A motion for leave to serve an amended bill of particulars.

Practice point:  The Appellate Division affirmed the denial of the motion, noting that plaintiff failed to offer a reasonable excuse for the delay of two years after filing the note of issue.  The excuse of law office failure was offered only in the reply affirmation, and so it was not properly before the motion court. In any event, the Appellate Division held that it was not a reasonable excuse. In addition, plaintiff did not offer admissible evidence that the new injuries were caused by the accident, or that there is a causal connection between the new injuries and the original injuries alleged

Student note:  While leave to amend is given freely in the absence of prejudice or surprise, when leave is sought on the eve of trial it will be granted sparingly. In addition, where, as here, there is an inordinate delay in making the motion and new injuries are alleged, there must a showing of a reasonable excuse for the delay that the the proposed amendment has merit.

Case:  Canals v. Lai, NY Slip Op 07237 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Standing to commence a foreclosure action.

Leave to serve a late notice of claim.

Practice point:  In determining whether the application should be granted, a court shall consider, among other things, "whether the public corporation . . . acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one . . . or within a reasonable time thereafter," as specified in GML § 50-e[5]. The court shall also consider all other relevant facts and circumstances, including whether the delay substantially prejudiced the public corporation's ability to defend on the merits.

Student note:  In determining whether the public corporation was prejudiced by any mistake, omission, irregularity or defect in the notice of claim, the court may look to evidence adduced at a section 50-h hearing, and to such other evidence as is properly before the court.

Case:  Thomas v. New York City Hous. Auth., NY Slip Op 07328 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion for leave to serve an amended bill of particulars.

A premature summary judgment motion.

Practice point:  The Appellate Division modified the motion court's denial to specify that the motion was premature in this action where plaintiff alleged injuries in a fall on a sidewalk adjacent to real property.  Plaintiff sued the owner and the tenant, and, before the owner appeared or submitted a responsive pleading, the tenant moved for summary judgment, arguing that it had no duty to maintain the sidewalk.

In addition to the fact that the motion was made before the issue was joined by the owner, the Appellate Division noted that plaintiff demonstrated that discovery, including a deposition of the owner, may result in disclosure of evidence relevant to the issue of whether the tenant had a duty to maintain the sidewalk. Plaintiff also demonstrated that facts essential to its opposition to the motion were exclusively within the knowledge and control of the tenant and the owner.

Student note:  A motion for summary judgment may be denied as premature where it appears that the facts essential to oppose the motion exist but cannot then be stated, pursuant to CPLR 3212[f]. In opposing, the non-movant must demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.

Case:   Bonilla v. Bangert's Flowers, NY Slip Op 07235 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to serve a late notice of claim.

Court holiday.

The Courts are closed to mark Columbus Day.

Tomorrow's issue:  A premature summary judgment motion.

Sidewalk defets and an abutting landowner's liability.

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 sidewalk defect where, as the Appellate Division found relevant here, the landowner breached a specific ordinance or statute which obligates the owner to maintain the sidewalk.

Student note:  In order for a statute, ordinance or municipal charter to impose tort liability upon an abutting owner for injuries caused by the owner's negligence, the language thereof must not only charge the landowner with a duty, it must also specifically state that if the landowner breaches that duty he will be liable to anyone who might be injured.

Case:  Bachvarov v. Lawrence Union Free Sch. Dist., NY Slip Op 06996 (2d Dept. 2015)

Here is the decision.

Tuesday's issue:  A premature summary judgment motion.

Agreements to agree.

Practice point:  The Appellate Division affirmed dismissal of the complaint based on a memorandum of understanding that plaintiff argues was a Type II agreement under Federal case law, requiring the parties to negotiate in good faith to finalize a settlement. The memorandum states that the parties have reached an "agreement in principle subject documentation acceptable to the parties and court approval." The Appellate Division noted that, in prior motion practice, plaintiff's counsel had admitted that the memorandum was merely an agreement to agree, and so the Appellate Division held that it was not an enforceable contract.

Student note:  The Appellate Division noted that the Court of Appeals has rejected "the rigid classification into Types" in favor of asking whether the agreement contemplates the negotiation of later agreements as a precondition of a party's performance.

Case: Offit v. Herman, NY Slip Op 07056 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Sidewalk defects and an abutting landowner's liability.

An attorney's account stated claim and a motion to renew.

Practice point:  The Appellate Division affirmed plaintiff-law firm's summary judgment motion. Plaintiff made a prima facie showing of an account stated through, among other things, its submission of an affirmation of its special counsel stating that plaintiff sent each of its 21 invoices to defendants using regular mailing procedures, and that defendants never objected to or returned the invoices. Even if no payments were applied to these invoices, defendants' mere reference to a subsequent settlement agreement noted in the complaint, without more, is conclusory and insufficient to raise a triable issue of fact as to whether they objected to the payments within a reasonable time.

Student note:  The Appellate Division affirmed the denial defendants' motion to renew, since the purportedly new material was available on plaintiff's prior motion and defendants did not offer a reasonable justification for failing to present the material at the time of that motion.

Case:  Zetlin & De Chiara LLP v. Gene Kaufman Architect, P.C., NY Slip Op 07059 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Agreements to agree.

A claim of negligent infliction of emotional distress in a family dispute.

Practice point:  The Appellate Division affirmed dismissal for failure to state a claim in this action where plaintiff alleged that defendant called plaintiff a "criminal" in front of her children, and attempted to coerce her into paying money to settle a family dispute. The Appellate Division found that these allegations do not set forth conduct so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

Student note:  The plaintiff's children's claims for negligent infliction of emotional distress are inadequately pled, as they do not allege that, while in the zone of danger, they observed a family member's death or serious injury.

Case:  Kornicki v. Shur, NY Slip Op 07048 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  An attorney's account stated claim and a motion to renew.

Statute of limitations in a breach of fiduciary duty action.

Practice point:  New York law does not provide a single statute of limitations for breach of fiduciary duty claims.  Instead, the applicable limitations period depends on the substantive remedy that the plaintiff seeks. Where the remedy sought is purely monetary in nature, courts construe the suit as alleging an injury to property, within the meaning of CPLR 214(4), which has a three-year limitations period.  However, if the relief sought is equitable in nature, the six-year limitations period of CPLR 213(1) applies.

Student note:  If a fraud allegation is essential to a breach of fiduciary duty claim, courts have applied a six-year statute of limitations under CPLR 213(8).  However courts will not apply the fraud statute of limitations if the fraud allegation is only incidental to the claim asserted, figuring that, otherwise, a fraud allegation could be used as a means to litigate stale claims.  So, where a fraud allegation is not essential to the pleaded cause of action, except as an answer to an anticipated defense of statute of limitations, courts will look for the reality and essence of the action and not its mere name.

Case:  DiRaimondo v. Calhoun, NY Slip Op 07002 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A claim of negligent infliction of emotional distress in a family dispute.

Summary judgment on liability in a personal injury action.

Practice point:  The Appellate Division reversed the motion court and granted plaintiff's motion in this action for damages for personal injuries sustained when plaintiff was struck by an ambulette.  The Appellate Division found that plaintiff established that she waited for the pedestrian signal to be in her favor prior to entering the crosswalk, and that she exercised due care by looking in both directions  and for any vehicles turning left before she entered the crosswalk. While crossing at a steady normal pace, and having almost completed crossing in the crosswalk, plaintiff was struck by the vehicle operated by the defendant driver, which came from behind plaintiff and failed to yield the right-of-way.  In opposition, defendants failed to raise a triable issue of fact.

Student note:  The Appellate Division also found that, contrary to defendants' contentions, the motion was not premature.  Defendants failed to demonstrate that additional discovery may lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of plaintiff.  The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered by further discovery is an insufficient basis for denying the motion.

Case:  Chou v. Ocean Ambulette Serv., Inc., NY Slip Op 06876 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Statute of limitations in a breach of fiduciary action.

Leave to amend, pursuant to CPLR 3012(b).

Practice point:  A party seeking leave to amend a pleading need not make an evidentiary showing of merit, and leave will be granted unless such insufficiency or lack of merit is clear and free from doubt.

Student note:  Leave to amend or supplement a pleading is to be "freely given," pursuant to the express terms of the statute.  In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit.

Case:  Calamari v. Panos, NY Slip Op 06875 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment on liability in a personal injury action.