The requirements of expert testimony.

Practice point:  The Appellate Division affirmed the trial court's determination that the testimony of the plaintiff's civil engineering expert did not support the causes of action. The expert testified that his conclusions were based on reports prepared and photographs taken by others, and that he had not personally observed any of the defendants' work. The expert's testimony made clear that he did not know which contractor had performed the work that was allegedly substandard and was thus being repaired at the plaintiff's expense, as he first visited the construction site approximately 16 months after the defendants withdrew from the job. In addition, the spreadsheet prepared by the plaintiff's expert itemizing the alleged costs of the repairs was rife with inaccuracies, and the expert admitted that this spreadsheet was "flawed."

Student note:  An expert's opinion testimony must be based on facts in the record or personally known to the witness. An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion.

Case:  Johnson v. Robertson, NY Slip Op 06658 (2d Dept. 2015)

Here is the decision.

Tuesday's issue:  An allegation of false arrest or imprisonment, and the defense of probable cause.

Personal liability for corporate violations of the Labor Law.

Practice point:  The Appellate Division reversed dismissal of the complaint, finding that, at this stage of litigation, it cannot be said that the plaintiff has failed to state a cognizable cause of action against the individual defendants for alleged violations of Labor Law §§ 191 and 195. The Appellate Division explained that, while corporate shareholders and officers generally are not personally liable for corporate violations of the Labor Law, the plaintiff alleged adequate facts to state a cause of action against each of the individual defendants in his or her distinct capacity as the plaintiff's employer within the meaning of the statute.

Student note:  On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the facts alleged in the complaint are accepted as true and are given a liberal construction to afford the pleading party every possible favorable inference, and the court's inquiry is limited to whether the pleading states any cognizable cause of action.

Case:  Cohen v. Finz & Finz, P.C., NY Slip Op 06654 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  The requirements for expert testimony.

Dismissal of a claim based on comity.

Practice point:  The Appellate Division affirmed the Supreme Court's determination that the adjudication of defendant's claims for compensation under employment and consulting agreements with his former employer in a winding-up proceeding that was litigated in the British Overseas Territory of Bermuda precluded the instant action against the employer, among others, to recover damages for breach of contract and fraud. The plaintiff appeared in the Bermuda proceeding by submitting his claims to the Bermuda court, and made no showing of fraud or that a public policy of this State would be violated by recognizing the Bermuda court's rejection of his claims.

Student note:  New York recognizes judgments rendered in a foreign country under the doctrine of comity, which is the equivalent of full faith and credit given by courts to judgments of other states.  According to the Appellate Division, absent some showing of fraud in the procurement of the foreign country judgment or that recognition of the judgment would do violence to a strong public policy of New York State, a party who properly appeared in the action is precluded from attacking the validity of the foreign country judgment in a collateral proceeding commenced in a New York court.

Case:  Basile v. CAI Master Allocation Fund, Ltd., NY Slip Op 06650 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Personal liability for corporate violations of the Labor Law.

At-will employment, termination, and fraudulent inducement claims.

Practice point:  An at-will employee who has been terminated cannot state a fraudulent inducement claim on the basis of having relied upon the employer's promise not to terminate the contract, or upon any representations of future intentions as to the duration or security of his employment.  However, where the employee alleges an injury that is separate and distinct from the termination of employment, there may be a cause of action sounding in fraudulent inducement. For the claim to be viable, the employee must allege not that his employer wrongly fired him, but that that he would not have taken the job in the first place if the true facts had been revealed to him.

Student note:  In any action to recover damages for fraud, a plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.

Case:  Laduzinski v. Alvarez & Marsal Taxand LLC, NY Slip Op 06646 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Dismissal of a claim based on comity.

Summary judgment in a personal injury action.

Practice point:  The Appellate Division reversed the motion court and determined that plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that, before entering the crosswalk and while crossing the street, he looked both ways for oncoming vehicles and that, with the pedestrian control and traffic control devices in his favor, defendant failed to yield the right-of-way. Plaintiff's evidence demonstrated that defendant violated Vehicle and Traffic Law § 1111(a)(1) and that plaintiff was not at comparative fault in the happening of the accident.  In opposition, the defendants submitted an affidavit which contradicted earlier deposition testimony, and merely raised what appear to be feigned issues of fact designed to avoid the consequences of the earlier testimony. Thus, the affidavit failed to raise a triable issue of fact and was insufficient to defeat plaintiff's motion.

 Student note:  In a personal injury action, to prevail on a motion for summary judgment on liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault, as there can be more than one proximate cause of an accident. Where a plaintiff has established prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff's comparative fault.

Case:  Zhu v. Natale, NY Slip Op 06586 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  At-will employment, termination, and fraudulent inducement claims.

Leave to extend the time to serve process.

Practice point:  The Appellate Division reversed the motion court and denied that branch of plaintiff's motion for leave to extend the time within which to serve the summons and complaint.

Plaintiff's supporting affidavits failed to establish that she exercised reasonably diligent efforts in attempting to effect proper service of process upon the appellant and, thus, she failed to show good cause, as required by CPLR 306-b.  In addition, plaintiff failed to establish her entitlement to the extension in the interest of justice as she failed to demonstrate a potentially meritorious medical malpractice cause of action. Neither did plaintiff rebut defendant's assertion that he did not have notice of the action until nearly 11 months after the expiration of the statute of limitations, and the concomitant inference that he was substantially prejudiced by plaintiff's lengthy delay in seeking leave to extend time.

Student note:  Pursuant to the statute's terms, granting the motion requires a showing that there is good cause, or a determination that it is in the interest of justice.

Case:  Wilbyfont v. New York Presbyt. Hosp., NY Slip Op 06585 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Summary judgment in a personal injury action.

CPLR 3215 and a motion for a default judgment.

Practice point:  The Appellate Division reversed the motion court and granted plaintiff's motion for leave to enter a judgment on the issue of liability upon defendant's failure to appear or answer the complaint.

Plaintiff, in support of the motion, demonstrated entitlement to judgment on the issue of liability by submitting proof of service of the summons and complaint, the facts constituting the claim, and defendant's default in answering or appearing.

In opposing, defendant failed to demonstrate a potentially meritorious defense.  Defendant submitted a proposed answer which was verified only by its attorney, and an affirmation from an attorney who did not have personal knowledge of the facts.

Student note:  To demonstrate entitlement to relief under CPLR 3215(a), plaintiff must submit proof of service of the summons and complaint, the facts constituting the claim demonstrating a viable cause of action, and the defendants' default in answering or appearing, pursuant to CPLR 3215[f]. To defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense.

Case:  Vidal v. 452 Wyckoff Corp., NY Slip Op 06583 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to extend the time to serve process.

A golf-cart injury and assumption of risk.

Practice point:  The Appellate Division reversed the motion court and dismissed the complaint in this action arising from plaintiff's injury when she was thrown from a golf-car in which she was a passenger.  The Appellate Division found that plaintiff knowingly and voluntarily rode in the cart during a golf tournament in which plaintiff was assigned to monitor a par-three hole for any player who got a hole-in-one. While plaintiff contends that she did not know that the operator was an unlicensed driver, she knew that he was a minor yet made no attempt to determine whether he had a license or whether he should be operating a golf cart.

The Appellate Division stated that the fact that plaintiff was not actively performing her duties of monitoring the hole at the time of her injury does not render the doctrine inapplicable, as it applies to any facet of the activity inherent in it. The salient point is that the accident involved a sporting or recreational activity that occurred in a designated athletic or recreational venue.

Student note:  A plaintiff who voluntarily participates in a sporting or recreational event generally is held to have consented to those commonly-appreciated risks that are inherent in, and arise out of, participation in the sport.  It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which the injury occurred, so long as the plaintiff is aware of the potential for injury of the mechanism from which the injury results. Note that a nonparticipant may also be subject to a defense based on the doctrine of assumed risk.

Case:  Valverde v. Great Expectations, LLC, NY Slip Op 06561 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  CPLR 3215 and a motion for a default judgment.

A motion for summary judgment in lieu of complaint.

Practice point:  The Appellate Division determined that the Supreme Court properly granted the plaintiff's motion for summary judgment in lieu of complaint. The plaintiff made a prima facie showing of its entitlement to summary judgment pursuant to CPLR 3213 by submitting the two subject contracts, each of which contained the defendant's unconditional promise to pay a sum certain, and evidence demonstrating the defendant's failure to make the payments called for by their terms.  The Appellate Division found that, contrary to the defendant's contention, in opposition to the plaintiff's motion, he failed to raise a triable issue of fact as to any circumstances that would alter his unconditional obligation to pay the amounts due.

Student note:  Pursuant to CPLR 3213, a party may commence an action by motion for summary judgment in lieu of complaint when the action is based upon an instrument for the payment of money only or upon any judgment.  An instrument is considered to be for the payment of money only if it contains an unconditional promise to pay a sum certain over a stated period of time.  A document comes within the ambit of CPLR 3213 if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms.  However, the instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document.  While a defendant can defeat the motion by offering evidentiary proof sufficient to raise a triable issue of fact, averments merely stating conclusions, of fact or of law, are insufficient.

Case:  Sisters of Holy Child Jesus at Old Westbury, Inc. v. Pallotta, NY Slip Op 06504(2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A golf-cart injury and assumption of risk.

Dismissal of a legal malpractice claim.

Practice point:  The Appellate Division affirmed dismissal, finding that the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.  The defendants' evidentiary submissions demonstrated that the notice of claim and the pleadings prepared by them in the underlying personal injury action adequately set forth the theory of negligence allegedly omitted, and that the settlement of the underlying action was not effectively compelled by any mistakes on their part.  In opposition, the plaintiffs' submissions, including an expert's conclusory affirmation, failed to raise a triable issue of fact. The plaintiffs' reliance upon the same evidence in support of their cross motion for summary judgment on the issue of liability was similarly insufficient to establish a prima facie case of legal malpractice.

Student note:  In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession' and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. The claim may remain viable, despite settlement of the underlying action, if the settlement was effectively compelled by counsel's mistakes.

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

Case:  Feldman v. Finkelstein & Partners, LLP, NY Slip Op 06491 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion for summary judgment in lieu of complaint.

Plaintiff's motion for summary judgment on the issue of liability.

Practice point:  To prevail on the motion, a plaintiff is required to submit evidence in admissible form establishing, prima facie, that the defendant was negligent and that the plaintiff was free from comparative fault.  Here, plaintiff submitted his attorney's affirmation, a copy of the pleadings, and his own affidavit, which consisted of a conclusory one-paragraph description of the accident. The Appellate Division affirmed the Supreme Court's finding that plaintiff did not establish his prima facie entitlement to judgment as a matter of law, as his affidavit did not sufficiently demonstrate how the accident occurred and failed to eliminate triable issues as to which party or parties were at fault.

Student note:  As plaintiff failed to meet his initial burden, the motion was denied without regard to the sufficiency of defendants' opposition papers.

Case:  Derieux v. Apollo N.Y. City Ambulette, Inc., NY Slip Op 06490 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Dismissal of a legal malpractice claim.