Contracts.

Practice point: A court will not read into the contract an indemnity obligation that is not unmistakably present.

Student note: If the purported indemnification provision is at all ambiguous, summary judgment will be denied.

Case: Lopez v. Guei Shun Shiau, NY Slip Op 07500 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Summary judgment.

Default judgments.

Practice point: Pursuant to CPLR 3215(c), if a plaintiff fails to seek entry of a judgment within one year after default, the court shall dismiss the complaint as abandoned, absent a showing of sufficient cause why it should not be dismissed.

Student note: The showing must include a viable excuse for the delay, and a demonstrably meritorious cause of action.

Case: Utak v. Commerce Bank Inc., NY Slip Op 07261 (1st Dept. 2011).

Here is the decision.

Monday’s issue: Contracts.

Labor Law.

Practice point: The touchstone of any § 240(1) claim is whether the harm flows directly from the application of the force of gravity.

Student note:  A worker may recover under the statute even if he did not actually fall, or if he was injured while preventing himself from falling.

Case: Reavely v. Yonkers Raceway Programs, Inc., NY Slip Op 07366 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Default judgments.

Jurisdiction.

Practice point: A court is without power to render a judgment against a party over whom the court lacks jurisdiction.

Student note: A judgment rendered without jurisdiction is void, and when a deed is issued in execution upon such a void judgment, that deed is similarly void.

Case: U.S. Bank, N.A. v. Bernhardt, NY Slip Op 07415 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Labor Law.

Promissory notes.

Practice point: A cause of action to recover on a note which is payable on demand accrues at the time of its execution, while on a note which is payable in full at one time, it accrues at the time it becomes due. On a note payable in installments, there are separate causes of action for each installment accrued, and the statute of limitations begins to run on the date each installment becomes due and is defaulted upon, unless the debt is accelerated.

Student note: The statute of limitations is six years, pursuant to CPLR 213[2].

Case: Morrison v. Zaglool, NY Slip Op 07401 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Jurisdiction.

Custody Agreements.

Practice point: Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child.

Student note:  The court should consider whether the alleged changed circumstances indicate one of the parties is unfit, the nature and quality of the relationships between the child and the parties, and the existence of a prior agreement.

Case: Matter of Chery v. Richardson, NY Slip Op 07215 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Promissory notes.

Requesting an admission.

Practice point: Pursuant to CPLR 3123, a party may serve upon any other party a written request for an admission of the truth of any facts which the requesting party reasonably believes cannot be disputed at trial and which are within the knowledge of the other party or can be ascertained upon reasonable inquiry.

Student note: If the requested admission is not denied within twenty days after service, the requested admission will be deemed admitted.

Case: Nacherlilla v. Prospect Park Alliance, Inc., NY Slip Op 07205 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Custody agreements.

Deposition transcripts.

Practice point: Pursuant to CPLR 3116(a), the transcript of the deposition of a deponent must be provided to the deponent for review and signature, and any changes in form or substance desired by the deponent shall be recorded.

Student note: If a deponent refuses or fails to sign the deposition under oath within 60 days, it may be used as if fully signed.

Case: Franzese v. Tanger Factory Outlet Ctrs., Inc., NY Slip Op 07200 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Requesting an admission.

Burglar alarms.

Practice point: A burglar alarm agreement which contains an exculpatory clause shields the burglar alarm company from liability only for ordinary negligence, not for gross negligence.

Student note:  Used in this context, gross negligence is conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing.

Case: Chan v. Counterforce Cent. Alarm Servs. Corp., NY Slip Op 07197 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Deposition transcripts.

Motions to dismiss.

Practice point: On a motion to dismiss, pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired.

Student note: The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable.

Case: Baptiste v. Harding-Marin, NY Slip Op 07193 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Burglar alarms.

Labor Law.

Practice point: Where a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a landowner may be liable under § 200 if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition.

Student note: To provide constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it.

Case: Schick v. 200 Blydenburgh, LLC, NY Slip Op 07025 (2d Dept. 2011).

Here is the decision. 

Tomorrow’s issue: Motions to dismiss.