A motion to punish a party for civil contempt.

Practice point:  Granting the motion requires a finding that (1) there was a court's lawful order, clearly expressing an unequivocal mandate; (2) the party against whom contempt is sought disobeyed the order; (3) the disobedient party had knowledge of the order and its terms; and (4) the movant was prejudiced by the non-movant's offending conduct.  It is not necessary that the disobedience be deliberate or willful; regardless of motive, the mere act of disobedience is sufficient if it defeats, impairs, impedes, or prejudices the rights or remedies of a party.

Student note:  The motion is addressed to the court's sound discretion, and the movant bears the burden of proving the contempt by clear and convincing evidence.

P.B. #7, LLC v 231 Fourth Ave. Lyceum, LLC, NY Slip Op 08945 (2d Dep't December 26, 2018)

Here is the decision.

Hearsay on a summary judgment motion.

Practice point:  Hearsay, without more, is insufficient to defeat the motion.

Student note:  A declaration against interest is not an exception to the hearsay rule if the declarant was unaware of the adverse nature of the statement.

Nava-Juarez v. Mosholu Fieldston Realty, LLC, NY Slip Op 08744 (1st Dep't December 20, 2018)

Here is the decision.

A claim of aiding and abetting fraud.

Practice point:  The plaintiff must allege the underlying fraud, actual knowledge, and substantial assistance. Actual knowledge may be pled generally.

Student note:  As to alleging the underlying fraud, the elements are the misrepresentation or material omission of a fact which was false and which the defendant knew to be false, made for the purpose of inducing the other party's reliance on it; the other party's justifiable reliance on the misrepresentation or material omission; and injury.

William Doyle Galleries, Inc. v. Stettner, NY Slip Op 08743 (1st Dep't December 20, 2018)

Here is the decision.

CPLR 5015(a).

Practice point:  Pursuant to CPLR 5015(a), a court may vacate a default judgment or order on the grounds of excusable neglect, newly-discovered evidence, an adverse party's fraud, misrepresentation, or other misconduct, or the lack of jurisdiction, or on the reversal, modification, or vacatur of a prior order.

Student note:  The statute's listing is not exhaustive, and a court may vacate its own judgment or order for sufficient reason and in the interests of substantial justice.

Nationstar Mtge., LLC v. Russo, NY Sip Op 08668 (2d Dep't December 19, 2018)

Here is the decision.

A dismissed claim of libel per se.

Practice point:  At issue are the defendant's statements to former colleagues at the law firm which had terminated him. The defendant's statement that the plaintiff, who is the firm's principal, is "really nothing more than a common criminal" is a nonactionable statement of opinion. The statement has an imprecise meaning, and it cannot be proven true or false. In context, no reasonable reader would understand the statement as an accusation that the plaintiff had ever been charged with, or convicted of, a crime.

Caradli v. Slater, NY Slip Op 08544 (1st Dep't December 13, 2018)

Here is the decision.

Opposing summary judgment.

Practice point: The opposing party need only raise an issue of fact, and, as to that fact, the court may not apply the burden of proof that will be applicable at trial.

Ostad v. Nehmadi, NY Slip Op 08563 (1st Dep't December 13, 2018)

Here is the decision.

Option contracts.

Practice point:  An option contract is an agreement, for consideration, to hold open an offer, with the right to purchase at a later date.  If the agreement sets no time limit for performance, the court will decide on a reasonable time, considering factors such as the agreement's nature and object; the parties' previous dealings and their experience; whether there is good faith; the possibility of prejudice or hardship to either party; and, if specified, the number of days provided for performance.

Student note:  On a motion to dismiss for failure to state a cause of action, a court may reach the merits of a properly pleaded claim for a declaratory judgment where there are no questions of fact.

Breslin v. Frankel, NY Slip Op 08456 (2d Dep't December 12, 2018)

Here is the decision.

Statute of frauds.

Practice point:  Agreements between persons cohabiting together are not, per se, required to be in writing.

Student note:  Pursuant to CPLR 3211(a)(5), a party may move for dismissal on the ground that the cause of action may not be maintained because of the statute of frauds.

Baron v. Suissa, NY Slip Op 08453 (2d Dep't December 12, 2018)

Here is the decision.

Vacating a default.

Practice point:  Law office failure is not a reasonable excuse for the default where there is a pattern of the attorney's intentional failures.

Spivey v. City of New York, NY Slip Op 08557 (1st Dep't December 13, 2018)

Here is the decision.

Tomorrow's issue:  Statute of frauds.

Improper rent registration.

Practice point:  Pursuant to Rent Stabilization Code § 2528.4, an owner who filed an improper rent registration is barred from collecting rent in excess of the base-date rent. If the increases were otherwise legal, the owner is retroactively relieved of the penalty upon the filing of a proper registration.

Nolte v. Bridgestone Assoc. LLC, NY Slip Op 08571 (1st Dep't December 13, 2018)

Here is the decision.

Monday's issue:  Vacating a default.

Discovery after filing a note of issue.

Practice point:  On a showing of unusual or unanticipated circumstances that developed after the filing of the note of issue, additional discovery may be ordered, pursuant to 22 NYCRR 202.21[d].

Palmiero v 417 E. 9th St. Assoc., LLC, NY Slip Op 08449 (1st Dep't December 11, 2018)

Here is the decision.

Causality in an employment action.

Practice point:  Temporal proximity between a plaintiff's complaints to the employer about racial stereotyping and discrimination and the termination of employment is sufficient to raise an inference of a causal connection between the plaintiff's protected activity and the adverse employment action.

Cook v. EmblenHealth Servs. Co., LLC, NY Slip 08433 (1st Dep't December 11, 2018)

Here is the decision.

CPLR 3216 and 90-day demands.

Practice point:  After having been served with the demand, pursuant to 3216(b), a plaintiff must timely file a note of issue or move to vacate the demand or to extend the 90-day period. Vacatur of a default requires a reasonable excuse and a potentially meritorious cause of action.

Student note:  CPLR 3216  authorizes, but does not require, dismissal of an action based on the plaintiff's unreasonable neglect to proceed.

Angamarca v. 47-51 Bridge St. Prop., LLC, NY Slip 08273 (2d Dep't December 5, 2018)

Here is the decision.

A defense of unconscionability.

Practice point:  The defense requires a showing that the defendant did not have a meaningful choice in entering into the agreement. and that the agreement's terms were unreasonably favorable to the plaintiff.

Cash4Cases, Inc. v. Brunetti, NY Slip Op 08360 (1st Dep't December 6, 2018)

Here is the decision.

The Court of Claims Act.

Practice point:  For purposes of the statute, a claim accrues when damages are reasonably ascertainable.

Student note:  Compliance with the filing deadlines set forth in § 10 is jurisdictional, and the deadlines must be strictly construed.

Mills v. City Univ. of N.Y., NY Slip Op 08355 (1st Dep't December 6, 2018)

Here is the decision.

Easements by grant and prescription.

Practice point:  An easement by grant is construed to give effect to the parties' intent, as manifested by the grant's language. For an easement by prescription, the standard is clear and convincing proof of the adverse, open and notorious, continuous, and uninterrupted use of the property for the prescriptive period.

Student note:  Where the easement provides for the ingress and egress of motor vehicles, it extends to any reasonable use necessary and convenient for the purpose for which it is created.

DiDonato v. Dyckman, NY Slip Op 08113 (2d Dep't November 28, 2018)

Here is the decision.

Equitable remedies.

Practice point:  The court may issue a permanent injunction even if the parties' agreement does not specify it as a remedy.

Student note:  A complete bar to equitable relief requires explicit contractual language, such as a provision that liquidated damages will be the sole and exclusive remedy.

Nelson v. Rosenkranz, NY Slip Op 08177 (1st Dep't November 29, 2018)

Here is the decision.

The right to a trial by jury.

Practice point:  The guarantee to a right to a trial by jury under the Seventh Amendment to the United States Constitution differs from the protections afforded the right to a jury trial in civil cases in New York.

Student note:  The Seventh Amendment is not applicable to cases tried in state courts.

Marko v. Korf, NY Slip Op 08089 (1st Dep't November 27, 2018)

Here is the decision.

Moot questions.

Practice point:  Courts may not pass on academic, hypothetical, or otherwise abstract questions that have no practical effect on the parties.

Student note:  As a matter of jurisdiction, a court's power to declare the law derives from, and is limited to, determining issues relating to persons who are rightly parties in a particular case.

Berger v. Prospect Park Residence, LLC, NY Slip Op 08110 (2d Dep't November 28, 2018)

Here is the decision.

Service of process.

Practice point:  An affidavit of service is prima facie evidence that the defendant was properly served with the summons and complaint, pursuant to CPLR 308(2).  In order to rebut the prima facie showing, the defendant must submit a sworn, nonconclusory denial of service, or swear to specific facts to rebut the statements in the process server's affidavit.

Student note:  A defendant's mere assertion that he was never served is insufficient to rebut the presumption  of proper service.

JP Morgan Chase Bank v. Dennis, NY Slip Op 08070 (1st Dep't November 27, 2018)

Here is the decision.