An affidavit submitted in oppositon to summary judgment.

Practice point:   The motion court may consider the affidavit even though it is notarized out-of-state and lacks a certificate of conformity, pursuant to CPLR 2309(c).

Case:  Redlich v. Stone, NY Slip Op 05676 (1st Dep't July 13, 2017)

Here is the decision.

Tomorrow's issue:  An emailed settlement agreement.

Motions to compel or stay arbitration.

Practice point:  On the motion, the court will first determine whether the parties have agreed to submit their disputes to arbitration, and, if so, whether this dispute comes within the scope of their agreement.  The court will apply ordinary state-law principles that govern the formation of contracts.

Case: Degraw Constr. Group, Inc. v. McGowan Bldrs., Inc., NY Slip Op 05580 (2d Dep't July 12, 2017)  

Here is the decision.

Monday's issue:  An affidavit submitted in opposition to summary judgment.

Documentary evidence and dismissal.

Practice point:  A motion to dismiss a complaint based upon documentary evidence under CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence for the purpose of a motion to dismiss, the evidence must be unambiguous and of undisputed authenticity. Affidavits, deposition testimony, and letters are not considered documentary evidence within the meaning of the statute. 

Case:  Board of Mgrs. of 100 Congress Condominium v. SDS Congress, LLC, NY Slip Op 05414 (2d Dep't July 5, 2017) 

Here is the decision. 

Tomorrow's issue:  Motions to compel or stay arbitration.

Conspiracy to commit fraud.

Practice point:  New York does not recognize a cause of action for conspiracy to commit fraud.

Case:  Maheras v. Awan, NY Slip Op 05309 (1st Dep't June 29, 2017)

Here is the decision. 

Tomorrow's issue:  Documentary evidence and dismissal.

Specific performance as to real property.

Practice point:  To prevail on a cause of action for specific performance of a contract for the sale of real property, a purchaser-plaintiff must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations; that the vendor was able to convey the property; and that there is no adequate remedy at law.

Case:  1107 Putnam, LLC v. Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., NY Slip Op 05411 (2d Dep't July 5, 2017)

Here is the decision.

Tomorrow's issue:  Conspiracy to commit fraud.

A defendant's cross-motion for summary judgment dismissing the complaint.

The plaintiff alleges that he was riding a bicycle in Queens when a minivan owned and operated by the defendant pulled out of a driveway and struck him. Later that evening, the plaintiff returned to the accident site, identified the minivan he believed was involved in the accident, and recorded its license plate number. The plaintiff commenced this action to recover damages for personal injuries. The defendant cross-moved for summary judgment dismissing the complaint, contending that the plaintiff's deposition testimony revealed that the plaintiff would be unable to prove that the defendant's vehicle was the vehicle involved in the accident. The Supreme Court denied the cross motion, concluding that the defendant had failed to establish, prima facie, that his vehicle was not involved in the accident. The Appellate Division affirmed.

Practice point:  A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case. Here, the defendant failed to make a prima facie showing of his entitlement to judgment as a matter of law because he offered no evidence to affirmatively demonstrate that his vehicle was not the vehicle that struck the plaintiff. Although the defendant pointed to alleged gaps in the plaintiff's proof revealed by the plaintiff's deposition testimony, this was insufficient to satisfy his initial burden. Since the defendant failed to sustain his prima facie burden, the Supreme Court properly denied his cross motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers.

Case:  Feldberg v. Skorupa, NY Slip Op 05199 (2d Dep't June 28, 2017)

Here is the decision

Tomorrow's issue:  Specific performance as to real property.

A claim of libel per se.

After the plaintiff installed a custom home theater system in the defendant's home, the defendant posted a review of the plaintiff's services on the Internet website Yelp.com. The plaintiff commenced this action, alleging that the review constituted libel per se. The defendant moved to dismiss, pursuant to CPLR 3211(a)(7). The Supreme Court granted the defendant's motion, and the Appellate Division affirmed.

Practice point:  A libel action cannot be maintained unless it is premised on published assertions of fact.  Whether an allegedly defamatory statement constitutes actionable fact or nonactionable opinion is a question of law to be resolved by the courts. In resolving that question, rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the courts should consider the content of the communication as a whole, and look to the over-all context in which the assertions were made in order to determine  whether a reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff.

Here, given the context in which the challenged statements were made, and viewing the content of the review as a whole, a reasonable reader would believe that the review's writer was a dissatisfied customer who was expressing an opinion.

Case:  Crescendo Designs, Ltd. v. Reses, NY Slip Op 05198 (2d Dep't June 28, 2017)

Here is the decision.

Monday's issue:  A defendant's cross-motion for summary judgment dismissing the complaint.

A landowner's duty of care.

Practice point:  A landowner has a duty to exercise reasonable care in maintaining the property in a safe condition under all circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property.  However, there is no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by persons using the property.

Case:  Commender v. Strathmore Ct. Home Owners Assn., NY Slip Op 05197 (2d Dep't June 28, 2017)

Here is the decision.

Tomorrow's issue:  A claim of libel per se.

An action in tort against the Transit Authority.

Practice point:  Service of a notice of claim within 90 days of accrual of the claim is a condition precedent to an action sounding in tort against the MTA and the Transit Authority.

Case:  Brunache v. MV Transp., Inc., NY Slip Op 05196 (2d Dep't June 28, 2017)

Here is the decision.

Tomorrow's issue:  A landowner's duty of care.

Precluding photos of an accident site.

In this personal injury action, plaintiff alleged that he was on foot, crossing the street, when he fell into a sinkhole.  Hi's theory of the case is that the City and its pavement restoration contractor, a third-party defendant, performed the work that resulted in the sinkhole.

At trial, the court precluded plaintiff from introducing into evidence photographs of the sinkhole, taken two weeks after the accident, finding that they did not fairly and accurately depict the way the accident site looked on the date of the accident.

The Appellate Division said that the trial court erred in precluding the photos.

Practice point:  Plaintiff authenticated the photos at his deposition, and testimony at trial could have explained how and why the scene depicted in the photos did or did not differ from  the site on the day of the accident. Excluding the photos meant that plaintiff was not able to show the jury the hole into which he allegedly fell.

Case:  Gonzalez v. City of New York, NY Slip Op 05180 (1st Dep't June 27, 2017)

Here is the decision.

Tomorrow's issue:  An action in tort against the Transit Authority.

Dismissal for lack of personal jurisdiction.

The Appellate Division reversed, and dismissed the complaint, finding that defendants did not conduct activities in New York, thereby invoking the benefits and protections of its laws and establishing personal jurisdiction. The telephone and email communications between the Latvian defendants and plaintiff's New York office, concerning a contemplated association in the acquisition of a Latvian bank, with no presence in New York, do not constitute the transaction of business in New York.

In addition, defendants never entered New York in connection with their dealings with plaintiff; the parties' electronic communications also ran between defendants and plaintiff's London office; plaintiff traveled to Latvia in connection with this matter; and, if the bank were acquired, the parties' contemplated association would be centered in Latvia.

Practice point:  Even if New York had personal jurisdiction existed over defendants, the Appellate Division would dismiss on the ground of forum non conveniens, in view of Latvia's being the principal situs of the underlying transaction, the pendency in Latvia of an earlier-filed action between the same parties concerning this dispute, and the likely applicability of Latvian law under a grouping-of-contacts analysis.

Case:  Ripplewood Advisors, LLC v. Callidus Capital SIA, NY Slip Op 05157 (1st Dep't June 22, 2017)

Here is the decision.

Tomorrow's issue:  Precluding photos of an accident site.