Applying for leave to serve a late notice of claim.

Practice point:  General Municipal Law § 50-e(7) provides, in pertinent part, that "[w]here the application is for leave to serve a late notice of claim, it shall be accompanied by a copy of the proposed notice of claim." Here, no proposed notice of claim was submitted with the cross motion. This was sufficient justification by itself to deny the cross motion.

Student note:  In any event, the plaintiffs did not demonstrate a reasonable excuse for their failure to serve a timely notice of claim upon the Fire Department. The plaintiffs' unsubstantiated claim of law office failure by their former attorney does not constitute a reasonable excuse for the failure to serve a timely notice of claim.

Case:  Grasso v. Nassau County, NY Slip Op 05674 (2d Dept. 2013).

Here is the decision.

Tuesday's issue: Conditional language in a purported admission.

Assignments.

Practice point:  Under New York law, claims are generally assignable. No special form or language is necessary to effect an assignment as long as the language shows the intention of the owner of a right to transfer it.

Student note:  Contrary to the defendant's contention, it was not necessary for the plaintiff to enter into a liquidating agreement with the assignor, as the amended complaint sufficiently alleges facts which, if proven, would establish that the assignor had viable claims for contractual and common-law indemnification against the defendant in the absence of such an agreement.

Case:  Constructamax, Inc. v. Dodge Chamberlin Luzine Weber, Assoc.Architects, LLP, NY Slip Op 05671 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Applying for leave to serve a late notice of claim.

Unsealing court records.

Practice point:  New York courts are reluctant to allow the sealing of court records even where both sides to the litigation have asked that the records be sealed. The presumption of the benefit of public access to court proceedings takes precedence, and sealing of court papers is permitted only to serve compelling objectives, such as when the need for secrecy outweighs the public's right to access. Here, the Supreme Court did not specify the grounds for sealing the record, and it did not issue a finding of good cause. Accordingly, the Appellate Division directed that the record be unsealed.

Student note:  22 NYCRR 216.1(a), states, in pertinent part, that "a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof."

Case:  Matter of Holmes v. Winter, NY Slip Op 05666 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue:  Assignments.

Motions to consolidate or for a joint trial.

Practice point:  Where common questions of law or fact exist, a motion to consolidate or for a joint trial pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion.

Student note:  Here, given the plaintiff's allegations that injuries that he sustained in the automobile accident were exacerbated by the work-related accident, in the interest of justice and judicial economy, and to avoid inconsistent verdicts, the two actions should be tried jointly.

Case: Cieza v. 20th Ave. Realty, Inc., NY Slip Op 05610 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Unsealing court records.

Default judgments and law office failure.

Practice point:  To successfully oppose a motion for leave to enter a default judgment based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its delay and the existence of a potentially meritorious defense. In its discretion, the court may accept law office failure as an excuse, pursuant to CPLR 2005. The claim of law office failure must be supported by  a detailed and credible explanation of the default or defaults at issue. Law office failure should not be excused where allegations of law office failure are conclusory and unsubstantiated.

Student note:  The Appellate Division determined that the Supreme Court properly exercised its discretion in deeming the defendant's answer, which was annexed to its opposition papers to the plaintiff's motion, to be served, even in the absence of a formal notice of cross motion seeking leave to serve a late answer.

Case: Blake v. United States of America, NY Slip Op 05609 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Motions to consolidate or for a joint trial.

Punitive and compensatory damages.

Practice point:  The court granted that branch of the defendants' cross motion which was for summary judgment dismissing the plaintiff's claim for punitive damages. In opposition to the defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether the defendants' alleged conduct was so gross, wanton, or willful, or of such high moral culpability, as to warrant an award of punitive damages.
   The court also granted that branch of the defendants' cross motion which was for an award of costs and attorney's fees pursuant to CPLR 8303-a(c). The plaintiff's claim for punitive damages was asserted only to harass the defendants, and an award of costs and attorney's fees is warranted.

Student note:   As the complaint only seeks $3,500 in compensatory damages, the Supreme Court, in its discretion, may remove the action to a lower court pursuant to CPLR 325(d).

Case:  Baxter v. Javier, NY Slip Op 05605 (2d Dept. 2013).

Here is the decision.

Monday's issue: Default judgments and law office failure.

Conveyance of a property by deed.

Practice point:  Real Property Law § 240(3) provides that "[e]very instrument creating [or] transferring . . . real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law." Where a deed admits more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances.

Student note:  Courts may, as a matter of interpretation, carry out the intention of a contract by transposing, rejecting, or supplying words to make the meaning of the contract more clear. However, such an approach is appropriate only in those limited instances where some absurdity has been identified or the contract would otherwise be unenforceable, either in whole or in part.

Case:  Al's Atl., Inc. v. Shatma, LLC, NY Slip 05604 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Punitive and compensatory damages.

The first-in-time rule.

Practice point:  New York courts generally follow the rule, which provides that the court which has first taken jurisdiction is the one in which the matter should be determined, and it is a violation of the rules of comity to interfere.

Student note:  When considering whether to dismiss a later-filed action, courts will determine whether there is a sufficient identity of parties. In fact, substantial, not complete, identity of parties is all that is required to invoke CPLR 3211(a)(4). Where, as here, a plaintiff seeks the same damages for the same alleged injuries relating to the same transaction from close corporate affiliates, a court may properly make a finding that parties have substantially similar identities sufficient to invoke the rule.

Case:  Syncora Guar. Inc. v. J.P. Morgan Sec., LLC, NY Slip Op 05602 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Conveyance of a property by deed.

Motion for summary judgment in lieu of a complaint.

Practice point:  On a CPLR 3213 motion, a plaintiff may supplement its papers in response to a defendant's arguments in order to establish its entitlement to summary judgment in lieu of a complaint. Nothing that can be cured merely by adding papers should result in a denial of the motion, unless it is a denial with leave to renew on proper papers, pursuant to Siegel. Mere omissions from the affidavits that can be rectified by filing and serving additional affidavits should be cured by a continuance or adjournment in order for the additional affidavits to be served and filed.

Student note: If the motion is denied, the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise.

Case:  Sea Trade Mar. Corp. v. Coutsodontis, NY Slip Op 05599 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: The first-in-time rule.

An accountant's negligent misrepresentations.

Practice point:  Accountants may be held liable for negligent misrepresentations made to third parties with whom they have no contractual relationship, but who have relied to their detriment on inaccurate financial statements prepared by the accountant. In order to establish such liability, the relationship between the accountant and the party must be found to approach privity, through a showing that the following prerequisites are satisfied: (1) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes, (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants' understanding of that party or parties' reliance.

Student note:   Here, the Appellate Division found that allegations supporting the cause of action to recover damages for negligent misrepresentation did  not satisfy the third prong. Viewing the complaint in the light most favorable to the plaintiff, as amplified by the evidence submitted by the plaintiff in opposition to the defendant's motion, the complaint failed to allege some conduct by the defendant linking it to the plaintiff which evinced the defendant's understanding of the plaintiff's reliance. Accordingly, the Supreme Court should have granted that branch of the defendant's motion to dismiss.

Case:  Signature Bank v. Holtz Rubenstein Reminick, LLP, NY Slip Op 05564(2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Motion for summary judgment in lieu of a complaint.

Leave to enter a default judgment.

Practice point:  On a motion for leave to enter a default judgment pursuant to CPLR 3215, a plaintiff is required to file proof of: (1) service of a copy or copies of the summons and the complaint, (2) the facts constituting the claim, and (3) the defendant's default. To demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine that a viable cause of action exists. CPLR 3215(f) expressly provides that a plaintiff may satisfy this requirement by submitting the verified complaint. To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense.

Student note: If, as was the case here, the defendant is a domestic corporation and was originally served with the summons and complaint by personal delivery to the Secretary of State, pursuant to Business Corporation Law § 306[b]), a plaintiff is also required to serve the defendant a second time, by first-class mail at its last known address, pursuant to CPLR 3215[g][4][i].

Case:  Fried v. Jacob Holding, Inc., NY Slip Op 05555 (2d Dept. 2013).

Here is the decision.

Monday 's issue: An accountant's negligent misrepresentations.