Burglar alarms.

Practice point: A burglar alarm agreement which contains an exculpatory clause shields the burglar alarm company from liability only for ordinary negligence, not for gross negligence.

Student note:  Used in this context, gross negligence is conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing.

Case: Chan v. Counterforce Cent. Alarm Servs. Corp., NY Slip Op 07197 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Deposition transcripts.

Motions to dismiss.

Practice point: On a motion to dismiss, pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired.

Student note: The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

Case: Baptiste v. Harding-Marin, NY Slip Op 07193 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Burglar alarms.

Labor Law.

Practice point: Where a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a landowner may be liable under § 200 if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition.

Student note: 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 a defendant's employees to discover and remedy it.

Case: Schick v. 200 Blydenburgh, LLC, NY Slip Op 07025 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue: Motions to dismiss.

Default judgments.

Practice point: A defendant who has failed to appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action to avoid the entering of a default judgment or to extend the time to answer.

Student note:  Defendants’ contention that their insurance company delayed in informing them that it would not defend them is an insufficient excuse for their default.

Case: Integon Natl. Ins. Co. v. Noterile, NY Slip Op 07005 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Labor Law.

Foreclosure actions.

Practice point: In order to commence the action, a plaintiff must have a legal or equitable interest in the mortgage. A plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced.

Student note: An assignment of a mortgage without assignment of the underlying note or bond is a nullity, and no interest is acquired thereby.

Case: Deutsche Bank Natl. Trust Co. v. Barnett, NY Slip Op 06995 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Default judgments.

Right to a jury trial.

Practice point: The deliberate joinder of claims for legal and equitable relief arising out of the same transaction amounts to a waiver of the right to demand a jury trial.

Student note: Once the right has been so lost, it will not be revived by any subsequent dismissal, settlement or withdrawal of the equitable claims.

Case: Bryant v. Broadcast Music, Inc., NY Slip 06991 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Foreclosure actions.

Piercing the corporate veil.

Practice point: A plaintiff must show that complete domination was exercised over a corporation with respect to the transaction attacked, and that such domination was used to commit a fraud or wrong against the plaintiff, resulting in plaintiff’s injury.

Student note:  The corporate veil will be pierced to achieve equity, even absent fraud, when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator's business instead of its own and can be called the other's alter ego.

Case: Campone v. Pisciotta Servrs., Inc., NY Slip Op 06819 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Right to a jury trial.

Court holiday.

The courts are closed today and so there is no post on NEW YORK LAW NOTES.

Tomorrow's issue: Piercing the corporate veil.

Declaratory judgments.

Practice point: On a motion to dismiss a declaratory judgment action prior to service of an answer, the only issue is whether a cause of action for declaratory relief is set forth, not whether the plaintiff is entitled to a favorable declaration.

Student note: A court may reach the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where no questions of fact are presented. The motion will be taken as one for a declaration in the defendant's favor.

Case: Tilcon v. Town of Poughkeepsie, NY Slip Op 06849 (2d Dept. 2011).

Here is the decision.

Tuesday’s issue:Piercing the corporate veil.

Appealable papers.

Practice point: The fact that an order appealed from contains language or reasoning that a party deems adverse to its interests does not furnish a basis for standing to take an appeal.

Student note: Despite the dicta that the plaintiffs deem contrary to their interests, they are not aggrieved thereby and, therefore, may not challenge that portion of the order. 

Case: Blum v. Valentine, NY Slip Op 06817 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Declaratory judgments.

Bus injuries.

Practice point: To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was unusual and violent.

Student note:  The plaintiff's proof must consist of more than a mere characterization of the stop in those terms by the plaintiff.

Case: Black v. County of Dutchess, NY Slip Op 06816 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue:  Appealable papers.