Failure to answer.

Practice point: To avoid the default, or to extend the time to answer, defendant must provide a reasonable excuse and a potentially meritorious defense.

Students should note that the court may accept law office failure as an excuse.

Wells Fargo Bank v. Cervini, NY Slip Op 03837 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is elevators.

Privilege.

Practice point: Witness statements taken by a party's counsel are subject to the qualified privilege for materials prepared in anticipation of litigation or for trial, pursuant to CPLR 3101[d][2].

Students should note that, to overcome the privilege, there must be a showing of a substantial need for the materials, and the inability to get them elsewhere.

Valencia v.Obayashi Corp., NY Slip Op 03835 (2d Dept. 2011).

Here is the decision.

Monday's issue is failure to answer.

Primary assumption of risk.

Practice point: The doctrine includes risk associated with the construction of the playing surface, and any open and obvious condition on that surface.

Students should note that, for the doctrine to be applied, plaintiff need not have foreseen the exact way in which the injury occurred, as long as plaintiff was aware of the potential for injury of the mechanism from which the injury resulted.

Krebs v. Town of Wallkill, NY Slip Op 03808 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is privilege.

Summary judgment.

Practice point: The court may consider an untimely motion or cross motion if a timely motion was made on identical or nearly identical grounds.

Students should note that, in deciding the timely motion, the court may search the record and award summary judgment to the non-movant, pursuant to CPLR3212(b).

Homeland Ins. Co. of N.Y. v. National Grange Mut. Ins. Co., NY Slip 03805 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue is primary assumption of risk.

Depositions.

Practice point:  A corporate entity has the right to designate the representatives to be examined.

Students should note that, in order to depose others, movant must demonstrate that those already deposed had insufficient knowledge, or were otherwise inadequate, and that there is a substantial likelihood that the persons sought for examination have information that is material and necessary to the prosecution or defense of the action.

Giordano v. New Rochelle Housing Authority, NY Slip Op 03802 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue is summary judgment.

Fraud.

Practice point: The action must be commenced within six years of the fraud, or within two years from the time the plaintiff discovered it, or, with reasonable diligence, could have.

Students should note that plaintiff will be held to have discovered the fraud when it is established that he was possessed of facts from which the fraud could reasonably be inferred.

Gorelik v. Vorhand, NY Slip Op 03207 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is depositions.

Labor Law § 240(1).

Practice point: Where the worker is engaged in routine maintenance, the statute does not apply.

Students should note that the fact that the injured plaintiff was the only witness to the accident does not preclude summary judgment in his favor.

Fox v. H&M Hennes & Mauritz, L.P., NY Slip Op 03205 (2d Dept. 2011).

Here is the decision.

Monday's issue is fraud.

Notice of claim.

Practice point: Service of the notice within 90 days after accrual of the claim is a condition precedent for commencing a tort action against the defendant town, pursuant to General Municipal Law §§ 50-e[1][a], 50-i[1].

Students should note that a late notice, served without leave of the court, is a nullity.

Carafora v. Town of Newburgh, NY Slip Op 03197 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is Labor Law § 240(1).

Real estate contracts.

Practice point: Once the contractual time-of-the-essence closing date was waived, plaintiffs were within their rights to unilaterally set a date.

Students should note that defendants' assertion that the date was "not good" for them is insufficient to raise a fact issue as to the date's reasonability.

Chaves v. Kornfeld, NY Slip Op 03102 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is notice of claim.

Tort liability.

Practice point: Liability for a dangerous condition is generally predicated on ownership, control or a special use of the property.

Students should note that, for liability, control of the work is a critical factor in determining whether a party is an independent contractor or an employee.

Lopez v. Allied Amusement Shows, Inc., NY Slip Op 03097 (1st Dept. 2011).

Here is the decision.

Tomorrow's issue is real estate contracts.

Summary judgment.

Practice point:  The opponent is entitled to further discovery when it appears that facts supporting the opposition may exist but cannot yet be stated.

Students should note that this is especially so when there was not a reasonable opportunity for disclosure prior to the making of the motion.

Nicholson v. Bader, NY Slip Op 03041 (2d Dept. 2011).

Here is the decision.

Tomorrow's issue is tort liability.