Improper service and dismissal for lack of jurisdiction.

Practice point:  The Appellate Division affirmed the dismissal as to defendant rehabilitation facility, pursuant to CPLR 3211(a)(8).  Jurisdiction over the defendant was not obtained by delivery of the summons and complaint to the Secretary of State, because the summons and complaint misstated the defendant's name. Jurisdiction was not obtained by the alleged delivery of the summons and complaint to an employee at the facility's security desk because it is a limited liability company, and its four individual members are the only persons authorized to accept service on its behalf, pursuant to CPLR 311-a.

Student note:  The Appellate Division determined that the motion court properly considered the motion, even though the Defendant allegedly failed to properly serve its motion papers. The plaintiff requested and obtained two adjournments of the motion return date, and thereafter submitted an affirmation in opposition which addressed the merits of the motion, and was accompanied by evidentiary submissions. Under these circumstances, the plaintiff was not prejudiced by the allegedly improper service of the motion papers, and waived his objection.

Case:  Ciafone v. Queens Ctr. for Rehabilitation & Residential Healthcare, NY Slip Op 01774 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: The relation-back doctrine, and leave to amend.

Granting an extension of time, pursuant to CPLR 2204.

Practice point:  The Appellate Division affirmed the denial of that branch of the plaintiff's motion which was, in effect, to extend the time in which to conduct his deposition, since the plaintiff's own failure to comply with discovery demands hampered the defendant's ability to conduct the deposition. In addition, the plaintiff failed to show good cause for the past delay and that the defendant would not be prejudiced by the delay.

Student note:  In exercising its discretion to grant an extension of time pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the motion's opponent.

Case:  Blay v. Frost, NY Slip Op 01771 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Improper service and dismissal for lack of jurisdiction.

Commencing a foreclosure action.

Practice point:  In order to commence a foreclosure action, a plaintiff must have a legal or equitable interest in the mortgage.  If the defendant puts standing into issue, a plaintiff must prove its standing.

The Appellate Division determined that the appellant did not waive the issue of standing.  Although the appellant's answer did not raise standing as a separate defense, a fair reading of the pleading reveals that it contained language which denied that the plaintiff was the owner and holder of the note and mortgage being foreclosed.  Under such circumstances, the appellant was not required to expressly plead lack of standing as a defense, pursuant to CPLR 3211[e].

Student note:  In a mortgage foreclosure action, a plaintiff establishes standing by demonstrating that, at the time the action is commenced, it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note.

Case:  Bank of Am., N.A. v. Paulsen, NY Slip Op 01597 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Granting an extension of time, pursuant to CPLR 2204.

Medical malpractice, summary judgment, expert opinions, and motions to renew and reargue.

Practice point:  Typically, a qualified expert's opinion that plaintiff's injuries were caused by a deviation from relevant standards would preclude a grant of summary judgment. However, where the expert's ultimate assertions are speculative or without evidentiary foundation, the opinion is of no probative force and is insufficient to withstand summary judgment.

Applying the test in Frye v United States, New York courts permit expert testimony based on scientific principles, procedures or theories only after they have gained general acceptance in the relevant scientific field.  The burden of proving general acceptance is on the proponent of the disputed expert testimony.

Here, the Appellate Division affirmed the motion court's finding that plaintiff failed to submit evidence sufficient to raise a triable issue of fact that his experts' opinions were generally accepted in the medical community.  Although plaintiff submitted numerous articles in medical literature concerning adverse reactions to Lipitor and Azithromycin, none of the articles linked atrioventricular (AV) heart block to the drugs prescribed by defendant. Biological plausibility and convergence in time between the administration of the drugs and the AV heart block diagnosis are insufficient, where no scientific evidence of causation was provided.   The Appellate Division noted that observational studies or case reports are not generally accepted in the scientific community on questions of causation.

Student note:  The motion to renew was denied because plaintiff failed to submit new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221 [e][2]. The additional case reports did not raise an issue concerning the general acceptance of plaintiff's experts' causation theory in the medical community. Denial of the motion to reargue is not appealable.

Case:  Pullman v. Silverman, NY Slip Op 01707 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Commencing a foreclosure action.

A defendant's establishing a lack of constructive notice in a slip and fall case.

Practice point:  To constitute constructive notice, a dangerous condition must be visible and apparent and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it. To meet its burden on the issue of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.  Merely referring to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice.

Student note:  In a slip-and-fall case, a defendant moving for summary judgment has the initial burden of making a prima facie showing that it did not create the condition on which the plaintiff slipped, and did not have actual or constructive notice of that condition.

Case:  Arcabascio v. We're Assoc., Inc., NY Slip Op 01595 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Medical malpractice, summary judgment, expert opinions, and motions to renew and reargue.

Police failure to record information regarding a driver involved in a traffic accident.

Practice point:  Plaintiff alleges that, after she was struck by an automobile, the responding officers failed to record the identity of the owner and/or operator of the vehicle that struck plaintiff.

The Appellate Division determined that the City is entitled to summary judgment because the investigation of the accident at issue here is a governmental function, and so the City is not liable for failing to properly investigate the incident unless there existed a special duty to plaintiff, in contrast to a general duty owed to the public.

Here, plaintiff cannot establish a special relationship through defendants' violation of a statutory duty, because none of the cited sections of the Vehicle and Traffic Law authorize a private right of action, nor were they otherwise enacted for the benefit of a particular class of persons as opposed to the public at large

 Student note:  While the statute imposes criminal liability if the vehicle's operator does not identify himself or herself, there is no statutory provision for governmental tort liability.

Case:  Bouet v. City of New York, NY Slip Op 01567 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A defendant's establishing a lack of constructive notice in a slip and fall case.

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.