Motions in limine.

Practice point:  An issue of material fact cannot be the basis for granting a motion in limine because it is an inappropriate device for obtaining summary relief.

Case:  Casalini v. Alexander Wolf & Son, NY Slip Op 00246 (1st Dep't January 16, 2018)

Here is the decision.

Service, and time to answer.

Practice point:  Service pursuant to CPLR 308(2) is not complete until 10 days after the filing of the affidavit of service. CPLR 320 provides that when service is made pursuant to CPLR 308(2), the defendant has 30 days from the time service is complete to answer the complaint.

Case:  Watson v. City of New York, NY Slip Op 00245 (1st Dep't January 16, 2018)

Here is the decision.

An action to quiet title.

In order to maintain the cause of action, a plaintiff must allege (1) actual or constructive possession of the property, and (2) a removable cloud on the property, which is an apparent title to the property, such as in a deed or other instrument, that is invalid or inoperative.

Case:  Cudjoe v. Boriskin, NY Slip Op 00117 (2d Dep't January 10, 2017)

Here is the decision.

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.