Foreclosures.

Practice point: The holder of a note and mortgage may proceed at law to recover on the note or proceed in equity to foreclose on the mortgage, but must elect only one of these remedies, pursuant to RPAPL 1301.

Student note: RPAPL 1301(1) codifies the equitable principle that once a remedy at law has been resorted to, it must be exercised to exhaustion before a remedy in equity, such as foreclosure, may be sought.

Case: Aurora Loan Servs., LLC v. Lopa, NY Slip Op 07595 (2d Dept. 2011).

Here is the decision.

Wednesday’s issue: Time is of the essence.

Slips and falls.

Practice point: A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of demonstrating, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

Student note: Once a defendant has actual or constructive notice of a dangerous condition, the defendant has a reasonable time to undertake remedial actions that are reasonable and appropriate under all of the circumstances.

Case: Alami v. 215 E.68th St., L.P., NY Slip Op 07591 (2d Dept. 2011).

Here is the decision.

Monday’s issue: Foreclosures.

Labor Law.

Practice point: A property owner is not liable on a § 200 claim if someone is hurt through a dangerous condition which he has undertaken to fix.

Student note: A res ipsa loquitur claim does not lie absent a showing that that the accident could not have been caused by plaintiff’s voluntary action or contribution.

Case: Henriquez v. New 520 GSH LLC, NY Slip Op 07578 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Slips and falls.

Discovery.

Practice point: If relevant, plaintiff’s Facebook postings are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access.

Student note:Relevant matter from a personal diary is discoverable.

Case: Patterson v. Turner Constr. Co., NY Slip Op 07572 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Labor Law.

Summary judgment.

Practice point: An argument advanced for the first time in reply papers will not be considered in deciding the motion.

Student note: New facts are required on a motion to renew, pursuant to CPLR 2221[e][2]).

Case: Rhodes v. City of New York, NY Slip Op 07569 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Discovery.

Contracts.

Practice point: A court will not read into the contract an indemnity obligation that is not unmistakably present.

Student note: If the purported indemnification provision is at all ambiguous, summary judgment will be denied.

Case: Lopez v. Guei Shun Shiau, NY Slip Op 07500 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Summary judgment.

Default judgments.

Practice point: Pursuant to CPLR 3215(c), if a plaintiff fails to seek entry of a judgment within one year after default, the court shall dismiss the complaint as abandoned, absent a showing of sufficient cause why it should not be dismissed.

Student note: The showing must include a viable excuse for the delay, and a demonstrably meritorious cause of action.

Case: Utak v. Commerce Bank Inc., NY Slip Op 07261 (1st Dept. 2011).

Here is the decision.

Monday’s issue: Contracts.

Labor Law.

Practice point: The touchstone of any § 240(1) claim is whether the harm flows directly from the application of the force of gravity.

Student note:  A worker may recover under the statute even if he did not actually fall, or if he was injured while preventing himself from falling.

Case: Reavely v. Yonkers Raceway Programs, Inc., NY Slip Op 07366 (1st Dept. 2011).

Here is the decision.

Tomorrow’s issue: Default judgments.

Jurisdiction.

Practice point: A court is without power to render a judgment against a party over whom the court lacks jurisdiction.

Student note: A judgment rendered without jurisdiction is void, and when a deed is issued in execution upon such a void judgment, that deed is similarly void.

Case: U.S. Bank, N.A. v. Bernhardt, NY Slip Op 07415 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Labor Law.

Promissory notes.

Practice point: A cause of action to recover on a note which is payable on demand accrues at the time of its execution, while on a note which is payable in full at one time, it accrues at the time it becomes due. On a note payable in installments, there are separate causes of action for each installment accrued, and the statute of limitations begins to run on the date each installment becomes due and is defaulted upon, unless the debt is accelerated.

Student note: The statute of limitations is six years, pursuant to CPLR 213[2].

Case: Morrison v. Zaglool, NY Slip Op 07401 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Jurisdiction.

Custody Agreements.

Practice point: Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child.

Student note:  The court should consider whether the alleged changed circumstances indicate one of the parties is unfit, the nature and quality of the relationships between the child and the parties, and the existence of a prior agreement.

Case: Matter of Chery v. Richardson, NY Slip Op 07215 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Promissory notes.