Leave to amend a summons and complaint.

Practice point:  The Appellate Division reversed the motion court, finding that it improvidently exercised its discretion in denying plaintiff's cross motion to substitute an identified defendant in the summons and complaint, pursuant to CPLR 305[c], 1024 and 3025. There was no evidence of any prejudice or surprise to the proposed defendant resulting from the substitution, and defendant City of New York stated that it had no substantive objection to plaintiff's cross motion to the extent it sought leave to substitute the identified police officer for a "John/Jane Doe" defendant.

Student note:  Since the limited proposed amendments were clearly described in the moving papers, plaintiff's failure to submit proposed amended pleadings with his original moving papers, pursuant to CPLR 3025[b], was a technical defect, which the court should have overlooked, pursuant to CPLR 2001, particularly after plaintiff provided those documents with his reply.

Case:  Medina v. City of New York, NY Slip Op 08909 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A rear-end collision.

Res judicata.

Practice point:  The Supreme Court determined that this personal injury action was barred by collateral estoppel, and the Appellate Division affirmed, but on a different ground, namely, res judicata.

The Appellate Division found that, in a declaratory judgment action, an order was issued granting the plaintiffs therein leave to enter a default judgment against the appellants, who were named defendants in that action, upon their failure to appear or answer the complaint in that action. The Appellate Division determined that that order is conclusive for res judicata purposes as to any matters actually litigated or that might have been litigated in that action, and that it precludes the appellants from maintaining this action.

Student note:  Res judicata, or claim preclusion, bars successive litigation based upon the same transaction or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action, or in privity with a party who was. The doctrine applies to an order or judgment taken by default which has not been vacated, as well as to issues which were or could have been raised in the prior proceeding.

Case:  Albanez v. Charles, NY Slip Op 08795 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Leave to amend a summons and complaint.

Denial of an award for enhanced earning capacity.

Practice point:  The Appellate Division determined that the court properly exercised its discretion in denying the husband any award of a portion of the wife's enhanced earning capacity stemming from her United States medical license. The husband failed to show that he contributed to the wife's attainment of her license.  Prior to the marriage, the wife completed medical school in China and had a medical license in China. Thus, the only marital property was her US medical license, and while the wife did not work from May 2004 to May 2007, as she studied for the exam, she supported herself with her own savings and financial support from her mother, and paid for the exam review course herself.

Student note:  If the husband were entitled to an award based on the wife's enhanced earning capacity, he would have to establish the value of such enhanced earning capacity through expert testimony.

Case:  Ruo Mei Cai v. Victor Fai Lau, NY Slip Op 08635 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Res judicata.

CPLR 4401 and 4404(a)

Practice point:  The Appellate Division affirmed the denial of the motion, made pursuant to CPLR 4401,  for judgment as a matter of law on the issue of liability, made at the close of the plaintiffs' case and renewed at the close of evidence. A 4401 motion may be granted where the trial court determines that, upon the evidence presented, there is no rational process by which the trier of fact could base a finding in favor of the nonmoving party.  In considering the motion, the court must afford the nonmovant every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant.

Student note:  A 4404(a) motion to set aside a jury verdict as contrary to the weight of the evidence will not be granted unless the jury could not have reached the verdict by any fair interpretation of the evidence.

Case:  Cobenas v. Ginsburg Dev. Cos., LLC, NY Slip Op 08702 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Denial of an award for enhanced earning capacity.

An enforceable contract.

Practice point:  The Appellate Division reversed the motion court and dismissed the complaint in this action to recover damages for an alleged breach of contract.  A binding contract requires mutual assent sufficiently definite to assure that the parties are in agreement with respect to all material terms, and the contract is not enforceable if a court cannot determine what the parties have agreed to. If the agreement is not reasonably certain in its material terms, there is no legally enforceable contract.

Student note:  The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach.

Case:  Carione v. Hickey, 08700 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  CPLR 4401 and 4404(a).

A motion for leave to renew.

Practice point:  The motion court has discretion to grant renewal on facts known to the movant at the time of the original motion on a showing of reasonable justification for not having offered the additional facts in the prior application.  Law office failure may be a reasonable justification.

Student note:  Generally, though, the motion must be made on new facts, not offered in the original application, that would change the prior determination, pursuant to CPLR 2221(e)(2).

Case:  Calle v. Zimmerman, NY Slip Op 08699 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  An enforceable contract.

Partition and sale of an apartment.

Practice point:  The Appellate Division determined that plaintiff is entitled as a matter of law to the partition and sale of the apartment under Real Property Actions and Proceedings Law (RPAPL) § 901. In the record there was support for a finding that the parties are tenants in common, and defendant did not raise an issue of fact contesting the assertion that the apartment's value is maximized by remaining undivided, or that the parties would be prejudiced by dividing it.

The Appellate Division noted that defendant may not invoke the notice provision in RPAPL § 1304, and is not entitled to a court-supervised settlement conference under CPLR 3408, as the definitions of "home loan" and "lender" under the statute have not been met.

Student note:  For the purposes of RPAPL § 901(1), a plaintiff may be in "possession" of the apartment, despite not having lived in it.

Case:  Lane v. Tyson, NY Slip Op 08623 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion for leave to renew.

Construing contracts.

Practice point:  A contract will be construed in accordance with the parties' intent, which is generally discerned from the four corners of the document itself. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. A contract is unambiguous if its language has a definite and precise meaning, unattended by the danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion.  A contract is considered ambiguous when, read as a whole, it does not disclose its purpose and the parties' intent, or when specific language is susceptible of two reasonable interpretations.

Whether a contract is ambiguous is an issue of law, and, if a court determines that a contract is ambiguous, it may consider extrinsic evidence in order to determine the parties' intent.

Student note:  The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach.

Case:  Legum v. Russo, NY Slip Op 08149n (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Partition and sale of an apartment.

The Whistleblower Law.

Practice point:  The Appellate Division affirmed dismissal of the retaliation claim, finding that allegations that plaintiff reported an assault and battery by a supervisor fail to state a claim under Labor Law § 740, the Whistleblower Law. Assault and battery by a supervisor is not "an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud," as specified in § 740[2][a].

Student note:  The Appellate Division will not consider a claim asserted for the first time on appeal.

Case:  Diaz v. New York State Catholic Health Plan, Inc., NY Slip Op 08129 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Construing contracts.

Court Holiday.

Summary judgment in a slip-and-fall action.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion in this action where plaintiff alleges that he fell in the boiler room of the building where he worked as a maintenance worker when he attempted to back out of a tight area next to the boiler and his pants got caught on a brace or bracket supporting a pipe. Defendant, the owner of the building, established its entitlement to summary judgment by submitting photographic and testimonial evidence showing that the brace or bracket was not a defective condition, but was open and obvious, and not inherently dangerous. As was shown in the photographs, the condition was plainly observable and did not pose any danger to someone making reasonable use of his or her senses.

Student note:  Although plaintiff did not see the brace or bracket when he was backing up, it was not hidden or obscured from view and thus did not constitute a trap or snare. Contrary to plaintiff's arguments, defendant was not required to present expert testimony to meet its initial burden, and the issue of notice is irrelevant since there was no defective or dangerous condition in the boiler room.

Case:  Acosta v. Gouverneur Ct. L.P., NY Slip Op 08125 (1st Dept. 2015)

Here is the decision.

Friday's issue:  The Whistleblower Law.