CPLR 308(4) and the due diligence standard.

Practice point:  Service pursuant to CPLR 308(4), which allows for affixing the summons to the door of the place of business, dwelling place, or usual place of abode, with other prerequisites, may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence.

Student note:  "Due diligence" is not defined in the statutory framework, and the term has been interpreted and applied on a case-by-case basis.

Case:  Amtrust-NP SFR, Venture, LLC v. Emmel, NY Slip Op 04894 (2d Dep't June 23, 2016)

Here is the decision.

Tomorrow's issue:  A fall on a wet staircase.

A fall from a ladder and a Labor Law § 240(1) claim.

Practice point:  The Appellate Division rejected defendants' argument that plaintiff was required to demonstrate that the ladder was defective in order to satisfy his burden as to the Labor Law § 240(1) claim. It is sufficient for purposes of liability under section 240(1) that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent. As there is no evidence that plaintiff was a recalcitrant worker or that he was not engaged in covered activity, it is sufficient for his claim that his injuries were the direct consequence of using a ladder that did not provide adequate protection.

Student note:  It is irrelevant whether plaintiff fell because the ladder wobbled or because he dropped his wrench.  It is clear that the ladder did not prevent plaintiff from falling and there is no dispute that no safety devices, other than the ladder, were provided.

Case:  Hill v. City of New York, NY Slip Op 05019 (1st Dep't June 23, 2016)

Here is the decision.

Tomorrow's issue:  CPLR 308(4) and the due diligence standard.

Denial of a motion to renew.

Practice point:  The Appellate Division affirmed the denial of the motion, noting that movant's supporting papers were properly rejected by the motion court as they were submitted for the first time in the reply papers. In addition, movant offered no justification whatsoever as to why he did not obtain the new evidence in time to submit it in opposition to the original motion, and did not assert that he made any effort, let alone a diligent effort, to obtain this new evidence, which was readily available.

Student note:  Denial of a motion to reargue is not appealable.

Case:  Amtrust-NP SFR Venture, LLC v. Vazquez, NY Slip Op 04871 (1st Dep't June 21, 2016)

Here is the decision.

Tomorrow's issue:  A fall from a ladder and a Labor Law § 240(1) claim.

Res judicata and a judgment of foreclosure and sale.

Practice point:  A judgment of foreclosure and sale is final as to all questions at issue between the parties, and concludes all matters of defense which were or could have been litigated in the foreclosure action.

Student note:  Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party.

Case:  Ciraldo v. JP Morgan Chase Bank, N.A., NY Slip Op. 04686 (2d Dep't June 15, 2016)

Here is the decision.

Tomorrow's issue:  Denial of a motion to renew.

Vacatur of a default judgment denied.

Practice point:  The Appellate Division reversed, and denied the motion to vacate. For one thing, defendants failed to demonstrate a reasonable excuse for their default. Defendants' counsel never substantiated or explained the nature of the "serious family matter" that purportedly caused the default. At most, counsel had an ex parte communication with the motion court about the facts of the action, and, during that communication, may or may not have revealed the facts surrounding the alleged family matter. This ex parte communication is an insufficient basis upon which to vacate a default judgment, especially where, as here, the details of the communication are not known.

Defendants also failed to explain why their counsel's family matter was so serious that it kept him from either interposing an answer or responding to plaintiff's motion for a default judgment.  The record contains no adequate explanation for why the law firm representing defendants failed to communicate with plaintiff's counsel for nearly five months, even to inform counsel that a family emergency prevented defendants from timely responding to the litigation. In addition, two attorneys, only one of whom was affected by a family emergency, were representing defendants, and defendants do not explain why the other attorney representing them could not have taken the necessary steps to advance the litigation.

For another thing, defendants' assertion that they were entitled to a premium payment because they executed and posted a bail bond does not present a meritorious defense to plaintiff's action. Although execution of the bond is a condition precedent for retaining a premium payment, defendants failed to present any documentary evidence that they had actually executed and posted any bond. Neither did defendants present any evidence that the motion court ever conducted an examination of surety.

Student note:  While there is a strong public policy in favor of disposing of cases on their merits, this policy does not relieve a party moving to vacate a default from satisfying the two-pronged test of showing both (1) a reasonable excuse for the default; and (2) a meritorious defense to the action.

Case:  Johnson-Roberts v. Ira Judelson Bail Bonds, NY Slip Op 04785 (1st Dep't June 16, 2016)

Here is the decision.

Monday's issue:  Res judicata and a judgment of foreclosure and sale.

Obtaining a preliminary injunction.

Practice point:  To obtain a preliminary injunction, the moving party must establish, by clear and convincing evidence, the following: (1) a likelihood of success on the merits; (2) irreparable injury absent the injunction; and (3) that the equities balance is in the movant's favor.

Student note:  The decision to grant or deny the injunction lies within the sound discretion of the Supreme Court.

Case:  Chase Home Fin., LLC v. Cartelli, NY Slip Op 04685 (2d Dep't June 15, 2016)

Here is the decision.

Tomorrow's issue: Vacatur of a default judgment denied.

A 3211(a)(7) motion to dismiss.

Practice point:  Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one.  Unless it has been shown that a material fact claimed by the plaintiff is not a fact at all, and unless it can be said that no significant dispute exists regarding it, the complaint should not be dismissed.

Student note:  Affidavits submitted in support of the motion may not be examined for the purpose of determining whether there is evidentiary support of the pleading.

Case:  Anglero v. Hanif, NY Slip Op 04683 (2d Dep't June 15, 2016)

Here is the decision.

Tomorrow's issue:  Obtaining a preliminary injunction.

Dismissal of a complaint, and denial of a cross-motion for spoilation sanctions.

Practice point:  The Appellate Division affirmed dismissal where defendant satisfied its initial burden on summary judgment by establishing, prima facie, that any alleged defect in the stairway at issue and/or in its premises lighting was not a proximate cause of plaintiff's accident, and plaintiff failed to raise a triable issue of fact relating his accident and injuries to either.

The Appellate Division also found that court properly denied the cross motion for spoliation sanctions. Plaintiff failed to specify a particular defect that caused him to fall, and even if defendant should have maintained its video footage of the subject staircase, plaintiff cannot establish that the failure to preserve it left him without appropriate means to present a claim with incisive evidence, as is required for the imposition of sanctions.

Student note:  The court properly declined to consider the errata sheet even though it was timely served, because plaintiff made changes to his testimony without explaining why he was making them, as required by CPLR 3116(a).

Case:  Cataudella v. 17 John St. Assoc., LLC, NY Slip Op 04784 (1st Dep't June 16, 2016)

Here is the decision.

Tomorrow's issue: A 3211(a)(7) motion to dismiss.

A motion to change venue.

Practice point:  The Appellate Division reversed the denial of the motion to change and the granting of the cross-motion to retain venue, and ordered that the matter be remanded for a hearing to resolve the factual issues raised in the motions.

The Appellate Division found that the denial of defendants' motion to change venue from Bronx County to Westchester County without a hearing was an improvident exercise of discretion. Once a movant establishes in a venue motion that the plaintiff's residence was other than that claimed in the complaint, the plaintiff opposing a motion for a change of venue must establish through documentary evidence his claimed residence. Here, substantial documentary evidence produced in discovery and submitted by defendants on their motion indicated that on the date of the accident plaintiff resided in Westchester County. These documents include hospital records from the time of plaintiff's accident, the incident report from the day of the accident, plaintiff's employment records, tax records and forms from the Internal Revenue Service, pharmacy records, Department of Motor Vehicle records, and automobile insurance records, all of which indicate that his address is in New Rochelle, Westchester County. In response, plaintiff's assertion that he resides at the Bronx residence that he co-owns with his fiancée, while buttressed by the affidavits of his fiancée and a neighbor, was not supported by any objective documentation. The only document plaintiff provided, which he describes as a water bill, is merely an undated commercial solicitation sent to him as a listed homeowner.

Student note:  Although a person may have more than one residence, for venue purposes, there must be evidence that the plaintiff actually resided at the claimed residence at the time the action was commenced. An ownership interest in property does not alone demonstrate residence at that property.

Case:  Crovato v. H&M Hennes & Mauritz, L.P., NY Slip Op 04660 (1st Dep't June 14, 2016)

Here is the decision.

Tomorrow's issue:  Dismissal of a complaint, and denial of a cross-motion for spoilation sanctions.

Discovery and the production of eletronic documents.

Practice point:  The Appellate Division determined that it was not an improvident exercise of the Supreme Court's discretion to deny that branch of the appellants' motion which was to compel the production of electronic documents in a different format than that in which the documents were previously produced.

Student note: It is well settled that a party is not entitled to unlimited, uncontrolled, unfettered disclosure, and the supervision of discovery is left to the trial court's broad discretion.

Case:  Aalco Transp. & Stor., Inc. v. DeGuara, NY Slip Op 04368 (2d Dep't June 8, 2016)

Here is the decision.

Monday's issue:  A motion to change venue

Vacating a default judgment.

Practice point:  The Appellate Division reversed the denial of defendant's motion to vacate a default judgment against him, finding that the suspension of defendant's counsel during the pendency of this action resulted in an automatic stay of the proceedings against defendant until thirty days after notice to appoint another attorney was served upon him, or until the court granted leave to resume proceedings, pursuant to CPLR 321[c].  Because there was no compliance with the leave or notice requirements of CPLR 321(c), and defendant did not retain new counsel until February 2014, the automatic stay was in place when the November 22, 2013 judgment was entered based upon defendant's default. Accordingly, the judgment must be vacated.

Student note:  Defendant's failure to invoke CPLR 321(c) until submission of his reply papers on his motion does not result in a waiver of his argument.  Neither was he required to submit an affidavit of merit.

Case:  Duandre Corp. v. Golden Krust Caribbean Bakery & Grill, NY Slip Op 04461 (1st Dep't June 9, 2016)

Here is the decision.

Tomorrow's issue: Discovery and the production of electronic documents.