Discovery and the timing of a summary judgment motion.

Practice point:  There should be a reasonable opportunity to conduct discovery prior to the determination of a summary judgment motion, pursuant to CPLR 3212(f), where further discovery might lead to relevant evidence.

Haxhijaj v. Ferrer, NY Slip Op 07416 (2d Dep't November 7, 2018)

Here is the decision.

An affirmative defense of improper service.

Practice point:  After serving an answer asserting the affirmative defense, a defendant must move for judgment within 60 days, pursuant to CPLR 3211(e).

Student note:  Service of an amended answer does not reset the 60-day period.

Bulkan v. Stepp's Towing Serv., Inc., NY Slip Op 07406 (2d Dep't November 7, 2018)

Here is the decision.

An unenforceable fees provision.

Practice point:  A contractual provision which provides that the tenant must pay attorneys' fees if it commences an action against the landlord based on the landlord's default is unconscionable and unenforceable as a penalty.

Student note:  Parties to a lease may contract for reasonable attorneys' fees provided that they are not in the nature of penalty or forfeiture. Whether a fees provision is an unenforceable penalty is a question of law. A finding of unconscionability requires a showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.

Matter of Krodel v. Amalgamated Dwellings Inc., NY Slip Op 07531 (1st Dep't November 8, 2018)

Here is the decision.

MACV.

                      

Normandy.

In Flanders Fields.

Dismissal of a Dram Shop Act claim.

The defendant was granted summary judgment dismissing plaintiff's cause of action brought under the Dram Shop Act, codified at General Obligations Law § 11-101. A witness testified that the plaintiff's assailant did not appear visibly intoxicated when the defendant served him two drinks. This evidence is enough to make out a prima facie showing that the assailant was not visibly intoxicated at the time he was served alcohol, since it is clear from the record that he was not served from that time until he attacked the plaintiff.  In opposition, the plaintiff failed to raise a triable issue of fact.

Ricaurte v. Inwood Beer Garden & Bistro Inc., NY Slip Op 07242 (1st Dep't November 9, 2018)

Here is the decision.

The doctrine of equitable estoppel.

The doctrine does not toll the limitations statute if the plaintiff had timely knowledge sufficient to put it under a duty to make inquiry and ascertain all the relevant facts prior to the expiration of the applicable limitations period.

Brean Murray, Carret & Co. v. Morrison & Foerster LLP, NY Slip Op 07238 (1st Dep't October 30, 2018)

Here is the decision.

A premature motion for summary judgment.

Pursuant to CPLR 3212[f], the motion will be denied as premature on a demonstration that facts essential to opposing the motion may lie within the movant's exclusive knowledge or control.

Marabyan v. 511 W. 179 Realty Corp., NY Slip Op 07237 (1st Dep't October 30, 2018)

Here is the decision.

Court holiday.

A § 1983 claim for deliberate indifference to medical needs.

Where the defendant-hospital contracted with the City to provide medical care to persons incarcerated at the City's detention facility, it is considered a municipality for purposes of a 42 USC § 1983 analysis. A municipal defendant is subject to statutory liability for deliberate indifference to medical needs only where the alleged injury results from the execution of an unconstitutional policy or practice.

Smith v. St. Barnabas Hosp., NY Slip Op 07189 (1st Dep't October 25, 2018)

Here is the decision.