Real Property Law and enforcing restrictive covenants.

Practice point:  Pursuant to RPAPL 1951(1),  the covenant will not be enforced if, at the time enforceability of the restriction is brought into question, it seems that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability.

Student note:  The party seeking relief from the covenant bears the burden of proof.

Case:  Blue Is. Dev., LLC v. Town of Hempstead, NY Slip Op 06465 (2d Dep't October 5, 2016)

Here is the decision.

Tomorrow's issue:  A stipulation of settlement in a divorce action.

A posttrial motion to set aside the verdict.

Practice point:  The Order granting plaintiff's posttrial motion to set aside the verdict was reversed, on the law and the facts, the jury verdict was reinstated, and the complaint was dismissed.

Plaintiff had presented to defendant-dentists, and then, two years later, a tumor was discovered in the lower left side of plaintiff's mouth. Plaintiff alleges that the tumor should have been detected on the bitewing x-ray taken at defendants' office two years earlier.

At trial, the jury was presented with conflicting evidence as to whether there were sufficient grounds to investigate and take further x-rays. It was further asked to determine the credibility of the defense expert, who plaintiff's trial counsel asserted lied about the issues in the case. The jury's verdict implicitly rejected that contention, and resolved the conflicting testimony in defendants' favor.  In the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict, with particular deference given to jury verdicts in favor of defendants in tort cases.

Student note:  The verdict was based on a fair interpretation of the evidence and should not have been disturbed.

Case:  Cordero v. Young, NY Slip Op 06543 (1st Dep't October 6, 2016)

Here is the decision.

Tomorrow's issue:  Real Property Law and enforcing restrictive covenants.

Court holiday.

Tomorrow's issue:  A posttrial motion to set aside the verdict.

Wheel stops and the risk of harm.

Practice point:  While a property owner has a duty to maintain its premises in a reasonably safe manner for its patrons, there is no duty to protect or warn against an open and obvious condition which is not inherently dangerous.  A wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm.

Case:  Lacerra v. CVS Pharmacy, NY Slip Op 06474 (2d Dep't October 5 2016)

Here is the decision.

Tuesday's issue: A posttrial motion to set aside the verdict.

A trivial defect is nonactionable.

Practice point:  The height differential between the marble step and the bull-nosing on which plaintiff caught her heel, causing her to fall, was one-eighth to one-quarter of an inch. This defect, as a matter of law, did not constitute a trap or nuisance, nor were the intrinsic characteristics or the surrounding circumstances such that they magnified the danger posed by this otherwise insignificant defect. So, this defect was trivial as a matter of law, and, as a result, nonactionable.

Case:  Atkinson v. Key Real Estate Assoc., LLC, NY Slip Op 06160 (1st Dep't September 27, 2016)

Here is the decision.

Tomorrow's issue:  Wheel stops and the risk of harm.

Prima facie tort.

Practice point:  The elements of a cause of action alleging prima facie tort are: (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or a series of acts which would otherwise be lawful. To make out a claim sounding in prima facie tort, a plaintiff must have suffered specific and measurable loss, which requires an allegation of special damages, that is, the loss of something having economic or pecuniary value.

Student note:  Prima facie tort provides a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy. It does not to provide a catch-all alternative for every cause of action which cannot stand on its own.

Case:  Berland v.. Chi, NY Slip Op 06188 (2d Dep't September 28, 2016)

Here is the decision.

Tomorrow's issue: A trivial defect is nonactionable.

A claim for injuries allegedly sustained while conducting a repair work estimate.

Practice point:  The Appellate Division reversed the order dismissing the complaint in this action where plaintiff had gone to defendant's property to prepare an estimate to repair the back porch. While plaintiff was standing on the porch, it collapsed and plaintiff was injured.

Student note:  Since the defendant failed to establish prima facie entitlement to judgment as a matter of law, it is not necessary for the court to review the sufficiency of plaintiff's opposition papers.

Case:  Arcabascio v. Bentivegna, NY Slip Op 06187 (2d Dep't September 28, 2016)

Here is the decision.

Tomorrow's issue: Prima facie tort.

Summary judgment on a legal malpractice claim.

Practice point:  The Appellate Division affirmed denial of defendant law firm's motion to dismiss. The bank made a prima facie showing that the law firm departed from the standard of care in connection with the closing of a residential real estate mortgage loan to plaintiff by failing to advise that the property lacked a certificate of occupancy, failing to advise of the risk of funding the loan under these circumstances, and failing to confirm that plaintiff contributed 3% of her own funds toward closing, a condition of the loan. The law firm, which did not submit an expert's opinion in opposition, failed to raise a triable issue.

Student note:  The motion court properly considered the affidavit of the bank's legal expert concerning the duty of care an attorney owes to a mortgage-lender client.  The bank's closer, who was responsible for ensuring that the closing documents were in order, clearly had knowledge of the facts, and, therefore, was qualified to submit an affidavit in support of the bank's summary judgment motion, pursuant to CPLR 3212[b]. The closer's lack of knowledge concerning the underwriting process is irrelevant to the claim.

Case:  Benitez v. United Homes of N.Y., LLC, NY Slip Op 06153 (1st Dep't September 27, 2016)

Here is the decision.

Tomorrow's issue: A claim for injuries allegedly sustained while conducting a repair work estimate.

A dismissed retaliation claim.

Practice point:  The Appellate Division affirmed the dismissal of plaintiff's retaliation claim under federal and state civil rights law and under the New York City Human Rights Law, finding that the amended complaint failed to provide a basis for a reasonable jury to conclude that the job offer that was extended to plaintiff was rescinded because of his inquiry to the Equal Employment Opportunity Commission. There is no dispute that the job offer was re-confirmed, even after defendant City employees were aware of the inquiry.

There also is no dispute that plaintiff failed to complete the routine paperwork stating that such a failure might result in his not being appointed to the position that was offered. Plaintiff failed to allege facts sufficient to demonstrate a causal connection between the adverse employment action and his EEOC inquiry, or that the stated reason for rescinding the job offer was a pretext for impermissible retaliation.

Student note:  The Appellate Division noted that, while the order appealed from did not expressly address plaintiff's retaliation claim, it unambiguously granted defendants' motion to dismiss in its entirety.  CPLR 2219(a) provides the court with broad leeway as to the form of an order, and the parties addressed the claim in their motion papers.

Case:  Ruderman v. City of New York, NY Slip Op 06148 (1st Dep't September 27, 2016)

Here is the decision.

Monday's issue:  Summary judgment on a legal malpractice clai

Failure to state a cause of action for fraudulent inducement and fraud.

Practice point:  A complaint fails to state a cause of action for fraudulent inducement and fraud to the extent that it relies on representations that are non-actionable statements of either intent or belief.

Case:  GSO Coastline Credit Partners LP v. Global A&T Electronics Ltd., NY Slip Op 06143 (1st Dep't September 27, 2016)

Here is the decision.

Tomorrow's issue:  A dismissed retaliation claim.

An action on an account stated.

Practice point:  An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and the balance owing. The agreement is implied where a defendant retains bills without objection within a reasonable period of time, or makes partial payment on the account.

Case:  Clean Earth of N. Jersey, Inc. v. Northcoast Maintenance Corp., NY Slip 06056 (2d Dep't September 21, 2016)

Here is the decision.

Tomorrow's issue:  Failure to state a cause of action for fraudulent inducement and fraud.