Faillure to timely service the complaint.

To avoid dismissal for failing to timely serve a complaint after a demand has been made pursuant to CPLR 3012(b), and to be entitled to an extension of time to serve the complaint under 3012(d), a plaintiff must demonstrate both a reasonable excuse for the delay and a potentially meritorious cause of action.

Here, the plaintiffs failed to demonstrate either that they had a reasonable excuse for the delay in serving their complaint, or that their causes of action were meritorious. Plaintiff's counsel did not offer a reasonable excuse by saying that an unidentified staff member "apparently" filed the complaint without showing it to counsel.  Neither is it a reasonable excuse that the letter memorializing the parties' attorneys' telephone conversation was sent to plaintiffs' counsel's former address, since the attorney never advised the Supreme Court or the defendant of his new address, and there is no requirement that a good faith letter be sent prior to moving to dismiss an action for failure to timely serve.

Plaintiffs did submit an affidavit of merit or other evidence demonstrating that their action was meritorious. The proposed complaint verified by their attorney, who did not have personal knowledge of the facts, was insufficient to demonstrate that the action was potentially meritorious. The uncertified police accident report constituted inadmissible hearsay, and did not contain any admission by the defendant against her interest bearing on how the accident occurred.

Case:  Ganchrow v. Kremer, NY Slip Op 00277 (2d Dep't January 17, 2018)

Here is the decision.

Probable cause as a defense.

Practice point:  The existence of probable cause constitutes a complete defense to a plaintiff's claims for false arrest, false imprisonment, and malicious prosecution, and defeats any claim for the same acts based on a lesser showing of negligence.

Case:  Phin v. City of New York, NY Slip Op 00333

Here is the decision.

Collateral estoppel.

Practice point:  The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling. The party seeking the benefit of preclusion  bears the burden of proving that the identical issue was necessarily decided in the prior matter, and is dispositive of the present action. The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination.

Case:  David v. State of New York, NY Slip Op 00273 (2d Dep't January 17, 208)

Here is the decision.

Proper service.

Practice point:  A process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service.

Case:  Bank of Am., N.A. v. Welga, NY Slip Op 00270 (2d Dep't January 17, 2018)

Here is the decision.

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.