Constructive notice and a defendant's motion for summary judgment ina slip and fall action.

Practice point:  A defendant has constructive notice of a dangerous condition when the condition has been visible and apparent long enough for the defendant to have discovered and remedied it. To meet its burden on the issue of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell. Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question.

Student note:  A defendant moving for summary judgment dismissing the complaint in a slip-and-fall case must establish, prima facie, that it did not create the dangerous condition that caused the plaintiff's injuries and had neither actual nor constructive notice of the condition when the plaintiff was injured.

Case:  Garcia-Monsalve v. Wellington Leasing, L.P., NY Slip Op 09102 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Unambiguous language in a stipulation controls.

An employer's liability for an employee's bad acts.

Practice point: The Appellate Division determined that the complaint fails to state a cause of action for conversion, and affirmed dismissal. The employee took property from plaintiffs' apartment while he was supposed to be installing a cable box in the neighboring apartment. His conduct was not in furtherance of the defendant's business and within the scope of his employment, but, instead, was based on his own personal motives.

Student note:  Plaintiffs argue that the defendant can be held vicariously liable for its employee's tortious conduct because the conduct was foreseeable. However, in determining the threshold legal question, namely, the scope of the defendant's duty to plaintiffs, the Appellate Division determined that the harm to plaintiffs was not within the reasonably foreseeable risks of the defendant's sending its employee to work in the neighboring apartment.

Case:  Sterk-Kirch v. Uptown Communications & Elec., Inc., NY Slip Op 00215 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Constructive notice and a defendant's motion for summary judgment in a slip and fall action.

The recovery of attorneys' fees in a landlord-tenant suit.

Practice point:  Under Real Property Law § 234, when a residential lease provides for a landlord's recovery of attorneys' fees resulting from a tenant's failure to perform a lease covenant, a reciprocal covenant is implied requiring the landlord to pay the tenant's attorneys' fees incurred as a result of the tenant's successful defense of an action or summary proceeding commenced by the landlord arising out of the lease.

Student note:  To support the award of fees, the tenant must be the prevailing party, that is, the result must be substantially favorable to the tenant.

Case:  Matter of 251 CPW Hous. LLC v. Pastreich, NY Slip Op 00208 (1st Dept. 2015)

Here is the decision.

Monday's issue: An employer's liability for an employee's bad acts.

Misplacing the summons and a motion to vacate.

Practice point:  A defendant moving to vacate a default in appearing or answering the complaint pursuant to CPLR 5015(a)(1) must establish a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense (see CPLR 5015[a][1]. Here, the Appellate Division determined that the defendant's conclusory allegations that it "misplaced" the summons and complaint, as well as the plaintiff's motion for leave to enter a default judgment against it and the order granting that motion, did not constitute a reasonable excuse for its default. In addition, the insurance carrier's lengthy delay before defending the action, without more, was insufficient to establish a reasonable excuse.

Student note:  As the defendant failed to demonstrate a reasonable excuse for its default, the Appellate Division did not consider whether it proffered a potentially meritorious defense to the action.

Case:  Blythe v. BJ's Wholesale Club, Inc., NY Slip Op 09094 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The recovery of attorneys' fees in a landlord-tenant suit.

Law office failure and a motion to vacate a default.

Practice point:  The Appellate Division determined that the plaintiff's bare allegation of law office failure was insufficient to show a reasonable excuse for its default.

Student note:  A party seeking to vacate an order entered upon its failure to oppose a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1].

Case:  Bank of N.Y. v. Young, NY Slip Op 09090 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Misplacing the summons and a motion to vacate.

The doctrine of assumption of risk as it relates to the duty of care.

Practice point:  The doctrine is not a defense based on a plaintiff's culpable conduct, but, instead, is a measure of the defendant's duty of care to participants in certain types of athletic or recreational activities. Under the theory, a plaintiff who freely accepts a known risk commensurately negates any duty on the part of the defendant to safeguard him or her from the risk.

Student note:  Because determining the existence and scope of a duty of care requires an examination of plaintiff's reasonable expectations of the care owed by others, the plaintiff's consent does not merely furnish the defendant with a defense; it effectively eliminates the duty of care that otherwise would exist.

Case:  Braile v. Patchogue Medford School Dist. of Town of Brookhaven, NY Slip Op 08949 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Law office failure and a motion to vacate a default.

A court's authority to reach the issue of attorneys' fees, and separate fees for appellate work.

:Practice point:  A court has no inherent authority to reach the issue of attorneys' fees sua sponte.  Rather, a court has inherent authority over attorneys' fees in two situations, namely, when an attorney asks the court to approve a fee, or a client complains about a fee.

Student note:  Where the parties expressly contemplate additional fees in connection with a successful appeal, such an award is legally and ethically permissible.

Case:  Stewart v. New York City Tr. Auth., NY Slip Op 09063 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  The doctrine of assumption of risk as it relates to the duty of care.

Defendant's summary judgment motion in a legal malpractice action.

Practice point:  Defendant-attorney did not meet its burden of presenting evidence in admissible form establishing that plaintiff is unable to prove at least one of these essential elements of the claim, namely, that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages.

Student note:  A defendant cannot sustain its burden merely by pointing out gaps in plaintiff's proof.

Case:  Bivona v. Danna & Assoc., P.C., NY Slip Op 08948 (2d Dept. 2014)

Here is the decision.

Monday's issue: A court's authority to reach the issue of attorneys' fees, and separate fees for appellate work.

Court holiday.

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

Tomorrow's issue:  Defendant's summary judgment motion in a legal malpractice action.

A fall on the stairs, and summary judgment denied.

Practice point:  Defendant failed to eliminate triable issues of fact as to whether it had constructive notice of the allegedly dangerous condition for a sufficient length of time before the accident to have permitted it to discover and remedy it.  In support of its motion, defendant submitted a transcript of plaintiff's deposition testimony, in which she stated, in response to a question asking her to identify the cause of the fall, that the subject stairs were shaky and the carpet was loose. So, contrary to defendant's contention, plaintiff sufficiently identified the cause of the fall. In addition, plaintiff testified that the stairs had been shaky for years and that she complained about the stairs to her supervisor two or three years before the accident.

Student note:  Although defendant also submitted transcripts of the superintendent's and porter's deposition testimony indicating that they never noticed any dangerous condition, this simply raised a question of credibility which may not be resolved on a motion for summary judgment.

Case:  Beharovic v. 18 E. 41st St. Partners, Inc., NY Slip Op 08946 (2d Dept. 2014)

Here is the decision.

 Friday's issue: Defendant's summary judgment motion in a legal malpractice action.

A slip-and-fall on water in the lobby.

Practice point:  In affirming the dismissal of the complaint, the Appellate Division noted that the defendants were not required to cover all of the floor with mats or continuously mop up all moisture resulting from the tracked-in rain.

Student note:  A general awareness that water might be tracked into a building when it rains is insufficient to impute to the defendants constructive notice of the particular dangerous condition.

Case:  Aguila v. Fox Hills Partners, LLC, NY Slip Op 08945 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  A fall on the stairs, and summary judgment denied.