Thursday, August 17, 2017

The public's right to access to the courts.

Practice point:  While public policy mandates free access to the courts, a party may forfeit that right if she or he abuses the judicial process by engaging in meritless litigation motivated by spite or ill will.

Case:  Pavic v. Djokic, NY Slip Op 05735 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  A cause of action sounding in negligence.

Wednesday, August 16, 2017

The continuing wrong doctrine.

Practice point:  Where there is a series of continuing wrongs, the doctrine tolls the limitation period until the date of the commission of the last wrongful act.

Case:  Palmeri v. Wilkie Farr & Gallagher LLP, NY Slip Op 05794 (1st Dep't July 25, 2017)

Here is the decision.

Tomorrow's issue:  The public's right to access to the courts.

Tuesday, August 15, 2017

Contract interpretation.

Practice point:  The objective in interpreting a contract is to determine the parties' intent from the language they used and to fulfill their reasonable expectations.  The court's role is to enforce the parties' agreement made by the parties, not to add, excise or distort the meaning of the terms they chose to include, thereby creating a new contract under the guise of construction. 

Student note:  Although words are generally afforded their ordinary meaning, technical words are to be given their generally accepted technical meaning, and interpreted as usually understood by the persons in the profession or business to which they relate.

Case:  Landmark Ventures, Inc. v. H5 Tech., Inc., NY Slip Op 05713 (2d Dep't July 19, 2017)

Here is the decision. 

Tomorrow's issue:  The continuing wrong doctrine.

Monday, August 14, 2017

Routine maintenance and a Labor Law claim.

Practice point:  Routine maintenance is outside the scope of Labor Law § 240(1). Work constitutes routine maintenance when it involves replacing components that, in the course of normal wear and tear, require replacement.

Student note: To prevail on a cause of action under Labor Law § 240(1), a plaintiff must establish that the injury occurred while erecting, demolishing, repairing, altering, painting, cleaning, or pointing a building or structure.

Case:  Ferrigno v. Jaghab, Jaghab & Jaghab, P.C., NY Slip Op 05709 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  Contract interpretation.

Friday, August 11, 2017

The emergency doctrine.

Under the doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor will not be negligent if, in context, the actor's actions are reasonable and prudent.

Practice point:  A driver traveling on a road controlled by a stop sign who fails to yield the right of way is in violation of Vehicle and Traffic Law § 1142(a), and is negligent as a matter of law.

Student note:  If the offending vehicle's driver blames brake failure, the driver must show that the brake problem was unanticipated.

Case:  D'Augustino v. Bryan Auto Parts, Inc., NY Slip Op 05708 (2d Dep't July 19, 2017)

Here is the decision.

Monday's issue:  Routine maintenance and a Labor Law claim.

Thursday, August 10, 2017

A religious corporation's sale of real property.

Practice point:  Religious Corporations Law § 12(1) provides that in order to sell any of its real property, a religious corporation must apply for, and obtain, leave of court, pursuant to Not-For-Profit Corporation Law § 511.

Student note:  The purpose of this requirement is to protect the members of the religious corporation, the real parties in interest, from loss through unwise bargains and from misuse of the property.

Case:  Heights v. Schwarz, NY Slip Op 05707 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  The emergency doctrine.

Wednesday, August 9, 2017

In a trip-and-fall action, a trivial defect.

Practice point:  In moving to dismiss on this basis, a defendant must make a prima facie showing that the defect is physically insignificant, and that the characteristics of the defect or the surrounding circumstances do not increase the risk it poses.

Student note:  On a sufficient showing, the burden shifts to the plaintiff to establish an issue of fact.

Case:  Chojnacki v. Old Westbury Gardens, Inc., NY Slip Op 05706 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  A religious corporation's sale of real property.

Tuesday, August 8, 2017

Dismissal of a legal malpractice claim.

Practice point: To recover damages for legal malpractice, 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 breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages.

Student note:  Establishing causation requires a showing that, but for the lawyer's negligence, the plaintiff would have prevailed in the underlying action, or would not have incurred any damages.

Case:  Burbige v. Siben & Ferber, NY Slip Op 05704 (2d Dep't July 19, 2017)

Tomorrow's issue:  In a trip-and-fall action, a trivial defect.

Monday, August 7, 2017

An age and disability discrimination claim.

Plaintiff commenced this action to recover damages for employment discrimination on the basis of disability and age in violation of the New York State Human Rights Law, at Executive Law § 296 (NYSHRL) and the New York City Human Rights Law, at Administrative Code of City of NY § 8-107 (NYCHRL). Plaintiff alleges that defendant terminated her employment because she was physically restricted from performing a certain filing task, as she had recently undergone surgery and was still recovering.  Plaintiff also alleges that, after the termination, her employer misrepresented the facts of her discharge to the New York State Department of Labor in order to prevent her from claiming unemployment benefits.

The Appellate Division reversed the motion court's denial of summary judgment for defendant, and dismissed the complaint. 

Practice points:  As to the alleged violations of the NYSHRL, defendant submitted plaintiff's medical documentation indicating that she was cleared to return to work "without restrictions." This evidence establishes, prima facie, that plaintiff did not suffer a disability requiring any accommodation.  Defendant met its burden of offering a legitimate, nondiscriminatory reason for terminating plaintiff's employment and demonstrated that there were no material issues of fact as to whether those explanations were pretextual.

As to the alleged violations of the NYCHRL, defendant made a prima facie showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in its challenged actions.

Student note:  The testimony of defendant's employees before the New York State Department of Labor was absolutely privileged.

Case:  Bull v. Metropolitan Jewish Health Systems, Inc., NY Slip Op 05703 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  Dismissal of a legal malpractice claim.

Friday, August 4, 2017

Determining the amount and duration of maintenance.

Practice point:  The court will consider factors such as the duration of the marriage; the parties' standard of living during the marriage; the parties' income and property; the distribution of marital property; the parties' health; the parties' present and future earning capacity; the ability of the party seeking maintenance to become self-supporting; and the reduced or lost lifetime earning capacity of the party seeking maintenance.

Student note:  The determination is committed to the sound discretion of the trial court, and it will be made on the unique facts before the court. 

Case:  Brinkmann v. Brinkmann, NY Slip Op 05702 (2d Dep't July 19, 2017)

Here is the decision.

Monday's issue:  An age and disability discrimination claim.

Thursday, August 3, 2017

Vacating an arbitration award for partiality.

Practice point:  To vacate the award because of evident partiality under the Federal Arbitration Act (9 U.S.C. § 10[a][2], the movant must show that, given the totality of the circumstances, a reasonable person would have to conclude that an arbitrator was partial to one party.  While this showing requires something more than the mere appearance of bias, proof of actual bias is not required. Instead, a finding of partiality can be inferred from objective facts inconsistent with impartiality. While actual knowledge of a conflict can be dispositive of the evident partiality test, the absence of actual knowledge is not.

Student note:  The court will consider factors such as (1) the extent and character of the personal interest, pecuniary or otherwise, of the arbitrator; (2) the directness of the relationship between the arbitrator and the party he is alleged to favor; (3) the connection of that relationship to the arbitrator; and (4) the proximity in time between the relationship and the arbitration proceeding.

Case:  Matter of TCR Sports Broadcasting Holding, LLP v. WN Partner, LLC, NY Slip Op 05689 (1st Dep't July 13, 2017)

Here is the decision. 

Tomorrow's issueDetermining the amount and duration of maintenance.

Wednesday, August 2, 2017

An unenforceable arbitration provision.

Practice point:  An arbitration provision which prohibits class, collective, or representative claims violate the National Labor Relations Act and is unenforceable.

Case:  Gold v. New York Life Ins. Co., NY Slip Op 05695 (1st Dep't July 18, 2017)

Here is the decision.

Tomorrow's issue: Vacating an arbitration award for partiality.

Tuesday, August 1, 2017

A claim for injuries caused by a domestic animal.

Practice point:  New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal.  The settled law in New York is that a domestic animal's owner who either knows or should have known of the animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities.

Student note:  Once this knowledge is established, the owner faces strict liability.

Case:  Abrahams v. City of Mount Vernon, NY Slip Op 05699 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  An unenforceable arbitration provision.

Monday, July 31, 2017

A hearing on an application for the award of attorney's fees.

Practice point:  The plaintiff waived his right to a hearing on the defendant's application by agreeing that, although "each party retains the right to appeal any order of this court with respect to counsel fees," the parties' respective applications for an award of an attorney's fee would be "done simultaneously without a right to oppose or reply."

Case:  Fishman v. Solomon, NY Slip Op 05581 (2d Dep't July 12, 2017)

Here is the decision.

Tomorrow's issue:  A claim for injuries caused by a domestic animal.

Friday, July 28, 2017

A breach of contract claim.

The law office-defendant, an LLC, opened an IOLA account with the bank-plaintiff and deposited a purported client's cashier's check into the account. Shortly thereafter, the client, through the law office, directed that the majority of the funds be wired to two international parties. Although the bank's business deposit accounts brochure says that a transfer of more than $5,000 out of a new account will be made only after nine business days, the money was wired out of the account before the ninth business day, after the bank's employees had verified by telephone with the clearinghouse bank that the check had cleared. A few days later, it was discovered that the check was fraudulent.

Practice point:  The breach of contract claim was dismissed as against the lawyer because he is not the named customer on the bank account, and there is no basis for holding him liable in the documents that comprise the application to open the account. The negligence cause of action also was dismissed as against him. Limited Liability Company Law § 1205(a) makes an LLC's member liable for negligence in the furnishing of services, that is, malpractice. Here, however, neither the lawyer nor the LLC were providing personal services to the bank; they were acting as its customer. Additionally, there are no allegations otherwise supporting a personal claim against the lawyer based on piercing the corporate veil.

Case:  Metropolitan Commercial Bank v. Levy, NY Slip Op 05505 (1st Dep't July 6, 2017)

Here is the decision. 

Tomorrow's issue:  A hearing on an application for the award of attorney's fees.

Thursday, July 27, 2017

Forum selection clauses.

Practice point:  Where a contracting party has agreed to submit to the jurisdiction of a court, that party is precluded from disputing the court's jurisdiction on the grounds of forum non conveniens.

Case:  Honeywell Intl. Inc. v. ARC Energy Servs., Inc. NY Slip Op 05686 (1st Dep't July 13, 2017)

Here is the decision. 

Tomorrow's issue:  A breach of contract claim.

Wednesday, July 26, 2017

An alleged breach of the employer's fiduciary duty.

Practice point:  An employer-employee relationship, without more, does not give rise to a fiduciary duty.

Case:  Brook v. Peconic Bay Med. Ctr., NY Slip Op 05681 (1st Dep't July 13, 2017)

Here is the decision.

Tomorrow's issue:  Forum selection clauses.

Tuesday, July 25, 2017

An emailed settlement agreement.

The Appellate Division reversed the motion court and granted defendant's motion to enforce the settlement agreement. The emails between the parties' counsels counsel sufficiently set forth an enforceable agreement to settle plaintiffs' claims, and plaintiff's counsel, who had authority to bind the plaintiff, accepted the defendant's offer..

Practice point:  Counsel typed his name at the end of the email accepting defendants' offer, which satisfied CPLR 2104's requirement that settlement agreements be in a writing subscribed by the party or the party's attorney.

Case:  Jimenez v. Yanne, NY Slip Op 05677 (1st Dep't July 13, 2017)

Here is the decision.

Tomorrow's issue:  An alleged breach of the employer's fiduciary duty.

Monday, July 24, 2017

An affidavit submitted in oppositon to summary judgment.

Practice point:   The motion court may consider the affidavit even though it is notarized out-of-state and lacks a certificate of conformity, pursuant to CPLR 2309(c).

Case:  Redlich v. Stone, NY Slip Op 05676 (1st Dep't July 13, 2017)

Here is the decision.

Tomorrow's issue:  An emailed settlement agreement.

Friday, July 21, 2017

Motions to compel or stay arbitration.

Practice point:  On the motion, the court will first determine whether the parties have agreed to submit their disputes to arbitration, and, if so, whether this dispute comes within the scope of their agreement.  The court will apply ordinary state-law principles that govern the formation of contracts.

Case: Degraw Constr. Group, Inc. v. McGowan Bldrs., Inc., NY Slip Op 05580 (2d Dep't July 12, 2017)  

Here is the decision.

Monday's issue:  An affidavit submitted in opposition to summary judgment.

Thursday, July 20, 2017

Documentary evidence and dismissal.

Practice point:  A motion to dismiss a complaint based upon documentary evidence under CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence for the purpose of a motion to dismiss, the evidence must be unambiguous and of undisputed authenticity. Affidavits, deposition testimony, and letters are not considered documentary evidence within the meaning of the statute. 

Case:  Board of Mgrs. of 100 Congress Condominium v. SDS Congress, LLC, NY Slip Op 05414 (2d Dep't July 5, 2017) 

Here is the decision. 

Tomorrow's issue:  Motions to compel or stay arbitration.

Wednesday, July 19, 2017

Conspiracy to commit fraud.

Practice point:  New York does not recognize a cause of action for conspiracy to commit fraud.

Case:  Maheras v. Awan, NY Slip Op 05309 (1st Dep't June 29, 2017)

Here is the decision. 

Tomorrow's issue:  Documentary evidence and dismissal.

Tuesday, July 18, 2017

Specific performance as to real property.

Practice point:  To prevail on a cause of action for specific performance of a contract for the sale of real property, a purchaser-plaintiff must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations; that the vendor was able to convey the property; and that there is no adequate remedy at law.

Case:  1107 Putnam, LLC v. Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., NY Slip Op 05411 (2d Dep't July 5, 2017)

Here is the decision.

Tomorrow's issue:  Conspiracy to commit fraud.

Monday, July 17, 2017

A defendant's cross-motion for summary judgment dismissing the complaint.

The plaintiff alleges that he was riding a bicycle in Queens when a minivan owned and operated by the defendant pulled out of a driveway and struck him. Later that evening, the plaintiff returned to the accident site, identified the minivan he believed was involved in the accident, and recorded its license plate number. The plaintiff commenced this action to recover damages for personal injuries. The defendant cross-moved for summary judgment dismissing the complaint, contending that the plaintiff's deposition testimony revealed that the plaintiff would be unable to prove that the defendant's vehicle was the vehicle involved in the accident. The Supreme Court denied the cross motion, concluding that the defendant had failed to establish, prima facie, that his vehicle was not involved in the accident. The Appellate Division affirmed.

Practice point:  A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case. Here, the defendant failed to make a prima facie showing of his entitlement to judgment as a matter of law because he offered no evidence to affirmatively demonstrate that his vehicle was not the vehicle that struck the plaintiff. Although the defendant pointed to alleged gaps in the plaintiff's proof revealed by the plaintiff's deposition testimony, this was insufficient to satisfy his initial burden. Since the defendant failed to sustain his prima facie burden, the Supreme Court properly denied his cross motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers.

Case:  Feldberg v. Skorupa, NY Slip Op 05199 (2d Dep't June 28, 2017)

Here is the decision

Tomorrow's issue:  Specific performance as to real property.

Friday, July 14, 2017

A claim of libel per se.

After the plaintiff installed a custom home theater system in the defendant's home, the defendant posted a review of the plaintiff's services on the Internet website Yelp.com. The plaintiff commenced this action, alleging that the review constituted libel per se. The defendant moved to dismiss, pursuant to CPLR 3211(a)(7). The Supreme Court granted the defendant's motion, and the Appellate Division affirmed.

Practice point:  A libel action cannot be maintained unless it is premised on published assertions of fact.  Whether an allegedly defamatory statement constitutes actionable fact or nonactionable opinion is a question of law to be resolved by the courts. In resolving that question, rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the courts should consider the content of the communication as a whole, and look to the over-all context in which the assertions were made in order to determine  whether a reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff.

Here, given the context in which the challenged statements were made, and viewing the content of the review as a whole, a reasonable reader would believe that the review's writer was a dissatisfied customer who was expressing an opinion.

Case:  Crescendo Designs, Ltd. v. Reses, NY Slip Op 05198 (2d Dep't June 28, 2017)

Here is the decision.

Monday's issue:  A defendant's cross-motion for summary judgment dismissing the complaint.

Thursday, July 13, 2017

A landowner's duty of care.

Practice point:  A landowner has a duty to exercise reasonable care in maintaining the property in a safe condition under all circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property.  However, there is no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by persons using the property.

Case:  Commender v. Strathmore Ct. Home Owners Assn., NY Slip Op 05197 (2d Dep't June 28, 2017)

Here is the decision.

Tomorrow's issue:  A claim of libel per se.

Wednesday, July 12, 2017

An action in tort against the Transit Authority.

Practice point:  Service of a notice of claim within 90 days of accrual of the claim is a condition precedent to an action sounding in tort against the MTA and the Transit Authority.

Case:  Brunache v. MV Transp., Inc., NY Slip Op 05196 (2d Dep't June 28, 2017)

Here is the decision.

Tomorrow's issue:  A landowner's duty of care.

Tuesday, July 11, 2017

Precluding photos of an accident site.

In this personal injury action, plaintiff alleged that he was on foot, crossing the street, when he fell into a sinkhole.  Hi's theory of the case is that the City and its pavement restoration contractor, a third-party defendant, performed the work that resulted in the sinkhole.

At trial, the court precluded plaintiff from introducing into evidence photographs of the sinkhole, taken two weeks after the accident, finding that they did not fairly and accurately depict the way the accident site looked on the date of the accident.

The Appellate Division said that the trial court erred in precluding the photos.

Practice point:  Plaintiff authenticated the photos at his deposition, and testimony at trial could have explained how and why the scene depicted in the photos did or did not differ from  the site on the day of the accident. Excluding the photos meant that plaintiff was not able to show the jury the hole into which he allegedly fell.

Case:  Gonzalez v. City of New York, NY Slip Op 05180 (1st Dep't June 27, 2017)

Here is the decision.

Tomorrow's issue:  An action in tort against the Transit Authority.

Monday, July 10, 2017

Dismissal for lack of personal jurisdiction.

The Appellate Division reversed, and dismissed the complaint, finding that defendants did not conduct activities in New York, thereby invoking the benefits and protections of its laws and establishing personal jurisdiction. The telephone and email communications between the Latvian defendants and plaintiff's New York office, concerning a contemplated association in the acquisition of a Latvian bank, with no presence in New York, do not constitute the transaction of business in New York.

In addition, defendants never entered New York in connection with their dealings with plaintiff; the parties' electronic communications also ran between defendants and plaintiff's London office; plaintiff traveled to Latvia in connection with this matter; and, if the bank were acquired, the parties' contemplated association would be centered in Latvia.

Practice point:  Even if New York had personal jurisdiction existed over defendants, the Appellate Division would dismiss on the ground of forum non conveniens, in view of Latvia's being the principal situs of the underlying transaction, the pendency in Latvia of an earlier-filed action between the same parties concerning this dispute, and the likely applicability of Latvian law under a grouping-of-contacts analysis.

Case:  Ripplewood Advisors, LLC v. Callidus Capital SIA, NY Slip Op 05157 (1st Dep't June 22, 2017)

Here is the decision.

Tomorrow's issue:  Precluding photos of an accident site.

Friday, July 7, 2017

Discovery sanctions.

In this action for attorneys' fees and costs, the Appellate Division affirmed the money judgment and the denial of the motion to vacate the dismissal.

The plaintiffs failed to comply with a so-ordered stipulation that the complaint would be dismissed unless the plaintiffs responded to the defendants' demand for interrogatories and notice for discovery and inspection that had been outstanding for more than two years, despite several court orders directing a response. Upon the plaintiffs' failure to comply, the conditional order became final and a judgment was entered dismissing the complaint.

Case:  150 Centreville, LLC v. Lin Assoc. Architects, P.C., NY Slip Op 05056 (2d Dep't June 21 2017)

Here is the decision.

Monday's issue:  Dismissal for lack of personal jurisdiction.

Thursday, July 6, 2017

Claims for prima facie tort and tortious interference.

Practice point:  It is well settled that prima facie tort is not designed to provide a catch-all alternative for every cause of action that cannot otherwise stand on its own. A tortious interference claim will fail where plaintiff was not a party to any contract with a third party, or where plaintiff does not identify any damages apart from those for which he already has been compensated.

Case:  Britt v. City of New York, NY Slip Op 05154 (1st Dep't June 22, 2017)

Here is the decision.

Tomorrow's issue:  Discovery sanctions.

Wednesday, July 5, 2017

A fall at work.

The Appellate Division affirmed denial of defendant's motion for dismissal in this action where the plaintiff, a school employee, alleges that, while walking in a hallway, she slipped and fell on water after the floor had been mopped by a nonparty employee of the defendant.

The Appellate Division found that plaintiff's affidavit presents a triable issue of fact as to whether a there was a special employee relationship between the school and the nonparty employee.  Plaintiff set forth that no one from the school supervised his work or directed his daily schedule, and that the school did not provide him with equipment or a uniform.

Practice point:  The motion court properly considered plaintiff's affidavit, as it did not contradict her deposition testimony. In addition, plaintiff's deposition testimony and affidavit provide a non-speculative basis for her account of the accident, and sufficiently demonstrates a nexus between the hazardous condition and the circumstances of her fall, because she testified that immediately after she fell she saw that the floor was wet and that nearby there was a janitor's cart with wet floor signs attached to it.

Case:  Cartagena v. Access Staffing, LLC, NY Slip Op 05025 (1st Dep't June 20, 2017)

Here is the decision.

Tomorrow's issue: Claims for prima facie tort and tortious interference.

Tuesday, July 4, 2017

Court holiday.

                                         Our soldiers' lives and their families' tears.


                                            55 Water Street. Please visit some time.
             

Monday, July 3, 2017

A fall in the laundry room.

The Appellate Division reversed, and dismissed the complaint as against building owner-defendant in this action where plaintiff's decedent allegedly slipped and fell on a puddle of water in the laundry room of his apartment building. The decedent was deposed before he died. He testified that, as was his custom, on the day of the incident he went to the laundry room twice in the early morning hours. The first time, when he went to load some wet clothes into a dryer, he did not see any water on the floor. No one else was there, and no other machines were in use. He left without incident, and then returned to remove his clothes from the dryer. Again, no one else was there, and no machines were in use. The dryer had already come to a stop. He took his clothes from the dryer, and as he took one step away from the dryer,  he slipped and fell. After he fell, he saw, for the first time, that there was water on the floor.

Practice point:  In a slip-and-fall action, a defendant who moves for summary judgment has the initial burden of establishing, prima facie, that it neither created the alleged hazardous condition nor had [actual or constructive notice of its existence. To provide constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it.

Here, the evidence submitted by the defendant in support of its motion, including the decedent's deposition testimony, was sufficient to establish, prima facie, that the defendant did not create the alleged hazardous condition or have actual or constructive notice of it. A general awareness that the laundry room floor could become wet  is legally insufficient to constitute constructive notice of the particular condition that allegedly caused the decedent to slip and fall.

Case:  Adamson v. Radford Mgt. Assoc., LLC, NY Slip Op 05057 (2d Dep't June 2, 2017)

Here is the decision.

Wednesday's issue:  A fall at work.

Friday, June 30, 2017

Spoilation of evidence.

Practice point:  New York does not recognize spoilation of evidence as an independent tort. 

Case:  LaLima v. Consolidated Edison Co. of N.Y., Inc., NY Slip Op 04825 (1st Dep't June 14, 2017) 

Here is the decision.  

Monday's issue:  A fall in the laundry room.

Thursday, June 29, 2017

Medical malpractice and the continuous treatment doctrine.

The Appellate Division affirmed dismissal as against defendant Health and Hospitals Corporation in this action where plaintiff alleges that defendants were negligent in failing to timely diagnose a cancerous wound. The motion court granted HHC's motion to dismiss the claims based on plaintiff's own conduct and his failure to file a timely notice of claim, in violation of General Municipal Law § 50-e(1)(a).

Plaintiff was discharged from an HHC hospital in November 2010 and did not return to an HHC hospital for treatment until May 2012, when he received the cancer diagnosis. The notice of claim was filed shortly after plaintiff's discharge from the hospital in October 2012, more than 90 days after the claim's accrual in November 2010.

Practice point:  The Appellate Division rejected plaintiff's contention that both the November 2010 and May 2012 visits were part of a continuous course of treatment, tolling the period for filing a notice of claim, pursuant to CPLR 214-a   It is clear that, at the time of plaintiff's 2010 discharge,  HHC anticipated that it would provide further treatment.  However, it also is clear that plaintiff did not anticipate any further treatment by HHC. as, in the interim period, he began treatment by a co-defendant acupuncturist who plaintiff thought was a licensed physician.  Plaintiff's actions indicated an intention to discontinue his relationship with HHC, and, therefore, his return visit must be deemed a renewal, rather than a continuation, of the physician-patient relationship.

Case:  Jianfeng Jiang v. Xue Chao Wei, NY Slip Op 04896 (1st Dep't June 15, 2017)

Here is the decision.

Tomorrow's issue:  Spoilation of evidence.

Wednesday, June 28, 2017

Standing to sue a bank for the return of a check.

The Appellate Division affirmed dismissal of this action where plaintiff asserts that he and a friend went together to his friend's bank, because he wanted to cash a check, and, due to his immigration status, he had no identification. The two signed their names in front of the teller, before sliding the check under the teller window, with a deposit slip that instructed to clear the funds into the friend's account. The bank rejected the deposit, closed the friend's account, and did not issue a replacement check until several months later.

Practice point:  When plaintiff endorsed and delivered the check to his friend, the friend became the holder of the check, pursuant to NY UCC 3-202[1]. Thus, only the friend was entitled to negotiate the check or to enforce payment in his own name, pursuant to NY UCC 3-301[1]. Plaintiff's argument that he, as payee of the check, is entitled to enforce its return or payment is unavailing. Plaintiff lacks standing to sue the bank for the return or proceeds of the check, because he is no longer the holder of the check.

Case:  Delight Bvunzawabaya v. JP Morgan Chase & Co., NY Slip Op 04891 (1st Dep't June 15, 2017)

Here is the decision.

Tomorrow's issue:  Medical malpractice and the continuous treatment doctrine.

Tuesday, June 27, 2017

CPLR 205(a).

CPLR § 205. Termination of action. (a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

Practice point:  An out-of-state action is not a "prior action" within the meaning of the statute.

Case in point:  Deadco Petroleum v. Trafigura AG, NY Slip Op 04887 (1st Dep't June 15, 2017)

Here is the decision.

Tomorrow's issue:  Standing to sue a bank for the return of a check.

Monday, June 26, 2017

A non-resident's consent to jurisdiction.

The Appellate Division reversed the motion court and dismissed the complaint in this action where the plaintiff alleges that he brokered a deal for the purchase of a company, and that the defendants agreed that, on entering into a purchase agreement, they would pay him a commission, but did not. The defendants moved  to dismiss pursuant to CPLR 3211(a)..

Practice point:   A non-resident's consent to jurisdiction for issues arising out of the purchase agreement does not constitute a consent with respect to plaintiff's claims for a commission.

Case in point:  Ausch v. Sutton, NY Slip Op 04813 (2d Dep't June 14, 2017)

Here is the decision.

Tomorrow's issue:  CPLR 205(a).

Friday, June 23, 2017

Failure to state a claim as an affirmative defense.

Practice point:  The Appellate Division stated the the motion court was not free to dismiss the affirmative defense of failure to state a claim, as failure to state a claim may be raised at any time, even if not pleaded, pursuant to CPLR 3211[e], and, therefore, is mere surplusage as an affirmative defense.

Case:  San-Dar Assoc. v. Fried, NY Slip Op 04884 (1st Dep't June 15, 2017)

Here is the decision.

Monday's issue:  A non-resident's consent to jurisdiction.

Thursday, June 22, 2017

Hearsay on a summary judgment motion.

Practice point:  While hearsay may be considered in opposition to a motion for summary judgment, it is insufficient to raise a triable issue of fact where it is the only evidence upon which the opposition to the motion is predicated.

Case:  Alpha Invs., LLC v. McGoldrick, NY Slip Op 04812 (2d Dep't June 14, 2017)

Here is the decision.

Tomorrow's issue:  Failure to state a claim as an affirmative defense.

Wednesday, June 21, 2017

Law of the case and sua sponte dismissal.

The Appellate Division reversed, and reinstated the complaint in this action where plaintiff, as administrator of the estate commenced a medical malpractice suit against, among others, defendant-physician. Defendant's motion for summary judgment was denied. The action was assigned to a different judge, and set for trial.  After jury selection, the complaint was dismissed insofar as asserted against other defendants, and, in light of the dismissal as to those defendants, the Supreme Court declared a mistrial, with jury selection to begin anew. After a second jury was selected, the court, sua sponte, directed a hearing, denominated as a Frye hearingat which the plaintiff's medical expert, was to testify in order to determine whether his opinion rendered in this case as to defendant was sufficiently reliable. Following the hearing, the court directed dismissal of the complaint insofar as asserted against defendant.

Practice point:  A Frye hearing is meant to determine whether an expert's opinion is based on principles that are sufficiently established to have gained general acceptance as reliable. Here, though, based on the court's questions and statements, the Appellate Division determined that the hearing's purpose was to revisit the determination made in the order denying defendant's motion for summary judgment insofar as asserted against her. In doing so, the court violated the doctrine of law of the case by disregarding the prior order, issued by a justice of coordinate jurisdiction, concluded that there were triable issues of fact as to whether defendant departed from accepted medical standards of care and whether such departures were a proximate cause of the decedent's injuries.

In addition, a court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal. Here, there were no extraordinary circumstances warranting the sua sponte dismissal of the complaint insofar as asserted against defendant.

Case in point:  Aguilar v. Feygin, NY Slip 04811 (2d Dep't June 14, 2017)

Here is the deision.

Tomorrow's issue:  Hearsay on a summary judgment motion.

Tuesday, June 20, 2017

Respondeat superior.

The Appellate Division reversed the motion and dismissed the complaint as against the employer-defendant, in this action where plaintiff was severely injured when, while standing on the sidewalk, a taxicab hopped the curb and struck her. Just before the accident, the taxi driver had an altercation with a bike messenger, who allegedly banged his hands and fists against the taxi.  Allegedly, the taxi driver then steered his vehicle into the messenger, striking plaintiff in the process. Plaintiff alleges that the messenger's employer is vicariously liable for the messenger, who incited the altercation.

While the determination of whether an employee's act is within the scope of his employment is heavily dependent on factual considerations, the complaint failed to state a cause of action the employer on the theory of respondeat superior. Accepting the allegation that the messenger was an employee at the time of the accident, his alleged conduct cannot be reasonably viewed as falling within the scope of his employment. Although the precipitating dispute might have arisen while the messenger was acting in the course of his employment in making deliveries, his alleged inciting of an altercation or provoking the taxicab driver's assault cannot reasonably be construed as part of his duties as a bike messenger, or as acting in furtherance of his employer's interests. The complaint does not allege that the employer condoned, instigated or authorized the messenger's actions.

Case:  Green v. Himon, NY Slip Op 04777 (1st Dep't June 13, 2017)

Here is the decision.

Tomorrow's issue:  Law of the case and sua sponte dismissal.

Monday, June 19, 2017

Applicability of the Workers' Compenstion Law.

Practice point:  Primary jurisdiction as to the applicability of the statute is vested in the Workers' Compensation Board., and where the availability of workers' compensation hinges on the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum to resolve the questions. Plaintiff has no choice but to litigate this issue before the Board, and the question of whether a person is an employee within the meaning of the statute is for the Board to determine in the first instance. The Board's findings are final and conclusive unless reversed on direct appeal, and are not subject to collateral attack in a plenary action. This is so even where, as here, the employer has filed a claim on the employee's behalf and the employee did not apply for or accept benefits.  Whether the employee or the employer first brings the injury to the Board's attention, the Board's finding that the injury is compensable is, until set aside, a final and conclusive determination which bars an action at law.

Case:  Aprile-Sci v. St. Raymond of Penyafort R.C. Church, NY Slip Op 04412 (2d Dep't June 7, 2017)

Here is the decision.

Monday's issue:  Respondeat superior.

Friday, June 16, 2017

A Labor Law § 241(6) claim.

Practice point:  The motion court properly exercised its discretion in granting plaintiffs' motion for leave to amend their bill of particulars, to allege violations of Industrial Code §§ 23-1.7(b)(1) and 23-4.2(h) in support of the Labor Law § 241(6) claim, since an amendment to allege a specific section of the Industrial Code is appropriately permitted, in the absence of unfair surprise or prejudice, even after a note of issue has been filed.

Labor Law § 241(6) imposes on owners a nondelegable duty to comply with specific safety regulations. Industrial Code § 23-1.7(b)(1) requires that "hazardous opening[s] into which a person may step or fall" must "be guarded by a substantial cover . . . or by a safety railing." Industrial Code § 23-4.2(h) requires that "[a]ny open excavation adjacent to a . . . street, . . . or other area lawfully frequented by any person shall be effectively guarded."

Case in point:  Gjeka v. Iron Horse Transp., Inc., NY Slip Op 04536 (1st Dep't June 8, 2017)

Here is the decision.

Monday's issue:  Applicability of the Workers' Compensation Law.

Thursday, June 15, 2017

An insufficient claim for an accounting.

Practice point:  In the absence of an allegation that plaintiffs demanded an accounting, the claim fails to state a cause of action.

Case in point:  New York Studios, Inc. v. Steiner Digital Studios, NY Slip Op 04397 (1st Dep't June 6, 2017)

Here is the decision. 

Tomorrow's issue: A Labor Law § 241(6) claim.

Wednesday, June 14, 2017

Leave to amend a pleading.

Practice point:  Leave to amend a pleading will be freely given in the absence of prejudice or surprise to the opposing party, pursuant to CPLR 3025[b].  The motion for leave will be be denied, however, where the proposed amendment is palpably insufficient or patently devoid of merit.Whether to grant such leave is within the motion court's discretion, the exercise of which will not be lightly disturbed by the Appellate Division.

Case in point:  APF Mgt. Co., LLC v. Munn, NY Slip Op 04411 (2d Dep't June 7, 2017)

Here is the decision.

Tomorrow's issue:   An insufficient claim for an accounting.

Tuesday, June 13, 2017

CPLR 3101(a).

Practice point:   The statute is liberally construed in order 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 and prolixity.  To compel a deposition, a defendant must show that the disclosure sought is material and necessary.  If a defendant is seeking disclosure from a nonparty witness, the defendant must provide notice of the circumstances or reasons why the disclosure is sought or required.

Case in point:  Alumil Fabrication, Inc. v. F.A. Alpine Window Mfg. Corp., NY Slip Op 04410 (2d Dep't June 7, 2017)

Here is the decision.

Tomorrow's issue:  Leave to amend a pleading.

Monday, June 12, 2017

Setting aside a jury verdict.

Practice point:  The verdict may not be set aside for legal insufficiency unless, based on the evidence, there is no valid line of reasoning and permissible inferences which could possibly lead rational jurors to the conclusion the jury reached.

Case in point:  Foley v. City of New York, NY Slip Op 04389 (1st Dep't June 6, 2017)

Here is the decision.

Tomorrow's issue:  CPLR 3101(a).

Friday, June 9, 2017

A common-law indemnification claim.

Practice point:  The claim may continue by parties who have been held vicariously liable for the party that actually caused the negligence that injured the plaintiff.

Case in point:  Chatham Towers, Inc. v. Castle Restoration & Constr., Inc., NY Slip Op 04368 (1st Dep't June 1, 2017)

Here is the decision.

Monday's issue:  Setting aside a jury verdict.

Thursday, June 8, 2017

A dismissed claim of fraud.

Practice point:  A plaintiff's general allegations that the defendant did not intend to perform on the contract are insufficient to support a cause of action sounding in fraud.

Case in point:  Mephisto Mgt., LLC v. Moon 170 Mercer, Inc., NY Slip Op 04365 (1st Dep't June 1, 2017)

Here is the decision.

Tomorrow's issue:  A common-law indemnification claim.

Wednesday, June 7, 2017

An allegation of default.

Practice point:  By their service of a motion to dismiss within the time extension granted by the court, defendants did not default.

Case in point:  Oparaji v. Yablon, NY Slip Op 04363 (1st Dep't June 1, 2017)

Here is the decision. 

Tomorrow's issue: A dismissed claim of fraud.

Tuesday, June 6, 2017

Pleading prior written notice of a sidewalk defect.

Practice point:  The Appellate Division affirmed dismissal where plaintiff alleged that, as she was exiting a bus, she tripped and fell over a pole sign's stump protruding from the sidewalk near the bus stop.  Plaintiff did not plead that the City received prior written notice of the sidewalk defect as required by Administrative Code of City of NY § 7-201(c)(2).

The City received a citizen complaint through 311 less than 15 days before plaintiff's accident, and repaired the condition a few days after the accident. Even if the complaint had been in writing, it could not constitute prior written notice for purposes of the statute, since it was received within the 15-day grace period provided by the statute for the City to make repairs after receiving notice.

Case in point:  Brown v. City of New York, NY Slip Op 04221 (1st Dep't May 30, 2017)

Here is the decision.

Tomorrow's issue:  An allegation of default.
     
 June 6, 1944

Monday, June 5, 2017

Misrepresentations, rescission, and fraudulent inducement.

Practice point:  While mere promissory statements as to what will be done in the future are not actionable, a promise actually was made with a preconceived and undisclosed intention of not performing it constitutes a misrepresentation of a material existing fact upon which an action for rescission may be based.  Such a misrepresentation is collateral to the agreement, and can be the basis of a fraudulent inducement claim.

Case in point:  White v. Davidson, NY Slip Op 04219 (1st Dep.t May 30, 2017)

Here is the decision.

Tomorrow's issue:  Pleading prior written notice of a sidewalk defect.

Friday, June 2, 2017

A valid defense of duress.

Practice point:  The defense is established upon the showing of a wrongful threat precluding the exercise of free will.  The threat of criminal prosecution is enough, as is the threat of deportation.

Case in point:  Yoon Jung Kim v. An, NY Slip Op 04201 (1st Dep't May 25, 2017)

Here is the decision.

Monday's issue:  Misrepresentations, rescission, and fraudulent inducement.

Thursday, June 1, 2017

A valid storm-in-progress defense.

Practice point:  A defendant is entitled to the defense where the evidence shows that the icy condition that allegedly forced plaintiff from the shoveled path developed during the snow storm that commenced shortly before the accident occurred.

Case in point:  Santiago v. New York City Hous. Auth., NY Slip Op 04053 (1st Dep't May 18, 2017)

Here is the decision.

Tomorrow's issue:  A valid defense of duress.

Wednesday, May 31, 2017

A defendant's failure to establish a prima facie case.

Practice:  A defendant cannot establish a prima facie case merely by pointing out gaps in the plaintiff's case.

Case in point:  Barone v. Elizabeth Firehouse, LLC, NY Slip Op 04052 (1st Dep't May 18, 2017)

Here is the decision.

Tomorrow's issue:  A valid storm-in-progress defense.

Tuesday, May 30, 2017

A contracting party's liability to a third party.

Practice point:  A party who enters into a contract to render services may be said to have assumed a duty of care, and be potentially liable in tort to a third party, where the contracting party launches a force or instrument of harm, such as by negligently creating or exacerbating a dangerous condition.

Case in point:  Brown v. Garda CL Atl., Inc., NY Slip Op 04049 (1st Dep't May 18, 2017)

Here is the decision.

Tomorrow's issue:  A defendant's failure to establish a prima facie case.

Friday, May 26, 2017

A misleveled elevator.

Practice point:  An elevator ordinarily does not mislevel in the absence of negligence, and where the misleveling is caused by an instrumentality or agency within the defendants' exclusive control and is not due to any voluntary action on a plaintiff's part, the case will be submitted to the jury on a theory of res ipsa loquitur.

When res ipsa applies, notice of a defect is inferred, and the plaintiff need not offer any evidence of actual or constructive notice. 

Case in point:  Rojas v. New York El. & Elec. Corp., NY Slip Op 04043 (1st Dep't May 18, 2017)

Here is the decision.

Tuesday's issue:  A contracting party's liability to a third party.

Thursday, May 25, 2017

CPLR 3215(c) and default judgments.

Practice point:  Pursuant to the statute, "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."

The single exception to the statute's mandatory language is that the failure to timely seek a default on an unanswered complaint or counterclaim may be excused for sufficient cause. Courts have interpreted this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious.

Case in point:  Bank of N.Y. v. Kushnir, NY Slip Op 03922 (2d Dep't May 17, 2017)

Here is the decision.

Tomorrow's issue:  A misleveled elevator.

Wednesday, May 24, 2017

A claim of unfair competition and misappropriation of confidential information.

Practice point:  To establish a cause of action for relief based on unfair competition, a plaintiff must demonstrate that the defendant wrongfully diverted the plaintiff's business to itself. To establish a cause of action based on misappropriation of confidential information, the plaintiff must show that the defendant solicited the plaintiff's customers where the customer list was a trade secret, or where the defendant engaged in wrongful conduct, such as physically taking or copying files or using confidential information.

Case in point:  Baldeo v. Majeed, NY Slip Op 03921 (2d Dep't May 19, 2017)

Here is the decision. 

Tomorrow's issue:  CPLR 3215(c) and default judgments.

Tuesday, May 23, 2017

The signatory's obligation to read the instrument, and a claim of notarial misconduct.

Practice point:  A party is obliged to read a document before signing it, and cannot avoid the document's effect by alleging ignorance of its contents.  A cause of action alleging that the plaintiff was induced to sign something different from what he or she thought was being signed only arises if the signatory is illiterate, blind, or not a speaker of the language in which the document is written.

A defendant establishes prima facie entitlement to judgement as a matter of law dismissing a notarial misconduct claim by presenting evidence that the plaintiff signed the document which contained the notary's acknowledgment. The plaintiff cannot raise a triable issue of fact with conclusory testimony that the he or she did not sign the document.

Case in point:   Anderson v. Dinkes & Schwitzer, P.C., NY Slip Op 03721 (2d Dep't May 10, 2017)

Here is the decision.

Tomorrow's issue:  A claim of unfair competition and misappropriation of confidential information.

Monday, May 22, 2017

CPLR Article 31, Freedom of Information Law (FOIL), and discovery.

Practice point: Article 31 is not a statute specifically exempting public records from disclosure under FOIL, and FOIL does not bar the simultaneous use of both CPLR 3101 and FOIL in order to procure discovery.

Case in point:  Smith v. Watson, NY Slip Op 03878 (1st Dep't May 11, 2017)

Here is the decision.

Tomorrow's issue:  The signatory's obligation to read the instrument, and a claim of notarial misconduct.

Friday, May 19, 2017

Dismissal of a slip- or trip-and-fall action.

Practice point:  In a slip- or trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the fall.  A plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence proximately caused the plaintiff's injuries would be based impermissibly on speculation.

Case in point:  Amster v. Kromer, NY Slip Op 03720 (2d Dep't May 10, 2017)

Here is the decision.

Monday's issue:  CPLR Article 31, Freedom of Information Law (FOIL), and discovery.

Thursday, May 18, 2017

Dismissal of an action alleging an elevator-related injury.

The Appellate Division reversed, and dismissed the complaint in this action where plaintiff was injured when, while performing an elevator inspection in defendants' building, the elevator's governor cable snapped and struck him. Plaintiff does not dispute that the work ticket summaries for the building's elevators for the prior six months do not indicate any problem with the governor cable.

Practice point:  Plaintiff's assertion that the alleged defect should have been discovered, notwithstanding the lack of indication of a problem in the work ticket summaries and the lack of complaints, is merely speculative.

Case in point:  Vilella v. Witkoff Group, LLC, NY Slip Op 03872 (1st Dep't May 11, 2017)

Here is the decision.

Tomorrow's issue:  Dismissal of a slip- or trip-and-fall action.

Wednesday, May 17, 2017

The doctrine of res judicata.

Practice point:  The doctrine bars the relitigation of any claims that were decided on the merits in a prior action.

Case in point:  Dipoumbi v. New York City Police Dept., NY Slip Op 03852 (May 11, 2017)

Here is the decision.

Tomorrow's issue:  Dismissal of an action alleging an elevator-related injury.

Tuesday, May 16, 2017

A claim of tortious interference with a contract.

Practice point:  The elements of tortious interference with contract are: (1) the existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to plaintiff. 

Case in point:  Affordable Hous. Assoc., Inc. v. Town of Brookhaven, NY Slip Op 03718 (2d Dep't May 10, 2018) 

Here is the decision.  

Tomorrow's issue:  The doctrine of res judicata.

Monday, May 15, 2017

A municipality's liability.

Practice point:  Absent a special relationship giving rise to the municipality's duty to exercise care for the benefit of a particular class of individuals, no liability may be imposed upon a municipality for failing to enforce a statute or regulation.

Case in point:  Green v. City of New York, NY Slip Op 03693 (1st Dep't May 9, 2017)

Plaintiff was injured when, while standing on the sidewalk, she was struck by a taxicab that hopped the curb. The taxi driver had numerous penalty points on his license that might have supported a suspension of his license prior to the accident, and plaintiff alleges that the failure to suspend the driver sooner was the result of a "computer glitch" at defendant Taxi & Limousine Commission. Plaintiff seeks damages for the City defendants' failure to enforce their own rules and regulations.

The Appellate Division affirmed dismissal as against the City defendants. Plaintiff alleges no facts sufficient to show that the City defendants owed a a special to her.  She sets forth no statutory provisions or other facts to show that the taxi licensing regulations under which she sued were for the benefit of a limited class of persons that included her, as opposed to the public at large. Neither does she allege that the City defendants voluntarily assumed a duty that generated reasonable reliance, or that they assumed positive direction and control in the face of a known, blatant and dangerous safety violation.

Here is the decision.

Tomorrow's issue:  A claim of tortious interference with a contract.

Friday, May 12, 2017

Default judgments.

Practice point:  A plaintiff applying for a default judgment must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear, pursuant to CPLR 3215(f).

A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer must show both a reasonable excuse for the default and the existence of a potentially meritorious defense, pursuant to CPLR 2004.

Case:  Bank of Am., N.A. v. Agarwal, NY Slip Op 03467 (2d Dep't May 3, 2017)

Here is the decision.

Monday's issue:  A municipality's liability.

Thursday, May 11, 2017

Standing in a mortgage foreclosure action.

Practice point:  Where the plaintiff's standing has been placed in issue by the defendants' answer, the plaintiff must also prove its standing as part of its prima facie showing on a motion for summary judgment. In a foreclosure action, a plaintiff has standing if it is the holder or assignee of the underlying note at the time the action is commenced. A plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing either a written assignment or physical delivery of the note.

Case:  Aurora Loan Servs., LLC v. Ang, NY Slip Op 03466 (2d Dep't May 3, 2017)

Tomorrow's issue:  Default judgments.

Wednesday, May 10, 2017

Affirmation of an arbitral award.

The Appellate Division affirmed the granting of the petition to confirm a FINRA arbitration award.

An arbitral award can only be challenged under the criteria set forth in CPLR 7511. The procedural arguments that there was an agreement to arbitrate in New York and that the panel should have adjourned the hearing are not recognized grounds to bar confirmation. In any event, the objections were waived by participation in the arbitration, through an answer, selection of arbitrators, two motions to remove arbitrators, and two motions to dismiss.

Although an agreement can supersede FINRA's arbitration rules, the alleged agreement here was never placed into the record, and, even accepting respondent's characterization, it still provided for arbitration, albeit in New York rather than Florida.

Similarly, respondent's argument with regard to the failure to adjourn is unavailing. Not only is it not a ground under CPLR 7511, but even under the Federal Arbitration Act, refusal to adjourn where a party has full notice and provides no excuse for not attending is not misconduct.

While arguments of arbitrator bias are cognizable, they are unsubstantiated. Allegations that one arbitrator was biased because he was once bankrupt, and another because he had once represented a claimant at a FINRA arbitration, are insufficient.

Case:  Bortman v. Lucander, NY Slip Op 03600 (1st Dep't May 4, 2017)

Here is the decision.

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

Tuesday, May 9, 2017

Establishing fraudulent inducement.

Practice point: Where the facts represented are not matters peculiarly within the party's knowledge, and the other party has available the means of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, that party must make use of those means. Otherwise, the party will not be heard to allege fraudulent inducement.

Case:  1810 E & J Rest. Corp. v. Red & Blue Parrot, Inc., NY Slip Op 03465 (2d Dep't May 3, 2017)

Here is the decision.

Tomorrow's issue:  Affirmation of an arbitral award.

Monday, May 8, 2017

A medical malpractice claim.

Practice point:  The elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was the proximate cause of injury. On a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In order to defeat the motion, the nonmoving party need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's prima facie showing.

Case:  Ortiz v. Wyckoff Hgts. Med. Ctr., NY Slip Op 03189 (2d Dep't April 26, 2017)

Here is the decision. 

Tomorrow's issueEstablishing fraudulent inducement.