A municipality's liability.

Practice point:  Absent a special relationship giving rise to the municipality's duty to exercise care for the benefit of a particular class of individuals, no liability may be imposed upon a municipality for failing to enforce a statute or regulation.

Case in point:  Green v. City of New York, NY Slip Op 03693 (1st Dep't May 9, 2017)

Plaintiff was injured when, while standing on the sidewalk, she was struck by a taxicab that hopped the curb. The taxi driver had numerous penalty points on his license that might have supported a suspension of his license prior to the accident, and plaintiff alleges that the failure to suspend the driver sooner was the result of a "computer glitch" at defendant Taxi & Limousine Commission. Plaintiff seeks damages for the City defendants' failure to enforce their own rules and regulations.

The Appellate Division affirmed dismissal as against the City defendants. Plaintiff alleges no facts sufficient to show that the City defendants owed a a special to her.  She sets forth no statutory provisions or other facts to show that the taxi licensing regulations under which she sued were for the benefit of a limited class of persons that included her, as opposed to the public at large. Neither does she allege that the City defendants voluntarily assumed a duty that generated reasonable reliance, or that they assumed positive direction and control in the face of a known, blatant and dangerous safety violation.

Here is the decision.

Tomorrow's issue:  A claim of tortious interference with a contract.

Default judgments.

Practice point:  A plaintiff applying for a default judgment must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear, pursuant to CPLR 3215(f).

A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer must show both a reasonable excuse for the default and the existence of a potentially meritorious defense, pursuant to CPLR 2004.

Case:  Bank of Am., N.A. v. Agarwal, NY Slip Op 03467 (2d Dep't May 3, 2017)

Here is the decision.

Monday's issue:  A municipality's liability.

Standing in a mortgage foreclosure action.

Practice point:  Where the plaintiff's standing has been placed in issue by the defendants' answer, the plaintiff must also prove its standing as part of its prima facie showing on a motion for summary judgment. In a foreclosure action, a plaintiff has standing if it is the holder or assignee of the underlying note at the time the action is commenced. A plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing either a written assignment or physical delivery of the note.

Case:  Aurora Loan Servs., LLC v. Ang, NY Slip Op 03466 (2d Dep't May 3, 2017)

Tomorrow's issue:  Default judgments.

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.