Friday, December 30, 2016

Suspension of snow removal servces for failure to pay maintenance fees.

The plaintiff alleges that while he was working for nonparty UPS and delivering a package to the home of the defendant Sorrentino, he was injured when he slipped and fell on snow and ice in defendant's driveway. At the time of the accident, Sorrentino lived in a gated community governed by the defendant Stone Hill.  Prior to the time of the accident, Stone Hill had suspended Sorrentino's snow removal services for the property, as a result of the nonpayment of maintenance fees to Stone Hill. The plaintiff subsequently commenced this action against Sorrentino and Stone Hill to recover damages for personal injuries. Stone Hill moved for summary judgment dismissing the complaint insofar as asserted against it and Sorrentino's cross claim. The Supreme Court granted the motion, and the Appellate Division reversed.

Stone Hill failed to demonstrate, prima facie, that Sorrentino's nonpayment of the maintenance fees relieved it of its duty to perform snow removal services on the property on the date of the accident, as was its responsibility under the "Declaration of Covenants, Restrictions, Easements, Charges and Liens," which governed the relationship between Sorrentino, as a property owner, and Stone Hill.

Student note:  Since Stone Hill failed to establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff or Sorrentino to raise a triable issue of fact.

Case:  Coons v. Sorrentino, NY Slip Op 08501 (2d Dep't December 21, 2016)

Here is the decision.

Tuesday's issue:  The presumption of proper service.

Thursday, December 29, 2016

A defendant's summary judgment motion in a trip-and-fall action.

Practice point:  The movant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that (1) it neither created the hazardous condition that allegedly caused the plaintiff's injuries, nor had actual or constructive notice of that condition for a sufficient length of time to discover and remedy it, or (2) plaintiff cannot identify the cause of the accident. Here, the defendants failed to establish that the plaintiff was unaware of the location of his fall or what caused him to fall. In support of their motion, the defendants submitted a transcript of the plaintiff's deposition. In that deposition, the plaintiff clearly identified, through photographs, the location of his fall and the condition that allegedly caused it. Any conflicts between the plaintiff's original deposition and the errata sheets raised issues of credibility inappropriate for resolution on summary judgment.

Student note:  As the defendants' failed to meet their prima facie burden, their motion will be denied, regardless of the sufficiency of the plaintiff's papers in opposition.

Case:  Belton v. Gemstone HQ Realty Assoc., LLC, NY Slip Op 08491 (2d Dep't December 21, 2016)

Here is the decision.

Tomorrow's issue:  Suspension of snow removal services for failure to pay maintenance fees.

Wednesday, December 28, 2016

CPLR 3212(f).

Practice point:  The statute permits a court to deny a motion for summary judgment where it appears that the facts essential to oppose the motion exist but cannot then be stated. This is especially so where the opposing party has not had a reasonable opportunity for disclosure.

Case:  Brielmeier v. Leal, NY Slip Op 08344 (2d Dep't December 14, 2016)

Here is the decision.

Tomorrow's issue: A defendant's summary judgment motion in a trip-and-fall action.

Tuesday, December 27, 2016

Termination of an action within the meaning of CPLR 203(e), and punitive damages.

CPLR 203(e), in pertinent part, states that "[w]here a defendant has served an answer containing a defense or counterclaim and the action is terminated . . . by dismissal . . . , the time which elapsed between the commencement and termination of the action is not a part of the time within which an action must be commenced to recover upon the claim in the defense or counterclaim."

For statutory purposes, a prior action terminates when a nondiscretionary appeal, or an appeal taken as of right, is exhausted.

A demand for punitive damages will be struck where the action involves a private dispute, and plaintiff has not demonstrated that defendants' conduct was aimed at the public generally.

Case: Britt v. Nestor, NY Slip Op 08437 (1st Dep't December 15, 2017)

Here is the decision.

Tomorrow's issue:  CPLR 3212(f).

Friday, December 23, 2016

Wheel stops and liabiity.

While a landowner has a duty to maintain its premises in a reasonably safe manner, there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous. As a matter of law, a clearly visible wheel stop or concrete parking lot divider presents no unreasonable risk of harm,

Case:  Bogaty v. Bluestone Realty NY, Inc., NY Slip Op 08343 (2d Dep't December 14, 2916)

Here is the decision.

Tuesday's issue:  Termination of an action within the meaning of CPLR 203(e), and punitive damages.

Thursday, December 22, 2016

A request for an adjournment of the return date and for an extension of time to file an opposition

The granting of an adjournment for any purpose rests within the sound discretion of the Supreme Court, and its determination will not be disturbed absent an improvident exercise of that discretion. In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors. It is not an improvident exercise of discretion to deny an adjournment where the need for such a request is based on the movant's failure to exercise due diligence. In addition, while a court has the discretion to grant an extension of time to file opposition papers, it must be upon a showing of good cause, pursuant to CPLR 2004, and the delinquent party must offer a valid excuse for the delay.

Here, the Supreme Court did not improvidently exercise its discretion in denying plaintiffs' request for the adjournment and extension.  They made no showing of good cause because they did not offer a valid excuse for the extension, and the record reflected that the need for an adjournment resulted from a lack of due diligence on their part.

Case:  Adotey v. British Airways, PLC, NY Slip Op 08341 (2d Dep't December 14, 2016)

Here is the decision.

Tomorrow's issue:  Wheel stops and liability.

Wednesday, December 21, 2016

The relaton back doctrine.

The Appellate Division reversed the motion court and dismissed the complaint in this action stemming from a personal injury action that settled.  After the statute of limitations had elapsed, pursuant to CPLR 214(5), plaintiff filed this action.

Plaintiff's reliance on the relation back doctrine to render this independent action timely is unavailing, since he is not seeking to amend a pleading in a timely-commenced action, pursuant to CPLR 203[f].

Plaintiff would have the complaint relate back to the date of a complaint filed against him in a prior action or, alternatively, to the date of his answer in that prior action, which did not itself assert any counterclaims.  There is no authority supporting such an expansion of the relation back doctrine.

Case:  Davis v. Sanseverino, NY Slip Op 08321 (1st Dep't December 13, 2016)

Here is the decision.

Tomorrow's issue:  A request for an adjournment of the return date and for an extension of time to file an opposition.

Tuesday, December 20, 2016

A property owner's liability under Labor Law § 240(1).

In determining an owner's statutory liability, the issue of whether plaintiff was employed by some other entity is of no import, as long as it is undisputed that plaintiff, on the day of the accident, was allowed to work on the premises. The owner is liable for a statutory breach even if the owner did not supervise or control the work being performed, and despite the fact that the injured person injured was an independent contractor engaged to do the work.

Case:  Vera v. Low Income Mktg. Corp., NY Slip Op 08318 (1st Dep't December 13, 2016)

Here is the decision.

Tomorrow's issue:  The relation back doctrine.

Monday, December 19, 2016

Dismissal of claims pursuant to CPLR 3215(c).

Practice point:  The defendant did not waive the right to seek dismissal pursuant to CPLR 3215(c) by moving to vacate the default and for leave to serve a late answer. A defendant may waive the right to seek a dismissal by serving an answer or taking any other steps that may be seen as a formal or informal appearance. However, a CPLR 3012(c) motion for leave to serve an untimely answer does not constitute either a formal appearance, pursuant to CPLR 320, or an informal appearance, pursuant to CPLR 3012(d).

Case:  HSBC Bank USA, N.A. v. Grella, NY Slip Op 08199 (2d Dep't December 7, 2016)

Here is the decision.

Tomorrow's issue:  A property owner's liability under Labor Law § 240(1).

Friday, December 16, 2016

Plaintiff's standing in a note action.

Once defendant made plaintiff's standing an issue, it was plaintiff's burden to establish standing by showing physical possession of the note prior to commencement of the action. Plaintiff attached the note, which was annexed to the certificate of merit, to its complaint. While the averments in the certificate of merit were insufficient to establish delivery and possession, the fact that the note was in plaintiff's possession at the time of commencement, as evidenced by its attachment to the complaint, was sufficient.

Case:  Deutsche Bank Natl. Trust Co. v. Umeh, NY Slip Op 08305 (1st Dep't December 8, 2016)

Here is the decision.

Monday's issue:  Dismissal of claims pursuant to CPLR 3215(c).

Thursday, December 15, 2016

An award for unpaid legal fees.

The addition of prejudgment interest to plaintiff's award for unpaid legal fees under quantum meruit was mandatory, pursuant to CPLR 5001. As plaintiff was required to move to withdraw, it was required to continue to zealously represent defendants until the court granted its motion, pursuant to Rule 1.16[d], [e], and so the award should consider any value for plaintiff's work from the time it moved by order to show cause to withdraw. This is particularly true here, where plaintiff sought, but was denied, an adjournment of the trial date, and the court took six months to grant the application.

Case:  Davidoff Hutcher & Citron LLP v. Smirnov, NY Slip Op 08296 (1st Dep't Deember 8, 2016)

Here is the decision.

Tomorrow's issue: Plaintiff's standing in a note action.

Wednesday, December 14, 2016

A cause of action for defamation.

The elements of the cause of action are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se.  The complaint must set forth the particular words allegedly constituting defamation, pursuant to CPLR 3016[a], and it must also allege the time, place, and manner of the false statement and specify to whom it was made.  (see Dillon v City of New York, 261 AD2d at 38).

There is a one-year statute of limitations that accrues when the allegedly defamatory statements are originally uttered, pursuant to CPLR 215[3].

Case:  Arvanitakis v. Lester, NY Slip Op 08191 (2d Dep't December 7, 2016)

Here is the decision.

Tomorrow's issue:  An award for unpaid legal fees.

Tuesday, December 13, 2016

A municipality's liability for allegedly defective road conditions.

A municipality that has adopted a prior written notice law is not iable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies. The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality.

The municipality's actual or constructive notice of the allegedly defective condition does not satisfy the prior written notice requirement.

Case:  Dutka v. Odierno, NY Slip Op 08196 (2d Dep't December 7, 2016)

Here is the decision.

Tomorrow's issue:  A cause of action for defamation.

Monday, December 12, 2016

The storm in progress rule.

Under the rule, a property owner is not responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.  If the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and the rule will not be applied.

A property owner who clears a sidewalk during a storm in progress must act with reasonable care and may be liable if its efforts create a hazardous condition or exacerbate a natural hazard created by the storm.  The failure of a defendant to remove all of the snow and ice, without more, does not establish that the defendant increased the risk of harm.

Case:  Aronov v. St. Vincent's Hous. Dev. Fund Co., Inc., NY Slip Op 08190 (2d Dep't December 7, 2016)

Here is the decision.

Tomorrow's issue:  A municipality's liability for allegedly defective road conditions.

Friday, December 9, 2016

Interposing a defense waived under CPLR 3211(e).

Practice point:  Defenses waived under CPLR 3211(e) can be interposed in an answer amended by leave of the court pursuant to CPLR 3025(b). In the absence of prejudice or surprise resulting directly from the delay in seeking leave, these applications will be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. A determination whether to grant  leave is within the Supreme Court's broad discretion, and the exercise of that discretion likely will not be disturbed on appeal.  In exercising its discretion, the court will consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated and whether the movant has offered a reasonable excuse for the delay.

Case:  Civil Serv. Empls. Assn. v. County of Nassau, NY Slip Op 08038 (2d Dep't November 30, 2016)

Here is the decision.

Monday's issue:  The storm in progress rule.

Thursday, December 8, 2016

A forensic examination of a computer system.

The Appellate Division affirmed the denial of the motion to appoint an expert to conduct a forensic examination of plaintiff's computer system.  A court may order discovery of electronically stored information where the party seeking the discovery makes a showing that includes that the files sought can actually be obtained by the methods suggested. Here, though, defendants do not seek any particular document, but, instead, an examination of plaintiff's drives to determine whether any documents exist that have not been exchanged or obtained from third parties. Although defendants had also previously sought to determine when particular invoices were created, plaintiff has admitted that they were all created together, outside of its accounting program, and backdated, mooting that basis for forensic examination of plaintiff's system.

Case:  Shop Architects, P.C. v 25th St. Art Partners LLC, NY Slip Op 08121 (1st Dep't December 1, 2016)

Here is the decision.

Tomorrow's issue:  Interposing a defense waived under CPLR 3211(e).

Wednesday, December 7, 2016

Denial of a motion to join actions.

The Appellate Division affirmed denial of the motion to join three unrelated actions for trial: a motor vehicle negligence action, a premise liability action, and a medical malpractice action. When Supreme Court decided the motion, the motor vehicle negligence action was ready for trial, while the other two actions were still in discovery. Where actions are at completely different procedural postures with one ready for trial and the other in discovery, denial of a joint trial is appropriate, as it would unduly delay the resolution of the older action.

In addition, the cases involve different facts, witnesses, claims, injuries, and defendants. As such, individual issues predominate so as to preclude the direction of a joint trial.

Case:  Gillard v. Reid, NY Slip Op 08120 (1st Dep't December 1, 2016)

Here is the decision.

Tomorrow's issue:  A forensic examination of a computer system.

Tuesday, December 6, 2016

The preclusive effect of res judicata.

Practice point:  The doctrine of res judicata precludes a party from relitigating a claim that has been finally adjudicated on the merits. Although, generally, an order granting a motion pursuant to CPLR 3211(a)(7) is not a determination on the merits, such a determination has preclusive effect as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint.

Case:  Blake v. City of New York, NY Slip Op 08036 (2d Dep't November 30, 2016)

Here is the decision.

Tomorrow's issue:  Denial of a motion to join actions.

Monday, December 5, 2016

A motion for leave to renew.

The motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination," and must contain reasonable justification for the failure to present such facts on the prior motion.  It is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation. While law office failure can be accepted as a reasonable excuse in the exercise of the court's sound discretion, the movant must submit supporting facts to explain and justify the failure, and mere neglect is not accepted as a reasonable excuse.

Case:  Assevero v. Rihan, NY Slip Op 08032 (2d Dep't November 30, 2016)

Here is the decision.

Tomorrow's issue:  The preclusive effect of res judicata.

Friday, December 2, 2016

Ladders and the Labor Law.

Plaintiff established his entitlement to partial summary judgment on his Labor Law § 240(1) claim through witnesses' testimony that the ladder from which he was descending suddenly kicked out to the left, resulting in his fall. Contrary to the motion court's finding, plaintiff was not required to demonstrate that the ladder was defective in order to satisfy his prima facie burden.

In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident. Plaintiff was not responsible for setting up the ladder, and there was no testimony establishing the existence of any other readily available, adequate safety devices at the work site. In addition, given the undisputed testimony that the ladder kicked out because it was unsecured, the testimony that plaintiff unsafely descended from the ladder by carrying pipe fittings in his arms established, at most, contributory negligence, a defense inapplicable to a § 240(1) claim.

Case:  Fletcher v. Brookfield Props., NY Slip Op 08105 (1st Dep't December 1, 2016)

Here is the decision.

Monday's issue: A motion for leave to renew.

Thursday, December 1, 2016

Judicial review of an agency's determination.

Practice point:  Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence. Substantial evidence is more than seeming or imaginary, and it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt. The standard demands only that a given inference is reasonable and plausible, not necessarily the most probable.

Case:  Matter of Clan Fitz, Inc. v. New York State Liq. Auth., NY Slip Op 07952 (2d Dep't November 23, 2016

Here is the decision.

Tomorrow's issue: Ladders and the Labor Law.