Affidavits in support of summary judgment motions.

Practice point: CPLR 3212(b) requires that a motion for summary judgment must be supported by, among other things, an affidavit by someone with personal knowledge of the facts.

Student note: Notwithstanding this requirement, where a moving party supports the motion with an attorney's affirmation, deposition testimony, and other proof, the failure to submit an affidavit is not necessarily fatal.

Case: Maragos v. Sakurai, NY Slip Op 01592. (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Caveat emptor.

Demands for a complaint.

Practice point: To avoid dismissal for failing to timely serve the complaint after a demand has been made pursuant to CPLR 3012(b), and to be entitled to an extension of time to serve the complaint under CPLR 3012(d), a plaintiff must demonstrate both a reasonable excuse for the delay and a potentially meritorious cause of action.

Student note: Plaintiff’s failure to provide an affidavit of merit from a person possessing personal knowledge of the facts underlying the action will result in a denial of plaintiff’s motion to extend the time to serve.

Case: Country Serv., Inc. v. Feiden & Assoc., P.C., NY Slip Op 01586 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Affidavits in support of summary judgment motions.

Denial of a motion for summary judgment.

Practice point: Pursuant to CPLR 3212(f), a  court may deny a motion for summary judgment  if it appears from affidavits submitted in opposition  that facts essential to justify opposition may exist but cannot then be stated, especially when the opposing party has not had a reasonable opportunity for disclosure.

Student note: If the defendant has no personal knowledge of the relevant facts, it should be afforded the opportunity to conduct discovery, including deposition of the plaintiff.

Case: Jones v. American Commerce Ins. Co., NY Slip Op 01435 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Demands for a complaint.

Commencing a foreclosure action.

Practice point: In order to commence a foreclosure 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 by it.

Case: HSBC Bank USA v. Hernandez, NY Slip Op 01434 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Denial of a motion for summary judgment.

Piercing the corporate veil.

Practice point: A plaintiff seeking to pierce the corporate veil must show that complete domination was exercised over a corporation with respect to the transaction at issue, and that the domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury.

Student note: In addition, 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: Fernbach, LLC v. Calleo, NY Slip Op 01427 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Commencing a foreclosure action.

An employer's vicarious liability.

Practice point: An employer is vicariously liable for an employee's acts committed within the scope of employment and in furtherance of the employer's business.

Student note: A cause of action based on negligent hiring and supervision requires a showing that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.

Case: Evans v. City of Mount Vernon, NY Slip Op 01426 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Piercing the corporate veil.

Landlord's duty to protect tenants.

Practice point: Landlords have a common-law duty to take minimal precautions to protect tenants and their guests from the reasonably foreseeable criminal conduct of third parties.

Student note: If a tenant or guest is assaulted by an intruder, recovery against the landlord requires a showing that the landlord's conduct was a proximate cause of the injury.

Case: Brathwaite v. New York City Hous. Auth., NY Slip Op 01422 (2d Dept. 2012).

Here is the decision.

Monday's issue: An employer's vicarious liability.

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.