Vacating a default, and demonstrating merit.

Practice point:  To vacate their default in opposing the defendant's motion to dismiss this action based upon the plaintiffs' failure to serve a complaint pursuant to CPLR 3012(b), the plaintiffs were required to demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see CPLR 5015[a][1]. The motion must be made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party.

Student note:  Expert opinion evidence is required to demonstrate merit with respect to matters not within the ordinary experience of laypersons.

Case:  Bistre v. Rongrant Assoc., NY Slip Op 05788 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Setting aside a jury verdict.

Judicial review of a school's disciplinary determination.

Practice point:  Judicial review of a school's disciplinary determinations is limited to whether it substantially adhered to its own published rules and guidelines, and whether the discipline is based on a rational interpretation of the relevant evidence. Here, to the extent that plaintiff's causes of action were a challenge to her expulsion, she was only entitled to article 78 review, and the filing of the article 78 proceeding mandated dismissal of the plenary action insofar as it raised such claims.

Student note:  However, to the extent the gravamen of plaintiff's causes of action is not a challenge to the decision to expel her and is not duplicative of the petition's allegations, she is not limited to article 78 review and may seek damages in a plenary action.

Case:  Kickertz v. New York Univ., NY Slip Op 05781 (1st Dept. 2013).

Here is the decision.

Monday's issue: Vacating a default, and demonstrating merit.

An elevator accident, and the timeliness of a summary judgment motion.

Practice point:  Defendant denied that it had actual or constructive notice of a dangerous condition at the premises, and established that, before the accident, plaintiff's decedent did not make any complaints about problems with the elevator's shaking.  However, plaintiff raised a triable issue of fact by coming forward with what are called trouble site reports indicating that, in the year before the accident, there had been two reported problems with the guide rollers on the elevators. According to the deposition testimony of the elevator company's witness, these guide rollers are what allow an elevator car to move smoothly and travel shake free. The witness also testified that the company had recommended replacement of those rollers and that, at or about the time of the accident, there was a recurring problem with low voltage which may have affected how smoothly the elevators functioned.

Student note:  In calculating whether more than 120 days had passed since the filing of the note of issue, the reference-point is the date on which the motion was served, not the date on which it was filed.

Case:  Derouen v. Savoy Park Owner, L.L.C., NY Slip Op 05779 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Judicial review of a school's disciplinary determination.

Computing maintenance, and prenuptial agreements.

Practice point:  In computing maintenance, a court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential.  The court may properly take into account plaintiff's income from investments, voluntarily deferred compensation, and substantial distributions, pursuant to Domestic Relations Law §§ 236[B][5-a][b][4]; 240[1-b][b][5][i], [iv].

Student note:  Here, the defendant did not waive temporary maintenance in the parties' prenuptial agreement. Notwithstanding that defendant waived any claim to a final award of alimony or maintenance in the prenuptial agreement, the court was entitled, in its discretion, to award pendente lite relief in the absence of an express agreement to exclude an award of temporary maintenance.

Case:  Lennox v. Weberman, NY Slip Op 05766 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: An elevator accident, and the timeliness of a summary judgment motion.

An injury on a municipal basketball court.

Practice point:  Here, the defendant-town failed to satisfy its prima facie burden of establishing its entitlement to judgment as a matter of law by eliminating all triable issues of fact as to the applicability of the doctrine of primary assumption of the risk. The evidence submitted in support of its motion, including the plaintiff's deposition testimony and photographs of the basketball court and metal cap, demonstrated that the metal cap was small, was raised only slightly above ground level, was painted the same color as the basketball court, and was difficult to see from more than a few feet away. Under these circumstances, a triable issue of fact exists as to whether the condition was concealed, and it cannot be said as a matter of law that the plaintiff assumed the risks associated with it.

Student note:   By engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of participation, but not to unassumed, concealed, or unreasonably increased risks.

Case:  Bunn v. Town of N. Hempstead, NY Slip Op 05727 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Computing maintenance, and prenuptial agreements.

A coop board's invocation of the business judgment rule, and injunctive relief.

Practice point:  The business judgment rule does not shield cooperatives from liability for breaches of contract. A breach of a tenant's proprietary lease by the cooperative's board of directors may be the best of the options open to the board, but that does not protect it from liability for that breach.

 Student note:  Injunctive relief may only be awarded if the movant makes a clear showing of a probability of success on the merits, a danger of irreparable injury in the absence of an injunction, and that the balancing of the equities weighs in its favor.

Case:  Goldstone v. Gracie Terrace Apt. Corp., NY Slip Op 05725 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: An injury on a municipal basketball court.

Checks paid on forged signatures.

Practice point:  A bank is strictly liable to its customer when it pays a check on a forged signature. However, the bank avoids such liability if it demonstrates that the customer's negligence substantially contributed to the forgery and that the bank acted in good faith and in accordance with reasonable commercial standards.

Student note:  Here, in moving for summary judgment, the defendant did not establish, prima facie, that it acted in a commercially reasonable manner, as it did not submit evidence of the procedures that it used to detect forged signatures. Since the defendant failed to meet its prima facie burden, the court need not consider the sufficiency of the papers submitted in opposition.

Case: R.A. Contr., Co. v. JP Morgan Chase, NY Slip Op 05683 (2d Dept. 2013).

Here is the decision.

Monday's issue: A coop board's invocation of the business judgment rule, and injunctive relief.

A cause of action barred by the statute of limitations.

Practice point:  In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether it actually commenced the action within the applicable limitations period.

Student note:  To make a prima facie showing, the defendant must establish, among other things, when the plaintiff's cause of action accrued.

Case:  Matteawan on Main, Inc. v. City of Beacon, NY Slip Op 05680 (2d Dept. 2013). 

Here is the decision.

Tomorrow's issue: Checks paid on forged signatures.

Disclosure of written accident reports.

Practice point:  CPLR 3101(g) provides, in relevant part, that "there shall be full disclosure of any written report of an accident prepared in the regular course of business operations of any person, firm, corporation, association or other public or private entity." Pursuant to this statutory provision, accident reports prepared in the regular course of business operations or practices are discoverable, even if made solely for the purpose of litigation.

Student note:  The burden of demonstrating that a written report of an accident is immune from disclosure is on the party opposing discovery.

Case:  Jacaroso v. Keyspan Energy Corp., NY Slip Op 05677 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A cause of action barred by the statute of limitations.

Conditional language in a purported admission.

Practice point:  The plaintiff moved for summary judgment on the claim of an assault by an alleged City police officer, submitting a certificate of disposition from the Supreme Court indicating that the alleged officer had been convicted of assault in the third degree and reckless endangerment in the second degree in connection with the assault at issue. The plaintiff contended that the City's tenth affirmative defense constituted an admission that the alleged officer had been acting within the scope of his employment. The Appellate Division held that the Supreme Court erred in granting the motion.  The affirmative defense, in pertinent part, stated that, "such acts as were committed . . . in the scope of employment were justified." In light of the conditional nature of this language, and the City's denials that the alleged officer had been acting within the scope of his employment, the City's affirmative defense did not constitute an admission.  

Student note:  A plaintiff may not deem those allegations set forth in an answer that are favorable to him or her to be admissions, while refusing to be bound by those allegations that are unfavorable.

Case:  Hollinden v. City of New York, NY Slip Op 05676 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Disclosure of written accident reports.

Court holiday.

The courts are closed to mark Labor Day.

Tomorrow's issue:  Conditional language in a purported admission.