Thursday, February 28, 2013

Striking an anwer.

Practice point:  Appellate Division found that Supreme Court erred, as a matter of law, in denying plaintiffs' cross motion to enforce the conditional order striking defendant's answer since defendant did not produce the specified materials within the identified time period, and did not establish both a reasonable excuse for its failure to timely produce the specified materials and the existence of a meritorious claim or defense. Where a conditional order had previously been entered based on the court's findings that a party had caused delay and failed to comply with the court's discovery orders, the court was not required to find that defendant's conduct in failing to comply with the conditional order was willful.

Student note: Alternatively, defendant's failure to timely comply with three court orders directing it to produce certain materials - one of which was a conditional order striking its answer if defendant did not comply within 45 days - warrants an inference of willful noncompliance.

Case: Keller v. Merchant Capital Portfolios, LLC, NY Slip Op 01163 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Experts' opinions, and motions to dismiss a medical malpractice claim.

Wednesday, February 27, 2013

A fall down the stairs.

Practice point: Plaintiff fell on a backstage staircase to which she had been sent to clean off accumulated debris. Although plaintiff testified that there was "poor lighting" on the staircase where she fell, she testified that she fell because the step was uneven or pitched forward. Thus, plaintiff failed to submit sufficient evidence to raise an issue of fact as to whether the alleged poor lighting was a proximate cause of her fall.

Student note:  Plaintiff's expert's opinion that the stairs violated Administrative Code of the City of New York former §§ 27-127 and 27-128 was unavailing. Those sections merely require that the owner of a building maintain and be responsible for its safe condition, and liability will not be imposed in the absence of a breach of some specific safety provision.

Case: Ortiz v. Rose Nederlander Assoc., Inc., NY Slip Op 01156 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Striking an answer.

Tuesday, February 26, 2013

Replevin, and orders of seizure.

Practice point: The action of replevin is essentially possessory in its nature. It is a provisional remedy which may be used as an incident to an action to recover a chattel. Pursuant to CPLR 7102(c) and (d), on a motion for an order of seizure, "a plaintiff must demonstrate a likelihood of success on its cause of action for replevin and the absence of a valid defense to its claim.

Student note: An order of seizure is not a final disposition of a matter but is a pendente lite order made in the context of a pending action where the movant has established, prima facie, a superior right in the chattel.

Case: Americredit Fin. Servs., Inc. v. Decoteau, NY Slip Op 01053 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: A fall down the stairs.

Monday, February 25, 2013

Failure to appear at a hearing.

Practice point: To vacate an order entered upon failure to appear at a hearing to determine the validity of service, the movant must demonstrate both a reasonable excuse for the default and a potentially meritorious position at the hearing. The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court.

Student note: Although 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 does not amount to a reasonable excuse.

Case: Eastern Sav. Bank, FSB v. Charles, NY Slip Op 00892 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Replevin, and orders of seizure.

Friday, February 22, 2013

School's duty to supervise.

Practice point: A school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent.  A school, however, is not an insurer of its students' safety, and will be held liable only for foreseeable injuries proximately related to the absence of adequate supervision.

Student note: Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the school is warranted.

Case: Diaz v. City of Yonkers, NY Slip Op 00891 (2d Dept. 2013).

Here is the decision.

Monday’s issue: Failure to appear at a hearing.

Thursday, February 21, 2013

Deposing a participant in the witness program.

Practice point: A participant in the witness protection program cannot use that participation as a shield from the adverse effects of the litigation the participant has initiated, especially where the subsequent action is not related to the criminal action which triggered the need for the participation in the first place.

Student note: CPLR 3101(a) requires full disclosure of all matter material and necessary in the prosecution or defense of an action. Material and necessary information is that which is required to be disclosed because it bears upon the controversy at issue and will assist the requesting party in preparing for trial. Courts will interpret discovery requests liberally in favor of disclosure.

Case: M.C. v. Sylvia Marsh Equities, Inc., NY Slip Op 00888 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: School’s duty to supervise.

Wednesday, February 20, 2013

Hit by intoxicated bar patron.

Practice point: Summary judgment was denied where plaintiff alleged that he was injured when he was struck in the face by a visibly intoxicated patron of the tavern on the sidewalk outside the premises. The record presented triable issues as to whether there was a reasonable or practical connection between the sale of alcohol to a visibly intoxicated patron and the resulting injuries.

Student note: Although the tavern's bartender stated that the patron did not appear to be visibly intoxicated, plaintiff testified to the contrary, and two other witnesses submitted affidavits stating that prior to the assault the patron had been served alcohol by the tavern while visibly intoxicated, inasmuch as he was unsteady, aggressive and boisterous. The record also raised issues as to whether appropriate security measures were taken after the bartender allegedly defused an initial confrontation between the patron and plaintiff's group while inside the bar.

Case: Carver v. P.J. Carney’s, NY Slip Op 00805 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Deposing a participant in the witness protection program.

Tuesday, February 19, 2013

Mutual mistake and contract law.

Practice point: Mutual mistake may furnish the basis for the reformation of a written agreement where the signed writing does not express the actual agreement of the parties. Parol evidence is admissible to establish the actual agreement. However, there is a heavy presumption that the executed agreement reflects the true intention of the parties, and a correspondingly high order of evidence is required to overcome the presumption.

Student note: Thus, where a written agreement between sophisticated, counseled businesspersons  is unambiguous on its face, one party cannot defeat summary judgment by a conclusory assertion that, owing to mutual mistake or fraud, the writing did not express his or her own understanding of the oral agreement reached during negotiations.

Case: West Vernon Petroleum Corp. v. Singer Holding Corp., NY Slip Op 0073d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Hit by intoxicated bar patron.

Monday, February 18, 2013

Court holiday.

The Courts are closed to mark the holiday.

Tomorrow's issue: Mutual mistake and contract law.

Friday, February 15, 2013

Applications for leave to discontinue.

Practice point: An application for leave to discontinue an action without prejudice is addressed to the legal, not the arbitrary, discretion of the court, and thus should be granted unless there are reasons which would justify its denial.

Student note: The general rule is that plaintiff should be permitted to discontinue the action unless defendant would be prejudiced thereby.

Case: Wells Fargo Bank, N.A. v. Fisch, NY Slip Op 00732 (2d Dept. 2013).

Here is the decision.

Tuesday’s issue: Mutual mistake and contract law.

Thursday, February 14, 2013

Workers' Compensation Law.

Practice point: The protection that is afforded to employers by §§ 11 and 29(6) extends to the employing entity's alter egos. A defendant moving for summary judgment based on the exclusivity defense of the Workers' Compensation Law under this theory must show, prima facie, that it was the alter ego of the plaintiff's employer.

Student note: A defendant may establish itself as the alter ego by demonstrating that one of the entities controls the other, or that the two operate as a single integrated entity.

Case: Qyizhpe v. Luvin Constr. Corp., N.Y. Slip Op 00728 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Applications for leave to discontinue.

Wednesday, February 13, 2013

Attorney deceit.

Practice point: Plaintiff alleged that, in plaintiff's divorce action, defendant submitted to the court a document with a page intentionally switched to conceal the unreliability of certain projections relating to a start-up company, founded by plaintiff, in which he and his former wife held a minority interest. This single alleged act of deceit was not sufficiently egregious to support a claim under Judiciary Law § 487(1).

Student note: In addition, plaintiff failed to allege damages resulting from the switching of the page. He claims that he had to settle with his former wife to avoid expensive and potentially protracted litigation as to the value of the allegedly worthless stock. However, the complaint alleges that the dispute over the value of the stock arose when defendants retained a second appraiser, who was given a correct copy of the document and attributed substantial value to the stock. Therefore, plaintiff did not allege that the settlement he entered into with his former wife was the proximate result of defendant's alleged deceit.

Case: Strumwasser v. Zeiderman, NY Slip Op 00556 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Workers' Compensation Law.

Tuesday, February 12, 2013

Discovery, and Facebook

Practice point: Plaintiff's mere possession and use of a Facebook account is not enough to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the use of the account..

Student note: To warrant discovery, defendants must establish a factual predicate by identifying relevant information in the account, such as something that contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses.

Defendants' argument that plaintiff's Facebook postings may reveal daily activities that contradict or conflict with the disability claim is nothing more than a request for permission to conduct a fishing expedition.

Case: Tapp v. New York State Urban Dev. Corp., NY Slip Op 00547 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Attorney deceit.

Monday, February 11, 2013

Agency and Labor Law.

Practice point: Under the Labor Law, a party is deemed to be an agent of an owner or general contractor when it has supervisory control and authority over the work being done where a plaintiff is injured. To impose liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition. Thus, a defendant's potential liability is based on whether it had the right to exercise control over the work, not whether it actually exercised that right.

Student note: Once an entity becomes an agent under the Labor Law it cannot escape liability to an injured plaintiff by delegating the work to another entity.

Case: Samaroo v Patmos Fifth Real Estate, Inc., NY Slip Op 00472 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Discovery, and Facebook.           

Friday, February 8, 2013

Changing venue.

Practice point: A demand to change venue based on the designation of an improper county, pursuant to CPLR 510[1], must be served with the answer or before the answer is served, pursuant to CPLR 511[a].

 Student note: If the motion is made after the answer is served, its disposition is left to the Court’s discretion.

Case: Carobert v. Baldor Elec. Co., NY Slip Op 00449 (2d Dept. 2013).

Here is the decision.

Monday’s issue: Agency and Labor Law.

Thursday, February 7, 2013

Emotional distress without physical harm, and motions to dismiss.

Practice point: New York courts have been reluctant to recognize claims grounded in negligence when the damages are solely emotional. While in some cases a cause of action sounding in negligence may lie solely to recover damages for emotional injuries in the absence of physical harm, no New York case has recognized a theory of recovery so broad as the plaintiff asserted here. Essentially, the plaintiff contended that she is entitled to recover damages for emotional distress, because, as a result of the defendant's alleged negligent failure to inform her that the she was pregnant, she feared that her unborn child might be harmed. No such claim is recognized under New York, and the complaint was dismissed for failure to state a cause of action.

Student note: A court deciding a  CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action must accept the allegations in the complaint as true and accord the plaintiff every possible favorable inference from them. The motion must be granted when the allegations and inferences do not fit within any cognizable legal theory.

Case: Nadal v. Jaramillo, NY Slip Op 00314 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Changing venue.

Wednesday, February 6, 2013

Making time of the essence.

Practice point:  A letter from the plaintiff-buyer’s attorney to the defendant-seller’s attorney advised that the buyer was prepared to close "on any date . . . within the next ten days," and that the buyer would make himself available "at any time and location so designated by you." The letter also asked the seller’s attorney to contact the buyer’s attorney within the next ten days to schedule a closing date. Contrary to the plaintiff's contention, the letter was held to be nothing more than a mere demand that the defendant fix a closing date. It was inadequate to make time of the essence because it did not clearly and distinctly set a new date and time for closing, and it did not inform the defendant that he would be considered in default if he did not perform by a given date.

Student note: Since there was never a time of the essence closing, nor even a future scheduled closing date, it could not be concluded that the seller willfully defaulted or was unable to tender performance.

Case: Latora v. Ferreira, NY Slip Op 00309 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Emotional distress without physical harm, and motions to dismiss.

Tuesday, February 5, 2013

At-will employment and fraudulent inducement.

Practice point: A plaintiff who is offered only at-will employment cannot establish reasonable reliance on a prospective employer's representations, which is an element necessary to the recovery of damages under a theory of fraudulent inducement.

Student note: The at-will employment doctrine bars the cause of action even where the circumstances pertain to a plaintiff's acceptance of an offer of a position rather than termination.

Case: Guido v. Orange Regional Med. Ctr., NY Slip Op 00305 (2d Dept. 2013).

Here is the decision.

Tomorrow’s issue: Making time of the essence.

Monday, February 4, 2013


Practice point:  Sanctions were inappropriate because plaintiff waived his right to challenge deficiencies in defendant's responses to discovery orders by filing a note of issue and certificate of readiness representing that all discovery had been completed and that there were no outstanding discovery requests.

Student note: In any event, denial of the motion to strike would not have constituted an abuse of discretion, given that the defendant ultimately complied with the order to produce its employee a month after the court-ordered deadline, and the defendant’s conduct during pre-note of issue discovery proceedings did not amount to willful and contumacious behavior. The court properly considered the defendant’s opposition papers, given that plaintiff did not show prejudice by the late service, and had, in fact, submitted reply and supplemental reply affirmations.

Case: Marte v. City of New York, NY Slip Op 00387 (1st Dept. 2013).

Here is the decsion.

Tomorrow’s issue: At-will employment and fraudulent inducement.

Friday, February 1, 2013

Falls on snow or ice.

Practice point: A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it.

Student note: A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected. To meet its initial burden on the issue of lack of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.

Case: Feola v. City of New York, NY Slip Op 00304 (2d Dept. 2013).

Here is the decision.

Monday’s issue: Discovery.