A FOIL request and redaction.

Practice point:  Petitioner requested documents from the New York City Fire Department, pursuant to the Freedom of Information Law.  The Fire Department provided copies of the documents, but with numerous items of information redacted.  After an in camera inspection of unredacted copies, the Supreme Court directed the Department to provide petitioner with legible unredacted copies.

The Appellate Division affirmed, to the extent that it found that the Department failed to articulate a particularized and specific justification for any of the redacted information at issue, except for the residence addresses contained in the subject documents. It found that the Department's conclusory assertions that the redacted information, other than residence addresses, fell within a statutory exemption were insufficient to meet its burden of demonstrating that the requested information was exempt from disclosure.

However, the Appellate Division concluded that disclosure of the residence addresses would constitute an unwarranted invasion of personal privacy, as under the circumstances of this case, the privacy interests at stake outweigh the public interest in disclosure of that information.  It modified the judgment so as to permit redaction of the residence addresses.

Student note:  Under FOIL, government records are presumptively open for public inspection and copying unless they fall within a statutory exemption specified in Public Officers Law § 87(2).  The exemptions are narrowly construed in order to ensure maximum public access, and the burden rests on the agency to demonstrate that the requested material qualifies for exemption.  To meet its burden, the agency must articulate a particularized and specific justification for nondisclosure.

Case:  Matter of Villalobos v. New York City Fire Dept., NY Slip Op 06249 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Doctrine of primary assumption of risk.

The whistleblower statute and the underlying claims that gave rise to the complaint.

Practice point:  The Appellate Division was asked to decide the extent to which bringing an action under New York's whistleblower statute, codified at Labor Law § 740, bars the maintenance of other claims to redress the wrongful conduct that prompted the report of abuse resulting in the employer's retaliatory action.  The Appellate Division concluded that, based on the statute's purpose and the relief it affords, claims predicated on the statute are distinct from claims predicated upon the underlying tortious conduct identified by plaintiffs, and that, in this case, the causes of action for sexual harassment and negligence may go forward.

Student note:  The Appellate Division agreed with plaintiffs that the mere incorporation by reference of various allegations in the complaint alleging retaliation in the sexual harassment and negligence causes of action does not warrant a contrary conclusion.

Case:  Lee v. Woori Bank, NY Slip Op 06299 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A FOIL request and redaction.

A settlement is approved nunc pro tunc.

Practice point:  The Appellate Division reversed the Court of Claims' denial of claimant's motion for an order approving the settlement of a claim nunc pro tunc under Workers' Compensation Law § 29(5).

The Appellate Division determined that the record does not show that the delay in obtaining approval was attributable solely to the fault or neglect of claimant; indeed, the record supports the conclusion that the carrier unwittingly lulled claimant into believing that it was willing to waive claimant's failure to obtain timely consent or court approval of the settlement. In fact, said the Appellate Division, the carrier made payments to claimant for eight years without objection, after it was made aware of the facts and circumstances surrounding the settlement and claimant's medical condition.

Moreover, respondent, the Liquidation Bureau, suffered no demonstrable prejudice as a result of any delay attributable to claimant.

Student note:  A judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even in cases where the approval is sought more than three months after the date of the settlement, provided that the petitioner can establish that (1) the amount of the settlement is reasonable; (2) the delay in applying for a judicial order of approval was not caused by the petitioner's fault or neglect; and (3) the carrier was not prejudiced by the delay.

Case:  Amacio v. State of New York, NY Slip Op 06298 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: The whistleblower statute and the underlying claims that gave rise to the complaint.

A failed motion to dismiss the defense of undue influence.

Practice point:  The Appellate Division affirmed the denial of the motion in this action where petitioner, the executor of decedent's will, sought permission to pay himself a sum that decedent allegedly owed him. The debt is allegedly evidenced by a promissory note that decedent executed 10 days before he died.  The Appellate Division found that the record contains evidence that payment would benefit petitioner while rendering the estate insolvent, a result that would have been contrary to the decedent's estate plan. Moreover, the note and accompanying letter of instruction were prepared by petitioner's counsel as opposed to the decedent's own estate planning counsel. These factors, combined with the evidence of the decedent's deteriorating health, suffice to raise a triable issue of fact as to whether the note was the product of undue influence.

Student note:  The elements of undue influence are motive, opportunity, and the actual exercise of that undue influence.  As direct proof of undue influence is rare, its elements may be established by circumstantial evidence.

Case:  Matter of Kotick v. Shvachko, NY Slip Op 06011 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A sertlement is approved nunc pro tunc.

Family Court's subject matter jurisdiction.

Practice point:  Pursuant to Family Court Act § 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain prescribed acts that occur "between spouses or former spouses, or between parent and child or between members of the same family or household."

Pursuant to the statute, "members of the same family or household" include, among others, "persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time." (

Student note:  Family Court is a court of limited jurisdiction, constrained to exercise only those powers conferred upon it by the New York Constitution or by statute.

Case:  Matter of Cambre v. Kirton, NY Slip 06242 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A failed motion to dismiss the defense of undue influence.

Contract interpretation, on the motion and on appeal

Practice point:  The court's function is to apply the meaning intended by the parties, as derived from the language of the contract itself.  In interpreting a contract, words should be accorded their fair and reasonable meaning, and the aim is a practical interpretation of the expressions of the parties to the end that there be a realization of the parties' reasonable expectations. A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms, and the fact that the parties offer conflicting interpretations of a contract does not render it ambiguous.  Where the parties' intention may be gathered from the four corners of the instrument, interpretation of the contract is a question of law and no trial is necessary to determine the contract's legal effect, if any.

Student note:  On appeal, the standard of review is for the Appellate Division to examine the contract's language de novo.

Case:  Dreisinger v. Teglasi, NY Slip Op 06197 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Family Court's subject matter jurisdiction.

Default not entered within one year.

Practice point:  The Appellate Division affirmed the granting of the motion to dismiss pursuant to CPLR 3215(c). Plaintiff failed to take any proceedings for entry of judgment within one year after defendant defaulted, and plaintiff failed to demonstrate sufficient cause why the motion should be denied.

Student note:  CPLR 3215(c), which is titled "Default not entered within one year," states, in pertinent part, that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."

The statute prevents parties who have asserted claims from unreasonably delaying the termination of actions, and to avoid inquests on stale claims.  Failure to take proceedings for entry of judgment may be excused, however, upon a showing of sufficient cause. To establish sufficient cause, the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action.

Case:  Aurora Loan Servs., LLC v. Hiyo, NY Slip Op 06100 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Contract interpretation, on the motion and on appeal.

Summary judgment in an action alleging a school's negligent supervision.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss this action in which infant plaintiff allegedly sustained injuries in his former school when a fellow student allegedly assaulted him on multiple occasions, and, when inside a classroom, a group of students repeatedly kicked him.  Defendant moved for summary judgment dismissing the complaint insofar as asserted against it, arguing that it did not have notice of prior similar conduct by the offending students.
The Appellate Division found that, in support of the motion, defendant ailed to establish, prima facie, that it acked sufficiently specific knowledge or notice of the dangerous conduct that allegedly caused the infant plaintiff's injuries. The moving papers failed to eliminate all triable issues of fact as to whether they had knowledge of a particular student's dangerous propensities arising from his involvement in other altercations with infant plaintiff. The moving papers also failed to eliminate all triable issues of fact as to whether a teacher failed to take the requisite energetic steps to intervene to prevent the infant plaintiff's injuries at the hands of a group of his classmates.

Student note:  Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.

Case:  Amandola v Roman Catholic Diocese of Rockville Ctr., NY Slip Op 06099 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Default not entered within one year.

Summary judgment in an action to enforce a written guaranty.

Practice point:  The Appellate Division affirmed the granting of plaintiff's motion for summary judgment, as plaintiff satisfied the elements of its claim and defendant failed to create an issue of fact. The Appellate Division rejected defendant's argument that the parties entered into an oral agreement to release defendant from any claims arising from the guaranty, provided defendant introduced plaintiff to a buyer that purchased the subject building. Defendant's reliance on this purported oral agreement fails in light of the parties' agreement that all modifications to the guaranty were to be in writing, and defendant's failure to point to any performance of the purported oral agreement that is unequivocally referable to the modification.

Student note:  On a motion for summary judgment to enforce a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.

Case:  Gansevoort 69 Realty LLC v. Laba, NY Slip Op 06094 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in an action alleging a school's negligent supervision.

Summary judgment in an employment discrimination action.

Practice point:  The Appellate Division affirmed dismissal, finding that defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff was transferred to another store for a legitimate, nondiscriminatory reason consisting of her problems with coworkers and leaving the store unattended. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant's explanation for her transfer was false or unworthy of belief, or was a pretext for discrimination.

Student note:  To establish prima facie entitlement to judgment as a matter of law dismissing a cause of action alleging discrimination, a defendant must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual.

Case:  Nura v. International Shoppes, LLC, NY Slip Op 05920 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in an action to enforce a written guaranty.

Circumstantial evidence of negligence.

Practice point:  To establish a prima facie case based on circumstantial evidence, plaintiff must show facts and conditions from which it may reasonably inferred that defendant was negligent and that the negligence caused the accident. Plaintiff's proof need not positively exclude every other possible cause of the accident. Instead, plaintiff''s proof must render those other causes sufficiently remote or technical so that a jury may reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence.

Student note:  The standard of proof is that it is more likely or more reasonable that the alleged injury was caused by the defendant's negligence than by some other agency.

Case:  Hernandez v. Alstom Transp., Inc., NY Slip Op 05911 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in an employment discrimination action.

Summary judgment based on res ipsa.

Practice point:  The Appellate Division affirmed the granting of plaintiffs' motion for partial summary judgment in this action where it is undisputed that plaintiff was injured when a garage door located on the premises of defendant's service center suddenly came down on him. The Appellate Division found that the doctrine of res ipsa loquitur is applicable here because the accident was the kind that does not occur in the absence of negligence.

The Appellate Division explained that the motion court properly found that this was one of the rarest of res ipsa loquitor cases where the inference of negligence is inescapable. Defendant failed to present any evidence of an alternative explanation for the accident. Although the facilities manager's affidavit indicated that customers should not be waiting in the area under the garage door, no evidence was provided to refute plaintiff's claim that defendant's employee directed him where to stand.

Student note:  Although defendant claimed that plaintiffs' motion was premature because depositions had not yet taken place, it failed to indicate what specific discovery might absolve it from liability to plaintiffs.

Case:  Levin v. Mercedes-Benz Manhattan, Inc., NY Slip Op 06025 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Circumstantial evidence of negligence.

Vacating a default as a matter of law.

Practice point:  The Appellate Division reversed the denial of the motion to vacate, finding that,  contrary to the Supreme Court's determination, defendant demonstrated a reasonable excuse for its failure to appear at the originally scheduled compliance conference which occurred when a stay of the action was in effect, and that it never received actual notice of the subsequent adjourned compliance conference.

In the absence of such actual notice of the conference date, defendant's failure to appear could not qualify as a failure to perform a legal duty, which is the very definition of a default. The Appellate Division determined that vacatur of the default was required as a matter of law and due process, and that, therefore no showing of a potentially meritorious defense was required.

Student note:  As a general rule, a defendant seeking to vacate a default in appearing at a compliance conference is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense, pursuant to CPLR 5015[a][1].

Case:   Foley Inc. v. Metropolis Superstructures, Inc., NY Slip Op 05910 (2d Dept. 2015

Here is the decision.

Tomorrow's issue:  Summary judgment based on res ipsa.

An action alleging negligent supervision in a gym class.

Practice point:  In this action alleging negligent supervision in a gym class, the Appellate Division reversed Supreme Court and found that defendants established prima facie entitlement to summary judgment dismissing the action against them. Plaintiffs failed to raise a triable issue of fact to refute defendants' evidence that the infant plaintiff, a seventh grade student, was instructed and shown how to properly navigate the obstacle course in question, which included a two-foot high hurdle. Plaintiff was injured when, after successfully jumping over the hurdle, he suffered a fracture of his right knee upon landing. There was no evidence offered to substantiate the claim that the wooden gym floor was slippery, or that a matted landing area was warranted. Defendants' unrefuted evidence demonstrated that the other students navigated the hurdle without incident, and that there was no known history of injuries occurring in connection with the obstacle course, which the gym teachers regularly used. Moreover, infant plaintiff's two gym teachers jointly observed only half a class at a time, as the boys and then the girls of each class attempted the obstacle course. Plaintiffs offered no evidence, aside from speculation, that plaintiff's injury could have been avoided by having a spotter alongside the hurdle, or a mat on the landing side of the hurdle.

Student note:  The Appellate Division noted that dismissal as to the City is required, in any event, as it is not a proper party.

Case:  Luis S. v. City of New York, NY Slip Op 06022 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Vacating a default as a matter of law.

Design defects and products liability.

Practice point:  For purposes of imposing products liability, the standard is whether, if the design defect were known at the time of manufacture, a reasonable person would conclude that the product's utility did not outweigh the risk inherent in marketing a product designed in that manner.

An interlock on a table saw, which would prevent the saw's operation without the guard in place, could make the saw unusable for certain cuts, thereby impairing its functionality.  So, a theory of liability based upon an allegation that the saw should have been designed with an interlock has been explicitly rejected as a matter of law.

Student note:  Application of the design defect standard demands an inquiry into such factors as (1) the product's utility to the public as a whole; (2) its utility to the individual user;  (3) the likelihood that the product will cause injury; (4) the availability of a safer design; (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (6) the degree of awareness of the product's potential danger that can reasonablly be attributed to the injured user; and (7) the manufacturer's ability to spread the cost of any safety-related design changes. Liability attaches when an analysis of these factors leads one to conclude that the utility of the product did not outweigh the risk inherent in marketing it.

Case:  Chavez v. Delta Intl. Mach. Corp., NY Slip Op 05903 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  An action alleging negligent supervision in a gym class.

Fraudulent inducement and contracts.

Practice point:  In order to state a claim for fraudulent inducement, there must be a knowing misrepresentation of material present fact, which is intended to deceive another party and induce that party to act on it, resulting in injury.  In a contract case, the pleadings must allege misrepresentations of present fact, not merely misrepresentations of future intent to perform under the contract, in order to present a viable claim that is not duplicative of a breach of contract claim. In addition, the misrepresentations of present fact must be collateral to the contract and must have induced the allegedly defrauded party to enter into the contract.

Student note:  As a general rule, to recover damages for tort in a contract matter, it is necessary that the plaintiff plead and prove a breach of duty distinct from, or in addition to, the breach of contract.

Case:  Wyle Inc. v. ITT Corp., NY Slip Op 05877 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  Design defects and products liability.

A Court of Claims determination in a nonjury trial.

Practice point:  The Appellate Division affirmed the Court of Claims' dismissal of this action in which claimant allegedly was injured when he slipped and fell while walking down a path at the Stony Brook University Hospital.

The injured claimant, and his wife suing derivatively, commenced this claim against the defendant, State of New York, as the owner of the property. The claim proceeded to a nonjury trial on the issue of liability, after which a judgment was entered in favor of the defendant and against the claimants, dismissing the claim.

The Appellate Division found that the Court of Claims' determination that claimants failed to establish the existence of a dangerous condition created by the defendant which caused ice to form on the subject path was warranted by the facts and, thus, will not be disturbed. Claimants failed to prove by a preponderance of the evidence that the placement of a pipe at the base of a retaining wall next to the path proximately caused the accident. While the claimant testified at trial that he observed water coming from the pipe and flowing onto the entire width of the path after he fell, he was confronted with his deposition testimony to the contrary. Where the trial court's findings of fact rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations.

 In addition, claimants introduced into evidence photographs of the accident site which demonstrated that the path and the pipe were located on opposite sides of the retaining wall, at least 12 inches away from each other. Further, claimants submitted no testimony as to the amount of water which allegedly flowed from the pipe so as to cause ice to form across the entire width of the bottom of the path, and claimants' experts' opinion with respect to this theory of liability was speculative.

Student note:  In reviewing a determination made after a nonjury trial, the Appellate Division's power is as broad as that of the trial court.  It may render the judgment it finds warranted by the facts, bearing in mind that the trial judge had the advantage of seeing the witnesses.

Case:  Fernandez v. State of New York, NY Slip Op 05638 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Fraudulent inducement and contracts.

Unlawful termination because of disability.

Practice point:  The Appellate Division affirmed the denial of defendant hospital's summary judgment motion, finding issues of fact as to whether the hospital unlawfully terminated petitioner's employment because of her disability. There is evidence in the record that plaintiff was suffering from a mental illness that was affecting her job performance before the hospital terminated her employment. There is also evidence that hospital employees, including plaintiff's supervisor, were aware of her physical and mental health issues before she took medical leave, and that her supervisor was concerned about her fitness to work upon her return.

Student note:  Plaintiff is not estopped from asserting her discrimination claims under the State and City Human Rights Laws. Her application for, and receipt of, federal and state disability benefits is not inconsistent with her claims. In addition, the hospital has not established, as a matter of law, that plaintiff could not have performed her job duties with a reasonable accommodation.

Case:  Duckett v. New York Presbyt. Hosp., NY Slip Op 05769 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: A Court of Claims determination in a non-jury trial.

Leave to enter a default judgment.

Practice point:  Defendants failed to answer or appear, and plaintiff moved, in effect, for leave to enter a default judgement as against the individual defendant, pursuant CPLR 3215. The motion court denied the unopposed motion on the ground that the plaintiff failed to supply an affidavit of facts demonstrating  liability. The Appellate Division reversed.

In support of his motion, plaintiff submitted proof of service of the summons and complaint and proof of the default. In addition, the Appellate Division found that plaintiff submitted sufficient confirmation of the facts by submitting, among other things, an affidavit of merit setting forth the facts constituting his claims.

Student note:  On a motion for leave to enter a default judgment, pursuant to CPLR 3215[f], the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing. A defendant who has defaulted in appearing or answering will be deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them.

Case:  Boudine v. Goldmaker, Inc., NY Slip Op 05629 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Unlawful termination because of disability.

A double-parked vehicle and summary judgment as to liability.

Practice point:  The Appellate Division affirmed the denial of plaintiff's motion for summary judgment as to liability.

It is undisputed that plaintiff's vehicle was double-parked in the lane of travel, in violation of 34 RCNY 4-08(f)(1), when it was struck in the rear by defendants' vehicle. Plaintiff failed to make a prima facie showing that her own negligence in double-parking in the traveling lane was not a proximate cause of the collision.

Student note:  The Appellate Division expressly rejected plaintiff's argument that her double-parked car merely furnished the condition or occasion for the collision, rather than constituting one of its proximate causes.  A reasonable factfinder could conclude that a rear-end collision is a foreseeable consequence of double-parking.

Case:  Pickett v. Verizon N.Y. Inc., NY Slip Op 05607 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue: Leave to enter a default judgment.

A minority shareholders' action.

Practice point:  The corporation's minority shareholders brought this action against the majority shareholders, officers, and directors, alleging among other things, that defendants improperly diverted corporate opportunities to other companies owned by them, excluding plaintiffs from those opportunities.

The Appellate Division reversed the motion court's dismissal. While the complaint fails to set forth with particularity plaintiffs' demand that the board commence an action against defendants, pursuant to Business Corporation Law § 626[c], the complaint adequately sets forth plaintiffs' reasons for not making a demand, also pursuant to § 626[c]. It alleges that defendants, as the corporation's sole directors, were self-interested in the challenged conduct because they received a personal benefit as the owners of the corporations to which they diverted corporate opportunities. In addition, plaintiffs allege that defendants, in their role as directors, ignored plaintiffs' earlier attempts to compel them to cease their alleged wrongdoing.

Student note:  The Appellate Division also found that it was inappropriate for the motion court to dismiss the breach of contract cause of action in light of the allegations that defendants, as directors, did not act in good faith.

Case:  Soho Snacks Inc. v. Frangioudakis, NY Slip Op 05603 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A double-parked vehicle and summary judgment as to liability.

Court Holiday.

Contracts and damages for lost profits.

Practice point:  Where a plaintiff seeks to recover damages for lost profits, those profits must be within the parties' contemplation at the time the contract was entered into. While they must be proven with reasonable certainty, damages resulting from the loss of future profits are often an approximation.

Student note:  To prevail on a cause of action alleging breach of contract, a plaintiff must demonstrate that it sustained actual damages as a natural and probable consequence of the defendant's breach.

Case:  Family Operating Corp. v. Young Cab Corp., NY Slip Op 05437 (2d Dept. 2015)

Here is the decision.

Monday's issue: A minority shareholders' action.

A fall on wet bus steps.

Practice point:  The Appellate Division reversed the trial court and dismissed this action in which plaintiff allegedly was injured when he slipped and fell on the wet steps of defendant's bus as he was exiting its front door. At his deposition, plaintiff stated that it was snowing on the day of the accident, and that "lots of snow [had] accumulated everywhere."

The Appellate Division found that, contrary to the Supreme Court's determination, defendant demonstrated its prima facie entitlement to judgment as a matter of law by showing that it did not breach any duty to the plaintiff under the circumstances that existed at the time of the accident. Given the inclement weather conditions when the accident occurred, it would be unreasonable to expect defendant to constantly clean the bus steps.

Student note:  A common carrier is subject to the same duty of care as any other potential tortfeasor, namely, reasonable care under all the circumstances of the particular case.

Case:  Batista v. MTA Bus Co., NY Slip Op 5430 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue: Contracts and damages for lost profits.