CPLR 3215(c) and default judgments.

Practice point:  Pursuant to the statute, "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."

The single exception to the statute's mandatory language is that the failure to timely seek a default on an unanswered complaint or counterclaim may be excused for sufficient cause. Courts have interpreted this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious.

Case in point:  Bank of N.Y. v. Kushnir, NY Slip Op 03922 (2d Dep't May 17, 2017)

Here is the decision.

Tomorrow's issue:  A misleveled elevator.

A claim of unfair competition and misappropriation of confidential information.

Practice point:  To establish a cause of action for relief based on unfair competition, a plaintiff must demonstrate that the defendant wrongfully diverted the plaintiff's business to itself. To establish a cause of action based on misappropriation of confidential information, the plaintiff must show that the defendant solicited the plaintiff's customers where the customer list was a trade secret, or where the defendant engaged in wrongful conduct, such as physically taking or copying files or using confidential information.

Case in point:  Baldeo v. Majeed, NY Slip Op 03921 (2d Dep't May 19, 2017)

Here is the decision. 

Tomorrow's issue:  CPLR 3215(c) and default judgments.

The signatory's obligation to read the instrument, and a claim of notarial misconduct.

Practice point:  A party is obliged to read a document before signing it, and cannot avoid the document's effect by alleging ignorance of its contents.  A cause of action alleging that the plaintiff was induced to sign something different from what he or she thought was being signed only arises if the signatory is illiterate, blind, or not a speaker of the language in which the document is written.

A defendant establishes prima facie entitlement to judgement as a matter of law dismissing a notarial misconduct claim by presenting evidence that the plaintiff signed the document which contained the notary's acknowledgment. The plaintiff cannot raise a triable issue of fact with conclusory testimony that the he or she did not sign the document.

Case in point:   Anderson v. Dinkes & Schwitzer, P.C., NY Slip Op 03721 (2d Dep't May 10, 2017)

Here is the decision.

Tomorrow's issue:  A claim of unfair competition and misappropriation of confidential information.

CPLR Article 31, Freedom of Information Law (FOIL), and discovery.

Practice point: Article 31 is not a statute specifically exempting public records from disclosure under FOIL, and FOIL does not bar the simultaneous use of both CPLR 3101 and FOIL in order to procure discovery.

Case in point:  Smith v. Watson, NY Slip Op 03878 (1st Dep't May 11, 2017)

Here is the decision.

Tomorrow's issue:  The signatory's obligation to read the instrument, and a claim of notarial misconduct.

Dismissal of a slip- or trip-and-fall action.

Practice point:  In a slip- or trip-and-fall case, 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 proximately caused the plaintiff's injuries would be based impermissibly on speculation.

Case in point:  Amster v. Kromer, NY Slip Op 03720 (2d Dep't May 10, 2017)

Here is the decision.

Monday's issue:  CPLR Article 31, Freedom of Information Law (FOIL), and discovery.

Dismissal of an action alleging an elevator-related injury.

The Appellate Division reversed, and dismissed the complaint in this action where plaintiff was injured when, while performing an elevator inspection in defendants' building, the elevator's governor cable snapped and struck him. Plaintiff does not dispute that the work ticket summaries for the building's elevators for the prior six months do not indicate any problem with the governor cable.

Practice point:  Plaintiff's assertion that the alleged defect should have been discovered, notwithstanding the lack of indication of a problem in the work ticket summaries and the lack of complaints, is merely speculative.

Case in point:  Vilella v. Witkoff Group, LLC, NY Slip Op 03872 (1st Dep't May 11, 2017)

Here is the decision.

Tomorrow's issue:  Dismissal of a slip- or trip-and-fall action.

The doctrine of res judicata.

Practice point:  The doctrine bars the relitigation of any claims that were decided on the merits in a prior action.

Case in point:  Dipoumbi v. New York City Police Dept., NY Slip Op 03852 (May 11, 2017)

Here is the decision.

Tomorrow's issue:  Dismissal of an action alleging an elevator-related injury.

A claim of tortious interference with a contract.

Practice point:  The elements of tortious interference with contract are: (1) the existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to plaintiff. 

Case in point:  Affordable Hous. Assoc., Inc. v. Town of Brookhaven, NY Slip Op 03718 (2d Dep't May 10, 2018) 

Here is the decision.  

Tomorrow's issue:  The doctrine of res judicata.

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.