Wednesday, August 27, 2014

Dismissal pursuant to CPLR 3216.

Practice point:  CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff to resume prosecution of the action and to serve and file a note of issue within 90 days after receipt of the demand, and also stating that the failure to comply with the demand will serve as a basis for a motion to dismiss the action.

Student note  As CPLR 3216 is a legislative creation and not part of a court's inherent power, a court may not dismiss an action for want of prosecution where the plaintiff was not served with the requisite 90-day demand pursuant to CPLR 3216(b).

Case:  Diemer v. Eben Ezer Med. Assoc., NY Slip Op 058323 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Standing in a mortgage foreclosure action.

Tuesday, August 26, 2014

The service requirements of a foreclosure action.

Practice point:. RPAPL 1304[1] requires that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type."  The statute sets forth the requirements for the content of the notice, and further provides that the notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower, pursuant to RPAPL 1304[2].

Student note:  Proper service of the RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action.

Case:  Deutsche Bank Natl. Trust Co. v. Quinn, NY Slip Op 05829 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Dismissal pursuant to CPLR 3216.

Monday, August 25, 2014

Sanctions for spoilation of evidence.

Practice point:  The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence, and it may mpose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation.

Here, the Appellate Division determined that the Supreme Court providently exercised its discretion in striking the defendant's answers and thereupon awarding the plaintiffs summary judgment on the issue of liability pursuant to CPLR 3126. The record demonstrates that the defendant disposed of the grate involved in the accident after having received a written demand from one of the infant plaintiff's attorneys that the grate be preserved for inspection by the plaintiffs and their experts. Moreover, the plaintiffs demonstrated that they were unduly prejudiced by the defendant's conduct in disposing of the grate.

Student note:  Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, that party may be sanctioned under CPLR 3126.

Case:  Biniachvili v. Yeshivat Shaare Torah, Inc., NY Slip 05826 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The service requirements of a foreclosure action.

Friday, August 22, 2014

A worker's fall from a ladder.

Practice point:  The mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided. There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries.

Student note:  Labor Law § 240(1) imposes upon owners and general contractors, including their agents, a nondelegable duty to provide safety devices necessary to protect workers from the risks inherent in elevated work-sites.

Case: Karanikolas v. Elias Taverna, LLC, NY Slip Op 05774 (2d Dept. 2014)

Here is the decision.

Monday's issue: Sanctions for spoilation of evidence.

Thursday, August 21, 2014

A landowner's duty to warn.

Practice point:  A property owner must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all the attendant circumstances. Encompassed within this duty is the concomitant duty to warn those lawfully on the premises of potentially dangerous conditions that are not readily observable.

Student note: Landowners who have or should have reason to expect that persons will find it necessary to encounter the danger, owe a duty of reasonable care to either warn such persons of the danger or to take other reasonable steps to protect them from it.

Case: Fernandez v. Rutman, NY Slip Op 05769 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A worker's fall from a ladder.

Wednesday, August 20, 2014

Dismissal for neglect to proceed.

Practice point:  Where a party unreasonably neglects to proceed in an action or otherwise delays in prosecuting the action, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or on a motion, may dismiss the party's pleading on terms, pursuant to CPLR 3216[a]. . Before doing so, the court or the party seeking such relief must serve a written demand to resume prosecution and to serve and file a note of issue within 90 days of receipt of such demand, and further advise that failure to do so may result in dismissal of the action, pursuant to CPLR 3216[b][3]..

Student note:  Pursuant to 22 NYCRR 202.21(a) and (b), an action will not be deemed ready for trial or inquest unless a note of issue is first filed, accompanied by a certificate of readiness stating that there are no outstanding requests for discovery and the case is ready.

Case:  Dutchess Truck Repair, Inc. v. Boyce, NY Slip Op 05768 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: A landowner's duty to warn.

Tuesday, August 19, 2014

The statute of frauds and a subscribed memorandum.

Practice point:  To satisfy the statute of frauds, a memorandum, subscribed by the party to be charged, must designate the parties, identify and describe the subject matter, and state all of the essential terms of a complete agreement. A writing is not a sufficient memorandum unless the parties' full intention can be ascertained from it alone, without recourse to parol evidence.

Student note:  The statutorily required writing need not be contained in one single document, but may be furnished by piecing together related writings.

Case:  Dahan v. Weiss, NY Slip Op 05767 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Dismissal for neglect to proceed.