Tenants in common and duty of care.

Practice point:  Tenants in common have a quasi-trust or fiduciary relationship with regard to the property they commonly hold.

Case:  Pichler v. Jackson, NY Slip Op 00077 (1st Dep't January 4, 2018)

Here is the decision.

Res ipsa loquitur.

Practice point:  In this action for damages resulting from an accident involving a misleveled elevator, the applicability of the doctrine of res ipsa loquitur is not overcome by evidence that the elevator was regularly inspected and maintained.

Case: Dzidowska v. Related Cos., LP, NY Slip Op 00074 (1st Dep't January 4, 2018)

Here is the decision.

Statute of limitations.

Practice point:  The plaintiff's filing of the motion to amend and annexed proposed amended pleadings tolls the applicable statute of limitations.

Case:  Abreau v. Casey, NY Slip Op 00067 (1st Dep't January 4, 2018)

Here is the decision.

The defendant's burden on a summary judgment motion.

Practice point:  A defendant who merely points to perceived gaps in the plaintiff's proof does not establish entitlement to summary judgment.

Case:  Hairston v. Liberty Behavioral Mgt. Corp., NY Slip Op 00004 (1st Dep't January 2, 2018)

Here is the decision.

A vehicular accident and negligence.

Practice point:  Crossing a double yellow line into the opposing traffic lane, in violation of Vehicle and Traffic Law § 1126(a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver's own making.

Student note:  A driver is not required to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic.

Case: Browne v. Logan Bus Co., Inc., NY Slip Op 09111 (2d Dep't December 27, 2017)

Here is the decision.

Denial of a motion to renew.

The Appellate Division affirmed the denial of the motion since it was not based on new facts that would change the prior determination, as required by CPLR 2221[e].  The purportedly new facts concerning the failure to timely file a satisfaction of judgment pursuant to a prior stipulation were wholly unrelated to the court's prior determination that the stipulation was not the product of duress. In addition, the movant, under the guise of renewal, improperly advances a new legal theory - breach of the stipulation - rather than the basis of the original motion, which was the stipulation's invalidity.

Case:  Atlas v. Smily, NY Slip Op 09248 (1st Dep't December 28. 2017)

Here is the decision.

Waiver of defenses.

Practice point: Because defendant failed to timely raise defenses based on service of process and standing in an answer or pre-answer motion to dismiss, those defenses are waived, pursuant to CPLR 3211[e].

Student note:  In any event, the affidavit of service of the summons and complaint constitutes prima facie evidence of proper service, which defendant failed to rebut with anything more than conclusory denials of receipt.

Case:  U.S. Bank N.A. v. Thomas, NY Slip Op 09241 (1st Dep't December 28, 2017)

Here is the decision.

New Year's, here and now, there and then.

A premises liability action.

A property owner has a duty to keep the property in a reasonably safe condition in view of all the circumstances. In a premises liability case, a defendant property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence.

Case:  Arevalo v. Associated Supermarkets, Inc., NY Slip Op 09109

Here is the decision.

The Court of Claims' jurisdiction.

The Court of Claims has limited jurisdiction to hear actions against the State itself, or actions naming State agencies or officials as defendants, but where the State is the real party in interest, as well as claims against a few other State-related entities as provided by statute.

Case:  Bush v. Stevenson Commons Assoc., LLP,  NY Slip Op 08806 (2d Dep't December 20, 2017)

Here is the decision.

Specific performance on a real estate contract, or return of the down payment.

Practice point:  A purchaser seeking specific performance of a real estate contract must demonstrate that he or she was ready, willing, and able to perform on the contract, regardless of any anticipatory breach by the selle.  An anticipatory breach of the contract excuses the purchaser from tendering performance, but does not excuse the purchaser from the requirement of being ready, willing, and able to perform.

In order to retain the down payment, the seller must have been ready, willing, and able to perform on the law day. There are exceptions to this rule, such as where the purchaser seeks to cancel the contract without giving the seller an opportunity to cure any defects. In order to get a return of the down payment, the purchaser is not required to tender performance and attend a closing if the seller is unable to perform on the law day.

Case:  33 Park Ave. Realty, LLC v. Park Ave. Bldg. & Roofing Supplies, LLC, NY Slip Op 08802 (2d Dep't December 20, 2017)

Here is the decision.