Primary assumption of risk.

Practice point: A voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.

Student note: This includes risks associated with the condition of the surface on which the activity is performed, and any open and obvious condition thereon. If the risks are known by or perfectly obvious to the participant, he or she is deemed to have consented to them, and the property owner has discharged its duty of care by making the conditions as safe as they appear to be.

Case: Nigro v. New York Racing Assn., Inc., NY Slip Op 01660 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Collateral estoppel

Legal malpractice.

Practice point: The plaintiff must establish that the defendant-attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages.

Student note: To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action, or would not have incurred any damages, but for the attorney's negligence.

Case: Island Props. & Equities, LLC v. Cox, NY Slip Op 01656 (2d Dept. 2012).

Here is the decision. 

Monday’s issue: Primary assumption of risk.

Sanctions.

Practice point: To support a determination of sanctions pursuant to CPLR 3126, the moving party must demonstrate that the responsible party's actions were willful and contumacious.

Student note: Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading.

Case: Falcone v. Karagiannis, NY Slip Op 01653 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Legal malpractice.

Hearsay and interrogatories.

Practice point: Under the "speaking authority" exception to the hearsay rule, an employee's comments can be binding on an employer if the plaintiff submits evidence in admissible form establishing that the employee's statement was made within the scope of the employee's authority to speak for the employer.

Student note: Interrogatory responses may be used by any party for the purpose of impeaching the credibility of a deponent as a witness, pursuant to CPLR 3117[a][1] and 3131.

Case: Dank v. Sears Holding Mgt. Corp., NY Slip Op 01648 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Sanctions.

Caveat emptor.

Practice point: New York adheres to the doctrine, and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arms length, unless there is active concealment.

Student note: For concealment to be actionable as fraud, the plaintiffs must show that the defendants thwarted the plaintiffs' efforts to fulfill their responsibilities imposed by the doctrine.

Case: Camisa v. Papaleo, NY Slip Op 01645 (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Hearsay and interrogatories.

Affidavits in support of summary judgment motions.

Practice point: CPLR 3212(b) requires that a motion for summary judgment must be supported by, among other things, an affidavit by someone with personal knowledge of the facts.

Student note: Notwithstanding this requirement, where a moving party supports the motion with an attorney's affirmation, deposition testimony, and other proof, the failure to submit an affidavit is not necessarily fatal.

Case: Maragos v. Sakurai, NY Slip Op 01592. (2d Dept. 2012).

Here is the decision. 

Tomorrow’s issue: Caveat emptor.

Demands for a complaint.

Practice point: To avoid dismissal for failing to timely serve the complaint after a demand has been made pursuant to CPLR 3012(b), and to be entitled to an extension of time to serve the complaint under CPLR 3012(d), a plaintiff must demonstrate both a reasonable excuse for the delay and a potentially meritorious cause of action.

Student note: Plaintiff’s failure to provide an affidavit of merit from a person possessing personal knowledge of the facts underlying the action will result in a denial of plaintiff’s motion to extend the time to serve.

Case: Country Serv., Inc. v. Feiden & Assoc., P.C., NY Slip Op 01586 (2d Dept. 2012).

Here is the decision.

Monday’s issue: Affidavits in support of summary judgment motions.

Denial of a motion for summary judgment.

Practice point: Pursuant to CPLR 3212(f), a  court may deny a motion for summary judgment  if it appears from affidavits submitted in opposition  that facts essential to justify opposition may exist but cannot then be stated, especially when the opposing party has not had a reasonable opportunity for disclosure.

Student note: If the defendant has no personal knowledge of the relevant facts, it should be afforded the opportunity to conduct discovery, including deposition of the plaintiff.

Case: Jones v. American Commerce Ins. Co., NY Slip Op 01435 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Demands for a complaint.

Commencing a foreclosure action.

Practice point: In order to commence a foreclosure action, a plaintiff must have a legal or equitable interest in the mortgage. A plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced.

Student note: An assignment of a mortgage without assignment of the underlying note or bond is a nullity, and no interest is acquired by it.

Case: HSBC Bank USA v. Hernandez, NY Slip Op 01434 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Denial of a motion for summary judgment.

Piercing the corporate veil.

Practice point: A plaintiff seeking to pierce the corporate veil must show that complete domination was exercised over a corporation with respect to the transaction at issue, and that the domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury.

Student note: In addition, the corporate veil will be pierced to achieve equity, even absent fraud, when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator's business instead of its own and can be called the other's alter ego.

Case: Fernbach, LLC v. Calleo, NY Slip Op 01427 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Commencing a foreclosure action.

An employer's vicarious liability.

Practice point: An employer is vicariously liable for an employee's acts committed within the scope of employment and in furtherance of the employer's business.

Student note: A cause of action based on negligent hiring and supervision requires a showing that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.

Case: Evans v. City of Mount Vernon, NY Slip Op 01426 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Piercing the corporate veil.