Friday, May 27, 2016

Vacating a note of issue, and a jury demand.

Practice point:  The Appellate Division affirmed the denial of plaintiff's motion to vacate the note of issue or, in the alternative, for a jury trial.  The motion was untimely as plaintiff brought 15 months after the note of issue was filed. In addition, plaintiff's speculative and unsubstantiated claims of defendants' forgery, spoliation, and obstruction of discovery fall short of the stringent standard of showing unusual and unanticipated circumstances subsequent to the filing of the note of issue that would otherwise justify granting the motion.

Student note:  Plaintiff failed to file a jury demand within 15 days of the filing of the note of issue, and did not provide an excuse for her failure to do so. As a result, she waived any right she may have had to a jury trial, pursuant to CPLR 4102[a].

Case:  Jia Wang v. Chih Shien Kang, NY Slip Op 03980 (1st Dep't May 19, 2016)

Here is the decision.

Monday:  Court holiday.

Thursday, May 26, 2016

An action to foreclose a mortgage.

Practice point:  To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default.  Where the plaintiff's standing is placed in issue by a defendant, the plaintiff must prove its standing as part of its prima facie showing. A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either the holder or assignee of the underlying note at the time the action is commenced.

Student note:  Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation.

Case:  Flagstar Bank, FSB v. Mendoza, NY Slip Op 03849 (2d Dep't May 18, 2016)

Here is the decision.

Tomorow's issue:  Vacating a note of issue, and a jury demand.

Wednesday, May 25, 2016

A fall, summary judgment, and the admissibility of affidavits.

Practice point:  The Appellate Division reversed, and granted defendant's motion dismissing the complaint in this action where plaintiff alleges that he was injured when he fell down the stairs in defendants' building.

Defendants established their entitlement to judgment as a matter of law by submitting plaintiff's deposition testimony where he stated that while climbing the subject stairs, he suddenly felt dizzy and weak, heard the "noise of a paper," and remembered nothing else until he later awoke in the hospital. He was twice asked whether he knew, or ever learned, what caused him to fall, and each time answered that he did not. Nowhere else in his testimony did plaintiff identify the cause of his fall.

Student note:  Plaintiff's affidavit, where he claimed that he slipped and fell on paper restaurant menus strewn on defendants' stairs, was inadmissable, as plaintiff testified he neither spoke, read nor wrote in English, yet his affidavit was unaccompanied by a translator's affidavit attesting to its accuracy, as required by CPLR 2101(b).

Case:  Peralta-Santos v. 350 W. 49th St. Corp., NY Slip Op 03966 (1st Dep't May 19, 2016)

Here is the decision.

Tomorrow's issue:  An action to foreclose a mortgage.

Tuesday, May 24, 2016

A school's duty to supervise.

Practice point:  A school owes a duty to adequately supervise the students in its care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision.

Student note:  In determining whether the duty has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, the third-party acts could reasonably have been anticipated.

Case:  Fernandez v. City of Yonkers, NY Slip Op 03847 (2d Dep't May 18, 2016)

Here is the decision.

Tomorrow's issue:  A fall, summary judgment, and the admissibility of affidavits.

Monday, May 23, 2016

CPLR 5015 and vacating a default.

Practice point:  Where a defendant seeks to vacate a default under both CPLR 5015(a)(1), excusable default, and (a)(4), lack of jurisdiction, the court will first determine whether it has personal jurisdiction over the defendant, as, if it does not, it need not determine whether the default is excused.

 Student note:  A determination under (a)(4) requires no discretion, while (a)(1) requires the court to exercise its discretion.

Case:  Wells Fargo Bank, N.A. v. Jones, NY Slip Op 03838 (1st Dep't May 17, 2016)

Here is the decision.

Tomorrow's issue:  A school's duty to supervise.

Friday, May 20, 2016

Statute of limitations on a hostile work environment claim.

Practice point:  While a cause of action alleging discrimination on the basis of discrete adverse employment actions is timely only to the extent that the adverse employment actions took place within the statute of limitations period, a cause of action alleging hostile work environment is timely so long as one act contributing to the cause of action occurred within the statute of limitations period.

Student note:  Causes of action alleging violations of Executive Law § 296 are governed by a three-year statute of limitations, pursuant to CPLR 214[2].

Case:  Cahill v. State of N.Y. Stony Brook Univ. Hosp., NY Slip Op 03695 (2d Dep't May 11, 2016)

Here is the decision.

Monday's issue:  CPLR 5015 and vacating a default.