Court holiday.

He jests at scars that never felt a wound.
                             Romeo and Juliet, Act II, Scene II

Appellate review of a nonjury trial.

Practice point:  In reviewing a determination rendered after a nonjury trial, the Appellate Division's power is as broad as that of the trial court, and the Appellate Division may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial court had the advantage of seeing the witnesses and hearing the testimony.

Case:  Bryant v. Broadcast Music, Inc., NY Slip Op 06996 (2d Dep't October 26 2016)

Here is the deision.

Monday's issue:  Summary judgment on account stated and quantum meruit claim.

Summary judgment in a rear-ended vehicle accident.

Practice point:  The motion court denied plaintiffs' motion for partial summary judgment on the issue of liability, with leave to renew upon completion of all parties' depositions, and the Appellate Division reversed. Plaintiffs established entitlement to judgment as a matter of law by submitting evidence showing that they were injured when defendants' vehicle hit their stopped vehicle from behind as they waited at a red light.  Defendants did not provide a non-negligent explanation for why their vehicle rear-ended plaintiffs' vehicle. They did not demonstrate the need for plaintiffs' depositions, since any information as to why their car rear-ended plaintiffs' vehicle reasonably is within defendants' own knowledge.

Case:  Castaneda v. DO&CO N.Y. Catering, Inc., NY Slip Op 07118 (1st Dep't November 1, 2016)

Here is the decision.

Tomorrow's issue: Appellate review of a nonjury trial.

Court holiday.

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

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.