Tuesday, May 31, 2016

A foreign corporation's principal place of business and venue.

Practice point:  The Appellate Division reversed, and granted defendant's motion to change venue from Bronx County to Westchester County, pursuant to CPLR 510(1).

In support of its motion, defendant, a foreign corporation, submitted a certified copy of its application for authority to do business filed with the Secretary of State in which it stated that its principal place of business "is to be located" in New York County.  Defendant's designation of New York County as its principal place of business in the application for authority is controlling for venue purposes. Contrary to plaintiff's arguments, even if defendant does not actually have an office in New York County, and although it has notified the Department of State to forward process to an address in Bronx County, the designation made by defendant in its application for authority still controls for venue purposes.

Student note:  Defendant's choice of Westchester County, where plaintiff resides and where the accident took place, as the place for trial is proper.

Case:  Crucen v. Pepsi-Cola Bottling Co. of N.Y., Inc., NY Slip Op 03968 (1st Dep't May 19, 2016)

Here is the decision.

Tomorrow's issue:  The meaning and extent of coverage of a release.

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.

Thursday, May 19, 2016

Plaintiff's motion for an extension of time to serve.

Practice point:  The Appellate Division found that the motion court properly exercised its discretion, and affirmed the granting of the motion. Although plaintiff delayed in moving for an extension, other relevant factors weighed in favor of granting the motion, including plaintiff's diligence, the expiration of the statute of limitations on plaintiff's intentional tort claims, and the absence of any prejudice to defendant, given his actual notice of the summons and complaint.

Student note:  Where the extension is sought in the interest of justice and some factors weigh in favor of granting the motion and some do not, the Appellate Division will not disturb the motion court's exercise of discretion.

Case:  Petracca v. Hudson Tower Owners LLC, NY Slip Op 03835 (1st Dep't May 17, 2016)

Here is the decision.

Tomorrow's issue:  Statute of limitations on a hostile work environment claim.

Wednesday, May 18, 2016

A fall down the stairs.

Practice point:  The Appellate Division affirmed the denial of defendants' motion for summary judgment in this action to recover damages after plaintiff allegedly was injured when she fell down a set of bleacher stairs located in a gymnasium owned by defendant. In its moving papers, defendant argued that, according to the opinion of its expert engineer, the accident could not have occurred in the manner which plaintiff claimed that it did.

The Appellate Division found that defendant failed to establish its prima facie entitlement to judgment as a matter of law. Its expert's affidavit was conclusory, speculative, and lacked a proper foundation, as it was based on an inspection that was conducted 14 months after the incident and did not establish that the bleachers were operating in the same manner or were in the same condition on the date of the inspection as they were on the date of the incident.

Student note:  A defendant in a premises liabilty case may demonstrate its prima facie entitlement to judgment as a matter of law with evidence that it did not create the condition that allegedly caused the fall or have actual or constructive notice of that condition.  Whether a dangerous or defective condition exists is generally a question of fact for the jury.

Case:  Burch v. Village of Hempstead, NY Slip Op 03694 (2d Dep't May 11, 2016)

Here is the decision.

Tomorrow's issue:  Plaintiff's motion for an extension of time to serve.

Tuesday, May 17, 2016

The standard for documentary evidence on a motion to dismiss.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss pursuant to CPLR 3211(a)(1) in this legal malpractice action. Defendant argued that documentary evidence established that it had been retained only with respect to plaintiff's Workers' Compensation claim. Defendant's letters to plaintiff, submitted by defendant on its motion, are not documentary evidence for the purpose of a 3211(a)(1) motion pursuant to CPLR 3211(a)(1). Neither is the affirmation of one of defendant's members documentary evidence.

While defendant did submit documentary evidence, it did not utterly refute plaintiff's allegations, as it required to succeed on the motion.

Student note:  To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity.  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, qualify as documentary evidence, while affidavits and letters do not.

Case:  Anderson v. Armentano, NY Slip Op 03690 (2d Dep't May 11, 2016)

Here is the decision.

Tomorrow's issue:  A fall down the stairs.

Monday, May 16, 2016

Late notices of claim and statutes of limitations.

Practice point:  The Appellate Division affirmed the granting of defendant's motion to dismiss the complaint.  Plaintiff, suing on behalf of her infant son, failed to serve a timely notice of her medical malpractice claim, pursuant to General Municipal Law § 50-e[1][a], and failed to seek leave to file a late notice of claim, pursuant to General Municipal Law § 5-e(5), within the applicable statute of limitations, as tolled due to the injured plaintiff's infancy, pursuant to CPLR 208.

Student note:  The fact that plaintiff served a late notice of claim before the statute of limitations had expired is without effect, because she had not obtained leave of the court.

Case:  Yessenia D. v. New York City Health & Hosps. Corp., NY Slip Op 03653 (1st Dep't May 10, 2016)

Here is the decision.

Tomorrow's issue:  The standard for documentary evidence on a motion to dismiss.

Friday, May 13, 2016

The Noseworthy doctrine and an inference of negligence.

Practice point:  The Appellate Division reversed the motion court and dismissed the complaint in this action to recover damages after a fall.

The defendant established its prima facie entitlement to judgment as a matter of law by submitting a transcript of the plaintiff's deposition testimony, which demonstrated that the plaintiff was unable to identify the cause of her fall. In addition, the defendant submitted evidence that no dangerous conditions were observed at the location where the plaintiff fell prior to the accident.

The Appellate Division found that the Noseworthy doctrine is applicable here, as the plaintiff established that she suffered from amnesia from the accident. However, the doctrine did not relieve the plaintiff of her obligation to provide some proof from which negligence can reasonably be inferred.

Student note:  The doctrine imposes a lighter burden of persuasion on a plaintiff when the plaintiff establishes that the parties are not on an equal footing with respect to knowledge of the facts surrounding the accident.

Case:  Baterna v. Maimonides Med. Ctr., NY Slip Op 03461 (2d Dep't 2016)

Here is the decision.

Monday's issue:  Late notices of claim and statutes of limitations.

Thursday, May 12, 2016

A fall on a stairway, and a denied summary judgment motion.

Practice point:  The Appellate Division affirmed the denial of the motion, finding that defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law. Plaintiff testified at his deposition that he slipped due to a loose step on a stairway in a building owned by defendant. Any ambiguity in his testimony as to the cause of his fall is attributable to his attempt at humor and to the fact that he was testifying through an interpreter.  In addition, defendant's superintendent testified that a step was loose on that stairway, and that it was repaired on the same day that plaintiff fell. The superintendent's uncertain testimony failed to eliminate any issue of fact as to which step was repaired or the time of the repair. The affidavit of defendant's managing member differed from the superintendent's testimony as to the time and location of the repair. In any event, the managing member's affidavit cannot be considered in support of the motion, because he did not indicate that the affidavit is based on his personal knowledge of the facts.

Student note: Plaintiff submitted a non-party's affidavit that raised a fact issue as to notice.  Any discrepancy between the affidavit and the non-party's prior unsworn statement raises a credibility issue that cannot be resolved on a summary judgment motion.

Case:  Almonte v. 638 W. 160 LLC, NY Slip Op 03584 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  The Noseworthy doctrine and an inference of negligence.

Wednesday, May 11, 2016

The doctrine of res judicata.

Practice point: The doctrine of res judicata precludes a party from litigating a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation. The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again.

Student note:  The doctrine of collateral estoppel is a narrower species of res judicata. It bars relitigation of an issue which has necessarily been decided in a prior action and is decisive of the present action if there has been a full and fair opportunity to contest the decision now said to be controlling.

Case:  Ashley v. Ashley, NY Slip Op 03460 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  A fall on a stairway, and a denied summary judgment motion.

Tuesday, May 10, 2016

An award of attorneys' fees.

Practice point:  The Appellate Division affirmed the trial court's award of attorneys' fees and costs to plaintiffs, the prevailing parties in this gender-based employment discrimination action. The court was not required to reduce fees to reflect a relative lack of success, as there is no per se rule against awarding fees in excess of damages recovered, and fees may be appropriate where a party recovers only nominal damages.

Student note:  A court may discount senior attorney hours where they constitute a disprorportionate amount of time spent on the matter. While a court may award costs in the absence of receipts, the court is entitled to discount those costs it deems to be unreasonable.

Case:  Hernandez v. Kaisman, NY Slip Op 03424 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  The doctrine of res judicata.

Monday, May 9, 2016

Rear-end collisions and an inference of negligence.

Practice point:  A rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision. Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation.

Student note:  Pursuant to Vehicle and Traffic Law § 1129[a], "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."

Case:  Hartfield v. Seenarraine, NY Slip Op 03137 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  An award of attorneys' fees.

Friday, May 6, 2016

Labor Law and accidents outside New York State.

Practice point:  Plaintiff was injured by an unguarded saw blade while working at a site located in New Jersey. At the time, he was aware that the part he was fabricating was going to be installed at a Manhattan construction site owned and operated by defendants.  Plaintiff filed several claims grounded in Labor Law §§ 200, 241[6]. The Appellate Division affirmed dismissal, as the protection afforded by the Labor Law does not extend to accidents that occurs outside New York State.

Student note:  The Labor Law's protection does not apply to out-of-state accidents even if all parties are New York domiciliaries.

Case:  Osborn v. 56 Leonard LLC, NY Slip Op 03246 (1st Dep't 2016)

Here is the decision.

Monday's issue: Rear-end collisions and an inference of negligence.

Thursday, May 5, 2016

Hearsay, admissibility, and hospital reords.

Practice point:  A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule if the entry is germane to the diagnosis or treatment of the patient.

Student note:  If the entry is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to diagnosis or treatment, as long as there is evidence connecting the party to the entry.

Case:  Berkovits v. Chaaya, NY Slip Op 03131 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Labor Law and accidents outside New York State.

Wednesday, May 4, 2016

Extending time and law office failure.

Practice point:  To extend the time to answer the complaint and to compel the plaintiff to accept an otherwise untimely answer, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action.  The Appellate Division determined that the Supreme Court providently exercised its discretion in rejecting the defendant's unsubstantiated explanation that lawyers he consulted, but apparently did not retain, had advised him not to answer the complaint. A defendant's claim that his attorney apparently made an erroneous assumption regarding the need to answer the complaint does not constitute a valid excuse. At most, the advice, and the defendant's decision to follow it, is a misguided strategy, not law office failure.

Student note:  While a court has the discretion to accept law office failure as a reasonable excuse, pursuant to CPLR 2005), a conclusory, undetailed, and uncorroborated claim of law office failure is insufficient.

Case:  Bank of N.Y. Mellon v. Colucci, NY Slip Op 03129 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue: Hearsay, hospital records, and admissibility..

Tuesday, May 3, 2016

The termination of a forum selection clause.

Practice point:  The mere termination of a contract containing the clause does not mean that the clause is without effect .In order for a party to disregard it when the contract is terminated, there must be a clear manifestation of the parties' intent to terminate the clause along with the contract. The best evidence of what the parties intended is the plain meaning of the contract.

Student note:  Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes, particularly those involving international business agreements.

Case:  Garthon Bus. Inc. v. Stein, NY Slip Op 03102 (1st Dep't 2016)

Here is the decision.

Tomorrow's issue:  Extending time and law office failure.

Monday, May 2, 2016

Primary assumption of the risk.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion in this action where plaintiff seeks damages for personal injuries sustained while driving a go-kart at a track owned and operated by defendant. The Appellate Division found that the Supreme Court improvidently exercised its discretion in declining to consider the affidavit of plaintiff's expert on the ground that the expert was not disclosed until after the note of issue was filed, as there was no evidence that plaintiff's delay in retaining the expert or in serving the expert information was intentional, willful, or prejudicial to defendant, pursuant to CPLR 3101[d][1][i]. Nevertheless, the affidavit failed to raise a triable issue of fact. While the expert alleged that the go-kart did not comply with safety guidelines promulgated by the American Society for Testing and Materials, those guidelines are nonmandatory, and insufficient to raise a triable issue of fact as to whether defendant was negligent.

Student note:  Defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that, under the doctrine of primary assumption of the risk, plaintiff assumed the risks inherent in driving a go-kart, including the risk of sustaining injuries in the manner in which plaintiff did in this case.  In opposition, plaintiff failed to raise a triable issue of fact as to whether defendant unreasonably increased the risk of injury above and beyond the usual dangers inherent in the sport.

Case: Augustin v. Grand Prix N.Y. Racing, LLC, NY Slip Op 02948 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  The termination of a forum selection clause.