A motion to file a late notice of claim.

Practice point:  In an action to recover damages for personal injuries resulting from a slip-and-fall, the Appellate Division reversed, and denied the plaintiff's motion, made pursuant to General Municipal Law § 50-e(5), for leave to serve a late notice of claim against nonparty New York City Housing Authority.  The Appellate Division found that the plaintiff failed to provide a reasonable excuse for his failure to timely serve the notice.  His saying that he first discovered the identity of the owner of the walkway at the § 50-h hearing is an unacceptable excuse, as it indicates a lack of due diligence in investigating the matter.  Even if the plaintiff had made an excusable error in identifying the public corporation upon which he was required to serve the notice, he did not proffer any explanation for the additional seven-month delay between the time that he discovered the error and the filing of his application for leave to serve a late notice.

Student note:  In determining whether a petitioner should be granted leave to serve a late notice of claim against a public housing authority, the court will consider, as key factors, whether the petitioner had a reasonable excuse for the delay in serving the notice; whether the public housing authority acquired actual knowledge of the essential facts of the claim within the statutory 90-day period or within a reasonable time thereafter; whether the petitioner made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the public housing authority will be substantially prejudiced by the delay in its defense on the merits, pursuant to General Municipal Law § 50-e[5] and Public Housing Law § 157[2].

Case:  Kelly v. City of New York, NY Slip Op 06640 (2d Dep't September 27, 2017)

Here is the decision.

A default judgment in a foreclosure action.

Practice point:  The Appellate Division affirmed the judgment of foreclosure and sale, finding that the defendant failed to show a reasonable excuse for his default and a potentially meritorious defense.  As the summons expressly warned that failure to respond could result in a default judgment and the loss of the defendant's home, it is not a reasonable excuse for him to assert that he had been "led to believe," by parties whom he did not name,  that he did not have to answer the complaint because he had submitted a loan modification application.

Student note:  Since the defendant failed to proffer a reasonable excuse for the default, the Appellate Division did not reach the issue of whether the defendant had demonstrated a potentially meritorious defense.

Case:  Wells Fargo Bank, N.A. v. Javier, NY Slip Op 06711 (1st Dep't September 26, 2017)

Here is the decision.

Preliminary injunctions.

Practice point:  To establish the right to a preliminary injunction, a plaintiff must prove by clear and convincing evidence (1) the likelihood of ultimate success on the merits; (2) irreparable injury absent the granting of the injunction; and (3) a balance of the equities in the plaintiff's favor, pursuant to CPLR 6301.

Student note:  The purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties.

Case:  19 Patchen, LLC v. Rodriguez, NY Slip Op 06636 (2d Dep't September 27, 2017)

Here is the decision.

Sua sponte dismissal.

Practice point:  The sua sponte dismissal of the complaint is not appealable as of right, pursuant to CPLR 5701[a][2].  However, pursuant to 5701[c], the Appellate Division may deem the notice of appeal to be a motion for leave to appeal, and grant the motion.

Case:  All Craft Fabricators, Inc. v. ATC Assoc., Inc., NY Slip Op 06595 (1st Dep't September 26, 2017)

Here is the decision.

Protected materials.

Practice point:  The CPLR establishes three categories of protected materials: (1) privileged matter, absolutely immune from discovery, pursuant to CPLR 3101[b]; (2) an attorney's work product, also absolutely immune, pursuant to CPLR 3101[c]; and (3) trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means, pursuant to CPLR 3101 [d][2].  As to each category, the protection is supported by policy considerations.

Student note:  The burden of establishing a right to protection is on the party asserting it. The protection claimed will be narrowly construed, and its application must be consistent with the purposes underlying the immunity.

Case:  Venture v. Preferred Mut. Ins. Co., NY Slip Op 06594 (1st Dep't September 26, 2017)

Here is the decision.

A claim of negligent misrepresentation.

Practice point:  The  Appellate Division dismissed the claim where defendants demonstrated, prima facie, that there was no fiduciary or special relationship with the plaintiffs in this arm's length transaction.

Student note:  A cause of action alleging negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information.

Case:  CSI Group, LLP v. Harper, NY Slip Op 06521 (2d Dep't September 20, 2017)

Here is the decision.

Res ipsa loquitur.

Practice point:  The plaintiff allegedly sustained personal injuries when a portion of the bedroom ceiling fell on her as she was sleeping. The plaintiff commenced this action against the defendant landlord to recover damages for her injuries, asserting a single cause of action premised on theories of negligent failure to maintain the premises in a reasonably safe condition, and the doctrine of res ipsa loquitur.  The defendant established, prima facie, that the doctrine of res ipsa loquitur is inapplicable by submitting evidence demonstrating that the plaintiff had been residing at her apartment for more than one year at the time of the incident, and that the defendant did not have the requisite exclusive control over the allegedly defective condition. In opposition, the plaintiff failed to raise an issue of fact as to the applicability of the doctrine, and so plaintiff cannot rely on res ipsa loquitur at trial.

Student note: The doctrine of res ipsa loquitur is a rule of evidence that permits an inference of negligence to be drawn solely from the happening of an accident where the plaintiff can show that: (1) the event is of the kind that ordinarily does not occur in the absence of someone's negligence; (2) the instrumentality that caused the injury is within the defendant's exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff.

Case:  Correa v. Matsias, NY Slip Op 06520 (2d Dep't September 20, 2017)

Here is the decisiion.

Forum non conveniens.

Practice point:  On a motion  to dismiss the complaint on the ground of forum non conveniens, pursuant to CPLR 327, the movant must demonstrate the relevant private or public interest factors that militate against a New York court's acceptance of the litigation. Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses, the availability of an alternative forum, the situs of the actionable events, and the burden which will be imposed upon the New York courts, with no one single factor controlling.

Student note:  A court's determination of a motion to dismiss on the ground of forum non conveniens will not be disturbed on appeal unless the court failed to properly consider all the relevant factors or improvidently exercised its discretion in deciding the motion.

Case:  Park v. Heather Hyun-Ah Cho, NY Slip Op 06519 (2d Dep't September 20, 2017)

Here is the decision.

Documentary evidence on a motion to dismiss.

Practice point:  An unambiguous contract provision may qualify as documentary evidence within the meaning of CPLR 3211(a).

Student note:  To prevail on a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), a defendant must submit documentary evidence that utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Case:  13 Throop, LLC v. Triumph, the Church of the New Age, NY Slip Op 06516 (2d Dep't September 20, 2017)

Here is the decision.

Insincere promises and fraud.

Practice point:  An insincere promise to perform a contractual obligation is not actionable as fraud.

Student note:  Absent this rule, contract claims would be routinely pleaded in the alternative as fraud, eroding the distinction between the two causes of action.

Case:  Cronos Group Ltd. v. XComIP, LLC, NY Slip Op 06515 (1st Dep't September 19, 2017)

Here is the decision.

A 3211(a) motion.

Practice point:  The court may not treat the motion as one for summary judgment without having given the parties notice that it intends to do so, pursuant to CPLR 3211(c).

Student note: On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the complaint must be construed liberally, the factual allegations must be deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences.  In opposition to the motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve claims that are inartfully pleaded but potentially meritorious.

Case:  Christ the Rock World Restoration Church Intl., Inc. v. Evangelical Christian Credit Union, NY Slip Op 06426 (2d Dep't September 13, 2017)

Here is the decision.