A failed motion to strike an answer.

Practice point:  The Appellate Division reversed the Supreme Court, finding that plaintiff's motion to strike defendant's answer and for summary judgment on its complaint should have been denied. Striking a party's pleadings is a drastic sanction that requires a clear showing that the party's conduct was willful and contumacious, and plaintiff failed to make this showing. Instead, the record makes clear that the facts surrounding defendant's failure to appear for deposition are in dispute. Defendant submitted affidavits stating that plaintiff had affirmatively agreed to postpone depositions while the parties tried to discern, among other things, who had signed which agreements. The Appellate Division said that, under these circumstances, there must be a hearing to determine whether defendant's failure to attend the deposition was willful and contumacious,

Student note:  The Appellate Division noted that, in New York, there is a strong preference for deciding matters on the merits.

Case:  CEMD El. Corp. v. Metrotech LLC I, NY Slip Op 05542 (1st Dep't July 14, 2016)

Here is the decision.

Tomorrow's issue:  Summary judgment on a motor vehicle accident claim.

A court's determination as to child support.

Practice point:  A court is not bound by a party's account of his or her own finances, and where a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed.

Student note:  Courts are afforded considerable discretion in imputing income.

Case:  Elsayed v. Edrees, NY Slip Op 05356 (2d Dep't July 6, 2016)

Here is the decision.

Tomorrow's issue:  A failed motion to strike an answer.

General Business Law § 349, the statute of limitations, and estoppel.

Practice point:  New York courts apply CPLR 214(2)'s three-year period of limitations for statutory causes of action to General Business Law § 349 claims, and the statute runs from the time when the plaintiff was injured. A defendant is estopped from raising a statute of limitations defense to a statutory cause of action where the plaintiff has alleged both the tort that was the basis of the action and later acts of deception that prevented the plaintiff from bringing a timely lawsuit.

Student note:  A cause of action accrues, triggering the statute of limitations, when all of the factual circumstances necessary to establish a right of action have occurred, so that the plaintiff would be entitled to relief.

Case:  Kainer v. Christie's Inc., NY Slip Op 05454 (1st Dep't July 7, 2016)

Here is the decision.

Tomorrow's issue:  A court's determination as to child support.

A dismissed claim of malicious prosecution.

Practice point:  The Appellate Division affirmed dismissal, as the record does not support a finding that defendants initiated the criminal proceeding against plaintiff without probable cause and with malice. Instead, the record merely shows that they provided police with information and cooperated with authorities; there is no evidence that defendants affirmatively induced the authorities to act.

Student note: The grand jury indictment of plaintiff raises a rebuttable presumption of probable cause for the drug possession charge.

Case:  Patrick v. United Parcel Serv., Inc., NY Slip Op 05446 (1st Dep't July 7, 2016)

Here is the decision.

Tomorrow's issue:  General Business Law § 349, the statute of limitations, and estoppel.

Lack of capacity as a defense.

Practice point:  Absent a judicial declaration of incompetence, a person of unsound mind may sue or be sued in the same way as any other person.

Student note:  A motion to amend to add a defense will be denied if the proposed amendment is palpably insufficient as a matter of law.

Case:  Rivera v. New York City Tr. Auth., NY Slip Op 05451 (1st Dep't July 7, 2016)

Here is the decision.

Tomorrow's issue:  A dismissed claim of malicious prosecution.

An exclusionary clause in an insurance contract.

Practice point:  In order to be given effect, an exclusion from coverage must be specific and clear, and any ambiguity in the exclusionary clause must be construed most strongly against the insurer.

Student note:  As with any contract, an unambiguous policy provision must be accorded its plain and ordinary meaning, and the plain meaning of the policy's language may not be disregarded in order to find an ambiguity where none otherwise exists.

Case:  Cleary v. Automobile Ins. Co. of Hartford, Conn., NY Slip Op 05355 (2d Dep't July 6, 2016)

Here is the decision.

Tomorrow's issue:  Lack of capacity as a defense.

A bicyclist, a bus, and an illegally parked vehicle.

Practice point:  The Appellate Division affirmed denial of the motion to dismiss in this action where defendant argues that, although its truck was parked in a no-standing zone at the time of the accident involving plaintiff's bicycle and a bus, its truck was not a proximate cause of the accident. The Appellate Division found issues of fact as to how far the truck was protruding into the lane of travel, whether plaintiff swerved toward the bus in an effort to avoid the truck, and whether plaintiff was forced to jump from his bicycle in order to avoid being slammed into the truck as his bicycle was being dragged by the bus.

Student note:  Since a reasonable factfinder could conclude that the accident was a foreseeable consequence of defendant's illegal parking, summary judgment was properly denied.

Case:  Santana v. MTA Bus Co., NY Slip Op 05450 (1st Dep't July 7, 2016)

Here is the decision.

Monday's issue:  An exclusionary clause in an insurance contract.

A collision on a ski slope.

Practice point:  The Appellate Division affirmed the denial of defendant's motion for summary judgment dismissing the complaint in this action where plaintiff-snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour.

The Appellate Division found in the record triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner's slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented.  In addition, in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances.

Student note:  While there are inherent risks in the sports of skiing and snowboarding, participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk.

Case:  Horowitz v. Chen, NY Slip Op 05335 (1st Dep't July 5, 2016)

Here is the decision.

Tomorrow's issue:  A bicyclist and an illegally parked vehicle.

Attorney-client privilege as to in-house general counsel.

Practice point:  The Appellate Division reversed the motion court that had granted plaintiff's motion to compel defendants to produce certain documents that had been withheld on the basis of attorney-client privilege.  The primary issue on appeal was whether attorneys who have sought the advice of their law firm's in-house general counsel on their ethical obligations in representing a firm client may successfully invoke attorney-client privilege to resist the client's demand for the disclosure of communications seeking or giving such advice.  The Appellate Division held that these communications are not subject to disclosure to the client under the fiduciary exception to the attorney-client privilege, as, for purposes of the in-firm consultation on the ethical issue, the attorneys seeking the general counsel's advice, as well as the firm itself, were the general counsel's clients. The Appellate Division expressly declined to adopt the current client exception, under which a former client is entitled to disclosure by a law firm of any in-firm communications relating to the client that took place while the firm was representing that client.

Student note:  New York has codified the attorney-client privilege at CPLR 4503, which provides, in pertinent part, as follows:

(a) 1. Confidential communication privileged. Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing.

Case:  Stock v. Schnader Harrison Segal & Lewis LLP, NY Slip Op 05247 (1st Dep't June 30, 2016)

Here is the decision.

Tomorrow's issue:  A collision on a ski slope.

A time-barred negligene claim.

Practice point:  The Appellate Division affirmed dismissal of the negligence claim, among others, as time-barred.  The claim, which alleges a failure to properly record certain mortgages, is governed by CPLR 214(4), a three-year statute of limitations. The mortgages at issue were recorded in 2007, and the claim was not filed until 2014.

Student note:  Accrual time is measured from the day the actionable injury occurred, even though the aggrieved party was then ignorant of the injury.

Case:  Yarbro v. Wells Fargo Bank, N.A., NY Slip Op 05236 (1st Dep't June 30, 2016)

Here is the decision.

Tomorrow's issue:  Attorney-client privilege as to in-house general counsel.

A fall in a City-owned garden.

Practice point:  The Appellate Division reversed the motion court and dismissed this action where plaintiff allegedly fell in a City-owned community garden when he tripped over the edge of a concrete slab bordering a patch of dirt and was lacerated by rebar or wires sticking out of the concrete. Defendant-non-profit organization provided funding and assistance for a renovation project in the garden that was completed three years before plaintiff's accident.

To the extent the non-profit could be held liable to plaintiff for creating an unreasonable risk of harm, it demonstrated through the its assistant director's testimony that it did not create the tripping hazard, but assisted in upgrading the deteriorated garden and clearing it of tripping hazards. In addition, the assistant director testified that he did not see any condition of wires or rebar sticking out of concrete in the garden during the renovation project, and plaintiff, who had been a member of the garden for nine years, could not say how long the condition existed before his accident.

In opposition, neither plaintiff nor the City presented any evidence.

Student note:  Speculation by plaintiff and the City that the non-profit may have been involved in construction in the area of plaintiff's fall, which may have caused the defective condition, is insufficient to raise an issue of fact,

Case:  Sewesky v. City of New York, NY Slip Op 05234 (1st Dep't June 30, 2016)

Here is the decision.

Tomorrow's issue:  A time-barred negligence claim.