Motions to dismiss.

Practice point: Pursuant to CPLR 3211(a)(1), the motion may be granted only where the movant offers documentary evidence which utterly refutes plaintiff's allegations, and conclusively establishes a defense as a matter of law.

Student note: In considering the motion, pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged as true, give plaintiff the benefit of every possible inference, and determine only whether the alleged facts fit within any cognizable legal theory.

Case: Cog-Net Bldg. Corp. v. Travelers Indem. Co., NY Slip Op 06014 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Adverse possession.

Labor Law.

Practice point: There is no § 240(1) liability when safety devices were readily available at the work site and plaintiff knew he was expected to use them but, without good reason, did not.

Student note: There may be § 240(2) liability when a worker is injured due to an elevation-related hazard.

Case: Pietrowski v. Are-East Riv. Science Park, LLC, NY Slip Op 05977 (1st Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Motions to dismiss.

Rescission.

Practice point: If defendant was fraudulently induced, it is entitled to rescind the contract.

Student note: The effect of rescission is to declare the contract void from its inception, and to put or restore the parties to status quo 

Case: Cusack v. American Defense Sys., Inc., NY Slip Op 06015 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow's issue: Labor Law.

Corporations.

Practice point: Generally, a corporation that acquires the assets of another is not liable for the torts of its predecessor. 

Student note: However, the successor corporation may be liable if it is nothing more than a continuation of its predecessor.

Case: Kaur v. American Tr. Ins. Co., NY Slip Op 05938 (1st Dept. 2011).

Here is the decision.

Listen here.

Monday's issue: Rescission.

Civil contempt.

Practice point: A  party seeking an adjudication of civil contempt must establish a willful and deliberate violation of a court order, expressing a clear and unequivocal mandate, pursuant to Judiciary Law § 753.

Student note: The burden of proof is on the party seeking the adjudication, and the standard is clear and convincing.

Case: Collins v. Telcoa Intl. Corp., NY Slip Op 05948 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Corporations.

Yellowstone injunctions.

Practice point: The injunction maintains the status quo so that a commercial tenant, when threatened with termination, may stay tolling the cure period, and, upon an adverse determination on the merits, may cure the default.

Student note: Tenant must demonstrate that (1) it holds a commercial lease; (2) it received a notice of default, a notice to cure, or a threat of termination; (3) it requested injunctive relief prior to both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord's notice to cure; and (4) it is prepared, and maintains the ability, to cure the alleged default by any means short of vacating the premises 

Case: Barsyl Supermarkets, Inc. v Avenue P Assoc., LLC, NY Slip Op 05946 (2d Dept. 2011).

Here is the decision.

Listen here.

Tomorrow’s issue: Civil contempt.

Tolling the statute.

Practice point: CPLR 204(a) tolls the one-year and 90-day statute of limitations on tort claims against municipal defendants while a motion to serve a late notice of claim is pending. 

Student note: Since plaintiffs were effectively prohibited from properly commencing their action when their initial application for leave to serve the late notice was pending, as well as when their second application for similar relief was pending, they were entitled to a toll for both periods.

Case: Ambrus v. City of New York, NY Slip Op 05945 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue: Yellowstone injunctions.

Downhill snowboarding.

Practice point: Plaintiff's injury, caused by hitting a stump, while swerving to avoid another person on the trail, is one of the risks inherent in downhill snowboarding.

Student note: By engaging in the recreational sport of snowboarding, plaintiff consented to those risks which are inherent in and arise out of the nature of the sport, and which flow from plaintiff's participation.

Case: Bedder v Windham Mtn. Partners, LLC, NY Slip Op 05861 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue: Tolling the statute.

Orders granted on default.

Practice point: No appeal lies from the order, pursuant to CPLR 5511.

Student note: Defendant's remedy is a motion to vacate, pursuant to CPLR 5015[a][1].

Case: Baez-Ferreira v. Marte, NY Slip Op 05869 (1st Dept. 2011).

Here is the decision.

Monday's issue: Downhill snowboarding.

Liability on a contract.

Practice point: Officers and agents of a company are not personally liable unless they purport to bind themselves individually.

Student note: While privity is not required for an unjust enrichment claim, there must be a connection between the parties that could have caused plaintiff's reliance or inducement.

Case: Georgia Malone & Co., Inc. v. Rieder, NY Slip 05856 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue: Orders granted on default.

Substitute teachers and tenure.

Practice point: A substitute teacher may not accumulate tenure credit while teaching pursuant to an intern certificate.

Student note:  Prior to receiving tenure, eligible educators must serve a probationary period of up to three years, pursuant to  Education Law § 3014[1].

Case: Matter of Berrios v. Board of Educ. of Yonkers City School Dist., NY Slip Op 05804 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue: Liability on a contract.