Affirmation of an arbitral award.

The Appellate Division affirmed the granting of the petition to confirm a FINRA arbitration award.

An arbitral award can only be challenged under the criteria set forth in CPLR 7511. The procedural arguments that there was an agreement to arbitrate in New York and that the panel should have adjourned the hearing are not recognized grounds to bar confirmation. In any event, the objections were waived by participation in the arbitration, through an answer, selection of arbitrators, two motions to remove arbitrators, and two motions to dismiss.

Although an agreement can supersede FINRA's arbitration rules, the alleged agreement here was never placed into the record, and, even accepting respondent's characterization, it still provided for arbitration, albeit in New York rather than Florida.

Similarly, respondent's argument with regard to the failure to adjourn is unavailing. Not only is it not a ground under CPLR 7511, but even under the Federal Arbitration Act, refusal to adjourn where a party has full notice and provides no excuse for not attending is not misconduct.

While arguments of arbitrator bias are cognizable, they are unsubstantiated. Allegations that one arbitrator was biased because he was once bankrupt, and another because he had once represented a claimant at a FINRA arbitration, are insufficient.

Case:  Bortman v. Lucander, NY Slip Op 03600 (1st Dep't May 4, 2017)

Here is the decision.

Tomorrow's issue:  Standing in a mortgage foreclosure action.

Establishing fraudulent inducement.

Practice point: Where the facts represented are not matters peculiarly within the party's knowledge, and the other party has available the means of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, that party must make use of those means. Otherwise, the party will not be heard to allege fraudulent inducement.

Case:  1810 E & J Rest. Corp. v. Red & Blue Parrot, Inc., NY Slip Op 03465 (2d Dep't May 3, 2017)

Here is the decision.

Tomorrow's issue:  Affirmation of an arbitral award.

A medical malpractice claim.

Practice point:  The elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was the proximate cause of injury. On a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In order to defeat the motion, the nonmoving party need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's prima facie showing.

Case:  Ortiz v. Wyckoff Hgts. Med. Ctr., NY Slip Op 03189 (2d Dep't April 26, 2017)

Here is the decision. 

Tomorrow's issue:  Establishing fraudulent inducement.

The doctrine of mootness applied to a construction project.

Practice point:  The doctrine is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine the actual controversy.  Where the change in circumstances involves a construction project, a court must consider how far the work has progressed towards completion.  However, the race to the project's completion is not determinative, and the court will consider other factors, especially a challenger's failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction during the pendency of the litigation.  Also significant are whether work was undertaken without authority or in bad faith, and whether substantially completed work can be undone without undue hardship. The court may retain jurisdiction despite mootness if there are novel or substantial issues that otherwise would evade judicial review.

Case:  Matter of Town of Mt. Pleasant v. Delaney, NY Slip Op 03185 (2d Dep't April 26, 2017)

Here is the decision.

Monday's issue:  A medical malpractice claim.

The reasonability of an excuse for a default judgment.

Practice point:   It is considered a reasonable excuse if a defendant provides the summons and complaint to its insurance broker, and then the insurer fails to appoint counsel to appear in the action. However, it is an unreasonable excuse if the defendant asserts that it believed its insurer was acting, even though the defendant concedes receipt of the plaintiff's motion for leave to enter a default judgment.  Receipt of the motion puts the defendant on notice that, in actualty, the insurer has not answered the complaint.

Case:  Gecaj v. Gjonaj Realty & Mgt. Corp., NY Slip Op 03109 (1st Dep't April 25, 2017)

Here is the decision.

Tomorrow's issue: The doctrine of mootness applied to a construction project.

A claim of discrimination on the basis of marital status.

Practice point:  The Appellate Division affirmed the granting of defendant real estate brokers' motion to dismiss, as they sought to facilitate, not prevent, plaintiffs' purchase of a cooperative apartment. To the extent that the challenged statements, which suggested, but did not require, that plaintiffs submit a letter describing the "longevity" and "solidity" of their relationship, and stating that they are married, can be construed as inquiry into their sexual orientation or marital status, when read in context with the relevant emails, they do not express any "limitation, specification or discrimination" on the basis of the couples' sexual orientation, but, instead, financial concerns similar to any couple looking to buy an apartment in that building. Since they were married, the couple could not have been denied the apartment on the basis of their marital status had they disclosed their status to the coop board. Therefore, they were not aggrieved by an unlawful discriminatory practice, as is required to state a claim under the State and City Human Rights Laws (Executive Law § 297[1] and [9].

Case:  Verzatt v. Halstead Prop., LLC, NY Slip Op 03260 (1st Dep't April 27, 2017)

Here is the decision.

Tomorrow's issue:  The reasonability of the excuse for a default judgment.

Property owners and primary assumption of the risk.

Practice point:  A property owner must act in a reasonable manner to prevent harm to those on its premises, and must control the conduct of persons on its premises when it has the opportunity to control their conduct, and is reasonably aware of the need to do so. The doctrine of primary assumption of risk applies when a consenting participant in a qualified activity is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. A person who chooses to engage in such an activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the activity generally and flow from such participation. The duty owed in these situations is a duty to exercise care to make the conditions as safe as they appear to be. The doctrine generally has been restricted to particular athletic and recreational activities.

Case:  Nevo v. Knitting Factory Brooklyn, Inc., NY Slip Op 03136 (2d Dep't April 26, 2017)

Here is the decision. 

Tomorrow's issue:  A claim of discrimination on the basis of marital status.

Waiver of arbitration.

Defendants waived arbitration, as their participation in the lawsuit, in both state and federal court, for 11 months before moving to compel arbitration manifested an affirmative acceptance of the judicial forum and caused plaintiff unnecessary delay and expense.

Case:  JSBarkats PLLC v. Response Scientific Inc., NY Slip Op 03142 (1st Dep't April 25, 2017)

Here is the decision.

Tomorrow's issue:  Property owners and primary assumption of the risk.

Vacating a judgment by confession.

Practice point:  A defendant may challenge the judgment by confession only by trial in a plenary action, and not by motion.  The defendant has no standing tochallenge the affidavit of confession of judgment, as the affidavit protects the defendant's creditors, not the defendant, pursuant to CPLR 3218.

Case:  Cash & Carry Filing Serv., LLC v. Perveez, NY Slip 03047 (1st Dep't April 20, 2017)

Here is the decision.

Monday's issue:  Waiver of arbitration.

CPLR 306-b

Practice point:  CPLR 306-b requires that service of the summons and complaint or summons with notice be made within one hundred twenty days after the commencement of the action. CPLR 308(2) permits personal service on a natural person by delivering the summons within the state to a person of suitable age and discretion at the actual place of business of the person to be served and, within 20 days thereafter, mailing a copy of the summons to the actual place of business in an envelope marked "personal and confidential." Both the delivery and the mailing must be performed within 120 days of the filing of process, pursuant to CPLR 306-b.

Case:  Purzak v. Long Is. Hous. Servs., Inc., NY Slip Op 03027 (2d Dep't April 19, 2017)

Here is the decision. 

Tomorrow's issue:  Vacating a judgment by confession.

Opposing a summary judgment motion.

Practice point:  A plaintiff cannot defeat a summary judgment motion that makes out a prima facie case merely by asserting a new theory of liability for the first time in the opposing papers.

Case:  Biondi v. Behrman,  NY Slip Op 03039 (1st Dep't April 20, 2017)

Here is the decision. 

Tomorrow's issue:  CPLR 306-b.