A motion for summary judgment in lieu of complaint, pursuant to CPLR 3213.

Practice point:  Plaintiff commenced this action to recover on a promissory note and personal guaranty by motion. When the motion court denied, plaintiff appealed, and the Appellate Division reversed.

The Appellate Division found that plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting the promissory note, which contained an unequivocal and unconditional obligation to pay, the personal guaranty, and proof of the defendants' failure to make payments on the note according to its terms.  In opposition, defendants failed to raise a triable issue of fact as to a bona fide defense.

Student note:  The motion on an instrument for money only is not defeated by the alleged breach of a related contract absent a showing that the contract and the instrument are intertwined and that the alleged defenses create fact issues. Here, there was a mutual stock sale exchange and purchase agreement, but the Appellate Division found that defendants' evidence failed to establish that the agreement and the promissory note were intertwined, such that a breach of the related agreement might create a defense to payment on the note.

Case:  Chervinsky v. Rezhets, NY Slip Op 07463 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A bus driver's alleged negligence, and a summary judgment motion.

Standing to commence a foreclosure action.

Practice point:  A plaintiff has standing to commence a foreclosure action when it is either the holder or the assignee of the underlying note at the time the action is commenced.  Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation.

Student note:  Where the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief.  However, on a defendant's motion, the defendant must establish, prima facie, the plaintiff's lack of standing as a matter of law.

Case:  Bank of N.Y. Mellon v. Green, NY Slip Op 07460 (2d Dept. 2015)

Here is the decision.

Monday's issue:  A motion for summary judgment in lieu of complaint, pursuant to CPLR 3213.

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.