A premises liability action.

A property owner has a duty to keep the property in a reasonably safe condition in view of all the circumstances. In a premises liability case, a defendant property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence.

Case:  Arevalo v. Associated Supermarkets, Inc., NY Slip Op 09109

Here is the decision.

The Court of Claims' jurisdiction.

The Court of Claims has limited jurisdiction to hear actions against the State itself, or actions naming State agencies or officials as defendants, but where the State is the real party in interest, as well as claims against a few other State-related entities as provided by statute.

Case:  Bush v. Stevenson Commons Assoc., LLP,  NY Slip Op 08806 (2d Dep't December 20, 2017)

Here is the decision.

Specific performance on a real estate contract, or return of the down payment.

Practice point:  A purchaser seeking specific performance of a real estate contract must demonstrate that he or she was ready, willing, and able to perform on the contract, regardless of any anticipatory breach by the selle.  An anticipatory breach of the contract excuses the purchaser from tendering performance, but does not excuse the purchaser from the requirement of being ready, willing, and able to perform.

In order to retain the down payment, the seller must have been ready, willing, and able to perform on the law day. There are exceptions to this rule, such as where the purchaser seeks to cancel the contract without giving the seller an opportunity to cure any defects. In order to get a return of the down payment, the purchaser is not required to tender performance and attend a closing if the seller is unable to perform on the law day.

Case:  33 Park Ave. Realty, LLC v. Park Ave. Bldg. & Roofing Supplies, LLC, NY Slip Op 08802 (2d Dep't December 20, 2017)

Here is the decision.

A claim for damages based on lack of informed consent.

Practice point:  To establish a cause of action to recover damages based on lack of informed consent, a plaintiff must prove (1) that the treatment provider failed to inform the plaintiff of reasonably foreseeable risks associated with the treatment, and alternatives thereto; 2) that a reasonably prudent plaintiff in the same position would not have undergone the treatment if he or she had been fully informed; and (3) that the lack of informed consent is a proximate cause of the plaintiff's injury. Where the plaintiffs and the defendant present divergent expert testimony, it is up to the jury to determine the experts' credibility.

Case:  Alessi v. Mucciolo, NY Slip Op 08804 (2d Dep't December 20, 2017)

Here is the decision.

Merry Christmas, here and there, now and then.

Extensions of time.

Practice point:  Pursuant to CPLR 3012(d), a trial court has the discretionary power to extend the time to plead, or to compel acceptance of an untimely pleading on terms that may be just, if there is a showing of a reasonable excuse for the delay. In reviewing a discretionary determination, the question is whether the court providently exercised its discretion.

Case:  Emigrant Bank v. Rosabianca, NY Slip Op 08716 (1st Dep't December 14, 2017)

Here is the decision.

Leave to amend.

Practice point:  A motion for leave to amend a pleading may be made at any time, and leave shall be freely given upon such terms as may be just, pursuant to the express terms of CPLR 3025[b]. Absent prejudice or surprise resulting from a delay in making the motion, leave will be granted unless the proposed amendment is patently without merit or palpably improper. The decision to grant or deny the motion is let to the sound discretion of the trial court, and its determination will not lightly be put aside.

Case:  Cullen v. Torsiello, NY Slip Op 08654 (2d Dep't December 13, 2017)

Here is the decision.

An equitable claim to quiet title.

Practice point:  In order to maintain the claim, a plaintiff must allege actual or constructive possession of the property and the existence of a removable cloud on the property, such as a deed or other instrument, that is invalid or inoperative.

Student note:  A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint based on documentary evidence will be granted only where the evidence utterly refutes plaintiff's factual allegations, thereby establishing conclusively a defense as a matter of law.

Case:  Carbone v. US Bank N.A., NY Slip Op 08653 (2d Dep't December 13, 2017)

Here is the decision.

The storm-in-progress rule.

The Appellate Division affirmed dismissal of the complaint, finding that, pursuant to CPLR 4528, defendants' citation to the climatological data relied upon by their expert meteorologist established, prima facie, entitlement to summary judgment based on the storm-in-progress defense  In opposition, plaintiffs failed to raise a triable issue as to whether it had stopped snowing long enough to have implicated defendants' duty to clear the snow.  Plaintiff's affidavit does not shed light on the snowfall during the relevant period, as Administrative Code of City of NY § 16-123(a) gives landowners a four-hour grace period to clear snow and ice, not including the period between 9:00 p.m. and 7:00 a.m.  While the nonparty witness's observation that it was not snowing at 5:00 p.m. indicates a temporary lull in the storm, it is insufficient to raise a triable issue of fact as to a duty to clear snow and ice.

Case:  Jakubowski v. Axton Owner LLC, NY Slip Op 08724 (1st Dep't December 14, 2017)

Here is the decision.

Stipulations of settlement and contract law.

Practice point:  The stipulation is a contract, enforceable according to its terms.  A court will relieve a party from the consequences of the stipulation only where there is sufficient cause to invalidate a contract, such as fraud, collusion, mistake or accident.  It is unlikely that the stipulation will be put aside where the stipulation's terms were read into the record, and the party moving to vacate was represented by counsel.

Student note:  While a contract entered into under a mutual mistake of fact is voidable and subject to rescission, courts likely will not vacate agreements on the ground of unilateral mistake where the mistake was the result of negligence or the failure to exercise ordinary care.

Case:  ATS-1 Corp. v. Rodriguez, NY Slip Op 08651 (2d Dep't December 13, 2017)

Here is the decision.

A fall on the stairs.

The Appellate Division reversed the granting of defendant's motion for summary judgment, and reinstated the complaint in this action where plaintiff alleges that she was injured when she fell as the result of a loose step on a staircase in a building owned by defendant.

By submitting deposition testimony that no repairs were made to the staircase since defendant acquired the building, defendant made a prima facie showing that it did not cause or create the loose step.

However, plaintiff's expert raised a triable issue of fact on this issue. In response to defendant's expert's opinion that "[a]ny motion in the step[] is imperceptible," plaintiff's expert, who inspected the area approximately one month after the accident, "observed that the tread moved and was unstable." Plaintiff's expert opined that the step had been repaired using a rubber adhesive applied to the tread of the step, that the repair was done improperly and was inadequate, and that the "condition had been present for a long period of time." Defendant's expert failed to provide any rebuttal to this opinion, and defendant did not reply to plaintiff's expert's opinion when it was raised in opposition to defendant's motion for summary judgment.

Student note:  A defendant moving for summary judgment in a case involving an alleged dangerous condition has the initial burden of making a prima facie showing that it neither created nor had actual or constructive notice of the unsafe condition. When the defendant establishes prima facie entitlement to judgment as a matter of law, the burden shifts to the plaintiff to raise a triable issue of fact.

Case:  Del Marte v. Leka Realty LLC, NY Slip Op 08626 (1st Dep't December 12, 2017)

Here is the decision.

A municipality's liability.

Practice point:  A municipality that has enacted a prior written notice law is not subject to liability for injuries caused by a defect which comes within the ambit of the law unless it has received written notice of the alleged defect or dangerous condition, or there is an applicable exception to the written notice requirement.  There are exceptions to the prior written notice requirement where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon the municipality.

Case:  Dibble v. Village of Sleepy Hollow, NY Slip Op 08503 (2d Dep't December 6, 2017)

Here is the decision.

A viable claim for an equitable accounting.

Practice point:  Where the complaint alleges a fiduciary relationship and further alleges that the defendant did not provide a full accounting, even after protracted discovery, the plaintiff is entitled to pursue its claim for an equitable accounting and related costs.

Case:  Mohinani v. Charney, NY Slip Op 08608 (1st Dep't December 7, 2017)

Here is the decision.

Discovery sanctions.

Practice point:  If a party refuses to obey an order for disclosure or willfully fails to disclose information, the court may dismiss the action, pursuant to CPLR 3126(3).  While, whenever possible, actions should be resolved on the merits, a court may strike a pleading on a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct.

Case:  Corex-SPa v Janel Group of N.Y., Inc., NY Slip Op 08502 (2d Dep't December 6, 2017)

Here is the decision.

The business records exception to the hearsay rule.

Practice point:  In order to demonstrate the admissibility of the records, pursuant to CPLR 4518(a), the affiant must attest that he or she is personally familiar with the record-keeping practices and procedures of the party invoking the exception.

Case:  Bank of N.Y. Mellon v. Alli, NY Slip Op 08501 (2d Dep't December 6, 2017)

Here is the decision.

An evevator accident.

The Appellate Division affirmed denial of defendant's summary judgment motion in this action where plaintiff alleges that she was injured when the elevator in a building owned by defendant fell from the 20th to the 11th floor.  While defendant demonstrated a lack of actual or constructive notice of a defect, plaintiff can rely on the doctrine of res ipsa loquitur to prove negligence.

Practice point:  A free-fall or sudden drop of an elevator does not ordinarily happen in the absence of negligence.

Student note:  Plaintiff submitted evidence to support each of the elements of res ipsa loquitur, namely, (1) that the occurrence would not ordinarily occur in the absence of negligence; (2) that the injury was caused by an agent or instrumentality within the exclusive control of defendant; and (3) that no act or negligence on the plaintiff's part contributed to the happening of the event.  The fact that a passenger activated the emergency stop button does not affect defendant's exclusive control of the elevator.

Case:  Colon v. N.Y. City Hous. Auth., NY Slip Op 08463 (1st Dep't December 5, 2017)

Here is the decision.

Service of process.

Practice point:  Pursuant to CPLR 308(2), service is improper where the process server did not mail the supplemental summons to either of the defendants.  Jurisdiction is not acquired pursuant to the statute unless both the delivery and mailing requirements have been strictly complied with.

Student note:  When the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents.

Case:  Joseph v. AACT Fast Collections Servs., Inc., NY Slip Op 08357 (2d Dep't November 29, 2017)

Here is the decision.

A failed motion to vacate.

The Appellate Division affirmed denial of the motion to vacate the default judgment, rejecting the argument based on CPLR 5015(a)(1). Defendant's opinion that he had not been properly served, and, therefore, was free to ignore the suit, a copy of which he received in the mail, was not reasonable.

Practice point:  A defendant's conclusory denials that service did not occur are insufficient to rebut the presumption of service as detailed in the affidavit of service. Neither are they sufficient to warrant a traverse hearing.

Case:  Colebrooke Theat. LLP v. Bibeau, NY Slip Op 08441 (1st Dep't November 30, 2017)

Here is the decision.

Unjust enrichment.

The cause of action requires a  showing that (1) the defendant was enriched, (2) at the expense of the plaintiff, and (3) that it would be inequitable to permit the defendant to retain that which is claimed by the plaintiff. 

Student note:  The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what the plaintiff seeks to recover.

Case:  Demetriades v. Kalpakis, NY Slip Op 08349 (2d Dep't November 29, 2017)

Here is the decision.

A referee's findings.

Practice point:  Where a referee's findings are supported by the record, the court will confirm the referee's report and adopt the recommendation made therein.  On appeal, the referee's credibility determinations are entitled to deference because the referee was able to see and hear the witnesses and observe their demeanor.

Case:  Chambliss v. University Group Med. Assoc., NY Slip Op 08347 (2d Dep't November 29, 2017)

Here is the decision.

The judicial proceedings privilege.

The Appellate Division affirmed dismissal of the defamation action, finding that the allegedly defamatory statements were pertinent to a previous action brought by defendant against plaintiff, and, therefore, absolutely protected. The statement in defendant's complaint alleging that plaintiff fraudulently awarded himself an employment contract was obviously related to the fraud allegations. The statement regarding the authenticity of a power of attorney related to plaintiff's ability to award himself the contract, and so it was pertinent to the allegation that plaintiff engaged in self-dealing.

Student note:  Public policy favors having litigants speak freely in judicial proceedings.

Case:  Peters v. Coutsodontis, NY Slip Op 08308 (1st Dep't November 28, 2017)

Here is the decision.

A vehicle accident and a negligence claim.

The Appellate Division reversed the motion court and reinstated the complaint in this action where the defendant moved for summary judgment, contending that the plaintiff's violation of Vehicle and Traffic Law § 1141 was the sole proximate cause of the accident. In support of the motion, the defendant submitted the parties' deposition testimony. The defendant attested that she never saw the front of the plaintiff's vehicle, and that when she first saw the plaintiff's vehicle, which was "moving like a snail," she saw the middle part of the vehicle directly ahead of her. Viewing the evidence in the light most favorable to the non-movant plaintiff, the defendant failed to establish, prima facie, her freedom from comparative fault and that the plaintiff's alleged violation of the Vehicle and Traffic Law was the sole proximate cause of the accident.

Practice point:  A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the accident.

Case:  Aponte v. Vani, NY Slip Op 08252 (2d Dep't November 22, 2017)

Here is the decision.

A dismissed breach of contract claim.

The Appellate Division affirmed dismissal because defendant cannot establish the elements of either breach or damages. Defendant does not allege that the contract required plaintiff to employ any particular security measures, so plaintiff was required only to exercise precautions consistent with industry standards. Plaintiff submitted an affidavit from an experienced industry professional, who opined that the measures it took, namely, keeping the molds in a locked storage room supervised by an on-site employee, were "standard in the industry." The affidavit submitted by defendant in opposition did not set forth any different standard, and, therefore, failed to raise an issue of fact.

Regarding damages, defendant's representative admitted that he was "not aware of any particular instances of sales of jewelry pieces manufactured from the counterfeit models."

Practice point:  Defendant's theory that the jewelry styles corresponding to the counterfeited models failed to meet projected sales is unduly speculative.

Case:  Apogee Handcraft, Inc. v. Verragio, Ltd., NY Slip Op 08178 (1st Dep't November 21, 2017)

Here is the decision. 

Promissory notes and contract law.

Practice point:   Where there is a valid contract, a plaintiff cannot recover in quasi contract for events arising out of the same subject matter.

Student note:  A promissory note is enforceable under the traditional principles of contract law.

Case:  Amrusi v. Nwaukoni, NY Slip Op 07970 (2d Dep't November 16, 2017)

Here is the decision.

A Labor Law claim for work performed out-of-State.

Labor Law, Article 6, which contains the unlawful deductions, notice, and record keeping provisions which plaintiffs claim were violated, does not indicate that the provisions were intended to apply when the work in question is performed outside the state. Article 19, which contains the minimum wage, overtime, and spread of hours provisions identified in the complaint, includes a "Statement of Public Policy," which states, in relevant part: "There are persons employed in some occupations in the state of New York at wages insufficient to provide adequate maintenance for themselves and their families.... Employment of persons at these insufficient rates of pay threatens the health and well-being of the people of this state and injures the overall economy."

As these statutes do not expressly apply on an extraterritorial basis, plaintiffs' claims under these provisions, based on labor performed outside New York, do not state a cause of action under Article 6 or Article 19 of the New York Labor Law.

Practice point:  Under New York Law, no legislation is presumed to be intended to operate outside the territorial jurisdiction of the state enacting it, unless expressly stated otherwise.

Case:  Rodriguez v. KGA Inc., NY Slip Op 07948 (1st Dep't November 14, 2017)

Here is the decision.

Strict products liability.

Practice point: In order to establish a prima facie case based on design defects, the plaintiff must show that the manufacturer or seller breached its duty to market safe products by marketing a product designed so that it was not reasonably safe, and that the defective design was a substantial factor in causing plaintiff's injury. In order to determine whether a product was designed so that it was not reasonably safe, the risks inherent in the product must be balanced against the product's utility and cost. A court will consider factors such as the utility of the product to the public and to the individual user; the likelihood that it will cause injury; the availability of a safer design; the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; the ability of the plaintiff to have avoided injury by careful use of the product; the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and the manufacturer's ability to spread any cost related to improving the safety of the design. With regard to the misuse of a product, it may be determined that even with adequate warnings, a product may be so dangerous, and its misuse may be so foreseeable, that the utility of the product does not outweigh the risk inherent in marketing it.

Case:  M.H. v. Bed Bath & Beyond Inc., NY Slip Op 07790 (1st Dep't November 9, 2017)

Here is the decision.

Court holiday.

A dismissed legal malpractice claim.

In this action commenced by plaintiffs against defendants based on defendants' representation of plaintiffs in an underlying federal court action, dismissal of the legal malpractice claim was affirmed since the claim rested on retrospective complaints about the outcome of defendants' strategic choices and tactics, without any facts cited to support a claim that the choices were unreasonable. The breach of contract and breach of fiduciary duty claims were reinstated, as they are based on billing issues and are not duplicative of the claims regarding the alleged mishandling of the trial.

Practice point:  The firm's failure to anticipate the trial court's evidentiary rulings regarding the expert report does not establish negligence.

Case:  Brenner v. Reiss Eisenpress, LLP, NY Slip Op 07781 (1st Dep't November 9, 2017)

Here is the decision.

Doctrine of primary assumption of risk.

Practice point:  Under the doctrine, 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 participation.  By freely assuming a known risk, a plaintiff negates any duty on the part of the defendant to safeguard the plaintiff from the risk.  If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty. However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.

Case:  Hanson v. Sewanhaka Cent. High Sch. Dist., NY Slip Op 07711 (2d Dep't November 8, 2017)

Here is the decision.

A motion to set aside a verdict.

Practice point:  Pursuant to CPLR 4404(a), a court may set aside a verdict and direct that judgment be entered in favor of a party entitled to judgment as a matter of law, or it may order a new trial where the verdict is contrary to the weight of the evidence or in the interest of justice.  A motion to set aside a verdict in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise. In considering the motion, the trial judge must decide whether substantial justice has been done and whether it is likely that the verdict has been affected. In addition, the judge must look to common sense, experience, and a sense of fairness rather than to precedents in arriving at a decision.

Case:  Duran v. Temple Beth Sholom, Inc., NY Slip Op 07708 (2d Dep't November 8, 2017)

Here is the decision.

Vacating a judgment resulting from fraud.

Practice point:  A party who has lost an action as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action against the party who adduced the false evidence. Instead, the plaintiff's sole remedy is a motion to vacate the judgment.  In an exception to the rule, a party may commence a separate action where the alleged perjury or fraud in the underlying action was merely a means to the accomplishment of a larger fraudulent scheme which was greater in scope than the issues determined in the prior proceeding.

Case:  DeMartino v. Lomonaco, NY Slip Op 07706 (2d Dep't November 8, 2017)

Here is the decision.

A dismissed quantum meruit claim.

The Appellate Division affirmed dismissal, finding no triable issue of fact as to whether plaintiff could have expected compensation from defendants for its services, as the brokerage agreement states otherwise.

Practice point:  Plaintiff presented no evidence of any other express or implied agreement between the parties to show that plaintiff had an expectation of compensation by defendants for her services.

Case:  SPRE Realty, Ltd. v. Dienst, NY Slip Op 07775 (1st Dep't November 9, 2017)

Here is the decision.

Emergeny operations, auto accidents, and statutory privilege.

The Appellate Division affirmed defendants' motion for summary judgment, finding that defendant police officer was operating a police vehicle while performing an emergency operation and did not recklessly disregard the safety of others before the accident happened.

Practice point:  The fact that defendant was mistaken in believing that plaintiff was stopping her vehicle when he passed through the red light does not make his conduct reckless. Defendant testified that, as he approached the intersection, he reduced his speed and looked left and right, and that he was traveling approximately 10 miles above the speed limit when the accident occurred.  Defendant tried to avoid colliding with plaintiff by braking hard and turning the steering wheel to the right upon realizing that plaintiff's vehicle had entered the intersection.

Student note:  The question of whether the police vehicle's lights and siren were activated is immaterial because defendant was not required to activate either of these devices in order to be entitled to the statutory privilege of driving through the red light.

Case:  Lewis v. City of New York, NY Slip Op 07785 (1st Dep't November 9, 2017)

Here is the decision.

CPLR 4401

Practice point: The granting of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party.  In considering the motion, the evidence must be viewed in the light most favorable to the nonmoving party, and the court must afford the nonmoving party every inference which may properly be drawn from the facts presented.

Case:  Canale v. L & M Assoc. of N.Y., Inc., NY Slip Op 07701 (2d Dep't November 8,2017)

Here is the decision.

Statute of limitations as a bar to a malpractice claim.

Practice point:  In seeking to assert the statute of limitations, a moving defendant must demonstrate, prima facie, that the time within which the plaintiff could commence the cause of action has expired. If the movant satisfies its burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable. The continuous representation doctrine may toll the statute.  A prerequisite for the application of the doctrine is that the relationship be continuous with respect to the matter in which the malpractice is alleged.  A general professional relationship involving only routine contact is insufficient.  In addition, the doctrine applies only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.

Case:  Collins Bros. Moving Corp. v. Pierleoni, NY Slip Op 07586 (2d Dep't November 1, 2017)

Here is the decision.

Court holiday.

Accountants as fiduciaries.

Practice point:  Accountants are not fiduciaries as to their clients except where the accountants are directly involved in managing the client's investments.

Case:  Herrmann v.  CohnReznick LLP, NY Slip Op 07688 (1st Dep't November 2, 2017)

Here is the decision. 

Past consideration.

Practice point:  Past consideration is no consideration and cannot support an agreement because the detriment did not induce the promise.  Since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise.

There is an exception where the past consideration is explicitly recited in a writing. To qualify for the exception, the description of the consideration must not be vague or imprecise, and extrinsic evidence may not be used to assist in understanding the consideration.

Student note:  General Obligations Law (GOL) § 5-1105 states,  "A promise in writing and signed by the promisor or by his agent shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed."

Case:  Korff v. Corbett, NY Slip Op 07677 (1st Dep't November 2, 2017)

Here is the decision.

Court holiday.

Entry of judgment.

Practice point:  Pursuant to CPLR 3215(c), if a plaintiff does not enter the judgment within one year after the default, the court will dismiss the complaint as abandoned. While the statutory language is not discretionary, plaintiff's failure may be excused on a showing of reasonable excuse and a potentially meritorious claim.

Student note:  The defendant may waive the right to dismissal by serving an answer or taking any other step that might be viewed as a formal or informal appearance.

Case:  Bank of Am., N.A. v. Rice, NY Slip Op 07581 (2d Dep't November 1, 2017)

Here is the decision.

General Business Law § 349 - Deceptive Acts and Practices Unlawful.

The Appellate Division reversed, and dismissed the claim of a statutory violation, finding that this was a private contract dispute unique to the parties.  Even if defendant engaged in consumer-oriented conduct by posting statements on its website, those statements were not likely to mislead a reasonable consumer.  In addition, if the statements were deceptive, they did not cause plaintiff's injury. Plaintiff's alleged injury was caused by defendant's specific acts and omissions, such as failing to provide constructible drawings, re-designing the apartment's windows and doors without authorization, and failing to coordinate the project.

Case:  Loeb v. Architecture Work, P.C., NY Slip Op 07551 (1st Dep't October 31, 2017)

Here is the decision.

The element of cause in a slip-and-fall action.

Plaintiff allegedly was injured when she slipped and fell in the defendant-restaurant. Plaintiff could not identify the cause of her fall, but stated, at her deposition, that it "could have been grease from the kitchen." The Appellate Division affirmed dismissal.

Practice point:  In a slip-and-fall case, a plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.

Case:  Cross v. Friendship Rest. Group, LLC, NY Slip Op 07428 (2d Dep't October 25, 2017)

Here is the decision.

An apartment fire.

Practice point: Defendant established entitlement to judgment as a matter of law in this wrongful death action arising from a fire that occurred in an apartment occupied by plaintiff's decedent, and owned and maintained by defendant. Defendant submitted evidence establishing that there was an operable smoke detector in decedent's apartment three months prior to the fire, and that it had not received any complaints about the smoke detector.  In opposition, plaintiff failed to raise a fact question as to whether the smoke detector was inoperable at the time of the fire, or whether defendant had actual or constructive notice that the detector was inoperable.

Case:  Keene v. New York City Housing Authority, NY Slip Op 07536 (1st Dep't October 26, 2017)

Here is the decision.

Workers Compensation as an exclusive remedy.

Practice point:  Plaintiff is a bus matron employed by a non-party, and she is seeking compensation for injuries that she sustained in an accident that occurred while she was working on a bus registered to the first corporate defendant and driven by the individual defendant. Defendants failed to make a prima facie showing that plaintiff was a "special employee" of the first corporate defendant, so that her claims would be barred by the exclusive remedy provisions of Workers' Compensation Law §§ 11 and 29(6).  They did not demonstrate that the first corporate defendant assumed exclusive control over plaintiff's work. In fact, their own witnesses testified that bus matrons were supervised by employees of another company, not by employees of the first corporate defendant. Defendants offered no evidence to support a finding that the second corporate defendant, allegedly liable as the school bus owner, pursuant to Vehicle and Traffic Law § 388, was entitled to rely on the exclusivity bar of the Workers' Compensation Law.

Case:  Mohammed v. Kierzowski, NY Slip Op 07525 (1st Dep't October 26, 2017)

Here is the decision.

The return of an engagement ring.

Practice point: The Appellate Division reversed and ordered a new trial, finding that the Supreme Court erred in granting the defendant's motion, made pursuant to CPLR 4401 at the the close of evidene, for judgment as a matter of law dismissing the cause of action for the return of the ring. Viewing the evidence in the light most favorable to the plaintiff, and resolving credibility issues in his favor, there was a rational process by which the trier of fact could find that, when  neither party was under an impediment to marry, the plaintiff gave the defendant the ring in contemplation of a marriage which did not occur. As such, the cause of action for the return of the engagement ring should not have been dismissed.

Case:  Bierman v. Limoncelli, NY Slip Op 07426 (2d Dep't October 25, 2017)

Here is the decision.

Law office failure as an excuse for default.

Practice point:  A party asserting law office failure must provide a detailed and credible explanation of the default.  Conclusory and unsubstantiated allegations of law office failure are not sufficient.

Student note:  Pursuant to CPLR 5015(a), in order to vacate its default in appearing at a call of the compliance conference calendar, the plaintiff had to demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action.

Case:  555 Prospect Assoc., LLC v. Greenwich Design & Dev. Group Corp.,  NY Slip Op 07423 (2d Dep't October 24, 2017)

Here is the decision.

A claim based on exposure to lead-based paint.

Practice point:  The Appellate Division affirmed denial of defendant's motion for summary judgment in this action seeking damages for injuries resulting from exposure to lead-based paint.  The record establishes that the building was constructed prior to 1960; that defendant knew that a child younger than six years of age lived in the apartment; and defendant had actual notice of a positive lead test that it failed to remediate and that resulted in a letter alerting it to the fact that the condition had not been addressed.  Defendant's expert's conclusion that the positive test was too remote in time to be reliable does not create a triable issue of fact.

Case:  Jocelyn C. v. Soundview Apts. Realty, LLC, NY Slip Op 07388 (1st Dep't October 24, 2017)

Here is the decision.

A duplicative claim of a breach of fiduciary duty.

Practice point:  Under New York law, conduct amounting to breach of a contractual obligation may also constitute the breach of a fiduciary duty which is independent of the contract.  Professionals, such as investment advisors, owe fiduciary duties to their clients, and may be subject to tort liability, as it is policy, not the parties' contract, that gives rise to the duty. Here, the breach of fiduciary duty claim is duplicative of the breach of contract claim, since the plaintiff is suing the defendant not as a professional advisor, but as a managing member of the investment firm, a relationship that is controlled by the firm's operating agreement.

Case:  Panattoni Dev. Co., Inc. v. Scout Fund 1-A, LP, NY Slip Op 07334 (1st Dep't October 19, 2017)

Here is the decision.

Default judgments in matrimonial actions.

Practice point:  While there is a liberal policy with respect to vacating defaults in matrimonial actions, the defendant still must demonstrate a reasonable excuse for the default and the existence of a potentially meritorious defense, pursuant to CPLR 5015(a)(1).  The motion must be made within one year after service of a copy of the judgment or order with written notice of its entry.

Case:  Dankenbrink v. Dankenbrink, NY Slip Op 07237 (2d Dep't October 18, 2017)

Here is the decision.

An insufficient § 1983 claim.

Practice point:   Neither the state nor its officials, acting in their official capacities, are "persons" within the meaning of the statute.

Case:  Stoner v. Atlantic Realty Apts., LLC, NY Slip Op 07329 (1st Dep't October 19, 2017)

Here is the decision. 

An enforceable personal guaranty.

Practice point:  While a personal guaranty must be in writing, it does not have to be notarized to make it legally binding on the parties.  Typographical errors do not render the guaranty unenforceable.  Where the only alleged mistake is in the reduction of the agreement to a writing, it is a scrivener's error, and, no matter how the error occurred, it may be corrected without reformation of the agreement.

Student note:  In the absence of a claim for reformation, the court may, as a matter of interpretation, carry out the parties' intentions by transposing, rejecting, or supplying words to make the meaning of the contract more clear.

Case:  82-90 Broadway Realty Corp. v. New York Supermarket, Inc., NY Slip Op 07233 (2d Dep't October 18, 2017)

Here is the decision.

A residential owner's liability for a sidewalk fall.

Practice point:  There is an exemption from personal iability for failure to maintain the sidewalk if the  property is a "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes," pursuant to Administrative Code of the City of New York § 7-210[b].

While the statute does not expressly contain a primary residence requirement,  the term "owner occupied" generally is used to mean that the owner regularly occupies the property as a residence.  The legislative history shows that the exemption recognizes the inappropriateness of exposing small-property owners in residence, with limited resources, to exclusive liability regarding sidewalk maintenance and repair.

Student note:  The statute is to be strictly construed as creating liability in derogation of the common law.

Case:  Kalajian v. 320 E. 50th St. Realty Co., NY Slip Op 07225 (1st Dep't October 17, 2017)

Here is the decision.

CPLR 3126 and precluding evidence.

Practice point:  Before a court invokes the drastic remedy of precluding evidence, there must be a clear showing that the party's failure to comply with discovery demands or court-ordered discovery was willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time.

Student note:  The nature and degree of a penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court.

Case:  Candela v. Kantor, NY Slip Op 07106 (2d Dep't October 11, 2017)

Here is the decision.

A motion for leave to renew.

Practice point:  The motion must be bsed on facts that were not offered on the prior motion and that would change the prior determination, pursuant to CPLR 2221[e][2].  Pursuant to [e][3], the movant movant must demonstrte a reasonable justification for not having presented these facts on the prior motion.

Student note:  While it may be within the court's discretion to grant leave to renew based on facts known to the moving party at the time of the prior motion, the motion is not a second chance given to parties who have not exercised due diligence in making their first factual presentation.

Case:  Byun Sik Chu v. Kerrigan, NY Slip Op 07105 (2d Dep't October 11, 2017)

Here is the decision.

A sufficiently pled gender discrimination claim.

Practice point:  The plaintiff sufficiently pled the necessary elements of the claim by alleging that another employee said that she was "inadequate" before he had ever observed her work and when all he knew about her was that she was a woman, and that, thereafter, he continually harassed and insulted her. The inference of gender-based discrimination is supported by the allegation that the plaintiff, after her termination, was almost immediately replaced by a male, as well as by the allegation that she was told that her crane was being taken out of operation, when the crane continued to be used, but with a male operator.

Case:  Schindler v. Plaza Constr., LLC, NY Slip Op 07182 (1st Dep't October 12, 2017)

Here is the decision. 

Leave to amend a pleading.

Practice point:  Pursuant to CPLR 3025(b), leave to amend a pleading will be granted when there is no significant prejudice or surprise to the opposing party, and where the evidence submitted in support of the motion for leave demonstrates that the proposed amendment may have merit.

Student note:  The movant must submit the proposed amendment, and, in order to deny the motion, the amendment's insufficiency must be clear and free from doubt.

Case:  Assevero v. Hamilton & Church Props., LLC, NY Slip Op 07103 (2d Dep't October 11, 2017)

Here is the decision.

General jurisdiction.

Practice point:  New York courts may not exercise general jurisdiction against a defendant, either under the United States Constitution or CPLR 301, unless the defendant is domiciled in New York, or in the exceptional case where the individual's New York contacts  are so extensive as to support general jurisdiction, notwithstanding domicile elsewhere.  The purchase of an apartment in New York does not establish that the individual is domiciled in New York.  New York business activities undertaken on behalf of a corporate entity are not a basis for general jurisdiction.

Case:  IMAX Corp. v. Essel Group, NY Slip Op 07091 (1st Dep't October 10, 2017)

Here is the decision.

A motion to dismiss the complaint as time-barred.

Practice point:  On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5), on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute was tolled or otherwise inapplicable, or whether the action was commenced within the limitations period.

Student note:  In considering the motion, the court must take the allegations in the complaint as true, and resolve any inferences in favor of the plaintiff.

Case:  Cataldo v. Herrmann, NY Slip Op 06920 (2d Dep't October 4, 2017)

Here is the decision.

A dismissed claim of negligence and wrongful death.

Practice point:  The Appellate Division reversed the motion court's denial of summary judgment, and dismissed the claim against defendant hospital. The decedent, plaintiff's husband and a hospital employee, became intoxicated at a holiday party organized by hospital workers. The party was not sanctioned by the hospital, and was not held on hospital property. The hospital employees attended the party on their own time.  The decedent's coworkers contacted the plaintiff, herself a hospital employee, and then helped the decedent into the plaintiff's car.  The plaintiff drove home and left the decedent in the car, parked in their driveway, to sleep off his condition. An hour later, the plaintiff checked on the decedent, and found him, unresponsive, on the floor of the back seat. The autopsy report lists the cause of the death as alcohol intoxication and positional asphyxia.

The Appellate Division determined that the hospital employees, in assisting the decedent and placing him in his wife's care, did not assume a duty, and nothing they did put the decedent in a worse or different position of danger. Any opinions rendered about medical attention being unnecessary were nonactionable gratuitous commentary. In addition, placing the decedent into the car was not the proximate cause of his death, but merely furnished the occasion for its happening.

Case: Gillern v. Mahoney, NY Slip Op 06979 (1st Dep't October 5, 2017)

Here is the decision.

Court holiday.

Settling an order.

Practice point:  Pursuant to 22 NYCRR 202.48[a], "[p]roposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted."

Student note:  Pursuant to 202.48[b], "[f]ailure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown."

Case:  HSBC Bank USA, N.A. v. Yonkus, NY Slip Op 06921 (2d Dep't October 4, 2017)

Here is the decision.

A challenge to a co-op board's action.

Practice point:  A shareholder's challenge to a co-op board's action is made in the form of an article 78 proceeding.

Case:  Musey v. 425 E. 86 Apts. Corp., NY Slip Op 06880 (1st Dep't October 3, 2017)

Here is the decision.

A motion to file a late notice of claim.

Practice point:  In an action to recover damages for personal injuries resulting from a slip-and-fall, the Appellate Division reversed, and denied the plaintiff's motion, made pursuant to General Municipal Law § 50-e(5), for leave to serve a late notice of claim against nonparty New York City Housing Authority.  The Appellate Division found that the plaintiff failed to provide a reasonable excuse for his failure to timely serve the notice.  His saying that he first discovered the identity of the owner of the walkway at the § 50-h hearing is an unacceptable excuse, as it indicates a lack of due diligence in investigating the matter.  Even if the plaintiff had made an excusable error in identifying the public corporation upon which he was required to serve the notice, he did not proffer any explanation for the additional seven-month delay between the time that he discovered the error and the filing of his application for leave to serve a late notice.

Student note:  In determining whether a petitioner should be granted leave to serve a late notice of claim against a public housing authority, the court will consider, as key factors, whether the petitioner had a reasonable excuse for the delay in serving the notice; whether the public housing authority acquired actual knowledge of the essential facts of the claim within the statutory 90-day period or within a reasonable time thereafter; whether the petitioner made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the public housing authority will be substantially prejudiced by the delay in its defense on the merits, pursuant to General Municipal Law § 50-e[5] and Public Housing Law § 157[2].

Case:  Kelly v. City of New York, NY Slip Op 06640 (2d Dep't September 27, 2017)

Here is the decision.

A default judgment in a foreclosure action.

Practice point:  The Appellate Division affirmed the judgment of foreclosure and sale, finding that the defendant failed to show a reasonable excuse for his default and a potentially meritorious defense.  As the summons expressly warned that failure to respond could result in a default judgment and the loss of the defendant's home, it is not a reasonable excuse for him to assert that he had been "led to believe," by parties whom he did not name,  that he did not have to answer the complaint because he had submitted a loan modification application.

Student note:  Since the defendant failed to proffer a reasonable excuse for the default, the Appellate Division did not reach the issue of whether the defendant had demonstrated a potentially meritorious defense.

Case:  Wells Fargo Bank, N.A. v. Javier, NY Slip Op 06711 (1st Dep't September 26, 2017)

Here is the decision.

Preliminary injunctions.

Practice point:  To establish the right to a preliminary injunction, a plaintiff must prove by clear and convincing evidence (1) the likelihood of ultimate success on the merits; (2) irreparable injury absent the granting of the injunction; and (3) a balance of the equities in the plaintiff's favor, pursuant to CPLR 6301.

Student note:  The purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties.

Case:  19 Patchen, LLC v. Rodriguez, NY Slip Op 06636 (2d Dep't September 27, 2017)

Here is the decision.

Sua sponte dismissal.

Practice point:  The sua sponte dismissal of the complaint is not appealable as of right, pursuant to CPLR 5701[a][2].  However, pursuant to 5701[c], the Appellate Division may deem the notice of appeal to be a motion for leave to appeal, and grant the motion.

Case:  All Craft Fabricators, Inc. v. ATC Assoc., Inc., NY Slip Op 06595 (1st Dep't September 26, 2017)

Here is the decision.

Protected materials.

Practice point:  The CPLR establishes three categories of protected materials: (1) privileged matter, absolutely immune from discovery, pursuant to CPLR 3101[b]; (2) an attorney's work product, also absolutely immune, pursuant to CPLR 3101[c]; and (3) trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means, pursuant to CPLR 3101 [d][2].  As to each category, the protection is supported by policy considerations.

Student note:  The burden of establishing a right to protection is on the party asserting it. The protection claimed will be narrowly construed, and its application must be consistent with the purposes underlying the immunity.

Case:  Venture v. Preferred Mut. Ins. Co., NY Slip Op 06594 (1st Dep't September 26, 2017)

Here is the decision.

A claim of negligent misrepresentation.

Practice point:  The  Appellate Division dismissed the claim where defendants demonstrated, prima facie, that there was no fiduciary or special relationship with the plaintiffs in this arm's length transaction.

Student note:  A cause of action alleging negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information.

Case:  CSI Group, LLP v. Harper, NY Slip Op 06521 (2d Dep't September 20, 2017)

Here is the decision.

Res ipsa loquitur.

Practice point:  The plaintiff allegedly sustained personal injuries when a portion of the bedroom ceiling fell on her as she was sleeping. The plaintiff commenced this action against the defendant landlord to recover damages for her injuries, asserting a single cause of action premised on theories of negligent failure to maintain the premises in a reasonably safe condition, and the doctrine of res ipsa loquitur.  The defendant established, prima facie, that the doctrine of res ipsa loquitur is inapplicable by submitting evidence demonstrating that the plaintiff had been residing at her apartment for more than one year at the time of the incident, and that the defendant did not have the requisite exclusive control over the allegedly defective condition. In opposition, the plaintiff failed to raise an issue of fact as to the applicability of the doctrine, and so plaintiff cannot rely on res ipsa loquitur at trial.

Student note: The doctrine of res ipsa loquitur is a rule of evidence that permits an inference of negligence to be drawn solely from the happening of an accident where the plaintiff can show that: (1) the event is of the kind that ordinarily does not occur in the absence of someone's negligence; (2) the instrumentality that caused the injury is within the defendant's exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff.

Case:  Correa v. Matsias, NY Slip Op 06520 (2d Dep't September 20, 2017)

Here is the decisiion.

Forum non conveniens.

Practice point:  On a motion  to dismiss the complaint on the ground of forum non conveniens, pursuant to CPLR 327, the movant must demonstrate the relevant private or public interest factors that militate against a New York court's acceptance of the litigation. Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses, the availability of an alternative forum, the situs of the actionable events, and the burden which will be imposed upon the New York courts, with no one single factor controlling.

Student note:  A court's determination of a motion to dismiss on the ground of forum non conveniens will not be disturbed on appeal unless the court failed to properly consider all the relevant factors or improvidently exercised its discretion in deciding the motion.

Case:  Park v. Heather Hyun-Ah Cho, NY Slip Op 06519 (2d Dep't September 20, 2017)

Here is the decision.

Documentary evidence on a motion to dismiss.

Practice point:  An unambiguous contract provision may qualify as documentary evidence within the meaning of CPLR 3211(a).

Student note:  To prevail on a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), a defendant must submit documentary evidence that utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.

Case:  13 Throop, LLC v. Triumph, the Church of the New Age, NY Slip Op 06516 (2d Dep't September 20, 2017)

Here is the decision.

Insincere promises and fraud.

Practice point:  An insincere promise to perform a contractual obligation is not actionable as fraud.

Student note:  Absent this rule, contract claims would be routinely pleaded in the alternative as fraud, eroding the distinction between the two causes of action.

Case:  Cronos Group Ltd. v. XComIP, LLC, NY Slip Op 06515 (1st Dep't September 19, 2017)

Here is the decision.

A 3211(a) motion.

Practice point:  The court may not treat the motion as one for summary judgment without having given the parties notice that it intends to do so, pursuant to CPLR 3211(c).

Student note: On a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7), the complaint must be construed liberally, the factual allegations must be deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences.  In opposition to the motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve claims that are inartfully pleaded but potentially meritorious.

Case:  Christ the Rock World Restoration Church Intl., Inc. v. Evangelical Christian Credit Union, NY Slip Op 06426 (2d Dep't September 13, 2017)

Here is the decision.

Moving for relief from a conditional order of preclusion.

Practice point:  To obtain relief from a conditional order of preclusion, the defaulting party must demonstrate a reasonable excuse for the failure to produce the requested items and the existence of a potentially meritorious claim or defense.

Student note:  In its discretion, a court may find that law office failure is a reasonable excuse.

Csse:  C.C. v. Vargas, NY Slip Op 06424 (2d Dep't September 13, 2017)

Here is the decision.

Appellate review after a nonjury trial.

Practice point:  In reviewing a determination made after a nonjury trial, the Appellate Division's authority is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses.  Where the trial court's findings of fact rest largely on considerations relating to the credibility of witnesses, the Appellate Division owes deference to the trial court's credibility determinations.

Student note:  Pursuant to CPLR 4404(b), after a nonjury trial, a court may, on the motion of a party or its own motion, set aside its decision and make new findings of fact or conclusions of law.

Case:  BNG Props., LLC v. Sanborn, NY Slip Op 06423 (2d Dep't September 13, 2017)

Here is the decision.

Summary judgment in a mortgage foreclosure action.

Practice point:  The moving plaintiff establishes a prima facie case through the production of the mortgage, the unpaid note, and evidence of default.  If the defendant puts standing at issue, the plaintiff must prove its standing in order to be entitled to relief.  A plaintiff has standing if, at the time the action is commenced, it is the holder or assignee of the underlying note.

Student note:  Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident.

Case:  Bank of Am., N.A. v. Martinez, NY Slip Op 06422 (2d Dep't September 13, 2017)

Here is the decision.

Determining damages for pain and suffering.

Practice point:  When the interval between the injury and death is relatively short, the elements to be considered include the degree of consciousness, the severity of pain, and the apprehension of impending death,

Case:  Matter of 91st St. Crane Collapse Litig., NY Slip Op 06419 (1st Dep't September 12, 2017)

Here is the decision.

A retaliation claim under Labor Law § 741.

Practice point:  The Appellate Division reversed the motion court's finding that plaintiff's statutory retaliation claim is completely barred by collateral estoppel. The issue of whether defendant hospital terminated plaintiff doctor because she reported inadequate medical care to her supervisors, and later, the Department of Health was not at issue in the prior administrative proceedings and related article 78 proceeding, and was not necessarily decided in the prior proceedings.

In the prior proceedings it was determined that plaintiff had engaged in professional incompetence on three occasions, and that defendant did not fabricate the allegations, but there was no express or implied ruling that defendant terminated her employment on the basis of that incompetence, or whether in terminating her, defendant had impermissibly retaliated against her for whistleblowing.

Student note:  While collaterel estoppel does not otherwise bar litigation of the retaliation claim, plaintiff is precluded from relitigating the three instances of incompetence found in the prior proceedings.

Case:  Mehulic v. New York Downtown Hosp., NY Slip OP 06416 (1st Dep't September 12, 2017)

Here is the decision.

Invoking a forum selection clause against a non-signatory.

Practice point:  Under New York law, a signatory to a contract may invoke a forum selection clause against a non-signatory if the non-signatory is so closely related to one of the signatories that enforcement of the clause is foreseeable.

Student note:  The rationale behind binding closely related entities to the forum selection clause is that it promotes stable and dependable trade relations.

Case:  Universal Inv. Advisory SA v. Bakrie Telecom PTE, Ltd., NY Slip Op 06344 (1st Dep't August 29, 2017)

Here is the decision.

Tomorrow's issue:  A retaliation claim under Labor Law § 741.

Sufficiency of service.

Practice point:  Service was proper where the process server attempted to effect service of the landlord's termination notice at the tenant's residential building during reasonable business hours and non-business hours, on two different days.  As the process server could get no closer to the tenant's apartment than the building's front door, after repeatedly ringing the doorbell to the apartment, he affixed the notice conspicuously to the building's front door and subsequently complied with the mailing requirement.

Case:  Matter of 322 W. 47th St. HDFC v. Loo, NY Slip Op 06403 (1st Dep't September 5, 2017)

Here is the decision.

Tomorrow's issue: Invoking a forum selection clause against a non-signatory.

A multiple dwelling's owner's duty of care.

Practice point:  Pursuant to Multiple Dwelling Law § 78[1], the owner is responsible for exercising reasonable care in keeping the property, including the wiring, in good repair.

Student note:  A property owner has a non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others.

Case:  Daly v. 9 E. 36th LLC, NY Slip Op 06404 (1st Dep't September 5, 2017)

Here is the decision.

Monday's issue: Sufficiency of service.

Moving for summary judgment in a negligence action.

Practice point:  A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the accident.

Student note:  Since there can be more than one proximate cause of an accident, it is for the trier of fact to determine the issue of proximate cause.

Case:  Searless v. Karczewski, NY Slip Op 06393 (2d Dep't August 30, 2017)

Here is the decision.

Tomorrow's issue:  A multiple dwelling's owner's duty of care.

Ambiguous contracts.

Practice point  To be found ambiguous, a contract must be susceptible of more than one commercially reasonable interpretation.  Whether there is an ambiguity must be determined by examining the entire contract and considering the parties'  relation and the circumstances under which the contract was executed, with the wording to be considered in the light of the obligation as a whole and the intention of the parties as manifested thereby.

Student note:  In any question of the interpretation of a written contract, the objective is to determine what is the intention of the parties as derived from the language employed.

Case:  Perella Weinberg Partners LLC v. Kramer, NY Slip Op 06341 (1st Dep't August 29, 2017)

Here is the decision.

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

A claim for breach of fiduciary duty.

Practice point:  The elements of the cause of action are (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages directly caused by the defendant's misconduct. The claim must be pleaded with particularity under CPLR 3016(b).

Student note:  A fiduciary relationship arises when one is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation. It is grounded in a higher level of trust than normally present in the marketplace between those involved in arm's length business transactions.

Case:  Saul v. Cahan, NY Slip Op 06390 (2d Dep't August 30, 2017)

Here is the decision.

Tomorrow's issue:  Ambiguous contracts.

Court holiday.

                                        Triangle Shirtwaist Factory 1911

Striking a pleading.

Practice point:  The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery is willful and contumacious. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse.

Student note:  The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court.

Case:  Schiller v. Sunharbor Acquisition I, LLC, NY Slip Op 05866 (2d Dep't July 26, 2017)

Here is the decision.

Tuesday's issue:  A claim for breach of fiduciary duty.

A motion for a finding of civil contempt.

Practice point:  To prevail on a motion to hold another in civil contempt, the moving party must prove by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect; (2) that the other party, with knowledge of the order's terms, disobeyed the order; and (3) that the movant was prejudiced by the offending conduct.

Student note:  To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor's actions were calculated to or actually did defeat, impair, impede, or prejudice the movant's rights or remedies.

Case:  Matter of Michael F. (Shreeis J.), NY Slip Op 05820 (2d Dep't July 26, 2017)

Tomorrow' issue:  Striking a pleading.

Stipulations of settlement and judgments of divorce.

Practice point:  A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to the principles of contract construction and interpretation. In  interpreting the stipulation, the court will construe it in such a way as to give fair meaning to all the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized.

Student note:  Where the parties' intention is clearly and unambiguously set forth, the court must vie effect to their intent as indicated by the language they used.

Case:  Matter of Christie, NY Slip Op 05818 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  A motion for a finding of civil contempt.

A conditional order of preclusion.

Practice point:  A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order.  If the party fails to produce the discovery by the specified date, the conditional order becomes absolute.

Student note:  To be relieved of the adverse impact of the conditional order, a party is required to demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious defense.

Case:  Naiman v. Fair Trade Acquisition Corp., NY Slip Op 05830 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  Stipulations of settlement and judgments of divorce.

The doctrine of primary assumption of the risk.

Practice point:  Under the doctrine, 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 which flow from such participation.

Student note:  This includes risks associated with the construction of the playing surface and any open and obvious condition on it.

Case:  MacIsaac v. Nassau County, NY Slip Op 05814 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  A conditional order of preclusion.

A co-owner's mortgage of a property.

Practice point:  A mortgage given by one of several parties with an interest in the mortgaged property is valid, but it gives the mortgagee security only up to the interest of the mortgagor,

Student note:  Under New York law, a co-owner may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other.

Case:  John T. Walsh Enters., LLC v. Jordan, NY Slip Op 05813 (2d Dep't July 26, 2017)

Here is the decision.

Monday's issue:  The doctrine of primary assumption of the risk.

Open-court stipulations.

Practice point:  As with any contract, the stipulation will be enforced so long as it is sufficiently definite in its material terms so as to enable a court to determine exactly what the parties have agreed to.

Student note:  Open-court stipulations are judicially favored, and will not be set aside absent fraud, overreaching, mistake, duress, or unconscionability.

 Case:  Clement v. Millbrook Cent. Sch. Dist., NY Slip Op 05806 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  A co-owner's mortgage of a property.

An account stated.

Practice point:  An essential element of an account stated is that the parties came to an agreement with respect to the amount due.

 Student note:  An account stated is an agreement, express or implied, between the parties to an account based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them which is independent of the original obligation.

Case:  Caring Professionals, Inc. v. Landa, NY Slip Op 05803 (2d Dep't July 26 2017)

Here is the decision.

Tomorrow's issue:  Open-court stipulations.

A court's vacating a note of issue.

Practice point:  On its own motion, a court may, at any time, vacate a note of issue if it appears that a material fact in the certificate of readiness is incorrect or that the certificate of readiness fails to comply with the requirements of 22 NYCRR 202.21.

Case:  Bundhoo v. Wendy's, NY Slip Op 05802 (2d Dep't July 26, 2017)

Here is the decision.

Tomorrow's issue:  An account stated.

A landowner's liability for injuries during storms.

Practice point:  The landowner is not liable for injuries sustained as the result of slippery conditions during the storm, or for a reasonable time thereafter.  However, if the landowner engages in snow removal, it must act with reasonable care to avoid creating a hazardous condition or making the bad situation worse.

Case:  Balan v. Rooney, NY Slip Op 05801 (2d Dep't July 26, 2017)  

Here is the decision. 

Tomorrow's issue:  A court's vacating a note of issue.

A cause of action sounding in negligence.

The elements of the cause of action are (1) a duty owed by the defendant to the plaintiff; (2) the defendant's breach of that duty; and (3) injury proximately resulting from the defendant's breach.

Practice point:  The existence and scope of a duty of care is a question of law for the courts to decide.

Case:  Abbott v. Johnson, NY Slip Op 05800 (2d Dep't July 26, 2017)

Here is the decision.

Monday's issue:  A landowner's liability for injuries during storms.

The public's right to access to the courts.

Practice point:  While public policy mandates free access to the courts, a party may forfeit that right if she or he abuses the judicial process by engaging in meritless litigation motivated by spite or ill will.

Case:  Pavic v. Djokic, NY Slip Op 05735 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  A cause of action sounding in negligence.

The continuing wrong doctrine.

Practice point:  Where there is a series of continuing wrongs, the doctrine tolls the limitation period until the date of the commission of the last wrongful act.

Case:  Palmeri v. Wilkie Farr & Gallagher LLP, NY Slip Op 05794 (1st Dep't July 25, 2017)

Here is the decision.

Tomorrow's issue:  The public's right to access to the courts.

Contract interpretation.

Practice point:  The objective in interpreting a contract is to determine the parties' intent from the language they used and to fulfill their reasonable expectations.  The court's role is to enforce the parties' agreement made by the parties, not to add, excise or distort the meaning of the terms they chose to include, thereby creating a new contract under the guise of construction. 

Student note:  Although words are generally afforded their ordinary meaning, technical words are to be given their generally accepted technical meaning, and interpreted as usually understood by the persons in the profession or business to which they relate.

Case:  Landmark Ventures, Inc. v. H5 Tech., Inc., NY Slip Op 05713 (2d Dep't July 19, 2017)

Here is the decision. 

Tomorrow's issue:  The continuing wrong doctrine.