A settlement is approved nunc pro tunc.

Practice point:  The Appellate Division reversed the Court of Claims' denial of claimant's motion for an order approving the settlement of a claim nunc pro tunc under Workers' Compensation Law § 29(5).

The Appellate Division determined that the record does not show that the delay in obtaining approval was attributable solely to the fault or neglect of claimant; indeed, the record supports the conclusion that the carrier unwittingly lulled claimant into believing that it was willing to waive claimant's failure to obtain timely consent or court approval of the settlement. In fact, said the Appellate Division, the carrier made payments to claimant for eight years without objection, after it was made aware of the facts and circumstances surrounding the settlement and claimant's medical condition.

Moreover, respondent, the Liquidation Bureau, suffered no demonstrable prejudice as a result of any delay attributable to claimant.

Student note:  A judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even in cases where the approval is sought more than three months after the date of the settlement, provided that the petitioner can establish that (1) the amount of the settlement is reasonable; (2) the delay in applying for a judicial order of approval was not caused by the petitioner's fault or neglect; and (3) the carrier was not prejudiced by the delay.

Case:  Amacio v. State of New York, NY Slip Op 06298 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: The whistleblower statute and the underlying claims that gave rise to the complaint.

A failed motion to dismiss the defense of undue influence.

Practice point:  The Appellate Division affirmed the denial of the motion in this action where petitioner, the executor of decedent's will, sought permission to pay himself a sum that decedent allegedly owed him. The debt is allegedly evidenced by a promissory note that decedent executed 10 days before he died.  The Appellate Division found that the record contains evidence that payment would benefit petitioner while rendering the estate insolvent, a result that would have been contrary to the decedent's estate plan. Moreover, the note and accompanying letter of instruction were prepared by petitioner's counsel as opposed to the decedent's own estate planning counsel. These factors, combined with the evidence of the decedent's deteriorating health, suffice to raise a triable issue of fact as to whether the note was the product of undue influence.

Student note:  The elements of undue influence are motive, opportunity, and the actual exercise of that undue influence.  As direct proof of undue influence is rare, its elements may be established by circumstantial evidence.

Case:  Matter of Kotick v. Shvachko, NY Slip Op 06011 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A sertlement is approved nunc pro tunc.

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.