Legal malpractice.

In order to sustain a cause of action for legal malpractice, the plaintiff must show that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. An attorney's conduct or inaction is the proximate cause of a plaintiff's damages if but for the attorney's negligence the plaintiff would have succeeded on the merits of the underlying action. or would not have sustained 'actual and ascertainable damages. A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing that he did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, or that the claimed departure did not proximately cause the plaintiff to sustain damages.

D'Angelo v. Kujawski, NY Slip Op 05200 (2d Dep't October 23, 2024)

Here is the decision.

Discovery.

CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution . . . of an action." The phrase "material and necessary" should be interpreted liberally, and the test is one of usefulness and reason. It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims, and unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy. The supervision of discovery and the setting of reasonable terms and conditions for disclosure are within the sound discretion of the trial court.

The Supreme Court providently exercised its discretion in granting the subject branch of the plaintiff's prior motion to the extent of directing the defendants to produce documents related to all gap-related studies, reports, accidents, and/or injuries occurring anywhere within the New York City subway system for three years prior to the date of the accident at issue. The plaintiff established that access to these documents may yield information material and necessary to the prosecution of the action, including information related to the defendants' notice of the alleged dangerous condition that caused her accident and their duty to the plaintiff.

Chacon v. New York City Tr. Auth., NY Slip Op 05199 (2d Dep't October 23, 2024)

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Motions to dismiss.

A motion to dismiss pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations and conclusively establishes a defense to the claims as a matter of law. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case. In order to be considered documentary, the evidence must be unambiguous and of undisputed authenticity. Letters, emails, and affidavits are not documentary evidence. An affidavit is not documentary evidence because its contents can be controverted by other evidence, such as another affidavit.

Cajahuanca v. City of New York, NY Slip Op 05198 (2d Dep't October 23, 2024)

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Motions to renew.

The Appellate Division determined that the Supreme Court providently exercised its discretion in denying petitioner's renewal motion, pursuant to CPLR 2221[e][2].  Petitioner failed to support its application with new facts or information which could not have been readily and with due diligence made part of the original motion, and the court properly concluded that petitioner's submissions would not change its prior determination.

Matter of Barons Media, LLC v. Shapiro Legal Group, PLLC, NY Slip Op 05301 (1st Dep't October 24, 2024)

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Contract law.

Buyer made a prima facie showing that it was entitled to judgment as a matter of law on seller's claim for reformation of the parties' real estate purchase and sale agreement based on a theory of either mutual mistake or a scrivener's error. Reformation based upon a scrivener's error requires proof of a prior agreement which, when subsequently reduced to writing, fails to accurately reflect the prior agreement. Here, there is no evidence of a prior oral agreement inconsistent with the written documents. Indeed, seller's representative testified that there was no oral agreement. Moreover, the real estate transfer documents, as well as the contract, all of which were prepared by seller's counsel, repeatedly and consistently included the description, by address, metes and bounds, and block and lot number, of the vacant lot that is the subject of the reformation action. This is inconsistent with a claim that the inclusion of the vacant lot was an inadvertent or isolated scrivener's error.

A claim for reformation based on mutual mistake must be supported by clear and convincing evidence that the agreement did not accurately express the parties' intention. A mutual mistake must exist at the time the agreement is signed. The evidence offered by seller - that a year before the closing, the parties did not intend to include the vacant lot in the transaction - substantially predated the parties' final agreements. Both buyer and its counsel affirmed that, by the time of the closing, the vacant lot was included in the sale. Their understanding was supported by the deed, which included the vacant lot, other closing documents drafted by the seller, and the fact that the vacant lot and the two adjoining properties included in the purchase were all subject to the same regulatory agreement with the City of New York. Furthermore, after the closing, buyer, not seller, paid all the carrying costs of the property, including taxes. In addition, seller waited three years to seek reformation, which is persuasive evidence of the agreed intention of the parties.

ACP Hous. Assoc., L.P. v. ABJ Milano, LLC, NY Slip Op 05272 (1st Dep't October 24, 2024)

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Service on a foreign corporation.

Pursuant to CPLR 311(a)(1), service upon a foreign corporation shall be made by delivering the summons "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service."  In addition, service may be made upon someone whom the corporation cloaks with authority. The burden of proving that personal jurisdiction has been acquired over a defendant rests with the plaintiff. The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. In those instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered null and void.

Bold Broadcasting, LLC v. Wawaloam Reservation, Inc., NY Slip Op 05196 (2d Dep't October 23, 2024)

Here is the decision.

Standing in a mortgage foreclosure action.

The subject note, and the allonges attached to each note, which were dated and specifically endorsed to each respective assignee, were sufficient to establish plaintiff's standing to foreclose.

Defendants, in turn, failed to raise a triable issue of fact as to standing. Uniform Commercial Code § 3-202(2) provides that "[a]n endorsement must be written by or on behalf of the holder on the instrument or on a paper so firmly affixed thereto as to become a part thereof." Contrary to defendants' contention, counsel's sworn affidavit of regularity, in which he averred that upon receipt of the original trust file, the file contained the original note and mortgage, that the original allonges were stapled to the original note, and the original trust file containing the original note and mortgage remained in counsel's possession and would be provided upon request, was sufficient to meet this burden.

U.S. Bank N.A. v. Mave Hotel Invs. LLC, NY Slip Op 05195 (1st Dep't October 22, 2024)

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Accelerated judgment.

CPLR 3213 provides a means of obtaining an accelerated judgment where a defendant's liability is premised upon an instrument for the payment of money only, such as an unconditional guaranty. In order to recover on a guaranty, a plaintiff must establish that payment on the underlying debt was due.  A defendant can defeat a CPLR 3213 motion by offering evidentiary proof sufficient to raise a triable issue of fact. Averments merely stating conclusions of fact or law are insufficient to defeat summary judgment.

Whitestone Plaza, LLC v. You Lin Shen, NY Slip Op 05129 (2d Dep't October 16, 2024)

Here is the decision.

Service of process.

The individual defendant - a partner of the defendant law firm - was properly served, and, thus, the law firm was properly served. While the process server did not reach the individual defendant's actual place of business, pursuant to CPLR 308[2], because the building where defendants are located did not allow the process server to go to the defendant firm's floor, the building's concierge told the process server to deliver the summons to the "Building Mailroom Clerk." Under these circumstances the outer bounds of the individual defendant's actual place of business is deemed to extend to the location at which the process server was stopped.

Nath v. Chemtob Moss Forman & Beyda, LLP, NY Slip 05061 (1st Dep't October 15, 2024)

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The admissibility of business records.

Although the foundation for admission of a business record usually is provided by the testimony of the custodian, the author, or some other witness familiar with the practices and procedures of the particular business, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Without the introduction of the records themselves, a witness's testimony as to the contents of the records is inadmissible hearsay.

Bank of N.Y. v. Levy, NY Slip Op 05085 (2d Dep't October 16, 2024)

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Appellate practice.

Defendant's appeal is based on the issue of standing. While that defense is contained in her answer, defendant did not raise the issue in any of the numerous dispositive motions that she made in Supreme Court. Accordingly, the Appellate Division declines to reach the issue for the first time on appeal.

U.S. Bank Trust, N.A. v. Stewart, NY Slip Op 05150 (1st Dep't October 17, 2024)

Here is the decision.