Appeals as of right.

Practice point:  No appeal lies as of right from an order that does not decide a motion made on notice, pursuant to CPLR 5701[a][2].

Case:  American Home Mtge. Servicing, Inc. v. Kaplan, NY Slip Op 00125 (2d Dep't January 10 2018)

Here is the decision.

An insufficient legal malpractice claim.

The conclusory allegation that, but for defendants' negligence, plaintiff would have successfully opposed the summary judgment motion and defended the underlying action is insufficient to support the claim, because the evidentiary material reveals that plaintiff had no viable defense.

Case:  Ladera Partners, LLC v. Goldberg, Scudieri & Lindenberg, P.C., NY Slip Op 00104 (1st Dep't January 9, 2018)

Here is the decision.

Police accident reports.

Practice point:  A party's statements memorialized in a police accident report may constitute admissions, and, on a summary judgment motion, conflicting statements containing a different version of the facts present only a feigned issue of fact.

Case:  Colon v. Vals Ocean Pac. Sea Food, Inc., NY Slip Op 00097 (1st Dep't January 9, 2018)

Here is the decision.

Labor Law claims.

The Appellate Division determined that the motion court correctly dismissed the § 241(6) claim. Plaintiff fell when a chain caught his foot, and not because of a slippery condition or foreign substance.  Therefore, Industrial Code § 23-1.7(d) is not implicated.  In addition, plaintiff fell from a tractor trailer, and not in a passageway, and so § 23-1.7(e)(1) does not apply. Finally, the metal bars welded to the trailer's body for use as a ladder or stairway are not a single ladder within the meaning of § 23-1.21(c).

The Appellate Division found that the motion court should not have granted, sue sponte, summary judgment to  plaintiff on the § 240(1) claim.  While plaintiff was injured while engaged in an enumerated activity, there are questions of fact as to whether plaintiff was the sole proximate cause of the accident.

Case:  Cross v. Noble Ellenburg Windpark, LLC, NY Slip Op 00092 (1st Dep't January 9, 2018)

Here is the decision.

Tenants in common and duty of care.

Practice point:  Tenants in common have a quasi-trust or fiduciary relationship with regard to the property they commonly hold.

Case:  Pichler v. Jackson, NY Slip Op 00077 (1st Dep't January 4, 2018)

Here is the decision.

Res ipsa loquitur.

Practice point:  In this action for damages resulting from an accident involving a misleveled elevator, the applicability of the doctrine of res ipsa loquitur is not overcome by evidence that the elevator was regularly inspected and maintained.

Case: Dzidowska v. Related Cos., LP, NY Slip Op 00074 (1st Dep't January 4, 2018)

Here is the decision.

Statute of limitations.

Practice point:  The plaintiff's filing of the motion to amend and annexed proposed amended pleadings tolls the applicable statute of limitations.

Case:  Abreau v. Casey, NY Slip Op 00067 (1st Dep't January 4, 2018)

Here is the decision.

The defendant's burden on a summary judgment motion.

Practice point:  A defendant who merely points to perceived gaps in the plaintiff's proof does not establish entitlement to summary judgment.

Case:  Hairston v. Liberty Behavioral Mgt. Corp., NY Slip Op 00004 (1st Dep't January 2, 2018)

Here is the decision.

A vehicular accident and negligence.

Practice point:  Crossing a double yellow line into the opposing traffic lane, in violation of Vehicle and Traffic Law § 1126(a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver's own making.

Student note:  A driver is not required to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic.

Case: Browne v. Logan Bus Co., Inc., NY Slip Op 09111 (2d Dep't December 27, 2017)

Here is the decision.

Denial of a motion to renew.

The Appellate Division affirmed the denial of the motion since it was not based on new facts that would change the prior determination, as required by CPLR 2221[e].  The purportedly new facts concerning the failure to timely file a satisfaction of judgment pursuant to a prior stipulation were wholly unrelated to the court's prior determination that the stipulation was not the product of duress. In addition, the movant, under the guise of renewal, improperly advances a new legal theory - breach of the stipulation - rather than the basis of the original motion, which was the stipulation's invalidity.

Case:  Atlas v. Smily, NY Slip Op 09248 (1st Dep't December 28. 2017)

Here is the decision.

Waiver of defenses.

Practice point: Because defendant failed to timely raise defenses based on service of process and standing in an answer or pre-answer motion to dismiss, those defenses are waived, pursuant to CPLR 3211[e].

Student note:  In any event, the affidavit of service of the summons and complaint constitutes prima facie evidence of proper service, which defendant failed to rebut with anything more than conclusory denials of receipt.

Case:  U.S. Bank N.A. v. Thomas, NY Slip Op 09241 (1st Dep't December 28, 2017)

Here is the decision.