Waiving an argument of duress.

Practice point:  The Appellate Division affirmed dismissal, finding that, by waiting too long to file the instant action, plaintiffs waived their argument that they signed the subject release under duress. The Appellate Division noted that, while plaintiffs might have been excused from suing for the first two years due to their fear of the look-back period, they delayed an additional 10 months beyond those two years.

Student note:  Even if there were triable issues exist as to unconscionability and overreaching, plaintiffs' ratification of the release bars them from challenging it on those grounds.

Case:  Achache v. Achache, NY Slip Op 04386 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Setting aside a foreclosure sale.

Contract interpretation.

Practice point:  Agreements will be construed in accord with the parties' intent, and the best evidence of the parties' intent is what their writing says.  If the agreement is set down in a clear and complete document, it will be enforced according to its terms. The Appellate Division notes that this rule is especially applicable where there are sophisticated parties who are negotiating at arms' length.

Student note:  The agreement's language is deemed to be clear and unambiguous where it is reasonably susceptible of only one meaning or interpretation, and extrinsic evidence may not be introduced to create an ambiguity in an otherwise clear document.

Case:  Marin v. Constitution Realty, LLC, NY Slip Op 04225 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Waiving an argument of duress.

Court holiday.

Failure to deny an allegation in a complaint.

Practice point:  The failure to deny an allegation in a complaint constitutes an admission to the truth of that allegation, pursuant to CPLR 3018[a].

Student note:  Admissions in pleadings are always in evidence for all purposes at the trial of an action.

Case:  DeSouza v. Khan, NY Slip 04085 (2d Dept. 2015)

Here is the decision.

Tuesday's issue:  Contract interpretation.

A landowner's duty to protect.

Practice point:  A public establishment's owner has no duty to protect patrons against unforeseeable and unexpected assaults.

Student note:  While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control.

Case:  Bisignano v. Raabe, NY Slip Op 04081 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Failure to deny an allegation in a complaint.

A contract action involving an online business promotion.

Practice point:  This is a putative class action based on defendants' alleged deception involving an online business promotion. In the promotion, defendants offered to provide to visitors to their website who entered their email address a $1 coupon toward the purchase of their products and further promotional materials. Plaintiff asserts that he and other visitors to the defendants' website provided their email address to defendants in response to this promotion, but did not receive the $1 coupon. The complaint alleges causes of action seeking damages for breach of contract and based on General Business Law § 349.

An advertisement for the sale of goods generally does not constitute an offer, which requires language plain and clear enough to establish the intended terms of the proposed contract. Here, defendants' promotion constituted only an invitation for offers, in light of the fact that the promotion expressly stated that the supply of coupons was "limited."

As plaintiff failed to raise a triable issue of fact, the Appellate Division affirmed the granting of defendants' cross motion for summary judgment.

Student note:  As a matter of law, the promotion did not create the power of acceptance for consumers and, consequently, no unilateral contract was formed.

Case:  Amalfitano v. NBTY, Inc., NY Slip Op 04077 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: A landowner's duty to protect.

The requirement of a shareholder's presuit demand.

Practice point:  The Appellate Division affirmed dismissal, as plaintiff failed to make a presuit demand or adequately allege that a demand was excused.  Pursuant to Business Corporation Law § 626(c), a plaintiff shareholder must plead, with particularity, the attempt to secure the initiation of such action by the board, or the reasons for not making such effort.

Demand is excused due to futility when a complaint alleges with particularity that: (1) a majority of the board of directors is interested in the challenged transaction; or (2)  the board of directors did not fully inform themselves about the challenged transaction to the extent reasonably appropriate under the circumstances; or (3) the challenged transaction was so egregious on its face that it could not have been the product of the directors' sound business judgment.

Student note:  The demand requirement also applies to members of New York limited liability companies.

Case:  Barone v. Sowers, NY Slip Op 04195 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A contract action involving an online business promotion.

Defeating summary judgment in a sidewalk defects action.

Practice point:  At deposition, plaintiff testified that she fell because her foot hit a bump in the sidewalk. Defendants moved for summary judgment on the ground that plaintiff's inability to identify the bump or defect in photographs shown to her at her deposition prevented her from being able to prove that her accident was proximately caused by a sidewalk defect for which they were responsible.

The Appellate Division denied summary judgment, finding that plaintiff's testimony was sufficient to demonstrate a causal nexus between a sidewalk defect and her fall. In order to defeat summary judgment, she was not required to prove precisely which defect in the sidewalk caused her to fall.

Student note:  In opposition to the motion, a police report, although hearsay, was considered along with the admissible evidence of plaintiff's deposition testimony.

Case:  Kovach v. PJA, LLC, NY Slip Op 03931 (1st Dept. 2015)

Here is the decision.

Tomorrow' s issue:  The requirement of a shareholder's presuit demand.

A motion for judgment as a matter of law.

Practice point:  The motion, made pursuant to CPLR 4404, may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party.

Student note:  Where the proven facts show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery.

Case:  Liyanage v. Amann, NY Slip Op 03808 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Defeating summary judgment in a sidewalk defects action.

A motion for a change of venue.

Practice point:  The granting of the motion is discretionary, and the movant must set forth (1) the names, addresses, and occupations of material witnesses; (2) the facts to which those witnesses will testify at trial; (3) a showing that those witnesses are willing to testify; and (4) a showing that those witnesses will be inconvenienced if the venue of the action is not changed.

Student note:  Pursuant to CPLR 510(3), the court may, upon motion, change the place of the trial of an action where "the convenience of material witnesses and the ends of justice will be promoted by the change"

Case:  Fitzsimons v. Brennan, NY Slip Op 03801 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: A motion for judgment as a matter of law.

A slip-and-fall claim relying on defendant's own rules and guidelines.

Practice point:  The Appellate Division affirmed dismissa, finding that, while the evidence demonstrated that defendant may have had notice of the spill which allegedly caused plaintiff's fall, it further established that defendant's employees did not have a reasonable time to remedy the condition before the accident occurred.

The claimed violation by defendant's employees of an alleged internal rule or guideline was insufficient to raise a triable issue of fact. Violation of a company's internal rules is not negligence in and of itself, and where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence. The alleged internal rule or guideline that plaintiff would invoke goes beyond the standard of ordinary care and cannot serve as a basis for imposing liability.

Student note:  A defendant moving for summary judgment in a slip-and-fall case has the burden of establishing, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Case:  Byrd v. Walmart, Inc., NY Slip Op 03796 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion for a change of venue.