Friday, March 29, 2013

Money judgments.

Practice point: Pursuant to CPLR 211(b), a money judgment is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to enforce it. This presumption is conclusive, except as against a person who within the twenty years acknowledges an indebtedness, or makes a payment, of all or part of the amount recovered by the judgment, or his heir or personal representative, or a person whom he otherwise represents. Such an acknowledgment must be in writing and signed by the person to be charged. If such an acknowledgment or payment is made, the judgment is conclusively presumed to be paid and satisfied as against any person after the expiration of twenty years after the last acknowledgment or payment made by him.

Student note: Accordingly, unless the party against whom a money judgment is granted acknowledges the indebtedness in a signed writing, the statute of limitations for an action to collect on a money judgment is 20 years from the date that the judgment can first be enforced. If, however, a party acknowledges the indebtedness to a money judgment, the statute of limitations runs anew, and is then 20 years from the last acknowledgment.

Case: First N.Y. Bank for Bus. v. Alexander, NY Slip Op 01796 (1st Dept. 2013).

Here is the decision.

Monday's issue: Validity of service.

Thursday, March 28, 2013

Sua sponte dismissal, and standing.

Practice point:  Appellate Division found that the Supreme Court abused its discretion in, sua sponte, directing dismissal of the complaint with prejudice and cancellation of a notice of pendency. Appellate Division noted that 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 such extraordinary circumstances.

Student note: In addition, Appellate Division held that, as the defendants failed to answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing. In any event, a party's lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint by the court.

Case:  HSBC Bank USA, N.A. v. Taher, NY Slip Op 01806 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Money judgments.

Wednesday, March 27, 2013

Split in the Departments on leave to amend.

Practice point:  The First Department found that the  motion court properly exercised its discretion in granting leave to amend inasmuch as the original complaint placed the defendant on notice of the underlying transaction, pursuant to CPLR 203 [f]. The First Department is in accord with the Third Department's view that "[i]n the absence of any prejudice and under these circumstances, Supreme Court should be permitted to exercise that same discretion which would allow the addition of a plaintiff's derivative cause of action." Anderson v. Carney, 161 AD2d 1002, 1003 (1990).
Student note: The First Department disagreed with the cases holding that a spouse's derivative claim cannot be added to a complaint through the relation back provision of CPLR 203 (f), specifically, Dowdall v. General Motors Corp. 34 A.D.3d 1221 (4th Dept. 2006) and Lucido v. Vitolo, 251 AD2d 383 (2d Dept 1998).

Case: Giambrone v. Kings Harbor Multicare Ctr., NY Slip Op 01898 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Sua sponte dismissal, and standing.

Tuesday, March 26, 2013

Labor Law § 240(1).

Practice point:  Labor Law § 240(1) imposes a nondelegable duty upon owners, contractors, or their agents to provide proper protection to a worker performing certain types of construction work. To prevail on the cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries.

Student note: A fall from a scaffold or ladder, in and of itself, does not establish that proper protection was not provided, and the issue of whether a particular safety device provided proper protection is generally a question of fact for the jury.

Case:  Esteves-Rivas v. W2001Z/15CPW Realty, LLC, NY Slip Op 01800 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Split in the Departments on leave to amend.

Monday, March 25, 2013

Injured in an elevator.

Practice point: Plaintiff was injured while riding in an elevator in defendant's apartment building. On her way up to her fifth-floor apartment, the elevator stopped at the third floor. After a fellow passenger left the elevator cab, the outer door failed to swing completely shut. Plaintiff pushed the door open with both hands, attempting to let the door swing shut on its own, but a gap of several inches remained between the door and the door jamb. After two such attempts to close the door proved unsuccessful, plaintiff reached around the edge of the door with her right hand and pulled it toward her, whereupon the door swung closed onto her hand, injuring the middle and ring fingers.

The alleged malfunction of the third-floor elevator door notwithstanding, the defect was not the proximate cause of plaintiff's injury, which was the immediate result of her own act of pulling the door onto her own hand. This act was not foreseeable in the normal course of events resulting from defendant's alleged negligence. Having no interior handle, the elevator door is not designed to be pulled inward, and plaintiff's doing so superseded any defect in the door's condition, severing the nexus between defendant's asserted negligence and plaintiff's injury.

Student note: Plaintiff conceded that both a stairway and a second elevator afforded safe, alternative access to her fifth floor, and she did not face any circumstances that required her to continue using the defective elevator.

Case: Arbeau v. New York City Housing Authority, NY Slip Op 01773 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Labor Law 240(1).

Friday, March 22, 2013

Compensation for pain and suffering.

Practice point:  The jury's determination will not be disturbed unless the award deviates materially from what would be reasonable compensation.

Student note: The reasonableness of compensation must be measured against relevant precedent of comparable cases.

Case: Kayes v. Liberati, NY Slip Op 01534 (2d Dept. 2013).

Here is the decision.

Monday's issue: Injured in an elevator.

Thursday, March 21, 2013

Hospital liability and private physicians.

Practice point: A hospital is ordinarily not liable for the acts of a private attending physician unless a patient, in accepting treatment by the private physician, relies upon the fact that the physician's services are provided by the physician as the hospital's apparent agent, such as where the patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing.

Student note: Where apparent agency is established as a predicate for holding the hospital responsible for the alleged malpractice, liability is contingent upon the plaintiff having a viable claim against the treating physician.

Case: Polgano v. Christakos, NY Slip Op 01615 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Compensation for pain and suffering.

Wednesday, March 20, 2013

Correcting a mistaken order.

Practice point: Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based.

Student note: A trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment.

Case: JSO Assoc., Inc. v. Price, NY Slip Op 01532 ((2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Hospital liability and private physicians.

Tuesday, March 19, 2013

A notary public's misconduct.

Practice point: Executive Law § 135 provides, in pertinent part, that "[f]or any misconduct by a notary public in the performance of any of his powers such notary public shall be liable to the parties injured for all damages sustained by them."

Student note: By its plain language, the statute does not require a showing of detrimental reliance. A plaintiff seeking to recover under that section need only show that the notary engaged in notarial misconduct and that such misconduct was a proximate cause of the plaintiff's injury.

Case: Chicago Tit. Ins. Co. v LaPierre, NY Slip Op 01523 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Correcting a mistaken order.

Monday, March 18, 2013

Res ipsa.

Practice point: Plaintiff, an employee of Keyspan/National Grid, allegedly was injured when the staircase leading to the basement of defendant's house collapsed as he was walking down the stairs to replace the water heater. The Appellate Division determined that plaintiff failed to establish prima facie entitlement to judgment as a matter of law. Since the staircase was constructed prior to defendant's ownership, and defendant did not make any alterations or repair to it, plaintiff did not satisfy the second prong of the doctrine of res ipsa loquitur, which requires proof of the defendant's exclusive control. Given that plaintiff's own expert opined that the accident occurred either due to negligent construction or negligent maintenance, plaintiff did not establish, by sufficiently convincing circumstantial proof, that the inference of defendant's negligence is inescapable.

Student note: A plaintiff must establish the following in order for the doctrine to apply: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

Case: Bunting v, Haynes, NY Slip Op 01521 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:A notary public's misconduct.

Friday, March 15, 2013

Summary judgment in a medical malpractice action, and a hospital's vicarious liability.

Practice point: Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such conflicting opinions will raise credibility issues which can only be resolved by a jury.

Student note: A hospital cannot be held concurrently liable with such a physician unless its employees commit independent acts of negligence or the attending physician's orders are contraindicated by normal practice.

Case: Aronov v. Souklary, NY Slip Op 01364 (2d Dept. 2013).

Here is the decision.

Monday's issue:Res ispa.

Thursday, March 14, 2013

Striking a pleading, and an inquest on damages.

Practice point: The Appellate Division found that the Supreme Court providently exercised its discretion in striking plaintiff's pleadings, given plaintiff's intentional and unexcused failure to comply with more than three orders, some of them stipulated to by plaintiff, to produce documents relevant to the case, pursuant to CPLR 3126.

Student note: However, as an appearing party whose pleadings were stricken, plaintiff was entitled to five days notice of the inquest, pursuant to CPLR 3215[g]. The failure to give such notice requires a new inquest, on proper notice.

Case: Walker v. Foreman, NY Slip Op 01494 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Summary judgment in a medical malpractice action, and a hospital's vicarious liability.

Wednesday, March 13, 2013

Marital property and maintenance awards.

Practice point: The trial court is vested with broad discretion in making an equitable distribution of marital property, and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed.

Student note:The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting. The mere fact, however, that a party has the ability to become self-supporting in no way obviates the need for the trial court to consider the pre-divorce standard of living in determining the amount and duration of maintenance, pursuant to Domestic Relations Law § 236[B].

Case: Bloom v. Petryk-Bloom, NY Slip Op 01367(2d Dept. 2013).

Here is the decision.

Tomorrow's issue:Striking a pleading, and an inquest on damages.

Tuesday, March 12, 2013

A fall down the stairs.

Practice point: Plaintiff was injured when he fell down a flight of stairs that led to the restroom area in defendants' restaurant. Plaintiff testified that his left heel hit the top step whereupon he lost consciousness and fell. He further testified that when he regained consciousness, he found himself lying at the bottom of the staircase. On the basis of that testimony, the Appellate Division found that none of the stairway's alleged structural or design defects could have been a proximate cause of the accident.

Student note: Plaintiff alleged that the staircase was "inadequately lighted and/or not otherwise properly demarcated/warned about." In denying the motion, the Supreme Court found an issue of fact as to whether the staircase was totally camouflaged, creating a defective condition. The Appellate Division found that this was error, inasmuch as the deposition of the restaurant's general manager is unrefuted insofar as it establishes adequate warning as a matter of law. Specifically, the general manager testified that at the top of the staircase there was a yellow sign with an image of a finger pointing downward which read "bathroom this way" and "watch your step." The general manager also testified about a red non-slip mat on the landing, a spotlight at the top of the staircase as well as another light fixture above the middle of the staircase. Accordingly, defendants established, prima facie, that the staircase was neither inherently dangerous nor constituted a hidden trap

The affidavit of plaintiffs' safety expert does not reference the signs or otherwise state why they were inadequate. Accordingly, plaintiff's mere assertion that he did not see the signs is insufficient to raise an issue of fact as to their adequacy.

Case: Sato v. Ippudo, NY Slip Op 01460 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Marital property and maintenance awards.

Monday, March 11, 2013

Default judgments.

Practice point:  CPLR 3215(c) requires that a plaintiff commence proceedings for the entry of a default judgment within one year after the default or demonstrate sufficient cause why the complaint should not be dismissed.

Student note:  Where the plaintiff has made an application to the court for the entry of a default judgment within one year of the defendant's default, the court may not later dismiss the complaint as abandoned.

Case:  Jones v. Fuentes, NY Slip Op 01239 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:A fall down the stairs.

Friday, March 8, 2013

Suing after termination.

Practice point:  The Appellate Division found that defendants' policy that the payment of bonuses was entirely discretionary was clearly expressed in the offer letter to plaintiff, in the company handbook, and in a memorandum confirming plaintiff's 2010 bonus, and plaintiff acknowledged in writing that she understood the policy. As a result, none of plaintiff's bonus-based claims — the causes of action for breach of an oral contract, quantum meruit/unjust enrichment, promissory estoppel, violation of Labor Law § 193, and fraud — were viable.

 Student note: Plaintiff's severance-related breach of contract claims were premised upon defendants' alleged promise to pay plaintiff a severance package "consistent with the severance packages paid to" other "senior executives who were terminated." The Appellate Division found that this alleged promise is too indefinite to be given effect.

Case: DeMadariaga v. Union Bancaire Privee, NY Slip Op 01326 (1st Dept. 2013).

Here is the decision.

Monday's issue: Default judgments.

Thursday, March 7, 2013

Pleading fraud with particularity.

Practice point: All of the elements of a fraud claim must be supported by factual allegations containing the details constituting the wrong in order to satisfy the pleading requirements of CPLR 3016(b). The purpose of this pleading requirement is to inform a defendant of the complained-of incidents.

Student note: It may be virtually impossible to state in detail the circumstances constituting a fraud where those circumstances are peculiarly within the knowledge of an adverse party. Under such circumstances, the heightened pleading requirements of CPLR 3016(b) may be met when the material facts alleged in the complaint are sufficient to permit a reasonable inference of the alleged conduct, including the adverse party's knowledge of, or participation in, the fraudulent scheme.

Case: House of Spices (India), Inc. v. SMJ Servs., Inc., NY Slip Op 01236(2d Dept. 2013).

 Here is the decision.

Tomorrow's issue: Suing after termination.

Wednesday, March 6, 2013

A fall on the ice.

Practice point: Summary judgment was denied in where plaintiff was injured when, while stepping off defendant's train, she slipped and fell on an icy condition on the platform. The expert's report, submitted in support of defendant's motion, was unsworn, and thus, not in admissible form. This was an error that could not be cured by submitting a sworn affidavit by this expert in reply papers.

Student note: In addition, the court found triable issues as to whether, since the cessation of the storm, defendant had a reasonable amount of time to remedy the icy-wet conditions at the station where plaintiff fell.

Case: Accardo v. Metro-North R.R., NY Slip Op 01324 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Pleading fraud with particularity.

Tuesday, March 5, 2013

Motions for leave to renew.

Practice point: Under CPLR 2221(e), a motion for leave to renew shall 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.

Student note: CPLR 2221 (e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form.

Case: Hackney v. Monge, NY Slip Op 01233 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A fall on the ice.

Monday, March 4, 2013

Labor Law § 240(1).

Practice point:  To establish a cause of action, a plaintiff must show that the statute was violated and that the violation proximately caused his injury. Liability is contingent upon the existence of a hazard contemplated in § 240(1) and a failure to provide, or the inadequacy of, a safety device of the kind enumerated in the statute.

Student note: The injured worker's contributory negligence is not a defense. However, if adequate safety devices are provided and the worker either chooses for no good reason not to use them, or misuses them, the plaintiff will be deemed the sole proximate cause of his injuries, and liability will not attach.

Case: Fernandez v. BBD Developers, LLC, NY Slip Op 01189 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Motions for leave to renew.

Friday, March 1, 2013

Experts' opinions, and motions to dismiss a medical malpractice claim.

Practice point:  In opposing the motion to dismiss, plaintiff's expert simply asserted that defendant's physician, instead of putting the ankle in a splint, should have performed a surgical open reduction and internal fixation of the fracture. Plaintiff's expert, however, neither set forth an explanation of the reasoning supporting his conclusion nor identified any facts in the record indicating his preferred course of treatment. Nor did plaintiff's expert opine whether plaintiff's outcome would have been materially better had he been treated with surgery.

Student note: Because the opinion was offered in a conclusory fashion without specific analysis, the motion court correctly determined that plaintiff failed to raise a triable issue of fact in the face of the well-supported opinion of defendant's expert that the record facts showed that defendant's physician treated plaintiff appropriately under the governing standard of care.

Case: Buckner v. St. Lukes' Roosevelt Hosp. Ctr., NY Slip Op 01167 (1st Dept. 2013).

 Here is the decision.

Monday's issue: Labor Law § 240(1).