Memorial Day Weekend.

Vacating a note of issue, and a jury demand.

Practice point:  The Appellate Division affirmed the denial of plaintiff's motion to vacate the note of issue or, in the alternative, for a jury trial.  The motion was untimely as plaintiff brought 15 months after the note of issue was filed. In addition, plaintiff's speculative and unsubstantiated claims of defendants' forgery, spoliation, and obstruction of discovery fall short of the stringent standard of showing unusual and unanticipated circumstances subsequent to the filing of the note of issue that would otherwise justify granting the motion.

Student note:  Plaintiff failed to file a jury demand within 15 days of the filing of the note of issue, and did not provide an excuse for her failure to do so. As a result, she waived any right she may have had to a jury trial, pursuant to CPLR 4102[a].

Case:  Jia Wang v. Chih Shien Kang, NY Slip Op 03980 (1st Dep't May 19, 2016)

Here is the decision.

Monday:  Court holiday.

An action to foreclose a mortgage.

Practice point:  To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default.  Where the plaintiff's standing is placed in issue by a defendant, the plaintiff must prove its standing as part of its prima facie showing. A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either the holder or assignee of the underlying note at the time the action is commenced.

Student note:  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.

Case:  Flagstar Bank, FSB v. Mendoza, NY Slip Op 03849 (2d Dep't May 18, 2016)

Here is the decision.

Tomorow's issue:  Vacating a note of issue, and a jury demand.

A fall, summary judgment, and the admissibility of affidavits.

Practice point:  The Appellate Division reversed, and granted defendant's motion dismissing the complaint in this action where plaintiff alleges that he was injured when he fell down the stairs in defendants' building.

Defendants established their entitlement to judgment as a matter of law by submitting plaintiff's deposition testimony where he stated that while climbing the subject stairs, he suddenly felt dizzy and weak, heard the "noise of a paper," and remembered nothing else until he later awoke in the hospital. He was twice asked whether he knew, or ever learned, what caused him to fall, and each time answered that he did not. Nowhere else in his testimony did plaintiff identify the cause of his fall.

Student note:  Plaintiff's affidavit, where he claimed that he slipped and fell on paper restaurant menus strewn on defendants' stairs, was inadmissable, as plaintiff testified he neither spoke, read nor wrote in English, yet his affidavit was unaccompanied by a translator's affidavit attesting to its accuracy, as required by CPLR 2101(b).

Case:  Peralta-Santos v. 350 W. 49th St. Corp., NY Slip Op 03966 (1st Dep't May 19, 2016)

Here is the decision.

Tomorrow's issue:  An action to foreclose a mortgage.

A school's duty to supervise.

Practice point:  A school owes a duty to adequately supervise the students in its care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision.

Student note:  In determining whether the duty has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, the third-party acts could reasonably have been anticipated.

Case:  Fernandez v. City of Yonkers, NY Slip Op 03847 (2d Dep't May 18, 2016)

Here is the decision.

Tomorrow's issue:  A fall, summary judgment, and the admissibility of affidavits.

CPLR 5015 and vacating a default.

Practice point:  Where a defendant seeks to vacate a default under both CPLR 5015(a)(1), excusable default, and (a)(4), lack of jurisdiction, the court will first determine whether it has personal jurisdiction over the defendant, as, if it does not, it need not determine whether the default is excused.

 Student note:  A determination under (a)(4) requires no discretion, while (a)(1) requires the court to exercise its discretion.

Case:  Wells Fargo Bank, N.A. v. Jones, NY Slip Op 03838 (1st Dep't May 17, 2016)

Here is the decision.

Tomorrow's issue:  A school's duty to supervise.

Statute of limitations on a hostile work environment claim.

Practice point:  While a cause of action alleging discrimination on the basis of discrete adverse employment actions is timely only to the extent that the adverse employment actions took place within the statute of limitations period, a cause of action alleging hostile work environment is timely so long as one act contributing to the cause of action occurred within the statute of limitations period.

Student note:  Causes of action alleging violations of Executive Law § 296 are governed by a three-year statute of limitations, pursuant to CPLR 214[2].

Case:  Cahill v. State of N.Y. Stony Brook Univ. Hosp., NY Slip Op 03695 (2d Dep't May 11, 2016)

Here is the decision.

Monday's issue:  CPLR 5015 and vacating a default.

Plaintiff's motion for an extension of time to serve.

Practice point:  The Appellate Division found that the motion court properly exercised its discretion, and affirmed the granting of the motion. Although plaintiff delayed in moving for an extension, other relevant factors weighed in favor of granting the motion, including plaintiff's diligence, the expiration of the statute of limitations on plaintiff's intentional tort claims, and the absence of any prejudice to defendant, given his actual notice of the summons and complaint.

Student note:  Where the extension is sought in the interest of justice and some factors weigh in favor of granting the motion and some do not, the Appellate Division will not disturb the motion court's exercise of discretion.

Case:  Petracca v. Hudson Tower Owners LLC, NY Slip Op 03835 (1st Dep't May 17, 2016)

Here is the decision.

Tomorrow's issue:  Statute of limitations on a hostile work environment claim.

A fall down the stairs.

Practice point:  The Appellate Division affirmed the denial of defendants' motion for summary judgment in this action to recover damages after plaintiff allegedly was injured when she fell down a set of bleacher stairs located in a gymnasium owned by defendant. In its moving papers, defendant argued that, according to the opinion of its expert engineer, the accident could not have occurred in the manner which plaintiff claimed that it did.

The Appellate Division found that defendant failed to establish its prima facie entitlement to judgment as a matter of law. Its expert's affidavit was conclusory, speculative, and lacked a proper foundation, as it was based on an inspection that was conducted 14 months after the incident and did not establish that the bleachers were operating in the same manner or were in the same condition on the date of the inspection as they were on the date of the incident.

Student note:  A defendant in a premises liabilty case may demonstrate its prima facie entitlement to judgment as a matter of law with evidence that it did not create the condition that allegedly caused the fall or have actual or constructive notice of that condition.  Whether a dangerous or defective condition exists is generally a question of fact for the jury.

Case:  Burch v. Village of Hempstead, NY Slip Op 03694 (2d Dep't May 11, 2016)

Here is the decision.

Tomorrow's issue:  Plaintiff's motion for an extension of time to serve.

The standard for documentary evidence on a motion to dismiss.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss pursuant to CPLR 3211(a)(1) in this legal malpractice action. Defendant argued that documentary evidence established that it had been retained only with respect to plaintiff's Workers' Compensation claim. Defendant's letters to plaintiff, submitted by defendant on its motion, are not documentary evidence for the purpose of a 3211(a)(1) motion pursuant to CPLR 3211(a)(1). Neither is the affirmation of one of defendant's members documentary evidence.

While defendant did submit documentary evidence, it did not utterly refute plaintiff's allegations, as it required to succeed on the motion.

Student note:  To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity.  Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, qualify as documentary evidence, while affidavits and letters do not.

Case:  Anderson v. Armentano, NY Slip Op 03690 (2d Dep't May 11, 2016)

Here is the decision.

Tomorrow's issue:  A fall down the stairs.

Late notices of claim and statutes of limitations.

Practice point:  The Appellate Division affirmed the granting of defendant's motion to dismiss the complaint.  Plaintiff, suing on behalf of her infant son, failed to serve a timely notice of her medical malpractice claim, pursuant to General Municipal Law § 50-e[1][a], and failed to seek leave to file a late notice of claim, pursuant to General Municipal Law § 5-e(5), within the applicable statute of limitations, as tolled due to the injured plaintiff's infancy, pursuant to CPLR 208.

Student note:  The fact that plaintiff served a late notice of claim before the statute of limitations had expired is without effect, because she had not obtained leave of the court.

Case:  Yessenia D. v. New York City Health & Hosps. Corp., NY Slip Op 03653 (1st Dep't May 10, 2016)

Here is the decision.

Tomorrow's issue:  The standard for documentary evidence on a motion to dismiss.