A fall on the stairs.

The Appellate Division reversed the granting of defendant's motion for summary judgment, and reinstated the complaint in this action where plaintiff alleges that she was injured when she fell as the result of a loose step on a staircase in a building owned by defendant.

By submitting deposition testimony that no repairs were made to the staircase since defendant acquired the building, defendant made a prima facie showing that it did not cause or create the loose step.

However, plaintiff's expert raised a triable issue of fact on this issue. In response to defendant's expert's opinion that "[a]ny motion in the step[] is imperceptible," plaintiff's expert, who inspected the area approximately one month after the accident, "observed that the tread moved and was unstable." Plaintiff's expert opined that the step had been repaired using a rubber adhesive applied to the tread of the step, that the repair was done improperly and was inadequate, and that the "condition had been present for a long period of time." Defendant's expert failed to provide any rebuttal to this opinion, and defendant did not reply to plaintiff's expert's opinion when it was raised in opposition to defendant's motion for summary judgment.

Student note:  A defendant moving for summary judgment in a case involving an alleged dangerous condition has the initial burden of making a prima facie showing that it neither created nor had actual or constructive notice of the unsafe condition. When the defendant establishes prima facie entitlement to judgment as a matter of law, the burden shifts to the plaintiff to raise a triable issue of fact.

Case:  Del Marte v. Leka Realty LLC, NY Slip Op 08626 (1st Dep't December 12, 2017)

Here is the decision.

A municipality's liability.

Practice point:  A municipality that has enacted a prior written notice law is not subject to liability for injuries caused by a defect which comes within the ambit of the law unless it has received written notice of the alleged defect or dangerous condition, or there is an applicable exception to the written notice requirement.  There are exceptions to the prior written notice requirement where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon the municipality.

Case:  Dibble v. Village of Sleepy Hollow, NY Slip Op 08503 (2d Dep't December 6, 2017)

Here is the decision.

A viable claim for an equitable accounting.

Practice point:  Where the complaint alleges a fiduciary relationship and further alleges that the defendant did not provide a full accounting, even after protracted discovery, the plaintiff is entitled to pursue its claim for an equitable accounting and related costs.

Case:  Mohinani v. Charney, NY Slip Op 08608 (1st Dep't December 7, 2017)

Here is the decision.

Discovery sanctions.

Practice point:  If a party refuses to obey an order for disclosure or willfully fails to disclose information, the court may dismiss the action, pursuant to CPLR 3126(3).  While, whenever possible, actions should be resolved on the merits, a court may strike a pleading on a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct.

Case:  Corex-SPa v Janel Group of N.Y., Inc., NY Slip Op 08502 (2d Dep't December 6, 2017)

Here is the decision.

The business records exception to the hearsay rule.

Practice point:  In order to demonstrate the admissibility of the records, pursuant to CPLR 4518(a), the affiant must attest that he or she is personally familiar with the record-keeping practices and procedures of the party invoking the exception.

Case:  Bank of N.Y. Mellon v. Alli, NY Slip Op 08501 (2d Dep't December 6, 2017)

Here is the decision.

An evevator accident.

The Appellate Division affirmed denial of defendant's summary judgment motion in this action where plaintiff alleges that she was injured when the elevator in a building owned by defendant fell from the 20th to the 11th floor.  While defendant demonstrated a lack of actual or constructive notice of a defect, plaintiff can rely on the doctrine of res ipsa loquitur to prove negligence.

Practice point:  A free-fall or sudden drop of an elevator does not ordinarily happen in the absence of negligence.

Student note:  Plaintiff submitted evidence to support each of the elements of res ipsa loquitur, namely, (1) that the occurrence would not ordinarily occur in the absence of negligence; (2) that the injury was caused by an agent or instrumentality within the exclusive control of defendant; and (3) that no act or negligence on the plaintiff's part contributed to the happening of the event.  The fact that a passenger activated the emergency stop button does not affect defendant's exclusive control of the elevator.

Case:  Colon v. N.Y. City Hous. Auth., NY Slip Op 08463 (1st Dep't December 5, 2017)

Here is the decision.

Service of process.

Practice point:  Pursuant to CPLR 308(2), service is improper where the process server did not mail the supplemental summons to either of the defendants.  Jurisdiction is not acquired pursuant to the statute unless both the delivery and mailing requirements have been strictly complied with.

Student note:  When the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents.

Case:  Joseph v. AACT Fast Collections Servs., Inc., NY Slip Op 08357 (2d Dep't November 29, 2017)

Here is the decision.

A failed motion to vacate.

The Appellate Division affirmed denial of the motion to vacate the default judgment, rejecting the argument based on CPLR 5015(a)(1). Defendant's opinion that he had not been properly served, and, therefore, was free to ignore the suit, a copy of which he received in the mail, was not reasonable.

Practice point:  A defendant's conclusory denials that service did not occur are insufficient to rebut the presumption of service as detailed in the affidavit of service. Neither are they sufficient to warrant a traverse hearing.

Case:  Colebrooke Theat. LLP v. Bibeau, NY Slip Op 08441 (1st Dep't November 30, 2017)

Here is the decision.

Unjust enrichment.

The cause of action requires a  showing that (1) the defendant was enriched, (2) at the expense of the plaintiff, and (3) that it would be inequitable to permit the defendant to retain that which is claimed by the plaintiff. 

Student note:  The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what the plaintiff seeks to recover.

Case:  Demetriades v. Kalpakis, NY Slip Op 08349 (2d Dep't November 29, 2017)

Here is the decision.

A referee's findings.

Practice point:  Where a referee's findings are supported by the record, the court will confirm the referee's report and adopt the recommendation made therein.  On appeal, the referee's credibility determinations are entitled to deference because the referee was able to see and hear the witnesses and observe their demeanor.

Case:  Chambliss v. University Group Med. Assoc., NY Slip Op 08347 (2d Dep't November 29, 2017)

Here is the decision.

The judicial proceedings privilege.

The Appellate Division affirmed dismissal of the defamation action, finding that the allegedly defamatory statements were pertinent to a previous action brought by defendant against plaintiff, and, therefore, absolutely protected. The statement in defendant's complaint alleging that plaintiff fraudulently awarded himself an employment contract was obviously related to the fraud allegations. The statement regarding the authenticity of a power of attorney related to plaintiff's ability to award himself the contract, and so it was pertinent to the allegation that plaintiff engaged in self-dealing.

Student note:  Public policy favors having litigants speak freely in judicial proceedings.

Case:  Peters v. Coutsodontis, NY Slip Op 08308 (1st Dep't November 28, 2017)

Here is the decision.