Wednesday, July 23, 2014

Defamation and the single publication rule.

Practice point:  Under the rule, the publication of a defamatory statement in a single issue of a newspaper or magazine, although widely circulated and distributed, constitutes one publication, which gives rise to one cause of action, and the statute of limitations runs from the date of that publication.

An exception to the rule has been applied when the following factors are present:  the subsequent publication is intended to and actually reaches a new audience; the second publication is made on an occasion distinct from the initial one; the republished statement has been modified in form or in content; and the defendant has control over the decision to republish. So, repetition of a defamatory statement in a later edition of a book, magazine or newspaper may give rise to a new cause of action.

Student note:  The rule applies to publications on the Internet, and so continuous access to an article posted via hyperlinks to a website is not a republication.

Case:  Martin v. Daily News L.P., NY Slip Op 05369 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The City's Human Rights Law and an allegation of discrimination based on disability.

Tuesday, July 22, 2014

Sua sponte dismissal undone.

The Appellate Division determined that the Supreme Court erred when, sua sponte,  it directed the dismissal of the complaint and the cancellation of the notice of pendency filed against the subject property for lack of standing. A party's lack of standing does not constitute a jurisdictional defect,
 and does not warrant the court's sua sponte dismissal of a complaint

Student note:  A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal.

Case:  Bank of N.Y. v. Mulligan, NY Slip Op 05291 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Defamation and the single publication rule.

Monday, July 21, 2014

A motion to dismiss pursuant to 3211(a)(7).

Practice point:  In considering the motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action.

If the movant relies on evidence beyond the four corners of the complaint, the motion must be denied absent a showing that there is a material fact as claimed by the pleader is not a fact at all,l and unless there is no significant dispute regarding it.

Student note:  On the motion, the statutory standard is whether the plaintiff has pled a cause of action. Period.

Case:  J. A. Lee Elec., Inc. v City of New York, NY Slip Op 05159 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Sua sponte dismissal undone.

Friday, July 18, 2014

A subpoena to obtain discovery from a non-party.

Practice point:  Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the circumstances or reasons requiring disclosure. The Court of Appeals has recently held that disclosure from a nonparty requires no more than a showing that the requested information is "material and necessary," that is, relevant to the prosecution or defense of an action. However, the subpoenaing party must sufficiently state the circumstances or reasons underlying the subpoena, either on its face or in an accompanying notice.  In moving to quash, the witness must establish either that the discovery sought is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious. On this showing, the subpoenaing party must then establish that the discovery sought is material and necessary to the prosecution or defense of an action.

Student note: CPLR 3101(a) is to be liberally construed to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay.

Case:  Ferolito v Arizona Beverages USA, LLC, NY Slip Op 05153 (2d Dept. 2014)

Here is the decision.

Monday's issue: A motion to dismiss pursuant to 3211(a)(7).

Thursday, July 17, 2014

Legal malpractice.

Practice point:  A plaintiff must establish that the attorney 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 the plaintiff actual and ascertainable damages.

For summary judgment, a defendant must demonstrate that the plaintiff is unable to prove at least one of the essential elements of the cause of action.

Here, the alleged malpractice relates to the sufficiency of the order to show cause and supporting papers prepared by the defendants and submitted on behalf of the plaintiffs in the personal injury action, pursuant to which they moved to vacate their default in the personal injury action. A motion to vacate a default by a plaintiff in appearing for trial requires the demonstration of a reasonable excuse and an affidavit setting forth the merits of the cause of action, pursuant to CPLR 5015.

The defendants established, prima facie, that the plaintiffs had no reasonable excuse for their default in appearing for jury selection in the personal injury action, thereby establishing that the alleged inadequecy of the motion papers that they prepared on the plaintiffs' behalf was not the proximate cause of the plaintiffs' damages. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether they had a reasonable excuse for their default that could have been communicated to the defendants for inclusion in the papers submitted with the motion to vacate.

Student note:  An attorney's conduct and performance in connection with a motion to vacate a default may constitute legal malpractice.

Case:  DiGiacomo v. Langella, NY Slip Op 05150 (2d Dept. 20145)

Here is the decision.

Tomorrow's issue: A subpoena to obtain discovery from a non-party.

Wednesday, July 16, 2014

Spoilation, the law, and videotape.

Practice point:  One week after plaintiff's slip-and-fall accident on defendants' premises, plaintiff's counsel sent a notice to defendant "to preserve any and all video recordings/surveillance tapes/still photos of any nature that depict the subject slip and fall accident" on the date and time in question. This notice was received by defendants' employee in charge of the recordings. After reviewing the tapes from all of the cameras, the employee preserved an 84-second portion of tape from one camera that depicted plaintiff's accident, starting from one minute preceding her fall. She downloaded this clip onto a CD-ROM and forwarded a copy to defendant's insurance carrier.

The employee testified that defendants' standard procedure regarding surveillance tapes was to send a copy of video footage of any accident to its insurance carrier, and that, after a search of all cameras, the 84-second portion of the one camera tape was found to be the only footage depicting the accident. She further stated that the insurance carrier never told her what to send it regarding an accident and never asked her to send anything more than the short clip of the accident. Additionally, she testified that the computer system in use at that time automatically erased all footage every 21 days due to limited storage capacity. She also stated that the system later broke and was replaced. However, she could not remember when the replacement occurred, and stated that the old system had been discarded.

Six weeks after the first request, counsel expanded his demand to six hours of footage leading up to the accident, for all 32 cameras in the store.

After discovery, defendants moved for summary judgment, arguing that they did not create or have actual notice of the condition that allegedly caused plaintiff to fall. Plaintiff opposed the motion and cross-moved to strike defendants' answer for withholding and destroying relevant video footage, or, in the alternative, for an order directing that the issue of notice be resolved against defendants.

The motion court found that defendants met their prima facie burden to establish that they did not create or have actual notice of the condition upon which plaintiff allegedly fell and that plaintiff failed to raise a triable issue of fact as to constructive notice.

Although not required to do so in light of its ruling on the summary judgment motion, the court addressed plaintiff's cross motion to strike defendants' answer for spoilation of evidence. The court found that the destruction of the original surveillance video was not willful or contumacious or in violation of a court order. The court accepted the employee's explanation regarding the loss of the tape, finding no reason to attribute bad faith to defendants. It also rejected plaintiff's contention that defendants should have preserved six hours of footage from all 32 store cameras.

The Appellate Division found that the motion court properly exercised its discretion in denying plaintiff's motion for spoliation sanctions. Plaintiff's initial demand for preservation of video tapes was limited to those that "depict the subject slip and fall accident that took place on the above referenced date, time and location."  The portion of the tape that was preserved complied with this demand.

The Appellate Division noted that a property owner's receipt of a notice to preserve records triggers certain obligations, but there are limits to the extent of those obligations.While a plaintiff is entitled to inspect tapes to determine whether the area of an accident is depicted and is not compelled to accept defendant's self-serving statement concerning the contents of the destroyed tapes, this does not trigger a defendant's obligation to preserve hours of tapes indefinitely each time an incident occurs on its premises in anticipation of a plaintiff's request for them. That obligation would impose an unreasonable burden on property owners and lessees.

Student note:  On a motion for spoliation sanctions, the movant must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a culpable state of mind, which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party's claim or defense.  In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness. The burden is on the party seeking sanctions to make the requisite showing.

Case:  Duluc v AC&L Food Corp., NY Slip Op 05243 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Legal malpractice.

Tuesday, July 15, 2014

Service, and the due diligence requirement of 308(4).

Practice point:  Service of process pursuant to the affix-and-mail provisions of CPLR 308(4) is only permitted where service by personal delivery under CPLR 308(1) or by delivery to a person of suitable age and discretion and a subsequent mailing pursuant to CPLR 308(2) cannot be made with due diligence. Satisfying the due diligence requirement entails a showing that the process server made genuine inquiries about the defendant's whereabouts and place of employmentt. Here, the process server's testimony that he inquired as to the defendant's whereabouts from a neighbor was not credible, as he was unable to provide any description at all of the neighbor, not even the gender. The affidavit of service referred to a "person spoken to," but provided no description, although there were spaces to insert the person's gender, skin color, hair color, approximate age, height, and weight.

Student note:  Where the defendant's only participation in the action is the submission of a motion to vacate a default judgment for lack of personal jurisdiction, the defense of lack of personal jurisdiction is not waived.

Case:  Cadlerock Joint Venture, L.P. v. Kierstedt, NY Slip Op 05147 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Spoilation, the law, and videotape.