A multiple dwelling's owner's duty of care.

Practice point:  Pursuant to Multiple Dwelling Law § 78[1], the owner is responsible for exercising reasonable care in keeping the property, including the wiring, in good repair.

Student note:  A property owner has a non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others.

Case:  Daly v. 9 E. 36th LLC, NY Slip Op 06404 (1st Dep't September 5, 2017)

Here is the decision.

Monday's issue: Sufficiency of service.

Moving for summary judgment in a negligence action.

Practice point:  A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the accident.

Student note:  Since there can be more than one proximate cause of an accident, it is for the trier of fact to determine the issue of proximate cause.

Case:  Searless v. Karczewski, NY Slip Op 06393 (2d Dep't August 30, 2017)

Here is the decision.

Tomorrow's issue:  A multiple dwelling's owner's duty of care.

Ambiguous contracts.

Practice point  To be found ambiguous, a contract must be susceptible of more than one commercially reasonable interpretation.  Whether there is an ambiguity must be determined by examining the entire contract and considering the parties'  relation and the circumstances under which the contract was executed, with the wording to be considered in the light of the obligation as a whole and the intention of the parties as manifested thereby.

Student note:  In any question of the interpretation of a written contract, the objective is to determine what is the intention of the parties as derived from the language employed.

Case:  Perella Weinberg Partners LLC v. Kramer, NY Slip Op 06341 (1st Dep't August 29, 2017)

Here is the decision.

Tomorrow's issue:  Moving for summary judgment in a negligence action.

A claim for breach of fiduciary duty.

Practice point:  The elements of the cause of action are (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages directly caused by the defendant's misconduct. The claim must be pleaded with particularity under CPLR 3016(b).

Student note:  A fiduciary relationship arises when one is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation. It is grounded in a higher level of trust than normally present in the marketplace between those involved in arm's length business transactions.

Case:  Saul v. Cahan, NY Slip Op 06390 (2d Dep't August 30, 2017)

Here is the decision.

Tomorrow's issue:  Ambiguous contracts.

Court holiday.

                                        Triangle Shirtwaist Factory 1911

Striking a pleading.

Practice point:  The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery is willful and contumacious. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse.

Student note:  The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court.

Case:  Schiller v. Sunharbor Acquisition I, LLC, NY Slip Op 05866 (2d Dep't July 26, 2017)

Here is the decision.

Tuesday's issue:  A claim for breach of fiduciary duty.

A motion for a finding of civil contempt.

Practice point:  To prevail on a motion to hold another in civil contempt, the moving party must prove by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect; (2) that the other party, with knowledge of the order's terms, disobeyed the order; and (3) that the movant was prejudiced by the offending conduct.

Student note:  To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor's actions were calculated to or actually did defeat, impair, impede, or prejudice the movant's rights or remedies.

Case:  Matter of Michael F. (Shreeis J.), NY Slip Op 05820 (2d Dep't July 26, 2017)

Tomorrow' issue:  Striking a pleading.

Stipulations of settlement and judgments of divorce.

Practice point:  A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to the principles of contract construction and interpretation. In  interpreting the stipulation, the court will construe it in such a way as to give fair meaning to all the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized.

Student note:  Where the parties' intention is clearly and unambiguously set forth, the court must vie effect to their intent as indicated by the language they used.

Case:  Matter of Christie, NY Slip Op 05818 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  A motion for a finding of civil contempt.

A conditional order of preclusion.

Practice point:  A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order.  If the party fails to produce the discovery by the specified date, the conditional order becomes absolute.

Student note:  To be relieved of the adverse impact of the conditional order, a party is required to demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious defense.

Case:  Naiman v. Fair Trade Acquisition Corp., NY Slip Op 05830 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  Stipulations of settlement and judgments of divorce.

The doctrine of primary assumption of the risk.

Practice point:  Under the doctrine, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and which flow from such participation.

Student note:  This includes risks associated with the construction of the playing surface and any open and obvious condition on it.

Case:  MacIsaac v. Nassau County, NY Slip Op 05814 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  A conditional order of preclusion.

A co-owner's mortgage of a property.

Practice point:  A mortgage given by one of several parties with an interest in the mortgaged property is valid, but it gives the mortgagee security only up to the interest of the mortgagor,

Student note:  Under New York law, a co-owner may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other.

Case:  John T. Walsh Enters., LLC v. Jordan, NY Slip Op 05813 (2d Dep't July 26, 2017)

Here is the decision.

Monday's issue:  The doctrine of primary assumption of the risk.