Denial of a cross-motion to strike the answer.

Practice point:  The Appellate Division affirmed the denial of the motion in this medical malpractice action, as plaintiffs failed to demonstrate that the allegedly spoliated X-ray was ever taken.  Even if there were an X-ray, plaintiffs failed to establish that it represented a key piece of evidence, especially considering defendants' expert's opinion that it would not have yielded any useful diagnostic information.

Case:  Liburd v. St. Joseph's Med. Ctr., NY Slip Op 07117 (1st Dep't November 1, 2016)

Here is the decision.

Wednesday's issue: Summary judgment and discovery in a rear-ended vehicle accident.

Summary judgment in a trip-and-fall action.

Practice point:  A defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the fall. A plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Case:  Baldasano v. Long Is. Univ., NY Slip Op 06995 (2d Dep't October 26, 2016)

Here is the decision.

Monday's issue:  Denial of a cross-motion to strike the answer.

Moving for a discretionary change of venue.

Practice point:  Pursuant to CPLR 510(3), the movant must demonstrate that the change will promote the convenience of material witnesses and the ends of justice. The movant must set forth (1) the names, addresses, and occupations of the prospective witnesses; (2) the facts to which the witnesses will testify at trial, so that the court may judge whether the proposed evidence is necessary and material; (3) a statement that the witnesses are willing to testify; and (4) a statement that, absent the change, the witnesses would be greatly inconvenienced.

Case:  Ambroise v. United Parcel Serv. of Am., Inc., NY Slip Op 06993 (2d Dep't October 26, 2016)

Here is the decision.

Tomorrow's issue:  Summary judgment in a trip-and-fall action.

The first-to-file rule in a legal malpractice action.

Practice point:  The Appellate Division found that the motion court improvidently exercised its discretion in declining to dismiss the claim for a declaratory judgment against defendant since there is another action pending between the parties for the same cause of action. Defendant's choice of a Federal forum for its earlier-filed legal malpractice action is entitled to comity.  Plaintiff's use of a declaratory judgment action to determine the viability of its defense, or the existence of merit, suggests forum shopping, and does not warrant a deviation from the first-to-file rule.

Case:  Wachtell, Lipton, Rosen & Katz v. CVR Energy, Inc., NY Slip Op 07091 (1st Dep't October 27, 2016)

Here is the decision.

Tomorrow's issue:  Moving for a discretionary change of venue.

Labor Law §§ 240(1) and 241(6).

Practice point:  The Appellate Division affirmed dismissal of the § 240(1) cause of action in which plaintiff alleged that he was injured while riding in one of the building's elevators.  The passenger elevator was not a safety device for protecting a construction worker from a risk posed by elevation as contemplated by the statute. However, the Appellate Division reversed dismissal of the § 241(6) claim to the extent that it was predicated on violations of Industrial Code (12 NYCRR) § 23-1.7(e). While there were no facts alleged to support a claim that plaintiff was injured as the result of a slipping hazard, plaintiff's complaint, as supplemented by his affidavit in opposition to defendant's motion, sufficiently alleged that debris was one of the causes of his fall.

Case:  Smith v. Extell W. 45th St. LLC, NY Slip Op 07089 (1st Dep't October 27, 2016)

Here is the decision.

Tomorrow's issue:  The first-to-file rule in a legal malpractice action.

A defective roadway condition.

Practice point:  The Appellate Division affirmed dismissal of the complaint alleging that a defective roadway condition caused plaintiff's bicycle accident. Plaintiff's submission of an inspection report was insufficient to show that the City had issued written acknowledgment of the defect within the meaning of Administrative Code § 7-201(c)(2), since the report identifies a defect at a different location. Awareness of one defect in the area does not constitute notice of a different particular defect which caused the accident. In addition, it was speculative for plaintiff's expert to assume that, because no permits had been issued, the City must have created the roadway defect.

Case:  Ragolia v. City of New York, NY Slip Op 06950 (1st Dep't October 25, 2016)

Here is the decision.

Tomorrow's issue:  Labor Law §§ 240(1) and  241(6).

Disqualification of an attorney as an advocate-witness.

Practice point:  The Appellate Division affirmed the disqualification where the attorney was likely to be called as a witness on significant issues of fact regarding his conduct with respect to the money that he is holding in escrow.

Student note:  Pursuant to 22 NYCRR 1200.0) rule 3.7, an attorney shall not act as an advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact. The rule is intended to provide guidance, but is not binding authority, in deciding a motion to disqualify.

Case:  Bajohr v. Berg, NY Slip Op 06797 (2d Dep't October 19, 2016)

Here is the decision.

Monday's issue: A defective roadway condition.

Vacatur in the interest of substantial justice.

Practice point:  The Appellate Division affirmed that, even though the default was unexplained, the motion court providently exercised its discretion in granting vacatur in the interest of substantial justice. The relief was justified by defendants' payment of substantially all of the amount due just two months after the order and judgment they sought to vacate. In addition, plaintiffs do not claim prejudice.

Case:  Marbru Assoc. v. White, NY Slip Op 06864 (1st Dep't October 20, 2016)

Here is the decision.

Tomorrow's issue: Disqualification of an attorney as an advocate-witness.

Service of a notice of claim by regular mail.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss for failure to serve a proper notice of claim. The notice was served by regular mail on the Transit Authority within 90 days after the claim arose, and the Transit Authority requested a 50-h hearing.  While service was noncompliant with statutory provisions, the notice was valid because it was served within the statutory period and the public corporation demanded an examination of the claimant.

Case:  Lapsley-Cockett v. Metropolitan Tr. Auth., NY Slip Op 06861 (1st Dep't October 20, 2016)

Here is the decision.

Tomorrow's issue:  Vacatur in the interest of substantial justice.

Jurisdiction over foreign corporations.

Practice point:  Pursuant to CPLR 301, the corporation is amenable to suit in New York courts if it has engaged in such a continuous and systematic course of doing business here that a finding of its presence in New York is warranted.  The exercise of jurisdiction over a foreign corporation on the basis of state law must comport with the due process requirement that the corporation's affiliations with New York are so constant and pervasive as to render it essentially at home here.

CPLR 302(a)(1) grants New York courts jurisdiction over nondomiciliaries when the action arises out of the nondomiciliaries' transaction of any business in New York.  In deciding jurisdiction under the statute, the court will determine (1) whether the defendant transacted business in New York and, if so, (2) whether the cause of action asserted arose from that transaction. In order to satisfy the second prong, there must be an articulable nexus or a substantial relationship between the defendant's New York activity and the alleged cause of action.

Case:  Fernandez v. DaimlerChrysler, A.G., NY Slip Op 06679 (2d Dep't October 12, 2016)

Here is the decision.

Tomorrow's issue:  Service of a notice of claim by regular mail.

An elevator company's duty of care.

Practice point:  If the company agrees to maintain the elevator in safe operating condition, it may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition that it should have found. In addition, a party who enters into a contract to render services may be said to have assumed a duty of care, and, where the contracting party has entirely displaced the other party's duty of safe maintenance, may be liable in tort to third persons.

Case:  Fajardo v. Mainco El. & Elec. Corp., NY Slip Op 06678 (2d Dep't October 12, 2016)

Here is the decision.

Tomorrow's issue: Jurisdiction over foreign corporations.