Terminating a tenancy.

Practice point:  The Appellate Division confirmed the termination of petitioner's tenancy on the grounds of undesirability and violation of provisions of the lease and rules and regulations, finding that the agency's determination that, among other things, petitioner caused a fire in her apartment by lighting a candle in a closet containing clothing, is supported by substantial evidence.  The record also shows that petitioner had a prior fire in her apartment and that she kept two unregistered pitbull terrier dogs in her apartment.

Student note:  The agency's refusal to accommodate petitioner by continuing her tenancy subject to the agency's continued monitoring of her mental health and fire safety compliance did not violate the Americans with Disabilities Act or the Fair Housing Amendments Act of 1988.

Case:  Hobbs v. New York City Hous. Auth., NY Slip Op 04406 (1st Dept. 2015)

Here is the decision.

Monday's issue: A defamation claim and immunity.

Setting aside a foreclosure sale.

Practice point:  As a function of its equitable powers, a court has discretion to set aside a foreclosure sale where there is evidence of fraud, collusion, mistake, or misconduct.

Student note:  In the absence of such conduct, the mere inadequacy of price is an insufficient reason to set aside a sale unless the price is so inadequate as to shock the court's conscience.

Case:  Chiao v, Poon, NY Slip Op 04268 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Terminating a tenancy.

Waiving an argument of duress.

Practice point:  The Appellate Division affirmed dismissal, finding that, by waiting too long to file the instant action, plaintiffs waived their argument that they signed the subject release under duress. The Appellate Division noted that, while plaintiffs might have been excused from suing for the first two years due to their fear of the look-back period, they delayed an additional 10 months beyond those two years.

Student note:  Even if there were triable issues exist as to unconscionability and overreaching, plaintiffs' ratification of the release bars them from challenging it on those grounds.

Case:  Achache v. Achache, NY Slip Op 04386 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Setting aside a foreclosure sale.

Contract interpretation.

Practice point:  Agreements will be construed in accord with the parties' intent, and the best evidence of the parties' intent is what their writing says.  If the agreement is set down in a clear and complete document, it will be enforced according to its terms. The Appellate Division notes that this rule is especially applicable where there are sophisticated parties who are negotiating at arms' length.

Student note:  The agreement's language is deemed to be clear and unambiguous where it is reasonably susceptible of only one meaning or interpretation, and extrinsic evidence may not be introduced to create an ambiguity in an otherwise clear document.

Case:  Marin v. Constitution Realty, LLC, NY Slip Op 04225 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Waiving an argument of duress.

Court holiday.

Failure to deny an allegation in a complaint.

Practice point:  The failure to deny an allegation in a complaint constitutes an admission to the truth of that allegation, pursuant to CPLR 3018[a].

Student note:  Admissions in pleadings are always in evidence for all purposes at the trial of an action.

Case:  DeSouza v. Khan, NY Slip 04085 (2d Dept. 2015)

Here is the decision.

Tuesday's issue:  Contract interpretation.

A landowner's duty to protect.

Practice point:  A public establishment's owner has no duty to protect patrons against unforeseeable and unexpected assaults.

Student note:  While landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control.

Case:  Bisignano v. Raabe, NY Slip Op 04081 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Failure to deny an allegation in a complaint.

A contract action involving an online business promotion.

Practice point:  This is a putative class action based on defendants' alleged deception involving an online business promotion. In the promotion, defendants offered to provide to visitors to their website who entered their email address a $1 coupon toward the purchase of their products and further promotional materials. Plaintiff asserts that he and other visitors to the defendants' website provided their email address to defendants in response to this promotion, but did not receive the $1 coupon. The complaint alleges causes of action seeking damages for breach of contract and based on General Business Law § 349.

An advertisement for the sale of goods generally does not constitute an offer, which requires language plain and clear enough to establish the intended terms of the proposed contract. Here, defendants' promotion constituted only an invitation for offers, in light of the fact that the promotion expressly stated that the supply of coupons was "limited."

As plaintiff failed to raise a triable issue of fact, the Appellate Division affirmed the granting of defendants' cross motion for summary judgment.

Student note:  As a matter of law, the promotion did not create the power of acceptance for consumers and, consequently, no unilateral contract was formed.

Case:  Amalfitano v. NBTY, Inc., NY Slip Op 04077 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: A landowner's duty to protect.

The requirement of a shareholder's presuit demand.

Practice point:  The Appellate Division affirmed dismissal, as plaintiff failed to make a presuit demand or adequately allege that a demand was excused.  Pursuant to Business Corporation Law § 626(c), a plaintiff shareholder must plead, with particularity, the attempt to secure the initiation of such action by the board, or the reasons for not making such effort.

Demand is excused due to futility when a complaint alleges with particularity that: (1) a majority of the board of directors is interested in the challenged transaction; or (2)  the board of directors did not fully inform themselves about the challenged transaction to the extent reasonably appropriate under the circumstances; or (3) the challenged transaction was so egregious on its face that it could not have been the product of the directors' sound business judgment.

Student note:  The demand requirement also applies to members of New York limited liability companies.

Case:  Barone v. Sowers, NY Slip Op 04195 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A contract action involving an online business promotion.

Defeating summary judgment in a sidewalk defects action.

Practice point:  At deposition, plaintiff testified that she fell because her foot hit a bump in the sidewalk. Defendants moved for summary judgment on the ground that plaintiff's inability to identify the bump or defect in photographs shown to her at her deposition prevented her from being able to prove that her accident was proximately caused by a sidewalk defect for which they were responsible.

The Appellate Division denied summary judgment, finding that plaintiff's testimony was sufficient to demonstrate a causal nexus between a sidewalk defect and her fall. In order to defeat summary judgment, she was not required to prove precisely which defect in the sidewalk caused her to fall.

Student note:  In opposition to the motion, a police report, although hearsay, was considered along with the admissible evidence of plaintiff's deposition testimony.

Case:  Kovach v. PJA, LLC, NY Slip Op 03931 (1st Dept. 2015)

Here is the decision.

Tomorrow' s issue:  The requirement of a shareholder's presuit demand.

A motion for judgment as a matter of law.

Practice point:  The motion, made pursuant to CPLR 4404, may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party.

Student note:  Where the proven facts show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery.

Case:  Liyanage v. Amann, NY Slip Op 03808 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Defeating summary judgment in a sidewalk defects action.

A motion for a change of venue.

Practice point:  The granting of the motion is discretionary, and the movant must set forth (1) the names, addresses, and occupations of material witnesses; (2) the facts to which those witnesses will testify at trial; (3) a showing that those witnesses are willing to testify; and (4) a showing that those witnesses will be inconvenienced if the venue of the action is not changed.

Student note:  Pursuant to CPLR 510(3), the court may, upon motion, change the place of the trial of an action where "the convenience of material witnesses and the ends of justice will be promoted by the change"

Case:  Fitzsimons v. Brennan, NY Slip Op 03801 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: A motion for judgment as a matter of law.

A slip-and-fall claim relying on defendant's own rules and guidelines.

Practice point:  The Appellate Division affirmed dismissa, finding that, while the evidence demonstrated that defendant may have had notice of the spill which allegedly caused plaintiff's fall, it further established that defendant's employees did not have a reasonable time to remedy the condition before the accident occurred.

The claimed violation by defendant's employees of an alleged internal rule or guideline was insufficient to raise a triable issue of fact. Violation of a company's internal rules is not negligence in and of itself, and where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence. The alleged internal rule or guideline that plaintiff would invoke goes beyond the standard of ordinary care and cannot serve as a basis for imposing liability.

Student note:  A defendant moving for summary judgment in a slip-and-fall case has the burden of establishing, prima facie, 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:  Byrd v. Walmart, Inc., NY Slip Op 03796 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion for a change of venue.

A Labor Law claim, hoisting equipment, and fork-lift trucks.

Practice point:  Plaintiff and his coworkers were moving a piece of equipment across a flat platform when, according to plaintiff's testimony, the equipment pinned him against a column.  The Appellate Division determined that, based on plaintiff's testimony, the equipment that pinned him to the column was not a "falling object," that he was not a "falling worker," and that the accident did not otherwise follow from the application of the force of gravity.  Therefore, the Appellate Division determined that § 240(1) does not apply

The Appellate Division also affirmed the dismissal of plaintiff's § 241(6) claim. Plaintiff's reliance on 12 NYCRR 23-6.1(c) and (d) is misplaced because his accident did not arise out of the operation or loading of "material hoisting equipment." Even considering the affidavit stating that the equipment was being loaded onto a forklift at the time of the accident, subdivisions 23-6.1(c) and (d) do not apply because the general requirements of those provisions do not apply to fork-lift trucks. In addition, there is no evidence that the accident was caused by the unsafe operation of material hoisting equipment, or an overloaded or improperly balanced load being moved by material hoisting equipment.

Student note:   Section 23-1.5 of the Industrial Code does not support a § 241(6) cause of action.

Case:  Martinez v. 342 Prop. LLC, NY Slip Op 03770 (1st Dept. 205)

Here is the decision.

Tomorrow's issue:  A slip-and-fall claim relying on defendant's own rules and guidelines.

A livery vehicle driver's duty of care.

Practice point:  The injured plaintiff exited the livery vehicle, and, while he was standing behind it, next to the vehicle's driver, he was struck by another vehicle. Plaintiff sued, among others, the livery vehicle's driver.

By submitting evidence that he parked at the curb and thus provided plaintiff with a safe place to exit, defendant established prima facie that he satisfied his duty of care. Plaintiff, however, raised a triable issue of fact as to defendant's negligence by submitting evidence that he did not park alongside the curb, but at a distance from it.

The Appellate Division affirmed the denial of defendant's summary judgment motion.

Student note:  As a common carrier, defendant owed a duty to plaintiff to stop at a place where he could exit safely and leave the area.

Case:  Meyers v. Delancey Car Serv., Inc., NY Slip Op 03508 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A Labor Law claim, hoisting equipment, and fork-lift trucks.

Prior notice laws and municipal liability.

Practice point:  Infant plaintiff alleged damages for a fall on a sidewalk fronting property owned by defendant, who then brought a third-party action against the Village for contribution and indemnification. The Village established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice, as required by Village code, of the snow and ice on the sidewalk. However, defendant raised a triable issue of fact as to whether the snow and ice condition was created by the Village's snow removal efforts.

The fact that the ice and snow was open and obvious does not preclude a finding of liability as against defendant, but, instead, presents a triable issue of fact regarding the comparative fault of plaintiff, defendant, and the Village. In addition, although plaintiff testified at his deposition that he had problems with his balance, and usually wore inner soles in his shoes to help him maintain his balance, the Village failed to establish, prima facie, that plaintiff's failure to wear inner soles in his shoes was the sole proximate cause of the accident.

The Appellate Division affirmed the denial of the Village's summary judgment motion.

Student note:  Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a defect or a dangerous condition which comes within the ambit of the law unless it has received written notice of the alleged defect or dangerous condition prior to the occurrence of the subject accident, or an exception to the written notice requirement. Exceptions include the municipality's having negligently created the defect or hazard.

Case:  Lopez-Calderone v. Lang-Viscogliosi, NY Slip Op 03505 (2d Dept. 2015)

Here is the decision.

Monday's issue: A livery vehicle driver's duty of care.

Spoilation.

Practice point:  When a party either negligently loses or intentionally destroys key evidence, thus depriving an adversary of the ability to prove a claim, the responsible party may be sanctioned. The party requesting sanctions has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to prove its claim or defense.

Student note:   Spoilation is a common-law doctrine, and its application discretionary with the trial court.

Case:  Johnson v. NBO Realty, Inc., NY Slip Op 03503 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Prior notice laws and municipal liability.

Summary judgment in a legal malpractice action.

Practice point:  Plaintiffs alleged that the underlying medical malpractice action as against the hospital was voluntarily discontinued by the defendant attorneys due to the defendants' legal malpractice. Defendants established, prima facie, that plaintiffs would not have succeeded on the merits of their underlying action, regardless of whether the defendants consented to the discontinuance. Defendants' submissions demonstrated that the hospital staff involved in the underlying medical procedures properly carried out the directions of the attending private physicians and did not engage in any independent negligent acts. In opposition, plaintiffs failed to raise a triable issue as to whether the alleged legal malpractice was a proximate cause of the plaintiffs' failure to recover against the hospital.

Plaintiffs also alleged that, in the underlying action, the complaint as against the other defendants, was dismissed due to defendants' failure to prosecute the action. Defendants established, prima facie, that their alleged negligence in failing to prosecute the action was not a proximate cause of the damages alleged in the complaint since plaintiffs chose not to appeal from the order that dismissed the complaint. In opposition, plaintiff failed to raise a triable issue.

The Appellate Division reversed, and dismissed the complaint.

Student note:  The failure to pursue an appeal in an underlying action bars a legal malpractice action where the client was likely to have succeeded on appeal in the underlying action.

Case:  Buczek v. Dell & Little, LLP, NY Slip Op 03492 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Spoilation.

Post-termination commissions.

Practice point:  The Appellate Division determined that, over the seven-year course of dealing between the parties, plaintiff earned commissions only if and when customers paid on the contracts plaintiff procured. Absent an agreement expressly providing for post-termination commissions, plaintiff, as an at-will commissions salesman, was not entitled to commissions for payments made by customers after his termination.

Student note:  As plaintiff was fully compensated under his agreement, he has no claim for a violation of the Labor Law. Neither does he have an unjust enrichment claim, where defendants merely retained the amounts that they were not obligated to pay for post-termination commissions.

Case:  Linder v. Innovative Commercial Sys. LLC, NY Slip Op 03617 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in a legal malpractice action.

Probative evidence in a slip and fall action.

Practice point:  Defendant failed to establish entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when, while descending the interior stairs of defendant's building, she slipped on a wet step and fell.  Defendant's maintenance caretaker's affidavit contradicted his deposition testimony as to whether he could recall the building in the housing complex he had been assigned to clean on the date in question, and was insufficient to establish a prima facie case for summary judgment

In any event, the Appellate Division found in the record triable issues as to whether defendant created the wet stair condition. Plaintiff testified that she observed water on the stairs, that the water had dampened her back and pants in the process of her fall and that the staircase smelled like it had recently been cleaned. In addition, the building's janitorial schedule indicated that the subject staircase was to be mopped shortly before plaintiff's fall, and the caretaker testified that he would have mopped the staircase around the time of the accident.

Student note:  Evidence of defendant's general cleaning and inspection procedures does not not constitute probative evidence of the procedures actually performed on the day of the accident.

Case:  Tucker v New York City Hous. Auth., NY Slip Op 03453 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Post-termination commissions.

Denial of a motion for leave to renew.

Practice point:  The Appellate Division affirmed the denial that branch of the plaintiff's motion which, in effect, was for leave to renew its prior motion, pursuant to RPAPL 1321, for an order of reference. The plaintiff failed to present new facts not offered on the prior motion that would change the prior determination, as required by CPLR 2221[e][2]. In addition, the plaintiff presented no reasonable justification for failing to submit the purportedly new evidence when it previously moved for the same relief, as required by CPLR 2221[e][3].

Student note: A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

Case:  Bank of N.Y. v. Waters, NY Slip Op 03310 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Probative evidence in a slip and fall action.