Motions for leave to renew.

Practice point: Pursuant to CPLR 2221(e), a motion for leave to renew must be based on new facts not offered on the prior motion that would change the prior determination, and must offer a reasonable justification for the failure to present such facts on the prior motion.

Student note: The motion is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

Case: Eskenazi v. Mackoul, NY Slip Op 01425 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Landlord's duty to protect tenants.

Usury as an affirmative defense.

Practice point: A corporation is prohibited from asserting the defense of civil usury, pursuant to General Obligations Law § 5-521, and an individual guarantor of a corporate obligation is also precluded from raising such a defense.

Student note: The threshold rate for civil usery is 16% per annum, pursuant to General Obligations Law § 5-501[1], [2]; Banking Law § 14-a[1].

Case: Arbuzova v. Skalet, NY Slip Op 01418 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motions for leave to renew.

Restoring a case marked off the trial calendar.

Practice point: A case in the Supreme Court marked off or struck from the trial calendar and not restored within one year thereafter is deemed abandoned and will be dismissed for neglect to prosecute, pursuant to CPLR 3404.

Student note: A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked off must demonstrate a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant All four components of the test must be satisfied before the dismissal will be vacated and the action restored.

Case: Agli v. O’Connor, NY Slip Op 01417 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Usury as an affirmative defense.

Pleading with particularity.

Practice point: In an action resulting from the performing of labor or services, CPLR 3016(f) permits a plaintiff to set forth and number in the verified complaint the items of the claim and the reasonable value or agreed price of each. When the plaintiff properly complies with the statutory provisions, the defendant may not generally deny the allegations of the complaint but must specifically dispute the items on the plaintiff's list.

Student note: To meet the requirements of CPLR 3016(f), the complaint must contain a listing of the goods or services provided, with enough detail that it may readily be examined and its correctness tested entry by entry.

Case: Raytone Plumbing Specialties, Inc. v. Sano Constr. Corp., NY Slip Op 01442 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Restoring a case marked off the trial calendar.

Depositions.

Practice point: Depositions of parties to an action are generally held in the county where the action is pending.

Student note:  If a party demonstrates that conducting his deposition in that county would cause undue hardship, the Supreme Court, in its exercise of discretion, can order the deposition to be held elsewhere.

Case: Weinstein v. Gindi, NY Slip Op 01175 (1st Dept. 2012).

Here is the decision. 

Monday’s issue: Pleading with particularity.

Law of the case.

Practice point: An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court, and forecloses a re-examination of the question, absent a showing of subsequent evidence or a change of law.

Student note: Under the doctrine, parties are precluded from relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue.

Case: Carmona v. Mathisson, NY Slip Op 01105 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue:  Depositions.

Tort liability to a third party.

Practice point: A contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.

Student note: There is an exception where a contractor who undertakes to perform services pursuant to a contract negligently creates or exacerbates a dangerous condition by launching its own force or instrument of harm.

Case: Kramer v. Cury, NY Slip Op 00913 (1st Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Law of the case..

Labor Law.

Practice point: While § 240(1) is not limited to work performed on actual construction sites, the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.

Student note: Within the meaning of § 240(1), ‘altering’ requires making a significant physical change to the configuration or composition of the building or structure.

Case: Panico v. Advanstar Communications, Inc., NY Slip Op 00944 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue:  Tort liability to a third party.

Court holiday.

The courts are closed today to mark Washington’s Birthday.

Tomorrow’s issue: Labor Law.

Affirmative acts of negligence.

Practice point: A defendant may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk.

Student note: Speculation and surmise are insufficient to defeat a motion for summary judgment.

Case: Jeansimon v. Lumsden, NY Slip Op 00931 (2d Dept. 2012).

Here is the decision. 

Tuesday’s issue:  Labor Law.

Disinternment.

Practice point: Pursuant to N-PCL 1510(e), the consent of the cemetery corporation, the owners of the lot, and a decedent's surviving spouse, adult children, and parents is required before a body may be disinterred.

Student note: In the absence of consent, a court may grant a motion to disinter upon a showing of good and substantial reasons. The paramount factor a court must consider is the known desires of the decedent, but the court must also consider the desires of the decedent's next of kin.

Case: Brandenburg v. St. Michael’s Cemetery, NY Slip Op 00923 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Affirmative acts of negligence.