Family Court's subject matter jurisdiction.

Practice point:  Pursuant to Family Court Act § 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain prescribed acts that occur "between spouses or former spouses, or between parent and child or between members of the same family or household."

Pursuant to the statute, "members of the same family or household" include, among others, "persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time." (

Student note:  Family Court is a court of limited jurisdiction, constrained to exercise only those powers conferred upon it by the New York Constitution or by statute.

Case:  Matter of Cambre v. Kirton, NY Slip 06242 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A failed motion to dismiss the defense of undue influence.

Contract interpretation, on the motion and on appeal

Practice point:  The court's function is to apply the meaning intended by the parties, as derived from the language of the contract itself.  In interpreting a contract, words should be accorded their fair and reasonable meaning, and the aim is a practical interpretation of the expressions of the parties to the end that there be a realization of the parties' reasonable expectations. A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms, and the fact that the parties offer conflicting interpretations of a contract does not render it ambiguous.  Where the parties' intention may be gathered from the four corners of the instrument, interpretation of the contract is a question of law and no trial is necessary to determine the contract's legal effect, if any.

Student note:  On appeal, the standard of review is for the Appellate Division to examine the contract's language de novo.

Case:  Dreisinger v. Teglasi, NY Slip Op 06197 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Family Court's subject matter jurisdiction.

Default not entered within one year.

Practice point:  The Appellate Division affirmed the granting of the motion to dismiss pursuant to CPLR 3215(c). Plaintiff failed to take any proceedings for entry of judgment within one year after defendant defaulted, and plaintiff failed to demonstrate sufficient cause why the motion should be denied.

Student note:  CPLR 3215(c), which is titled "Default not entered within one year," states, in pertinent part, that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."

The statute prevents parties who have asserted claims from unreasonably delaying the termination of actions, and to avoid inquests on stale claims.  Failure to take proceedings for entry of judgment may be excused, however, upon a showing of sufficient cause. To establish sufficient cause, the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action.

Case:  Aurora Loan Servs., LLC v. Hiyo, NY Slip Op 06100 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Contract interpretation, on the motion and on appeal.

Summary judgment in an action alleging a school's negligent supervision.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss this action in which infant plaintiff allegedly sustained injuries in his former school when a fellow student allegedly assaulted him on multiple occasions, and, when inside a classroom, a group of students repeatedly kicked him.  Defendant moved for summary judgment dismissing the complaint insofar as asserted against it, arguing that it did not have notice of prior similar conduct by the offending students.
The Appellate Division found that, in support of the motion, defendant ailed to establish, prima facie, that it acked sufficiently specific knowledge or notice of the dangerous conduct that allegedly caused the infant plaintiff's injuries. The moving papers failed to eliminate all triable issues of fact as to whether they had knowledge of a particular student's dangerous propensities arising from his involvement in other altercations with infant plaintiff. The moving papers also failed to eliminate all triable issues of fact as to whether a teacher failed to take the requisite energetic steps to intervene to prevent the infant plaintiff's injuries at the hands of a group of his classmates.

Student note:  Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.

Case:  Amandola v Roman Catholic Diocese of Rockville Ctr., NY Slip Op 06099 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Default not entered within one year.

Summary judgment in an action to enforce a written guaranty.

Practice point:  The Appellate Division affirmed the granting of plaintiff's motion for summary judgment, as plaintiff satisfied the elements of its claim and defendant failed to create an issue of fact. The Appellate Division rejected defendant's argument that the parties entered into an oral agreement to release defendant from any claims arising from the guaranty, provided defendant introduced plaintiff to a buyer that purchased the subject building. Defendant's reliance on this purported oral agreement fails in light of the parties' agreement that all modifications to the guaranty were to be in writing, and defendant's failure to point to any performance of the purported oral agreement that is unequivocally referable to the modification.

Student note:  On a motion for summary judgment to enforce a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

Case:  Gansevoort 69 Realty LLC v. Laba, NY Slip Op 06094 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in an action alleging a school's negligent supervision.

Summary judgment in an employment discrimination action.

Practice point:  The Appellate Division affirmed dismissal, finding that defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff was transferred to another store for a legitimate, nondiscriminatory reason consisting of her problems with coworkers and leaving the store unattended. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant's explanation for her transfer was false or unworthy of belief, or was a pretext for discrimination.

Student note:  To establish prima facie entitlement to judgment as a matter of law dismissing a cause of action alleging discrimination, a defendant must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual.

Case:  Nura v. International Shoppes, LLC, NY Slip Op 05920 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in an action to enforce a written guaranty.

Circumstantial evidence of negligence.

Practice point:  To establish a prima facie case based on circumstantial evidence, plaintiff must show facts and conditions from which it may reasonably inferred that defendant was negligent and that the negligence caused the accident. Plaintiff's proof need not positively exclude every other possible cause of the accident. Instead, plaintiff''s proof must render those other causes sufficiently remote or technical so that a jury may reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence.

Student note:  The standard of proof is that it is more likely or more reasonable that the alleged injury was caused by the defendant's negligence than by some other agency.

Case:  Hernandez v. Alstom Transp., Inc., NY Slip Op 05911 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in an employment discrimination action.

Summary judgment based on res ipsa.

Practice point:  The Appellate Division affirmed the granting of plaintiffs' motion for partial summary judgment in this action where it is undisputed that plaintiff was injured when a garage door located on the premises of defendant's service center suddenly came down on him. The Appellate Division found that the doctrine of res ipsa loquitur is applicable here because the accident was the kind that does not occur in the absence of negligence.

The Appellate Division explained that the motion court properly found that this was one of the rarest of res ipsa loquitor cases where the inference of negligence is inescapable. Defendant failed to present any evidence of an alternative explanation for the accident. Although the facilities manager's affidavit indicated that customers should not be waiting in the area under the garage door, no evidence was provided to refute plaintiff's claim that defendant's employee directed him where to stand.

Student note:  Although defendant claimed that plaintiffs' motion was premature because depositions had not yet taken place, it failed to indicate what specific discovery might absolve it from liability to plaintiffs.

Case:  Levin v. Mercedes-Benz Manhattan, Inc., NY Slip Op 06025 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Circumstantial evidence of negligence.

Vacating a default as a matter of law.

Practice point:  The Appellate Division reversed the denial of the motion to vacate, finding that,  contrary to the Supreme Court's determination, defendant demonstrated a reasonable excuse for its failure to appear at the originally scheduled compliance conference which occurred when a stay of the action was in effect, and that it never received actual notice of the subsequent adjourned compliance conference.

In the absence of such actual notice of the conference date, defendant's failure to appear could not qualify as a failure to perform a legal duty, which is the very definition of a default. The Appellate Division determined that vacatur of the default was required as a matter of law and due process, and that, therefore no showing of a potentially meritorious defense was required.

Student note:  As a general rule, a defendant seeking to vacate a default in appearing at a compliance conference is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense, pursuant to CPLR 5015[a][1].

Case:   Foley Inc. v. Metropolis Superstructures, Inc., NY Slip Op 05910 (2d Dept. 2015

Here is the decision.

Tomorrow's issue:  Summary judgment based on res ipsa.

An action alleging negligent supervision in a gym class.

Practice point:  In this action alleging negligent supervision in a gym class, the Appellate Division reversed Supreme Court and found that defendants established prima facie entitlement to summary judgment dismissing the action against them. Plaintiffs failed to raise a triable issue of fact to refute defendants' evidence that the infant plaintiff, a seventh grade student, was instructed and shown how to properly navigate the obstacle course in question, which included a two-foot high hurdle. Plaintiff was injured when, after successfully jumping over the hurdle, he suffered a fracture of his right knee upon landing. There was no evidence offered to substantiate the claim that the wooden gym floor was slippery, or that a matted landing area was warranted. Defendants' unrefuted evidence demonstrated that the other students navigated the hurdle without incident, and that there was no known history of injuries occurring in connection with the obstacle course, which the gym teachers regularly used. Moreover, infant plaintiff's two gym teachers jointly observed only half a class at a time, as the boys and then the girls of each class attempted the obstacle course. Plaintiffs offered no evidence, aside from speculation, that plaintiff's injury could have been avoided by having a spotter alongside the hurdle, or a mat on the landing side of the hurdle.

Student note:  The Appellate Division noted that dismissal as to the City is required, in any event, as it is not a proper party.

Case:  Luis S. v. City of New York, NY Slip Op 06022 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Vacating a default as a matter of law.

Design defects and products liability.

Practice point:  For purposes of imposing products liability, the standard is whether, if the design defect were known at the time of manufacture, a reasonable person would conclude that the product's utility did not outweigh the risk inherent in marketing a product designed in that manner.

An interlock on a table saw, which would prevent the saw's operation without the guard in place, could make the saw unusable for certain cuts, thereby impairing its functionality.  So, a theory of liability based upon an allegation that the saw should have been designed with an interlock has been explicitly rejected as a matter of law.

Student note:  Application of the design defect standard demands an inquiry into such factors as (1) the product's utility to the public as a whole; (2) its utility to the individual user;  (3) the likelihood that the product will cause injury; (4) the availability of a safer design; (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (6) the degree of awareness of the product's potential danger that can reasonablly be attributed to the injured user; and (7) the manufacturer's ability to spread the cost of any safety-related design changes. Liability attaches when an analysis of these factors leads one to conclude that the utility of the product did not outweigh the risk inherent in marketing it.

Case:  Chavez v. Delta Intl. Mach. Corp., NY Slip Op 05903 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  An action alleging negligent supervision in a gym class.