Appellate Division  to render an informed decision on the merits.

Student note:  The appendix must contain those portions of the record necessary for the court to fully consider the issues which will be raised by the appellant and the respondent, including material excerpts from transcripts of testimony or from papers in connection with a motion.

Case:  Beizer v. Swedish, NY Slip Op 01229 (2d Dept. 2015)

Here is the decision.

Monday's issue: Liability for a fall on a public sidewalk.

An appeal from a judgment entered upon a default.

Practice point:  No appeal lies from a judgment entered upon a default of the appealing party, pursuant to CPLR 5511.

Student note: The appeal from the intermediate order was dismissed because the right to appeal therefrom terminated with the entry of judgment.

Case:  Anonymous v Nowicki, NY Slip Op 01228 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Perfecting an appeal by appendix.

CPLR 3121 and a demand for a further independent medical examinations.

Practice point:  The Appellate Division reversed the granting of defendants' motion to direct plaintiff to appear for a further independent medical examination (IME) by a physician designated by defendants.

While CPLR 3121 does not limit the number of examinations to which a plaintiff may be subjected, a defendant seeking a further examination must demonstrate the necessity for it.  In addition, after a note of issue has been filed, as here, a defendant must demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify an additional examination.

Student note:  The fact that defendants' examining physician was placed on a three-year suspension subsequent to his examination of plaintiff and the filing of the note of issue does not justify an additional examination by another physician. Defendants made no showing of unusual and unanticipated circumstances, as the bill of particulars was served before the IME, and there were no allegations of new or additional injuries.

Case:  Rebollo v. Nicholas Cab Corp., NY Slip Op 00978 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: An appeal from a judgment entered upon a default.

Court holiday.

Tomorrow's issue:  CPLR 3121 and a demand for a further independent medical examination.