A condominium board member's individual liability.

Practice point:  In moving to amend the complaint, plaintiff's proposed claims were barred to the extent that they are palpably insufficient or patently devoid of merit. The claim that board members violated the bylaws is insufficient, as such a violation is effectively a breach of contract and participation in a contract does not give rise to individual director liability. The cause of action alleging that the board violated the bylaws by failing to muster a quorum of unit owners for the annual election of board members is insufficient, as plaintiff cites to no authority imposing such a duty on the board. 

In addition, the business judgment rule, which applies to a condominium's board of directors, bars the cause of action alleging that the board acted outside the scope of its authority under the bylaws by failing to get the unit owners' approval for an improvement costing more than $10,000.  The bylaw provision on which plaintiff relies is not applicable to the elevator project at issue, as the project did not constitute an improvement, but was merely the replacement of existing building components that had fallen into a state of disrepair.

The business judgment rule also bars the cause of action alleging that the board acted in bad faith and for an improper purpose by wasting the condominium's funds on unnecessary litigation with the Sponsor. The bylaws give the board the power to negotiate and settle "all claims and actions relating to the Condominium." The issues of how aggressive the board should be toward the Sponsor, and whether it should discontinue a lawsuit against the Sponsor, are matters of business judgment.

Student note:  A movant's mere lateness is not a barrier to the amendment of the complaint.

Case:  Pomerance v McGrath, NY Slip Op 00466 (1st Dept. 2015)

Here is the decision.

 Monday's issue: A successful motion for leave to file a late notice of claim.

A defendant's summary judgment motion in a slip-and-fall action.

Practice point:  A defendant can establish prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff did not know what caused the fall.

Student note:  In determining a defendant's motion for summary judgment, the court must view all of the evidence in the light most favorable to the nonmoving plaintiff, and must resolve all reasonable inferences in the plaintiff's favor.

Case:  Shih v. Sanford Tower Condo, NY Slip Op 00488 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A condominium board member's individual liability.

A marching band, a fall, and the doctrine of assumption of the risk.

Practice point:  The injured plaintiff is a music teacher who was directing a school marching band during a parade that took place on a public street.  While directing the band, plaintiff, who was required to walk backwards, allegedly fell due to a defect in the roadway and was injured. Defendant municipality moved to dismiss, invoking the doctrine of primary assumption of the risk, and the Appellate Division affirmed the motion court's denial of the motion.

The Appellate Division found that the doctrine is inapplicable in this case, as it cannot be said that by leading a marching band in a parade on a public street, the injured plaintiff consented to the alleged negligent maintenance of the street by the County.  Extending the doctrine to cases involving persons injured while traversing streets and sidewalks would create an unwarranted diminution of the general duty of both public and private landowners to maintain their premises in a reasonably safe condition.

Student note:  As defendant failed to make out a prima facie case for entitlement to summary judgment, the sufficiency of opposing papers need not be considered.

Case:  Behr v. County of Nassau, NY Slip Op 00485 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A defendant's summary judgment motion in a slip-and-fall action.

Application of the storm in progress rule.

Practice point:  Plaintiff alleges that he was injured after slipping and falling on an icy condition on the landing of an exterior stairway of the apartment building in which he resided. He commenced this action against the owners and an individual who maintains the property. The Appellate Division reversed the motion court's denial of defendant's summary judgment motion, and dismissed the complaint..

In their moving papers, defendants submitted a transcript of plaintiff's deposition testimony, the individual defendant's affidavit, and certified meteorological records, which demonstrated, prima facie, that it was sleeting at the time of the occurrence. Accordingly, the Appellate Division determined that the storm in progress rule applied.

Student note:  Under the rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.

Case:  Fisher v. Kasten, NY Slip Op 00491 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A marching band, a fall, and the doctrine of assumption of the risk.

Summary judgment in a personal injury action, and feigned issues of fact.

Practice point:  Defendant established its entitlement to judgment as a matter of law dismissing the complaint through the submission of plaintiff's deposition testimony, which established that he was unable to identify the cause of his fall. While plaintiff testified that the staircase handrail ended before the last step, a determination that this, or any of the other alleged staircase defects, was the proximate cause of the plaintiff's accident, rather than a misstep or loss of balance, would be speculative. In addition, as plaintiff was carrying a pot weighing at least 35 to 40 pounds with both hands as he went down the staircase, any alleged defect in the handrail was not a proximate cause of the fall.

Student note:  Plaintiff's opposing papers were unavailing. Plaintiff's affidavit presented what clearly appeared to be feigned issues of fact designed to avoid the consequences of his earlier deposition testimony, and, therefore, was insufficient to defeat the motion.

Case:  Bardales v. VAM Realty Corp., NY Slip Op 00484 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Application of the storm in progress rule.

An application to stay arbitration.

Practice point:  An application to stay arbitration is made, pursuant to CPLR 7503[c], when the petition is filed, not when it is served. The petition must be served within 20 days from the date that the petitioner received the demand for arbitration.

Student note:  The question as to when the application is made, within the meaning of the statute, is a purely legal, and so it could be considered by the Appellate Division for the first time on appeal.

Case:   Matter of Travelers Prop. Cas. Co. of Am. v. Archibald, NY Slip Op 00465 (1st Dept. 2015)

Here is the decision.

Monday's issue: Summary judgment in a personal injury action, and feigned issues of fact.

Trivial defects.

Practice point:  Property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub a toe, or trip. There is no minimal dimension test or per se rule that the condition must be of a certain height or depth in order to be actionable. In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect, in addition to the time, place and circumstances of the injury. Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable.

Student note:  Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case, and is a question of fact for the jury to decide.

Case:  Adler v. QPI-VIII, LLC, NY Slip Op 00320 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: An application to stay arbitration.

A plaintiff's motion for summary judgment in a negligence action.

Practice point: As there can be more than one proximate cause of an accident, a plaintiff must establish, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault. Typically, the issue of comparative fault is a question for the jury.

Student note:  In determining the motion, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in its favor.

Case:  Adams v. Bruno, NY Slip 00319 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Trivial defects.

Premises liability when a guest falls.

Practice point:  Plaintiff allegedly was injured when he stepped off a retaining wall on the outdoor premises of defendant's residence. Plaintiff alleges that he could not see the retaining wall at the time of the accident due to a lack of illumination. Plaintiff's bill of particulars alleges that defendant was negligent in "caus[ing] a dangerous condition to arise by switching off the lights on the soffit of the porch fronting the lawn and on the side of the house and on the post lamp situated on the lawn." After depositions, defendant moved for summary judgment on the grounds that she did not create the allegedly dangerous condition by turning off the lights, and that she did not have actual or constructive notice that the lights had allegedly been turned off.

In support of the motion for summary judgment, defendant submitted a transcript of her deposition testimony. She testified that the lights were turned on at the time of the accident, and that she was the only person who had access to the light switches. In addition, defendant submitted plaintiff's deposition testimony that the lights were on when he arrived at the residence, but that they had been turned off when he fell off the retaining wall as he tried to walk back to his car.

The Appellate Division found a triable issue as to whether defendant turned off the lights, based on plaintiff's testimony that the lights were off at the time of the accident, combined with defendant's testimony that she was the only person with access to the light switches. Defendant failed to sustain her burden of establishing, prima facie, that she did not create the allegedly dangerous condition by turning off the lights.

Student note:  A defendant who moves for summary judgment in a premises liability case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Case:   Guilfoyle v. Parkash, NY Slip Op 09104 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: A plaintiff's motion for summary judgment in a negligence action.

Court holiday.

The courts are closed.

Tomorrow's issue:  Premises liability when a guest falls.

Disqualification of counsel.

Practice point:  A movant seeking disqualification of opposing counsel bears a heavy burden  As a party has a right to be represented by counsel of its choice, any restrictions on that right will be carefully scrutinized.  This right will be balanced against a potential client's right to have confidential disclosures made to a prospective attorney subject to the protections afforded by an attorney's fiduciary obligation to keep confidential information secret, pursuant to New York Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.18.

The court will consider whether a motion to disqualify, made during ongoing litigation, is made for tactical purposes, such as to delay litigation and deprive an opponent of quality representation. The decision of whether to grant a motion to disqualify is discretionary with the motion court.

Student note:  Rule 1.6(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) defines "[c]onfidential information" as "information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential."

Case:  Mayers v. Stone Castle Partners, LLC, NY Slip Op 00295 (1st Dept. 2015)

Here is the decision.

Tuesday's issue: Premises liability when a guest falls.

Application of the storm-in-progress rule.

Practice point:  The Appellate Division reversed the motion court and found that there were issues of fact as to the applicability of the storm in progress rule. In support of its summary judgment motion, defendant submitted an affidavit by a certified meteorologist who stated that on the day of plaintiff's accident, from midnight until approximately 2 p.m., there was a winter storm. Plaintiff's accident happened at approximately 11:30 a.m. However, the weather data from one of the three location sources on which the meteorologist based his analysis also shows that the last snowfall was light and ceased at 6:25 a.m. and that freezing rain fell until 8:27 a.m. and did not start falling again until 11:35 a.m. A surveillance video shows that there was no precipitation at the time of plaintiff's fall.

The Appellate Division found triable issues of fact as to whether plaintiff's accident occurred while the storm was still in progress or whether there was a significant lull in the storm, and whether the three hours that elapsed between the last freezing rain and plaintiff's accident afforded defendant a reasonable opportunity to clear the steps on which plaintiff fell.

In addition, the record presents triable issues of fact as to whether the icy condition that caused plaintiff's fall existed prior to the storm, and whether defendants lacked notice of the preexisting condition. The affidavit of defendant's expert states that at the start of the day "approximately 17 inches of snow and ice cover was present on untreated, undisturbed and exposed outdoor surfaces in the vicinity of the subject area." While the expert states that frozen precipitation fell intermittently during the day of the accident, he did not state that the alleged icy condition on the steps resulted from that precipitation and not from remnants of ice that may have remained on the steps from the prior snowfalls.

Finally, plaintiff and her son testified that the steps had been icy for some days before the accident. Defendant submitted no evidence as to when the steps had last been inspected or cleaned of snow and ice or as to the condition of the steps on the day of the accident or the days immediately preceding it. Its superintendent's testimony about its general cleaning procedures alone is insufficient to establish that defendant lacked notice of the alleged condition before the accident. 

Student note:  A temporary lull or break in the storm at the time of the accident does not necessarily establish a reasonable opportunity to clear away the hazard. However, if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and storm-in-progress rule will not be applied.

Case:  Ndiaye v. NEP W. 119th St. LP, NY Slip Op 00279 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Disqualification of counsel.

Unambiguous language in a stipulation controls.

Practice point:  The Appellate Division reversed the motion court and determined that defendants-appellants were entitled to a declaration that the parties' December 1, 2010 stipulation had expired and was unenforceable. In the stipulation, the parties agreed that the closing date of the sale of the property should take place no later than May 31, 2011. The motion court found that the parties' intent was not to close by the date set forth in the stipulation, but, rather, the intent was to move the sale forward to a closing within a reasonable time. The Appellate Division held that the parties' intent should have been determined from the unambiguous language of the stipulation, as it is a well recognized precept of contract construction that the best evidence of what parties to a written agreement intend is what they say in their writing,

Student note:  Where, the term in a stipulation is not ambiguous, it is reversible error for the court to consider extrinsic evidence such as the conduct of the parties.

Case:  Bank of Am. N.A. v. Chau T. Lam, NY Slip Op 00282 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Application of the storm-in-progress rule.

Constructive notice and a defendant's motion for summary judgment ina slip and fall action.

Practice point:  A defendant has constructive notice of a dangerous condition when the condition has been visible and apparent long enough for the defendant to have discovered and remedied it. To meet its burden on the issue of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell. Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question.

Student note:  A defendant moving for summary judgment dismissing the complaint in a slip-and-fall case must establish, prima facie, that it did not create the dangerous condition that caused the plaintiff's injuries and had neither actual nor constructive notice of the condition when the plaintiff was injured.

Case:  Garcia-Monsalve v. Wellington Leasing, L.P., NY Slip Op 09102 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Unambiguous language in a stipulation controls.

An employer's liability for an employee's bad acts.

Practice point: The Appellate Division determined that the complaint fails to state a cause of action for conversion, and affirmed dismissal. The employee took property from plaintiffs' apartment while he was supposed to be installing a cable box in the neighboring apartment. His conduct was not in furtherance of the defendant's business and within the scope of his employment, but, instead, was based on his own personal motives.

Student note:  Plaintiffs argue that the defendant can be held vicariously liable for its employee's tortious conduct because the conduct was foreseeable. However, in determining the threshold legal question, namely, the scope of the defendant's duty to plaintiffs, the Appellate Division determined that the harm to plaintiffs was not within the reasonably foreseeable risks of the defendant's sending its employee to work in the neighboring apartment.

Case:  Sterk-Kirch v. Uptown Communications & Elec., Inc., NY Slip Op 00215 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  Constructive notice and a defendant's motion for summary judgment in a slip and fall action.

The recovery of attorneys' fees in a landlord-tenant suit.

Practice point:  Under Real Property Law § 234, when a residential lease provides for a landlord's recovery of attorneys' fees resulting from a tenant's failure to perform a lease covenant, a reciprocal covenant is implied requiring the landlord to pay the tenant's attorneys' fees incurred as a result of the tenant's successful defense of an action or summary proceeding commenced by the landlord arising out of the lease.

Student note:  To support the award of fees, the tenant must be the prevailing party, that is, the result must be substantially favorable to the tenant.

Case:  Matter of 251 CPW Hous. LLC v. Pastreich, NY Slip Op 00208 (1st Dept. 2015)

Here is the decision.

Monday's issue: An employer's liability for an employee's bad acts.

Misplacing the summons and a motion to vacate.

Practice point:  A defendant moving to vacate a default in appearing or answering the complaint pursuant to CPLR 5015(a)(1) must establish a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense (see CPLR 5015[a][1]. Here, the Appellate Division determined that the defendant's conclusory allegations that it "misplaced" the summons and complaint, as well as the plaintiff's motion for leave to enter a default judgment against it and the order granting that motion, did not constitute a reasonable excuse for its default. In addition, the insurance carrier's lengthy delay before defending the action, without more, was insufficient to establish a reasonable excuse.

Student note:  As the defendant failed to demonstrate a reasonable excuse for its default, the Appellate Division did not consider whether it proffered a potentially meritorious defense to the action.

Case:  Blythe v. BJ's Wholesale Club, Inc., NY Slip Op 09094 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The recovery of attorneys' fees in a landlord-tenant suit.

Law office failure and a motion to vacate a default.

Practice point:  The Appellate Division determined that the plaintiff's bare allegation of law office failure was insufficient to show a reasonable excuse for its default.

Student note:  A party seeking to vacate an order entered upon its failure to oppose a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion, pursuant to CPLR 5015[a][1].

Case:  Bank of N.Y. v. Young, NY Slip Op 09090 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Misplacing the summons and a motion to vacate.

The doctrine of assumption of risk as it relates to the duty of care.

Practice point:  The doctrine is not a defense based on a plaintiff's culpable conduct, but, instead, is a measure of the defendant's duty of care to participants in certain types of athletic or recreational activities. Under the theory, a plaintiff who freely accepts a known risk commensurately negates any duty on the part of the defendant to safeguard him or her from the risk.

Student note:  Because determining the existence and scope of a duty of care requires an examination of plaintiff's reasonable expectations of the care owed by others, the plaintiff's consent does not merely furnish the defendant with a defense; it effectively eliminates the duty of care that otherwise would exist.

Case:  Braile v. Patchogue Medford School Dist. of Town of Brookhaven, NY Slip Op 08949 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Law office failure and a motion to vacate a default.

A court's authority to reach the issue of attorneys' fees, and separate fees for appellate work.

:Practice point:  A court has no inherent authority to reach the issue of attorneys' fees sua sponte.  Rather, a court has inherent authority over attorneys' fees in two situations, namely, when an attorney asks the court to approve a fee, or a client complains about a fee.

Student note:  Where the parties expressly contemplate additional fees in connection with a successful appeal, such an award is legally and ethically permissible.

Case:  Stewart v. New York City Tr. Auth., NY Slip Op 09063 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  The doctrine of assumption of risk as it relates to the duty of care.

Defendant's summary judgment motion in a legal malpractice action.

Practice point:  Defendant-attorney did not meet its burden of presenting evidence in admissible form establishing that plaintiff is unable to prove at least one of these essential elements of the claim, namely, 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.

Student note:  A defendant cannot sustain its burden merely by pointing out gaps in plaintiff's proof.

Case:  Bivona v. Danna & Assoc., P.C., NY Slip Op 08948 (2d Dept. 2014)

Here is the decision.

Monday's issue: A court's authority to reach the issue of attorneys' fees, and separate fees for appellate work.

Court holiday.

The courts are closed to mark New Year's Day.

Tomorrow's issue:  Defendant's summary judgment motion in a legal malpractice action.