Coops, the business judgment rule, and recovering attorneys' fees.

Practice point:  In the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board's determination so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith. The business judgment rule does not apply when a cooperative board acts outside the scope of its authority or violates its own governing documents.

Student note:   Property Law § 234 provides for the reciprocal right of a lessee to recover an attorney's fee when the same benefit is bestowed upon the lessor in the parties' lease.

Case:  Cohan v. Board of Directors of 700 Shore Rd. Waters Edge, Inc., NY Slip Op 05447 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Judicial review of administrative determinations.

Default for missing a compliance conference.

Good luck to those sitting for the New York practice day of the bar exam.

Practice point:  The Supreme Court, sua sponte, dismissed this action pursuant to 22 NYCRR § 202.27(b) on the ground that the plaintiff failed to appear for a count-ordered compliance conference. However, the plaintiff demonstrated that he did not receive notice of the date of that compliance conference. As the plaintiff did not have notice of the compliance conference, the plaintiff's default was a nullity.

Student note:  Consequently, vacatur of the default was required as a matter of law and due process, and no showing of a potentially meritorious cause of action was required.

Case:  Rosas v. Stieg, NY Slip Op 05441 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Coops, the business judgment rule, and recovering attorneys' fees.

Stipulations of settlement.

Practice point:  To be enforceable, stipulations of settlement must conform to the criteria set forth in CPLR 2104.  Where a settlement is not made in open court, CPLR 2104 provides, in pertinent part, as follows: "An agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney." The plain language of the statute directs that the agreement itself must be in writing, signed by the party or the party's attorney to be bound.  In addition, since settlement agreements are subject to the principles of contract law, for an enforceable agreement to exist, all material terms must be set forth and there must be a manifestation of mutual assent.

Student note:  Stipulations of settlement are judicially favored and will not lightly be set aside. They will be enforced with rigor and without a searching examination into their substance as long as they are clear, final and the product of mutual accord.

Case:  Forcelli v. Gelco Corp., NY Slip Op 05437 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Default for missing a compliance conference.

A fall on the stairs.

Practice point:  Summary judgment was denied in this action where plaintiff alleges that he slipped and fell on a wet substance that was on the stairway of defendant's apartment building. Defendant moved for summary judgment on the ground that it did not create or have actual or constructive notice of the hazard. In support of the motion, defendant submitted the deposition testimony of its superintendent about the building's regular janitorial schedule. However, it offered no evidence that the schedule was followed on the day of the accident.  Moreover, constructive notice remains an issue in this case because defendant made no showing as to when the stairway was last inspected before plaintiff's accident.

Student note:  Standing alone, proof that stairs were routinely cleaned on a daily basis is not germane to the dispositive issue of lack of notice of an alleged defective condition.

Case:  Gautier v. 941 Intervale Realty LLC, NY Slip Op 05432 (1st Dept. 2013).

Here is the decision.

Monday's issue: Stipulations of settlement.

Modifying a custody arrangement.

Practice point:  In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child. The best interests of the child are determined by a review of the totality of the circumstances. The court will consider whether the alleged changed circumstances indicate that 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.

Student note:  The recommendation of the court-appointed expert and the position of the attorney for the child are factors to be considered and are entitled to some weight, but such recommendations and position are not determinative and do not usurp the judgment of the trial judge.

Case:  Conway v. Gartmond, NY Slip Op 05313 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: A fall on the stairs.

Rescinding a contract under the Securities & Exchange Act.

Practice point:  An implied private right of action exists pursuant to section 29(b) of the Act to rescind a contract made in violation of section 15(a) of the Act (see 15 USC § 78cc[b].

Student note:  The one-year statute of limitations and three-year statute of repose of section 29(b) of the Act apply to implied causes of action to rescind a contract for violation of section 15(a), whether asserted in a complaint or as a counterclaim or defense. The three-year period specified in section 29(b) is a statute of repose, which envelops both the right and the remedy. The repose period serves as an absolute barrier, and, accordingly, CPLR 203(d) cannot serve to extend a claim for rescission of a contract pursuant to section 29(b) of the Act.

Case:  Obstfeld v. Thermo Niton Analyzers, LLC, NY Slip Op 05304 (2d Dept. 2013). 

Here is the decision. 

Tomorrow's issue: Modifying a custody arrangement.

The firefighter rule, and a police officer's tort claims.

Practice point:  The firefighter rule provides that police and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment. The rule bars a police officer's or a firefighter's recovery when the performance of his or her duties increased the risk of the injury's happening, and did not merely furnish the occasion for the injury.

Student note:  General Municipal Law § 205-e permits a police officer to assert a tort claim against a fellow officer or an employer. To establish a cause of action under the statute, a plaintiff must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the police officer was injured, and set forth facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm.

Case: Gammons v. City of New York,  NY Slip Op 05298 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Rescinding a contract under the Securities & Exchange Act.

Falling objects at the worksite.

Practice point:  Labor Law § 240(1) requires property owners and contractors to provide workers with "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection" to the workers. The statute protects against such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured.  As to falling objects, Labor Law § 240(1) applies where the object's  falling  is related to a significant risk inherent in the relative elevation at which materials or loads must be positioned or secured.

Student note:  To recover damages for a statutory violation, a plaintiff must show more than simply that an object fell causing injury to a worker. The plaintiff must show that, at the time the object fell, it was being hoisted or secured, or required securing for the purposes of the undertaking. The plaintiff also must show that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute.

Case:  Flossos v. Waterside Redevelopment Co., L.P., NY Slip Op 05297 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: The firefighter rule, and a police officer's tort claim.

Fraudulent intent, and attorneys' fees under Debtor and Creditor Law.

Practice point:  Pursuant to Debtor and Creditor Law § 276, a conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors. As direct evidence of fraudulent intent is often elusive, courts will consider badges of fraud, which are circumstances that accompany fraudulent transfers so commonly that their presence gives rise to an inference of intent.

Student note:  A plaintiff that successfully establishes actual intent to defraud is entitled to a reasonable attorney's fee under Debtor and Creditor Law § 276-a.

Case:  5706 Fifth Ave., LLC v. Louzieh, NY Slip Op 05187 (2d Dept. 2013).

Here is the decision.

Monday's issue: Falling objects at the worksite.

Assuming the risk of a fall from a horse.

Practice point:  The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff assumed the risk of falling off a horse while riding. Under the doctrine of primary assumption of the risk, 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 flow from such participation

The risk of falling from a horse or a horse's acting in an unintended manner is inherent in the sport of horseback riding. Awareness of a risk will be assessed against the background of the skill and experience of the particular plaintiff.  Here, the record, including the plaintiff's own deposition testimony, showed that the plaintiff had sufficient skill and experience to appreciate the risk of falling off a horse while riding.

Student note:  The plaintiff's alleged diminished mental capacity did not raise a triable issue of fact as to whether she was able to appreciate the risks inherent in horseback riding, in light of the evidence showing that she was an experienced horseback rider and was aware of the risk of falling off a horse. The plaintiff's claim that the defendants unreasonably increased the risks involved in horseback riding was also insufficient to raise a triable issue of fact. The affidavit of the plaintiff's expert was speculative, as the expert assumed facts not supported by the evidence in reaching a conclusion.

Case:  Fenty v. Seven Meadows Farms, Inc., NY Slip Op 05186 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue:  Fraudulent intent, and attorneys' fees under Debtor and Creditor Law.

Contractual indemnification.

Practice point:  The right to contractual indemnification depends upon the specific language of the contract. A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances.

Student note:  A contract will be interpreted in accordance with the intent of the parties as expressed in the language of the agreement.

Case:  Del Vecchio v. Danielle Assoc., LLC, NY Slip Op 05185 (2d Dept. 2013).

Here is the decision. 

Tomorrow's issue:  Assuming the risk of a fall from a horse.

Moving for summary judgment in a legal malpractice action.

Practice point:  In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence.

Student note: To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements.

Case:  Barnave v. Davis, NY Slip Op 05184 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Contractual indemnification.

Defamation involving a matter of public concern.

Practice point:  When the alleged defamation arguably involves a matter of public concern, a private plaintiff must prove that the media-defendant acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.

Student note: Under the gross irresponsibility standard, a publisher must use verification methods that are reasonably calculated to produce accurate copy.

Case:  Matovick v. Times Beacon Record Newspapers, NY Slip Op 05051 (2d Dept. 2013).

Here is the decision.

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

Equitable distribution of marital assets.

Practice point:  Equitable distribution does not necessarily mean equal distribution. The equitable distribution of marital assets must be based on the circumstances of the particular case and the consideration of a number of statutory factors, pursuant to Domestic Relations Law § 236[B][5][d]). Those factors include: the income and property of each party at the time of marriage and at the time of commencement of the divorce action; the duration of the marriage; the age and health of the parties; the loss of inheritance and pension rights; any award of maintenance; any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of marital property by the party not having title; and any other factor which the court shall expressly find to be just and proper.

Student note:   The trial court is vested with broad discretion in making an equitable distribution of marital property, and unless it can be shown that the court improvidently exercised that discretion, its determination will not be undone on appeal.

Case:  Halley-Boyce v. Boyce, NY Slip Op 05047 (2d Dept. 2013).

Here is the decision.

Monday's issue: Defamation involving a matter of public concern.

Moving for summary judgment in a libel action.

Practice point:  The defendant's burden in support of summary judgment is not to prove as a matter of law that it did not publish with actual malice, but to point to deficiencies in the record that will prevent plaintiff from proving that fact by clear and convincing evidence. Here, defendants were granted summary judgment because they cited deficiencies in the record that prevent plaintiff from proving actual malice, that is, that defendants entertained serious doubts as to the truth of its publication or acted with a high degree of awareness of probable falsity at the time of publication.

Student note:  Plaintiff is a public figure, having put itself front and center in the public controversy over animal cruelty and seeking to influence public opinion and action on the issue. As a public figure, plaintiff must show by clear and convincing evidence that defendants published the ad at issue with actual malice in order to prevail on any claim of libel.

Case:  Humane League of Philadelphia, Inc. v. Berman & Co., NY Slip Op 04989 (1st Dept. 2013).

Here is the decision.

Tomorrow's issue: Equitable distribution of marital assets.

The continuous treatment doctrine in a dental malpractice action.

Practice point:  The plaintiff failed to raise a triable issue as to whether the statute of limitations was tolled under the continuous treatment doctrine. The record establishes that the plaintiff and the defendant did not mutually agree upon or contemplate future consultation or treatment after August 2007, and that the defendant did not render treatment or examine the plaintiff after August 2007, approximately three years prior to the commencement of this action. The plaintiff's telephone conversation with the defendant, during which he allegedly told her that she did not need a post and core, did not raise a triable issue of fact as to whether she was undergoing an actual course of treatment.  The defendant's disagreement with the treatment recommendation of a different dentist, and his failure to render the treatment suggested by the other dentist despite the plaintiff's numerous attempts to obtain that treatment, did not raise a triable issue as to whether she was undergoing a continuing course of treatment with the defendant.

Student note:  The continuous treatment doctrine tolls the statute of limitations for a dental malpractice action when, among other things, the plaintiff demonstrates that, during the relevant period, he or she continued to seek, and in fact obtained from the defendant an actual course of treatment, denoted by affirmative and ongoing conduct by the dentist, such as surgery, therapy, or the prescription of medications.

Case:  Fraumeni v. Oakwood Dental Arts, LLC, NY Slip Op 05042 (2d Dept. 2013).

Here is the decision.

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

Res ipsa, and credibility issues on a motion for summary judgment.

Practice point:  The Appellate Division affirmed the motion's court determination that res ipsa loquitur applies in this action involving an accident that occurred, according to plaintiff's testimony, when a garage door suddenly fell and struck him on the head, since this is the type of event that does not normally occur in the absence of negligence. Notwithstanding defendants' contentions that others could have had access to the garage door, plaintiff demonstrated sufficient exclusivity of control. Res ipsa loquitur does not require sole physical access to the instrumentality causing the injury and can be applied in situations where more than one defendant could have exercised exclusive control.

Student note:  A defendant's contradictory testimony concerning whether he was present and whether he activated the garage door was insufficient to warrant summary judgment dismissing the action as against him inasmuch as issues of credibility are not to be resolved on summary judgment.

Case:  Hutchings v. Yuter, NY Slip Op 04988 (1st Dept. 2013).

 Here is the decision.

Tomorrow's issue: The continuous treatment doctrine in a dental malpractice action.

Labor Law § 240.

Practice point:  To invoke the protections afforded by the statute, a plaintiff must demonstrate that he or she was both permitted or suffered to work on a building or structure and that he or she was hired by an owner, contractor or their agent, to work at the site. In addition, at the time of the accident the plaintiff must have engaged in an covered under the statute.

Student note:  Section 240 is intended to place the ultimate responsibility for building practices on the owner and general contractor in order to protect the workers who are required to be there but who are not in a position to protect themselves from accidents. It will be liberally construed to achieve this purpose.

Case:  Gallagher v. Resnick, NY Slip Op 04774 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Res ipsa, and credibility issues on a motion for summary judgment.

Speed bumps, and failure to disclose experts.

Practice point:  While a landowner has a duty to maintain its premises in a reasonably safe manner, there is no duty on the part of a landowner to warn against an open and obvious condition, such as a speed bump, that is readily observable by those employing the reasonable use of their senses and is not inherently dangerous.

Student note:  A party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment. Here, however, the court declined to consider the affidavit of the plaintiffs' expert which was submitted after the filing of the note of issue and certificate of readiness.

Case:  Brande v. City of White Plains, NY Slip Op 04766 (2d Dept. 2013).

Here is the decision.

Monday's issue: Labor Law § 240.

Court holiday.

The courts are closed to mark Independence Day.

Tomorrow's issue: Speed bumps, and failure to disclose experts.

Summary judgment in a Labor Law action, attorneys' fees, and amending a bill of particulars.

Practice point:  The court granted summary judgment dismissing plaintiff's § 241(6) claim, as amended. Plaintiff's testimony showed that the rebar that allegedly caused him to fall was in the process of being installed and thus integral to the ongoing work, defeating his claim of a violation of 12 NYCRR 23-1.7(e)(2). Moreover, given plaintiff's vague and inconsistent testimony concerning the condition of the stacked rebar, his claim that the accident was caused by the rebar being stored in an unstable manner in violation of 12 NYCRR 23-2.1(a)(1) was based on mere speculation.

Defendants are entitled to the costs and attorneys' fees incurred by them in defense of this action. The contract clauses at issue provide for indemnification, including costs and fees arising from "any act or omission," and do not require proof of negligence to be enforced.  In any event, the record does not contain any evidence that defendants were negligent.

Student note:  The court permitted plaintiff to amend the bill of particulars, since no prejudice accrued from plaintiff's late invocation of violations of 12 NYCRR 23-1.7(e)(2) and 23-2.1(a)(1), and the claims entailed no new factual allegations or theories of liability.

Case: Flynn v. 835 6th Ave. Master L.P., NY Slip Op 04889 (1st Dept. 2013).

Here is the decision.

Friday's issue: Speed bumps, and failure to disclose experts.

Summary judgment in lieu of complaint, and collateral estoppel.

Practice point:  Pursuant to CPLR 3213, the plaintiff commenced this action to recover on a promissory note by filing a summons with notice of motion for summary judgment in lieu of complaint. The motion was denied. The plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating the existence of the promissory note executed by the defendant, the unconditional terms of repayment, and the defendant's default thereunder. However, in opposition, the defendant raised a  fact question as to whether the note was procured through coercion and duress.

Student note:  The plaintiff failed to demonstrate that the defendant should be collaterally estopped from raising this issue, as the plaintiff failed to demonstrate that the issue was necessarily decided against the defendant in a prior action commenced by the plaintiff to set aside a fraudulent conveyance pursuant to Debtor and Creditor Law §§ 273 and 276.

Case:  Baldeo v. Rambaran, NY Slip Op 04763 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Summary judgment in a Labor Law action, attorneys' fees, and amending a bill of particulars.

Exculpatory clauses.

Practice point:  A clause which exculpates a contractee from liability to a contractor for damages resulting from delays in the performance of the latter's work is valid and enforceable and is not contrary to public policy if the clause and the contract of which it is a part satisfy the requirements for the validity of contracts generally.

Student note:  However, even with such a clause, damages may be recovered for: (1) delays caused by the contractee's bad faith or its willful, malicious, or grossly negligent conduct: (2) uncontemplated delays; (3) delays so unreasonable that they constitute an intentional abandonment of the contract by the contractee; and (4) delays resulting from the contractee's breach of a fundamental obligation of the contract.

Case:  Aurora Contrs., Inc. v. West Babylon Pub. Lib., NY Slip Op 04762 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Summary judgment in lieu of complaint, and collateral estoppel.