Reply papers.

Practice point:  The function of reply papers is to address arguments made in opposition to the movant's position.  

The motion court properly considered a renewed power of attorney submitted by the plaintiff in reply to the appellants' opposition to the motion. The renewed power of attorney was offered in response to the appellants' argument that the plaintiff's affidavit of merit was invalid because it was signed after expiration of the originally submitted power of attorney. The renewed power of attorney merely clarified that, at the time the affidavit was signed, the affiant continued to have the authority to act on the plaintiff's behalf.

Bank of N.Y. Mellon v. Hoshmand, NY Slip Op 00818 (2d Dep't February 7, 2018)

Here is the decision.

Admissibility of documentary evidence.

To be considered on a motion for summary judgment, documentary evdience must be in admissible form. Records that are not certified are inadmissible hearsay, as are unsworn letters from attorneys.

Atlantic Fin., LLC v. Xinlei Lin, NY Slip Op 00817 (2d Dep't February 7 2018)

Here is the decision.

Court holiday.

Slips and falls.

Practice point:  The mere placement of a wet floor warning sign does not automatically absolve a defendant of negligence.

Case:  Hamilton v 3339 Park Dev. LLC, NY Slip Op 00799 (1st Dep't February 6, 2018)

Here is the decision.

Venue.

Pursuant to CPLR 503(a), "the place of trial shall be in the county in which one of the parties resided when [the action] was commenced." For venue purposes, a residence is where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency. Residence means living in a particular place, while domicile means living in that locality with the intent to make it a fixed and permanent home. For the purpose of determining venue, a party may have more than one residence .

To prevail on a motion to change venue, pursuant to CPLR 510(1), the defendant must show that the plaintiff's choice of venue is improper, and that the defendant's choice of venue is proper.

Pursuant to CPLR 510(3), the court, on notice of motion, may change the venue of an action where "the convenience of material witnesses and the ends of justice will be promoted by the change."  The movant must provide information about the prospective witnesses, including, but not limited to, their names and addresses, disclose the facts about which the proposed witnesses will testify at the trial, represent that the prospective witnesses are willing to testify, and state that, absent a change, the witnesses would be inconvenienced.

Case:  Bikel v. Bakertown Realty Group, Inc., NY Slip Op 00540 (2d Dep't January 31, 2018)

Here is the decision.

A late notice of claim in a medical malpractice action.

Under General Municipal Law § 50-e(1)(a), the notice must be served on the public corporation within 90 days after the claim arises, but a court may, in its discretion, permit a plaintiff to serve a late notice of claim. In making this determination, the court may consider, among other things, whether the defendant had actual knowledge of the essential facts constituting the claim within the statutory period, or a reasonable time thereafter. It is not necessary that the defendant had knowledge of a specific legal theory. A plaintiff will not be penalized for waiting for medical records to file a complete and accurate notice of claim.

Case:  Matter of Townson v. New York City Health & Hosps. Corp., NY Slip Op 00607 (1st Dep't February 1 2018)

Here is the decision. 

An out-of-possession landlord's liability.

An out-of-possession landlord that has assumed the obligation to make repairs to its property cannot be held liable for injuries caused by a defective condition at the property unless it either created the condition or had actual or constructive notice of it.

Case:  Amster v. Kromer, NY Slip Op 00538 (2d Dep't January 31, 2018)

Here is the decision.

Inconvenient forum (CPLR 327).

The Appellate Division affirmed denial of defendants' motion to dismiss, pursuant to CPLR 327(a), in this action that arises from a bus-pedestrian accident that occurred in New York.  All the parties are New Jersey residents, but plaintiff received medical treatment, both emergency and continuing, in New York. Proposed witnesses, including eyewitnesses, are New York residents, as is the responding police officer. Given the relative proximity between New York and New Jersey, and the regularity with which defendants cross from one state to the other, no hardship will result from litigating the action in New York.

Case:  Hull v. Camacho, NY Slip Op 00621(1st Dep't February 1, 2018)

Here is the decision.

Causes of action for declaratory judgment and breach of contract.

Practice point:  These two causes of action implicate different legal concepts involving different alleged harm and different forms of relief. The purpose of the declaratory judgment action is to declare parties' rights and other legal relations in a justiciable controversy, so as to stabilize their legal relationship. If the plaintiff is not entitled to the declaration sought, the remedy is not a dismissal of the complaint, but a declaration of the rights of the parties, whatever those rights may be. By contrast, a breach of contract action calls upon the court to determine questions of breach, liability, and, in the event of liability, money damages. Although the prayers for relief are different for declaratory judgment and breach of contract actions, both grounds may be pursued by a plaintiff in a single complaint, as CPLR 3014 permits the pleading of alternative and inconsistent causes of action.

Case:  159 MP Corp. v. Redbridge Bedford, LLC, NY Slip Op 00537 (2d Dep't January 31, 2018)

Here is the decision.

An insufficient fraud claim.

Practice point:  A cause of action for fraud is not sufficiently stated where the only alleged fraud relates to a breach of contract.

Case:  Springut Law PC v. Rates Tech. Inc. NY Slip Op 00525 (1st Dep't January 30, 2018)

Here is the decision.

Timely service.

Plaintiff's purported service of the summons and complaint pursuant to CPLR 308(4) was defective, as defendant submitted unrebutted evidence that the place where service was attempted and where the summons and complaint were affixed was not his dwelling place or usual place of abode. Still, dismissal was denied and plaintiff's cross-motion to extend the time to serve was granted.  Service of a summons and complaint must be made within 120 days after the commencement of the action, pursuant to CPLR 306-b). If service is not timely made, the court, upon motion, must dismiss the action without prejudice, or, upon good cause shown or in the interest of justice, extend the time for service.  Here, while the action was timely commenced, the statute of limitations had expired when plaintiff cross-moved for relief, the timely service of process was subsequently found to have been defective, and the defendant had actual notice of the action within 120 days of commencement of the action. In addition, there was no prejudice to defendant attributable to the delay in service.

Case:  Chan v. Zoubarev, NY Slip Op 00402 (2d Dep't January 24, 2018)

Here is the decision.