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.