The correct standard on a summary judgment motion.

Practice point:  The Appellate Division affirmed that the motion court had applied the correct standard in denying defendant's motion, as defendant merely pointed to perceived gaps in plaintiff's proof, rather than submitting evidence showing why plaintiff's claims fail.

Case:  Ricci v. A.O. Smith Water Prods. Co., NY Slip Op 06741 (1st Dep't October 13, 2016)

Here is the decision.

Monday's issue:  An elevator company's duty of care.

An untimely summary judgment motion.

Practice point:  The Appellate Division reversed the granting of defendants' motion for summary judgment dismissing plaintiff's cause of action for third-party promissory estoppel. The motion court's rules required dispositive motions to be filed within 60 days of the filing of a note of issue. Defendant filed the motion papers nine days after the time to do so had expired, rendering the motion untimely, pursuant to CPLR 3212[a].

Case:  Cullity v. Posner, NY Slip Op 06738 (1st Dep't October 13, 2016)

Here is the decision.

Tomorrow's issue:  The correct standard on a summary judgment motion.

A promise to answer for another's debt.

Practice point:  The Appellate Division reversed the motion court and dismissed the complaint in this action to recover on a personal guaranty. A promise to answer for another's debt must be in writing and signed by the party to be charged, pursuant to General Obligations Law § 5-701[a][2].  Here, as the authenticity of defendant's signature was disputed and plaintiff sought to establish its authenticity through lay witness testimony, plaintiff was required to demonstrate that the witness personally observed the execution of the guaranty, or was so familiar with defendant's signature that he could readily recognize the signature as authentic. Plaintiff offered no such evidence, and did not establish that the signature was notarized or accompanied by a certificate of acknowledgment, pursuant to CPLR 4538.

Case:  A. F. Supply Corp. v. Perfect Lock & Sec., Inc., NY Slip Op 06672 (2d Dep't October 12, 2016)

Here is the decision.

Tomorrow's issue:  An untimely summary judgment motion.

Dismissal of a claim based on a fall on the stairs.

Practice point:  The Appellate Division affirmed the granting of defendants' motion for summary judgment dismissing the complaint. Defendants established prima facie that they did not cause or create the defect in the stairs that allegedly caused plaintiff to fall, and that they had no actual or constructive notice of any defect. They submitted evidence that the stairs were built in 1927 and had never been worked on thereafter, that there were no earlier reported incidents or complaints, and that no violations or citations had been issued with respect to the condition of the stairs. They also submitted their testimony that they used the stairs regularly, that no one had ever before fallen on the stairs, and that immediately after the accident they could find no defect.

In opposition, plaintiffs failed to raise an issue of fact. As to the issue of notice, the motion court was not required to consider their unsworn witness statement since the statement was the only evidence submitted on that issue. In any event, the unsworn statement is not probative of whether defendants had notice of the alleged defect.

Plaintiffs' expert's affidavit is not evidence that the stairs were out of compliance with commonly accepted safety standards or practices, as the expert did not refer to any specific safety standards or practices. Neither did the expert say that the absence of a handrail or the differential in the dimensions of the risers and treads made the stairs inherently dangerous.

Case:  Lovell v. Thompson, NY Slip Op 06736 (1st Dep't October 13, 2016)

Here is the decision.

Tomorrow's issue:  A promise to answer for another's debt.

Dismissal of a Labor Law § 240(1) claim,

Practice point:  The Appellate Division reversed the denial of defendant's motion for summary judgment and the granting plaintiffs' cross motion for partial summary judgment on liability, and dismissed the complaint. Plaintiff was struck by a pipe while it was being flushed clean with a highly pressurized mixture of air, water, and a rubber rabbit device. The movement of this mixture through the pipe failed to bring the mechanism of plaintiff's injury within the ambit of the statute because it did not involve the direct consequence of the application of the force of gravity to an object. The mixture in the pipe did not move through the exercise of the force of gravity, but, instead, was intentionally propelled through the pipe through the use of high pressure.

Case:  Joseph v. City of New York, NY Slip Op 06649 (1st Dep't October 11, 2016)

Here is the decision.

Tomorrow's issue:  Dismissal of a claim based on a fall on the stairs.

A shareholders's right to inspect the books and records.

Practice point:  In New York, shareholders have both statutory and common-law rights to inspect a corporation's books and records, so long as the shareholders seek the inspection in good faith and for a valid purpose.  A shareholder's concerns about board mismanagement and excessive expenditures and wasteful dissipation of corporate assets are, on their face, a proper purpose, even if the inspection ultimately establishes that the board had engaged in no wrongdoing.  Because the common-law right of inspection is broader than the statutory right, petitioners are entitled to inspect books and records beyond the specific materials delineated in Business Corporation Law § 624 (b) and (e).

Case:  Matter of Pokoik v. 575 Realties, Inc., NY Slip Op 06648 (1st Dep't October 11, 2016)

Here is the decision.

Monday's issue:  Dismissal of a Labor Law § 240(1) claim,

A stipulation of settlement in a divorce action.

Practice point:  A stipulation of settlement which is incorporated but not merged into a judgment of divorce retains the character of an independent contract and survives as a basis for suit.  When the terms of such a stipulation are clear and unambiguous, the general rule is that the intent of the parties is to be found within the four corners of the agreement, and not from extrinsic evidence,

Student note:  Whether an agreement is ambiguous is a question of law for the courts.

Case:  Leibowitz v. Leibowitz, NY Slip Op 06475 (2d Dep't October 5, 2016)

Here is the decision.

Tomorrow's issue: A shareholder's right to inspect the books and records.

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.