A defendant's failure to establish a prima facie case.

Practice:  A defendant cannot establish a prima facie case merely by pointing out gaps in the plaintiff's case.

Case in point:  Barone v. Elizabeth Firehouse, LLC, NY Slip Op 04052 (1st Dep't May 18, 2017)

Here is the decision.

Tomorrow's issue:  A valid storm-in-progress defense.

A contracting party's liability to a third party.

Practice point:  A party who enters into a contract to render services may be said to have assumed a duty of care, and be potentially liable in tort to a third party, where the contracting party launches a force or instrument of harm, such as by negligently creating or exacerbating a dangerous condition.

Case in point:  Brown v. Garda CL Atl., Inc., NY Slip Op 04049 (1st Dep't May 18, 2017)

Here is the decision.

Tomorrow's issue:  A defendant's failure to establish a prima facie case.

Memorial Day.

Memorial Weekend

A misleveled elevator.

Practice point:  An elevator ordinarily does not mislevel in the absence of negligence, and where the misleveling is caused by an instrumentality or agency within the defendants' exclusive control and is not due to any voluntary action on a plaintiff's part, the case will be submitted to the jury on a theory of res ipsa loquitur.

When res ipsa applies, notice of a defect is inferred, and the plaintiff need not offer any evidence of actual or constructive notice. 

Case in point:  Rojas v. New York El. & Elec. Corp., NY Slip Op 04043 (1st Dep't May 18, 2017)

Here is the decision.

Tuesday's issue:  A contracting party's liability to a third party.

CPLR 3215(c) and default judgments.

Practice point:  Pursuant to the statute, "[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 single exception to the statute's mandatory language is that the failure to timely seek a default on an unanswered complaint or counterclaim may be excused for sufficient cause. Courts have interpreted this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious.

Case in point:  Bank of N.Y. v. Kushnir, NY Slip Op 03922 (2d Dep't May 17, 2017)

Here is the decision.

Tomorrow's issue:  A misleveled elevator.

A claim of unfair competition and misappropriation of confidential information.

Practice point:  To establish a cause of action for relief based on unfair competition, a plaintiff must demonstrate that the defendant wrongfully diverted the plaintiff's business to itself. To establish a cause of action based on misappropriation of confidential information, the plaintiff must show that the defendant solicited the plaintiff's customers where the customer list was a trade secret, or where the defendant engaged in wrongful conduct, such as physically taking or copying files or using confidential information.

Case in point:  Baldeo v. Majeed, NY Slip Op 03921 (2d Dep't May 19, 2017)

Here is the decision. 

Tomorrow's issue:  CPLR 3215(c) and default judgments.

The signatory's obligation to read the instrument, and a claim of notarial misconduct.

Practice point:  A party is obliged to read a document before signing it, and cannot avoid the document's effect by alleging ignorance of its contents.  A cause of action alleging that the plaintiff was induced to sign something different from what he or she thought was being signed only arises if the signatory is illiterate, blind, or not a speaker of the language in which the document is written.

A defendant establishes prima facie entitlement to judgement as a matter of law dismissing a notarial misconduct claim by presenting evidence that the plaintiff signed the document which contained the notary's acknowledgment. The plaintiff cannot raise a triable issue of fact with conclusory testimony that the he or she did not sign the document.

Case in point:   Anderson v. Dinkes & Schwitzer, P.C., NY Slip Op 03721 (2d Dep't May 10, 2017)

Here is the decision.

Tomorrow's issue:  A claim of unfair competition and misappropriation of confidential information.

CPLR Article 31, Freedom of Information Law (FOIL), and discovery.

Practice point: Article 31 is not a statute specifically exempting public records from disclosure under FOIL, and FOIL does not bar the simultaneous use of both CPLR 3101 and FOIL in order to procure discovery.

Case in point:  Smith v. Watson, NY Slip Op 03878 (1st Dep't May 11, 2017)

Here is the decision.

Tomorrow's issue:  The signatory's obligation to read the instrument, and a claim of notarial misconduct.

Dismissal of a slip- or trip-and-fall action.

Practice point:  In a slip- or trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the fall.  A plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence proximately caused the plaintiff's injuries would be based impermissibly on speculation.

Case in point:  Amster v. Kromer, NY Slip Op 03720 (2d Dep't May 10, 2017)

Here is the decision.

Monday's issue:  CPLR Article 31, Freedom of Information Law (FOIL), and discovery.

Dismissal of an action alleging an elevator-related injury.

The Appellate Division reversed, and dismissed the complaint in this action where plaintiff was injured when, while performing an elevator inspection in defendants' building, the elevator's governor cable snapped and struck him. Plaintiff does not dispute that the work ticket summaries for the building's elevators for the prior six months do not indicate any problem with the governor cable.

Practice point:  Plaintiff's assertion that the alleged defect should have been discovered, notwithstanding the lack of indication of a problem in the work ticket summaries and the lack of complaints, is merely speculative.

Case in point:  Vilella v. Witkoff Group, LLC, NY Slip Op 03872 (1st Dep't May 11, 2017)

Here is the decision.

Tomorrow's issue:  Dismissal of a slip- or trip-and-fall action.