A claim on a note and loan agreement.

Practice point: Defendants' argument that performance under the note and loan agreement was frustrated by plaintiff's failure to make timely reimbursement of certain marketing expenses it submitted in accordance with the loan agreement's reimbursement provisions raises a defense that lies outside the making of the note and the obligations thereunder. While defenses might raise issues outside the note, that does not change its character as one for the payment of money only. Such a defense, which rests upon an apparent claim of breach of a loan agreement provision regulating the availability of certain loan proceeds for marketing purposes, is separate from defendants’ unequivocal and unconditional obligation to repay the monies it was loaned.

Student note: To the extent that the breach of contract defense may amount to a viable claim, it may be asserted in a separate action.

Case: German Am. Capital Corp. v. Oxley Dev. Co., LLC, NY Slip Op 00014 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: Pushed around at a rock concert.

In pari delicto.

Practice point: The doctrine mandates that the courts will not intercede to resolve a dispute between two wrongdoers.

Student note: The justice of the rule is most obvious where a willful wrongdoer is suing someone who is alleged to be merely negligent, but it also applies where both parties acted willfully.

Case: Concord Capital Mgt., LLC v. Bank of America, N.A., NY Slip Op 00011 (1st Dept. 2013).

Here is the decision.

Tomorrow’s issue: A claim on a note and loan agreement.

Defective sidewalks.

Practice point: Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner. The language of section 7-210 mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code sections 19-152 and 16-123.

Student note: Although section 7-210 of the Administrative Code does not define the term "sidewalk," section 19-101(d) of the Administrative Code describes a sidewalk as "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians."

Case: Stoloyvitskaya v. Dennis Boardwalk, LLC, NY Slip Op 09047 (2d Dept. 2012).

Here is the decision.

Monday’s issue: In pari delicto.

Proper service.

Practice point: The plaintiff presented prima facie proof that service was effected on a partner in the defendant-law firm, by personally delivering a copy of the summons with notice to a paralegal at the firm’s office, which was the partner's actual place of business, and then mailing a copy of it to the partner at the office in an envelope marked “personal and confidential” and not indicating that the communication was from an attorney or concerned a legal action. This service was sufficient to confer personal jurisdiction over the firm, which is a limited liability partnership, since service was properly effected upon one of its partners, pursuant to CPLR 308[2]; 310-a.

Student note: Although the firm alleges that only one copy of the summons with notice was left with the paralegal, this was not a jurisdictional defect, since such notice was reasonably calculated, under all the circumstances, to apprise the partner,  and hence the firm, of the pendency of the action and afford the firm an opportunity to present its objections and defenses.

Case: Green v. Gross & Levin, LLP, NY Slip 09027 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Defective sidewalks.

The storm-in-progress rule.

Practice point:  Under the rule, neither a landlord nor a snow removal contractor will be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter. Here, the defendant established its prima facie entitlement to judgment as a matter of law by producing evidence that the accident occurred while a snow storm either was in progress or had just stopped.

Student note: Contrary to the plaintiff's contention, the speculation of the defendant's former employee, who had been employed as a porter for the defendant, that when round salt mixes with frozen rain "it's a little bit slippery," did not raise a triable issue of fact as to whether the defendant's snow removal efforts created or exacerbated a dangerous condition.

Case: Smiloqitz v. GCA Serv.Grp., Inc., NY Slip Op 09044 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Proper service.

Damages for wrongful death.

Practice point: In an action to recover damages for wrongful death, the measure of damages includes fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought, pursuant to EPTL 5-4.3[a].

Student note:  The essence of the cause of action is that the plaintiff's reasonable expectancy of future assistance or support by the decedent was frustrated by the decedent's death, and so loss of support, voluntary assistance and possible inheritance, as well as medical and funeral expenses incidental to death, are injuries for which damages may be recovered.

Case: Johnson v. Richmond Univ. Med. Ctr., NY Slip Op 09033 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: The storm-in-progress rule.

A health club's liability, and the Good Samaritan law.

Practice point: General Business Law § 627-a (1) requires health clubs to have an automated external defibrillator device (AED) on site, and at least one individual who holds a valid certification of completion of a course in operation of AEDs and in CPR.

Student note: The club was not be vicariously liable for breaching a common-law duty of care that its employees assumed by coming to plaintiff's aid as "Good Samaritans." Since the employees were providing emergency medical treatment to plaintiff, they could only have been liable for gross negligence, pursuant to Public Health Law § 3000-a [1].

Case: Chappill v. Bally Total Fitness Corp., NY Slip Op 09162 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Damages for wrongful death.

Breach of contract.

Practice point: Dismissal of the breach of contract counterclaims was required, inasmuch as the parties agreed that there would be no binding agreement until their execution of a written contract, but no such contract was ever executed.

Student note: The freedom to contract includes the freedom to avoid oral agreements, a  freedom that is especially important when business entrepreneurs and corporations engage in substantial and complex dealings. New York courts will allow sophisticated parties operating in the business world to decide when and how they wish to enter into legally enforceable contracts.

Case: StarVest Partners II, L.P. v. Emportal, Inc., NY Slip Op 09145 (1st Dept. 2012).

Here is the decision.

Monday’s issue: A health club’s liability, and the Good Samaritan law.

Discovery.

Practice point: There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by a party, pursuant to CPLR 3101[a][1]. The words “material and necessary" will be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay.

Student note: The test to be employed by the courts in weighing whether material is discoverable is one of usefulness and reason.

Case: D’Ambrosio v. Racanelli, NY Slip Op 09022 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Breach of contract.

Premption.

Practice point: The Supremacy Clause grants Congress the power to preempt state law. Within Constitutional limits, then, Congress may preempt state authority by so stating in express terms.

Student note: In the absence of explicit statutory language, preemption can be implied under field preemption where a review of federal legislation indicates that Congress intended federal law to fully occupy that field, or pursuant to conflict preemption where a state law is in conflict with federal law so that it would be impossible for a party to comply with both.

Case: Biscone v. JetBlue Airways Corp., NY Slip Op 09019 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Discovery.

Court holiday.

The courts are closed to mark New Year's Day.

Thank you for your support during the year just past, and best wishes for a happy and productive new year.

Tomorrow's issue: Preemption.