Laches.

Practice point: The defense is unavailable to the claims of breach of contract, breach of fiduciary duty, and for the return of management fees.

Student note: Although brought together as a derivative action, these causes of action are not equitable in nature.

Case: Garber v. Stevens, NY Slip Op 02437 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Premises liability cases.

Construing a guaranty.

Practice point: Although the guaranty was only for the first two years of the lease, the court awarded the landlord the entire accelerated rent amount through the end of the six year lease term. This did not subject the individual guarantor to a greater obligation than he intended or offend the rule of strict construction of guaranties.

Student note:The possibility of acceleration was in the lease that the guarantor signed, and tenant's default in rent and the acceleration took place within the period of the guaranty.

Case: Hawthorne Gardens, LLC v. Salman Home, Inc., NY Slip Op 02436 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Laches.

Summary judgment motions.

Practice point: Summary judgment is not warranted where credible evidence reveals differing versions of the accident.

Student note: While hearsay statements may be used to oppose the motion, such evidence is insufficient to warrant the motion's denial where it is the only evidence submitted in opposition.

Case: Taylor v. One Bryant Park, LLC, NY Slip Op 02427 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Construing a guaranty.

Assumption of the risk.

Practice point: The doctrine does not exculpate a landowner from liability for ordinary negligence in maintaining a premises.

Student note: Here, however, defendants established as a matter of law that the uneven condition of the soccer field’s artificial turf was open and obvious, and was not the result of defendants' negligence in maintaining the field.

Case: Benolol v. City of New York, NY Slip Op 02426 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Summary judgment motions.

Striking a pleading.

Practice point: While CPLR § 3126 authorizes the striking of a party's pleadings, this extreme sanction is only authorized when a party refuses to obey an order for disclosure or willfully refuses to disclose information which the court finds ought to have been disclosed.

Student note: Here, where plaintiff had already been sanctioned for its failure to provide discovery and where defendants premised their motion to strike primarily on plaintiff's failure to proceed with court-ordered mediation, CPLR § 3126 does not apply.

Case: Carnegie Assoc. Ltd. v. Miller, NY Slip Op 02422 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Assumption of the risk.

Probative value.

Practice point: An attorney’s affirmation or a witness’ affidavit which is not based on personal knowledge is of no probative or evidentiary value.

Student note: Similarly, an alleged expert’s letter, unsworn and without specifying the writer’s qualifications, is not evidentiary material in admissible form, and is of no probative value.

Case: Currie v. Wilhouski, NY Slip Op 02281 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Striking a pleading.

Contempt.

Practice point: Contempt is a drastic remedy which should not be granted absent a clear right to the relief.

Student note: Defendants’ failure to appear for a continued deposition on the advice of counsel, based upon an imminent bankruptcy filing, does not rise to the level of contempt. Even though it was in disobedience of a court order, plaintiff failed to show that it was prejudiced, since plaintiff's counsel had failed to pursue relevant questions in the earlier deposition and is still able to depose defendant.

Case: Benson Park Assoc. LLC v. Herman, NY Slip Op 02399 (1st Dept. 2012).

Here is the decision.

Monday’s issue: Probative value.

Jurisdiction.

Practice point: The trucking company appointed an agent for service of process in New York, and that is consent to suit in the State.

Student note: The truck driver, a Georgia resident, was driving from Florida to Massachusetts, when the accident happened in New Jersey, and so there is no basis for personal jurisdiction over him.

Case: Pena v. R & B Transp., NY Slip Op 02389 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Contempt.

Slips and falls.

Practice point: Plaintiff alleged that she slipped and fell in a puddle on an exterior landing, and that two yellow caution cones had been placed against the wall, to her right and left, as she exited, but not in the area of the liquid condition. The presence of caution cones created a triable issue of fact as to prior actual notice of the condition, as defendants' witness admitted that they would place such caution cones to alert others to a slippery condition, and plaintiff denied that the cones were being used to prop open a door, as had been alleged by owner-defendants' witness.

Student note: While the hearsay portions of a witness affidavit submitted in opposition to a summary judgment motion, which referred to an unidentified person or persons having admitted prior notice of the condition, are inadmissible, the witness's first-hand account of giving defendants notice of the condition at least 45 minutes before the accident raises triable issues of fact as to prior actual and constructive notice.

Case: Rosado v. Phipps Houses Servs., Inc., NY Slip Op 02385 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Jurisdiction.

Bills of particulars.

Practice point: The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial.

Student note: Pursuant to CPLR 3043(b), a party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities, provided  that no new cause of action may be alleged or new injury claimed.

Case: Jurado v. Kalache, NY Slip Op 02083 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Slips and falls.

Workers' Compensation.

Practice point: This is the exclusive remedy when the hospital’s employee-plaintiff was injured when she tripped on a sidewalk adjacent to the emergency room, on her way back from the hospital’s human resources department to her own office, during working hours.

Student note: Even if the trip to human resources were purely personal, plaintiff was returning to her office for the purpose of resuming work, and was injured on property which her employer was responsible to maintain.

Case: Patricka v. City of New York, NY Slip Op 02163 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Bills of particulars.