Vacating a default.

Practice point: To prevail on a motion to vacate a default, a party is required to demonstrate both a reasonable excuse for its default and a potentially meritorious defense

Student note: The trial court has the discretion to accept law office failure as a reasonable excuse.

Case: Adolph H. Schreiber Hebrew Academy of Rockland, Inc. v Needleman, NY Slip Op 09250 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Attorney’s fees.

Bifurcated trials.

Practice point: Courts are encouraged to bifurcate issues of liability and damages in personal injury trials, pursuant to 22 NYCRR 202.42.

Student note: A unified trial should only be conducted where the nature of the plaintiff's injuries has an important bearing on the issue of liability.

Case: Galarza v. Crown Container Co., Inc., NY Slip Op 09088 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Vacating a default.

Court holiday.

The courts are closed today to mark the New Year’s holiday.

Tomorrow’s issue: Bifurcated trials.

Fee forfeitures.

Practice point: An attorney who violates a disciplinary rule may be discharged for cause and is not entitled to any fees for services rendered.

Student note: Misconduct that occurs before an attorney's discharge but is not discovered until after the discharge may serve as a basis for a fee forfeiture.

Case: Doviak v. Finkelstein & Partners, LLP, NY Slip Op 09085 (2d Dept. 2011).

Here is the decision.

Tuesday’s issue: Bifurcated trials.

Breach of fiduciary duty.

Practice point: A cause of action sounding in breach of fiduciary duty must be pleaded with the particularity required by CPLR 3016(b).

Student note: The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship; (2) misconduct by the defendant; and (3) damages directly caused by the defendant's misconduct.

Case: Armentano v. Paraco Gas Corp., NY Slip Op 09075 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Fee forfeitures.

Premature summary judgment motions.

Practice point: To establish that the plaintiff's motion was premature, the defendant must demonstrate that additional discovery might lead to relevant evidence, or that facts essential to justify opposition to the motion are exclusively within the plaintiff’s knowledge and control.

Student note: The mere hope or speculation that evidence sufficient to defeat the motion may be uncovered during the discovery process is insufficient.

Case: Arazashvilli v. Executive Mgt. Corp., NY Slip Op 09074 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Breach of fiduciary duty.

Leave to amend.

Practice point: The determination of whether to grant leave to amend a pleading is within the court's discretion, and the exercise of that discretion will not be lightly disturbed. 

Student note: Leave to amend an answer to assert an affirmative defense should generally be granted where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that it would prejudice or surprise the opposing party.

Case: Giuffre v. DiLeo, NY Slip Op 08903 (2d Dept. 2011). 

Here is the decision. 

Tomorrow’s issue: Premature summary judgment motions.

Court holiday.

The courts are closed today to mark the Christmas holiday.

Tomorrow's issue is leave to amend.

Reckless disregard.

Practice point: The manner in which a police officer operates his or her vehicle in an emergency situation may not form the basis for civil liability to an injured third party unless the officer acted in reckless disregard for the safety of others.

Student note: The reckless disregard' standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.

Case: Elnakib v. County of Suffolk, NY Slip Op 08898 (2d Dept. 2011).

Here is the decision. 

Tuesday’s issue: Leave to amend.

Elevator company liability.

Practice point: An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge, or failure to use reasonable care to discover and correct a condition which it should have found.

Student note: Additionally, a plaintiff may raise a triable issue of fact as to liability under the doctrine of res ipsa loquitur by submitting proof that the rapid descent, shaking, and abrupt, misaligned stop of the elevator was an occurrence that would not ordinarily occur in the absence of negligence; that the maintenance and service of the elevator was in the exclusive control of the elevator company; and that no act or negligence on the part of the plaintiff contributed to the happening of the accident.

Case: DeVito v. Centennial El. Indus., Inc., NY Slip Op 08897 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Reckless disregard.

Service on Health and Hospitals Corporation.

Practice point: The City of New York and HHC are separate entities for purposes of a notice of claim.

Student note:Therefore, service upon the Comptroller of the City of New York is insufficient to constitute service upon HHC, the proper party to be served.

Case: Barnaman v. NYC Health & Hosps. Corp., NY Slip Op 08891 (2d Dept. 2011).

Here is the decision.

Tomorrow’s issue: Elevator company liability.